Introduction | 9 | The Kurdish Conflict | Kerim Yildiz, Susan Breau |

ABSTRACT

Although southeast Turkey has seen serious conﬂict for over 20 years, no exhaustive study has been conducted on the international law and international relations ramiﬁcations of the conﬂict. It is crucial to carry out a comprehensive analysis of this ongoing armed conﬂict at a time when Turkey not only continues to engage in European Union accession negotiations and cross-border military operations in Kurdistan, Iraq, but is also taking tentative steps towards a political solution to the situation of the Kurdish people in Turkey. This book provides a legal analysis of, and suggests a possible ‘roadmap’ for resolution of, the conﬂict, thus ﬁlling the crucial gap in academic literature on the topic. The two authors of this book bring a unique multi-disciplinary perspective to

this conﬂict. Kerim Yildiz, the Director of the Kurdish Human Rights Project (KHRP), has extensive experience in international law and armed conﬂict and oﬀers unique insight into the political causes of, and ultimate solutions to, this conﬂict. Since the founding of KHRP, he has been involved in the preparation of many books and reports on the situation of the Kurdish people of the region and has been instrumental in the bringing of cases to the European Court of Human Rights. Dr Susan Breau is an academic international lawyer with particular expertise in examining the laws governing armed conﬂict, both jus ad bellum and jus in bello and has also engaged in extensive research on the human rights consequences of movements for self-determination. This book is structured in such a way as to give the reader a comprehensive view – both legal and political – of the conﬂict in southeast Turkey. The study commences in Chapter 1 with a brief history of the Kurdish people

across Turkey, Iraq, Iran and Syria as well as a brief background to the conﬂict in the predominantly Kurdish southeast region of Turkey, and the area in the north of Iraq over which the Kurdistan Regional Government has authority (forthwith referred to as southeast Turkey and Kurdistan, Iraq respectively). This background chapter helps to provide readers with suﬃcient knowledge of the topic and prepares the ground for the analysis in the following chapters. Part 1 of the book concentrates on the law of armed conﬂict as directly

applied to the situation in southeast Turkey and Kurdistan, Iraq. Chapter 2 deals generally with the international legal regime concerning armed conﬂict and is also designed to serve an introductory purpose. The ﬁrst task is to review the

deﬁnition of ‘armed conﬂict’ within international humanitarian law and to apply that deﬁnition to discuss whether the situation in southeast Turkey rises to the level of an armed conﬂict. After examination of the relevant treaties and academic literature, it is determined that this conﬂict does indeed rise to the level of an armed conﬂict. Following this determination, the chapter reviews the various types of armed conﬂict that could exist and, on balance, concludes that a non-international armed conﬂict exists in southeast Turkey and spills over into Kurdistan, Iraq. It also, importantly, introduces the law within armed conﬂict, the jus in bello, which includes the Hague Regulations and the Geneva Conventions of 1949 with the provision applicable in non-international armed conﬂict, Geneva Convention, Common Article 3. The chapter concludes with a discussion of the relationship between the protections aﬀorded by international human rights law and the legal obligation under international humanitarian law. Chapter 3 is crucial to the study of the armed conﬂict in southeast Turkey and

looks in detail at the international humanitarian law standards applicable to a non-international armed conﬂict including Common Article 3 to the Geneva Conventions of 1949, Customary Humanitarian Law and Minimum Humanitarian Standards. The chapter reviews the legal obligations within non-international armed conﬂict for both the Turkish military and the ﬁghters of the insurgency within southeast Turkey. It also engages in a speciﬁc analysis of the jurisprudence of the European Court of Human Rights and the applicability of those cases in clarifying not only the obligations under the jus in bello but also those under international human rights law. The analysis gives particular focus to the civilians in the area who have been caught up in this long-standing war and who have seen their lives and property destroyed. Chapter 4 moves into a review of the legal regime concerning the distinction

between combatants and civilians and the classiﬁcation of belligerents with reference to the Kurdistan Workers Party (PKK). It discusses the Geneva Conventions’ criteria of belligerents and the relevance of customary humanitarian law to this debate. It also reviews the various protections aﬀorded to belligerents within international and non-international armed conﬂict, describing the extensive protections available to prisoners of war under Geneva Convention III and contrasting that with the limited protections available to detainees in internal armed conﬂict. The chapter introduces some of the extensive jurisprudence of the European Court of Human Rights which has reviewed conditions of detention within the conﬂict in southeast Turkey as well as the treatment of the ﬁghters within this conﬂict. An issue that is crucial in this examination is the lawfulness of the continued

incursions into Kurdistan, Iraq by the Turkish armed and security forces. Chapter 5 introduces and reviews the jus ad bellum concerning the lawfulness of both the rebel groups and the Turkish use of force within the context of the United Nations Charter and customary international law. This chapter discusses the various justiﬁcations that have been or could be advanced for the Turkish intervention into another sovereign state and assesses the legality of these reasons. Due to the fact that there has been a violation of the prohibition on the use of

force, the issue of state responsibility as well as the responsibility of international actors to respond to the threat to international peace and security that results from this intervention is engaged. Chapter 6 discusses the international legal framework of terrorism. Members of

the PKK have been categorised as terrorists and the armed clashes as a series of terrorist attacks. It reviews the legal consequences of deﬁning the insurgency as terrorist attacks and the participants as terrorists. The main area of analysis is whether or not the ‘war on terror’ has resulted in changes to the law of armed conﬂict. It also reviews international developments and the recent case law in both the Supreme Court of the United States and the House of Lords in the United Kingdom, discussing the human rights and humanitarian law protections aﬀorded to alleged terrorists and applying these rules to the situation in southeast Turkey. Part 2 of the book reviews the possible legal and political solutions to the

conﬂict and in two pivotal chapters examines in depth the international relations consequences of the two competing concepts of terrorism and self-determination. These chapters examine the feasibility of conducting constructive dialogue both backchannel and public on the basis of resolving the ongoing armed conﬂict. The prospects of creating a new common ground for a political solution are explored. Chapter 7 reviews the role of international actors in contributing to, or undermining prospects for, a political solution, and looks at the impact the ‘global war on terror’ has had on the international community’s actions in regards to the conﬂict. By making some comparative analysis of international engagement in diﬀerent situations regarding ‘terrorists’, the chapter suggests some modes of best practise for contributing to peace building. Chapter 8 introduces the legal debate surrounding the principle of self-determination and the consequences to claims of self-determination which are the key political models of federalism and secession, both which involve separate legal structures. Finally, Chapter 9 reviews the current political platform in Turkey with recommendations for the development of a long-term post-conﬂict environment, with particular reference to the Northern Ireland peace negotiations introducing possible political solutions to the crisis in southeast Turkey, as well as a cessation of cross-border military operations into Kurdistan, Iraq. In conclusion, the study emphasises the importance and relevance of having

the situation in the southeast covered, as comprehensively as possible, by compliance with international law. This is of enormous signiﬁcance, not only from the human rights perspective regarding the Kurdish civilian populations in Turkey and Iraq, but also from the perspective of ﬁnding a long-term solution to the prevailing dispute. It further highlights that analysis of the law regarding armed conﬂict is highly appropriate in relation to the conﬂict and should not be undermined. Deﬁnition of the situation in Turkey and Iraq according to the law of armed conﬂict would radically transform the nature and scope of the debate concerning the Kurdish conﬂict and open up new avenues in the wider discussion about conﬂict resolution, global politics and international law.