ABSTRACT
In this chapter the main focus of analysis is a non-international armed conflict, even if an argument could be made, as is discussed in Chapter 2, that this conflict could be classified as an international armed conflict. As is evident from Chapter 2, international humanitarian law as codified in treaties provides basic guarantees to both civilians and combatants embroiled in non-international armed conflict, but no more than that. Regrettably, the development of the law in this area has been constrained by the reluctance of states to limit their sovereignty, particularly when an armed conflict is internal.1 There is no more obvious an example of this reluctance, than the disappointing Additional Protocol II to the Geneva Conventions of 1977 which provides only a small number of guarantees. In the case of the conflict in the southeast, Turkey is not even a party to this minimal convention. However, Turkey, with the rest of the international community, is a party to the four Geneva Conventions of 1949 with its Common Article 3 applicable to non-international armed conflict. However, due to the development in case law and state practice since the Second World War there are a number of customary humanitarian law rules that apply to both international and non-international armed conflict. As a result there are extensive international treaty and customary law obligations binding the government of Turkey and the fighters of the Kurdistan Workers Party (PKK) even if this conflict does not rise to the level of an international armed conflict. The purpose of this chapter is to discuss in more detail the applicability of
Common Article 3 of the Geneva Conventions, customary international humanitarian law, and human rights law to the armed conflict in the southeast of Turkey. The first part of the chapter comprehensively discusses the protections afforded by Common Article 3. It describes the historical development of this article and defines the various terms within the article, including the issue of its applicability to which participants in the conflict. It also assesses the limitations of this article as it does not provide the detailed protections available in remaining provisions of the four Geneva Conventions of 1949. It also discusses the criminalisation of violations of Common Article 3. Finally, the alleged violations of the provisions by both the Turkish army and the PKK are reviewed.
