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INTRODUCTION
The approximately 25 million Kurds in the Middle East constitute the largest nation on earth without its own independent state. As a result, therefore, the Kurds have labored in an obscurity only occasionally broken by some international attention as when, for example, the Kurdish Republic of Mahabad briefly flickered in 1945-46, or Mulla Mustafa Barzani led his ultimately unsuccessful revolt in the 1960s and 70s.
Since the Gulf war in 1991 and the subsequent Kurdish uprising against Saddam Hussein that led to a tragic mass refugee exodus, however, there has been a virtual explosion of interest, as well as publications, on various political, social, and cultural aspects of the Kurdish question. Virtually none, however, has analyzed the legal aspects of the Kurdish question, a glaring gap which the Ahmed Foundation for Kurdish Studies sought to address by sponsoring a conference in Washington, D.C., on November 20-21, 1999.
Four lawyers (Karen Parker, Hans-Eberhard Schultz, Nouri Talabany, and Fiona Darroch), a human rights activist with a great deal of practical experience on the Kurdish question (Lord Eric Avebury), a political scientist with training in international law (Michael M. Gunter), and a historian and Kurdologist (Mehrdad Izady), analyzed various legal aspects of the Kurdish question. Though Judge Ralph Fertig was unable to attend the conference for family reasons, his paper on international and United States law is incorporated in this document. The conference was closed to allow for greater time in presentation of the papers and serious subsequent questions and answers. In conclusion, the conference issued a declaration recommending various legal steps that should be pursued to help begin addressing the Kurdish question.
In preparing the written contributions for publication, the editors made no attempt to altar the original authors' analyses. Rather, the editors saw their role as merely cleaning up brief stylistic lapses, which inevitably crept into manuscripts originally prepared for oral presentation. The result is at times eclectic both as to style and format. In all cases, however, the analyses are pithy and heuristic.
Mohammed M. A. Ahmed, President of the Ahmed Foundation for Kurdish Studies, led the discussion with a brief analysis of the origin of what exactly constitutes the Kurdish question. As a Kurd, former professor, and with long experience in the United Nations system, Ahmed offered an insight into the origin and complex nature of the Kurdish question. He shed light on factors contributing to the inability of the Kurds to achieve their national aspirations during the twentieth century. This, of course, set the backdrop for the ensuing analyses of some of its most important legal aspects.
Michael Gunter, who has written extensively on the modem political situation of the Kurds, followed. He pointed out that much of what modem international law has to say that is relevant to the Kurdish question falls under the rubric of "soft" law or de lege ferenda (the law as it may be or should be in the future), as distinguished from de lege lata (the law as it currently stands). In this regard, he cited specific examples of "soft" law concerning the Kurdish question, including issues of self-determination, minorities, indigenous peoples, and aspects of human rights and humanitarian intervention.
Karen Parker, an American lawyer with practical legal experience, argued persuasively that the international law of wars applied to the long-running insurgency of the Kurdistan Workers Party ({PKK) in Turkey. She maintained that Abdullah Ocalan, the PKK president captured by Turkey in February 1999 and sentenced to death for treason in June, 1999, had a legal right to prisoner of war (POW) status. Parker further asserted that the Kurdish struggle in Turkey constituted a war of national liberation as defined by relevant provisions of modem international law, and that, therefore, the Kurds in Turkey have a right to self-determination, the legal consequences of which she then analyzed.
Hans-Eberhard Schultz, a German lawyer in Ocalan's legal defense before his capture, analyzed the lengthy Kurdish liberation struggle in Turkey against the backdrop of international law with particular emphasis on the Kurdish legal rights to self-determination. He examined Ocalan's trial in light of international law and concluded that, as a POW, Ocalan should not have been brought before a criminal court in Turkey and convicted of treason.
Nouri Talabany, a former professor of law at the University of Baghdad, examined the legal status of southern Kurdistan-Iraq, with particular emphasis on a possible federal solution for the Kurds in Iraq. He pointed out, however, the continuing illegalities of the government's Arabization policy against the Kurds in Kirkuk, a city long a bone of contention between the two opposing sides.
Lord Eric Avebury examined practical obstacles to Kurdish self-determination in Turkey. These included the failure of the Kurdish issue to even register on the consciousness of the United Nations, Turkey's valued membership in NATO, the OSCE's toothless attempts to protect the Kurds, and the seeming impossibility of constitutional reform in Turkey.
Mehrdad Izady argued that since the Kurds are not recognized as a nation or as a cohesive bloc of people with distinctive attributes, the United Nations does not recognize their struggle as a liberation movement but as a domestic dispute. As a result, their fate remains in the hands of the states ruling their land.
Fiona Darroch, a British environmental lawyer, dwelled on the fate of Hassankeyf, a historically significant Kurdish city slated to be submerged beneath the waters of the Ilisu Dam as part of the GAP project in northern Kurdistan-Turkey. Darroch demonstrated Turkey's facile violation of the existing environmental and political laws.
Due to time constraints, it was not possible to incorporate the papers of Schultz and Izady in the final document of the conference.
In its final session, the conference drew up a declaration recommending various legal steps that should be pursued to begin addressing the Kurdish question.
Mohammed M. A. Ahmed
Michael M. Gunter
The Origin of The Kurdish Question
Mohammed M. A. Ahmed
The Kurdish question has often been used interchangeably with the Kurdish issue, problem, predicament, and human and cultural rights. Unless the Kurds are in a position to accurately define the Kurdish question, it becomes very difficult to identify their long-term goal and the available means to achieve it. In this respect, the question which comes to the forefront is whether the Kurdish people aspire to statehood, federation, local autonomy or other variants of these objectives and how they intend to achieve them.
An Appeasement Policy or a Game of Realpolitik?
Despite the fact that most Kurds aspire to a Kurdish state(s), their political parties have continued to seek other variances of this objective. The Kurdish political parties have often changed their position on the Kurdish question on the pretext that they have to play a game of realpolitik in order to survive and gain outside support. As a result, the long-term goal of the
Kurdish nation has become fragmented and illusory.
The political parties argue that since the states ruling Kurdistan are not willing to accord the Kurds an opportunity for self-determination, they are obliged to seek other attainable goals. For example, the Kurdish Democratic Party of Iraq (KDP)1 and the Kurdish Democratic Party of Iran (KDPI)2 have long unilaterally downgraded the Kurdish goal from self-determination to local autonomy without any local, regional or international assurances. Sheikh Mahmud Barzinjy in south Kurdistan-Iraq,3 Ismail Simqu in east Kurdistan-Iraq,4 and Sheikh Said Piran in north Kurdistan-Turkey5 fought for independence during and after World War 1. Though Qazi Muhammad succeeded in establishing the Kurdish Republic of Mahabad, he was unable to harness sufficient support for its sustenance.6
Despite considerable human and material sacrifices, both the Kurdistan Democratic Party of Iraq (KDP) and the Kurdistan Democratic Party of Iran (KDPI) and their allies have failed in the past to win acceptable …
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