The Kurdish Conflict: International Humanitarian Law and Post-Conflict Mechanisms (review)

This book is a groundbreaking analysis of the on-going conflict waged by the Kurdistan Workers' Party (PKK) in southeastern Turkey and its spill over into northern Iraq in terms of the international law of war (jus in bello or international humanitarian law) and the use of force (jus ad bellum). As such, it frames the question within new lights that are particularly appropriate. Apposite too are the two authors. As the executive director of the Kurdish Human Rights Project in London (KHRP), Kerim Yildiz brings a thorough knowledge of Kurdish history and culture with a lengthy experience in the practical application of human-rights law regarding the Kurds within the European community. Over the years the KHRP has argued successfully numerous cases before the European Court of Human Rights involving Turkish violations of ethnic Kurdish rights within Turkey. Susan Breau is a professor of international law at Flinders University in Adelaide, Australia with an emphasis on the international law of armed conflict and human rights.

After a brief discussion of the historical background, their analysis is divided into two parts. Part I concerns the international law of armed conflict as applied to the Kurdish struggle, while Part II delves into some potential legal and political solutions. Upon analyzing the relevant literature and treaties, the opening chapter of Part I concludes "on a factual basis in spite of the denial of Turkey" (p. 58) that the complex conflict in southeast Turkey, which also spills over into northern Iraq, constitutes a non-international armed conflict. Thus, "it can be argued that a whole range of humanitarian guarantees are offered to both civilians and combatants" (p. 88) by such means as the Hague Regulations of 1907 as well as the Geneva Conventions of 1949 with their Common Article 3 that provides limited protections for civilians and members of armed forces hors de combat.

A subsequent chapter finds that PKK fighters are belligerents as defined by international law and that therefore, "a full range of humanitarian protections apply due to their customary [legal] status" (p. 115). However, the authors conclude that "neither Turkey nor the PKK has respected these customary rules towards each other's fighters that find themselves hors de combat" (p. 115). Another chapter examines the lawfulness of both sides' use of force and concludes that "whether, in a post-colonial era, there is a right to rebel is an extremely controversial topic" and that "it seems that Turkey does not have a clear justification for its incursions into the sovereign territory of Iraq" (p. 138). Although the authors build a skillful case, this reviewer still would argue that the prohibition of UN Charter Article 2(4) on "the threat or use of force" clearly does not apply to civil wars, and thus international law takes no position on the legality of an internal war. As for Turkey's incursions into northern Iraq, the right of self-defense and hot pursuit might justify such actions. How would the authors characterize the US invasions of Afghanistan and Iraq, which, in part, at least, were supposedly to forestall terrorism?

The final chapter of Part I analyzes the tortured concept of terrorism, since PKK fighters have been deemed terrorists. Has the post-9/11 "war on terrorism" led to changes in the international law of armed conflict? Although the authors detail the numerous legal and political initiatives that have been attempted to define terrorism, they correctly point out "the lack of an agreed definition of terrorism ... [and] who is a terrorist" (p. 140). "The long-standing schism between the freedom fighter and the terrorist is the main difficulty in arriving at such a definition" (p. 148). Thus, using the term terrorist for the PKK "adds little to the analysis of the Kurdish conflict and that it is within the traditional jus in bello or jus ad bellum rules that this situation should be addressed" (p. 165). What is...