Applying Humanitarian Law: A Review of the Legal Status of the Turkey–Kurdistan Workers’ Party (pkk) Conflict

Deniz Arbet Nejbir

doi:10.1163/18781527-bja10026

Abstract

Abstract This article assesses the applicability of the criteria for non-international armed conflict to the situation in South-Eastern Turkey. It demonstrates that the Kurdistan Workers’ Party (also known as the pkk), as a party to the conflict, fulfils the three main criteria laid down in conventional international humanitarian law and developed by indicative factors in international jurisprudence for assessing the existence of a non-international armed conflict in the context of Common Article 3 to the 1949 Geneva Conventions: being an organised armed group, having the ability to engage in ‘protracted violence’, and complying with law of armed conflict. It establishes that the pkk qualifies as an organised armed group under responsible command and has the operational ability, structure and capacity to carry out ‘protracted violence’, to respect fundamental humanitarian norms of international humanitarian law and to control territory. The article also ascertains that Turkey is clearly bound by the provisions of the four Geneva Conventions of 1949, including Common Article 3, and customary international humanitarian law. Accordingly, it concludes that the conflict between the pkk and the Turkish security forces qualifies as a non-international armed conflict within the meaning of both Common Article 3 and customary international humanitarian law.

Highlights

Prior to the mid-twentieth century, international humanitarian law (‘ihl’) dealt exclusively with armed conflict between States
It concludes that the conflict between the pkk and the Turkish security forces qualifies as a non-international armed conflict within the meaning of both Common Article 3 and customary international humanitarian law
The above examination demonstrates that the pkk struggle is not a guerrilla war of sporadic attacks and that the conflict does not consist of limited insurgency or isolated and sporadic violence or terrorist attacks, but is a prolonged violent armed conflict with a certain intensity, over a widespread and expanding geographic area for a period of more than three decades

Summary

Introduction

Prior to the mid-twentieth century, international humanitarian law (‘ihl’) dealt exclusively with armed conflict between States. On 8 March 2019, the Court of Appeal of Brussels discontinued the prosecution of 39 individuals and two media companies affiliated to the pkk on the grounds that the pkk is not a ‘terrorist’ organisation and qualified it as an armed force party to a niac with Turkey.[60] The main issue in this case revolved around the ihl exclusion clause contained in Article 141bis of the Belgian Criminal Code, which aims to keep separate the application of ihl Kurdistan Workers’ Party (pkk) v Council of the European Union (n 21) [109]. The following examination seeks to provide greater clarity by analysing Turkey’s international obligation under ihl and the capacity of the pkk to meet the relevant criteria regarding niac s

Are Common Article 3 and Additional Protocol ii Applicable to Turkey?

Does the pkk Fulfil the Requirements of niac under Common Article 3?

Conclusion