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International Law and Non-State Armed Groups: a Legal Analysis of Kurdish Revolts

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International Law and Non-State Armed Groups: a Legal Analysis of Kurdish Revolts Faculty of Law Academic year 2011-2012 International Law and Non-State Armed Groups: A legal Analysis of Kurdish Revolts PhD dissertation presented to the Faculty of Law of Ghent University in order to obtain the degree Doctor of Law Joseph Zand Promoter: Prof. Dr. Frank Maes Doctoral Guidance Committee: Prof. Dr. Dirk Heirbaut and Prof. Dr. Gert Vermeulen 1 “… there are no authentic nations: nationhood is a consequence of political and ideological struggle”.1 1 M. Koskenniemi, ‘National Self-Determination Today: Problems of Legal Theory and Practice’ (1994) 43 ICLQ, p. 241. 2 Acknowledgements Completing a PhD thesis is the most arduous but rewarding task I have ever undertaken in my life. Writing a thesis can be a lonely experience. It has to be said that spending hours on end researching in different libraries is hardly conducive to a healthy social and family life. However, I have been extremely fortunate to be the recipient of so much assistance and encouragement in this process. Above all, I would like express my gratitude to my promoter Professor Dr. Frank Maes, without whose support this task would have been practically impossible. He has supported me through some of my darkest hours and now I hope he enjoys the fresh new dawn with me. I would like to thank sincerely my co-promoter Professor Dr. Dirk Heirbaut and Professor Dr. Gert Vermeulen for their valued guidance. Professor Dr. Eduard Sommers and Professor Dr. Kemal Baslar from the National Police Academy, Turkey deserve a special mention for their kindness and unrelenting support. I would like to thank my family and friends for giving me their undying love and belief in me. There are three very special ladies I would like to thank, our brilliant secretaries Peggy De Smet, Karin Pensaert, and Kristien Ballengeer for helping me throughout my stay in Gent. I would also like to express my sincere gratitude to Betty Queffelec and Eric Boone for their invaluable computer assistance. Last, but by no means least, I would like to thank all my colleagues at the Department of Public International Law and the Department of Legal Theory and Legal History at the Law Faculty of Ghent University for their support and encouragement throughout this process. 3 Table of contents International Law and Non-State Armed Groups: A legal Analysis of Kurdish Revolts . 1 ACKNOWLEDGEMENTS ................................................................................................... 3 TABLE OF CONTENTS ....................................................................................................... 4 LIST OF ABBREVIATIONS .............................................................................................. 10 CHAPTER 1. INTRODUCTION ........................................................................................ 13 1.1 Non-State Armed Groups: a working definition ........................................................ 14 1.2 The three Kurdish entities of Iran, Iraq and Turkey ................................................... 20 1.3 Methodology of the thesis .......................................................................................... 21 1.4 Classification of armed conflict in Kurdistan ........................................................ 22 1.4.1 International armed conflict ................................................................................. 22 1.4.2 Internal armed conflict ................................................................................... 24 1.4.3 Internationalized armed conflict..................................................................... 27 CHAPTER 2. THE KURDS: AN HISTORICAL BACKGROUND .................................. 29 2.1 The land of the Kurds ................................................................................................. 29 2.1.1 The Kurds: a divided people ................................................................................ 29 2.1.2 Division of Kurdistan ..................................................................................... 33 2.1.3 The roots of Kurdish nationalism ................................................................... 34 2.2 The Kurds, international law and the formation of the modern Middle East ............. 40 2.2.1 A struggle for dominance: the Treaty of Sèvres ............................................. 40 2.2.2 Treaty of Lausanne (1923): Creation of modern Turkey and Iraq ................. 42 2.2.3 The Permanent Court of International Justice and the Vilayet of Mosul ....... 45 2.3 The Kurds in Turkey: 1923-1945 .......................................................................... 47 2.3.1 Living under the Kemalist regime ....................................................................... 47 2.3.2 Legal measures against the Kurds in Turkey ................................................. 49 2.3.3 The major Kurdish revolts in Turkey ............................................................. 52 2.3.3.1 SHEIKH SAID REVOLT, 1925 ........................................................................ 53 4 2.3.3.2 ARARAT REVOLT, 1927-1930 ...................................................................... 55 2.3.3.3 THE DERSIM REVOLT OF 1937 ..................................................................... 58 2.4 The Kurds in Iraq: 1923-1945 ............................................................................... 60 2.4.1 Iraq: a British creation ......................................................................................... 60 2.4.2 The false promise of self-rule......................................................................... 62 2.4.3 The establishment of monarchy: the nascent Arab state ................................ 63 2.4.3.1 KURDISH REVOLTS IN IRAQ .......................................................................... 66 2.4.3.2 SHEIKH MAHMUD’S REVOLTS ...................................................................... 67 2.4.3.3 THE EMERGENCE OF MULLAH MUSTAFA BARZANI ..................................... 69 2.5 The Kurds in Iran ................................................................................................... 70 2.5.1 The end of the Qajar Dynasty .............................................................................. 70 2.5.2 Reza Shah and Iranian nationalism ................................................................ 72 2.5.3 Simko’s revolts ............................................................................................... 73 2.6 The Kurdish Mahabad Republic of 1946 ................................................................... 75 2.7 A United front against the Kurds: Treaty of Saadabad of 1937 ................................ 78 2.8 Kurdistan 1946-1991 ............................................................................................. 79 2.8.1 After the Mahabad Republic and emergence of Kurdish political parties ........... 79 2.8.2 The Kurds in Iran: the post 1946 era .............................................................. 80 2.8.3 Armed revolts against the Shah’s regime ....................................................... 82 2.8.4 The establishment of the Islamic Republic: a false dawn .............................. 84 2.8.5 State terrorism: assassinations of Kurdish leaders in Europe ........................ 89 2.9 The Kurds in Iraq: the Post-1946 Era .................................................................... 91 2.9.1 The End of monarchy and the war of 1961.......................................................... 91 2.9.2 First Barzani revolt 1961-70 .......................................................................... 92 2.9.3 The Second Barzani revolt of 1974-75 .......................................................... 96 2.9.4 The Algiers agreement of 1975 ...................................................................... 98 2.9.5 The emergence of the Patriotic Union of Kurdistan (PUK) ........................... 99 5 2.9.6 The Anfal campaign: the genocide of the Kurds.......................................... 101 2.9.7 The Gulf War 1990-91: the establishment of a safe haven .......................... 103 2.10 The Kurds in Turkey: the Post-1946 Era ............................................................. 109 2.10.1 Repression of the Kurdish population in 1950s & 1960s ................................ 109 2.10.2 The 1980 military Coup d’état in Turkey..................................................... 112 2.10.3 The emergence of the Kurdistan Workers’ Party (PKK) ............................. 113 2.10.3.1 POLITICAL AND MILITARY STRUCTURE OF THE PKK ................................ 116 2.10.3.2 PKK’S REVOLT OF 1984 .......................................................................... 118 2.10.3.3 THE CAPTURE OF ABDULLAH OCALAN .................................................... 123 2.10.3.4 THE UNION OF COMMUNITIES IN KURDISTAN (KCK) .............................. 126 2.11 Party for a Free Life of Kurdistan (PJAK) ............................................................. 128 CHAPTER 3 MODERN INTERNATIONAL LAW, THE KURDS AND SELF- DETERMINATION ........................................................................................................... 131 3.1 Introduction .............................................................................................................. 131 3.2 The rise of non-state actors in the post-1945 era ...................................................... 136 3.3 The rise of NSAGs globally, guerrilla warfare and international
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