Dr. Nouri Talabany *
Much has been said about the ethnic identity of Kirkuk but, to understand its present situation, we need to study the ethnic composition of the city in the past and to compare it with that of the present. The changes that have taken place there are the result of the policies of the previous Iraqi regime – policies that were against international law and which were responsible for the serious situation in which the citizens of Kirkuk now find themselves. If we appear to be concentrating on Kirkuk and using it as a model for the comparison of past with present, it is because it was the main focus of the previous Iraqi regime’s racist policy.
The principal source of livelihood on the vast, fertile plains of the Kirkuk region was agriculture, so most of the city’s inhabitants were craftsmen practising related skills, though there were also commercial enterprises. Others worked in administration or were freelance professionals. The people grew their crops and engaged in animal husbandry according to the seasons but often used out-dated methods. It was natural for there to be a higher concentration of people in the villages close to the rivers and other water sources in the northern and eastern parts of the Kirkuk region, and fewer inhabitants in the part where water was scarcer. Simply by studying their customs an observer would very easily have understood the social structure of the society. However, the discovery of oil brought a great many people from elsewhere in Iraq to the city and changed the way of life completely. This is why we can say with confidence that the development of the oil industry provided the impetus for thousands of Arab families and others, such as Assyrians and Armenians, to settle in Kirkuk.
The majority of the population of the city of Kirkuk was Kurdish and Turkman. The Turkmans could trace their families back to the Ottoman era. Later, Arabs settled there. Writing of the ethnic composition of the city, Shamsadin Sami, author of the celebrated Encyclopaedia “Qamusl Al-A’alam” stated that, “Three quarters of the inhabitants of Kirkuk are Kurds and the rest are Turkmans, Arabs and others. 760 Jews and 460 Chaldeans also reside in the city”.
The Kurds lived, and still live, mainly in the eastern and northern districts of the city but they also reside in other districts alongside Turkmans and other ethnic groups. They are the oldest population of the city and region, followed by the Turkmans. The author of the famous “Guide to the History of Famous People in the Iraqi Liwas (Governorates),” Vol.2, compiled by Arab researchers and published in 1947 in Baghdad, dealt mainly with Kirkuk. It states that the Turkmans were the more recent members of the population of Kirkuk and that their ancestors arrived there in the mid seventeenth century with the invasion forces of the Ottoman Sultan Murad the Fourth who conquered Iraq and expelled the Saffawids from the land. The Guide also states that, before returning to Constantinople after his conquest of Baghdad, Sultan Murad left army units in position to control the strategic route linking Baghdad and Anatolia and that the present day Turkmans are descended from those troops.
The heads of Turkman families in Kirkuk, such as the families Nafetchi and Aochi, have confirmed that their ancestors came with Sultan Murad. Mr. Nazem Nafetchi stated, in 1947, that their ancestor, Kahraman Agha, came from Anatolia with Sultan Murad and that he appropriated land called Baba Gurgur, near Kirkuk city, from which he extracted oil by primitive methods. Abdullah Beg Aochi also confirmed that his family has its roots in Konya and that his grandfather, Emir Khan, accompanied Sultan Murad and settled in Kirkuk.
The Guide gives the religion of the inhabitants of Kirkuk as Islam and stresses their strong adherence to their faith. It points out that the region boasted many mosques and takias. There were also Christian, Subbi and Jewish citizens. The Jews (who were forced to leave Iraq for Israel at the beginning of the 1950s) engaged in commerce, finance and jewellery. The Christians were involved in all the professions. Each ethnic group lived in harmony with the others. Mostly Kurdish tribal people who also had an important presence inside the city populated the districts, sub-districts and villages.
The mayors of Kirkuk were almost always Kurds, notably from the Talabany family. During the Ottoman era and the monarchical period some Turkmans became mayor, but there was never an Arab mayor until 1969 when an Arab from the Tikriti family was nominated by the Baathist regime.
The city of Kirkuk was the centre of the Wilayet of Sharazur until 1879 when it became a “sanjak” and was annexed to the Wilayet of Mosul. In 1918, when the British army occupied the Wilayet of Mosul, the British administration created a new Governorate under the name of Arbil, which was made up of the districts of Arbil, Rawanduz and Koysinjaq. In 1921, the British estimated the population of Kirkuk to be 75,000 Kurds, 35,000 Turks, 10,000 Arabs, 1,400 Jews and 600 Chaldeans. A Committee of the League of Nations, which visited the Wilayet of Mosul in 1925 to determine its future, estimated that the Kurds in Kirkuk made up 63% of the population, the Turkmans 19% and the Arabs 18%. As no census was taken in Iraq until 1947, most population figures were estimates. An official estimate, published in 1936, gave the population figure as 180,000. The author of the aforementioned Guide estimated the population of Kirkuk to be half a million but that did not include nomadic tribes. It says that the Arabs lived mainly in the southwest of the region of Kirkuk whilst the Kurds were mainly in the northeast. Kurds, Turkmans and Arabs inhabited the centre of the region.
Most of the members representing Kirkuk in the Iraqi parliament during the monarchical period were Kurds and some Turkmans. There was seldom an Arab representative until after the Arab tribes had been settled on the plain of Hawija from 1935 onwards.
The 1947 Census gave no precise details of the ethnic composition of the population. However, the 1957 Census, in column 6, gave details of the ethnic composition of Iraq according to mother tongue. According to this Census the ethnic composition of Kirkuk was as follows: 48.3% Kurd, 28.2% Arab, 21.4% Turkman, the remainder being Chaldo-Assyrian and others. The 1957 Census is the only one accepted as valid since later ones were organized after the Iraqi regime had begun its policy of ethnic cleansing by which thousands of Arab families from central and southern Iraq were settled in the city and region of Kirkuk. Thousands of Kurdish families were expelled.
There were only two Arab families resident in the city of Kirkuk, the Tikriti and the
Hadidi. In addition, there were some Arabs working as civil servants or serving as officers and soldiers in the 2nd Division of the Iraqi army, most of which was stationed in Kirkuk. Until 1955, there was just one high school in the region of Kirkuk, where I was a student. The majority of the students were Kurds and Turkmans with a number of Arabs, Assyrians, Chaldeans and Armenians. Most of the Arab students were the children of the civil servants and military personnel or of those working for the Iraqi Petroleum Company (IPC).
By long-standing tradition, the Kurds, Turkmans, Chaldeans and Jews have had their own cemeteries. The Arabs, being a minority, buried their dead in the Turkman cemeteries. Since 1991, however, the Iraqi regime has created special cemeteries for Arab settlers and has banned Arab Shi’ite settlers from taking their dead back to Al-Najaf for burial. Later, the regime even began to change the inscriptions on Kurdish tombstones to Arabic in an attempt to prove that there have been Arabs in Kirkuk for many, many years!
According to the Guide, the Tikriti family is the main Arab family of Kirkuk. The head of the family, Mr.Mazher Al-Tikriti, tells how their great grandfather, Shebib, came from Syria in 1048 Hejri with the Ottoman Sultan Murad the Fourth, as did the ancestors of the Turkmans. As a reward for their help, the Sultan gave the Al-Tikriti family villages and lands in the south-west of Kirkuk and in the small city of Tikrit.
Other Arab tribes who settled in Kirkuk during the monarchical period are the Al-Ubaid and the Al-Jiburi. The Al-Ubaid came from the north-west of Mosul when they were forced out of that area by the Arab Al-Shamar tribe. They settled on the plain of Dialah where they were in continuous conflict with the Arabs of the Al-Aza tribe. To resolve the disputes between them, the cabinet of Yasin Al-Hashimi decided, in 1935, to settle them in the Hawija district after water from the Lower Zab River was used to irrigate the land. The settlement of the Al-Ubaid and Al-Jiburi tribes was the first Arab settlement in the Kirkuk region. Previously, the area was semi-desert and was used by the Kurds only in springtime as grazing ground for their sheep. Generally, relations between Kurds, Turkmans and even the new Arabs of Hawija and other ethnic minority groups were good until the Baath party seized power in 1963.
The new regime used the militia of the “Popular Guard”, who were mainly Arab Baathists and Turkmans, to attack the Kurds. They concentrated their efforts on the poor areas where they destroyed all the homes. In June 1963, the Baathist regime was responsible for the destruction of 13 Kurdish villages around Kirkuk. The populations of a further 34 Kurdish villages in the Dubz district near Kirkuk were forced to leave and Arabs from central and southern Iraq were brought in and settled in their place. Between 1963 and 1988, the Baathist regime destroyed a total of 779 Kurdish villages in the Kirkuk region and obliterated their cemeteries. There had been 493 primary schools, 598 mosques and 40 small medical centres in these villages. Orchards and farms were burnt, cattle confiscated and wells blown up. The obvious purpose of this destruction was the eradication of all evidence of any habitation. In all, 37,726 Kurdish families were forced out of their villages and, at a conservative estimate; there were at least 5 to 7 people in the average Kurdish rural family.
During the Iraq/Iran war, the Iraqi Regime also destroyed about ten Shi’ite Turkman villages in the south of Kirkuk.
Inside the city of Kirkuk, the Iraqi regime has taken many measures to force the Kurds to leave. Oil company employees, civil servants and even teachers have been transferred to southern and central Iraq. City streets and schools have been renamed in Arabic and businesses forced to adopt Arab names. Kurds are not allowed to sell their properties to anyone other than Arabs and are forbidden to buy other property. Thousands of residential units have been built for new Arabs and given Arabic names. The historic citadel, with its mosques and ancient church has been demolished. Tens of thousands of Arab families have been brought in to the city and given housing and employment.
These measures were intensified after the Gulf War of 1991. The regime has prevented most of the Kurds who fled their homes during the uprising of that year from returning. In 1996, before the preparation of the 1997 Census, a so-called “Identity Law” was passed, by which Kurds and other non-Arabs were required to register themselves as Arab. Anyone refusing to do so was expelled to the liberated part of Iraqi Kurdistan or to southern Iraq. In its 2003 Report, Human Rights Watch estimated that, since 1991, between 120,000 and 200,000 non-Arabs have been forcibly expelled from the Kirkuk region.
That situation continued until the fall of the Baathist regime in April 2003, when the city of Kirkuk was liberated. Those who were forcibly expelled wanted to return to their homes and land, but many obstacles have prevented this. However, thousands of families have returned to Kirkuk, but continue to live in tents in a very bad situation.
When the Transitional Administrative Law was approved, article 58 aimed to resolve the problem of Kirkuk by creating mechanisms to normalise the situation in the city. However, both the governments of Dr. Allawi and Dr. Jaafari have done nothing to implement Article 58. This has created suspicion amongst the Kurds against the central Iraqi government. Article 140 of the new Iraqi constitution has adopted Article 58 of the TAL, and set a deadline for its implementation for 2007. If the new government of Iraq is not going to implement the article within this deadline it means that the issue of Kirkuk is not going to be resolved, with dangerous consequences for the future of Iraq.
----------------------------------------
* This paper was presented to a conference concerning the Kirkuk issue, orgnised in London in July, 2001.
References:
1. Abdul Majid Fahmi Hassan, “Daleel Taarihk Mashaheer Al Alwiat Al Iraqiah / A Guide to the History of Famous People of the Iraqi Liwas”, Vol. II, Liwa Kirkuk, Dijla Press, Baghdad 1947, p. 55.
2. Shamsadin Sami, Qamus Al-A’alam, Istanbul, Mihran Press, 1315 Hi/1896.
3. Abdulmajid F. Hassan, ibid. P.58.
4. Ibid. p 284.
5. Ibid. P.301
6. Ibid. p. 289.
7. Ibid. p. 339.
8. Nouri Talabany, Arabization of the Kirkuk Region, First edi. Kurdistan Studies Press, Uppsala, Sweden 2001, p. 94.
9. Appeal from the Federation of the Kurdish Organizations against Ethnic Cleansing based in London addressed to Mr. Kofi Annan and others, dated 3rd February 2003.
Sunday, 30 September 2007
Saturday, 15 September 2007
The Kurdish Question with Special Reference to Southern Kurdistan
The Kurdish Question with Special Reference to Southern Kurdistan, According to New Principles of International Law
Nouri Talabany
Professor of Law
The roots of the Kurdish problem lie in the events following the ending of the First World War when the Kurds, together with other nations such as Arabs and Armenians then under the control of the Ottoman Empire, attempted to establish their rights. They were especially encouraged when, in 1918, the American president, Woodrow Wilson, declared his support for the principle of the right to self-determination for all nations.
This principle, that all nations have the right to self-determination, was later enshrined in the preamble to the Charter of the United Nations. It was very precisely stated on the 14th December 1960 when the General Assembly of the UN passed a resolution to end the colonial system, and again in 1966, in a Charter concerned with economic, social and cultural rights whose first article re-emphasized this right to self-determination.
These international documents make clear that such a right applies only to those populations who consider themselves as nations. So, what do we mean by ‘nation’? We mean a distinct people or race, be it large or small, who share a common heritage and culture - such as language, religion, economic or political institutions - and who inhabit a specific land. The existence of this land is of vital importance in creating a sense of nationality and in giving to its people their special characteristics. It is this sense of unity, of belonging, by which a people may be considered as a nation. If this feeling is present then their status as a nation cannot be denied.
The Kurds share a common language and history and have lived on their ancestral land from earliest times. It is, surely, beyond doubt that they meet all the criteria for recognition as a nation. The Treaty of Sevres, signed on 10th December 1920, recognized the Kurds as a nation and the Kurdish problem as an international issue. It proposed a solution which was reasonable given the circumstances of that time. Although the Treaty was never ratified by the Ottoman Empire, it remains an important international document as it was the first such to mention the Kurds specifically. This is why we must examine the terms of this Treaty and its proposals for the future of the Kurds.
As a result of the failure to implement the terms of this Treaty, the Kurdish question became a matter of internal law and the Kurds, previously divided between the Ottoman Empire and Persia, found themselves divided between four states. The principle of establishing international boundaries became a matter of inviolate sovereignty, however illegitimately these boundaries may have been created originally. Until the beginning of the nineteen thirties, the main objective of the many Kurdish revolts was the independence of Kurdistan and the founding of a Kurdish state. By the end of that decade, as a result of their division, their aim became to find a solution within each of these states.
Events following the Gulf War of 1991 pushed the Kurdish Question to the forefront of international law and politics once more. That is why I will address the question of whether the Kurdish problem, especially in Southern Kurdistan, (Iraqi Kurdistan) can be spoken of again as a subject within international law.
Part 1 - The Treaty of Sevres and the Kurdish Question:
The Treaty of Sevres was signed between the government of the Ottoman Sultan and those of Britain, France, Italy, Japan, Greece, Belgium, Poland, Portugal, Romania, Chekoslavakia, and Serbo-Croatia, Armenia of the Tashnak and the Hejaz.
Articles 62, 63 and 64 were specifically designed to find a solution to the Kurdish problem in the Ottoman Empire.
Article 62 speaks of the creation of a committee of three parties - Britain, France and Italy - whose task it would be to formulate an autonomous system for the Kurds in the regions between the Euphrates and the south of Armenia to the borders of Syria and Mesopotamia.
Article 63 obliges Turkey to put into operation the decisions of this committee.
Article 64 speaks of the creation of a Kurdish state under certain conditions.
The Treaty stated that, within one year of its implementation, the majority of the Kurds in these regions must ask for separation from Turkey. This condition accords with the principle of self - determination, as it is necessary to consult the people on their wishes. It further stated that the Assembly of the League of Nations must accept that the Kurds are able to govern themselves and that this same Assembly must propose the creation of this Kurdish State.
When all these conditions were met, Turkey would have been obliged to accept the proposal of the League of Nations. A new Treaty would then have been signed between Turkey and the main signatories to the Treaty of Sevres.
The last paragraph of Article 64 dealt specifically with the problem of the Kurds in the Wilayet of Mosul, which was under the control of the British army. According to this paragraph, the main signatories of Sevres will not oppose the desire of the Kurds in this former Ottoman Wilayet to be a part of the Kurdish State. The Kurds represent a majority of the population in this Wilayet which includes the present governorates of Mosul, Dohuk, Arbil, Kirkuk and Sulaymani and a part of Diyala.
From an objective interpretation of these Articles of the Treaty of Sevres, and considering the situation of that time, it is clear that the object of this Treaty was the creation of a state for the Kurds in Northern Kurdistan (now in Turkey). This would have been joined later with the south of Kurdistan (now Iraqi Kurdistan). Had there been a genuine intention on the part of the great powers to put it into effect, it suggested the establishment of a Kurdish state in two stages. But the interests of these powers, and especially of Britain and France, lay in Southern Kurdistan where there is oil. The British authorities, which held a mandate on Iraq, joined the Wilayet of Mosul to the new Iraqi State so as to be able to send the oil from this Wilayet, by pipeline, through Iraq to the Mediterranean. Then, with the rise to power of General Mustafa Kemal in Turkey, the Treaty was rescinded and not just Britain and France, but even the newly created Soviet Union supported the new Turkish state and assisted it in its efforts to quell the Kurdish revolts against the Kemalist regime. A later Treaty signed in Lausanne in 1923, made no mention of the Kurds and the Kurdish problem became a part of the internal law of those countries between which they were divided.
Following the collapse of the invasion of Kuwait by the Iraqi regime in 1991, the Kurds of Southern Kurdistan rose against the regime and liberated most of their region, including Kirkuk, whereupon the regime launched a savage counter-attack on the civilian population. As a result, in April 1991, the Security Council passed Resolution No. 688 that aimed to end this tragic situation. For the first time since the Treaty of Sevres, an international decision was taken which, whilst speaking of all the Iraqi people, mentioned the Kurds in particular. This resolution concerns the internal affairs of a member state of the UN and it discriminates between the state and the people.
We have now to discover whether the Kurdish question in Southern Kurdistan, will be resolved by international law.
Part 11 - The Kurdish question according to the new principles of international law:
The ending of the cold war and the collapse of the Soviet Union, together with the events following the Gulf War, were the main reasons for establishing several new principles of international law. Before these events, and especially since 11th September 2000, intervention in the internal affairs of states was considered to be illegal. However, in the changed circumstances, the principle of equality between nations and the respect for human rights will make intervention by the international community in the internal affairs of states just, acceptable and legal. This will apply particularly in cases where the policy of ethnic cleansing is tantamount to genocide. For example, the catastrophes in Bosnia, Kurdistan, Somalia, Rwanda and Kosovo presented the international community and its organizations with the opportunity to intervene to save endangered lives in these countries. Had the new principles of international law not been established, there would have been no such intervention.
The tragedy of Halabja in March 1988, which focused the attention of people everywhere, the killing of 182,000 civilian Kurds in ‘Anfal’ operations, the destruction of more than 4000 Kurdish and Christian villages by the Iraqi regime and the deportation of tens of thousands of Kurdish Faily families to Iran, brought no positive response from the international community. The dictatorial regime in Baghdad took note of this silence and invaded Kuwait on 2nd August 1990, but because of the oil in Kuwait and other Gulf states, the Security Council took decisive action against it. Such a decision would not have been possible just a few years ago.
Security Council Resolution No. 688, of 1991, was taken after the mass exodus of Kurds from Southern Kurdistan. Its main consequence was the creation of Operation Provide Comfort which established a Safe Haven for the protection of Kurds in this area and without which many thousands of people would have died in a very short time. This was a clear, direct intervention in the internal affairs of the state of Iraq and was a decision of major significance to international law since it censures the state for its use of force internally and considers it a threat to international security. It represents an important shift in the position of the Security Council. It is concerned here not with the state, but with the people, in contradiction to its declared principles and its main objective of finding solutions to problems between member states.
In September 1991, the regime in Baghdad recalled all its administration from most of the Kurdish region. Later, it imposed an economic blockade on it, thus making the region subject to two embargoes - one Iraqi, the other international, which was imposed on the whole of Iraq by the Security Council. The consequence of this action was the creation of a de facto Kurdish administration. Shortly after, the people of this part of liberated Kurdistan elected a Parliament, which formed a government to administer the internal, as well as the external, affairs of this region.
Unfortunately, the Kurdish leaders failed to take advantage of this sequence of events. The 1995 referendum held to accept Saddam Hussein as President of Iraq and, later, the elections of a so-called Parliament for Iraq, without the participation of the people of the liberated part of Kurdistan are just two examples. The Kurds failed to grasp their opportunity to demonstrate to the international community the fact that the regime in Baghdad does not consider them as a part of Iraq and that, therefore, their problem must be treated according to international law. Later, the acceptance by the Iraqi regime of Security Council Resolution No.986, by which it was allowed to sell oil for the purchase of humanitarian supplies, and which arranged for the provision of 13% of the resulting revenue to be given in aid to the Kurds in that region, proves that even the international community accords this part of Kurdistan a special status. Although the western countries continue to speak of the territorial integrity of Iraq and not of its divisions, they remain obliged to protect the Kurds according to the new international law which safeguards them against further attempts at genocide by the Iraqi regime. Several political parties and their parliamentary groups and organizations in Europe, have frequently asked the international community to protect the autonomous region of Kurdistan against intervention by the Iraqi regime and neighbouring states.
The prevention of crimes against humanity is now one of the principle obligations of the international community and its organizations and they have the right to intervene wherever, and whenever, such crimes occur. The Security Council itself has taken action with regard to Somalia, Cambodia and Haiti. For example, in its Resolution No. 940 of July 1994, it authorizes member states to “form a multinational force to use all necessary means to facilitate the departure from Haiti of the military”. Events in Kosovo and East Timor illustrated this policy, as was emphasized by the statements of western political leaders and the international community that international intervention in these countries is legal. In an interview with the Independent on Sunday newspaper in May 1999, the British Foreign Secretary said “What this whole episode has thrown up is the unacceptability of governments using aggression against their own people and then claiming sovereignty as a blanket protection for whatever they are going to do”.
At NATO’s 50th Anniversary Summit in Washington, similar views were forcefully expressed. The British Prime Minister, Tony Blair, declared that a new “doctrine of international community” was required and added “we are all internationalists now, whether we like it or not”. “We cannot turn our backs on conflicts and the violation of human rights within other countries if we still want to be secure”, he said.
An international conference was held in The Hague in mid- June 1999 to find a peaceful solution to the war in Southern Sudan. Sixteen states participated, among them most European countries as well as the USA, Kenya and Japan together with the European Union and other organizations. If the international community is sincere in its wish to establish peace and security in the Middle East, a similar conference should be organized to seek a peaceful solution to the Kurdish question in this important region.
Until now, the international community has viewed the Kurdish problem as humanitarian, not political, and its inaction puts at risk the stability of the whole region and threatens world security. The Kurdish question is one of the great problems of the Middle East and will remain so until a solution is found. This solution can only be the recognition of the right to self-determination of the Kurdish people. Such recognition does not necessarily mean the creation of an independent state but, perhaps, peaceful co-existence within a federal state in each of which Kurds are living.
Paper presented to a conference to discuss the Kurdish question, held in Washington in the Spring of 2002.
2002
-------------------
On 20th October 2002, the former Iraqi president, Saddam Hussein, granted an amnesty to all prisoners and
Those under arrest to mark the occasion of his so-called referendum (in which he received 100% of the votes). The number of those released was not declared but an estimated 100,000 and 150,000 people were released. Sadly, the hopes of the families of those taken in the Anfal operations in 1988 that their loved ones would be among them were dashed, as none of them were among those freed. About 5000 young Kurdish Failys were also arrested during the Iraq-Iran war (1988 – 1998) but none of them were released. It can safely be assumed that all these civilian Kurds were killed. In the mid-1980s Saddam Hussein was asked about those taken during the Anfal operations he replied that they had been sent to hell.
Nouri Talabany
Professor of Law
The roots of the Kurdish problem lie in the events following the ending of the First World War when the Kurds, together with other nations such as Arabs and Armenians then under the control of the Ottoman Empire, attempted to establish their rights. They were especially encouraged when, in 1918, the American president, Woodrow Wilson, declared his support for the principle of the right to self-determination for all nations.
This principle, that all nations have the right to self-determination, was later enshrined in the preamble to the Charter of the United Nations. It was very precisely stated on the 14th December 1960 when the General Assembly of the UN passed a resolution to end the colonial system, and again in 1966, in a Charter concerned with economic, social and cultural rights whose first article re-emphasized this right to self-determination.
These international documents make clear that such a right applies only to those populations who consider themselves as nations. So, what do we mean by ‘nation’? We mean a distinct people or race, be it large or small, who share a common heritage and culture - such as language, religion, economic or political institutions - and who inhabit a specific land. The existence of this land is of vital importance in creating a sense of nationality and in giving to its people their special characteristics. It is this sense of unity, of belonging, by which a people may be considered as a nation. If this feeling is present then their status as a nation cannot be denied.
The Kurds share a common language and history and have lived on their ancestral land from earliest times. It is, surely, beyond doubt that they meet all the criteria for recognition as a nation. The Treaty of Sevres, signed on 10th December 1920, recognized the Kurds as a nation and the Kurdish problem as an international issue. It proposed a solution which was reasonable given the circumstances of that time. Although the Treaty was never ratified by the Ottoman Empire, it remains an important international document as it was the first such to mention the Kurds specifically. This is why we must examine the terms of this Treaty and its proposals for the future of the Kurds.
As a result of the failure to implement the terms of this Treaty, the Kurdish question became a matter of internal law and the Kurds, previously divided between the Ottoman Empire and Persia, found themselves divided between four states. The principle of establishing international boundaries became a matter of inviolate sovereignty, however illegitimately these boundaries may have been created originally. Until the beginning of the nineteen thirties, the main objective of the many Kurdish revolts was the independence of Kurdistan and the founding of a Kurdish state. By the end of that decade, as a result of their division, their aim became to find a solution within each of these states.
Events following the Gulf War of 1991 pushed the Kurdish Question to the forefront of international law and politics once more. That is why I will address the question of whether the Kurdish problem, especially in Southern Kurdistan, (Iraqi Kurdistan) can be spoken of again as a subject within international law.
Part 1 - The Treaty of Sevres and the Kurdish Question:
The Treaty of Sevres was signed between the government of the Ottoman Sultan and those of Britain, France, Italy, Japan, Greece, Belgium, Poland, Portugal, Romania, Chekoslavakia, and Serbo-Croatia, Armenia of the Tashnak and the Hejaz.
Articles 62, 63 and 64 were specifically designed to find a solution to the Kurdish problem in the Ottoman Empire.
Article 62 speaks of the creation of a committee of three parties - Britain, France and Italy - whose task it would be to formulate an autonomous system for the Kurds in the regions between the Euphrates and the south of Armenia to the borders of Syria and Mesopotamia.
Article 63 obliges Turkey to put into operation the decisions of this committee.
Article 64 speaks of the creation of a Kurdish state under certain conditions.
The Treaty stated that, within one year of its implementation, the majority of the Kurds in these regions must ask for separation from Turkey. This condition accords with the principle of self - determination, as it is necessary to consult the people on their wishes. It further stated that the Assembly of the League of Nations must accept that the Kurds are able to govern themselves and that this same Assembly must propose the creation of this Kurdish State.
When all these conditions were met, Turkey would have been obliged to accept the proposal of the League of Nations. A new Treaty would then have been signed between Turkey and the main signatories to the Treaty of Sevres.
The last paragraph of Article 64 dealt specifically with the problem of the Kurds in the Wilayet of Mosul, which was under the control of the British army. According to this paragraph, the main signatories of Sevres will not oppose the desire of the Kurds in this former Ottoman Wilayet to be a part of the Kurdish State. The Kurds represent a majority of the population in this Wilayet which includes the present governorates of Mosul, Dohuk, Arbil, Kirkuk and Sulaymani and a part of Diyala.
From an objective interpretation of these Articles of the Treaty of Sevres, and considering the situation of that time, it is clear that the object of this Treaty was the creation of a state for the Kurds in Northern Kurdistan (now in Turkey). This would have been joined later with the south of Kurdistan (now Iraqi Kurdistan). Had there been a genuine intention on the part of the great powers to put it into effect, it suggested the establishment of a Kurdish state in two stages. But the interests of these powers, and especially of Britain and France, lay in Southern Kurdistan where there is oil. The British authorities, which held a mandate on Iraq, joined the Wilayet of Mosul to the new Iraqi State so as to be able to send the oil from this Wilayet, by pipeline, through Iraq to the Mediterranean. Then, with the rise to power of General Mustafa Kemal in Turkey, the Treaty was rescinded and not just Britain and France, but even the newly created Soviet Union supported the new Turkish state and assisted it in its efforts to quell the Kurdish revolts against the Kemalist regime. A later Treaty signed in Lausanne in 1923, made no mention of the Kurds and the Kurdish problem became a part of the internal law of those countries between which they were divided.
Following the collapse of the invasion of Kuwait by the Iraqi regime in 1991, the Kurds of Southern Kurdistan rose against the regime and liberated most of their region, including Kirkuk, whereupon the regime launched a savage counter-attack on the civilian population. As a result, in April 1991, the Security Council passed Resolution No. 688 that aimed to end this tragic situation. For the first time since the Treaty of Sevres, an international decision was taken which, whilst speaking of all the Iraqi people, mentioned the Kurds in particular. This resolution concerns the internal affairs of a member state of the UN and it discriminates between the state and the people.
We have now to discover whether the Kurdish question in Southern Kurdistan, will be resolved by international law.
Part 11 - The Kurdish question according to the new principles of international law:
The ending of the cold war and the collapse of the Soviet Union, together with the events following the Gulf War, were the main reasons for establishing several new principles of international law. Before these events, and especially since 11th September 2000, intervention in the internal affairs of states was considered to be illegal. However, in the changed circumstances, the principle of equality between nations and the respect for human rights will make intervention by the international community in the internal affairs of states just, acceptable and legal. This will apply particularly in cases where the policy of ethnic cleansing is tantamount to genocide. For example, the catastrophes in Bosnia, Kurdistan, Somalia, Rwanda and Kosovo presented the international community and its organizations with the opportunity to intervene to save endangered lives in these countries. Had the new principles of international law not been established, there would have been no such intervention.
The tragedy of Halabja in March 1988, which focused the attention of people everywhere, the killing of 182,000 civilian Kurds in ‘Anfal’ operations, the destruction of more than 4000 Kurdish and Christian villages by the Iraqi regime and the deportation of tens of thousands of Kurdish Faily families to Iran, brought no positive response from the international community. The dictatorial regime in Baghdad took note of this silence and invaded Kuwait on 2nd August 1990, but because of the oil in Kuwait and other Gulf states, the Security Council took decisive action against it. Such a decision would not have been possible just a few years ago.
Security Council Resolution No. 688, of 1991, was taken after the mass exodus of Kurds from Southern Kurdistan. Its main consequence was the creation of Operation Provide Comfort which established a Safe Haven for the protection of Kurds in this area and without which many thousands of people would have died in a very short time. This was a clear, direct intervention in the internal affairs of the state of Iraq and was a decision of major significance to international law since it censures the state for its use of force internally and considers it a threat to international security. It represents an important shift in the position of the Security Council. It is concerned here not with the state, but with the people, in contradiction to its declared principles and its main objective of finding solutions to problems between member states.
In September 1991, the regime in Baghdad recalled all its administration from most of the Kurdish region. Later, it imposed an economic blockade on it, thus making the region subject to two embargoes - one Iraqi, the other international, which was imposed on the whole of Iraq by the Security Council. The consequence of this action was the creation of a de facto Kurdish administration. Shortly after, the people of this part of liberated Kurdistan elected a Parliament, which formed a government to administer the internal, as well as the external, affairs of this region.
Unfortunately, the Kurdish leaders failed to take advantage of this sequence of events. The 1995 referendum held to accept Saddam Hussein as President of Iraq and, later, the elections of a so-called Parliament for Iraq, without the participation of the people of the liberated part of Kurdistan are just two examples. The Kurds failed to grasp their opportunity to demonstrate to the international community the fact that the regime in Baghdad does not consider them as a part of Iraq and that, therefore, their problem must be treated according to international law. Later, the acceptance by the Iraqi regime of Security Council Resolution No.986, by which it was allowed to sell oil for the purchase of humanitarian supplies, and which arranged for the provision of 13% of the resulting revenue to be given in aid to the Kurds in that region, proves that even the international community accords this part of Kurdistan a special status. Although the western countries continue to speak of the territorial integrity of Iraq and not of its divisions, they remain obliged to protect the Kurds according to the new international law which safeguards them against further attempts at genocide by the Iraqi regime. Several political parties and their parliamentary groups and organizations in Europe, have frequently asked the international community to protect the autonomous region of Kurdistan against intervention by the Iraqi regime and neighbouring states.
The prevention of crimes against humanity is now one of the principle obligations of the international community and its organizations and they have the right to intervene wherever, and whenever, such crimes occur. The Security Council itself has taken action with regard to Somalia, Cambodia and Haiti. For example, in its Resolution No. 940 of July 1994, it authorizes member states to “form a multinational force to use all necessary means to facilitate the departure from Haiti of the military”. Events in Kosovo and East Timor illustrated this policy, as was emphasized by the statements of western political leaders and the international community that international intervention in these countries is legal. In an interview with the Independent on Sunday newspaper in May 1999, the British Foreign Secretary said “What this whole episode has thrown up is the unacceptability of governments using aggression against their own people and then claiming sovereignty as a blanket protection for whatever they are going to do”.
At NATO’s 50th Anniversary Summit in Washington, similar views were forcefully expressed. The British Prime Minister, Tony Blair, declared that a new “doctrine of international community” was required and added “we are all internationalists now, whether we like it or not”. “We cannot turn our backs on conflicts and the violation of human rights within other countries if we still want to be secure”, he said.
An international conference was held in The Hague in mid- June 1999 to find a peaceful solution to the war in Southern Sudan. Sixteen states participated, among them most European countries as well as the USA, Kenya and Japan together with the European Union and other organizations. If the international community is sincere in its wish to establish peace and security in the Middle East, a similar conference should be organized to seek a peaceful solution to the Kurdish question in this important region.
Until now, the international community has viewed the Kurdish problem as humanitarian, not political, and its inaction puts at risk the stability of the whole region and threatens world security. The Kurdish question is one of the great problems of the Middle East and will remain so until a solution is found. This solution can only be the recognition of the right to self-determination of the Kurdish people. Such recognition does not necessarily mean the creation of an independent state but, perhaps, peaceful co-existence within a federal state in each of which Kurds are living.
Paper presented to a conference to discuss the Kurdish question, held in Washington in the Spring of 2002.
2002
-------------------
On 20th October 2002, the former Iraqi president, Saddam Hussein, granted an amnesty to all prisoners and
Those under arrest to mark the occasion of his so-called referendum (in which he received 100% of the votes). The number of those released was not declared but an estimated 100,000 and 150,000 people were released. Sadly, the hopes of the families of those taken in the Anfal operations in 1988 that their loved ones would be among them were dashed, as none of them were among those freed. About 5000 young Kurdish Failys were also arrested during the Iraq-Iran war (1988 – 1998) but none of them were released. It can safely be assumed that all these civilian Kurds were killed. In the mid-1980s Saddam Hussein was asked about those taken during the Anfal operations he replied that they had been sent to hell.
Professor Dr Nouri Talabany
Professor of Law, Independent MP in the Parliament of Kurdistan Region
• Born in the city of Kirkuk and completed elementary, intermediate and secondary education there.
• Received BSc in Law from the University of Baghdad.
• Received Ph.D. in Law from the Sorbonne, France.
• Taught at the universities of Basra, Baghdad, Sulaimani and Salahadin in Arbil from 1968 until December, 1982, when he was compulsorily retired for political reasons.
• His first articles, in Kurdish, were published in "Hiwa", a Kurdish magazine, while he was a student at the University of Baghdad in the late fifties.
His numerous publications include:
• Textbooks in French, his 1968 Thesis on French Law and his Thesis for the Diploma in Law in 1966 also concerning French Law and many other research studies and articles in French.
• Textbooks in Arabic on Iraqi Law, 1st edition 1972, 2nd edition 1979, and another textbook, also on Iraqi Law, in 1979.
• He was the first person to publish a book on the Arabization of the Kirkuk Region, in Arabic. The 1st edition was published in Sweden and Kurdistan in 1995, the 2nd edition in London in 1999 and the 3rd edition in Arbil in 2004. It was translated into Kurdish and English in 1999 and published in Sweden and, later, republished in Kurdistan in 2004.
• He was also the first person to propose a federal system for Kurdistan in a study written in Arabic, in London, in 1974. This appeared in the Iraqi Academic magazine, Kurdish Section, Vols. 16 & 17, 1987, Baghdad, and in Kurdistan, in a pamphlet, in 1992 and 2005. It was translated into Kurdish and published in 2005 and 2006
• He is the author of the first dictionary of legal terms in Kurdish, assisted by a Kurdish scholar, Tawfiq Wahby, in London in 1974. This Dictionary of Law has been published in Kurdistan in 2004 in four languages – Kurdish, Arabic, French and English, and republished in 2006.
• He has written more than 120 studies and articles in Kurdish, more than 60 in Arabic and more than 30 in English and French, published both in Kurdistan and elsewhere. Some of them have been presented at international conferences in the USA and Europe.
• He was the first person to write, in Arabic, a Draft Constitution for the Iraqi Kurdistan region, which was published in Arbil in 1992. This draft has been translated into Kurdish and English and republished in 1999 and, again, 2002.
• He was a member of the High Legal Committee in the Kurdistan Region in 1992 whose main objective was to prepare the projects of law for the parliament of Kurdistan.
• He was Chairman of the Kurdish Organisation for Human Rights in Britain for seven years from 1993 and Director of the Kirkuk Trust for Research and Studies in London from 2000.
• He was President of the High Electoral Commission of the Kurdistan Region from July 2004 until December of the same year.
• At present, he is an independent MP in the Parliament of the Kurdistan Region.
August, 2007.
• Born in the city of Kirkuk and completed elementary, intermediate and secondary education there.
• Received BSc in Law from the University of Baghdad.
• Received Ph.D. in Law from the Sorbonne, France.
• Taught at the universities of Basra, Baghdad, Sulaimani and Salahadin in Arbil from 1968 until December, 1982, when he was compulsorily retired for political reasons.
• His first articles, in Kurdish, were published in "Hiwa", a Kurdish magazine, while he was a student at the University of Baghdad in the late fifties.
His numerous publications include:
• Textbooks in French, his 1968 Thesis on French Law and his Thesis for the Diploma in Law in 1966 also concerning French Law and many other research studies and articles in French.
• Textbooks in Arabic on Iraqi Law, 1st edition 1972, 2nd edition 1979, and another textbook, also on Iraqi Law, in 1979.
• He was the first person to publish a book on the Arabization of the Kirkuk Region, in Arabic. The 1st edition was published in Sweden and Kurdistan in 1995, the 2nd edition in London in 1999 and the 3rd edition in Arbil in 2004. It was translated into Kurdish and English in 1999 and published in Sweden and, later, republished in Kurdistan in 2004.
• He was also the first person to propose a federal system for Kurdistan in a study written in Arabic, in London, in 1974. This appeared in the Iraqi Academic magazine, Kurdish Section, Vols. 16 & 17, 1987, Baghdad, and in Kurdistan, in a pamphlet, in 1992 and 2005. It was translated into Kurdish and published in 2005 and 2006
• He is the author of the first dictionary of legal terms in Kurdish, assisted by a Kurdish scholar, Tawfiq Wahby, in London in 1974. This Dictionary of Law has been published in Kurdistan in 2004 in four languages – Kurdish, Arabic, French and English, and republished in 2006.
• He has written more than 120 studies and articles in Kurdish, more than 60 in Arabic and more than 30 in English and French, published both in Kurdistan and elsewhere. Some of them have been presented at international conferences in the USA and Europe.
• He was the first person to write, in Arabic, a Draft Constitution for the Iraqi Kurdistan region, which was published in Arbil in 1992. This draft has been translated into Kurdish and English and republished in 1999 and, again, 2002.
• He was a member of the High Legal Committee in the Kurdistan Region in 1992 whose main objective was to prepare the projects of law for the parliament of Kurdistan.
• He was Chairman of the Kurdish Organisation for Human Rights in Britain for seven years from 1993 and Director of the Kirkuk Trust for Research and Studies in London from 2000.
• He was President of the High Electoral Commission of the Kurdistan Region from July 2004 until December of the same year.
• At present, he is an independent MP in the Parliament of the Kurdistan Region.
August, 2007.
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