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


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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.