Published: 16 February 2021 Authors: Stefan Talmon and Philip Wimmer
The Kurdistan Workers’ Party or PKK (Partiya Karkerên Kurdistanê) is a Kurdish organization operating mainly in Turkey. It was founded in 1978 by a group of students around Abdullah Öcalan, dedicated to the creation of an independent, communist Kurdish State in south-eastern Turkey. With between 25 and 35 million Kurds living in the border regions of Turkey, Iraq, Syria, Iran and Armenia, the Kurds make up the fourth largest ethnic group in the Middle East but have never succeeded in establishing their own nation State. In order to achieve its goals, the PKK launched an armed struggle against the Turkish Government in 1984, targeting Turkish military and security personnel but also civilians. Since the start of the conflict, over 40,000 people have been killed.
The Federal Court of Justice reaffirmed in several decisions in 2019 and 2020 that there was no justification under international treaty law or customary international law for the attacks of the PKK on civilian objects and people and on military, paramilitary, and police stations in eastern Turkey. In all these decisions the Court relied on its reasoning in a case decided in 2014 which is worth setting out in detail. In that case, the defendant had taken on, as a full-time cadre, the tasks of the area manager of the PKK in the Hamburg region. He had also travelled to northern Iraq and joined the PKK guerrilla in the mountains of the Turkish-Iraqi border area. The Higher Regional Court of Hamburg sentenced the accused to two years and six months’ imprisonment for membership in a foreign terrorist organization. The defendant appealed to the Federal Court of Justice. On appeal, the defendant argued that the attacks on military, paramilitary or police installations by the People’s Defence Forces or HPG (Hêzên Parastina Gel) – the military wing of the PKK – were justified under international law. The Federal Court of Justice dismissed this argument, holding:
“aa) Article 43 read with Article 1 (4) of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts of 8 June 1977 (Protocol I) cannot be relied upon as a justification, because neither the formal nor the substantive requirements for the application of these provisions are met.
Article 43 of Protocol I lays down the so-called ‘combatant’s privilege’; that is, the right of members of the armed forces of a party to the conflict to participate directly in hostilities. This right also includes the killing of enemy combatants. However, it is generally available only to combatants in international conflicts. According to Article 1 (4) of Protocol I these conflicts include those armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.
(1) The formal requirement for the application of Protocol I as part of international treaty law would be that both the Republic of Turkey and the PKK have validly acceded to Protocol I. This is, however, not the case for the simple reason that the Republic of Turkey has not yet submitted a declaration of accession. There is therefore no need to decide whether the PKK can actually be considered an ‘authority representing a people’ within the meaning of Article 96 (3) of Protocol I and, in accordance with this provision, has undertaken to apply the Geneva Conventions and Protocol I in relation to the conflict with the Turkish Republic by means of a declaration addressed to the depositary.
(2) […] in the context of the application of German (criminal) law, Protocol I is not applicable simply for the reason that the Federal Republic of Germany has acceded to this agreement. The Federal Republic of Germany is not a party to the conflict between the Republic of Turkey and the PKK. Its accession to Protocol I therefore cannot lead to any legal consequences for Turkey and the PKK regarding the justification of crimes, right up to acts of killing, committed in the course of the conflict. In fact, the of international treaty law in Article 43 and Article 1 (4) of Protocol I only applies if those engaged in conflict are themselves parties to the treaty; the ratification of the agreement by a State not party to the conflict cannot impose any rights or obligations under the treaty on the conflicting parties.
(3) With regard to the substantive requirements of Article 1 (4) of Protocol I, it can be left open whether […] the requirements of ‘armed conflict’ and ‘people’ are fulfilled. In any case, the Turkish-Kurdish conflict does not qualify as a fight by the PKK against colonial domination, alien occupation or against a racist regime.
The Republic of Turkey did not occupy the predominantly Kurdish provinces for the purpose of economic exploitation or for any other reasons. The fact that part of the Kurdish areas belong to the Republic of Turkey is ultimately a result of the First World War and the associated collapse of the Ottoman Empire, after which the Turkish State borders were redrawn. The appellant’s view that the alienness of Turkish occupation lies in the fact that the development towards a Kurdish State after the First World War – in particular through the Treaty of Sèvres of 10 August 1920, which allowed the Kurds a right to self-determination – was only interrupted, is mistaken. The Treaty of Sèvres was repealed as early as 24 July 1923 by the Treaty of Lausanne. The Kurdish provinces which lie within the State territory of Turkey are therefore to be regarded as part of the Republic of Turkey under international law; an ‘alien’ occupation is therefore ruled out.
Finally, the Republic of Turkey is not a racist regime in terms of Article 1 (4) of Protocol I. This factual element is to be interpreted narrowly; according to the drafting history of Protocol I, it was intended to cover, in particular, the Apartheid regime that existed in South Africa. The Higher Regional Court has indeed found that the Kurdish population group and their representatives in the Republic of Turkey were exposed to various forms of repression, which led, inter alia, to the condemnation of the Republic of Turkey by the ECHR in several cases. However, the prerequisites for a racist regime in the sense relevant here are not given when individual sections of the population are discriminated against. Rather, what is required is that they are completely excluded from the political process. Such far-reaching measures on the part of the Republic of Turkey have not been established.
bb) The crimes attributable to the PKK are also not justified according to the stipulations of customary international law.
The emergence of a universally applicable rule of international law generally requires a practice that is sufficiently consolidated in the community of States and a corresponding opinio juris. To date, no uniform State practice has developed regarding the principles laid down in Article 1 (4) of Protocol I. With a view to the right of self-determination in Article 1 (2) of the UN Charter claimed by the defence, there is a lack of practice, supported by a sufficiently unanimous opinio juris, for a jus ad bellum of, for example, national liberation movements; a collective right to armed resistance against the government of a country for the benefit of a population group has not yet emerged in customary international law. Besides, in the case at hand, the international community is not convinced that the armed struggle of the PKK and its sub-organizations and the associated commission of criminal offenses are justified. On the contrary, the PKK is internationally widely classified as a terrorist organization.”
Under international humanitarian law combatants have the right to participate directly in hostilities and are entitled to prisoner of war status when they are captured. Combatants may thus kill with impunity, provided they do so in accordance with the laws of war. PKK fighters have therefore tried to claim combatant status in order to escape criminal prosecution. In January 1995, the PKK declared to the International Committee of the Red Cross and to the United Nations that in “its conflict with the Turkish state forces, the PKK undertakes to respect the Geneva Conventions of 1949 and the First Protocol of 1977 regarding the conduct of hostilities and the protection of the victims of war and to treat those obligations as having the force of law within its own forces and the areas within its control.” It thereby tried to invoke Article 96 (3) of Protocol I which provides:
“The authority representing a people engaged against a High Contracting Party in an armed conflict of the type referred to in Article 1, paragraph 4, may undertake to apply the Conventions and this Protocol in relation to that conflict by means of a unilateral declaration addressed to the depositary. Such declaration shall, upon its receipt by the depositary, have in relation to that conflict the following effects:
(a) the Conventions and this Protocol are brought into force for the said authority as a Party to the conflict with immediate effect;
(b) the said authority assumes the same rights and obligations as those which have been assumed by a High Contracting Party to the Conventions and this Protocol; and
(c) the Conventions and this Protocol are equally binding upon all Parties to the conflict.”
This means that the fighters of such an authority enjoy the combatant’s privilege and prisoner of war status. The Federal Supreme Court, however, made it clear that there is no legal basis for PKK fighters enjoying the combatant’s privilege. As the Court rightly noted, in the case of the Kurdish-Turkish conflict this question does not hinge on whether the PKK qualifies as an “authority representing a people” or whether the conflict between the PKK and Turkey amounts to an “armed conflict”. The claim of PKK fighters to combatant status rather founders on the requirement that the armed conflict must be “of the type referred to in Article 1, paragraph 4,” of Protocol I. Article 96 (3) of Protocol I extends the combatant’s privilege only to fighters who are engaged in “armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination”. Members of the PKK, however, do not engage in such a fight but in terrorist acts. It is for that reason that the PKK is listed as a terrorist organisation by Turkey, the United States, the United Kingdom, and the European Union.
The ruling allows for the continued prosecution of PPK fighters under German criminal law, as these fighters do not benefit from the combatant’s privilege. This must be seen against the background of Germany being home to one of the strongest Kurdish communities outside the region. Among the Kurds in Germany, there are an estimated 14,500 PKK supporters. The organization uses the country as a hideaway for its fighters and a platform for its recruitment, fundraising and propaganda activities. In its annual report, Germany’s domestic counter-intelligence and security agency classified the PKK as “the most powerful and strongest foreign extremist organization in Germany.”