International Initiative
Freedom for Ocalan Peace in Kurdistan
P.O. Box 100511, D-50445 Koeln
Telephone: +49 221 130 15 59
Fax: +49 221 139 30 71
E-Mail: info@freedom-for-ocalan.com
Url: www.freedom-for-ocalan
Cologne, May 1999
INTERNATIONAL INITIATIVE BRIEFINGS:
Ocalan as a Prisoner of War
By International Law/Humanitarian Law Expert Prof. Dr. Karen
Parker (USA)
Abdullah Ocalan is a prisoner of war (POW) held by the government
of Turkey and is entitled to all the rights and privileges of that
status. He is President of the Kurdish Workers Party and Commander
in Chief of the People's Liberation Army of Kurdistan (ARGK) which,
since 1984, is a combatant force in a war-the Kurdish - Turkey War.
The Kurdish - Turkey War, as all wars, is governed by humanitarian
law: the Hague Conventions, the Geneva Conventions (including all
provisions of the Protocols Additional considered customary law)
and all treaty-based and customary laws of armed conflict.
Under humanitarian law rules, Abdullah Ocalan may only be tried
for acts that violate the laws and customs of war.
Laws relating to terrorism do not apply to combatants in wars or
to acts carried out in the course of war. Because the ARGK has combatant
status, neither the PKK nor the ARGK may be considered to be terrorist
organizations nor can commanders or members of the PKK or ARGK taking
part in the war or supporting the war be treated as terrorist."
The above quotations are from the following declaration by the renowned
expert witness on issues of international law and humanitarian law
of armed conflict, Prof. Dr. Karen Parker from San Francisco, USA.
For the case Turkey vs. Ocalan, she has developed a comprehensive
argument on the status of the PKK according to humanitarian law
of armed conflict on the grounds of which she makes some recommendations
regarding the treatment of Abdullah Ocalan, who has signed the Geneva
Conventions and the Additional Protocol I of 1977, as a Prisoner
of War.
I declare under penalty of perjury that the following statements
are true and accurate to the best of my knowledge, information and
belief. This declaration sets out the status under humanitarian
law of Abdullah Ocalan, the Kurdistan Workers' Party (PKK) and its
military force the People's Liberation Army of Kurdistan (ARGK).
1. My name is Karen Parker.
2. My address and telephone number are:
154 Fifth Avenue
San Francisco, CA 94118
(415) 668-2752
QUALIFICATIONS OF DECLARANT
3. I am an attorney specializing in international law, human rights
and humanitarian (armed conflict) law. I am a member of the State
Bar of California, number 112486. I am a professor at the University
of San Francisco where I teach Human Rights. In the fall of 1998
I was a visiting professor at the University of San Diego School
of Law where I taught human rights litigation.
4. I received a Juris Doctor (Honors) from the University of
San Francisco School of Law in 1983.
5. I received a Diplome (cum laude) in Droit International et de
Droit Compare des Droits de l'Homme (International and Comparative
Law of Human Rights) from the Institut International des Droits
de l'homme (Strasbourg, France) in 1982.
6. I was a legal intern at the Organization of American
States, Inter-American Commission of Human Rights in 1981 and 1982
(Summers), and wrote studies on human rights and humanitarian law
issues then before the Commission.
7. I was a judicial extern at the California Supreme Court
(chambers of Justice Frank Newman) from August 1982 until Justice
Newman's retirement from the bench in December 1982.
8. I have been accepted as an expert witness in international law
before the Tokyo High Court (Japan); the Court of Norway (Oslo second
instance); a special Federal Court in Canada; in immigration proceedings
in Canada; the United States Magistrates in San Francisco; in immigration
proceedings in Harlingen, Texas; San Francisco, California;
Los Angeles, California; Washington, D.C.; Baltimore, Maryland;
Omaha Nebraska; and in several federal and state courts. See, e.g
In the Matter of Santos-Gomez, Immigration Court for Washington,
D.C., Case #A29564-781, 785, 801 at p. 3, citing Fed. R. Evid. These
cases have involved the application of humanitarian (armed conflict)
and human rights law relevant to the issues of this declaration.
9. My views on international law have been cited in several judicial
opinions, including Von Dardel v. Union of Soviet Socialist Republics,
623 F. Supp. 246 (D.D.C. 1985); In the Matter of Jesus del Carmen
Medina, Immigration Court for Harlingen Texas, Case # 26 949 415
(1985); In the Matter of Santos-Gomez, Immigration Court for Washington,
D.C., Case #A29564-781, 785, 801 (1990); Wani v. Secretary of State
for the Home Department, Appeal No. CC/53286/97 (UK).
10. I have represented human rights and humanitarian law concerns
at the United Nations since 1982, representing International Education
Development/Humanitarian Law Project, Disabled Peoples' International,
Friends of the Earth, the Sierra Club Legal Defense Fund and Human
Rights Advocates-all organizations with consultative status. I have
represented Disabled Peoples' International, the Federation International
des Droits de l'Homme (Paris), Chile Humanitarian Aid, the Humanitarian
Law Project/International Educational Development, and the Confederation
de Nacionalidades Indigenas de la Amazonia Ecuatoriana on behalf
of the Huaorani Nation at the Organization of American States.
11. I consult frequently with many United Nations officials, including
representatives of the United Nations High Commissioner for Human
Rights, past Assistant Secretary-Generals for human rights, special
assistants to the Secretary-General, officials of the Office of
the United Nations High Commissioner for Refugees and other specialized
agencies of the United Nations. I also meet with many Special Rapporteurs
and members of working groups of the United Nations Commission on
Human Rights and the Sub-Commission on Prevention of Discrimination
and Protection of Minorities.
12. My practice also involves representation before domestic tribunals
in the United States and other countries. Additionally, I carry
out investigative missions, mainly on behalf of the organizations
listed in paragraph 10 above. In recent years I have visited Pakistan,
Norway, Canada, Austria, France, Japan, El Salvador, Guatemala,
Mexico, Ecuador, Chile, Nicaragua, the United Kingdom, Switzerland,
the Union of Soviet Socialist Republics (Russia) and Australia.
I have worked closely with investigators of the non-governmental
organizations listed in paragraph 10 above that have visited Turkey,
Kashmir, China, Burma, Indonesia, Sri Lanka, and India. I write
reports of investigations as well as articles for publication in
American and foreign law and professional journals. I have written
more than fifty statements published by the United Nations. (See
attached publications list).
13. In addition to teaching at the University of San Diego School
of Law and the University of San Francisco I have given lectures
or classes on international law at many law schools, including the
law schools at the University of California at Berkeley, the University
of California at Los Angeles, Hastings College of the Law, the University
of San Francisco, Stanford University, Santa Clara University, Yale
University, Harvard University, the University of Chicago, the University
of Pennsylvania, Illinois State University, the University of Denver,
Washington University, the University of Iowa, Drake University,
American University, Franklin Pierce University, Southern Illinois
University, the University of San Diego, the University of Arizona,
the University of New Mexico, Arizona State University, John Marshall
College of Law, Loyola (Los Angeles), and the University of Southern
California. I have also given several hundred lectures at community
forums and universities in nearly thirty states and twenty foreign
countries in the past ten years.
14. Since 1994 I have written an annual report Armed Conflict Around
the World: A Country by Country Review. The 1994 - 1996 reports
were issued by International Educational Development/Humanitarian
Law Project. The 1997, 1998 and 1999 reports are published by the
Parliamentary Human Rights Group (United Kingdom). This report has
been translated into Arabic by the UNESCO Chair, University of Oran
(Algeria) which is also preparing a French edition.
15. I have been invited to brief members of Congress a number of
times on refugee law, non-refoulement, humanitarian law, humanitarian
aid, human rights and the International Court of Justice. I have
submitted written testimony at Congressional hearings. (See attached
publications list). I have also consulted with officials of the
Canadian government on humanitarian and human rights issues, including
those at issue in this case.
16. I have investigated and written on the situation in Turkey since
1991 when International Educational Development/Humanitarian Law
Project undertook and investigative mission to Turkey. I worked
with colleagues on the preparation of the Report of that mission
and presented testimony on Turkey at numerous session of the United
Nations human rights bodies ever since. I have evaluated the Kurdish
- Turkey war as part of my annual armed conflict report (see paragraph
14 above) since 1994.
17. I meet regularly with representatives of the Kurdish community
in the United States and many European countries. I meet with members
of the United Nations Commission on Human Rights, including its
Chairpersons, and with members of the United Nations Sub-Commission
on Prevention of Discrimination and Protection of Minorities on
the situation in Turkey. I meet with United Nations special rapporteurs
and other officials regarding the situation in Turkey. I meet with
other human rights investigators and study the many reports and
papers regarding Turkey originating in Turkey and elsewhere, especially
those prepared by United Nations investigators and rapporteurs.
I have also met frequently with representatives of the International
Committee of the Red Cross. I have been invited to participate in
special briefing sessions on Turkey at the United Nations.
18. Abdullah Ocalan is a prisoner of war (POW) held by the government
of Turkey and is entitled to all the rights and privileges of that
status. He is President of the Kurdish Workers Party and Commander
in Chief of the People's Liberation Army of Kurdistan (ARGK) which,
since 1984, is a combatant force in a war-the Kurdish - Turkey War.
19. The Kurdish - Turkey War, as all wars, is governed by humanitarian
law: the Hague Conventions, the Geneva Conventions (including all
provisions of the Protocols Additional considered customary law)
and all treaty-based and customary laws of armed conflict.
20. A fundamental (jus cogens) rule of humanitarian law is that
combatants in a war are entitled to combatant status. The ARGK meets
all factual and legal tests for combatant status under humanitarian
law rules.
21. Captured combatants are entitled to prisoner of war (POW) status.
Abdullah Ocalan, as military commander of the ARGK is entitled to
prisoner of war (POW) status with all the rights and obligations
inherent in that status.
22. Under humanitarian law rules, Abdullah Ocalan may only be tried
for acts that violate the laws and customs of war. Laws relating
to terrorism do not apply to combatants in wars or to acts carried
out in the course of war. Because the ARGK has combatant status,
neither the PKK nor the ARGK may be considered to be terrorist
organizations nor can commanders or members of the PKK or ARGK taking
part in the war or supporting the war be treated as terrorist.
23. While the war in Turkey could be characterized as a civil war
requiring neutrality from third party states, this declarant is
convinced that the Kurdish people meet all criteria for the right
to self-determination. Accordingly, the war in Turkey is a war of
national liberation in defense of the right to self-determination.
Under international law rules applicable to wars of national liberation
in defense of the right to self-determination the international
community is legally required to side with the Kurdish people. Regardless
of whether the war is characterized a civil war or war of national
liberation the ARGK still has combatant status and Abdullah Ocalan
still has rights as a POW under humanitarian law.
24. This Declaration is not meant to be an exhaustive account of
the Kurdish - Turkey War. The facts chosen are meant to be illustrative
of the fact that there is a war and that the rules of war apply.
For each example given many others could be made.
THERE IS A WAR IN TURKEY
25. Because the government of Turkey incorrectly characterizes the
war in Turkey as "terrorism" and Abdullah Ocalan as a
terrorist it is important to understand the difference between war
and terrorism and apply the rules to the situation in Turkey.
A. What is War.
26. War is armed conflict between two or more parties. Armed conflict
exists when there are sustained and concerted military operations
by military personnel whose dress distinguishes them from the civilian
population and who use the materiel, weaponry and military tactics
of war. Simply put, if it looks like a war, it probably is. Humanitarian
law ---also referred to as the laws and customs of war, the law
of armed conflict or jus in bello-applies when there is armed conflict
or war.
27. Military action can involve conventional warfare or guerrilla
warfare or any other form of warfare. The laws and customs of war
do not prohibit any particular form of military action. All modern
wars have been fought with a variety of military tactics.
28. Because the purpose of war is to defeat the enemy's military
forces, the weaponry of war may vary from situation to situation.
Contemporary wars have seen the use of spears and poison blow guns
as well as napalm bombs and bullets containing depleted uranium.
29. It is not necessary for the parties to a conflict to formally
declare war for there to be a war: a war exists and the laws and
customs of war are applicable when objectively armed conflict is
taking place. For example, the United States carried out lengthy
military actions in Vietnam without ever having declared war. Even
so, the laws and customs of war were applicable to both sides in
that conflict.
30. Many countries at war either refrain from a formal declaration
of war or try to deny a war is even taking place at all to try to
avoid application of humanitarian law to their conflicts. One method
governments use to attempt to avoid evaluation of their military
actions under humanitarian law rules is to characterize the conflict
as "terrorism" and "counter-terrorism" rather
than war. Governments mis-characterize armed conflict for a variety
of reasons, all present in the Kurdish - Turkey war:
(1) the government's own armed forces have violated the rules of
war and the government wants to avoid international censure;
(2) the opposition forces have destroyed military targets that are
insured and the government presumably wishes the insured to receive
insurance indemnification for the damage;
(3) the government needs foreign aid (war is expensive) and many
foreign donors such as the United States restrict foreign aid during
war or only allow funds to combat "terrorism". Regardless
of the political or economic motives for evoking "terrorism"
when a war is taking place, humanitarian law automatically applies
and the "terrorism" label is incorrect.
B. Terrorism.
31. Terrorism is not war. While there is no universally accepted
international law definition of terrorism, there is basic agreement
that terrorism consists of the use of force insufficient to require
application of the laws and customs of war. Accordingly, if a situation
meets the definition of war set out above, that situation is not
terrorism. If a situation falls short in a substantial way from
the definition of military operations then that the situation is
probably one of terrorism.
32. Usually, terrorist activities are single operations and relatively
random rather than "sustained and concerted." Terrorist
groups are usually small in number and function clandestinely rather
than openly and with distinguishing uniforms or insignia. While
they use weapons, terrorist groups rarely have or utilize other
military materiel such as tanks, other vehicles, planes, heavy artillery
and the like.
33. While there may be a stated goal, groups involved in activities
usually labeled "terrorist" seek to achieve that goal
by intimidating the opposition into agreement rather than through
military achievement. In part this may be because military victory
is impossible given the group's size and limited military capability.
On the other hand, lack of military activity may reflect on the
typical goals of these groups. Military action against such groups
makes no sense at all-these groups have no military bases or identifiable
zones of territorial control. While occasionally, some groups do
have "camps" and carry out "military training",
they are not engaged in combat in any sense of the meaning of combat.
Wishful thinking, week-end "war games", irregular sniper
actions or playing at war are not sufficient to qualify as combat.
If on the other hand large-scale, mutually fought military actions
over a wide territory are carried out against a so-called "terrorist"
group it is far more than likely that the group is not "terrorist"
at all but rather a military force in a war. Under these circumstances
the "terrorist" is really a combatant.
C. War in Turkey.
34. Applying the criteria for armed conflict to Turkey, it is patently
obvious that since "approximately 1985 a violent conflict has
raged in the south-eastern region of Turkey." The war is between
the forces of the government of Turkey and the ARGK. Even the government
identifies the actions as a war: as early as 1984, the President
of Turkey stated: "It is, after all, a question of war. It
is therefore understandable."
35. The government military forces utilize the methods and materiel
of war to carry out military actions to defeat by military means
the military forces of its enemies. On its part, the ARGK carries
out military actions against the military forces and military targets
of the government of Turkey. There is nothing random or sporadic
about this
war. In no way does it resemble "terrorism/counter-terrorism"
activity. It is clearly a war. There is nothing clandestine or shadowy
about either the PKK or the ARGK-both are very public. The ARGK
forces wear distinctive uniforms and insignia. The ARGK does not
play week-end war games but fights militarily on military battlefields
day in and day out. The ARGK has military bases both inside and
in border regions of Turkey.
36. The early years of the war were characterized by Kurdish military
consolidation of much of the Kurdish areas, the emergence of the
PKK and ARGK under Abdullah Ocalan and its gradual leadership of
the ARGK among armed Kurdish groups.
37. In recent years the Turkish armed forces have been almost continually
engaged in military operations against the ARGK. The government
forces use tanks, airplanes, armoured vehicles, military weapons,
and other military materiel. On several occasions the military actions
have involved military incursion into Iraq. For example, in April
1998, 40,000 Turkish troops began a major offensive against the
ARGK. In November 1998, the Arab League demanded the withdrawal
of 25,000 Turkish troops from Iraq where they had gone in pursuit
of the ARGK. At present time (May, 1999), there are major military
battles taking place between Turkish forces and the ARGK forces.
Allegations of the use of chemical weapons on May 11, 1999 near
Beelike by Turkish forces against the ARGK and Kurdish civilians
are being investigated in Germany.
38. Since the beginning of the war, the military advantage of each
side has ebbed and flowed. What is apparent is that since 1984 there
is a war and that to date neither side has won.
TROOPS ENTITLED TO COMBATANT STATUS
39. Because there is a war in Turkey all the rules of war apply.
A fundamental principle of the laws and customs of war (humanitarian
law) is that combatants in a war are entitled to combatant status.
Combatant status means that a soldier is legally entitled to carry
out acts of war. This principle must be viewed as a norm of jus
cogens.
40. While this principle has been one of customary international
law for centuries, it also finds expression in treaty-based humanitarian
law. For example, Article One of the Hague Regulations grants the
rights of war to members of armies. Members of militia and volunteer
corps are also entitled to the rights of war if they meet certain
conditions: they must be under responsible command, wear some visible
emblem to distinguish them from civilians, carry arms opens and
conduct operations in conformity with the rules of war. Even civilians
are entitled to engage in combat when they spontaneously take up
arms on the approach of the enemy.
41. Because there is a war in Turkey between the government forces
and the ARGK, the ARGK troops have the right to engage in combat.
This status is inconsistent with a label of "terrorist"-a
terrorist does not have combatant status or the right to engage
in combat.
Because the right of combatants to combatant status is a norm of
jus cogens, the government of Turkey may not qualify that right
or reduce or disregard in any way the rights of members of the ARGK
to combatant status. Designation of the PKK or the ARGK as terrorist
organizations or its commanders and members as terrorist violates
this jus cogens right. Abdullah Ocalan is entitled to combatant
status.
ABDULLAH OCALAN AND ARGK TROOPS
ENTITLED TO PRISONER OF WAR (POW) STATUS WHEN CAPTURED
42. The second most important right of a combatant under humanitarian
law is the right to be held as a prisoner of war rather than a "common
criminal" if captured. Because Abdullah Ocalan is entitled
to combatant status he is entitled to prisoner of war status as
a captured combatant. He may not be criminally charged with acts
that are acts of war. As a POW he must be granted all POW rights.
WAR OF NATIONAL LIBERATION IN DEFENSE OF THE RIGHT TO SELF-DETERMINATION
43. This declarant is convinced that the Kurdish - Turkey War is
a war of national liberation in defense of the right to self-determination.
To support this position I will set out the types of armed conflict
and my reasons for my view of the Kurdish - Turkey War.
A. Three Types of Armed Conflicts.
44. Modern humanitarian law applies to the three main types of
war: international wars, civil wars and wars of national liberation.
Each is governed by somewhat different provisions in humanitarian
law, although the basic principles apply to all armed conflicts.
45. A war is an international war when military action or hostilities
take place between two or more separate States. Typically, the military
forces of one country engage in military actions against another
country by invading another country, but international rules can
also apply when a country defends another country from military
action from a third state. In all circumstances, the treaty-based
and customary international law relating to international war applies
to these conflicts.
46. A war is a civil war when there is armed conflict taking place
in one State between government armed forces and opposition armed
forces or groups who have identifiable and responsible military
commanders, who control enough territory to carry out a significant
level of armed conflict, who distinguish themselves from the civilian
population by means of distinct uniforms or other readily identifiable
physical features and who have the means to comply with humanitarian
law obligations relating to civil wars. Neither police actions against
civilian demonstrators nor isolated attacks by armed persons against
civilian or government targets qualify as armed conflict. In civil
wars, the international community must be neutral, as a civil war
is an inherently internal affair.
47. A war is a war of national liberation when a group having a
claim to self-determination carries out military actions against
the occupying state, which can be a colonial or alien power or a
racist regime. No acts in furtherance of the right to self-determination,
including the use of force, may be treated as treason by the occupying
state.
48. Self-determination is the collective right of a people to freely
determine their own political status and to pursue economic, social
and cultural development. People claiming self-determination must
show a history of independence or self-rule in an identifiable territory,
a distinct culture, and a will and capability to regain self-governance.
49. In wars of national liberation in the exercise of the right
to self-determination or against racist regimes, the international
community is required to side with the people with the right to
self-determination or fighting against racist regimes. This is because
of the peremptory (jus cogens) nature of the principle of self-determination
and the international prohibition against racism. Because the right
to self-determination is jus cogens, the duty of the international
community to uphold it is an obligation erga omnes. Ian Brownlie
reinforces the erga omnes obligation to observe the principle of
self-determination in his opinion that armed defenders of self-determination
have a special combatant status.
B. The Kurdish Claim to Self-determination.
50. The Kurdish - Turkey War could be viewed as a civil war, in
which case all humanitarian law relating to civil wars would apply.
Clearly the minimum test applied to the ARGK has been met since
1984: there is an armed conflict between government armed forces
and ARGK troops who have identifiable and responsible military commanders
(such as Abdullah Ocalan), who control enough territory to carry
out a significant level of armed conflict, who distinguish themselves
from the civilian population by means of distinct uniforms or other
readily identifiable physical features and who have the means to
comply with humanitarian law obligations relating to civil wars.
However, this declarant is convinced that the Kurdish - Turkey War
is a war of national liberation in defense of the principle of self-determination.
51. The Kurdish claim to self-determination is one of the strongest
in the contemporary international scene. The three main elements
of a claim to self-determination- historic self-governance in an
identifiable territory, a distinct culture and a national will and
capacity to govern are all present in the Kurdish case. In addition,
the Kurdish people have suffered under extreme forms of racism for
many years.
52. The Kurdish people had a centuries-old tradition of self-governance
interrupted tragically in 1524 in a historic battle between Ottoman
Turkey and Safavid Persia which led to nearly two centuries of battles
between these competing powers in the region. This long period brought
ruin on traditional Kurdistan, with the last of the historic principalities
losing self-governance in the middle 19th century. Following World
War I, Kurdistan, Armenia and Arabia were to be separated from Turkey.
Accordingly the Treaty of Sevres (1920) established an autonomous
Kurdistan with the rights of the Kurdish people to opt out of Turkey
by way of a referendum or other expression of will within one year
of the Treaty. However, before the Kurdish people could act on the
Treaty of Sevres, the new Turkish ruler Mustafa Kemal arranged a
new treaty (the Treaty of Lausanne of 1923) which divided historic
Kurdistan into 4 unequal parts with the majority "given"
to Turkey. The severe oppression of the Kurdish people under Turkish
rule began almost immediately and continues to this day.
53. The Kurdish people are ethnically, culturally and linguistically
distinct from Turkish peoples or other cultures in the area. Their
language is unrelated to Turkish. They are said to descend from
the Hurrian and Mede people. At present Turkey seeks to eradicate
all aspects of Kurdish culture.
54. The third element of self-determination-national will and capacity
to govern-is also exceptionally strong in the Kurdish case. Not
only are the PKK/ARGK themselves evidence of a willingness to defend
the right to self-determination with the use of force but the vast
majority of Kurdish civilians, whether in Turkey or abroad, also
show an exceptionally strong national will that has endured for
the many long years of the war. Even those relatively few Kurdish
people who do not strongly support the PKK or ARGK do not deny their
insistence on some form of self-governance, whether in association
with Turkey or as a separate nation.
55. The large number of Kurdish organizations in Turkey and abroad
speaks to this national Kurdish will. Each year of the war has seen
more and more organization among the Kurdish people in Turkey and
in the diaspora. The Kurdish question is debated and urged in countless
community forums and in international conferences, many of which
are organized by the Kurdish themselves. There are Kurdish politicians
from a variety of political parties, all of whom attest to a goal
of at least significant devolution of power in Turkey to afford
the Kurdish people full expression of their cultural aspirations
as a people. The leading Kurdish religious leaders also support
Kurdish sovereignty.
56. About the capacity to self-govern there can be no doubt. The
Kurdish people have a long political history, and there are a variety
of Kurdish political parties with great experience and highly developed
platforms and programs. Many leading Kurdish people have had high
offices in Turkey. While some are now in exile, they are able and
ready to serve in a Kurdish government. The PKK has maintained a
civilian authority in the areas under their control since the beginning
of the war. The Kurdistan Parliament in Exile was elected in April
1995 and functions under its operative statutes.
57. Because of the application of the right to self-determination
to the Kurdish - Turkey War Abdullah Ocalan may not be charged with
treason.
3. Kurdish Claim to Self-determination Based on Racism.
58. The Kurdish people also have a claim to self-determination based
on persistent racism and a pattern of gross violations of their
human rights carried out by the Turkish government for many years.
International evidence against the Turkish regime is irrefutable.
The Kurdish people can clearly show that they "are compelled
to have recourse, as a last resort, to rebellion against tyranny
and oppression" as provided in the Universal Declaration of
Human Rights. The tyranny and oppression of the Kurdish people by
the Turkish authorities existed for many years before the PKK issued
a call to the use of force in 1984. The PKK, through the ARGK, only
undertook the military defense of the Kurdish people after all reasonable
avenues for a political settlement had been exhausted. Accordingly,
under international humanitarian and human rights law Abdullah Ocalan
may not be charged with treason for the defense of the Kurdish people
against tyranny and oppression.
THE GOVERNMENT OF TURKEY VIOLATES THE LAWS AND CUSTOMS OF WAR
59. In the course of the Kurdish - Turkey War the armed forces
of the government of Turkey have carried out serious violations
of the laws and customs of war (humanitarian law), not the least
of which is the failure to grant Abdullah Ocalan his POW rights.
It is perhaps because of the seriousness of these violations that
the government of Turkey seeks to deny there is even a war if there
is no war, there are no violations of the rules of war. However,
no government, including the government of Turkey, can legally duck
responsibility for its acts that violate humanitarian law. Before
discussing Turkey's violations, it is important to set out the basis
rules.
A. Humanitarian Law Relating to the Conduct of War.
60. In the modern age, the law governing the conduct of combat
is frequently referred to as " The Hague law" because
the most important multilateral treaties relating to combat were
drafted at conferences held in The Hague, the Netherlands. Humanitarian
law governing treatment of persons affected by war is now referred
to as "Geneva law" because of the important multilateral
treaties drafted at similar conferences held in Geneva, Switzerland.
Humanitarian law is both customary and treaty-based.
61. Modern treaty-based humanitarian law dates from the first Geneva
Convention, promulgated in 1864. The Hague Conventions of 1899 and
1907, multilateral treaties resulting from the peace conferences
held in the Hague in 1899 and 1907 developed the law of combat.
Subsequent treaties and declarations have focussed on prohibitions
against certain weapons (i.e. napalm, chemical and biological weapons)
and against modification of the environment for hostile purposes:
there have been no major revisions of the law of combat since the
Hague Conventions of 1899 and 1907. Customary humanitarian law (including
customary humanitarian law discerned by expert opinion) therefore
is especially important.
62. The right of combatants to combatant status and POW status
if captured is a fundamental or jus cogens principle of the law
of military operations-The Hague body of humanitarian law. As noted
above, this customary rule was codified in Article 1 of the Hague
Regulations of 1907.
63. In addition to the combatant status rule, The Hague law has
one more important general principle: any military operation necessary
to defeat the enemy forces is legal unless specifically prohibited
or limited. Prohibitions or limitations may be found in any source
of international law: treaties, customary law, principles of law
of civilized nations, decisions of tribunals, expert opinion, the
laws of humanity, and the dictates of the public conscience.
Prohibitions may also be included in agreements between the parties
to a conflict. Because of the extensive prohibitions and limitations
found in these sources of humanitarian law, this principle of humanitarian
law is now frequently stated by its corollary rule: the means of
warfare are not unlimited. This formula first appeared in the Hague
Convention (IV) of 1907 (Regulations, Article XXII): "The right
of belligerents to adopt means of injuring the enemy is not unlimited."
64. As of present time, The Hague law limits or forbids certain
combat activities: killing a combatant who is sick, wounded or has
surrendered; military operations against towns, villages, or buildings
which are undefended or against the civilian population or civilian
habitations (including foodstuffs and drinking water); and pillage.
Military operations against combatants may also be prohibited, for
instance if there is a strong likelihood that an undue number of
civilians will be killed or injured in proportion to either the
enemy armed forces or the military objective.
65. The principle of "necessity" itself presents one
of the major restrictions on military operations: a military operation
must be "necessary" to defeat the enemy. What constitutes
military necessity is usually in constant dispute in any war, with
most combatant forces justifying any and all operations as necessary.
However, most sources require military operations objectively to
demonstrate a definite military advantage. Military operations may
not be carried out if the military gain is too small in proportion
to the loss of life or property necessary to achieve it. Military
operations also may not be carried out if objectively the enemy
is already defeated or if the purposes of the war are already achieved.
66. In spite of the extensive prohibitions and limitations to warfare
in current customs and treaties, many military operations remain
legal even though for political or other purposes they may be condemned.
One common military goal is to kill the military or political leaders
of the opponent force. While there is growing concern about political
assassination, most armed forces consider that in time of war it
legal to kill any political or military leader of the opposition
as part of a military action. However, if captured, a political
or military leader must be held as a POW.
67. Legal military targets include all movable property of the
opposing forces, and all transport vehicles used to supply the opposition
forces. These can include trains, buses, cars, even if not the actual
property of the enemy. Military bases, offices, quartels and camps
are legal targets of military operations. Lines and means of communication
and transport (railroads, bridges, roads, broadcast facilities,
telephone and telegraph facilities having fundamental military importance)
are also legal targets. Fuel sources (depots, refineries, and the
like) as well as munitions factories or other facilities producing
or storing war materiel (arms, uniforms, military food supplies)
are all legal military targets. Electric works or other energy supply
installations (with the exception of nuclear ones) are also legal
targets.
68. At present time, there are no prohibitions against attacking
structures related to the enemy's financial capacity: most wars
are costly, so targeting the enemy's monetary resources certainly
meets the necessity test. Combatants typically try to attack payroll
dispensaries, gold or bullion/specie storage facilities, mints,
banks and the like.
B. Humanitarian Law Relating to Victims of War.
69. Since the first Geneva Convention there has been substantial
development of treaty law protecting victims of armed conflict illustrated
by the promulgation of the Geneva Convention of 1906, Geneva Convention
(Wounded and Sick) of 1929 and Geneva Convention (Prisoners of War)
of 1929, the Geneva Conventions I - IV of 1949 and Protocols Additional
I and II of 1977.
70. The law of protections for persons affected by war (Geneva
law) also has one overriding principle: combatants hors de combat
and civilians not directly engaged in armed combat may not be the
target of military operations and must be treated humanely. This
body of humanitarian law address the right of combatants to medical
care if sick or wounded; the right of medical personnel to treat
sick or wounded combatants even if the combatants belong to the
enemy forces; the obligation to protect medical personnel, equipment
and facilities from military attacks; rules for the treatment of
prisoners of war (POWs); and protections of the civilian population
from the hazards of war and their right to medical care, subsistence
needs and services. Geneva law outlaws torture, slavery, wilful
killing (killing outside of legal combat) and other inhumane acts
at all times.
71. Civilians may lose their civilian status and be considered combatants
if they take part in military operations as militia forces or if
they in a substantial way participate in military operations. However,
opposing military forces must take on the burden of proving that
the former civilians are in fact combatants. If that burden is met,
opposing military forces may undertake military operations against
the former civilians. However, if captured, these persons have POW
rights.
72. In present time, the two bodies of humanitarian law are merging:
both Protocols Additional contain provisions historically considered
The Hague law. The Protocols both address a wide range of civilian
objects that may not be subjected to military action. For example
Protocol Additional I expands upon the provision of the Hague Convention
of 1907 prohibiting attacks on undefended towns, villages or civilian
buildings. The Protocol also provides for duties and protections
for civil defense and establishes new regulations concerning aircraft
signals and other electronic identification. Both Protocols severely
restrict attacks on public works of installations containing dangerous
forces: dams, dikes, nuclear installations. These provisions are
all considered binding customary law.
73. This modern blending of the two branches of humanitarian law
is in part due to the fact that there has been no effort to revise
and up-date the Hague Conventions themselves. There has also been
substantial development of human rights law which has had an impact
on humanitarian law.
C. Abdullah Ocalan's Rights as a POW.
74. Relating specifically to Abdullah Ocalan, he has all the rights
set out in Geneva Convention III of 1949, and all rights of POWs
under customary humanitarian law, including those set out in Protocol
Additional I. The most important of these rights include the right
to humane treatment (Geneva Convention III, Articles 12 - 13), the
right to certain conditions of detention (Geneva Convention III,
Articles 17 - 77) and the right to procedural guarantees (Geneva
Convention III, Articles 82 - 108). Serious violations of these
rights are "grave breaches" or war crimes under humanitarian
law.
75. It is difficult to assess from afar Abdullah Ocalan's treatment
or conditions of detention but I can assume there is not full compliance
with Article 17 - 77 relating to conditions. For example, internment
in penitentiaries is only allowed if "justified by the interest
of the prisoners themselves." (Article 22). It appears patently
clear that Abdullah Ocalan's detention at the Imrali prison island
serves only the Turkish authorities. Other rights are most likely
violated as well, such as the right of POWs to mail and relief parcels
(Article 72) and adequate food and drinking water (Article 26).
76. Regarding procedural guarantees it is highly likely that Abdullah
Ocalan has already been subjected to grave breaches and will continue
to suffer as proceedings against him proceed. For example, he has
the right not to be tried by any court that "does not offer
the essential guarantees of independence and impartiality as generally
recognized." (Article 84). A tribunal that neither recognizes
his POW rights nor promotes and protects them clearly does not offer
the required guarantees. Under these circumstances, Abdullah Ocalan
has the right to petition for a proper tribunal and to refuse all
further proceedings with the non-complying tribunal. He has the
right to petition at any stage in the proceedings and may not renounce
his POW rights at any time. (Article 7).
77. Additionally, he may not be sentenced to any penalties that
would not be viewed as subject to sentence in respect to members
of the armed forces of Turkey. (Article 87). Thus charges relating
to treason or terrorism may not be brought against him.
78. This declarant is concerned that there is presently no regular
international monitoring of Abdullah Ocalan at his place of detention
in terms of his POW rights under the Geneva Conventions and other
sources of the laws and customs of war. There are also serious difficulties
relating to legal representation. Accordingly, this declarant calls
on the government of Turkey and this Court by means of a court order
to turn over Abdullah Ocalan to a Protecting Power that will guarantee
all of his rights under humanitarian law.
Humanitarian Law (War Crimes) in the Kurdish - Turkey War.
79. In all wars, the international community has a right to investigate
compliance with humanitarian law, in particular with the Geneva
Conventions, the Hague Conventions and all customary humanitarian
law. Neither party in the Kurdish - Turkey War can be charged for
acts that do not violate the humanitarian law rules set out above.
While there have been many legal military operations by both sides
which are not chargeable as breaches, as in all wars, the Kurdish
- Turkey War is one with many violations of the laws and customs
of war, especially by Turkey's military forces.
A. Violations of the Rights of POWs in General.
79. Protection of all prisoners of war is a fundamental obligation
of the rules and customs of war. However, the Turkish government
appears to have no normalized treatment of ARGK/PKK prisoners of
war. In spite of the nearly 15 years of sustained armed conflict
in Turkey, the government of Turkey still has no designated facilities
for POWs properly open to inspection by humanitarian organizations
such as the International Committee of the Red Cross/Red Crescent.
Captured combatants have been shot summarily, tortured and denied
all POW rights. These acts constitute war crimes (grave breaches)
of humanitarian law and are actionable with no statutory limitations.
B. Ethnic Cleansing/Genocide.
81. For over ten years the government of Turkey has been carrying
out "ethnic cleansing" of the region-a major violation
of humanitarian law. The Foreign Ministry of Turkey admitting to
evacuating 2400 villages. Turkey's actions against the Kurdish people
clearly meets the international law test for genocide: killing and
causing serious bodily harm, inflicting conditions of life calculated
to bring about is physical destruction in whole or in part (ethnic
cleansing and other acts).
C. Torture, Summary Execution, Disappearances of Kurdish People.
82. The violations of rights that the international community has
acknowledged occur in Turkey (such as torture, violation of the
right to life and summary execution, disappearances, and extreme
procedural anomalies in the justice system) can also be characterized
as violations of the rules of war or violations of humanitarian
law (war crimes) when they occur in the context of the war. Most
violations of the rights of Kurdish peoples indicated in the above
reports and in numerous other reports prepared by non-governmental
human rights organizations do in fact occur in the context of the
war, and are therefore both war crimes and human rights violations.
D. Wanton Destruction of Civilian Property.
83. The European Court of Human Rights found that the government
of Turkey has carried out burning and other destruction of Kurdish
villages and property in violation of the European Convention of
Human Rights and Fundamental Freedoms and Protocol No. 1. These
acts are also breaches of humanitarian law which protects civilians
and civilian property from attack and are viewed as war crimes.
E. Interference with Humanitarian Aid.
84. Under Geneva Convention rules, sick and wounded combatants
and civilians have an absolute right to care. In spite of this,
the government of Turkey has carried out blockades of food and medicine
for the Kurdish areas during most of the war. International NGOs
have repeatedly condemned this practice at the annual sessions of
the United Nations Commission on Human Rights.
F. Verification of Violations in the Kurdish - Turkey War.
85 Verification of violations of the rules of war is a serious
problem in the Kurdish - Turkey War. In part, verification is difficult
because the Turkish authorities deny there is a war and also denies
access to international, impartial monitors. Turkey's "accusations"
become accepted fact with no investigation or proof. At least 19
journalists covering the war have been killed, thereby compounding
the difficulties of accurate investigation.
86. This situation has allowed the government to make wild accusations
against the ARGK and PKK in an attempt to damage the international
acceptance of the ARGK and PKK, to reinforce its labeling of the
ARGK and PKK as "terrorist" and to turn the Turkish people
and the international community as a whole against the Kurdish people.
One tactic is to accuse the ARGK of massacring villagers. Independent
monitoring of some of these massacres reveals a different story-sometimes
Turkish soldiers themselves or anti-PKK/ARGK groups have been implicated.
In other circumstances, an event may have been unrelated to the
Kurdish - Turkey War. All of the accusations against the ARGK need
to be independently investigated by experts in armed conflict. Turkey's
violations must also undergo independent study.
RECOMMENDATIONS REGARDING ABDULLAH OCALAN
87. Because of the serious nature of this case and the likelihood
of grave procedural violations in further proceedings of this tribunal
I recommend the following: (1) that this tribunal and the government
of Turkey seek a Protecting Power for Abdullah Ocalan under the
Geneva Conventions; (2) in the absence of such action that this
tribunal suspend all deliberations relating to the criminal liability
of Abdullah Ocalan pending a termination by competent legal authority-at
the European Commission or Court of Human Rights if necessary-that
it is a proper tribunal in this case as well as an independent and
impartial one; (3) that this tribunal issue an order granting Abdullah
Ocalan full POW rights, including all rights pertaining to human
treatment, conditions of detention and monitoring by impartial humanitarian
organizations or other governments.
88. I declare under penalty of perjury that the foregoing is true
and correct to the best of my knowledge. Executed in San Francisco,
California on this the _____ day of May, 1999. Karen Parker
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