Expert Opinion With Respect To The Rights Of Peoples
Concerning The Implications Of And Questions About The
Interior Ministry's 22 November 1993 Decision To Ban Kurdish
Organizations And Associations In The Federal Republic Of
Germany

Written By Dr. Norman Paech - Hamburg, Germany
Translated By The Kurdistan Committee Of Canada

     The federal interior ministry justified its decision for
banning all activities by 35 Kurdish organizations and
associations, dissolving them - in so far as they are constituted
within the Federal Republic of Germany - and seizing their assets
with the notion that they were a threat to the peaceful
coexistence of peoples, domestic security, the public order, and
other considerable interests of the Federal Republic of Germany.
In addition to this, the activities of some of these
organizations were also alleged to be in violation of the law.
The report concerning the banning of the organizations - which
explains the banning in three parts: against the Kurdistan
Workers Party (PKK), the National Liberation Front of Kurdistan
(ERNK), Berxwedan Verlag GmbH, and the Kurdistan-Haber Anjansi-
News Agency (KURD-HA); against the Federation of Patriotic
Workers and Cultural Associations from Kurdistan in the Federal
Republic of Germany (FEYKA-Kurdistan); and against the Kurdistan
Komitee e.V. - is of the opinion that all of these organizations
identify with the goals of the PKK and that their activities are
designed to further these goals. The goals and activities of the
PKK are the primary focus of the report, and the banning of these
organizations stems directly from this.
     The activities of the PKK are alleged to influence the
feelings of security of uninvolved citizens and that they thereby
influence the domestic security and public order of the Federal
Republic of Germany. Furthermore, they disturb the peaceful
coexistence of Kurds and Turks, both in Turkey and in Germany,
and they are contrary to the peaceful coexistence of peoples.
They cause considerable damage to Germany's public image as well
as the bilateral relationship between Turkey and Germany, since
PKK activities and propaganda which are tolerated on German soil
cause destabilization to the southeastern region of Turkey. In
particular, the PKK's struggle for an independent Kurdistan,
which is waged using terrorist means, threatens the territorial
integrity of Turkey. Since German foreign policy and the foreign
policy of the entire Western world is concerned about the
integrity of this important NATO, Western European Union, and
European Council partner, in the interest of peace, any further
toleration of PKK activities in Germany would undermine the
credibility of this foreign policy. The group FEYKA- Kurdistan is
deemed to have identical goals to the PKK/ERNK, and the Kurdistan
Komitee e.V., on account of its aggressive agitation and
propaganda, must be seen as the mouthpiece of the PKK.
     The object of this expert opinion is not to examine the
question of to what degree these several organizations operate as
partners, front groups, or propaganda organizations for the PKK.
What will be examined are the countless accusations of conduct,
crimes, and suspicions (for example, concerning extortion and
drug trafficking) which the PKK have always firmly denied and
which have remained largely without any evidence of any legal
value whatsoever.
     More importantly, however, this text will examine the
judicial qualification of the PKK/ERNK as a terrorist
organization with a programme, agitation, and activities which
are harmful to the peaceful coexistence of peoples, as well as
looking at the general rules and fundamentals of the rights of
peoples, which the Federal Republic of Germany has recognized in
Article 25 of its constitution. It would appear that the interior
ministry has not examined these questions at all. Rather its
unilateral and isolated reference to its duty to heed Turkey's
sovereignty and territorial integrity seems to reveal a layman's
attitude toward the notion of the rights of peoples.

I.

     The PKK defines itself as a revolutionary liberation
movement which seeks to separate the ca. 12-15 million Kurdish
people from the Turkish state and organize them in their own
state. In this respect, the notions of the federal interior
ministry are correct. But it must be added to this - something
which is not insignificant for a judicial consideration - that
the secessionist demand did not originate in the programme of the
Kurdish rebel movement and the PKK. This demand is rooted in the
about-face taken by Ataturk in his Kurdish policy following the
Treaty of Lausanne (1923), which essentially established Turkey's
present-day borders. Ataturk's government denied the existence of
an independent Kurdish nation and forced the Kurds to assimilate.
Both of these elements have remained fundamental aspects of
Turkey's policy with respect to the Kurds up until this day, and
they have been enforced by means of repression and violence, such
as the banning of the Kurdish language, literature, publications,
and schools, as well as deportations and the destruction of
hundreds of villages. These policies were not successful, rather
they provoked several armed uprisings which were all bloodily
crushed by the Turkish military.
     Although there had previously been committees and
associations which called for an independent Kurdistan, they
could not push towards this as a common Kurdish goal for very
long due to inner-Kurdish conflicts. The consensus was a demand
for autonomy and the recognition of Kurdish independence and
self-government within the confines of the Turkish state. It was
the lack of any willingness to compromise the incredible
harshness of anti-Kurdish policies - all observers of Turkey
agree on this point - which gave rise to the radical organization
"Kurdistan Workers Party" (PKK), which launched an armed struggle
in 1984 to make the creation of an independent Kurdish state its
definitive goal. But the PKK, and its general secretary, Abdullah
Ocalan, have repeatedly stated that an independent Kurdistan is
not a unconditional demand and that a political solution to the
Kurdish question would be possible if the government in Ankara
would recognize the existence of the Kurdish people and prepare
an autonomy statute. The path of Kurdish protest, from unrest and
rebellions for the demand of ethnic autonomy and self-government
to an armed struggle for the demand of an independent state, is
nothing new or unusual in the context of the post-war development
of nation states. The liberation struggles of former colonies and
their liberation movements have provided us with countless
examples.
     But the many successful and unsuccessful secessionist wars
of the post-colonial era - here we need only point out the
separation of Bangladesh, formerly East Pakistan, from Pakistan
in 1971, as well as the most recent example of a successful
secession, namely that of Eritrea from Ethiopia in 1992 after a
30-year war - have also provided us with educational lessons of
the radicalization of oppressed peoples' movements and their
concentration in liberation organizations capable of waging a
strong fight. This development has not been without its effects
on the rights of peoples, rather it has forced a fundamental
reorientation which was expressed in a comprehensive resolution
passed by the UN General Assembly, various international
conferences and codifications, as well as several publications.
In order to condemn the PKK, it is not sufficient to focus on
their demands for independence and their armed struggle and the
Turkish Republic's qualification of them as a terrorist
organization.

II.

     The starting point for this analysis is the demand for
autonomy, that is, for state independence for the Kurdish people,
something which is based on the fundamental principle of the
rights of people, namely the right to self-determination. We will
assume without taking the time to provide extensive proof - since
this fact is not disputed in scientific literature and general
discussion, only the Turkish government refuses to recognize this
fact - that the Kurds are a distinct people. Because of their
Indo-European heritage and their language, which is related to
Persian Pharisee, but which is not at all similar to Turkish,
they are a people which are especially distinctive with relation
to the Turks. There are ca. 10-12 million Kurds in Turkey, thus
making them a very sizeable minority in the country.
     The right to self-determination, despite its very early
roots in the American War of Independence of 1776 and the French
Constitution of 1791, only became qualitatively linked to the
rights of peoples somewhat later on, although today it is
generally accepted as a ius cogens.
     The notion travelled upon a long path before first being
codified in Article 1 Section 2 and Article 55 of the UN Charter.
But this rather vague mention in connection with fundamental
equality made self-determination more of an unbinding programme
rather than a recognized right. This only changed after the
people living under colonial rule appeared on the world stage
alongside the nations of the UN to demand their independence and
state sovereignty from the colonial powers. The judicial lever of
their struggle was the right to self-determination and the
decolonization of the political field, thus strengthening the
programme to a guaranteed fundamental right. The first step was
taken on 14 December 1960 when the UN General Assembly passed the
"Declaration Of The Independence Of Colonial Nations And Peoples"
in Resolution 1514 (XV):

2. All peoples have the right of self-determination. They are
free to politically determine the force of this right and to
freely struggle for economic, social, and cultural development. 

4. All armed actions and measures of repression, of any type
whatsoever, against dependent peoples are to be halted in order
to make it possible for them to peacefully and freely enjoy their
right to full independence. The integrity of their national
territory will be respected. 

     But most states did not adhere to this understanding of
collective rights. Rather they began to adopt a very
individualistic notion of human rights and placed this notion at
the top of both international pacts concerning civil and
political rights as well as the economic, social, and cultural
rights on 19 December 1960. In Article I of both pacts, it is
unanimously stated that:

1. All peoples have the right of self-determination. They are
free to determine the force of this right through their political
status and their freedom of economic, social, and cultural
development. 

     Both pacts first went into effect in 1976. Prior to this,
the states of the UN General Assembly had already given an
authentic interpretation and detailed justification of the right
to self-determination in Resolution 2625 (XXV), the "Statement On
The Rights Of Peoples With Respect To The Foundations Of Friendly
Relations And Cooperation Between States According To The Charter
Of The United Nations", which was passed on 24 October 1970. In
the chapter entitled "The Foundation Of The Equal Rights And
Self- Determination Of Peoples" is written:

In accordance with the foundations of equals rights and
self-determination of peoples spelled out in the United Nations
Charter, all peoples have the right, free and without outside
interference, to decide their political status and to regulate
their own economic, social, and cultural development, and all
states are required to honour this right in accordance with the
Charter. 

     This resolution marks the time when the right to
self-determination was made a fundamental law which all states
had to recognize. This notion has been strengthened in several
subsequent UN General Assembly resolutions.
     The Commission on the Rights of Peoples issued a report
concerning this right in 1976 which listed several examples of
its status as a binding law (ius cogens), and the International
Court of Justice has upheld its binding status in a number of
reviews and decisions.
     Finally, the final resolutions passed by the Committee for
Security and Cooperation in Europe (CSCE) at their summits in
Helsinki in 1975 and Vienna in 1989 contained the following
formulation:

All peoples have the right, in total freedom, when and how they
choose, to decide their domestic and foreign political status
without foreign intervention, and they are free to decide upon
their political, economic, social, and cultural development in
any way they desire. (VIII/2) 

     Thus, the most significant changes to the rights of peoples
had been set forth. For one thing, peoples which found themselves
in a state of colonial dependence or under foreign rule, but also
ethnic minorities as well, in so far as they are identified as
peoples, were, for the first time, given the status of subjects
of the rights of peoples, thus giving them the same rights which
states enjoy. And furthermore, the territory of that people was
granted a special status in relation to the sovereign areas of
the "administering" state. In the words of the Declaration of
Principles:

The area of a colony or any other sovereign area without
self-rule is, according to the Charter, sovereign territory
belonging to whomever administers it, clearly distinct and with a
different status; this distinct and different status, according
to the Charter, will remain in place until the people of the
colony of sovereign area without self-government are in
possession of their right to self-determination as provided for
in the Charter and, more importantly, its goals and foundations. 

     The rights of peoples are expressed in the duty of all
states to "refrain from any form of violence which...denies
peoples their right to self-determination, freedom, and
independence". The Declaration of Principles also insures all
peoples the right to "give assistance to and help maintain" any
resistance to such forms of violence. Furthermore, nothing is
said with regards to the form or means of this resistance, but
the goal and content of self-determination are dealt with in one
significant passage: 

     The founding of a sovereign and independent state, the free
association with an independent state, or the voluntary
integration into such a state or the creation of a new one by a
people are possibilities of freely determined political status or
the realization of the self-determination of a people. 
 This sentence clearly justifies a people's right to
secession. Even though UN General Assembly resolutions are
non-binding, they nonetheless affect the image and status of
states which suppress such rights.

     It is unmistakable that this development of rights was only
made possible by the pressure of decolonization struggles and the
expanding ranks of the UN after states which had recently gained
their independence became members. But it was also perfectly
clear at all times that the right to self-determination did not
just apply to peoples living under colonial dependence or foreign
rule, but rather to all peoples, even those seeking to gain an
independent state. This is especially true, not just of the many
nation states in Africa, but also in Europe as well.
     In any case, there are characteristic modifications in
content and degree for such non-colonial situations. Before
discussing that, however, two problems need to be clarified which
are relevant to the goal and instruments of the right to
self-determination, namely the competition between the right to
self-determination and the right to territorial integrity and
sovereignty, and also the status of liberation movements and the
right to use force.

III.

     a. In order to realize the right to self-determination or
even to separate from one state and form a new state or to
integrate into another state, the question arises as to what
possibilities are provided for under the fundamentals of
"territorial integrity" codified in Article 2 Section 4 of the UN
Charter. The Declaration of Principles deals with the conflict
between these two fundamental principles and arrives at the
following conclusion: 

     The above-mentioned statements [concerning the possibilities
for self-determination -ed.] are not to be interpreted as
allowing for or encouraging measures which could partially or
completely dissolve the territorial integrity or political unity
of sovereign and independent states which, in their conduct,
respect the above-mentioned fundamentals of equal rights and
self-determination for peoples and which possess a government
which represents the entire population of the region, regardless
of race, religion, or skin colour.
     All states must refrain from conduct which aims at the
partial or complete destruction of the national unity and
territorial integrity of another state or country.

     The first passage clearly refers to peoples in a sovereign
state and it denies them the right to separate from that state in
cases where their self-determination and equal rights are
guaranteed. In this instance, self-determination refers to the
classic areas of autonomy such as language, culture, religion,
and traditions, things which are necessary to maintain the
identity of a people. If these are protected in a multi-ethnic
state, then the principle of territorial integrity is given
priority above the right to self-determination in the form of
secession.
     Often times the opinion is expressed with regards to this
that all "secessionist and separationist aspirations by national
minorities are excluded from the general realm of the right to
self-determination".
     In Article 27 of the International Pact on Civil and
Political Rights of 1966, ethnic, religious, or language
minorities are only granted the right to their own culture, the
ability to practice their religion, and the right to speak their
own language. But the Kurdish people need not stay limited to
such a definition of minority status, even when the issue here is
only one part of Turkish territory.
     In some individual cases, it might be difficult to identify
language, ethnic, or religious minorities as peoples, especially
if the group only contains a few members or if the members are
scattered across a wide stretch of territory throught the whole
of the state. But if the people are of such a number which cannot
be overlooked, with a territorial concentration with respect to
the rest of the population which manifests their distinction - as
is the case with the Kurds in Turkey, who settled in Anatolia
earlier than the Turks did - then they are entitled to the right
of self-determination in accordance with all contemporary law
analyses. There can be no other conclusion if we examine the
following five examples of "peoples" which were differentiated by
Wilson's 14 Points between the two world wars:

1. Groups of minorities within a state who are ruled over by
another "people"; 

2. Ethnic minorities who don't have their own state and who live
in more than one different state;

3. Groups of minorities who consider themselves to be part of the
nation of a neighbouring state;

4. Peoples or nations who are forced by other influences to live
in different states; 

5. Peoples who are the majority in a territory yet who live under
foreign rule. 

     The Kurds in Turkey are part of group 2 listed above, since
they are an ethnic minority who don't have their own state and
who live in more than one different state. As a people they are
also part of group 5 listed above, since they have historically
always been under colonial rule.
     Such peoples can only be denied their right to
self-determination in the form of secession if they enjoy the
status of autonomy within an existing state. The fundamental
principle which guarantees all peoples the right to
self-determination is inalienable (ius cogens). The only doubts
concerning this right could be, for example, whether the claims
to autonomy should be expanded to a desire for secession or if
they should remain limited to the protection of cultural,
language, and religious freedoms. This must be decided depending
on the concrete circumstances.
     The second sentence in the quoted passage concerns
third-party states and it prohibits them from any activity which
might bring about the collapse of a state or aid in a secession.
This matter is already addressed by the general principle of non-
intervention and the only question here is what is meant by
supporting a people who are waging a legitimate struggle for
their (self-determination) independence. The UN and the OAU have
always rejected secessionist demands from peoples not under
colonial or foreign rule. The examples of Katanga, Biafra, and
Eritrea are proof of this. Behind this rejection lies the fear
that the entire state system in Africa might become destabilized
and splintered. To this must be added the consultations in San
Francisco, which at that time did not include secession in the
definition of self- determination. But this view changed over the
next few years, and the Declaration of Principles of 1970 granted
priority to secessionist demands over territorial integrity in
certain cases.
     The state practice of the Federal Republic of Germany of
recognizing the states which separated themselves from the Soviet
Union, as well as the early recognition granted to Croatia and
Slovenia, prove that there are situations where minority peoples
can be granted the right of self-determination even in the form
of secession. Such situations, according to UN commentator
Aureliu Christescu, arise, for example, when "peoples, areas, or
entities are joined together in ways which are damaging to
peoples". Karl Doehring recognizes a right to secession "when the
ethnic group is handled by the ruling state violence in such a
manner that there are clear and evident violations of human
rights, such as summary executions or unlimited prison detention
without trials, the tearing apart of families,
dispossession without consideration of minimum existence levels,
or the banning of a religion or language and the enforcement of
such bans with brutal means".
     A reference to Article 1 of the Declaration of Human Rights
of 1966, which included the right to self-determination in with
other forms of human rights protection, supports this
interpretation of the right to secession as being the ultima
ratio of protection in the face of massive human rights abuses. 

     b. There is no shortage of updates, reports, and
documentations from internationally recognized human rights
organizations, such as Amnesty International, medico
international, Human Rights Watch, etc., concerning the massive
yearly balance of human rights abuses committed by the Turkish
security forces in the Kurdish regions of Turkey. These abuses
far exceed what is allowed even under the suspension of various
human rights by the state of emergency which has been almost
continually in place since 1979. The reports unanimously document
torture, murder, state terror, and oppression, all of which are
aimed at destroying the ethnic identity of the Kurdish people.
For example, one article in the September 1990 issue of Helsinki
Watch Report, published by the American human rights organization
Human Rights Watch, is entitled "Destroying Ethnic Identity: The
Kurds of Turkey". Although these politics have a 70-year history,
this text will only document examples from recent history which
can be readily found in common publications.
     One of the most effective means of destroying an ethnic
identity is forced resettlement and the depopulation and
destruction of Kurdish villages. This aims to create security
zones, as the Turkish government decreed on 13 March 1981 with
law Nr. 8/2543, thereby establishing such a zone along the border
with Iraq and Syria. To do this, villages and settlements were
depopulated, forests and wooded areas were made off-limits,
strategic villages were established, and forced resettlement was
carried out on a massive scale. These last two were designed to
Turkify the traditionally Kurdish settlement areas. The human
rights organization medico international reported in November
1990 that only 9 out 37 villages in Sirnak province still existed
and that 100,000 people had been forcibly evacuated.
     Even according to reports in the Turkish press - in the
Turkish newspaper "Cumhuriyet", for example - a total of 9
million people have been affected by forced resettlement. There
has also been a staggering number of villages destroyed,
according to figures presented by the Kurdistan Komitee to the
human rights commission of the 47th and 48th General Assembly
sessions of the UN in 1991 and 1992. From 1984-1989, a total of
2,500 villages were destroyed. This number is realistic,
considering that 300 villages were destroyed in 1993 and 100 in
the first quarter of 1994. On account of the war situation in
southeastern Anatolia, more exact figures are impossible to come
by. But the picture of military conduct in the region described
by the Kurdistan Komitee to the human rights commission speaks
for itself:

It is the Turkish army which is carrying out these operations.
They prevent people from entering or leaving the villages and
they exert pressure on all the villagers to make them afraid and
to force them to become village guards. The men are hit and
tortured, the women are mistreated and sexually assaulted in
front of the eyes of their own children. The houses are wrecked,
the fields are burned, the livestock are killed, and after the
village has been evacuated it is planted with mines and turned
into a no man's land. 

     According to recent reports, there is nothing whatsoever to
indicate that the Turkish government is planning to alter these
politics in the future. Under such conditions, the right to
self-determination can only be enjoyed through the creation of a
separate Kurdish state. This form of the right to
self-determination is admissable under contemporary principles of
the rights of oppressed peoples. 

IV.

     Another question to be examined is what means are allowed in
seeking and pushing through the peoples' right to
self-determination. More specifically, whether the ban on
violence in Article 2 Section 4 of the UN Charter is applicable
in such situations and whether the accusations of terrorism are
justified.
     It will take some time before the UN General Assembly
expresses any opinion regarding the means of liberation struggles
and the question of violence, but a definitive position on the
matter was clearly expressed in public some time ago. First, the
reality of the liberation struggle and its protagonists, the
liberation movements, must be examined to arrive at their legal
status in relation to the colonial power. In 1972, on the
recommendation of the OAU and in consultation with this body, the
liberation movements in Angola, Cape Verde, Guinea Bissau, and
Mozambique were recognized as the "authentic representatives of
the genuine aspirations of the peoples of those areas". In the
following years, more were added, including: the liberation
movements in Namibia (SWAPO), South Africa (ANC and PAC), and, in
consultation with the Arab League, the PLO. Therefore, a
formulation was now presented that these were the authentic
representatives of the people themselves. The liberation
movements were granted observer status in the United Nations and
from 1974-1977 they were invited to attend important
international conferences, such as the UN Secretariat Conference
and the Vienna Conference concerning the humanitarian rights of
peoples in armed conflicts, and they were allowed to sign the
conventions.
     What is still disputed, however, is what rights the
liberation movements are to be afforded if they have not yet been
recognized by the OAU or the Arab League or the UN. The basis of
such recognition is a people's right to self-determination and
the conviction that the liberation movements represent the
people, in other words the demands they formulate and represent
are legitimate and accepted in their representation. It goes
without saying that such movements must have an apparatus which
is capable of establishing the necessary contacts and diplomatic
relations. Another important factor is the fact that the
organization is involved in an armed struggle in which neither
the intensity nor the control of territory play any role. In any
case, international status for the subject of the rights of
peoples carries with it several rights and responsibilities,
which stem from the goal of founding an independent state. In
other words, liberation organizations have control over just a
limited status as the subject of the rights of people, something
which is later taken away from the state and granted to them.
Only when a state is actually founded will this status be
expanded, making the subject of the rights of peoples a sovereign
state. It is debatable whether the recognition of a liberation
movement by the UN has a constructive or merely a declaratory
character.
     Recognition, however, brings with it several advantages in
international relations. These include protection agauestion has been 
intensively discussed during consultations
and the resulting conclusions have varied.
     Recent history has shown that liberation movements which
meet the general criteria for recognition usually still have not
been granted recognition. When the OAU refused to recognize the
Eritrean liberation movement, this was motivated by the fears of
OAU members that this movement could set a dangerous precedent of
a successful secession and thereby have an effect on other
multi-ethnic states in Africa. Such fears also explain why some
delegations during the Geneva consultations on the additional
protocols refused to recognize secessionist wars as international
conflicts. Pressure from Morocco on the OAU played a
decisive role in granting recognition to POLISARIO in Spanish
West Sahara. The previous failure to recognize the movement no
doubt hindered liberation initiatives and prolonged the military
conflict. But there is no doubt that this conflict was covered by
the First Protocol of 12 December 1977 in Article 1 Section 4: 
The situations named in Section 3 also include armed conflicts in
which peoples are fighting against colonial rule or foreign
occupation, or against a racist regime, in order to gain their
right to self- determination, as is guaranteed in the Charter of
the United Nations and in the Declaration of the Fundamentals of
the Rights of Peoples concerning friendly relations and
cooperation between states in accordance with the Charter of the
United Nations.
     The international character of these armed conflicts is just
as dependent upon the recognition of the liberation movement by
the UN as is the right of that movement to issue a unilateral
declaration of its responsibilities under the Protocol, as is
stated in Article 96 Section 3 of the First Protocol:

The organ which represents a people and which is involved in an
armed conflict against a higher party in accordance with Article
1 Section 4 is obliged to adhere to this Protocol during the
conflict in so far as it is a unilateral declaration concerning
the agreement. After entering into this agreement, the following
become applicable during the conflict:

a) The agreement and this Protocol become applicable without
exception for entire organ in its role as a party involved in the
conflict;

b) The said organ takes on the same rights and responsibilities
as the higher party in the agreement and this Protocol; and 

c) The agreement and this Protocol are equally applicable to all
parties involved in the conflict. 

     Regardless of whether these prescriptions are an indication
for or against an original, albeit partial, subjectivity of
liberation movements with respect to the rights of peoples, the
liberation movement can apply the fundamental rules of the
humanitarian rights of peoples for its fighters by making a
unilateral declaration of combatant status. This is significant
with regard to making distinctions between guerrilla fighters and
civilians, for which a compromise is reached in Article 44 of the
First Protocol, and for the protection from violence, repression,
etc. for guerrilla fighters in captivity. 

V.

     With the inclusion of liberation struggles under the rules
of the humanitarian rights of peoples in the First Protocol,
another contentious discussion was raised: The question of the
use of force. If a total ban on the use or threatened use of
force by states is applicable under Article 2.4 of the Charter of
the United Nations, then according to general opinion an
exception of this ban exists today in the case of liberation
movements.
     The UN General Assembly had a long and difficult time
dealing with the recognition of this exception, especially
because the Western states - the majority of the old colonial
powers - strictly rejected the right by liberation movements to
use force. In session XXV in 1970, the UN General Assembly for
the first time spoke of "the inherent right of all colonized
peoples...to use all the necessary means at their disposal to
struggle against the colonial power, which oppresses their
striving for freedom and independence".
     Three years later, an explicit recognition of the right to
wage armed struggle was passed by the UN. A series of resolutions
passed by the UN General Assembly legitimized the use of force in
armed struggle. The most significant of these resolutions was
passed in December 1973, despite resistance from the 13 Western
states. Entitled "The Fundamental Principles Of The Legal 
Statusuaranteeing independence to colonized nations
and peoples, and such attempts pose a threat to international
peace and security. 

     One year later, the UN General Assembly passed a measure
during consultations without a vote which defined aggression, and
Article 7 clearly absolves the liberation struggle of the notion
of aggression:

No determination of this definition, in particular Article 3, can
in any way influence the right to self-determination, freedom,
and independence, as spelled out in the Charter, of those who
have been violently denied this right, in particular peoples
living under colonial, racist, or some other form of foreign
rule, in accordance with the fundamentals of the rights of
peoples and the friendly relations and cooperation between states
in accordance with the Charter of the United Nations; nor can it
affect the right of these peoples to struggle toward these ends
and to seek support in accordance with the fundamentals of the
Charter and in accordance with the above-mentioned declaration.
Even if, as was stated earlier, UN General Assembly
resolutions are not legally binding, they still give a general
indication of the development of the rights of peoples, based on
the practics of states and the degree to which they adhere to the
law. The resolutions were all passed with by a sizeable majority
of the member states. In addition to these, there have been
several more resolutions which have called upon states to provide
"all the moral and material support possible" to peoples
struggling to achieve their rights to self-determination and
independence. From this, it is possible to conclude that the
overwhelming majority of states consider armed struggle by
liberation movements to be legitimate and in accordance with the
rights of peoples. But this position is put in danger when it
becomes mixed up with discussions which seek to distinguish
international terrorism from the rights of peoples. For example,
up until very recently, the media described the PLO as a
terrorist organization, although they had already been recognized
in the 1970s as a liberation movement and, as the UN's official
representative of the Palestinian people, the organization had
been granted observer status in the UN. The PKK must also
confront accusations that it is a terrorist organization or a
terrorist association.

     Since the beginning of the 1970s, when the UN began to deal
with the question of terrorism more seriously after a series of
hostage takings, hijackings, and attacks on civilians, there has
been a real danger that means of struggle provided for in war
under the rights of peoples might be disqualified as terrorism if
it wasn't possible to draw a line of distinction between these
two forms of violence. Although the UN, by means of an ad hoc
commission, managed to pass a resolution spelling out a clear
difference between terrorism and liberation struggle, it's no
surprise that the resolution received far more negative votes and
abstentions than did the resolution passed one year later
concerning the question of violence employed by liberation
movements. One year later, the ad hoc commission presented the
majority opinion concerning the difference between the legitimate
violence of national liberation movements and
terrorist violence with the following words:

Peoples which are struggling to free themselves from foreign
oppression and exploitation have the right to use all means at
their disposal, including violence. It should be noted that the
commission does not consider all acts of violence, regardless of
their aims or motivations, in the general concenpt of
international terrorism. Acts committed by people who are
citizens of states which are at war and who are waging resistance
against the aggressor in an occupied territory or who are
struggling for their national liberation, cannot be considered
acts of international terrorism. In contrast to this, however,
acts carried out by a single state against a people with the aim
of crushing their national liberation movement and breaking their
resistance to the occupying force are genuine manifestations of
international terrorism in its truest sense. 

    umanitarian rights of peopes established by
the Hague and Geneva conventions, is permissible and has nothing
whatsoever to do with terrorism.
     But that also means that violent acts which exceed these
boundaries, such as the hijacking of civilian airliners, the
assasination of civilians, and other crimes as defined in
international agreements are not legitimatized by the national
liberation struggle. Such acts are illegal and punishible, even
if they are carried out by a recognized liberation movement. On
the other hand, individual acts of terror, which are always
possible within liberation movements, do not criminalize the
liberation movement as a whole, as the history of the PLO will
prove. In should be noted, however, that acts of terror are not
solely the speciality of liberation movements, but rather they
also have their origins in state activities.
     The United Nations Charter makes only two exceptions to the
absolute ban on violence: the right to self-defence in Article 51
and the necessary measures of the UN Security Council in Article
42. The further exceptions in favor of the liberation movements
represent a significant further development of the rights of
peoples, and the launch of "armed conflicts in which people are
strugglng to exercise their right to self-determination against
colonial rule, foreign occupation, or a racist regime" (Article 1
Section 4 of the First Protocol) has been taken up in the
regulations regarding the humanitarian rights of peoples for
international wars and conflicts.

VI.

     The question of whether the war-like conflict between the
Turkish military and the PKK is an international conflict in
accordance with the First Protocol is dependent on two factors: 

a) It must be an armed conflict of a certain intensity and
duration; and 

b) The organization which is waging the struggle against the
government must also be able to represent the people in whose
name they are struggling and it must possess an organizational
structure with a responsible leadership. 

     Earlier opinions which required that the fighting movement
have control over significant amounts of territory and be
recognized by a regional international body are no longer
accepted today. In any case, some commentaries recognize the
tendency to only strictly apply the First Protocol to liberation
struggles against colonial rule, foreign occupation, and racist
regimes, in order to make the use of Article 1.4 of the First
Protocol historicaly irrelevant following the resolution of the
conflicts in South Africa and Palestine. But other authors
correctly point out that it is wrong to limit the regulations to
such classical forms of colonial or occupation conflicts. These
should apply not only to conflicts in the closing epoch of
classical colonial confrontations, but to all conflicts where
people are trying to exercise their right to self-determination.
The decisive demarcation are not the three case examples, but
rather the exertion of the right to self-determination, without
which the three examples could not be equated with international
conflicts. Only this interpretation can secure the applicability
of the humanitarian rights of peoples for future conflicts whose
roots might lie in the colonial regime but which might not be
anti-colonial struggles in the classical sense. The armed
confrontation between the Turkish military and the PKK is an
example of this kind of war. 

     a) The mountainous region settled by the Kurds has been the
boundary and border area of various zones of domination for
centuries, between which the Kurdish dynasties were able to exist
in relative independence. It was only as the Ottoman Empire began
to decline at the end of the 19th century that rivalries between
Kurdish princes started to intensify, thus leading to a series of
disturbances and wars. With the collapse of the Ottoman Empire
after the First World War, the victorious European powers began
to carve up the Near East. In the Treaty of Svres in 1920 and
the Treaty of Lausanne in 1923, they divided Kurdistan into four
parts wo history is important to fully understand
the launching of the armed struggle by the PKK in the late-70s
and early-80s and not see it as a purely new phenomenon without
any historical basis. Not simply because the struggle has great
similarities to the uprisings of the pre-war era and the 19th
century, but rather there are deep historical roots to the
treatment of the Kurds by the colonial powers after the fall of
the Ottoman Empire when the Near East was subjected to colonial
division - in this sense, this conflict is also a late-colonial
conflict.
     Since its founding in 1978, the Kurdistan Workers Party
(PKK) has propagated the use of armed struggle as a means of
liberation against the Turkish state and also against large land
owners in the region. Since 1984, it is fair to say that there
has been a systematic and enduring military confrontation between
the Turkish military and Liberation Units of Kurdistan (HRK),
founded by the PKK in 1984, and the National Liberation Front of
Kurdistan (ERNK), founded by the PKK in 1985. The fighting was
only interrupted once, and that was after the PKK began a
unilateral ceasefire in March 1993, but this didn't last long
since the Turkish military never halted its attacks. Whereas the
Kurdish fighters up until 1993 were generally trained outside the
borders of Turkey, in the Bekaa Valley or in Iraq, today the
guerrilla units constantly remain in the Turkish- occupied
regions of Kurdistan and they control vast sections of territory
there. The number of guerrilla fighters is estimated at 30,000.
The almost daily reports in the German media about the fighting
in the Kurdish regions of Turkey leave no doubts whatsoever that
the country is in a long-lasting and very serious war situation:

According to sources at the United Nations (UN), more than 4,600
Kurds have fled into northern Iraq to escape the Turkish army's
offensive against Kurdish separatists in Turkey. A representative
of the UN's refugee assistance organization the UNHCR stated that
his organzation is providing assiatnce to 4,637 Kurds in northern
Iraq, including 2,638 children.

On account of the most recent military offensive in the Kurdish
section of Turkey and massive bombardments, 35,000 people have
fled from there into northern Iraq over the last few days ... The
army systematically destroyed another 84 villages in the region,
killing 10 people, and another 36 people are missing.

     Unfortunately, there can be no doubt that this is an "an
armed conflict of a certain intensity and duration", a fact which
the Turkish government does not deny. 

     b) It may be more difficult to judge how representative of
the people the PKK really is, and to what degree the PKK
represents the political goals of the Kurdish people with its
military struggle. There are contradictory estimations of whether
the Kurds as a whole want to separate from Turkey and found their
own state. But this question loses much of its centrality and
sharpness, since the PKK has since made its demand for an
independent state more relative and has stated that a politcal
solution is possible within the confines of a confederation with
Turkey.
     Charges of separatism are primarily used as propaganda by
the Turkish government to distract attention away from the actual
goals of the struggle, namely self- determination, human rights,
and cultural and social autonomy. There are differing estimations
as to how deeply anchored in the people the PKK really is, and
whether or not it is the legitimate representative of the Kurdish
people and their right to self-determination. This is partly
because, in the early years of the armed struggle, they were not
just fighting against the Tururgeois, petit
bourbeois, and reformist bourgeois nationalists". These
organizations responded by calling the PKK a terrorist
organization. The PKK then underwent several self-criticisms, for
example during its First Party Congress in 1981, and halted its
armed attacks against other Kurdish organizations.
     But the confrontations continued until the late-80s. There
had been attempts at forming coalitions following the military
coup in 1980 in order to counteract the increasing repression.
But these attempts all failed within a short period of time. A
turning point was reached, however, following the March 1993
ceasefire when the PKK formed relations with many organizations.
One preminilary result of this was the April 1994 formation of
the "Committee for the Formulation of the Front".
     The heavy inner-Kurdish confrontations, however, cannot
change the fact that the PKK is the only Kurdish organization
which has been able to increase its mass base over the years and
build up its organizational structure. Even the Turkish side
admits that the PKK is the organization with by far the greatest
support amongst the Kurdish population.
     Whether due to this long period of the uncompromising demand
for an independent state of Kurdistan, the organzation of the
armed struggle, or the increasing violence and repression by the
Turkish military, which has become an occupying force in the
region, the fact is that the actions of the PKK could not have
been sustained if they did not have the active support of the
population. Even though media coverage of guerrilla actions is
sporadic and incomplete, reports concerning the Turkish
military's intervention, and in particular their latest offensive
which is aimed seemingly at random at villages and civilians,
have proven the seemingly unbroken strength of the guerrilla
movement and their anchoring in the population. Lately they have
carried out actions even as far as the furthest regions of the
north west to Tunceli (Dersim), the north east to Mt. Ararat, and
in the south west to Kilis in Gasiantep province. The legitimacy
of the armed struggle has often been recognized by other Kurdish
organizations. The peridoical "2000'e dogru" reported in issue
Nr. 6 dated 12 December 1987 that officials in Ankara feel that
"the guerrilla war in the east is the most serious threat which
Turkey has faced in the last 50 years". That is a clear
expression of the fact that the guerrillas are anchored in the
Kurdish population. Finally, the population recognize the fact
that it is due to the activities of the PKK, not some "terrorist
organization", that the situation of the Kurds has become an
internationally-recognized problem and that the issue of freedom
for the Kurdish people has been taken seriously. No other
organization could have achieved this. Even the German press has
written: "But the Kurds won't be quick to abandon their struggle
for freedom. There are signs to indicate that the Kurdish
question will take the place of the Palestine conflict in the
next century."
     The most recent round of local elections in Turkey, held on
27 March 1994, have indirectly confirmed this. Depite compulsory
voting, there was a wide-spread voting boycott in the Kurdish
part of Turkey, as this author himself witnessed. The levels were
between 40% of all eligible voters in the city of Batman, for
example, and 58% in Diyarbakir, the biggest city in southeastern
Anatolia, and 79% in Dersim province. The only party which
directly represented the interest of the Kurds, the Democracy
Party (DEP), pulled out of the elections shortly before they were
scheduled to take place on account of threats, arrests, and the
murder of several of its delegates and functionaries. Such a
strong and demonstrative voting boycott can only be attributed to
the support of the PKK, which, although illegal, is the only
force which enjoys the provinces of Diyarbakir, Sirnak, Mardin, BingOl,
Mus, Siirt, Hakkari, Bitlis, Ufra, and Batman stated that they
were in opposition to the state. A total of 63% stated that they
were fundamentally pro-Kurdish, 9% were more or less pro-Kurdish,
and 15% were undecided. Only 6% of the remaining 13% indicated
that they would vote for the Welfare Party (RP), and 7%
identified with other parties.
     Foreign observers who are well-informed about the situation
in Kurdistan estimate that approximately 80% of the Kurdish
population would vote for the PKK. The chairman of the Human
Rights Committee of Britain's House of Lords also offered his
support to the PKK in a parliamentary debate on 29 November 1993: 
It is therefore incorrect for the Foreign Office, and indeed the
State Department in the United States, to regard the PKK as
merely a terrorist organization. In the absence of an
internationally-agreed definition of what constitutes a people
within the meanings of the covenants, the claim by the Kurds to
exercise the right of self-determination cannot be established
legally. However, they possess all the attributes of a people -
language, culture, history, and institutions - and the clear wish
to be independent. The majority of the Kurds undoubtedly support
the PKK, as the Parliamentary Human Rights Group found in three
visits to the region over the past 18 months. That is not
necessarily because the people share the Marxist ideology of the
PKK or look with favour on the attacks that it mounts on
non-combatants. They see the PKK as the only means of achieving
their liberation from Turkish oppression. 
     In a 1992 report on Turkish-Kurdistan issued by the UN
Sub-Commission on the Prevention of Discrimination and the
Protection of Minorities, several international voices were
quoted which attribute popular support for the politics of the
PKK and in particular their anchoring in the lower- and
peasant-classes, as well as having influence in all aspects of
village life.
     Finally, there is no doubt that the PKK possesses an
effective organizational structure and a responsible leadersip
under chairman Abdullah Ocalan, who should be allowed to
participate in international diplomatic missions, in accordance
with the statement of responsibilities listed in Article 96
Section 3 of the First Protocol, and to whom Switzerland, which
maintains the Protocols, could turn in order "to apply the Accord
and the Protocol with respect to this conflict".
     When all of this information and all of these reports are
looked at together, the conclusion must be reached that the PKK
is, without a doubt, an "organ which represents the people" in
accordance with Article 96 Section 3 of the First Protocol, and
that the war-like conftontation between the Turkish military and
the PKK is an international conflict in accordance with Article 1
Section 4 of the First Protocol. Although both sides of the
conflict have not yet become signatories to the First Protocol,
nor have they issued the necessary declarations as called for in
Article 96 Section 3, they must be accepted as parties in an
international conflict, which would exclude any further
references to the PKK as being a "terrorist organization". It is
also an unacceptable misrepresentation of cause and effect to
imply that the PKK disrupts the peaceful coexistence of the Kurds
and Turks, both in Turkey and in Germany, and to imply that the
Kurdish resistance is opposed to the notion of the peaceful
coexistence of peoples. This is much more true with respect to
the Turkish government and military, who have systematically
denied the Kurdish people their right to self-determination and
their human rights, and they are the ones responsible for
violence and war. The resistance, on the other hand, is
legitimized in its use of violence according to modern
interpretations of the rights of peoples. It must, ho Amnesty International
have repeatedly accused of human rights abuses. 

     c) Even if it's not possible to classify the war in
Turkish-Kurdistan as an international conflict and the PKK as a
liberation movement according to Article 1 Section 4 of the First
Protocol, nonetheless the Second Protocol regarding the
protection of the victims of armed conflicts must be applied.
Bearing in mind the development of the war in southeastern
Anatolia over the last few years, there is no doubt that this is
a regular armed conflict as described in Article 1 Section 1 of
the Second Protocol, not just a "domestic disturbance and
tensions such as tumults, with isolated acts of violence and
other similar conduct" as described in Article 1 Section 2 of the
Second Protocol. The massive presence of the Turkish military in
the region alone far exceeds the force which would be required
and deployed to put down tumults, etc. On the other hand, there
is no doubt that the PKK - if not quite a liberation movement -
in any case is certainly an "organized armed group" as described
in Article 1 Section 1 of the Second Protocol, "under a
responsible leadership and controlling an area of territory
beloning to the higher party, and able to carry out continued and
coordinated attacks and adhere to this Protocol".
     The application of the Second Protocol does not contradict
Article 3, which respects the domestic sovereignty of all states
and grants all states a "legal means" of maintaining the public
order and defending the national unity and territorial integrity
of the state. The undisputed people's right to sovereignty still
must take into account the right to self-determination and the
human rights of the peoples living within the boundaries of that
state. In this case, the "legal means" must also include the
recognition of the right to freedom, which is what the PKK is
fighting for. As was already cited, the PKK has repeatedly stated
in the last few years that its goal is the right to freedom, not
a separate state: if the Kurds' cultural and social
self-determination were actually respected and guaranteed in
Turkey, then the demand for their own state would be excessive.
Furthermore, the Protocol reaffirms the general ban on
third-party states interfering in a civil war. Article 3 Section
2 states that third-party states are prohibited from "directly or
indirectly intervening in an armed conflict for whatever reason",
and this certainly would include arms shipments.

VII.

     It can be concluded that the Turkish-Kurdish war in
southeastern Anatolia is an international conflict under Article
1 Section 4 of the First Protocol. The PKK is the legitimate
representative of the Kurdish people in the struggle to achieve
self- determination and to defend human rights. Apart from their
illegal attacks on civilians and civilian objects, their struggle
against the Turkish military is legitimate and in accordance with
the principles of the rights of peoples. Therefore, the PKK is
not a terrorist organization nor does its struggle contradict the
notion of the peaceful coexistence of peoples. Rather it is the
Turkish government which is responsible for "disrupting the
peaceful coexistence between the Kurds and the Turks" because of
its refusal to recognize the Kurds' right to self-determination.
Even if it's not possible to classify this war as an
international conflict, it is certainly at least an armed
conflict subject to the regulations stated in the Second
Protocol. In this case, it is impossible to refer to the PKK as a
terrorist organization whose struggle contradicts the notion of
the peaceful coexistence of peoples. As an "organized armed
group", the PKK has the right to demand that third-party states
remain neutral in its armed conflict with the Turkish state. The
PKK's demands for self-determination and the protection of human
rights are legitimate and in accordance with the principles of
the rights of peoples, and the Turkish government is
systematically denying them these rights and is doing so by
force. It is not the Kurdish resistance which is contradicting
the notion of mutual understanding between peoples, rather it is
the Turkish government and the Turkish military who are
disturbing the peaceful coexistence between the Kurds and the
Turks.

Dr. Norman Paech
Hamburg, 7 June 1994

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