The Kurds constitute the largest stateless nation in the contemporary world (Vali, 1998). They are the second largest ethnic group in Iraq and Turkey and the third largest group in Iran (O’Leary, 2002). Kurds form a distinct group of people who have inhabited the Middle East for as long as there have been written records (ibid). Throughout the 20th century their struggles for political and cultural autonomy were opposed by the regional countries and the Kurds were always actively used in regional politics.
Ethnically, the Kurds are most closely related in culture and language to the Iranians in Iran; the Tajiks and Pashtuns of Afghanistan, Tajikistan, and Pakistan; and the Baluchis in Northern Pakistan (Hennerbichler, 2012). Kurds have a long history of struggle for achieving the autonomy, first, from Saddam Hussein’s government back in 1974-1975 and later again after the Gulf War in 1991, the Iraqi Kurds rebelled against the government. In both occasions, the Kurds could not succeed and many started fleeing from northern Iraq resulted in the largest Kurdish refugees worldwide (Van Bruinessen, 2005). These events initiated the American-led Operation Provide Comfort, the aim of which was to provide safety for Kurds (Gomes, 2016). Under the Operation Provide Comfort umbrella, allied western troops on the ground persuaded the Kurds to descend from the mountains into the plains, where they were protected from Iraqi government. Among other measures, the Operation Provide Comfort ensured the establishment of a no-fly zone over a part of Kurdish homelands in northern Iraq. The no-fly zone was regularly patrolled by aircraft from the United States, Great Britain, France and Turkey (O’Leary, 2002).
However, the Kurds upheavals did not stop by then, and since the establishment of the northern no-fly zone, the internal power-sharing turbulence occurred between Patriotic Union of Kurdistan (PUK), Iraqi Kurdish political party, and more traditional Kurdish political party, Kurdistan Democratic Party (KDP) (Gunter, 1996). The inter-Kurdish civil war broke out in 1994 and each of the two parties sided with neighbouring countries in order to defeat its adversary. The KDP gradually lost ground to the PUK and finally appealed to the Iraqi government of Saddam Hussein for support. In 1996, the KDP, with Iraqi troops behind them, quickly took over the major towns and cities in the Kurdish area of Iraq which had been under the control of the PUK (ibid). In 1998, the PUK and KDP signed the Washington Agreement, ending the civil war and started to cohabit in power sharing relationship (Gunter, 1996). Despite the agreement, the parties could not manage to reunite their two separate administrations or to repatriate the thousands of citizens displaced during the fighting (Rogg and Rimscha, 2007). Though, currently the Kurdistan region is formally governed by the state institutions making up the Kurdistan Regional Government in Iraq, the region has since become divided into a north-western part led by the Kurdish Democratic Party (KDP) under Massoud Barzani and a south-eastern part led by the Patriotic Union of Kurdistan (PUK) under Jalal Talabani (ibid).
The question of statehood
For almost a century, the Middle East’s Kurdish population has found itself divided amongst the nation-states of Turkey, Iraq, Iran, and Syria. All these regimes have often been hostile to any forms of Kurdish political activism (Bajalan, 2019) and any threat to their territorial integrity (Gunter, 2004). The post-Saddam Iraq have accepted the current status quo of Kurdish self-rule. The new Iraqi constitution, adopted by a national referendum on 15 October 2005, recognizes Kurdistan as a federal region with its own institutions (regional government, parliament, presidency and internal security forces).
The modern history of the Kurdistan region is greatly impacted by the dissolution of the Ottoman Empire and further processes of state formation. While countries in Europe and the Middle east started to form independent states after dissolution, the status and the potential of the Kurds to establish an independent state were relatively weak. Thus, when the Ottoman Empire made way for states through the Treaties of Sevres (1920) and Lausanne (1923), Kurds found themselves divided between Turkey, Syria and Iraq (Joost Jongerden, 2019).
The 1920 Treaty of Sèvres, one of the post World War I agreements which dismembered the Ottoman empire and created the modern states of Iraq, Syria, and Kuwait, among others – offered hope for a Kurdish state (Karvounarakis, 2000). The Treaty of Sèvres was concluded between the allied powers and the Ottoman administration in Istanbul and contained two articles pertaining to the future of the Kurds. Particularly, article 63 tasked the commission made up of British, French, and Italian representatives to draft the scheme of local autonomy for the predominantly Kurdish areas lying east of the Euphrates. Article 64, in turn, stipulated that the Kurdish peoples were entitled to address to the Council of the League of Nations showing that the majority of population desires independence from Turkey (Bajalan, 2019).
Yet, despite this recognition, the pathway to Kurdish statehood outlined at Sèvres resulted to nothing. Three years later, on 24 July 1923, Sèvres was superseded by the Treaty of Lausanne, an agreement that recognized Turkey’s new Ankara-based ‘nationalist’ government (ibid). This new treaty contained no direct reference to Kurds statehood and can be regarded as the lost opportunity for Kurds to secure their statehood. In addition, the British decided to attach Kurdish vilayet of Mosul to Iraq because of its vast oil resources (Gunter, 2003). In a nutshell, the Lausanne Treaty formalized the de facto division of Kurdish-inhabited lands among Turkey, Iraq and Syria (Othman Ali., 1997). It might be concluded, that the British government’s termination of the Treaty of Sèvres proved decisive in dividing Kurdistan. Ultimately, Kurdish statehood was sacrificed and the Allied Powers decided the fate of the peoples in the Middle East.
The right to self-determination
The unfulfilled promise set the stage for the Kurds’ current dilemma of statehood. In modern times, Syria, Turkey and Iraq have all tried to dilute Kurdish claims to a homeland through the massive relocation programs (Klein, 2009). In 2017, the Kurdistan region of Iraq held independence referendum. 92.73% of eligible voters from the Duhok, Erbil, Sulaymaniyah, Halabja and KRI-controlled areas of the Kirkuk, Diyala and Nineveh voted ‘yes’ to the question: ‘Do you want the Kurdistan Region and the Kurdistani areas outside the administration of the Region to become an independent state?’ (O’Driscoll and Baser, 2019).
However, this referendum brought no new reality on the ground. The international community still remains silent when it comes to supporting for the self-determination of Iraq’s Kurdish community. In international law, one of the main vehicles by which communities have achieved statehood in the post-World War II era is self-determination. Self-determination is a principle of international law which posits that specific groups called “peoples” have the right to auto-determine their political fate (Margalit and Raz, 1990). The right to self-determination entails self-governance for peoples and the idea that every people should have a government representative of its interests. The principle of self-determination can be traced back to the end of World War I, when the losing powers, Germany, Austria-Hungary, and the Ottoman Empire, were stripped of their colonies and when several new states were created out of the territory of these former empires (Brilmayer, 1991). Two United Nations’ declarations, in addition to the United Nations Charter itself, have addressed the issue of self-determination—the 1960 Declaration on the Granting of Independence to Colonial Countries and the 1970 Friendly Relations Declaration. Both declarations, however, envisioned self-determination leading to secession as a matter of only within the decolonization paradigm.
After World War II, self-determination has been widely applied as a right of peoples subject to colonial rule to pursue and achieve full political independence (Hannum, 1993). The international community agrees that the principle of self-determination applies squarely within the decolonization paradigm. When it comes to non-decolonization context, the international community does have an ambiguous position. For instance, Peoples who do not fall into the category of colonized or oppressed groups may exercise their right to self-determination through internal means, such as free association and autonomy. Peoples who are oppressed or colonized, however, have the right to external self-determination, which they may exercise through secession from their mother state. Thus, the application of right of self-determination has gained a binary form (Senaratne, 2013). The precedent of internal self-determination or unilaterally declared independence exist in recent history, when the international community unanimously recognized the sovereignty of Kosovar Albanians and its secession from Serbia in 2008 but avoiding to refer to the issues of self-determination or secession (Ker-Lindsay, 2013). It needs to be mentioned, that Kosovo’s independence is regarded as an exceptional case which does not constitute any sort of precedent in international law. Yet, this precedent exists and it has been relied upon in the rhetoric of other independence-seeking groups, in Catalonia, South Ossetia and Abkhazia, and by Russia, to justify its annexation of Crimea (Rotaru and Troncotă, 2017).
Conclusion
Putting aside Kosovo’s case, the application of contemporary law on self-determination to the Kurds is unclear. Whether the Kurds are entitled for the internal self-determination is ongoing issue (Falk,1993). According to the international law, internal self-determination can be recognized legitimate only if accepting that the Kurds’ rights had been oppressed. The latter might be the case, considering that the Kurds suffered years of oppression under the Saddam Hussein regime. Kurds have been subject to repressions in Tukey as well. Since World War I, Kurds in Turkey have been the victims of persistent assaults on their ethnic, cultural, religious identity and economic and political status by successive Turkish governments. What’s more, Turkey had been almost four decade long conflict with Kurdistan Workers’ Party (PKK) recognized as a terrorist organization by Turkey, the U.S and the EU. Yet, even if recognizing the oppression of Kurds’ rights, the Kurds’ determination to independent state is still unrealistic in a sense of achieving internal, regional and international support for the self-determination.
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By Nino Zotikishvili: The European Institute for International Law and International Relations.
