Who are the Kurdish people?

The Kurdish people have a cultural identity distinct from their Arabic-speaking neighbours. ‘Kurd’ itself, historically, was not an ethnic grouping but rather ‘a general term meaning shepherd.’[1] Of course, since then the term has evolved to refer to a people populating regions of Iran, Iraq, Syria and Turkey, and linked by a common language and religion.

Despite being natives of the Middle East, where dialects of Arabic remain the most widely spoken languages, the Kurdish people primarily speak Kurdish languages (Kurmanji, Sorani and Southern Kurdish) or Zaza-Gorani languages which are unique to the North-Western Iranian region.[2] Unlike the majority of Iranians and Iraqis, however, most Kurdish people are adherents of the Sunni sub-sect of Islam, as opposed to the less practised Shia branch of Islam.[3] While Sunni Muslims believe that the prophet Muhammad did not designate a successor and that his father-in-law Abu Bakr was rightly elected as the first caliph, Shia Muslims believe that Muhammad named his cousin Ali ibn Abi Talib as his successor.[4] From this initial divergence two separate schools of practice emerged, morphing into a contentious debate over which is the ‘right’ form of Islam.

The Kurdish Institute of Paris estimates that as of 2016, there were between 36.4 and 45.6 million Kurds living in the world, including significant diaspora communities in Europe and the former USSR. In Turkey, Iran, Iraq and Syria, this number is between 36 and 44.1 million.[5]

Map produced by the Kurdish Institute of Paris

Were a Kurdish state to be recognised, its territory would likely span over the current borders of all four countries and would consist of a sizeable portion of modern Turkey, where between 15 and 20 million Kurds live.[6] This fear of secession is potentially driving Turkey’s recent excursion into Northern Syria.

However, the Kurds have also been persecuted historically. In the 1920 Treaty of Sevres, Western nations granted territory for a Kurdish state, but only three years later they reneged on this promise when the Treaty of Lausanne set the borders of Turkey.[7] By essentially relegating the Kurdish people to minority status in their own nations, Western states ensured decades of conflict to come. In Turkey especially, during the 1920s and 1930s, the government responded to rebellions by Kurdish minority groups with strict measures against the entire ethnic group. Kurdish names and attire were banned, and restrictions were placed on the use of Kurdish languages.[8] Between 1925 and 1939, approximately 1.5 million Kurds in Turkey were either deported or massacred.[9] Since then, there have been numerous reports of unlawful detentions, executions and torture of Kurds, with the European Court of Human Rights finding Turkey to be in violation of its human rights obligations multiple times.[10] In this time, Kurdish rebel groups within Turkey have also fought for independence and greater autonomy both through activism and armed conflict.[11]

The Kurdish people living in Turkey may not have a right to secede under international law, as although the majority of the ICJ refused to decide the issue in their Kosovo advisory opinion, Koroma J in his dissent persuasively concluded that secession without the consent of the current state would be contrary to international law’s preservation of territorial boundaries.[12] Nevertheless, the Kurdish people’s well-established right to self-determination is likely being infringed by the Turkish government. It is possible that their level of oppression rises to the standard suggested in the Canadian Quebec case,[13] or perhaps we can draw analogy with the situation in Kosovo, where a persecuted ethnic minority has been granted a pseudo-state by the international community. If so, there may be a case for Kurdish separatism compatible with international law. However, clearly Turkey will not allow the rise of a Kurdish nation without protest and as recent events show, it will pursue Kurds even beyond its own borders.

[1] Izady, Mehrdad R. The Kurds : a Concise Handbook London, UK: Routledge, 2015.

[2] https://www.britannica.com/topic/Kurdish-language

[3] https://thekurdishproject.org/history-and-culture/kurdistan-religion/

[4] ‘Sunnis and Shia: Islam’s ancient schism.’ https://www.bbc.com/news/world-middle-east-16047709

[5] https://www.institutkurde.org/en/info/the-kurdish-population-1232551004

[6] https://www.institutkurde.org/en/info/the-kurdish-population-1232551004

[7] ‘Who are the Kurds?’ https://www.bbc.com/news/world-middle-east-29702440

[8] Ibid.

[9] https://www.culturalsurvival.org/publications/cultural-survival-quarterly/kurdish-repression-turkey

[10] https://echr.coe.int/Documents/Annual_Report_2014_ENG.pdf

[11] ‘Who are the Kurds?’ https://www.bbc.com/news/world-middle-east-29702440

[12] https://www.icj-cij.org/files/case-related/141/141-20100722-ADV-01-02-EN.pdf

[13] Reference re Secession of Quebec [1998] 2 SCR 217, [131]-[135]. https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1643/index.do.

Peace Spring’s eternal with no incentive for Turkey to stop

In recent weeks, Turkey has launched operation “Peace Spring”, which aims to establish a “corridor of peace” in Northern Syria through open combat with Kurdish forces who were in control of the area.[1] The operation is “obviously” against international law.[2]

In its letter to the UN, Turkey asserted its right to self-defence, guaranteed by Article 51 of the UN Charter, and claimed that its use of force in the region was necessary “to counter the imminent terrorist threat, to ensure Turkey’s border security, to neutralize terrorists […] and to liberate Syrians.”[3] However, as many academics have pointed out, the threat posed by Kurdish forces is vaguely defined and likely does not meet the requisite threshold of an “armed attack”,[4] meaning the operation does not constitute lawful self-defence. Additionally, in the DRC v Uganda case, the ICJ found that self-defence cannot be used in response to acts by non-state actors because their actions cannot be attributed to a state.[5] Therefore, without the shield of “self-defence”, Turkey’s actions constitute an illegal use of force, contrary to the jus ad bellum.[6] Yet, despite this and perhaps because of President Erdogan’s threats to unleash a flood of Syrian refugees upon Europe should the EU criticise Turkey’s conduct, many states have failed to appropriately characterise operation “Peace Spring” as an act of aggression and an unlawful occupation of Syrian territory, [7] if Turkey’s military control over Northern Syria becomes a permanent fixture of its proposed peace corridor.

All states are obliged, under customary international law, to cooperate to bring to an end any serious breach of a peremptory norm of international law,[8] but state practice in response to unlawful uses of force has arguably evolved since the prohibition was codified in the UN Charter. The consequences for Turkey are uncertain, but will likely not be severe if our historical failure to police and enforce violations of the prohibition is any indication.

In the 1970s, India used force to help secure the independence of Bangladesh from Pakistan. By training Bangladeshi insurgents and involving air and naval forces in the Pakistani civil war,[9] India breached the prohibition on the use of force. However, after Pakistan’s surrender, little attention was given to this fact. Bangladesh successfully became a recognised nation and India retained control over some regions of Pakistani territory seized during the war.[10] The United States, Pakistan’s biggest supporter at the time, re-established diplomatic ties with India before the end of the century.[11] Therefore, although at the time there was some condemnation of India from Pakistan’s allies, without sanctions or isolation India’s unlawful use of force has not dramatically affected its position in the international community. In fact, the successful liberation of the ethnically distinct Bangladeshi from foreign control is today perceived positively,[12] suggesting an almost pardoning response by states, incompatible with the law’s absolutist prohibition.

Similarly, the recent use of force by NATO members in Syria was unchallenged by most governments. One claim put forth by NATO countries was that a use of force against Islamic State, a non-state actor, could be justified through the doctrine of self-defence, because the organisation controlled significant territory and was analogous to a state.[13] As discussed above, the ICJ has in the past rejected such an interpretation of self-defence. However, the absence of significant opposition by other states, and similar actions taken against other non-state terrorist groups, imply that an expanded understanding of self-defence would be amenable to most states. It is unsurprising then, that Turkey would seek to justify operation Peace Spring through a questionable application of “self-defence.”

In some cases, it is true that the international community has reacted swiftly and harshly to condemn uses of force. Russia’s interference in and annexation of Crimea was met with economic sanctions and Russia’s expulsion from the G8, now the G7. However, two facts are of note. First, Russia relied on the precedent set by Kosovo to legitimise its incursion, arguing that states had accepted an exception to the principle of territorial integrity, where the independence of culturally distinct peoples was at stake (this is perhaps also suggested by the international response to India’s use of force against Pakistan).[14] Through this, the danger of allowing abrogations of international law’s fundamental tenets in sui generis cases or on an ad hoc basis becomes clearer: they can be used to justify more violent and invasive uses of force in the future. Applying this logic to Turkey, we can see similarities between Turkey’s characterisation of the Kurds and NATO’s assessment of Islamic State as a terrorist pseudo-state actor. Perhaps the same precedent-based approach then explains Turkey’s apparent confidence in the legality of its actions.

Secondly, in the years since it annexed Crimea, Russia has built an almost sanction-proof economy which relies on a sovereign wealth fund and locally-produced technologies to evade the worst effects of the penal measures imposed upon it for its unlawful use of force.[15] In the short term, the consequences were quick and severe, but in the long term, it seems Russia has been able to overcome the worst of its punishment for breaching international law. Moreover, Russia has been able to retain control over Crimea, proving that unlawful uses of force, met with ineffective penalties, still allow wrong-doing states to achieve their illegal aims.

That is when penalties are imposed at all. For years, independent agencies have questioned whether Israel’s occupation of the West Bank and interference with territory granted to the Palestinian people are permissible under international law. [16] Under the 1907 Hague Regulations, territory is considered occupied when it placed under the authority of hostile forces.[17] Israel’s actions plausibly fit this definition and the UN has formally recognised the illegality of the occupation.[18] Although numerous General Assembly resolutions and some Security Council Resolutions have criticised Israel’s treatment of the Palestinian people,[19] indicating serious diplomatic consequences and wide-spread condemnation, no sanctions have been imposed against Israel, and it still maintains friendly relations with the world’s most powerful countries, including the United States,[20] China,[21] and the U.K..[22]

Similarly, Turkey itself has transferred its civilians into Northern Cyprus and operates what it calls the “Turkish Republic of Northern Cyprus,” (“TNRC”) [23] clearly constituting an occupation of the territory. Of course, most states refuse to formally acknowledge Turkey’s effective annexation of Northern Cyprus,[24] just as they refuse to acknowledge Russia’s annexation of Crimea. Turkey’s actions were condemned by the UN Security Council,[25] the year after the TRNC declared independence. In the time since, while negotiations have been taking place between the Republic of Cyprus, supported by Greece, and Turkey, the United States has lifted the arms embargo applied on Turkey (it was in force for just 3 years). It was only this year that it approved a bill to remove the same embargo from Cyprus.[26] The EU has also recently pledged to ease their trade embargo against the TNRC.[27] In practice, Turkey, like Russia, still controls the area and the occupation has become increasingly normalised.

Why then should President Erdogan fear significant reprisal for this latest move or even regard it as impermissible, when state responses to uses of force have been inconsistent if not implicitly approving? Yes, Turkey faces the prospect of sanctions from the United States, but in October sanctions against Turkey were lifted after being in force just one week,[28] and few other states appear eager to act. Moreover, as Turkey has no doubt learnt from Russia and Israel, you can tolerate sanctions and condemnation without giving in.

Potentially, some solace can be found in Turkey’s attempts to justify its actions with reference to well-established rules of international law. By publicly relying on the doctrine of self-defence, Turkey suggests that, nominally at least, it still respects the fundamental prohibitions against the use of force and interference with other states’ territory. Maybe then we can assume that divergent state practice and our apathy, if not tolerance, towards contraventions of international law have not produced a dramatic shift in the state of customary law itself. Yet, the failure to enforce these laws adequately, despite Turkey’s forceful rhetoric and evident breach of its international obligations, reflects an implicit acceptance of continuing disobedience of international norms, rendering them ineffective. Of course, if we’re going to start policing international law, we’d all have cause to fear, never having delivered on our promise to end violations of international law’s most basic tenets.


[2] Janik, R. ‘Research Services of German Budndestag Rejects Turkey’s Syria Invasion: Illegal but Who Cares?’ http://opiniojuris.org/2019/10/23/research-services-of-german-bundestag-rejecting-turkeys-syria-invasion-illegal-but-who-cares/.

[3] https://undocs.org/S/2019/804

[4] Kreb, C. ‘A Collective Failure to Prevent Turkey’s Operation ‘Peace Spring’ abd NATO’s Silence on International Law,’ https://www.ejiltalk.org/a-collective-failure-to-prevent-turkeys-operation-peace-spring-and-natos-silence-on-international-law/

[5] Case Concerning Armed Activities on the Territory of the Congo (DRC v Uganda), Judgement, ICJ Reports2005, p. 168, [146]-[147]. https://www.icj-cij.org/files/case-related/116/116-20051219-JUD-01-00-EN.pdf

[6] Todeschini, V. ‘Turkey’s Operation ‘Peace Spring’ and International Law,’ http://opiniojuris.org/2019/10/21/turkeys-operation-peace-spring-and-international-law/

[7] Janik, R. ‘Research Services of German Budndestag Rejects Turkey’s Syria Invasion: Illegal but Who Cares?’  http://opiniojuris.org/2019/10/23/research-services-of-german-bundestag-rejecting-turkeys-syria-invasion-illegal-but-who-cares/

[8] Ahmad, H. ‘Turkey’s (Latest) Invasion of Syria,’ https://www.justsecurity.org/66632/turkeys-latest-invasion-of-syria-aggression-proportionality-and-legal-consequences-for-nato-and-third-party-states/; Article 41, ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts (2001) http://legal.un.org/ilc/texts/instruments/english/draft_articles/9_6_2001.pdf#page=10

[9] Raman, B. ‘The Role of RAW in the Liberation of Bangladesh,’ http://www.indiandefencereview.com/spotlights/role-of-raw-in-liberation-of-bangladesh/

[10] ‘1971 War: The Story of India’s Victory, Pak’s Surrender, Bangladesh freedom,’ https://www.business-standard.com/article/current-affairs/vijay-diwas-how-india-ended-pak-s-atrocities-and-ensured-freed-bangladesh-118121600120_1.html

[11] https://www.cfr.org/timeline/us-india-relations

[12] Dummett, M. ‘Bangladesh War: The Article That Changed History,’ https://www.bbc.com/news/world-asia-16207201

[13] Croft, A. ‘Action Against Islamic State Would Prevent Genocide – NATO,’ https://www.reuters.com/article/us-syria-crisis-nato/action-against-islamic-state-would-prevent-genocide-nato-idUSKBN0HA1KR20140915

[14] Vasile Rotaru & Miruna Troncotă (2017) Continuity and change in instrumentalizing ‘The Precedent’. How Russia uses Kosovo to legitimize the annexation of Crimea, Southeast European and Black Sea Studies, 17:3, 325-345, DOI: 10.1080/14683857.2017.1348044

[15] Korsunskaya, D. ‘Russia, Wary of U.S. Sanctions, Puts Saving Before Growth,’ https://www.reuters.com/article/us-russia-economy-budget-analysis/russia-wary-of-us-sanctions-puts-saving-before-growth-idUSKCN1N51B9

[16] https://www.ochaopt.org/location/west-bank

[17] Article 42.

[18] http://unscr.com/en/resolutions/465

[19] ‘List of United Nations Resolutions Concerning Israel,’ https://en.wikipedia.org/wiki/List_of_United_Nations_resolutions_concerning_Israel.  

[20] ‘U.S. Relations with Israel,’ https://www.state.gov/u-s-relations-with-israel/.

[21] Abrams, E. ‘What’s Behind Israel’s Growing Ties with China?’ https://www.cfr.org/expert-brief/whats-behind-israels-growing-ties-china.

[22] ‘Israel and the UK’ https://www.gov.uk/world/israel/news

[23] https://mfa.gov.ct.tr/cyprus-negotiation-process/historical-background/

[24] ‘Which Countries Recognise Northern Cyprus,’ https://www.worldatlas.com/articles/which-countries-recognize-northern-cyprus.html

[25] https://www.securitycouncilreport.org/un-documents/document/cyprus-sres550.php

[26] ‘U.S. House Approves Bill to End Arms Embargo on Cyprus,’ https://ahvalnews.com/greek-cyprus/us-house-approves-bill-end-arms-embargo-cyprus.

[27] ‘EU to Ease Northern Cyprus Trade Ban,’ http://news.bbc.co.uk/2/hi/europe/3668371.stm.

[28] ‘Trump Lifts Sanctions Against Turkey,’ https://www.politico.eu/article/us-president-donald-trump-lifts-sanctions-against-turkey/.

In defence of the Security Council back-route to the ICC


Ex-President Al-Bashir of Sudan is accused of several counts of crimes against humanity, war crimes and genocide. The International Criminal Court (ICC) issued a warrant for Al-Bashir’s arrest in 2009 and then again in 2010. In March 2017, Jordan hosted the 28th Summit of the Arab League in Amman. As Sudanese President at the time, Al-Bashir, attended the summit. Jordan did not arrest the visiting Head of State while he was in the country.

In May 2019, the ICC Appeals Chamber ruled that Jordan had failed to comply with its obligations under the Rome Statute by not executing the warrants. As a State Party to the Rome Statute, Jordan is required to ‘cooperate fully’ with the ICC,[1] precluding them from relying on the doctrine of State Immunity to refuse to execute an ICC warrant. UNSC Resolution 1593 had referred the situation in Darfur, Sudan to the ICC and obliged Sudan to ‘cooperate fully’ with the court.[2] Controversially, the ICC found that this meant Sudan, a country which is not party to the Rome Statute, was equally bound by the Statute’s requirements and could not have relied on State Immunity to protest its Head of State’s arrest by Jordanian authorities.

This so called ‘Security Council Route’ into the ICC’s jurisdiction has been widely criticised since the decision was published. The ICC found that UNSC Resolution 1593 meant that Sudan was bound by Art. 27(2) of the Rome Statute, which says that immunities ‘shall not bar the Court from exercising its jurisdiction over such a person.’ Therefore, Sudan could not rely on State immunity to evade the ICC’s jurisdiction. This leaves open the possibility that other States not party to the Rome Statute could be similarly compelled to give up their right to immunity. All members of the UN are obliged by Art. 25 of the UN Charter to comply with UNSC resolutions, greatly widening the potential application of the ‘Security Council Route.’

The Critics

Unsurprisingly, the ramifications of this decision have been divisive.

UNSC Resolution 1593 contains no explicit reference to State Immunity. The ICC’s reliance on the broader requirement imposed on Sudan to ‘cooperate fully’ suggests the UNSC may now implicitly prohibit reliance on immunity in response to an ICC warrant. This discretionary power enables the UNSC, already largely controlled by Western powers, China and Russia, to infringe the sovereignty of less powerful States by forcing their compliance with the Rome Statue and removing their right to immunity. The capacity to do so without the consent of the affected State only increases the UNSC permanent members’ hegemony over the international justice system.

Moreover, this power has been inconsistently used. Despite similar allegations against Bashar al-Assad, President of Syria, and a request co-sponsored by 65 States, for the UNSC refer the situation in Syria to the ICC,[3] no such resolution has been made. Meanwhile, the United States itself is not subject to the ICC’s jurisdiction and vehemently opposes ICC enquiries into its nationals. Therefore, whether the United States should hypocritically play a role in obliging other States to comply with the ICC’s directives is debateable.

The African Union has also raised concerns over whether such decisions by the ICC threaten the long-term stability of the region, stressing that ‘justice should be pursued in a way that does not impede or jeopardise efforts aimed at promoting lasting peace.’[4] The practical realities of compelling States to arrest foreign officials, who otherwise enjoy immunity from national jurisdictions, may undermine the purpose of State Immunity in facilitating international relations. International gatherings, like the Arab League’s summit in this case, and visits by foreign delegations to other States are crucial in ensuring international cooperation and civility as they provide irreplaceable forums for peaceful discussion and dispute resolution. If Heads of State cannot participate in such diplomatic events, without fear of arrest and prosecution, they are unlikely to meaningfully engage with other States. This may then only increase regional tensions and alienate States already operating on the periphery of legality, escalating conflicts in the long-term.

Why it’s not so bad

However, Al-Bashir’s alleged commission of genocide, war crimes and crimes against humanity was a heinous contravention of accepted jus cogens norms, so by all measures it is certainly preferable for Al-Bashir to be prosecuted if legally possible.

The ICC criticised the alternative proposed by some States, where States Parties to the Rome Statute or those referred to the ICC could be permitted to rely on State Immunity to refuse to execute warrants: ‘the Court depends on State cooperation to execute warrants of arrest. The result would be that, in effect, the Court would be barred from exercising its jurisdiction because of the existence of immunities.’[5] Such a result would incapacitate the ICC. Currently, the ICC is the only permanent international court capable of prosecuting individuals who have been accused of perpetrating the most reprehensible crimes: genocide, war crimes, crimes against humanity and crimes of aggression. Many of these crimes have jus cogens status and attract the universal condemnation of States. Therefore, preventing the ICC from exercising its jurisdiction when such crimes have been committed would be incongruous with the international community’s expectation that these crimes cannot go unpunished.

Additionally, concerns that this decision is an unprecedented infringement of State sovereignty are perhaps also overstated. As Talita de Souza Dias from Oxford University observes, ‘limitations on State sovereignty are the very purpose of Chapter VII resolutions, which are meant to impose coercive measures on UN member States.’[6] Members of the UN have already acquiesced to the possibility of being bound by UNSC resolutions by assenting to Art. 25 of the UN Charter. To accept that the UNSC may also oblige them to submit their nationals to the ICC’s jurisdiction, in the limited situations where these nationals have behaved with the utmost disregard for the most fundamental jus cogens norms, does not put a substantially greater burden upon the principle of State sovereignty.

While requiring States to execute warrants against the heads of other States may indirectly jeopardise future peace, the continuing commission of war crimes, genocide or crimes against humanity more directly endangers peace in the present. The very nature of these violent unconscionable crimes invites rebellion and intervention by other States. In turn this precipitates wars, like in Syria, or equally violent reactions in pursuit of justice, like the actions of rebel groups in Palestine. Allowing States to harbour accused war criminals like Al-Bashir would reflect an implicit acknowledgement by the ICC of its inability to effectively prosecute these crimes. In the absence of individual accountability, Heads of States would not be deterred from committing such crimes and would not resign from their positions, voluntarily relinquishing their immunity. Therefore, with this decision, the ICC possibly counters the perception that Heads of State, so long as they remain in power, are in effect immune from prosecution, discouraging the perpetuation of violence and the corresponding emergence of cycles of violence.


The ‘Security Council Route’ is an imperfect system, still allowing powerful States to escape the ICC’s jurisdiction. However, the net good achieved by prosecuting the perpetrators of the most egregious crimes, even when these perpetrators are current Heads of State, outweighs any strain it places on the principle of State sovereignty or international relations.

[1] Rome Statute, Art. 86.

[2] https://www.icc-cpi.int/NR/rdonlyres/85FEBD1A-29F8-4EC4-9566-48EDF55CC587/283244/N0529273.pdf

[3] https://www.theguardian.com/world/2014/may/22/russia-china-veto-un-draft-resolution-refer-syria-international-criminal-court

[4] http://www.iccnow.org/documents/AU_142-communique-eng.pdf

[5] Prosecutor v Al-Bashir (Pre Trial) (International Criminal Court, Appeals Chamber Case No ICC-02/05-01/09 OA2, 6 May 2019), [122]. https://www.icc-cpi.int/CourtRecords/CR2019_02856.PDF

[6] https://www.ejiltalk.org/the-discussion-of-the-security-council-roots-to-the-derogation-from-personal-immunities-in-the-al-bashir-case-how-explicit-must-security-council-resolutions-be/#more-16485