Human rights are international legal liberties and privileges possessed by individuals simply by virtue of their being human. Although many cultures and civilizations have developed ideas about the intrinsic worth and dignity of human beings, the modern concept of human rights finds its immediate origin in such Western concepts as the Declaration of the Rights of Man and of the Citizen in France in 1789 and the Bill of Rights in the United States in 1791. Great Britain began to suppress the slave trade in 1815. The peace treaties ending World War I sought to provide certain protections for the inhabitants of mandates of the League of Nations and various minorities in eastern and central Europe, while the International Labor Organization promoted international standards in working conditions.
The Charter of the United Nations opened an entirely new chapter for human rights that has potential relevance for the Kurds. Article I included as a purpose of the world organization "promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion." Article 55 repeated this statement, while Article 56 declared that "all Members pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55." Despite the domestic jurisdiction clause of Article 2(7), the progressive development of the UN charter has been interpreted as not preventing the United Nations from addressing human rights violations in member states.
One should also mention the Universal Declaration of Human Rights, which was passed unanimously by the UN General Assembly on 10 December 1948. Although originally only a resolution, the International Covenants on Civil and Political Rights, and on Economic, Social and Cultural Rights enacted into international law most of the provisions of the Universal Declaration of Human Rights when the covenants went into effect in 1976 for those states that had ratified them.
Since the end of World War II, a number of other international human rights treaties have also become part of international law. These include the 1948 Convention on the Prevention and Punishment of Genocide, the 1965 International Convention on the Elimination of All Forms of Racial Discrimination, the 1979 Convention on the Elimination of All Forms of Discrimination against Women, and the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Each one of the international treaties has obvious relevancy for the Kurdish question.
In 1999, Slobodan Milosevic was indicted for war crimes and crimes against humanity by an international tribunal established by the UN Security Council to look into the events in the territory of the former Yugoslavia since 1991. This would seem to have indicated that a similar indictment against Saddam Hussein would have been legally, if not politically, possible for his actions against the Kurds over the years in such actions as the Anfal campaign and the chemical bombing of Halabja. Indeed, after he was captured late in 2003, Saddam Hussein was convicted of crimes against humanity and sentenced to death for ordering the killing of 148 people in the mainly Shiite town of Dujail following an assassination attempt against him in 1982. He then was executed at the end of 2006. Many Kurds, however, felt that he also should have been tried for the crimes he had committed against them.
Given the current difficulties in enforcing the international law of human rights in the diverse multicultural world, human rights conventions may be easier to reach and implement on a regional level. The Council of Europe, for example, currently consists of 41 different states, including Turkey. Early in its history, the council drafted the European Convention for the Protection of Human Rights and Fundamental Freedoms, which entered into force in 1953. A number of protocols or supplementary agreements have been added over the years with the result that regional international law regarding basic human rights covered in the Universal Declaration of Human Rights is now legally binding on members of the Council of Europe. A European Commission of Human Rights enforces these human rights, hears complaints against states party to the European Convention, and refers them to the European Court of Human Rights. In addition to states, individuals, groups of individuals, and nongovernmental organizations may also refer complaints to the commission. The court's decision is binding and may be enforced by the Committee of Ministers of the Council of Europe. In 1999, the court blocked the death penalty for treason Turkey had handed down earlier that year to Abdullah Ocalan, and early in 2003 it called for Turkey to give Ocalan a new trial.
The Kurdish Human Rights Project in Great Britain has listed the following articles of the European Convention on Human Rights as relevant to the Kurdish issue in Turkey: right to life; prohibition of torture; prohibition of slavery and forced labor; right to liberty and security; right to a fair trial; no punishment without law; right to respect for private and family life; freedom of thought, conscience, and religion; freedom of expression; freedom of assembly and association; right to marry; right to an effective remedy; prohibition of discrimination; application of restrictions under the convention only for prescribed purposes; examination of the case and friendly settlement proceedings; just satisfaction to an injured party in event of breach of convention; protection of property; right to education; right to free elections; prohibition of imprisonment for debt; freedom of movement; prohibition of expulsion of nationals; prohibition of collective expulsion of aliens; abolition of the death penalty; procedural safeguards relating to the expulsion of aliens; right to appeal in criminal matters; compensation for wrongful conviction; right not to be tried or punished twice; and equality between spouses. Already the European Court has handed down numerous decisions involving Kurds against Turkey, while several thousand more cases are working their way through the legal system. Clearly the legal process for enforcing human rights established by the Council of Europe system offers tangible opportunities for pursuing the Kurdish cause in Turkey.
In addition to these human rights developments in international and regional law, a great deal of what modern international law has to say that is relevant to the Kurdish question is what falls under the rubric of "soft" law, or de lege ferenda (the law as it may be, or should be, in the future) as distinguished from de lege lata (the law as it currently stands). "Soft" law refers to guidelines of conduct, resolutions, or declarations such as those currently being developed for international environmental and economic regulations that are not yet formally binding but do have an important political and legal relevance as a guide for political action and as a beginning point for the future development of obligatory international norms in the form of subsequent treaties or customary laws. Specific examples of "soft" international law in regards to the Kurdish question include such concepts as self-determination, rights of minorities and indigenous peoples, the non-legally binding obligations imposed by the Helsinki Final Act of 1975 and its follow-up declarations, and humanitarian intervention.
Humanitarian intervention concerns the developing right of third parties to intervene even with armed force when severe human rights violations occur in a given state. The U.S.-led allied intervention into northern Iraq on behalf of the Iraqi Kurds after the failure of the Kurdish uprising and their subsequent refugee flight to the mountains in April 1991 may be seen as a specific example of humanitarian intervention. The unprecedented UN Security Council Resolution 688 of 5 April 1991 condemned "the repression of the Iraqi civilian population . . . in Kurdish populated areas, the consequences of which threaten international peace and security in the region" and demanded "that Iraq . . . immediately end this repression." The resolution also insisted "that Iraq allow immediate access by international humanitarian organizations to all those in need of assistance in all parts of Iraq" and requested that "the Secretary-General . . . use all the resources at his disposal, including those of the relevant UN agencies, to address urgently the critical needs of the refugees." It was the first time in its history that the United Nations had so explicitly addressed the Kurdish question.
Using UN Security Council Resolution 688 as their legal basis, the United States and its allies initiated Operation Provide Comfort (OPC) and a no-fly zone to encourage the Kurds to return to their homes and provide continuing protection to them from Saddam Hussein. Subsequently, OPC (renamed Operation Northern Watch after 1997) continued in the form of some 80 combat and support aircraft stationed at the Incirlik Air Base in Turkey's southern Ad-ana province, from where they made almost daily flights over Iraqi Kurdistan to deter incursions from Baghdad until the fall of Saddam Hussein's regime in 2003.
Early human rights treaties concentrated on first-generation individual rights such as freedom of speech and assembly. Second-generation rights concerned economic, social, and cultural rights indispensable for human dignity. Third-generation rights concern the collective rights of peoples to, for example, freely dispose of their wealth and natural resources. Moderate Kurds and their supporters find that advocating human rights can be a more effective strategy than armed struggle to achieve their aims.
Finally, one should note that the Kurds themselves at times have been guilty of human rights violations against other Kurds and peoples. During the civil war between the Kurdistan Democratic Party (KDP) and the Patriotic Union of Kurdistan (PUK) in 1994-1998, for example, numerous human rights violations occurred. At the height of the 1991 uprising against Saddam Hussein, 400 to 700 Baathist intelligence agents were summarily executed when they were captured in Sulaymaniya. Honor killings also remain a problem. The case of Kamal Said Qadir—an Austrian citizen of Kurdish descent who was beaten and arrested by the KRG security forces for accusing the Barzani family of corruption, nepotism, torture, political assassinations, and other misdeeds—is a specific example. In April 2009, Amnesty International released a critical report about human rights abuses allegedly occurring under the Kurdistan Regional Government (KRG) at the present time. Compared to the egregious human rights violations taking place elsewhere in Iraq and the Middle East, these accusations seemed minor. Nevertheless, Nechirvan Idris Barzani, the prime minister of the KRG, promised to correct any problems.
Historical Dictionary of the Kurds. Michael M. Gunter.