Prof. Sassoli: Kurdistan is an unnamed occupation

Professor Marco Sassoli said that "Since the Kurds do not have a state, international law does not see Turkey's presence in Kurdistan as an occupation."

In the international arena, almost every day, a country is accused of violating the Geneva Conventions. However, no one is held accountable for the crimes committed in Ukraine, Gaza or Kurdistan. Civilian settlements are bombed and civilians, including women and children, are killed, other people's lands are occupied, millions of people are displaced and subjected to forced migration, and people from other places are brought and settled in the occupied areas. Fighters captured during or within the scope of war are subjected to severe torture or are kept in severe isolation conditions for life.

While all this is being done, no state is held accountable. At most, we see that states and institutions that are responsible for protecting international law act selectively. While international law is brought to the fore against the war in Ukraine, there is dead silence in the face of the Turkish state's war in Kurdistan.

So, why are the Geneva Conventions, which were implemented during World War II and form the basis of international human rights law today, inadequate? Are the Geneva Conventions not suitable for today's modern world? Why are those who highlight international law in the war in Ukraine or Gaza silent about the war in Kurdistan? Doesn't international law protect stateless societies? What is the international law dimension of the war in Kurdistan? Why doesn't Turkey accept the existence of war in Kurdistan? What is the status of PKK prisoners in Turkey's war of occupying Kurdistan? What is the international law equivalent of the Imrali isolation that has been going on for more than 3 years?

We talked about these issues with Marco Sassoli, Professor of International Law at the University of Geneva since 2004. He has been also a Commissioner of the International Commission of Jurists (ICJ) since 2013 and Special Advisor (pro bono) on international humanitarian law (IHL) to the Prosecutor of the International Criminal Court.

Almost every day, someone is accused of violating the Geneva Conventions. For example, how do you evaluate international law, especially humanitarian law, the dimensions of the wars in Ukraine, Gaza and Kurdistan?

In international humanitarian law, we have to distinguish between international armed conflicts between two states and non-international conflicts between an armed group and a state.

There is an international conflict with Russia in Ukraine. There is an international conflict in Palestine and a military occupation in Gaza. In Turkey, there is a non-international armed conflict, for example between the PKK and Turkish government forces.

Turkey has always rejected the characterization of an armed conflict, claiming that this war is only within the scope of counter-terrorism operations. At this point, no one is forcing Turkey to accept that what is happening is an armed conflict.

But even if it is not fundamentally considered an armed conflict, human rights law fully applies there. Human rights law safeguards are higher than humanitarian law safeguards because humanitarian law allows you to kill enemy combatants in the event of war. In peace time, you have no right to deliberately kill people or detain prisoners of war: between Russia and Ukraine, both sides can detain enemy soldiers without trial.

In a war that is not considered an armed conflict, you can only detain people after a court decision.

The Geneva Conventions are considered the basis of international law. Aren't these conventions violated in all these wars?

Yes, unfortunately they are. You, the media, mostly talk about these violations, and maybe this is what should happen. Because these violations are scandalous. However, we should not give the impression that humanitarian law is violated everywhere at all times. Most of the time, thanks to these conventions, many situations are respected. There are many soldiers who respect humanitarian law in many situations. There are also many prisoners who receive proper treatment thanks to these conventions. But of course it is not enough. We need the political will of states to fully respect these conventions. First of all, a double standard such as criticizing violations in one country while not criticizing violations in another country must be avoided.

Unfortunately, states have double standards. For example, they criticize Russia's human rights violations in Ukraine, and they are right to do so. However, because they need Turkey for many issues, the same states do not criticize Turkey for its violations.

So, do you think that the Geneva Conventions are suitable for today's modern world or wars?

There are some new issues such as cyberattacks. Humanitarian law often refers to physical attacks. On the other hand, it has good rules when it comes to the biggest issues, such as the treatment of prisoners, respect for civilians, and humanitarian aid. It's just that these rules are not respected enough. In my opinion, what is needed are mechanisms to ensure better implementation, and it is not necessary to review the content of the rules.

But as I said, there are exceptions. What we see now in Gaza is essentially both sides violating humanitarian law. For example, the obligation to allow the passage of humanitarian aid to civilians in Gaza depends on the possibility of checking that this aid benefits the civilian population and not Hamas fighters.

This situation is not very realistic, because how can you check that a woman in Gaza does not also feed her husband, who is a Hamas fighter? Although I do not know the situation, I guess there are similar problems in Kurdistan.

Then you do not agree with the experts who say that the Geneva conventions should be adapted to today's world...

As you know, the Geneva Conventions apply to armed conflicts. Therefore, what we must avoid are armed conflicts. To have an ideal law, we can imagine better laws, for example, in the areas of environmental protection, protection of women's rights, development and inequality, and so on.

But here we are talking about a law that is valid for armed conflicts and should remain realistic. For example, if I tell the PKK that they no longer have the right to kill Turkish soldiers, then they will say that we cannot respect your humanitarian law because we are at war with Turkey.

Therefore, humanitarian law can never be as humane as we would like. However, it may guarantee a certain element of humanity, but here again, I do not see this as very realistic development for the fighters.

The same goes for the national liberation war. A national liberation movement cannot be prohibited from waging war. For example, the PKK has committed not to using child fighters, but to using anti-personnel mines and the like, because they believe they can wage war without them. But you cannot prohibit them from waging war under humanitarian law.

So, why can't we talk about the existence of a mechanism that protects the Geneva Conventions, which are the basis of international law?

Unfortunately, there is no such mechanism. States did not want an international police force. If there was such an international 'police' force, there wouldn't be wars anyway, right? Because if there was an international police force, for example in Geneva, if you suddenly attack a police officer, it is not a war and the police will stop you, but except in a situation of legitimate force, they will not shoot at you, they will try to stop you. However, in a war, you can attack the fighters in front of you even if they do not attack you.

Aren't these the same states that implemented these conventions? Then why do they oppose the existence of a mechanism that protects these conventions?

Because states want this. I think people want their own sovereignty rather than such an international mechanism. So they don't want an international body. We are here in Switzerland and, in fact, the Swiss does not want to join the European Union because they do not want to be subject to an international institution. And I am sure that if the Kurdish people or the Catalans had a state, they would not want such a mechanism either. Or they want a state not to be subject to an international police force. I hope they want to self-determine and decide for themselves in accordance with international law. Not that external forces impose things on them.

But it is clear that respect for human rights is not an issue that comes from the outside. States undertake to respect human rights, but there is no mechanism to compel them to do so, because this requires an international armed force. And unfortunately, states that violate human rights are often very powerful. European and Western states, third party states such as the US and Canada are in principle in favor of human rights. But when Israel or Turkey violate human rights, they make little or no noise. Because there are commercial or ideological interests, or because Turkey currently plays an important and quite positive role between Ukraine and Russia. It is Turkey, not Switzerland, that mediates. So, states have interests in this situation.

Again, there are measures taken by Turkey to ensure that Israel complies with the Geneva Conventions in Gaza. As you can see, there is selectivity. Turkey wants Israel to respect the Geneva Conventions in Gaza, but it does not want anyone to tell her to respect the Geneva Conventions. The rules are not the same, because the situation in Gaza is an occupation in the eyes of international law. In the Kurdish regions, there is a non-international conflict, but the rules of humanitarian law still apply.

Although Kurdistan is a colony, it is not defined as a colony in international law. Is this because Kurds are a stateless society? So doesn't international law protect stateless societies? 

You can say that Turkey's presence in Northern Syria is an occupation, because it's a different country. However, as you know, Kurdistan does not exist as a state. The people's right to self-determination gives the Kurds the right to demand a state, but there is no such state yet. Since there is no state, Turkey's presence in Kurdistan is not considered an occupation.

On the other hand, in Syria, Turkey maintains its presence in Northern Syria without the approval of the Syrian government. This is an occupation. Since Turkey sees Kurdistan as a part of Turkey, the situation there is not seen as an occupation. Kurds have a multinational state, autonomy, etc. I don't know if they will agree or if they still want a state. But if they want a state, this is their fundamental right in international law.

Although Turkey's presence in Turkish Kurdistan is not considered within the scope of occupation law, human rights rules apply here.

As you said, Turkey is in a state of war in Syria, continuing its war against the Kurds and occupying Kurdish regions. It is forcibly deporting the Kurds in these occupied regions from their own lands to other places. How should these practices in Turkey be explained in international law?

To state once again, there are violations. International law is stronger in occupied territories than within a state. You will remember, the Turkish authorities had a plan to settle refugees from their own country in those regions they occupied in Northern Syria. As far as I know, they ultimately didn't do that. We may think that the reason why they cannot do this is due to the influence of international humanitarian law, because these actions are prohibited by international law, just like the situation in Palestine.

Displacement is prohibited even in occupied territory. Everyone in Gaza criticizes this situation because the Israelis want the civilians in Rafah to be moved to another place. Even Americans admit that this is a prohibited deportation. There are similar events in northern Syria, but unfortunately there is little international reaction to what is happening there.

What is happening in the regions occupied by Turkey in Syria can be seen as ethnic cleansing?

Ethnic cleansing is not a technical concept in humanitarian law, but it includes violations of humanitarian law. All actions such as killing people, destroying their homes, driving people from their homes are prohibited by humanitarian law.