International Initiative
Freedom for Ocalan – Peace in Kurdistan
P.O. Box 100511, D-50445 Koeln
Telephone: +49 221 130 15 59
Fax: +49 221 139 30 71
E-Mail: info@freedom-for-ocalan.com
Url: www.freedom-for-ocalan

Cologne, May 1999

INTERNATIONAL INITIATIVE BRIEFINGS:
Ocalan as a Prisoner of War

By International Law/Humanitarian Law Expert Prof. Dr. Karen Parker (USA)

Abdullah Ocalan is a prisoner of war (POW) held by the government of Turkey and is entitled to all the rights and privileges of that status. He is President of the Kurdish Workers Party and Commander in Chief of the People's Liberation Army of Kurdistan (ARGK) which, since 1984, is a combatant force in a war-the Kurdish - Turkey War.

The Kurdish - Turkey War, as all wars, is governed by humanitarian law: the Hague Conventions, the Geneva Conventions (including all provisions of the Protocols Additional considered customary law) and all treaty-based and customary laws of armed conflict.

Under humanitarian law rules, Abdullah Ocalan may only be tried for acts that violate the laws and customs of war.
Laws relating to terrorism do not apply to combatants in wars or to acts carried out in the course of war. Because the ARGK has combatant status, neither the PKK nor the ARGK may be considered to be terrorist organizations nor can commanders or members of the PKK or ARGK taking part in the war or supporting the war be treated as terrorist." The above quotations are from the following declaration by the renowned expert witness on issues of international law and humanitarian law of armed conflict, Prof. Dr. Karen Parker from San Francisco, USA. For the case Turkey vs. Ocalan, she has developed a comprehensive argument on the status of the PKK according to humanitarian law of armed conflict on the grounds of which she makes some recommendations regarding the treatment of Abdullah Ocalan, who has signed the Geneva Conventions and the Additional Protocol I of 1977, as a Prisoner of War.

I declare under penalty of perjury that the following statements are true and accurate to the best of my knowledge, information and belief. This declaration sets out the status under humanitarian law of Abdullah Ocalan, the Kurdistan Workers' Party (PKK) and its military force the People's Liberation Army of Kurdistan (ARGK).

1. My name is Karen Parker.
2. My address and telephone number are:
154 Fifth Avenue
San Francisco, CA 94118
(415) 668-2752

QUALIFICATIONS OF DECLARANT
3. I am an attorney specializing in international law, human rights and humanitarian (armed conflict) law. I am a member of the State Bar of California, number 112486. I am a professor at the University of San Francisco where I teach Human Rights. In the fall of 1998 I was a visiting professor at the University of San Diego School of Law where I taught human rights litigation.

4. I received a Juris Doctor (Honors) from the University of
San Francisco School of Law in 1983.
5. I received a Diplome (cum laude) in Droit International et de Droit Compare des Droits de l'Homme (International and Comparative Law of Human Rights) from the Institut International des Droits de l'homme (Strasbourg, France) in 1982.

6. I was a legal intern at the Organization of American
States, Inter-American Commission of Human Rights in 1981 and 1982 (Summers), and wrote studies on human rights and humanitarian law issues then before the Commission.
7. I was a judicial extern at the California Supreme Court
(chambers of Justice Frank Newman) from August 1982 until Justice Newman's retirement from the bench in December 1982.
8. I have been accepted as an expert witness in international law before the Tokyo High Court (Japan); the Court of Norway (Oslo second instance); a special Federal Court in Canada; in immigration proceedings in Canada; the United States Magistrates in San Francisco; in immigration proceedings in Harlingen, Texas; San Francisco, California;
Los Angeles, California; Washington, D.C.; Baltimore, Maryland; Omaha Nebraska; and in several federal and state courts. See, e.g In the Matter of Santos-Gomez, Immigration Court for Washington, D.C., Case #A29564-781, 785, 801 at p. 3, citing Fed. R. Evid. These cases have involved the application of humanitarian (armed conflict) and human rights law relevant to the issues of this declaration.
9. My views on international law have been cited in several judicial opinions, including Von Dardel v. Union of Soviet Socialist Republics, 623 F. Supp. 246 (D.D.C. 1985); In the Matter of Jesus del Carmen Medina, Immigration Court for Harlingen Texas, Case # 26 949 415 (1985); In the Matter of Santos-Gomez, Immigration Court for Washington, D.C., Case #A29564-781, 785, 801 (1990); Wani v. Secretary of State for the Home Department, Appeal No. CC/53286/97 (UK).

10. I have represented human rights and humanitarian law concerns at the United Nations since 1982, representing International Education Development/Humanitarian Law Project, Disabled Peoples' International, Friends of the Earth, the Sierra Club Legal Defense Fund and Human Rights Advocates-all organizations with consultative status. I have represented Disabled Peoples' International, the Federation International des Droits de l'Homme (Paris), Chile Humanitarian Aid, the Humanitarian Law Project/International Educational Development, and the Confederation de Nacionalidades Indigenas de la Amazonia Ecuatoriana on behalf of the Huaorani Nation at the Organization of American States.

11. I consult frequently with many United Nations officials, including representatives of the United Nations High Commissioner for Human Rights, past Assistant Secretary-Generals for human rights, special assistants to the Secretary-General, officials of the Office of the United Nations High Commissioner for Refugees and other specialized agencies of the United Nations. I also meet with many Special Rapporteurs and members of working groups of the United Nations Commission on Human Rights and the Sub-Commission on Prevention of Discrimination and Protection of Minorities.

12. My practice also involves representation before domestic tribunals in the United States and other countries. Additionally, I carry out investigative missions, mainly on behalf of the organizations listed in paragraph 10 above. In recent years I have visited Pakistan, Norway, Canada, Austria, France, Japan, El Salvador, Guatemala, Mexico, Ecuador, Chile, Nicaragua, the United Kingdom, Switzerland, the Union of Soviet Socialist Republics (Russia) and Australia. I have worked closely with investigators of the non-governmental organizations listed in paragraph 10 above that have visited Turkey, Kashmir, China, Burma, Indonesia, Sri Lanka, and India. I write reports of investigations as well as articles for publication in American and foreign law and professional journals. I have written more than fifty statements published by the United Nations. (See attached publications list).

13. In addition to teaching at the University of San Diego School of Law and the University of San Francisco I have given lectures or classes on international law at many law schools, including the law schools at the University of California at Berkeley, the University of California at Los Angeles, Hastings College of the Law, the University of San Francisco, Stanford University, Santa Clara University, Yale University, Harvard University, the University of Chicago, the University of Pennsylvania, Illinois State University, the University of Denver, Washington University, the University of Iowa, Drake University, American University, Franklin Pierce University, Southern Illinois University, the University of San Diego, the University of Arizona, the University of New Mexico, Arizona State University, John Marshall College of Law, Loyola (Los Angeles), and the University of Southern California. I have also given several hundred lectures at community forums and universities in nearly thirty states and twenty foreign countries in the past ten years.
14. Since 1994 I have written an annual report Armed Conflict Around the World: A Country by Country Review. The 1994 - 1996 reports were issued by International Educational Development/Humanitarian Law Project. The 1997, 1998 and 1999 reports are published by the Parliamentary Human Rights Group (United Kingdom). This report has been translated into Arabic by the UNESCO Chair, University of Oran (Algeria) which is also preparing a French edition.

15. I have been invited to brief members of Congress a number of times on refugee law, non-refoulement, humanitarian law, humanitarian aid, human rights and the International Court of Justice. I have submitted written testimony at Congressional hearings. (See attached publications list). I have also consulted with officials of the Canadian government on humanitarian and human rights issues, including those at issue in this case.
16. I have investigated and written on the situation in Turkey since 1991 when International Educational Development/Humanitarian Law Project undertook and investigative mission to Turkey. I worked with colleagues on the preparation of the Report of that mission and presented testimony on Turkey at numerous session of the United Nations human rights bodies ever since. I have evaluated the Kurdish - Turkey war as part of my annual armed conflict report (see paragraph 14 above) since 1994.

17. I meet regularly with representatives of the Kurdish community in the United States and many European countries. I meet with members of the United Nations Commission on Human Rights, including its Chairpersons, and with members of the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities on the situation in Turkey. I meet with United Nations special rapporteurs and other officials regarding the situation in Turkey. I meet with other human rights investigators and study the many reports and papers regarding Turkey originating in Turkey and elsewhere, especially those prepared by United Nations investigators and rapporteurs. I have also met frequently with representatives of the International Committee of the Red Cross. I have been invited to participate in special briefing sessions on Turkey at the United Nations.

18. Abdullah Ocalan is a prisoner of war (POW) held by the government of Turkey and is entitled to all the rights and privileges of that status. He is President of the Kurdish Workers Party and Commander in Chief of the People's Liberation Army of Kurdistan (ARGK) which, since 1984, is a combatant force in a war-the Kurdish - Turkey War.

19. The Kurdish - Turkey War, as all wars, is governed by humanitarian law: the Hague Conventions, the Geneva Conventions (including all provisions of the Protocols Additional considered customary law) and all treaty-based and customary laws of armed conflict.

20. A fundamental (jus cogens) rule of humanitarian law is that combatants in a war are entitled to combatant status. The ARGK meets all factual and legal tests for combatant status under humanitarian law rules.

21. Captured combatants are entitled to prisoner of war (POW) status. Abdullah Ocalan, as military commander of the ARGK is entitled to prisoner of war (POW) status with all the rights and obligations inherent in that status.

22. Under humanitarian law rules, Abdullah Ocalan may only be tried for acts that violate the laws and customs of war. Laws relating to terrorism do not apply to combatants in wars or to acts carried out in the course of war. Because the ARGK has combatant status, neither the PKK nor the ARGK may be considered to be terrorist
organizations nor can commanders or members of the PKK or ARGK taking part in the war or supporting the war be treated as terrorist.
23. While the war in Turkey could be characterized as a civil war requiring neutrality from third party states, this declarant is convinced that the Kurdish people meet all criteria for the right to self-determination. Accordingly, the war in Turkey is a war of national liberation in defense of the right to self-determination. Under international law rules applicable to wars of national liberation in defense of the right to self-determination the international community is legally required to side with the Kurdish people. Regardless of whether the war is characterized a civil war or war of national liberation the ARGK still has combatant status and Abdullah Ocalan still has rights as a POW under humanitarian law.

24. This Declaration is not meant to be an exhaustive account of the Kurdish - Turkey War. The facts chosen are meant to be illustrative of the fact that there is a war and that the rules of war apply. For each example given many others could be made.


THERE IS A WAR IN TURKEY
25. Because the government of Turkey incorrectly characterizes the war in Turkey as "terrorism" and Abdullah Ocalan as a terrorist it is important to understand the difference between war and terrorism and apply the rules to the situation in Turkey.

A. What is War.

26. War is armed conflict between two or more parties. Armed conflict exists when there are sustained and concerted military operations by military personnel whose dress distinguishes them from the civilian population and who use the materiel, weaponry and military tactics of war. Simply put, if it looks like a war, it probably is. Humanitarian law ---also referred to as the laws and customs of war, the law of armed conflict or jus in bello-applies when there is armed conflict or war.

27. Military action can involve conventional warfare or guerrilla warfare or any other form of warfare. The laws and customs of war do not prohibit any particular form of military action. All modern wars have been fought with a variety of military tactics.

28. Because the purpose of war is to defeat the enemy's military forces, the weaponry of war may vary from situation to situation. Contemporary wars have seen the use of spears and poison blow guns as well as napalm bombs and bullets containing depleted uranium.

29. It is not necessary for the parties to a conflict to formally declare war for there to be a war: a war exists and the laws and customs of war are applicable when objectively armed conflict is taking place. For example, the United States carried out lengthy military actions in Vietnam without ever having declared war. Even so, the laws and customs of war were applicable to both sides in that conflict.

30. Many countries at war either refrain from a formal declaration of war or try to deny a war is even taking place at all to try to avoid application of humanitarian law to their conflicts. One method governments use to attempt to avoid evaluation of their military actions under humanitarian law rules is to characterize the conflict as "terrorism" and "counter-terrorism" rather than war. Governments mis-characterize armed conflict for a variety of reasons, all present in the Kurdish - Turkey war:
(1) the government's own armed forces have violated the rules of war and the government wants to avoid international censure;
(2) the opposition forces have destroyed military targets that are insured and the government presumably wishes the insured to receive insurance indemnification for the damage;
(3) the government needs foreign aid (war is expensive) and many foreign donors such as the United States restrict foreign aid during war or only allow funds to combat "terrorism". Regardless of the political or economic motives for evoking "terrorism" when a war is taking place, humanitarian law automatically applies and the "terrorism" label is incorrect.

B. Terrorism.

31. Terrorism is not war. While there is no universally accepted international law definition of terrorism, there is basic agreement that terrorism consists of the use of force insufficient to require application of the laws and customs of war. Accordingly, if a situation meets the definition of war set out above, that situation is not terrorism. If a situation falls short in a substantial way from the definition of military operations then that the situation is probably one of terrorism.
32. Usually, terrorist activities are single operations and relatively random rather than "sustained and concerted." Terrorist groups are usually small in number and function clandestinely rather than openly and with distinguishing uniforms or insignia. While they use weapons, terrorist groups rarely have or utilize other military materiel such as tanks, other vehicles, planes, heavy artillery and the like.

33. While there may be a stated goal, groups involved in activities usually labeled "terrorist" seek to achieve that goal by intimidating the opposition into agreement rather than through military achievement. In part this may be because military victory is impossible given the group's size and limited military capability. On the other hand, lack of military activity may reflect on the typical goals of these groups. Military action against such groups makes no sense at all-these groups have no military bases or identifiable zones of territorial control. While occasionally, some groups do have "camps" and carry out "military training", they are not engaged in combat in any sense of the meaning of combat. Wishful thinking, week-end "war games", irregular sniper actions or playing at war are not sufficient to qualify as combat. If on the other hand large-scale, mutually fought military actions over a wide territory are carried out against a so-called "terrorist" group it is far more than likely that the group is not "terrorist" at all but rather a military force in a war. Under these circumstances the "terrorist" is really a combatant.

C. War in Turkey.

34. Applying the criteria for armed conflict to Turkey, it is patently obvious that since "approximately 1985 a violent conflict has raged in the south-eastern region of Turkey." The war is between the forces of the government of Turkey and the ARGK. Even the government identifies the actions as a war: as early as 1984, the President of Turkey stated: "It is, after all, a question of war. It is therefore understandable."

35. The government military forces utilize the methods and materiel of war to carry out military actions to defeat by military means the military forces of its enemies. On its part, the ARGK carries out military actions against the military forces and military targets of the government of Turkey. There is nothing random or sporadic about this
war. In no way does it resemble "terrorism/counter-terrorism" activity. It is clearly a war. There is nothing clandestine or shadowy about either the PKK or the ARGK-both are very public. The ARGK forces wear distinctive uniforms and insignia. The ARGK does not play week-end war games but fights militarily on military battlefields day in and day out. The ARGK has military bases both inside and in border regions of Turkey.

36. The early years of the war were characterized by Kurdish military consolidation of much of the Kurdish areas, the emergence of the PKK and ARGK under Abdullah Ocalan and its gradual leadership of the ARGK among armed Kurdish groups.

37. In recent years the Turkish armed forces have been almost continually engaged in military operations against the ARGK. The government forces use tanks, airplanes, armoured vehicles, military weapons, and other military materiel. On several occasions the military actions have involved military incursion into Iraq. For example, in April 1998, 40,000 Turkish troops began a major offensive against the ARGK. In November 1998, the Arab League demanded the withdrawal of 25,000 Turkish troops from Iraq where they had gone in pursuit of the ARGK. At present time (May, 1999), there are major military battles taking place between Turkish forces and the ARGK forces.
Allegations of the use of chemical weapons on May 11, 1999 near Beelike by Turkish forces against the ARGK and Kurdish civilians are being investigated in Germany.

38. Since the beginning of the war, the military advantage of each side has ebbed and flowed. What is apparent is that since 1984 there is a war and that to date neither side has won.

TROOPS ENTITLED TO COMBATANT STATUS

39. Because there is a war in Turkey all the rules of war apply. A fundamental principle of the laws and customs of war (humanitarian law) is that combatants in a war are entitled to combatant status. Combatant status means that a soldier is legally entitled to carry out acts of war. This principle must be viewed as a norm of jus cogens.

40. While this principle has been one of customary international law for centuries, it also finds expression in treaty-based humanitarian law. For example, Article One of the Hague Regulations grants the rights of war to members of armies. Members of militia and volunteer corps are also entitled to the rights of war if they meet certain conditions: they must be under responsible command, wear some visible emblem to distinguish them from civilians, carry arms opens and conduct operations in conformity with the rules of war. Even civilians are entitled to engage in combat when they spontaneously take up arms on the approach of the enemy.

41. Because there is a war in Turkey between the government forces and the ARGK, the ARGK troops have the right to engage in combat. This status is inconsistent with a label of "terrorist"-a terrorist does not have combatant status or the right to engage in combat.
Because the right of combatants to combatant status is a norm of jus cogens, the government of Turkey may not qualify that right or reduce or disregard in any way the rights of members of the ARGK to combatant status. Designation of the PKK or the ARGK as terrorist organizations or its commanders and members as terrorist violates this jus cogens right. Abdullah Ocalan is entitled to combatant status.
ABDULLAH OCALAN AND ARGK TROOPS

ENTITLED TO PRISONER OF WAR (POW) STATUS WHEN CAPTURED

42. The second most important right of a combatant under humanitarian law is the right to be held as a prisoner of war rather than a "common criminal" if captured. Because Abdullah Ocalan is entitled to combatant status he is entitled to prisoner of war status as a captured combatant. He may not be criminally charged with acts that are acts of war. As a POW he must be granted all POW rights.
WAR OF NATIONAL LIBERATION IN DEFENSE OF THE RIGHT TO SELF-DETERMINATION

43. This declarant is convinced that the Kurdish - Turkey War is a war of national liberation in defense of the right to self-determination. To support this position I will set out the types of armed conflict and my reasons for my view of the Kurdish - Turkey War.

A. Three Types of Armed Conflicts.

44. Modern humanitarian law applies to the three main types of war: international wars, civil wars and wars of national liberation. Each is governed by somewhat different provisions in humanitarian law, although the basic principles apply to all armed conflicts.

45. A war is an international war when military action or hostilities take place between two or more separate States. Typically, the military forces of one country engage in military actions against another country by invading another country, but international rules can also apply when a country defends another country from military action from a third state. In all circumstances, the treaty-based and customary international law relating to international war applies to these conflicts.

46. A war is a civil war when there is armed conflict taking place in one State between government armed forces and opposition armed forces or groups who have identifiable and responsible military commanders, who control enough territory to carry out a significant level of armed conflict, who distinguish themselves from the civilian population by means of distinct uniforms or other readily identifiable physical features and who have the means to comply with humanitarian law obligations relating to civil wars. Neither police actions against civilian demonstrators nor isolated attacks by armed persons against civilian or government targets qualify as armed conflict. In civil wars, the international community must be neutral, as a civil war is an inherently internal affair.

47. A war is a war of national liberation when a group having a claim to self-determination carries out military actions against the occupying state, which can be a colonial or alien power or a racist regime. No acts in furtherance of the right to self-determination, including the use of force, may be treated as treason by the occupying state.

48. Self-determination is the collective right of a people to freely determine their own political status and to pursue economic, social and cultural development. People claiming self-determination must show a history of independence or self-rule in an identifiable territory, a distinct culture, and a will and capability to regain self-governance.

49. In wars of national liberation in the exercise of the right to self-determination or against racist regimes, the international community is required to side with the people with the right to self-determination or fighting against racist regimes. This is because of the peremptory (jus cogens) nature of the principle of self-determination and the international prohibition against racism. Because the right to self-determination is jus cogens, the duty of the international community to uphold it is an obligation erga omnes. Ian Brownlie reinforces the erga omnes obligation to observe the principle of self-determination in his opinion that armed defenders of self-determination have a special combatant status.

B. The Kurdish Claim to Self-determination.

50. The Kurdish - Turkey War could be viewed as a civil war, in which case all humanitarian law relating to civil wars would apply. Clearly the minimum test applied to the ARGK has been met since 1984: there is an armed conflict between government armed forces and ARGK troops who have identifiable and responsible military commanders (such as Abdullah Ocalan), who control enough territory to carry out a significant level of armed conflict, who distinguish themselves from the civilian population by means of distinct uniforms or other readily identifiable physical features and who have the means to comply with humanitarian law obligations relating to civil wars. However, this declarant is convinced that the Kurdish - Turkey War is a war of national liberation in defense of the principle of self-determination.

51. The Kurdish claim to self-determination is one of the strongest in the contemporary international scene. The three main elements of a claim to self-determination- historic self-governance in an identifiable territory, a distinct culture and a national will and capacity to govern are all present in the Kurdish case. In addition, the Kurdish people have suffered under extreme forms of racism for many years.

52. The Kurdish people had a centuries-old tradition of self-governance interrupted tragically in 1524 in a historic battle between Ottoman Turkey and Safavid Persia which led to nearly two centuries of battles between these competing powers in the region. This long period brought ruin on traditional Kurdistan, with the last of the historic principalities losing self-governance in the middle 19th century. Following World War I, Kurdistan, Armenia and Arabia were to be separated from Turkey. Accordingly the Treaty of Sevres (1920) established an autonomous Kurdistan with the rights of the Kurdish people to opt out of Turkey by way of a referendum or other expression of will within one year of the Treaty. However, before the Kurdish people could act on the Treaty of Sevres, the new Turkish ruler Mustafa Kemal arranged a new treaty (the Treaty of Lausanne of 1923) which divided historic Kurdistan into 4 unequal parts with the majority "given" to Turkey. The severe oppression of the Kurdish people under Turkish rule began almost immediately and continues to this day.

53. The Kurdish people are ethnically, culturally and linguistically distinct from Turkish peoples or other cultures in the area. Their language is unrelated to Turkish. They are said to descend from the Hurrian and Mede people. At present Turkey seeks to eradicate all aspects of Kurdish culture.

54. The third element of self-determination-national will and capacity to govern-is also exceptionally strong in the Kurdish case. Not only are the PKK/ARGK themselves evidence of a willingness to defend the right to self-determination with the use of force but the vast majority of Kurdish civilians, whether in Turkey or abroad, also show an exceptionally strong national will that has endured for the many long years of the war. Even those relatively few Kurdish people who do not strongly support the PKK or ARGK do not deny their insistence on some form of self-governance, whether in association with Turkey or as a separate nation.

55. The large number of Kurdish organizations in Turkey and abroad speaks to this national Kurdish will. Each year of the war has seen more and more organization among the Kurdish people in Turkey and in the diaspora. The Kurdish question is debated and urged in countless community forums and in international conferences, many of which are organized by the Kurdish themselves. There are Kurdish politicians from a variety of political parties, all of whom attest to a goal of at least significant devolution of power in Turkey to afford the Kurdish people full expression of their cultural aspirations as a people. The leading Kurdish religious leaders also support Kurdish sovereignty.

56. About the capacity to self-govern there can be no doubt. The Kurdish people have a long political history, and there are a variety of Kurdish political parties with great experience and highly developed platforms and programs. Many leading Kurdish people have had high offices in Turkey. While some are now in exile, they are able and ready to serve in a Kurdish government. The PKK has maintained a civilian authority in the areas under their control since the beginning of the war. The Kurdistan Parliament in Exile was elected in April 1995 and functions under its operative statutes.

57. Because of the application of the right to self-determination to the Kurdish - Turkey War Abdullah Ocalan may not be charged with treason.

3. Kurdish Claim to Self-determination Based on Racism.
58. The Kurdish people also have a claim to self-determination based on persistent racism and a pattern of gross violations of their human rights carried out by the Turkish government for many years. International evidence against the Turkish regime is irrefutable. The Kurdish people can clearly show that they "are compelled to have recourse, as a last resort, to rebellion against tyranny and oppression" as provided in the Universal Declaration of Human Rights. The tyranny and oppression of the Kurdish people by the Turkish authorities existed for many years before the PKK issued a call to the use of force in 1984. The PKK, through the ARGK, only undertook the military defense of the Kurdish people after all reasonable avenues for a political settlement had been exhausted. Accordingly, under international humanitarian and human rights law Abdullah Ocalan may not be charged with treason for the defense of the Kurdish people against tyranny and oppression.
THE GOVERNMENT OF TURKEY VIOLATES THE LAWS AND CUSTOMS OF WAR

59. In the course of the Kurdish - Turkey War the armed forces of the government of Turkey have carried out serious violations of the laws and customs of war (humanitarian law), not the least of which is the failure to grant Abdullah Ocalan his POW rights. It is perhaps because of the seriousness of these violations that the government of Turkey seeks to deny there is even a war if there is no war, there are no violations of the rules of war. However, no government, including the government of Turkey, can legally duck responsibility for its acts that violate humanitarian law. Before discussing Turkey's violations, it is important to set out the basis rules.

A. Humanitarian Law Relating to the Conduct of War.

60. In the modern age, the law governing the conduct of combat is frequently referred to as " The Hague law" because the most important multilateral treaties relating to combat were drafted at conferences held in The Hague, the Netherlands. Humanitarian law governing treatment of persons affected by war is now referred to as "Geneva law" because of the important multilateral treaties drafted at similar conferences held in Geneva, Switzerland. Humanitarian law is both customary and treaty-based.

61. Modern treaty-based humanitarian law dates from the first Geneva Convention, promulgated in 1864. The Hague Conventions of 1899 and 1907, multilateral treaties resulting from the peace conferences held in the Hague in 1899 and 1907 developed the law of combat. Subsequent treaties and declarations have focussed on prohibitions against certain weapons (i.e. napalm, chemical and biological weapons) and against modification of the environment for hostile purposes: there have been no major revisions of the law of combat since the Hague Conventions of 1899 and 1907. Customary humanitarian law (including customary humanitarian law discerned by expert opinion) therefore is especially important.

62. The right of combatants to combatant status and POW status if captured is a fundamental or jus cogens principle of the law of military operations-The Hague body of humanitarian law. As noted above, this customary rule was codified in Article 1 of the Hague Regulations of 1907.

63. In addition to the combatant status rule, The Hague law has one more important general principle: any military operation necessary to defeat the enemy forces is legal unless specifically prohibited or limited. Prohibitions or limitations may be found in any source of international law: treaties, customary law, principles of law of civilized nations, decisions of tribunals, expert opinion, the laws of humanity, and the dictates of the public conscience.
Prohibitions may also be included in agreements between the parties to a conflict. Because of the extensive prohibitions and limitations found in these sources of humanitarian law, this principle of humanitarian law is now frequently stated by its corollary rule: the means of warfare are not unlimited. This formula first appeared in the Hague Convention (IV) of 1907 (Regulations, Article XXII): "The right of belligerents to adopt means of injuring the enemy is not unlimited."

64. As of present time, The Hague law limits or forbids certain combat activities: killing a combatant who is sick, wounded or has surrendered; military operations against towns, villages, or buildings which are undefended or against the civilian population or civilian habitations (including foodstuffs and drinking water); and pillage. Military operations against combatants may also be prohibited, for instance if there is a strong likelihood that an undue number of civilians will be killed or injured in proportion to either the enemy armed forces or the military objective.

65. The principle of "necessity" itself presents one of the major restrictions on military operations: a military operation must be "necessary" to defeat the enemy. What constitutes military necessity is usually in constant dispute in any war, with most combatant forces justifying any and all operations as necessary. However, most sources require military operations objectively to demonstrate a definite military advantage. Military operations may not be carried out if the military gain is too small in proportion to the loss of life or property necessary to achieve it. Military operations also may not be carried out if objectively the enemy is already defeated or if the purposes of the war are already achieved.

66. In spite of the extensive prohibitions and limitations to warfare in current customs and treaties, many military operations remain legal even though for political or other purposes they may be condemned. One common military goal is to kill the military or political leaders of the opponent force. While there is growing concern about political assassination, most armed forces consider that in time of war it legal to kill any political or military leader of the opposition as part of a military action. However, if captured, a political or military leader must be held as a POW.

67. Legal military targets include all movable property of the opposing forces, and all transport vehicles used to supply the opposition forces. These can include trains, buses, cars, even if not the actual property of the enemy. Military bases, offices, quartels and camps are legal targets of military operations. Lines and means of communication and transport (railroads, bridges, roads, broadcast facilities, telephone and telegraph facilities having fundamental military importance) are also legal targets. Fuel sources (depots, refineries, and the like) as well as munitions factories or other facilities producing or storing war materiel (arms, uniforms, military food supplies) are all legal military targets. Electric works or other energy supply installations (with the exception of nuclear ones) are also legal targets.

68. At present time, there are no prohibitions against attacking structures related to the enemy's financial capacity: most wars are costly, so targeting the enemy's monetary resources certainly meets the necessity test. Combatants typically try to attack payroll dispensaries, gold or bullion/specie storage facilities, mints, banks and the like.

B. Humanitarian Law Relating to Victims of War.

69. Since the first Geneva Convention there has been substantial development of treaty law protecting victims of armed conflict illustrated by the promulgation of the Geneva Convention of 1906, Geneva Convention (Wounded and Sick) of 1929 and Geneva Convention (Prisoners of War) of 1929, the Geneva Conventions I - IV of 1949 and Protocols Additional I and II of 1977.

70. The law of protections for persons affected by war (Geneva law) also has one overriding principle: combatants hors de combat and civilians not directly engaged in armed combat may not be the target of military operations and must be treated humanely. This body of humanitarian law address the right of combatants to medical care if sick or wounded; the right of medical personnel to treat sick or wounded combatants even if the combatants belong to the enemy forces; the obligation to protect medical personnel, equipment and facilities from military attacks; rules for the treatment of prisoners of war (POWs); and protections of the civilian population from the hazards of war and their right to medical care, subsistence needs and services. Geneva law outlaws torture, slavery, wilful killing (killing outside of legal combat) and other inhumane acts at all times.
71. Civilians may lose their civilian status and be considered combatants if they take part in military operations as militia forces or if they in a substantial way participate in military operations. However, opposing military forces must take on the burden of proving that the former civilians are in fact combatants. If that burden is met, opposing military forces may undertake military operations against the former civilians. However, if captured, these persons have POW rights.

72. In present time, the two bodies of humanitarian law are merging: both Protocols Additional contain provisions historically considered The Hague law. The Protocols both address a wide range of civilian objects that may not be subjected to military action. For example Protocol Additional I expands upon the provision of the Hague Convention of 1907 prohibiting attacks on undefended towns, villages or civilian buildings. The Protocol also provides for duties and protections for civil defense and establishes new regulations concerning aircraft signals and other electronic identification. Both Protocols severely restrict attacks on public works of installations containing dangerous forces: dams, dikes, nuclear installations. These provisions are all considered binding customary law.

73. This modern blending of the two branches of humanitarian law is in part due to the fact that there has been no effort to revise and up-date the Hague Conventions themselves. There has also been substantial development of human rights law which has had an impact on humanitarian law.

C. Abdullah Ocalan's Rights as a POW.

74. Relating specifically to Abdullah Ocalan, he has all the rights set out in Geneva Convention III of 1949, and all rights of POWs under customary humanitarian law, including those set out in Protocol Additional I. The most important of these rights include the right to humane treatment (Geneva Convention III, Articles 12 - 13), the right to certain conditions of detention (Geneva Convention III, Articles 17 - 77) and the right to procedural guarantees (Geneva Convention III, Articles 82 - 108). Serious violations of these rights are "grave breaches" or war crimes under humanitarian law.

75. It is difficult to assess from afar Abdullah Ocalan's treatment or conditions of detention but I can assume there is not full compliance with Article 17 - 77 relating to conditions. For example, internment in penitentiaries is only allowed if "justified by the interest of the prisoners themselves." (Article 22). It appears patently clear that Abdullah Ocalan's detention at the Imrali prison island serves only the Turkish authorities. Other rights are most likely violated as well, such as the right of POWs to mail and relief parcels (Article 72) and adequate food and drinking water (Article 26).

76. Regarding procedural guarantees it is highly likely that Abdullah Ocalan has already been subjected to grave breaches and will continue to suffer as proceedings against him proceed. For example, he has the right not to be tried by any court that "does not offer the essential guarantees of independence and impartiality as generally recognized." (Article 84). A tribunal that neither recognizes his POW rights nor promotes and protects them clearly does not offer the required guarantees. Under these circumstances, Abdullah Ocalan has the right to petition for a proper tribunal and to refuse all further proceedings with the non-complying tribunal. He has the right to petition at any stage in the proceedings and may not renounce his POW rights at any time. (Article 7).

77. Additionally, he may not be sentenced to any penalties that would not be viewed as subject to sentence in respect to members of the armed forces of Turkey. (Article 87). Thus charges relating to treason or terrorism may not be brought against him.

78. This declarant is concerned that there is presently no regular international monitoring of Abdullah Ocalan at his place of detention in terms of his POW rights under the Geneva Conventions and other sources of the laws and customs of war. There are also serious difficulties relating to legal representation. Accordingly, this declarant calls on the government of Turkey and this Court by means of a court order to turn over Abdullah Ocalan to a Protecting Power that will guarantee all of his rights under humanitarian law.

Humanitarian Law (War Crimes) in the Kurdish - Turkey War.

79. In all wars, the international community has a right to investigate compliance with humanitarian law, in particular with the Geneva Conventions, the Hague Conventions and all customary humanitarian law. Neither party in the Kurdish - Turkey War can be charged for acts that do not violate the humanitarian law rules set out above. While there have been many legal military operations by both sides which are not chargeable as breaches, as in all wars, the Kurdish - Turkey War is one with many violations of the laws and customs of war, especially by Turkey's military forces.

A. Violations of the Rights of POWs in General.

79. Protection of all prisoners of war is a fundamental obligation of the rules and customs of war. However, the Turkish government appears to have no normalized treatment of ARGK/PKK prisoners of war. In spite of the nearly 15 years of sustained armed conflict in Turkey, the government of Turkey still has no designated facilities for POWs properly open to inspection by humanitarian organizations such as the International Committee of the Red Cross/Red Crescent. Captured combatants have been shot summarily, tortured and denied all POW rights. These acts constitute war crimes (grave breaches) of humanitarian law and are actionable with no statutory limitations.

B. Ethnic Cleansing/Genocide.

81. For over ten years the government of Turkey has been carrying out "ethnic cleansing" of the region-a major violation of humanitarian law. The Foreign Ministry of Turkey admitting to evacuating 2400 villages. Turkey's actions against the Kurdish people clearly meets the international law test for genocide: killing and causing serious bodily harm, inflicting conditions of life calculated to bring about is physical destruction in whole or in part (ethnic cleansing and other acts).

C. Torture, Summary Execution, Disappearances of Kurdish People.

82. The violations of rights that the international community has acknowledged occur in Turkey (such as torture, violation of the right to life and summary execution, disappearances, and extreme procedural anomalies in the justice system) can also be characterized as violations of the rules of war or violations of humanitarian law (war crimes) when they occur in the context of the war. Most violations of the rights of Kurdish peoples indicated in the above reports and in numerous other reports prepared by non-governmental human rights organizations do in fact occur in the context of the war, and are therefore both war crimes and human rights violations.

D. Wanton Destruction of Civilian Property.

83. The European Court of Human Rights found that the government of Turkey has carried out burning and other destruction of Kurdish villages and property in violation of the European Convention of Human Rights and Fundamental Freedoms and Protocol No. 1. These acts are also breaches of humanitarian law which protects civilians and civilian property from attack and are viewed as war crimes.

E. Interference with Humanitarian Aid.

84. Under Geneva Convention rules, sick and wounded combatants and civilians have an absolute right to care. In spite of this, the government of Turkey has carried out blockades of food and medicine for the Kurdish areas during most of the war. International NGOs have repeatedly condemned this practice at the annual sessions of the United Nations Commission on Human Rights.

F. Verification of Violations in the Kurdish - Turkey War.

85 Verification of violations of the rules of war is a serious problem in the Kurdish - Turkey War. In part, verification is difficult because the Turkish authorities deny there is a war and also denies access to international, impartial monitors. Turkey's "accusations" become accepted fact with no investigation or proof. At least 19 journalists covering the war have been killed, thereby compounding the difficulties of accurate investigation.

86. This situation has allowed the government to make wild accusations against the ARGK and PKK in an attempt to damage the international acceptance of the ARGK and PKK, to reinforce its labeling of the ARGK and PKK as "terrorist" and to turn the Turkish people and the international community as a whole against the Kurdish people. One tactic is to accuse the ARGK of massacring villagers. Independent monitoring of some of these massacres reveals a different story-sometimes Turkish soldiers themselves or anti-PKK/ARGK groups have been implicated. In other circumstances, an event may have been unrelated to the Kurdish - Turkey War. All of the accusations against the ARGK need to be independently investigated by experts in armed conflict. Turkey's violations must also undergo independent study.


RECOMMENDATIONS REGARDING ABDULLAH OCALAN

87. Because of the serious nature of this case and the likelihood of grave procedural violations in further proceedings of this tribunal I recommend the following: (1) that this tribunal and the government of Turkey seek a Protecting Power for Abdullah Ocalan under the Geneva Conventions; (2) in the absence of such action that this tribunal suspend all deliberations relating to the criminal liability of Abdullah Ocalan pending a termination by competent legal authority-at the European Commission or Court of Human Rights if necessary-that it is a proper tribunal in this case as well as an independent and impartial one; (3) that this tribunal issue an order granting Abdullah Ocalan full POW rights, including all rights pertaining to human treatment, conditions of detention and monitoring by impartial humanitarian organizations or other governments.

88. I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge. Executed in San Francisco, California on this the _____ day of May, 1999. Karen Parker