Applying Humanitarian Law: A Review of the Legal Status of the Turkey–Kurdistan Workers’ Party (pkk) Conflict

This article assesses the applicability of the criteria for non-international armed conflict to the situation in South-Eastern Turkey. It demonstrates that the Kurdistan Workers’ Party (also known as the pkk), as a party to the conflict, fulfils the three main criteria laid down in conventional international humanitarian law and developed by indicative factors in international jurisprudence for assessing the existence of a non-international armed conflict in the context of Common Article 3 to the 1949 Geneva Conventions: being an organised armed group, having the ability to engage in ‘protracted violence’, and complying with law of armed conflict. It establishes that the pkk qualifies as an organised armed group under responsible command and has the operational ability, structure and capacity to carry out ‘protracted violence’, to respect fundamental humanitarian norms of international humanitarian law and to control territory. The article also ascertains that Turkey is clearly bound by the provisions of the four Geneva Conventions of 1949, including Common Article 3, and customary international humanitarian law. Accordingly, it concludes that the conflict between the pkk and the Turkish security forces qualifies as a non-international armed conflict within the meaning of both Common Article 3 and customary international humanitarian law.


Introduction
Prior to the mid-twentieth century, international humanitarian law ('ihl') dealt exclusively with armed conflict between States. This reflected the understanding that 'the initiation and waging of war was an exercise of sovereign power, a prerogative held by State, suitable for regulation by international law' .1 Therefore, apart from the consensual recognition of belligerency which was rapidly becoming obsolete, non-international armed conflicts ('niac s') were considered as being exclusively domestic affairs and therefore strictly regarded as beyond the scope of international regulations.2 However, ihl has considerably extended to cover situations of niac s since 1949. The International Criminal Tribunal for Yugoslavia ('icty') Appeals Chamber in the Tadić Jurisdiction Decision recapitulated four reasons for this historical evolution: the necessity for regulation and protection systems given the rising frequency of internal conflicts, the changing nature of those conflicts (protracted), and the rising involvement of third States and use of proxies. No less significant is the shift brought about by the adoption of the Universal Declaration of Human Rights ('udhr'), whereby 'a state sovereignty approach has been gradually supplanted by a human-being-oriented approach' .3 States, in response to the Second World War and the Nazi horror, agreed to adopt Common Article 3 ('CA3') in 1949 and thereby extended the scope of ihl to niac s.4 CA3 remains revolutionary in content for being the first universally 39 accepted treaty provision which regulates niac s, 'what was at time considered by States as being exclusively their domestic affairs' .5 The provisions of CA3 are identical in the four Geneva Conventions and endeavour to impose fundamental humanitarian principles codified in the context of interstate wars to niac s.6 Therefore, CA3 has been recognised as a 'humanitarian convention in miniature'7 and a reflection of 'elementary considerations of humanity' .8 However, the vagueness of the wording of CA3 and its narrow context was not sufficient to fulfil its purpose when the catastrophes of human suffering as the result of niac s were taken into account.9 While interstate wars were in a state of decline, the rates of non-international armed conflicts sharply increased between the Second World War to 1977. According to the statistics, during that time-period, eighty percent of the deaths in armed conflict occurred during niac s.10 This demonstrates the need for more effective legal regulation for niac s. Based on these and other elements, governments and International Committee of the Red Cross ('icrc') experts agreed on an urgent need to strengthen and develop ihl in relation to niac s with the aim of reducing the scale of human suffering.11 These concerns led to the adoption of Additional Protocol ii of 1977 ('ap ii') to the 1949 Geneva Conventions, which remains the only ihl treaty exclusively devoted to niac s.12 According to Georges Abi-Saab, the Protocol provides a: 5 icrc (n 1) [ 40 much greater, and greatly needed, elaboration of the elliptic declarations of principle of Common Article 3, and through introducing new fundamental rules concerning the protection of civilians against the effects of hostilities [such as collective punishment, terrorism, slavery, pillage, rape enforced prostitution, indecent assault and detailed protection afforded to children], as well as the protection of medical personnel and transports.13 The application of these two main bodies of ihl rules that regulate niac s, either by individual application of CA3 or combined application of CA3 and ap ii, had no immediate effect whatsoever on the legal status of parties to niac s under international law.14 Insurgents, as members of a non-State armed group in niac s, unlike in the case of Geneva Convention iii which grants prisoner-of-war status to rebellions, remain subject to domestic laws of their national State.15 A core problem in the life of niac s has arisen from the fact that, in practice, States have proven reluctant to recognise the existence of niac within their territory due to fear that such acknowledgment would increase the authority of the insurgent forces and their recognition as legitimate fighters. This can be seen from a to authoritatively decide on the application of ihl and, as consequence, identify or classify a situation of armed conflict, leaves significant room for States to take advantage of non-recognition of the niac within their territory. This is a fundamental problem in the effectiveness of the niac, and one experienced in this case study of hostilities between the Kurdistan Workers' Party ('pkk') and the Turkish security forces in spite of prolonged evidence of the applicability of ihl. Turkey has likewise denied the existence of a niac within its territory despite prolonged military clashes between the pkk and the Turkish security forces since 1984 either side of a series of ceasefires (20 March 1993 to 20 May  41   1993; 1 September 1999 to 1 June 2004; May 2009 to May 2010; and 21 March  2013 to 22 July 2015).17 Turkey defines the actions of the pkk as 'terrorist' and defines its operations against the pkk in the Kurdish region as anti-terrorist action rather than armed conflict. In doing so, Turkey prioritises its own counter-terrorism and national security legal regime rather than ihl, and the denial of recognition of the pkk as an organised armed group under CA3 and customary international law ('cil') helps to prevent the involvement of the international community and the conferment of undue legitimacy to the pkk.18 Similarly, international institutions (and particularly inter-governmental bodies), as far as the hostilities between the pkk and Turkish State forces are concerned, have been reluctant to express the view that the hostilities have fulfilled the criteria of niac. Rather, they have followed Turkey and proscribed the pkk as a 'terrorist' organisation through the executive's administrative list without any judicial overview.19 However, recent judgments of the European Court of Human Rights ('ECtHR'),20 the European Court of Justice ('ecj')21 and the Brussels Court of Appeal22 have provided an indication that the conflict between the pkk and the Turkish security forces has met the criteria of niac. These decisions, apart from a brief analysis by the Brussels Court of Appeal, have not explained why the pkk is not a 'terrorist' organisation and why non-international armed conflict is applicable to the conflict between the pkk and the Turkish security forces. Seeking to contribute this debate, this article demonstrates that the hostilities between the pkk and Turkey's security forces since 1984 have met the relevant threshold criteria of niac under ihl. It argues that the conflict between the pkk and the Turkish security forces has fulfilled the requirement of niac within the meaning of CA3 and cil. In order to establish this, this article first analyses the regulation of niac s under ihl. The application of ihl to the conflict in the Kurdish region of Turkey will then be elaborated on, demonstrating that Turkey is legally bound by the provisions of the Geneva Conventions and cil. Finally, it establishes that the pkk has fulfilled the three main criteria laid down in ihl treaty law and developed by indicative factors in international jurisprudence for assessing the existence of a non-international armed conflict in the context of CA3 to the 1949 Geneva Conventions: being an organised armed group, having the ability to engage in 'protracted violence' and comply with law of armed conflict. This part also demonstrates that the pkk was able to exercise control over territory, which although not determinative, is nonetheless one possible indicator of the existence of a niac under CA3.

Rules Regulating Non-International Armed Conflict
Rules regulating niac s have developed through two separate but interrelated strands of law: first, through treaty law by adoption of CA3 and ap ii; and secondly, through customary ihl.23 The treaty provisions, however, failed to provide a definition of a niac, opting instead to set out prescriptive criteria.24 CA3 to the four Geneva Conventions of 1949 was the first substantive provision of ihl specifically governing niac s.25 This provision attempts to impose basic humanitarian principles contained in all four Geneva Conventions upon the parties of niac s. CA3 only applies 'in the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties' , and binds 'each Party to the conflict' .26 A more restrictive approach as 43 adopted by ap ii which complements the rules of CA3 with a more developed protection framework to limit suffering during niac s. The core difference, as will be demonstrated below, rests on the level of organisation and the ability to exercise control over territory. Article 1(1) of the Protocol applies to an armed conflict that takes place in the territory of a High Contracting Party: between its armed forces and dissident armed forces or other organised armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.27 It was only in 1995 that the 'most authoritative' definition of a niac falling under CA3 was encapsulated by the Appeals Chamber of the icty. The court assessed whether the conflict in Yugoslavia constituted a niac in the Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction in Tadić. According to the Appeals Chamber: [A]n armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between the governmental authorities and organised armed groups or between such groups within a State.28 This test, as stated by the Tadić Trial Chamber, 'focusses on two aspects of a conflict: [namely,] the intensity of the conflict and the organisation of the parties' .29 These two criteria had been recognised as the core elements of a definition of niac 'decades and centuries earlier' .30 The Tadić test has been widely adopted in the subsequent case law of the icty,31 the International Criminal Tribunal for Rwanda ('ictr'),32 the icj33 and the icc.34 27 See ap ii (n 12) art 1(1). 28 Tadić ( Many scholars have argued that the Tadić test would not be applicable in those cases which fall under the scope of ap ii, due to the fact that the threshold for an organisation requirement under the Protocol is higher than that required by CA3.35 This prevailing view is confirmed by the Boškoski Trial Chamber which stated that 'the degree of organisation required to engage in "protracted violence" [under CA3] is lower than the degree of organisation required to carry out "sustained and concerted military operations" under ap ii' .36 According to the Trial Chamber, this difference is logical considering that the more detailed rules of ihl, in contrast to conflict within the context of CA3, apply in ap ii conflicts, during which an organised armed group must exercise territorial control in order to be 'capable of effectively applying the rules of the Protocol' .37 The question arises whether the same degree of violence is required according to the CA3 and ap ii rubrics. Cullen described that ap ii's requirement of sustained and concerted military operations is '[p]erhaps the most significant aspect' of the Protocol and which distinguished it from CA3.38 He therefore concluded that a higher level of intensity of violence is required under ap ii conflicts in contrast to the threshold of 'protracted violence' required under CA3.39 This view has been confirmed by Boškoski Trial Chamber.40 On the other hand, Sandesh Sivakumaran has warned that the notion of ap ii 'does [not] require a greater level of violence than that required for' CA3.41 He justified his argument on the basis of a number of icc pre-Trial Chamber decisions, which 'have utilized the language of ap ii, referring to notions of sustained and concerted military operations, even though ap ii standards need not be met for the purpose of the icc' .42 He therefore concludes that the requisite level of violence for CA3 and ap ii is the same.43

45
Accordingly, in those cases which fall under the scope of ap ii, the Protocol and CA3 will simultaneously apply as the threshold for the application of CA3 is lower than that of the Protocol. On the other hand, CA3 will apply on its own to those cases which fulfil its threshold but fall below the organisation criteria required by ap ii.44 Indeed, the wording of ap ii and the remarks of icrc delegates show that ap ii 'develops and supplements' CA3 without interfering with its autonomous application.45

Applicability of the Standards of Conflict to the pkk (Kurdish) Conflict in Turkey
The pkk emerged in 1978 and began an armed struggle against the Turkish government in 1984 to obtain recognition of the Kurds' right to self-determination. The pkk, through its armed struggle, sought to liberate the Kurdish population in Turkey from subjugation to a regime that refused constitutional recognition or protection and, thereby, to establish an independent Kurdish State based on Marxist-Leninist state theory and party model.46 As stated previously, Turkey defines the actions of the pkk as 'terrorism' and is reluctant to admit that a state of armed conflict exists within its territory. The Turkish Chief of General Staff referred to clashes between the Turkish security forces and the pkk as 'low-intensity armed conflict' ,47 a conceptualisation of violence that is 'generally used to characterise conflict situations where ihl does not apply' .48 Turkey has further justified this approach as the pkk has been proscribed both by the European Union ('EU') and the United States ('USA') as a 'terrorist' organisation: since 1997, the USA has designated the pkk as a 'Foreign However, the wording of paragraphs 1 and 2 of Article 1 of ap ii and the ictr's Akayesu judgment, have left no doubt that the assessment of a niac is not dependent on the subjective judgment of the parties involved, but rather has to be made on the basis of objectively verifiable criteria.54 Accordingly, provided that the armed conflict between an organised armed group and the State forces objectively fulfils the criteria of CA3 and/or ap ii, and the State has ratified and not persistently objected to Geneva Conventions and ap ii, the rules of ihl would automatically be applicable to the conflict regardless of the parties' subjective judgment. Indeed, recent judgments of the ECtHR, the ecj and the Brussels Court of Appeal have indicated that the conflict between the pkk and the Turkish security forces meets the criteria of niac.
The ECtHR in Benzer and Others v Turkey ruled that CA3 of the Geneva Convention is applicable to the circumstances that have arisen between the pkk and the Turkish army.55 The case concerned the indiscriminate bombing of two Kurdish villages in 1994 during which 34 people, including children, women and elderly people, lost their lives and 13 people were injured. In Benzer, the Court, for the first time in its case law on the Kurdish conflict, cited the principles of ihl regulating the use of force in internal armed conflicts, despite these provisions falling beyond its jurisdiction.56 The Court impliedly ruled that Turkey had violated the Geneva Convention by stipulating that: an indiscriminate aerial bombardment of civilians and their villages … cannot be reconcilable with any of the grounds regulating the use of force which are set out in Article 2(2) of the [European Convention on Human Rights] or, indeed, with the customary rules of international humanitarian law or any of the international treaties regulating use of force in the armed conflict.57 Similarly, the pkk has also been judicially examined as a matter of EU Law, with the ecj looking more specifically at the status of the pkk, not as a matter of ihl (i.e. whether it is an organised group), but on the cogency of its the Council cannot, as in this case, do no more than repeat the grounds for a decision of a competent authority while not itself considering whether those grounds are well founded. That applies a fortiori when the decision in question was not taken by a competent authority of a Member State. The statement of reasons for the contested acts specified [for prescribing the pkk] is such that it is impossible to know whether the Council fulfilled its obligation of verification in that regard and that the Court cannot exercise its power of review as to whether the facts alleged are made out.58 This demonstrates that the ecj also underlined that the assessment of the conflict must be assessed on the basis of objectively verifiable criteria and accordingly there is no room to proscribe the pkk on the basis of mere subjective judgment of Turkey. Indeed, the Court explicitly stated that 'the competent European Union authority is under an obligation to examine, carefully and impartially, whether alleged reasons are well founded' .59 Part of the reason why the ecj was not convinced, was because of the post-1999 ceasefires, meaning the ecj was essentially looking at/for evidence of violence rather than exploring the terrorism vs armed group distinction. Nonetheless, this also demonstrates the significance of judicial determinations -missing from ihl. On Turkey, the ECtHR in Benzer is as close as we have got to a judicial review of the applicable legal rules. Just as the ECtHR didn't provide a thorough examination of the specific status of the conflict and of the pkk, it is also the case that the ecj didn't explore the pkk's status under ihl but rather found lack of diligence and administrative compliance with the 'terrorist' designation process. Finally, on 8 March 2019, the Court of Appeal of Brussels discontinued the prosecution of 39 individuals and two media companies affiliated to the pkk on the grounds that the pkk is not a 'terrorist' organisation and qualified it as an armed force party to a niac with Turkey.60 The main issue in this case revolved around the ihl exclusion clause contained in Article 141bis of the Belgian Criminal Code, which aims to keep separate the application of ihl Actions by armed forces during periods of armed conflict, which are governed by international humanitarian law within the meaning of these terms under the law … are not governed by this Framework Decision.62 The Court held that the ihl exclusion clause is applicable to the pkk case as the pkk is not a terrorist group in the sense of Belgian law but rather 'is party to an armed conflict within the sense of ihl against the Turkish state in Turkey' .63 The Court justified its decision on the grounds that the pkk fulfilled the requisite criterion, namely organisation and intensity, of niac within the context of CA3:64 the Court found that the pkk possess organised armed forces by briefly examining the pkk command structure, its numbers of members and the weapons which the pkk has possessed. Then by briefly referring to statistics in relation to the deaths and the destructions of properties in the Kurdish area, the Court concluded that the clashes between the Turkish forces and the pkk militants fulfils the intensity requirement under CA3.65 Despite the importance of these judgments regarding the status of the niac in Turkey, judges have been reluctant to provide reasons, apart from brief analysis by the Court of Appeal Brussels, for this conclusion. The following examination seeks to provide greater clarity by analysing Turkey's international obligation under ihl and the capacity of the pkk to meet the relevant criteria regarding niac s.

3.1
Are Common Article 3 and Additional Protocol ii Applicable to Turkey? As a matter of treaty law, Turkey is bound by the provisions of CA3, regardless of its position on the status of the conflict and of the pkk. It signed and ratified the four 1949 Geneva Conventions which contain CA3 in 1954.66 In addition to its treaty status, CA3 is also recognised as holding the status of cil, meaning it applies to all States regardless of treaty recognition, as confirmed by the icj in its Nicaragua judgment: Article 3 … defines certain rules to be applied in the armed conflicts of a non-international character. There is no doubt that, in the event of international armed conflicts, these rules also constitute a minimum yardstick, in addition to the more elaborate rules which are also to apply to international conflicts; and they are rules which, in the Court's opinion, reflect what the Court in 1949 called 'elementary considerations of humanity' .67 The call to humanity emphasises the core, fundamental and non-derogable status of CA3. The same view of the customary status of CA3 has been confirmed in a succession of judgments of various international criminal tribunals.68 Therefore, it can be concluded that Turkey is clearly bound by CA3 through treaty law and customary ihl. However, the situation regarding ap ii is more complicated, as Turkey has neither signed nor ratified69 and, in fact, has persistently objected to the application of ap ii to the conflict with the pkk, hence its treatment of the problem as a matter of counter-terrorism. As a matter of treaty law, as governed by the Vienna Convention on the Law of Treaties,70 Turkey is therefore not bound by ap ii. Nevertheless, if ap ii has acquired the status of customary ihl, then Turkey would have to respect the obligations as part of customary ihl regardless of treaty recognition. Accordingly, the question arises whether ap ii has obtained the status of customary ihl.
It is commonly accepted that many provisions contained in ap ii have acquired the status of cil. For example, in 1987 the Deputy Legal Adviser of the US State Department expressed that the 'basic core' of ap ii, 'reflected in Common Article 3 of the 1949 Geneva Conventions and therefore is, and should be, a part of generally accepted customary law' .71 This expansive approach was 67 Nicaragua Many provisions of this Protocol can now be regarded as declaratory of existing rules or as having crystallised emerging rules of customary law or else as having been strongly instrumental in their evolution as general principles.72 The Chamber's opinion touches on a major problem. While there is a notable imprecision in its opinion as to how and also which specific provisions of ap ii have acquired a customary nature, the Chamber was unsure as to whether the Protocol was declaratory of existing rules, crystallised emerging rules, or has evolved as a set of general principles.73 The Trial Chamber went further in Martić, stating that 'violations of the Additional Protocol ii constitute violations of the laws or customs of war' .74 However, there is not authoritative evidence confirming the customary ihl status of ap ii as a whole due to neither the Customary International Humanitarian Law Study nor judgments of international criminal tribunals claiming that ap ii as a whole has acquired the status of cil. Accordingly, Turkey is not bound by the entirety of ap ii, either through treaty law or cil.

Does the pkk Fulfil the Requirements of niac under Common
Article 3? In order to establish whether the hostilities between the pkk and the Turkish security forces qualify as a niac under CA3 and customary ihl, we must assess whether the pkk fulfils the three main criteria laid down in ihl treaty law, and developed by indicative factors in international jurisprudence for assessing existence of a niac in the context of CA3. The following discussion demonstrates that the pkk has met these three criteria, namely: being an organised armed group, having the ability to engage in 'protracted violence' and comply with law of armed conflict. It also reveals that the pkk was able to exercise control over territory, which although not determinative, is nonetheless one possible indicator of the existence of a niac under CA3.

3.2.1
The Organised Armed Group Requirement It is universally accepted that a non-State armed group engaged in hostilities with a State's forces must have a certain level of organisation to qualify as a party to a niac within the context of CA3.75 The icty Trial Chambers underlined that organised armed groups 'do not necessarily need to be as organised as the armed forces of a State' .76 Therefore, the requisite degree of organisation 'must not be exaggerated' . As stated by various international criminal tribunals, 'some degree of organisation'77 or 'a greater or lesser degree'78 of organisation by the parties will suffice. The ihl treaty law and international jurisprudence spell out three main reasons for rationality of the requisite degree of organisation.79 The first reason is based on interdependency between the requirement of organisation of a non-State armed group and its ability to fulfil the 'protracted violence' requirement. The icty, in its Haradinaj et al judgment, underlined that all parties to an armed conflict must be 'sufficiently organised to confront each other with military means' .80 Second, the functioning of organisation of a non-State armed group demonstrates the collective character of the violence, which is therefore carried out by the collective entity rather than by random individuals.81 Third, it has been submitted within international jurisprudence and by scholars that a non-State armed group needs to be sufficiently organised in order to have the ability to respect basic humanitarian requirements of the law of armed conflict.82 Prosecutor v Boskoski & Tarculovski (n 36) [197]. 77 Prosecutor International criminal tribunals and the icc Chambers have underlined that non-State armed groups must possess command structures which 'exercise an effective control over subordinates'83 in order to function as organised and satisfactorily carry out the above-mentioned three essential criteria. The notion of command structure, as stated by the Tadić Appeals Chambers, distinguishes the organised armed group from randomly connected individuals in the sense that its members 'conform to the standards prevailing in the group and are subject to the authority of the head of the group' .84 It is important to highlight that the notion of command structure neither requires a hierarchical military structure with a leader at the top nor a strict chain of command.85 The crucial point for satisfying this requirement, as stated by the Report of the Secretary-General of the United Nations, is to demonstrate that there are individuals who are 'capable of ensuring generally the execution of … orders, including, as far as possible, respect of the laws and customs of war' .86 Various international tribunals have suggested a number of indicative factors for assessing the requisite level of organisation of an armed group in line with CA3. These non-cumulative 'organisational criteria' were consolidated by the Boškoski Trial Chamber under the following five groups: a. e. The ability of the group to speak with one voice; i. Indicators: the capacity to act on behalf of its members in political negotiations and conclude cease fire agreements.87 A sufficient body of evidence shows that the pkk fulfils each of these broad requirements. The pkk is a strict hierarchical organisation according to the principle of democratic centralism. It consists of a Central Executive Committee led by Abdullah Öcalan. The task of this body is to supervise the overall activity of the movement and to represent and speak on behalf of the organisation. This body is presided over by a Central Committee which is the main governing body of the pkk. This committee is elected by the members of the pkk during its Annual Congress. The Central Committee consists of many subcommittees such as youth, women, students, disciplinary, political, judicial and military.88 The Prosecutor systematic aspect of the pkk recruitment policy and the effectiveness of its military training for combat with the Turkish security forces.93 Similarly, the pkk has a systematised financing policy. The armed struggle of the pkk has been funded through a 'revolutionary tax' .94 According to a nato Terrorist Threat Intelligence Unit report the pkk raises a 'total of $50 to $100 million per year' .95 A quick glance at the structure and operation of the military wing of the pkk, the Kurdistan People's Liberation Army ('argk/hpg'), further proves how systematically the armed defence of the pkk is organised. The ARGK/hpg consists of regular mobile forces, guerrilla units, militia and self-defence units and armed city partisans. The ARGK/hpg is responsible for providing military training to new militants, and takes direct military action against Turkish military forces.96 The capability of the pkk to coordinate a unified military strategy through a chain of command and the operational effectiveness of this strategy also shows the level of organisation within the pkk. The command structure employed by the pkk plays a crucial role in the overall functioning of the organisation. The ARGK/hpg holds its conference every two years. It comprises the members of the Council and elected delegates from local units. The delegates of the Conference elect the Council of the ARGK/hpg (composed of 41 members) and implement strategic military plans. The Council, in turn, elects the 13-member Command Council. The Command Council elects, with a 2/3 majority, the Commander-in-Chief of the ARGK/hpg. Daily operational command is exercised by a General Staff under the leadership of the Commander-in-Chief. The Command Council appoints zone commanders and gives direction to various units within the pkk. The zone commanders give orders to subordinate groups and soldiers.97 The latter are obliged to obey such orders as otherwise they would be subjected to disciplinary procedures.98 This indicates how the pkk has a developed and documented system of military discipline within an organised leadership structure. The ARGK/hpg Council also organises the purchase and supplies of weapons and ammunition and distributes them to the units. The ability of the ARGK/ hpg to change its military tactics also reveals that the pkk has a unified military strategy which is implemented through the hierarchy of a command structure.99 In the second half of the 1980s, the pkk carried out extensive attacks on the Turkish security forces, which forced the army to withdraw from rural areas of the Kurdish region for the sake of defending larger settlements and villages. By the end of 1991, the pkk transformed its guerrilla warfare tactics into a conventional military strategy with the intention to extend its control from rural areas to towns by controlling towns for weeks through popular uprisings.100 The pkk re-implemented its urban combat tactics after the collapse of the peace talks with the Turkish government in 2012 and 2015, in the whole of the Kurdish region as part of its 'revolutionary people war'101 and where clashes have taken place for months and more than a year respectively.102 This proves the capability of the pkk to formulate and declare a change of the military tactics as well as conditions for refraining from military actions in accordance with any peace process.
Further evidence that the pkk fulfils the threshold requirement for organisation is that it has long-established bases,103 including headquarters in Qandil Mountains in Northern Iraq;104 its members wear uniforms in the mountains; and the organisation implements strict internal disciplinary procedures.105 Finally, the capability of the pkk to go through with a series of ideological and structural transformations can be observed at various points throughout the conflict: the pkk replaced its aim of establishing an independent Kurdistan within the territory of Turkey with the concept of democratic autonomy within Turkey that would accommodate the Kurds' cultural, linguistic and political demands in 2000;106 the issuing of political statements; the declaration of several unilateral ceasefires107 and recent peace talks (2006-2011 and 2012-2015) with Turkey mediated by the United Kingdom108 demonstrate that the pkk has managed to speak with one voice. Indeed, strict obedience of pkk members to retreat from Turkey's territory after instruction of their abducted leader Öcalan in May 2013109 demonstrated pkk commitment to the peace process and a high level of organisation and coordination. In considering the ongoing hostility between the pkk and the Turkish security forces since 1984, it can be concluded that the pkk meets the requirement as an organised armed group as it has achieved a level of organisational stability and effectiveness.

3.2.2
The Requirement of Intensity Organised armed groups must '…have the ability to plan and carry out military operations for a prolonged period of time'110 against the State's military forces in order to satisfy the required threshold of 'protracted violence' under CA3. The 'protracted violence' necessitates criterion that violence be of a certain level of intensity in order to transform a conflict into a niac111 and distinguish it 'from cases of civil unrest … or terrorist activities which are not subject to international humanitarian law' .112 Different opinions have been expressed on how to identify the requisite level of intensity. The main question is whether the gravity of violence or its duration should be the principal determinative factor in assessing the intensity threshold under CA3. Yoram Dinstein rightly iolence that is protracted but not intense, or intense but not protracted does not amount to a niac' .113 This view has been endorsed by the icty, which has incorporated both components amongst its several non-cumulative 'intensity of hostilities criterion' in assessing the intensity of armed violence in the context of CA3. The list of these indicative factors was spell out by the Boškoski & Tarčulovski   Turkish security forces conducted large-scale operations against the pkk during this time period.119 For example, in 1993 the State carried out operations with almost half of its land forces of 185,000 soldiers, special police units, special anti-terror unit and, village guards. These forces amounted to more than 300,000 members120 against 15,000-20,000 guerrillas. Though the Turkish army has conducted air offensives, air bombardments and deployed war planes against the pkk, the State armed forces rapidly lost control of the Kurdish region between 1990 and 1995.121 Since then, the Turkish army has systematically employed even more intensive pattern of military actions against the PKK. For example, International Crisis Group noted that in August 2012 alone, Turkish security forces made at least '400 incidents of shelling, air bombardment, clashes or other armed actions' against the pkk.122 Although the Turkish security forces were far more numerous and better trained and equipped, they have been unable to defeat the pkk. The pkk, apart from the ceasefire periods, has launched countless ongoing attacks against many 'legitimate targets' which includes 'members of the Turkish security forces; members of Turkish contra-guerrilla forces; members of the Turkish Intelligent Service and village guards' .123 The hpg's armed actions take several forms: kidnapping, sabotage, and destruction of infrastructure, roadblocks, shooting incidents, actions involving the killing of individuals, and bombings.124 The intensity of attacks reached a peak after the pkk declared to establish the 'Botan-Behdinan War Government' within the territory of south-eastern Turkey and the north of Iraq at its fourth Congress on 26-31 December 1990.125 The pkk has established strict territorial control in the rural 118 Resmi August 2015 until April 2016.144 During that time, the most intense, sustained and concerted clashes between the pkk and Turkish security forces caused the deaths of 2,000 people. The Turkish State regularly deployed war planes during this time in order to regain control in this region.145 This disproportionate use of force against pkk youth militia in densely populated Kurdish areas during the curfew period was also detailed by the Office of the United Nations High Commissioner for Human Rights ('ohchr'), including the indiscriminate shelling of cities with heavy artillery, tanks and air-dropped munitions.146 The unprecedented eruption of fighting between the pkk's militants and the Turkish security forces in the urban district of south-eastern Turkey during the curfew, was followed by a gradual of shift of violence into rural areas from the middle of 2016. As confirmed by the International Crisis Group, the Turkish security forces carried out the most intense and the longest military operations in years against the pkk militants in the provinces of Diyarbakir by deploying approximately 7,000 soldiers in March 2017.147 In the same time period, the clashes between both sides had also gradually increased in other provinces of the south-eastern Turkey such as Hakkari, Botan, Mardin Dersim, Agri and Bitlis. 148 The International Crisis Group report also noted that between May and September 2019, the Turkish army launched at least 76 cross-border air operations against the pkk in and around its headquarters, in the Qandil Mountain. It confirmed that 90 pkk members and 11 Turkish soldiers were lost their life as the result of these fatalities.149 The pkk has also further systematised its attacks against the State security forces in the rural area of the Kurdish region since 2016. For example, in March 2020, the pkk conducted a largescale operation against the Turkish army in the province of Agri and killed 79 Turkish soldiers.150 The pkk attacks are not restricted in the Kurdish region. The pkk has managed to carry out military actions in every part of Turkey. For example, on 7 December 2009, its militants attacked Turkish defence forces and killed seven 62 of them in Tokat in the Black Sea region, which is one of the farthest places from the Kurdish region.151 Another example was the abduction of 20 members of the Turkish intelligence service, including the director and human resources director of the Turkish intelligence service, by the hpg forces in Northern Iraq on 4 August 2017.152 This highlights the ability of the pkk to determine a unified military strategy and coordinate and conduct large scale military operations against Turkish security forces across Turkey and also in foreign States.
The resistance of the pkk and its success against the Turkish security forces, the second largest nato army,153 which have spent $450 million dollars in the fight with the pkk,154 further signifies that the pkk has a certain degree of organisation which has enabled it to plan and sustain a military confrontation over a protracted period. The high intensity of the war, which sometimes involved half of the Turkish land forces155 and cost the lives of more than 40,000 people,156 including the destruction of 3,215 Kurdish settlements157 and forcible displacement of around 4 million Kurds from 1984 to 2001, remains ongoing.158 For example, according to the ohchr at least 2,000 deaths159 and total destruction of more than 24,000 buildings occurred during the curfew period.160 To conclude, the capacity of the pkk to plan and coordinate more than 100,000 large scale military operations in accordance with the State statis-tics161 over 37 years, leaves no doubt that the pkk has fulfilled the requirement intensity of violence under CA3.

3.2.3
The Ability to Comply with the Law of Armed Conflict CA3 requires that the non-State armed group must have the necessary organisational ability to ensure respect for fundamental humanitarian norms of ihl in all activities.162 This obligation does not require actual implementation and compliance with the law but rather, as stated by the Boškoski Trial Chamber, 'the organisational ability [of non-State armed group] to comply with the obligations of international humanitarian law'163 would be decisive. International tribunals and scholars have underlined that non-international armed groups can only reach the requisite threshold of respect for minimum ihl's obligations provided they have certain level of the discipline within themselves which obliges 'the practice of training people to obey rules or code of behaviour [and] using punishment to correct disobediences' .164The Boškoski Trial Chamber has found indicators such as the existence of regulations or codes of conduct; military and ideological training of group members; the existence of disciplinary mechanisms or inflict punishment to ensure discipline within the group and respect for ihl. 165 The pkk has explicit and clear rules, training and orders as well as an effective sanction system which ensures its members respect its rules. The pkk Central Committee issues rules and orders, and its hierarchal chain of command ensures that its members follow and enforce the rules within the group. The pkk disciplinary system is governed and enforced through its disciplinary committee. Those members who break the rules can be subjected to an 'oral reprimand'; a 'written critique'; 'detention'; 'complete isolation from the group and being subjected to an individual theoretical education'; and 'handing over his/her weapon and working in non-military services' .166 If the disciplinary committee thinks that the member of the group has committed a gross violation of the rules, it can refer the case to the military court which can then order to 'dismiss the person from his/her duty' , to 'suspend the membership of the person' , or to 'expel them' from the pkk.167 The pkk is not a State as defined by international law and therefore cannot sign international treaties, but it adopted a system of discipline to ensure that its members respect international humanitarian law.168 The pkk and argk/hpg have adopted regulations and codes of conduct including rules governing warfare and humanitarian law and have declared adherence to a number of international conventions. In 1995, the pkk officially communicated with the Swiss government and explicitly declared its political commitment to observe the Geneva Conventions and signed an agreement with Geneva Call, a Swiss-based non-governmental organisation, in order to formalize its commitment.169 This is confirmed by a statement to the United Nations which states: In its conflict with the Turkish state forces, the pkk undertakes to respect the Geneva Conventions of 1949 and the First Protocol of 1977 regarding the conduct of hostilities and protection of the victims of war and to treat those obligations as having the force of law within its own forces and the areas within its control.170 The pkk's compliance with some of the fundamental humanitarian norms of ihl has been confirmed by both independent international monitoring institutions and domestic human rights organisations. A report by the Turkish Human Rights Association ('ihd') confirms that the pkk complied with the Geneva Conventions, especially on the rights and treatment of prisoners of war, even prior to its official commitment. According to the report, the pkk abducted 335 members of the security forces between 1990 and 2012, some of whom were imprisoned for two years. Hostages were considered war prisoners and treated as such under the Third Geneva Convention, with the provision 166 pkk of medical assistance to wounded soldiers, food and family visits. 171 The ihd report confirms the pkk has released all hostages and handed them over to either icrc members or domestic human rights organisations. The individual accounts of some of these hostages confirm what is stated in the report. 172 This shows an ability of the pkk to comply with the fundamental guarantees for the protection and care of persons deprived of their liberty and to treat prisoners humanely contained in Article 1(a), (b) and (c) of CA3, which also constituted cil even before its declaration of official commitment to respect ihl. 173  The monitoring procedure of Geneva Call, which is an independent international organisation, reveals that the pkk complied with both commitments in practice.175In relation to allegations by the Turkish government that the pkk has planted anti-personnel mines, Geneva Call has repeatedly called on both Turkey and the pkk to conduct missions of verification and noted that 'this [request] was always ignored by [Turkish] authorities whereas the pkk welcomed the offer' .176 This highlights the professed intention and ability of the pkk to comply with the Anti-Personal Mine Convention, as its scope extended to niac s.177 Likewise, the pkk invited Geneva Call to monitor its commitment to the protection of children in armed conflict. Geneva Call observed that the pkk has sent children under 18 back home where they would not be subjected to persecution by the State. Those children of between 16 and 18 who have remained on a voluntary basis have been separated from military units and 'were receiving an education on subjects such as geography or mathematics, and … were kept far from any military activities' .178 This further demonstrates pkk commitment to comply with the wording of Article 4(3)(c) of the Protocol and its prohibition of recruitment of children under the age of 15, also a cil rule.
There is sufficient evidence of a declared intention and practice of the pkk working to comply with fundamental humanitarian norms contained in CA3 and the above-mentioned rules of customary ihl. This includes by way of public prosecutions for breaches of ihl. For example, on 1 August 2010, four civilians were killed in Batman (in south-eastern Turkey) as the result of a mine expulsion. Shortly after the incident, the hpg General Staff brought an action against two of its members for their involvement in the incident to the hpg Military Court. On 30 November 2010, the Court found that the mine led to the death of four civilians by the defendants. It considered this practice a violation of 'the pkk international obligation under the Anti-Personnel Mine Convention which has been incorporated in hpg domestic law through the hpg fourth conference' . Therefore, the Court found the defendants guilty and imposed sentences of 20 and 24 years' imprisonment respectively for each defendant. It also ordered the hpg's Commander-in-Chief to give a public apology to the victims' families.179

3.2.4
The Requirement to Exercise Control Over Territory There are two schools of thought with regards to whether the requirement to exercise some degree of territorial control by an organised non-State armed group is necessary for the purposes of a niac according to CA3. On the one hand, it has been argued that an organised armed group must exercise control over 'some part of the national territory' in order to carry out its obligations under CA3.180 On the other hand, a number of influential bodies have declared that the territorial control requirement 'is not at all determinative' . In support of the latter view, Tilmann Rodenhauser argues that 'neither the wording of Common Article 3 nor its context require' control over territory by a non-State armed group as a necessary criterion in assessing the existence of a non-State party to a niac.181 According to Sivakumaran the root of this confusion might arise from citing the icrc Commentaries on CA3, which contain a compilation of proposals made at the 1949 Diplomatic Conference that include the requirement of territorial control, as an authority for the existence of a niac under CA3.182 Those scholars who object to the requirement of territorial control in the context of CA3 persuasively claim that a degree of territorial control on the part of non-State armed groups would certainly be useful evidence in determining that a niac is taking place. This is because control over territory by the organised armed group would further strengthen the case of the organisation of the group, its ability to plan and carry out protracted armed attacks, and to fulfil certain humanitarian obligations.183 Conversely, the absence of control over territory by a non-State armed group does not preclude the existence of a niac in the context of CA3, whereas it would prevent the application of ap ii.184 Even the threshold of an explicit requirement of territorial control contained in Article 1 of ap ii should not be interpreted as requiring a government-like control over a part of territory. As such, strict interpretation would 'severely limit the [the Protocol's] real significance and usefulness' in taking into account the nature of guerrilla warfare.185 The requirement can be made providing the organised armed group has undermined territorial control by the government 'without necessarily exercising complete or continuous control over an area' .186 Control over a 'modest area of land' that escaped 'the control of government forces' might be sufficient. Indeed, the International Commission of Inquiry on Darfur endorsed this view by noting that 'certain rural areas' over which 'control [is] not fixed' by 'mobile guerrilla group[s]' is sufficient for the purpose of the Protocol.187 The above analysis demonstrates that the notion of territorial control is one of the possible indicators of the niac, but it is not required for the existence of a niac in the context of CA3. Despite this fact, this section examines how far the pkk has fulfilled the requested requirement of territorial control in order to further prove that the pkk possesses certain levels of organisation which makes it capable of not only planning and carrying out 'protracted violence' , but also respecting humanitarian rules and principles. The pkk had effective territorial control of rural areas in the Kurdish region from 1984 until 1993.
Half of the Kurdish provinces were declared 'semi-liberated zones' by the pkk where the security forces were unable to remain in control and enter for longer periods of time.188 During this time, State authority almost disappeared in the region and State institutions were replaced by the pkk's parallel institutions such as courts and schools. 189 The pkk has continued to exercise strict regular control over certain rural areas in south-eastern Turkey since 1993, but due to its operation as a mobile guerrilla group, these areas of control are not fixed. Despite withdrawing its forces outside Turkish State territory for five years between 1 September 1999 and 1 June 2004, it nevertheless was capable of regaining territorial control of many of those rural areas since the peace process collapsed in 2004. 190 The pkk has divided south-eastern Turkey into nine regions and spread its groups within these regions, each of which has a geographical 'safe haven' . For example, it is reported that the pkk has at least nine camps in the Botan region alone. 191 The pkk use these safe havens to provide ideological and military training to its members; to regroup after battles; store weapons and supplies; to imprison those abducted by them; and to plan and coordinate their operations .192 In addition, the pkk has strictly re-implemented its strategy of holding territory in certain parts of the Kurdish region after the re-collapse of peace talks with the Turkish State in 2012.193 Between July and September 2012, it declared a 35km liberated zone within Turkish territory and covering two Kurdish cities. It set up checkpoints, and journalists and observers were required to have permission from the hpg's members in order to enter this area.194 Between August 2015 and April 2016, the yps erected barricades, dug trenches and held 10 Kurdish cities and 39 towns, which declared democratic self-governance after the collapse of the peace process, and denied government incursion into these self-governance areas despite offensive tactics by the Turkish security forces. As a result, the State security forces could only partly regain control of these places after a year.195 In parallel to the shift of violence from urbans areas to rural areas since April 2016, the pkk militants also expanded their territorial control strategy in the rural areas of south-eastern Turkey. The Turkish media reported that the pkk established many mini Qandils (the pkk headquarters) within Turkish territory,196 some of which have fully-equipped hospitals. Finally, the establishment of the 'Medya defence areas' within the borders of Iran-Iraq and Turkey, containing more than 600 villages and 23 camps on 150 hectares since 2006,197 further confirms that the pkk has satisfied the restrictive territorial control criterion required by ap ii.

Conclusion
The above examination demonstrates that the pkk struggle is not a guerrilla war of sporadic attacks and that the conflict does not consist of limited insurgency or isolated and sporadic violence or terrorist attacks, but is a prolonged violent armed conflict with a certain intensity, over a widespread and expanding geographic area for a period of more than three decades.. The goal of the pkk is not to instil fear in a population or terrorise civilians. Rather, through its armed campaign, the pkk has consistently maintained its aim of liberating Kurdish people from subjugation by an oppressive State infrastructure which denied recognition of Kurds and Kurdish political participation and representation. The pkk initially intended to establish an independent Kurdish State, a goal revised in 2000 as the focus turned to a Democratic Confederalist model within the territory of the Turkish State. Considering that violence took place within a sovereign State and with the involvement of thousands of military members, and that the pkk fulfilled the three main essential criteria and the additional control over territory criterion for determining the existence of a niac under CA3, it can be concluded that the Kurdish conflict in Turkey constitutes a niac within the meaning of both CA3 and cil. However, this does not prevent the Turkish government from continuing to treat the pkk as a criminal organisation given that the provisions of the CA3 do not affect the legal status of the parties to the conflict. Nonetheless, in international law the two sides to the conflict should be adhering to the same rules in respect of the conduct of hostilities. The protection of civilians and combatants depends on application and respect for the fundamental, customary norms of ihl.