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June 11, 2010 The Kurds in the Bilateral and the Multilateral Treaties

Kurdishaspect.com - By Saeed Kakeyi

Abstract

This paper examines the effects of treaties as instruments of International Law applied for and against the Kurds before and after the World War One (WWI) and the legacy that it has left behind. The end of the WWI was characterized by a shift from empires to the European nation-states system. This transition produced the redrawing of political borders. As victors of the War, colonial self-interest powers had the supremacy to influence the future of the Middle East in terms of creating nation-states. A mandate system was implemented and the Great Powers divided the Middle East into British and French spheres of influence. In so doing, the Kurds were left without a state. This research paper provides a legal analysis for the Kurds and examines the treaty making obstacles they face today as the struggle for independence or at least autonomy continues.

Introduction

Because we live in a world of nation-states, International law, therefore, is a legal mechanism of disparity which cultivates the need for conflict as a recurring phenomenon. In such an anarchic environment, the position of the 40 million Kurds is a profoundly difficult one. Their indigenous homeland, Kurdistan, is divided against their will between four sovereign states, none of which recognizes their lawful rights for self-determination.

The Kurds, scattered between Turkey, Iran, Iraq and Syria as the largest minorities in these states, claim that their worldviews are incompatible with those of their ruling nations. Their needs and interests are coherent vis-à-vis the norms and values of the international community, and their positions are in match with the requirements of Balance of Power and Balance of Threat. Yet, parties to the Kurdish conflict think otherwise. The regional powers think of Kurds as historically, socially and culturally are threats which tend to destabilize their authorities. As for the International community, however, Kurds are perceived as an elusive element in the Middle East which should be kept passive and be used as needs arise as effective bargaining chips.

Instead of providing a historical background on these people, this paper will shed light on their worldviews by providing and analyzing some critical treaties concluded on their destinies for the last 500 years. 

The essay will define “treaty” as binding instrument in both; generic and specific terms. Then, it will depict some critical bilateral and multilateral treaties as reasons for the ongoing Kurdish struggle.

The paper provides a critical analysis for the role of the colonial powers in the legitimization and then the denial of the Kurds right to self-determination. It will also provide reasons for the interchanging internalization, regionalization and domestication of the Kurdish struggle throughout the twentieth century and up to the present day.

Definition of treaties

The term "treaty" can be used as a common general term or as a particular term which indicates an instrument with certain characteristics. 

The general term "treaty" has been used on a regular base to include all instruments binding at international law concluded between international entities in written form, regardless of their formal designation. The 1969 Vienna Convention confirms this understanding. The 1969 Vienna Convention on the Law of Treaties defines a treaty as "an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation" (Janis and Noyes: 2006, 926). 

However, as a specific term, "treaty" is usually used for issues of significance that require more serious conformities. Their signatures need to be sealed and they are required to be ratified. Typical examples of international mechanisms known as "treaties" are peace treaties, border treaties, and treaties of friendship and cooperation which will be covered in this paper.

The Kurds in the treaties signed between the Persian and the Ottoman empires Kurdistan was highly contested between the rulers of the Safavid Persia and Ottoman Empire.  In 1508, the struggle over the control of Kurdistan between the two empires began.  

For Safavids, which declared Shia’ism as their empire’s religion, the annexation of Kurdistan and the control of Mesopotamian plain (present-day Iraq) meant the expansion of Shia’ism and ensured access to the Shia holy cities of Najaf and Karbala. On the other hand, the Ottoman Empire saw Kurdistan and the Vilayets (Provinces) of Baghdad and Basra as the bread baskets which greatly contribute to its economy. The Shatt al-Arab river was also of great importance to the Ottomans as it was their only access to the Persian Gulf.  As Sunni Muslims, the Ottomans interpreted the Safavid’s Shia influence in the region as a direct challenge to authority in the Arab world. As a result, the Ottoman Sultans supported the Kurds and the Sunni Arabs to stand against the Safavid Shia expansion.  The subsequent conflict between the Ottomans and Persians lasted more than three hundred years and amplified the pre-existing hostilities between the Shias and the Sunnis of the Islamic World (Bahadori: 2005, 7).

Shah Ismail of the Safavids captured Kurdistan in 1508.  Shortly thereafter, Sultan Selim I of the Ottomans regained control of much of Kurdistan in 1514. However, using a mixture of Turkish and Arab soldiers, Sultan Selim I was not able to get the needed Kurdish support in his Chaldiran Battle of 1514 to completely regain Kurdistan (2005, 8). 

However, after decades of continual warfare, both sides deemed a complete military victory over the other unachievable. On May 29, 1555, emissaries from the Ottoman and Persian empires met in Amasya (present-day Turkey) and signed the Treaty of Amasya (2005, 8). This agreement is the first recorded treaty between the Persian Empire and the Ottoman Empire on Kurds regarding the partition of Kurdistan. The treaty remained in effect for nearly twenty years until warfare erupted between the two empires. The Ottoman Empire retained hegemony over western Kurdistan and Vilayet of Baghdad until the latter was captured by the Persians in 1623. The ongoing war between the Persians and Ottomans over Kurdistan came to a relative end in 1639 with the signing of the Treaty of Zuhab (2005, 8).

The 1639 Treaty of Zuhab was the first agreement between the Ottoman Empire and Persian Empire to outline a border, roughly partitioning Kurdistan into two: East Kurdistan ruled by the Safavids and West Kurdistan under the Ottomans. Though the treaty brought an end to significant warfare in the 17th century, it was inherently flawed and failed to prevent future conflicts. This was due to nature of the treaty which “was written under Islamic principles,’ and was referred to as a Sulh, which is an Arabic term for a decade long nonbinding truce (Cusimno, 1992). 

However, in spite of the centralized conformational policies of the Otto-Persian empires, several Kurdish dynasties survived into the first half of the nineteenth century: Mukriyan and Ardalan in Persia; Botan, Makari, Badinan, Soran, and Baban in Turkey. However, none of these dynasties had allegiance to either empire. 

During the latter part of the 17th century, revolts occurred by Kurdish tribal leaders against the Ottoman or Persian state, often times by instigating unfair taxations and applying them to their out of jurisdictional dynasties. Not only was this a problem for the expired treaty of Zuhab, it also set a precedent for future conflicts in the region.

In 1733, full-scale war broke out once again when Nader Shah of Persia attempted to capture Baghdad. The siege and accompanying battles ended in 1746 with the agreement of the Treaty of Kurdan which reiterated the borders laid out in the Treaty of Zuhab; however, it did little to accommodate the shifting Kurdish loyalties within the border region. Once again, the Treaty of Kurdan was not meant to last long. Especially, as no surprise, when in 1775, Karim Khani Zand, founder of the Kurdish Zand Dynasty of Persia, attacked and occupied the Vilayet of Basra (2005, 9).

The occupation of Basra lasted through the turn of the century, but ended in 1821 when another war took place in Northeastern Kurdistan between the two empires. Both wars ended with the assistance of British mediation which resulted in the signing of the Treaty of Erzurum in 1823. This treaty incorporated “the basic ideas set forth in the two previous treaties” (Cusimno, 1992). In addition, the Treaty added two new western characteristics vis-à-vis border relationship. First, it helped in creating border zones instead of previous frontier lines. Second, by referring back to the Treaty of Kurdan’s principles of reconciliation, the Treaty strictly called for the non-intervention of both sides in the others’ affairs (Cusimno, 1992). As it states in Article I of the treaty:

“From this period, on the side of Baghdad and Kurdistan no interference is to take place, nor with any Districts of the Divisions of Kurdistan within the boundaries, is the Persian government to intermeddle, or authorize any acts of molestation, or to assume any authority over the present or former possessors of those countries” (2005, 9).

While the terms of the treaty were clear, both sides continued to intervene in each other’s Kurdish affairs to the extent that endangered the interests of foreign powers in the region. By 1840, tensions over the Kurdish unrest along the Otto-Persian borders nearly brought the two empires to war. However, Britain which had a strategic interest in Ottoman territories established a boundary commission composed of Iranian, Turkish, British and Russian diplomats to mediate the conflict. In 1847, the Persians and Ottomans, with the help of the newly created commission, approved the Second Treaty of Erzurum (2005, 10). Kurds, treaties and self-interest colonial powers

The Second Treaty of Erzurum, in accordance to a British proposal, emphasized that the Persian government could not interfere in Kurdistan by supporting their struggle against the Ottoman Empire. Article VIII of the treaty states that “[t]he two agreeing countries confirm to peruse all essential means to punish those individuals who engage in violence and criminal activities along the borders” (Sabir: 1966, 157). Thus, the second revision of the treaty not only outlined new terms for the two empires, but also brought the first foreign intervention in Persian-Ottoman relations. While small, occasional border disputes did occur; the two empires did not engaged in another large-scale war due to the presence of the foreign powers.

The chaotic relationship between the Persian and the Ottoman Empires saw four centuries of interrupted warfare. The Ottoman period amplified the ongoing Kurdish conflict. The Persian and Ottoman governments further integrated the Kurds into a territorial struggle. Along with pre-existing hostilities, the conflict became a clash between two empires. This ongoing clash equally benefited the British and the Russian governments. As a matter of fact, it was a perused joint policy of Britain and Russia to sustain the animosities between the Ottoman and Persian Empires. Sir Palmerston, the British Ambassador at the time in Petersburg, Russia, stated that “If the Great Britain and the Tsarist Russia are not desirably willing to end the Persian-Ottoman conflict, then it will never come to an end” (1966, 157).

According to Kamaran A. Muhammadamin, the effects of the Russian and the British influence in the region reached a level at which more often than not Russian and British diplomats were drafting texts of the Persian-Ottoman treaties and that upon their requests the Persians and Ottomans used to held their conferences and diplomatic engagements (2000, 72). 

The influence which Britain and Russia, had in Persian and Ottoman affairs was due to have a continuing access to the Persian Gulf along with their economic market exploitation objectives. For the Brits securing the “Silk Road” between India and Europe through Kurdistan, had all reasons to keep the Kurds apart and weak. As for the Russians, the unhappy Persian-Ottoman Kurds were a critical element in helping gain territorial advances and to keep its southern rivaling neighbors of Turkey and Iran preoccupied with internal affairs.  However, to the Kurds’ dismay, the Russo-Turkish war of 1877-1878 “brought devastation, famine, and general hardship accompanied by disease, banditry and violence, especially in north and southern Kurdistan” (Olson: 1991, 5). 

Yet, to complicate the situation furthermore, the Treaty of Berlin which was signed on 13 July 1878 ending the Russo-Turkish war, described the Kurds as a party of aggression against the Armenians living in northeastern Kurdistan. Article 61 of the aforementioned treaty stated that the Sublime Porte would undertake “improvements and reforms demanded by local requirements in the provinces and inhabited by the Armenians, and to guarantee their security against the Circassians and Kurds” (1991, 5).

With the discovery of oil in 1908, the policies of the colonial powers of Britain, France, Germany and Russia changed and they viewed the Middle East region with greater economic interest than before. Kurdistan gained a strategically important place in their international politics prior to the onset of the World War One (WWI). As a matter of fact, the Brits promised the Kurds an independent Kurdish kingdom in return for their opposition to the Turkish-German alliance (Ahmad: 1984, 31-40).  Parallel to this policy, the British diplomats initiated a string of negotiations which resulted in maintaining normal relations between the Persian and Ottoman empires. In return, Britain secured the rights to extract and trade oil in their respective territories. It is worth mentioning that these frequent negotiations were able to produce the Tehran Protocol in 1911, the Constantinople Protocol in 1913, and the Delimitation Commission's agreement in 1914. The Teheran Protocol was agreed upon so that disputes relating to the demarcation practice would be submitted to an arbitration tribunal at The Hague (Cusimno, 1992, 4).

The Kurds in the 20th century bilateral and multilateral treaties

The 20th century began with a major world war, leaving in its wake a dismantled Ottoman Empire, new states in the Middle East and the occupation of Southern Kurdistan by Britain and France. For the Kurd, this was a historical moment to achieve their ever desired nation-state. However, such a moment was not one that was meant to last, and it soon turned out to be disastrous: Kurdistan was further divided?

With the start of the Russian Revolution in October 1917, Russia ceased hostilities against the Ottoman Empire and withdrew from World War I. Thereafter, the new Soviet regime allied itself with the Turkish nationalists against the “Imperialist” West. The Turkish nationalists, who were fighting against both Western domination and the Ottoman Empire, had many reasons to accept this friendship. 

Away from this new challenging diplomacy for a moment, the Allies, especially the British, thought the establishment of an autonomous Kurdish state would be useful to their imperial plans (1991, 53-54). However, lacking a coherent political entity, the Kurds were represented at the Paris Peace Conference by an inadequate delegation (1991, 24). Nonetheless, the official representatives of the Allies and the defeated Ottomans signed the Peace Treaty of Sèvres on 10 August, 1920, envisaged a state for the Kurds.

Section III of the Treaty of Sèvres, entitled “Kurdistan,” composed of three articles spelling out the details. Article 62 stipulates that:

“A Commission sitting at Constantinople and composed of three members appointed by the British, French and Italian Governments respectively shall draft within six months from the coming into force of the present Treaty a scheme of local autonomy for the predominantly Kurdish areas lying east of the Euphrates, south of the southern boundary of Armenia as it may be hereafter determined, and north of the frontier of Turkey with Syria and Mesopotamia, as defined in Article 27, II (2) and (3). If unanimity cannot be secured on any question, it will be referred by the members of the Commission to their respective Governments…” (1924).

Moreover, the Treaty goes beyond a mere autonomy as stipulated in Article 64, as following:

“If within one year from the coming into force of the present Treaty the Kurdish peoples within the areas defined in Article 62 shall address themselves to the Council of the League of Nations in such a manner as to show that a majority of the population of these areas desires independence from Turkey, and if the Council then considers that these peoples are capable of such independence and recommends that it should be granted to them, Turkey hereby agrees to execute such a recommendation, and to renounce all rights and title over these areas.  If and when such renunciation takes place, no objection will be raised by the Principal Allied Powers to the voluntary adhesion to such an independent Kurdish State of the Kurds inhabiting that part of Kurdistan which has hitherto been included in the Mosul Vilayet” (1924).

Although the functioning language is conditional, the commitment to independent Kurdistan is explicit, dependent only on the wishes of the Kurds. Independent Kurdistan was to include not only Kurdish areas in Turkey proper but also all of Southern Kurdistan. However, none of this was ever materialized. The Treaty of Sèvres symbolized the pits of Ottoman Empire. It was the victorious Allies’ treaty imposed on the losers—Germany, Austria, Hungary and Turkey. 

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