US embassy cable - 94STATE19514

C O N F I D E N T I A L STATE 019514 
 
 
E.O. 12356:  DECL:  OADR 
TAGS:  PHUM. PREL  PTER, TU, US 
SUBJECT:  PKK AND "INSURGENCY" 
 
REF: ANKARA 0285 
 
1.  CONFIDENTIAL - ENTIRE TEXT. 
 
2.  SUMMARY:  THE PKK DOES NOT BECOME ENTITLED TO ANY OF 
THE GENEVA CONVENTIONS' BENEFITS BY THE U.S. USE OF THE 
TERM "INSURGENCY."  THE 1949 GENEVA CONVENTIONS DID 
NOT/NOT CHANGE THE CUSTOMARY AND CONVENTIONAL LAWS OF WAR 
REGARDING "INSURGENCY," AND, THEREFORE, CHARACTERIZING THE 
PKK.S ACTIVITY AS A "SEPARATIST INSURGENCY" DOES NOT/NOT 
IMPLY THAT THE PKK ENJOYS A RECOGNIZED LEGAL STATUS.  END 
SUMMARY. 
 
3.  MOST OF THE POINTS BELOW ARE DRAWN FROM A 1988 LEGAL 
MEMORANDUM SUBMITTED BY THE USG TO THE U.S. DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF NEW YORK IN THE CASE OF U.S. 
V. SHAKUR.  EMBASSY MAY PROVIDE THE FOLLOWING POINTS IN 
RESPONSE TO AMBASSADOR TURMEN.S COMMENTS (REFTEL). 
 
4.  BEGIN POINTS: 
 
-  SOME STATES RECOGNIZE A CATEGORY OF "INSURGENCY" BUT 
ONLY FOR DOMESTIC POLITICAL OR LEGAL REASONS, IN ORDER TO 
AVOID TREATING SOME REBELS AS MERE LAWBREAKERS.  SUCH A 
PRACTICE, HOWEVER, IS SPORADIC AND, IN ANY EVENT' NOT A 
MATTER OF INTERNATIONAL LAW. 
 
-  THE CUSTOMARY LAW OF WAR THAT EXISTED BEFORE ADOPTION 
OF THE FOUR GENEVA CONVENTIONS OF 1949 DID NOT PURPORT TO 
REGULATE CIVIL WARS EXCEPT IN VERY NARROW CIRCUMSTANCES. 
UNDER THAT LAW, CERTAIN INTERNAL ARMED CONFLICTS COULD 
BECOME INTERNATIONAL ARMED CONFLICTS FOR PURPOSES OF THE 
LAWS OF WAR IF A STATE OF "BELLIGERENCY" WAS RECOGNIZED BY 
STATES. 
 
-  IN TRADITIONAL TERMINOLOGY, AN "INSURGENCY" WAS A REBEL 
MOVEMENT NOT ENTITLED TO PROTECTION UNDER THE LAWS OF 
WAR.  "BELLIGERENCY" WAS A CONDITION THAT RESEMBLED AN 
ARMED CONFLICT BETWEEN STATES, WITH EACH PARTY 
ADMINISTERING TERRITORY  ETC. (SEE BELOW).  BELLIGERENCY 
WAS GOVERNED BY THE LAWS OF WAR WHICH REGULATED CONFLICTS 
BETWEEN STATES. 
 
-  THE TERM "INSURGENCY" APFLIED TO CONFLICTS LACKING THE 
FEATURES OF INTERSTATE CONFLICT.  USE OF THE TERM HAS 
NEVER BEEN CONSIDERED AS CONFERRING STATUS ON THE 
PARTICIPANTS UNDER THE LAWS OF WAR. 
 
-  BELLIGERENCY EXISTED ONLY IF CERTAIN FACTUAL CONDITIONS 
WERE PRESENT:  "... THE EXISTENCE OF A CIVIL WAR 
ACCOMPANIED BY A STATE OF GENERAL HOSTILITIES; OCCUPATION 
AND A MEASURE OF ORDERLY ADMINISTRATION OF A SUBSTANTIAL 
PART OF NATIONAL TERRITORY BY THE INSURGENTS; OBSERVANCE 
OF THE RULES OF WARFARE ON THE PART OF THE INSURGENT 
FORCES ACTING UNDER A RESPONSIBLE AUTHORITY; THE PRACTICAL 
NECESSITY FOR THIRD STATES TO DEFINE THEIR ATTITUDE TO THE 
CIVIL WAR." 
 
-  THIS TRADITIONAL TERMINOLOGY HAS FALLEN INTO DISUSE IN 
FAVOR OF THE TERMINOLOGY AND CONCEPTS USED IN THE FOUR 
GENEVA CONVENTIONS OF 1949 AND IN THEIR 1977 PROTOCOLS. 
 
-  BECAUSE OF THE FREQUENCY AND INTENSITY OF CIVIL WARS' 
THE STATES THAT MET IN GENEVA IN 1949 DECIDED TO ADOPT 
COMMON ARTICLE 3 TO GOVERN "ARMED CONFLICT NOT OF AN 
INTERNATIONAL CHARACTER."  ARTICLE 3 PROVIDES A GENERAL 
REQUIREMENT THAT PERSONS NOT TAKING AN ACTIVE PART IN 
HOSTILITIES BE TREATED HUMANELY, AND IT SPECIFICALLY 
PROHIBITS, AMONG OTHER THINGS, MURDER, TORTURE, 
HOSTAGE-TAKING AND HUMILIATING AND DEGRADING TREATMENT. 
HOWEVER, IT DOES NOT GRANT REBELS THE BENEFITS OF 
PRISONER-OF-WAR STATUS AND THUS IMMUNITY FROM PROSECUTION 
UNDER LOCAL LAW FOR LEGITIMATE COMBATANT ACTS.  THUS. A 
REBEL IN A CIVIL WAR MAY BE PROSECUTED FOR MURDER IF HE 
KILLS A MEMBER OF THE REGULAR FORCES OF A STATE. 
 
-  IN ANY EVENT, APPLICATION OF ARTICLE 3 DOES NOT DEPEND 
ON WHETHER OR NOT AN "INSURGENCY" IS INVOLVED. 
 
-  AFTER THE CONVENTIONS WERE ADOPTED, SOME ARGUED THAT 
INTERNAL ARMED CONFLICTS COULD BECOME "INTERNATIONAL" 
ARMED CONFLICT IF "BELLIGERENCY" WERE RECOGNIZED BY 
STATES.  IT IS CLEAR FROM THE PRACTICE OF STATES DURING 
THE PAST FOUR DECADES, HOWEVER, THAT STATES HAVE NOT 
ACCEPTED THIS THEORY UNDER THE CONVENTIONS. 
 
-  THE 1977 PROTOCOLS TO THE GENEVA CONVENTIONS CLASSIFY 
SOME INTERNAL ARMED CONFLICTS AS INTERNATIONAL AND THUS 
COVERED BY THE CONVENTIONS.  THIS WAS LARGELY MOTIVATED BY 
THE DESIRE OF THIRD WORLD COUNTRIES (ESPECIALLY THOSE THAT 
HAD FOUGHT COLONIAL WARS) TO OBTAIN PRISONER-OF-WAR RIGHTS 
FOR THOSE WHO WERE FIGHTING IN SO-CALLED WARS OF NATIONAL 
LIBERATION.  THEY SOUGHT TO CLASSIFY SUCH CONFLICTS AS 
INTERNATIONAL FOR PURPOSES OF THE LAWS OF WAR, IN LARGE 
PART BECAUSE OF THE FRUSTRATIONS WITH THE RIGID BUT 
SENSIBLE STANDARDS OF THE 1949 GENEVA PRISONERS OF WAR 
CONVENTION. 
 
-  PROTOCOL I' AS IT FINALLY EMERGED, PROVIDES IN ARTICLE 
1 THAT SUCH CONFLICTS SHALL BE DEEMED TO BE 
INTERNATIONAL.  THIS WAS A MAJOR REASON FOR THE U.S. 
REJECTION OF THE PROTOCOL.  TURKEY ALSO HAD MAJOR PROBLEMS 
WITH ARTICLE 1 DURING THE NEGOTIATIONS OF THAT PROTOCOL. 
NEITHER THE UNITED STATES NOR TURKEY IS A PARTY TO 
PROTOCOL I. 
 
-  NONETHELESS, THE TERM "INSURGENCY" DOES NOT APPEAR IN 
THE 1977 PROTOCOLS.  THE FACT THAT A GROUP IS 
CHARACTERIZED AS AN INSURGENCY WOULD NOT AFFECT ITS 
MEMBERS' STATUS UNDER THE PROTOCOLS. 
 
-  THUS. UNDER THE CUSTOMARY LAWS OF WAR, THE 1949 GENEVA 
CONVENTIONS AND THE 1977 PROTOCOLS' USE OF THE TERM 
"INSURGENCY" TO DESCRIBE THE PKK.S ACTIVITY DOES NOT IMPLY 
OR CONVEY ANY RIGHTS OR BENEFITS ON THE PKK.  THEREFORE, 
THERE IS NO REASON FOR THE UNITED STATES NOT TO USE THE 
TERM SINCE, ACCORDING TO THE DICTIONARY, "INSURGENCY" 
ACCURATELY DESCRIBES THE PKK'S ACTIVITY. 
 
END POINTS. 
 
 
TARNOFF