The Legal Rayonnement of Rebel Justice: Recognition, Complementarity, and Kurdish Courts

Abstract

Chapter 4 analyses the possible legal recognition of insurgent justice by other actors, using the judicial practice of three independent Kurdish non-state armed groups in the Middle East as a case study. The Partiya Karkerên Kurdistan (PKK, Kurdistan Workers’ Party) has been engaged in a bitter armed struggle with Turkey since 1984, with rear bases in northern Iraq and Syria. The Partiya Yekîtiya Demokrat (PYD, Democratic Union Party) is a Kurdish insurgent group that joined the anti-Assad uprising of 2011 and now controls parts of the north-east part of Syria, in a precarious coexistence with the Syrian government. Finally, the Kurdish Regional Government (KRG) has operated independently since 1991 and remain in a military standoff with the central Iraqi government. All three Kurdish groups operate courts at trial and appeal levels, for civil and criminal matters. The chapter considers the possible application of the principle of complementarity under the Rome Statute in relation to a prosecution before the courts of a non-state armed groups. Likewise, the right or duty of third states under international law to give recognition to the operation of insurgent courts is examined. More radically perhaps, there is a possibility that even the territorial state might in some cases give legal effect to rebel court decisions. Finally, the Kurdish courts offer examples in which one non-state armed group is confronted with the need to determine the validity of the decisions of courts of other armed insurgents.