[By Melanie Gingell, Peace in Kurdistan] October 2, 2017 — On September 14 of this year a judgement was handed down in the case of a group of Kurdish activists who faced trial on terrorism charges in Belgium. The defendants were acquitted as the court found that the PKK is not a terrorist organisation but rather a party to an internal armed conflict in Turkey.
This case in the Belgian Court of Appeal centred around the defence proposition that the activities which the prosecution relied on to make out a case of terrorism occurred in the context of an internal armed conflict in Turkey and should therefore be governed by the rules of international humanitarian law rather than domestic terror provisions.
The question that fell to be considered by the court was whether or not the PKK was involved in an armed conflict in Turkey. If it was, then the domestic criminal law of Belgium would not apply and the matter would be subject to the Geneva Conventions in international law.
It has been established in international law that a conflict of a non-international character occurs when there is prolonged armed violence between a government and one or more armed groups. The decision as to whether or not the conflict in Turkey between the government and the PKK had attained the status of a conflict to which the Geneva Conventions apply, was a matter to be determined on the facts by the Belgian court.
Among the facts considered by the court were the intensity of the fighting and the type of weapons used. It was found that although the PKK armaments are relatively rudimentary, the government has used ground and air bombardments including long-range missiles, and that the fighting took place with sufficient intensity over a prolonged period of time.
Another factor considered was the level of organisation and it was found that the PKK has a strict hierarchical system of command, according to the principle of democratic centralism, under the leadership of Abdullah Öcalan. The PKK has submitted to various humanitarian rules and codes of conduct governing warfare during the course of the conflict. The PKK has entered into peace talks with the Turkish state. The financing of the PKK is well organised through revolutionary taxation in Turkey and abroad. Of fundamental importance is that the goal of the PKK is not to terrorise the population but to establish an independent state (sic), and civilians are not targeted although on occasions there are civilian casualties.
When terrorist acts are committed outside the conflict area, ie in Belgium, they are subject to the provisions of the Terrorism Act. However the acts alleged against the defendants, were they to be proved, such as organising and conducting propaganda and fund raising, were not committed with the intention of terrorising the population but were in line with the PKK objective of establishing an independent state.
It was alleged by the prosecutor that the PKK is inextricably linked with TAK in Turkey, an organisation that carries out terrorist attacks. This connection was denied. The court was aware of an analysis conducted by a German court and a second by a research group both of which found that the groups were linked, however the Belgian court found that both reports could not be considered to be sufficiently independent and reliable. The court could not conclude that the PKK is connected to TAK.
In conclusion the court found that because the PKK is a belligerent party to an armed conflict in Turkey and not a terrorist organisation, the domestic terrorism legislation of Belgium does not apply and therefore all charges would be dropped.
See below anonymised extracts from the judgement.
Extract from a judgement n. 2017/2911 by the Court of Appeal of Brussels – Indictment Chambers – September 14, 2017
The defendants are being prosecuted for participation in the activities of a terrorist group. A number of the defendants claim grounds for exclusion regarding the application of national terrorist crime laws as provided for in Article 141bis of the Criminal Code. They argue that the conflict between the PKK, the organisation considered by the prosecution and plaintiffs as a terrorist group, and the Turkish state during the period of incrimination fell under the conditions of that provision, and that therefore Articles 137 to 141 of the Criminal Code do not apply.
According to the Public Prosecutor, the assessment of the applicability of these grounds for exclusion falls to the trial judge.
Article 128, first paragraph, of the Code of Criminal Procedure states that if defendant claims that the alleged fact, even if established, is not a criminal offense, the investigative courts are obliged to respond to that conclusion, and to specifically investigate whether the fact constitutes a criminal act. Accordingly, the court must consider whether or not the for exclusion invoked by the parties are applicable.
Article 141bis of the Penal Code states:
This Title shall not apply to acts of armed forces during armed conflict as defined by and subject to international humanitarian law or to acts of the armed forces of a State in the performance of their official duties, in so far as such acts are subject to other provisions of international law.
The question is therefore whether the PKK is a terrorist organisation or whether it is an armed force involved in an armed conflict as defined by and subject to international humanitarian law.
In the case of non-international armed conflicts, the common article 3 of the Geneva Conventions of 1949 as well as the Second Additional Protocol to the Geneva Conventions of June 8, 1977 apply.
Common Article 3 of the Geneva Convention does not contain a definition of armed conflict. It merely determines the obligations of the parties in case of an armed conflict that is not international, in the territory of one of the High Contracting Parties.
The second protocol to the Geneva Convention was not ratified by Turkey so it does not apply to the conflict between the Turkish state and the PKK.
Article 8 §2, 2, f of the International Criminal Court Statute refers to non-international armed conflicts. It applies to armed conflicts that occur in the territory of a State in the event of a prolonged armed conflict between the official authorities and organised armed groups or between these groups. It does not apply to instances of internal disturbances and tensions such as riots, isolated and sporadic violence or similar acts.
Turkey has not ratified the Statute of the International Criminal Court but this Statute establishes the current state of international customary law and Article 136quater of the Criminal Code is also applicable to violations of international humanitarian custom law.
In the Tadic case of the International Criminal Tribunal for the former Yugoslavia, the tribunal stated that there is an international armed conflict when armed violence takes place between states. There is a non-international armed conflict when prolonged armed violence between a government and one or more armed groups, or between armed groups, occurs (ICTY, The Prosecutor v. Dusko Tadic, IT-94-1-A, October 2, 1995).
According to the Belgian Court of Cassation, there is an armed conflict in the sense of international humanitarian law when there is armed violence between states or persistent armed violence between government agencies and organised armed groups or between such groups within a state. Whether there is sustained armed violence involving organised armed groups is largely judged by the intensity of conflict and the degree of organisation of the parties involved. Other criteria cited by international jurisprudence are merely indicative criteria that can be used to fulfill the requirements of the intensity of the conflict and the organisation of the parties involved. The court judges based on the factual circumstances whether certain behaviours should be regarded as acts of armed forces during an armed conflict in the sense referred to herein. (Cass. AR P.2016.0244.N, May 24, 2016, .cass.be}.
According to international case law, an armed conflict is identified in relation to the following non-cumulative elements: a degree of organisation, the existence of a command structure, the number of victims, the severity of the damage, the use by the protagonists of weapons of war and the displacement of the population that results from all this. The intensity of the conflict depends on hostilities exceeding a certain threshold, lasting a certain period of time and the clashes being of such nature that the law of war is applicable (TPIY, Limaj, IT-03-66-T , Nov. 30, 2005, §§135 and following). These different non-cumulative factors can indicate existence of an armed conflict.
The existence of an armed conflict must thus be determined by factual observation of the circumstances on the ground.
According to the public prosecutor’s office, the PKK at its peak in the 1990s had up to 50,000 fighters. The exact number today is unclear. Estimates range between 3000 and 5000. Most PKK warriors reside in Northern Iraq, from which they perform attacks on targets in Turkey.
According to the public prosecutor, the PKK military guerrilla thus comprises barely 0.03% of the Turkish Kurdish population in Turkey, and 0.01% of the Kurdish population in the region called Kurdistan. According to the federal prosecutor, the PKK therefore cannot be considered to be representative of the Kurdish issue nor can it be considered the legitimate representation of a people supposedly in conflict with a state nor is it able to occupy a particular area as an organised military force or to deploy troops in an organized military way against its declared enemy Turkey. The actions of the PKK are predominantly typified by sporadic clandestine surprise attacks / attacks on isolated targets. There is no ongoing military offensive and the techniques used are mostly guerrilla techniques.
From the elements of the casefile and the documents submitted by the parties to the court and the references made to publications on the Internet, it appears that the armed struggle against the Turkish state began in 1984. This fight, mainly aimed at Turkish soldiers and police officers, was mostly fought in the region of South East Turkey, which is the main area of residence of the ethnic Kurds in Turkey (see PV. No. BR.35.Fl.008361 / 2007). The conflict in Turkey between the PKK and the Turkish government is still ongoing, despite several periods of ceasefire. This indicates the long-term character of the conflict.
According to the data provided in the submissions of the accused, the vast majority of documents estimate at 40,000 the number of deaths caused by the armed conflict between Turkey and the PKK since 1984.
Since the end of the ceasefire at the end of 2015, at least 2000 deaths have occurred according to the Office of the United Nations High Commissioner for Human Rights. Over the years there has been a total destruction of more than 3000 Kurdish villages. The accused refer to the large number of military offensives by the Turkish army and various elements of the Turkish Armed
Forces deployed against the PKK and the HPG – PKK’s armed wing. Heavy weaponry and artillery was systematically used. The Prosecution argues that the criminal file shows the equipment of the HPG to be rather rudimentary and primitive.
However, the arms of both protagonists must be taken into account. As shown in the documents brought forward by the defense and found on the internet, (page 27 of their conclusions, made on April 4, 2017), the Turkish army has conducted ground and air offensives and air bombardments and deployed fighter planes. As an example, reference can be made to the large-scale operation the Turkish army started in September 2015 with the declared aim of chasing out PKK-militants (see http://www.rfi.fr/europe/20151220-vaste-ffensive-armee-turque-contre-militants-pkk). CNN on December 16, 2007 covers a Turkish air strike on PKK positions in the Qandil Mountains using long-range missiles. (http://edition.cnn.com/2007/WORLD/europe/12/16/turkey.kurs/)
Furthermore, the accused refer to attacks by the HPG on armored vehicles and tanks of the Turkish army. The HPG uses US weapons smuggled in from Iraq, including M-16 machine guns, various explosives including A-4, TNT and ammonium nitrate, kalashnikov rifles, land mines and rocket launchers (see https://kennisbankterrorisme.nctv.nl/organisatie/partiya-karkeren-kurdistan-pkk, cited by the Public Prosecutor).
The Public Prosecutor’s Office reproaches a number of the accused of having participated in the armed struggle including, as an example, X, who they claim is shown on pictures wearing military apparel, or X, who they claim is shown in army apparel brandishing military grade weapons (Box 56, sub-box 84, piece 5).
The wearing of uniforms during military operations therefore seems sufficiently established by these documents.
From the above it appears that the PKK struggle is not a guerrilla of sporadic attacks and that the conflict does not consist of limited insurgency or isolated and sporadic violence, terrorist attacks or loose incidents but is a prolonged armed violent conflict with a certain intensity.
Another criterion for being able to speak of armed forces or armed conflict is that the group must have a certain degree of organisation which must enable it to plan and sustain a military confrontation over a longer period of time. The Public Prosecutor disputes that this criterion would be fulfilled.
From the files, documents and publications referred to in the conclusions of the accused, it appears that the PKK is a strict hierarchical organisation according to the principle of democratic centralism with Abduliah Öcalan as leader.
The HPG, the armed wing of the PKK, has a complex command structure. The Conference of the HPG (HPG Konferansi) meets every two years. It comprises of the members of the Council and elected delegates from local units. The Conference elects the Council (HPG Meclisi) composed of 41 members. The Council, in turn, elects the 13-member Command Council (Komuta Konseyi). The Command Council elects with a 2/3 majority the Commander in Chief of the HPG.
Daily operational command is exercised by a General Staff (Anakarargah Komutanligi) under the leadership of the Commander in Chief. Murat Karayilan Is the Commander in Chief of the HPG (see the references to the HPG GENEL YONETMELIGI in the submisisons of the accused, filed April 4, 2017, p. 32). In addition, there are local command structures. The referrals to the HPG GENEL YONETMELIGI are not disputed by the Public Prosecutor.
The HPG and the PKK have adopted regulations and codes of conduct including rules governing warfare and humanitarian law and declare to adhere to a number of International Conventions (including those on the use of child soldiers and land mines).
The PKK is not a state as defined by international law and therefore cannot sign international treaties, but the behavior of the members of the PKK shows that it is their intention to comply with international humanitarian law.
The HPG has a system of courts whose statutes are public and which can sanction infringements of international humanitarian law. The PKK has entered into peace talks with the Turkish state from 2009 to 2011 in Oslo.
The case file shows that the PKK has the capacity to recruit new members and to organise training camps. There are sufficient elements resulting from the investigation in the case file to indicate the recruitment of young people, especially of Kurdish origin, in a systematic and very well-organised way, even in Western Europe, including in Belgium. It is also apparent from the elements of the investigation that these recruits follow training courses in various stages in Western Europe, including in Belgium, and in military training camps in Northern Iraq. These efforts for recruitment and training are aimed at deploying these persons in the army of the PKK or its derived groups and/or to engage in armed conflicts with military armed forces and police forces of Turkey and Iran (Box 2, SB 13, piece 1).
The criminal files also show that the financing of the PKK is very well organised (Box 3, Box 20, SB 18, 6 PV 008361/07). It states that the armed struggle of the PKK would be funded through a “revolutionary tax”. Tax collection is known in the Kurdish community as being a “Kampanya”. Thus the PKK appoints a “Kadro” (an individual responsable for tax collection per country) for collection of the “revolutionary tax”. In the above-mentioned Report, the structured method for collecting the tax is explained.
The goal of the PKK is not to instill fear in a population, but to establish an independent state, based on the Marxist-Leninist state theory and party model. Its focus is a liberated and free population (Box 2, SB 17, Annex 5 to P.V. 003457/2009). This is the end to which armed struggle is pursued. According to the statement of State Security Service of 17 October 2016 (Section 4 filed by the Public Prosecutor), HPG’s armed actions take several forms: kidnapping, sabotage and destruction of infrastructure, roadblocks, shooting incidents, actions involving the killing of individuals, bomb attacks. Civilians, however, are not targeted by HPG, even though civilian victims do occur during the armed actions.
It is not excluded, however, that terrorist acts may take place in the context of an armed conflict within the conflict area. Terrorist actions in the context of an armed conflict are war crimes that can be prosecuted but fall within the scope of international humanitarian law and not under the Terrorism Act.
When armed forces involved in armed conflict commit acts of terrorism outside the conflict area, such acts are not considered acts of armed forces in the context of an armed conflict and they are therefore subject to the provisions of the Terrorism Act.
The Public Prosecutor states that Article 141bis of the Criminal Code cannot be invoked for acts qualified as “participating in the activities” of the PKK as a terrorist group or as a “leader” of the PKK as a terrorist group in Belgium because Belgium is not in a situation of armed conflict.
However, the perpetrators are not being prosecuted for terrorist crimes as qualified in Article 137 of the Criminal Code which would have taken place on the Belgian territory. Article 137 of the Criminal Code considers a crime to be a terrorist offense aimed at seriously instilling fear in a population or to force a government or an international organisation to act or abstain from acting, or to seriously disrupt or destroy the political, constitutional, economic or social structures of a country or an international organisation.
The offenses for which the accused are being prosecuted and which would have been committed on Belgian territory, such as organising and conducting propaganda, collecting and funneling money, organisation of events with a view to financing the PKK, alleged communication offenses, should they be proven, were not committed with the purpose described in article 137 of the Penal Code. As stated above, the objective of the PKK is to establish an independent state, not to terrorise civilians.
In order to assert that the PKK is to be considered as a terrorist group, the Public Prosecutor refers to the fact that, in France, Denmark and Germany, the PKK has been judged and convicted as a terrorist organisation.
The accused correctly argue that foreign case law is only significant in so far as the legislation on which it is based is comparable to our legislation. The German and French legislation submitted by the Public Prosecutor does not show that these states have included a ground of exclusion such as Article 141bis of the Criminal Code in their domestic legislation.
Moreover, as mentioned above, acts of terrorism committed outside of the conflict area, such as, for example, throwing molotov coktails into a building of the Permanent Turkish Representation at the Council of Europe in Paris, are not acts of armed forces in the framework of an armed conflict. Such acts are therefore subject to the provisions of the law on terrorism.
The Public Prosecutor also refers to the European list of terrorist organisations which has included the PKK as a terrorist group. This list is an administrative document and inclusion on this list is done by the Council of Ministers of the European Union, a part of the executive. In the context of the European Union’s fight against terrorism since the attacks of September 11, 2001, the European Union in December of the same year, has drawn up a list of persons, groups and entities involved in terrorist acts and subject to restrictive measures.
It consists of the following restrictive measures:
- Measures relating to the freezing of funds and financial resources;
- Measures concerning police and judicial cooperation.
Council Regulation (EC) No 2580/2001 regulates the freezing of all funds and other financial resources belonging to such persons, groups and entities.
In the judgment of March 14, 2017 of the European Court of Justice relating to the mention of the LiTT (Tamil resistance movement in Sri Lanka) on the ‘freeze list’ , the referring court wishes to know whether acts of armed forces during an armed conflict, in the sense of humanitarian law constitute ‘terrorist offenses’ within the framework of the common position 2001/931 and Regulation No 2580/2001, while these acts should be seen in conjunction of the framework decision 2002/475, of which consideration 11 stipulates it does not apply to acts of armed forces during armed conflict.
The referring court asks in this connection whether the actions of the LITT entity which gave rise to the adding of that entity on the ‘freezing list’ should be regarded as terrorist acts within the meaning of Common Position 2001/931 and Regulation No. 2580/2001, while these acts must be read in conjunction with Framework Decision 2002/475, of which consideration 11 states that it does not apply to acts of armed forces during an armed conflict.
The judgment of March 14, 2017 states that a distinction must be made between Framework Decision 2002/475 on the one hand and, on the other, Common Position 2001/931 and Regulation No 2580/2001.
81. The purpose of Framework Decision 2002/475 is, inter alia, to approximate the definition of terrorist offences in all Member States, to lay down penalties and sanctions which reflect the seriousness of such offences, and to establish jurisdictional rules to ensure that terrorist offences may be effectively prosecuted.
82. That body of legal rules imposing penalties for past conduct includes recital 11 to Framework Decision 2002/475, pursuant to which that framework decision does not govern actions by armed forces during periods of armed conflict, which are instead governed by international humanitarian law in accordance with the definition of those terms under that law; nor does it govern actions by the armed forces of a State in the exercise of their official duties which are governed by other rules of international law.
83. By contrast, the purpose of Common Position 2001/931 and Regulation No 2580/2001 is the implementation of Resolution 1373 (2001), adopted following the terrorist attacks carried out in the United States on 11 September 2001, and they mainly concern the prevention of terrorist acts by means of the adoption of measures for the freezing of funds in order to hinder acts preparatory to such acts, such as the financing of persons or entities liable to carry out terrorist acts.
Furthermore, the judgment states that international humanitarian law pursues other purposes than Common Position 2001/931 and Regulation No 2580/2001, and that separate mechanisms have been set up. Common Position 2001/931 and Regulation No 2580/2001 are not intended to punish terrorist acts but to combat terrorism by preventing the financing of terrorist acts. The application of Common Position 2001/931 and Regulation No 2580/2001 does not depend on the qualifications resulting from international humanitarian law. It follows from this that Common Position 2001/931 and Regulation No 2580/2001 should be interpreted as stating that acts of armed forces during armed conflict within international humanitarian law can constitute ’terrorist acts’ within the meaning of these Union acts (points 89, 91, 97 of the European Court of Justice judgment of March 14, 2017).
It follows that the listing of an organisation on this ”freeze list” due to certain terrorist acts does not mean that the organisation or its members must be qualified as a terrorist organisation when the acts they impose are acts of armed forces during an armed conflict in the sense of international humanitarian law.
According to the Public Prosecutor’s Office, the terrorist nature of the PKK appears, inter alia, from its being inextricably linked to the TAK (The Freedom Falcons), who deliberately commit acts of terrorism, including suicide attacks in which the killing of innocent civilians and children is acceptable.
This is most emphatically contested by the PKK that has always stated that TAK is not part of their organisation and that rejects and condemns many attacks by the TAK (see Appendices 4 and 5 to the additional opinion of Prof. Eric Davidts and Vaios Koutroulis, ULB, filed on June 23, 2017 at the court’s registry). The PKK’s position has always been that the TAK was established by dissidents who left the PKK because they found the organisation too weak.
The letters of the State Security Service of October 17, November 10 and December 13, 2016 state that the TAK group is generally considered to be a PKK-related group or a radical splinter group of the PKK. The Turkish state considers the TAK as a department of the PKK responsible for carrying out attacks that do not fit in the image that the PKK wishes to project of itself. According to the Turkish government, the TAK acts on the instructions of the PKK. According to their information, most attackers of the TAK are recruited from the armed units of the PKK.
The information on which the State Security Service relies appears to be from the Turkish state, a civil party in the present case, that has always suggested that the PKK is a terrorist group. It is noted that the TAK, like the PKK, is mentioned on the terrorist list discussed above but as a separate entity.
The Public Prosecutor refers to the judgment of the Hanseatisches Oberlandesgericht in Hamburg (Germany) of February 13, 2013, which deals with the relationship between the PKK and the TAK and where the court concludes that the TAK is a part of the PKK.
The verdict analyses the situation and the judge undertakes a series of considerations that support his conviction. However, the case file is not known to the court, nor is it known how the elements supported by the court were collected so that their objectivity and reliability can not be checked.
The Public Prosecutor also refers to the analysis of the relations of TAK with the PKK / KCK done by Dr. Walter POSCH (Stichting Wetenschap & Politiek, research group Near and Middle East and Africa, Ludwigkirchplatz 3-4, 10719 Berlin , Germany), which, at the request of the Oberlandesgericht in Düsseldorf, drew up a scientific report on the relations of the TAK with the PKK / KCK.
According to a number of the accused, the study of Dr. Posch does not use an acceptable scientific methodology. In conclusion, they make a detailed analysis of the sources on which Dr. Posch bases his opinion which they deem untrustworthy. They explain why they believe that he has based himself upon intellectual constructions that are not based on reliable material elements. Dr. Posch acknowledges that little information about the Kurdish organisation “Kurdish Freedom Falcons” has been published so far and that there is no scientific research available on the TAK.
The report of Dr. Posch was not drawn up in the context of current criminal investigations and it is not clear whether the report provides sufficient guarantees of objectivity in these specific circumstances. In this regard, the remarks of a number of accused are not without merit, e.g. when they note that Dr. Posch relies on articles written by a certain Önder AYTAC which are cited as an important source on the alleged links between the PKK and the TAK, whereas this person was a member of the Education Council and assistant of the Turkish Police Academy’s Dean and, therefore, was in direct contact with the Turkish security apparatus (https://tr.wikipedia.org/wiki Önder Aytac quoted in conclusion from the accused).
The accused refer to authoritative Kurdish and non-Kurdish sources, institutes and investigative reporters who dispute the allegations about the links between the PKK and the TAK. From the debate on the report of Dr. Posch that was conducted in conclusion and at the hearing, it appears that the question of whether the TAK is connected to the PKK is highly controversial. Based on the elements submitted to the court, it cannot be concluded with certainty that the PKK should be considered a terrorist group because of an alleged link with the TAK.
In subordinate order, the Public Prosecutor proposes that the last sentence of Article 141bis of the Criminal Code provides an exception to the exclusion because it is applicable only in so far as those acts are subject to other provisions of international law. Actions taken on Belgian territory which are acts of participation in war crimes committed abroad may be subject to international humanitarian law if they constitute crimes. Consequently, Article 141 bis of the Criminal Code may be invoked for such facts in Belgium and does not apply to the exception to Article 141bis of the Criminal Code in this case.
According to the Public Prosecutor, the adagium fraus omnia corrumpit opposes the application of the exception to Article 141bis of the Criminal Code.
The concept of fraus omnia corrumpit includes the principle that no fraud may be used to obtain the application of a rule of law and provides for the neutralisation of the legal consequences which would arise in such a case.
It does not appear that the accused have created artificial conditions in order to rely on the exception of Article 141bis of the Criminal Code. There is no evidence that they have used deceptive scenarios and misleading and false representations to fall under the scope of Article 141bis of the Criminal Code.
The application of Article 141a of the Criminal Code does not imply criminal immunity. In armed conflict, the armed forces may not act in violation of international humanitarian law.
From all of the foregoing elements, it can be decided that the PKK is party to an armed conflict as defined and subject to international humanitarian law to which the exclusion ground of Article 141bis of the Criminal Code applies.
With regard to the charges — Charges A and B:
The accused 1 to 6, 8 to 16 and 18 are accused of infringement of Articles 139 and 140 § 1 of the Criminal Code as being leading figures of a terrorist group.
The accused 1, 7, 17, 19 to 36 are accused of infringement of Articles 139 and 140 §1 of the Criminal Code as having taken part in any activity of a terrorist group, whether by providing data or material resources, by funding any form of any activity of a terrorist group, knowing that its participation contributes to committing a crime or misdemeanor by the terrorist group.
Since it has been established that the PKK is party to an armed conflict within the sense of international humanitarian law against the Turkish state in Turkey, the exclusion of Article 141bis of the Criminal Code will apply. As a result, the terrorist legislation does not apply.
Consequently, the charges against before mentioned under A and/or B are being dismissed.