Court of Last Resort in Brussels: Belgian Anti-Terror Law Not Applicable in PKK Proceedings PKK Is Party to a Conflict According to International Law

On March 8, proceedings ended before the Court of Last Resort in Brussels whose result is of great importance well beyond the borders of Belgium, particularly with regard to international law.

A look back: In 2010, a large squad of police was used to search legal Kurdish organizations and production sites of Kurdish television in Belgium and to arrest several representatives of the Kurdish National Congress (KNC). The investigations led to the levelling of charges by the prosecution against some 40 persons who were accused of collecting donations, propaganda, and recruitment for the PKK. In a second case, a Syrian Kurd was charged with having exported communication equipment to Erbil in Northern Iraq, equipment that the prosecution claimed was transferred further to the Kurdish HPG guerrilla.

After nine years, the Court of Last Resort has now found that according to Belgian law, the Belgian Anti-Terror Law is not applicable in the proceedings in this case. For that reason, the court said that there would be no trial and that thus all defendants were acquitted of all charges.

Against the fierce opposition of the prosecution, the defence had, right from the start, centred its case around the question whether the PKK is a “terrorist” organization at all and thus whether the Belgian Anti-Terror Law is even applicable. This law contains the caveat that it is not applicable to armed forces participating in a conflict according to international law. In 2003, this regulation was incorporated to the letter into Belgian law in the context of the European general agreement on terrorism and was actually supposed to serve as the basis of the anti-terror laws in most European states.

In the view of the defence, the conflict between the Kurds and the Turkish army in Turkey was of course no matter of terrorism but a civil war between a state and a group that has come to regard it as necessary to defend itself against discrimination and oppression by means of violence. According to the defence, the conflict had reached an intensity sufficient to be regarded as a war and not as terrorist activity or a collection of armed clashes. The Kurdish guerrilla HPG, the defence said, was sufficiently organized and structured to be regarded as an armed force and not just an irregular group. This meant that the law of war had to be applied, as opposed to the anti-terror law, and that attacks on military targets could not be assessed as criminal acts.

While the Court of Last Re-sort had basically agreed with that assessment, the prosecution proceeded to appeal to the Belgian Supreme Court. The latter then reversed the previous decision, but not in its central points. Therefore, the case had to again be litigated before the Court of Last Resort in Brussels.

Today’s decision with its line of argumentation as well as the finding of the European Court of Justice in Luxemburg in November 2018 that the inclusion of the PKK on the EU terror list in the years 2014 to 2017 had been illegitimate should finally lead to a rethinking with regard to the Kurdish liberation movement and its political protagonists.

At our October 20, 2018 conference in Berlin on the occasion of the 25th anniversary of the banning of the PKK in Germany, Jan Fermon, one of the defence attorneys at the procedure in Brussels, said: “The decision by Belgian courts, which is in accord with international law and reality, opens a perspective – and well-nigh demands – to solve this conflict by negotiations and in a political fashion instead of fighting the Kurds as terrorists.”

 

Azadi, press release, 8 March 2019

Translated from German

 

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