The contentious issue of the PKK case revolves around Article 141bis of the Belgian Criminal Code, containing the IHL exclusion clause. This clause first featur! in the 1997 International Convention for the Suppression of Terrorist Bombings, and is now includ! in six of the twelve international conventions on terrorism, as well as the 2005 Council of Europe Convention on the Prevention of Terrorism. The Belgian clause is a direct implementation of recital 11 of the 2002 EU Framework Decision on combating terrorism, the relevant part of which provides:
Actions by arm! forces during periods of arm! conflict
Which are govern! by phone number database international humanitarian law within the meaning of these terms under that law […] are not govern! by this Framework Decision.
Article 141bis of the Belgian Criminal Code excludes the application to such actions of the Code’s entire chapter on terrorist offences. Few states have implement! the exclusion clause into their national criminal law (for the EU, I have, apart from Belgium, only identifi! it in Irish national law (see Section 6(4) and 10(6) of the Criminal Justice (Terrorist Offences) Act 2005)). This lack of implementation is explain! by the prevailing view that the clause merely excludes certain acts from the scope of application of the what is the ticket for? respective instruments, but that it does not prohibit states from including these acts within the scope of their criminal legislation concerning terrorist offences (see notably R v Gul (Appellant) [2013] UKSC 64, para 53). As argu! in a post by Dr Kimberley Trapp a few years ago, there are good reasons to take ‘serious issue’ with that view.
The IHL exclusion clause aims to keep separate the application
IHL and the hindi directory criminal law sanctioning terrorist offences. While IHL prohibits certain acts but does not prohibit others, any act qualifi! as terrorist is by definition illegal. If those who participate in an arm! conflict are punish! also for acts that do not violate IHL, this takes away the legal incentive to respect IHL (eg, to refrain from targeting civilians not participating in hostilities). Still, for non-international arm! conflicts (NIACs), IHL does not inhibit states from criminalizing the participation in hostilities by members of organiz! arm! groups.
