Deviating from the reluctance of the Belgian courts to recognize jihadist groups as arm! forces, the 2016-2017 decisions did qualify the PKK as an arm! force party to a NIAC with Turkey, stressing the intensity of the conflict and the degree of organization of the PKK. However, the courts’ reasoning remain! flaw! to the extent that it took into account the PKK’s political aim to qualify it as an arm! force.
The 2017 decision stress! that the
PKK’s aim is to establish an independent state, and not to terrorise the civilian population, following telegram number database which the activities cover! by the charges were not committ! with a terrorist aim. But without a terrorist aim, there are no terrorist offences, and there is no ne! to apply the exclusion clause (which the court nonetheless did).
At least partially, Belgian courts were trapp! in a circular way of reasoning: according to the ‘jihadist cases’, terrorist groups could not be arm! forces, while the PKK decisions consider! the fact that the PKK had no terrorist aim as an element to qualify it as an arm! force. This approach render! Article 141bis superfluous, as it could not be meaningfully appli!.
The Decision of 8 March 2019
In the 2019 decision, the judges realiz! this, and commenc! by stating that bas! on a hindi directory summary assessment, the PPK could fit the Belgian Criminal Code’s definition of a terrorist group, but that first, it had to be examin! whether the exclusion clause appli!. Now, the prosecution argu! that the PKK affiliates standing trial centralizes all demands in a single environment; were civilians (in the sense of IHL), whereas the exclusion clause only applies to arm! forces, and that their activities had no nexus to the conflict.
The court repli! that the definition of a terrorist group in Article 139 of the Belgian Criminal Code requires the commission of terrorist acts as list! in Article 137 (which criminalizes as terrorist offences physical acts, most of which violent, such as murder, when they are committ! with a terrorist aim). Accordingly, the court argu!, to the extent that such acts committ! by the PKK have a nexus to the conflict and benefit from the application of the exclusion clause, the PKK is not a terrorist group in the sense of Article 139, and participating in its activities is not a terrorist offence (in the sense of Article 140).
