The IHL Exclusion Clause, and why Belgian Courts Refuse to Convict PKK Members for Terrorist Offences

On 8 March, the Chamber of Indictments of the Court of Appeal of Brussels decided to discontinue the prosecution of thirty-nine individuals and two media companies affiliated to the Kurdistan Workers’ Party (PKK). All were being prosecuted for participating in the activities of, or directing, a terrorist group. The Federal Public Prosecutor’s Office had opened the investigation in 2006, and initially also alleged that the Belgian branch of the PKK was responsible for (forcibly) recruiting young Kurds to partake in the conflict with Turkey. However, any specific charges in this respect were dismissed in 2017 due to a lack of evidence.

The judgment forms the (provisional) ending to a procedural saga. On 13 February last year, the Court of Cassation had largely annulled a similar decision by the Chamber of Indictments of 14 September 2017 on the ground of a lack of motivation. That 2017 decision had in turn confirmed a decision of the Correctional Pre-Trial Chamber of the Court of First Instance of Brussels of 3 November 2016. Strikingly, throughout the case, the Turkish state had been a civil party and thus fully joined the prosecution in its argumentation. Not surprisingly, the decisions have caused fierce reactions from Turkey, which has summoned the Belgian ambassador in Ankara to protest the 8 March ruling, calling it ‘unacceptable’ (see here).

This post first explains the IHL exclusion clause, which forms the basis on which Belgian courts have decided to discontinue the prosecution of PKK members. It then briefly addresses how Belgian courts have struggled to apply the clause in other cases, goes over the earlier PKK judgments, and concludes with a short analysis of the decision of 8 March and its implications.

The IHL Exclusion Clause

The contentious issue of the PKK case revolves around Article 141bis of the Belgian Criminal Code, containing the IHL exclusion clause. This clause first featured in the 1997 International Convention for the Suppression of Terrorist Bombings, and is now included 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 armed forces during periods of armed conflict, which are governed by international humanitarian law within the meaning of these terms under that law […] are not governed 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 implemented the exclusion clause into their national criminal law (for the EU, I have, apart from Belgium, only identified 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 explained by the prevailing view that the clause merely excludes certain acts from the scope of application of the 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 argued 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 of IHL and the criminal law sanctioning terrorist offences. While IHL prohibits certain acts but does not prohibit others, any act qualified as terrorist is by definition illegal. If those who participate in an armed conflict are punished 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 armed conflicts (NIACs), IHL does not inhibit states from criminalizing the participation in hostilities by members of organized armed groups. They do not have a ‘combatant privilege’, and can also be punished for acts of participation in hostilities that do not violate IHL. Nevertheless, criminalizing such acts as terrorist offences raises a number of issues. First, it may hamper the granting of amnesties (see Art 6(5) AP II and Rule 159 of the ICRC’s CIHL study). Moreover, imposing a terrorist label on an armed group may prejudice peace and reconciliation efforts. If no amnesty is granted, acts of participation in hostilities that do not violate IHL are best prosecuted under states’ ‘common’ criminal laws (eg, the prohibition of murder). Acts violating IHL can and should be punished as war crimes, to further the implementation and awareness of IHL (see ICRC, here (48-51) and here (16-18); and J Pejic, here (171-204)).

The ‘Jihadist Cases’

Despite this sound rationale, the application of the exclusion clause by Belgian courts has not been an easy ride. In fact, the PKK case is the first case where Article 141bis is actually applied. All previous cases where it was invoked concerned jihadist groups, including al-Shabaab, Islamic State and Jabhat al-Nusra. In these cases, the courts have followed the Federal Public Prosecutor’s Office’s argument that these groups were not ‘armed forces’ in the sense of IHL, following which they could not benefit from the application of the exclusion clause. The Sharia4Belgium case, concerning a radical Islamist group based in Antwerp that recruited youngsters for the conflict in Syria, serves as a prominent example.

In that case, the Court of Appeal of Antwerp (on 26 January 2016) ruled that Jabhat al-Nusra was not an armed force, notably because, it was waging a sectarian fight against Shia Muslims, secular people, democratic values, human rights and IHL; it committed numerous terrorist attacks; did not have a proper command; and because no disciplinary rules could be enforced to ensure respect for IHL. However, at the time, Jabhat al-Nusra was an armed group with thousands of fighters, a clear strategy, a strict military organization and an identified leadership that was a party to the conflict in Syria (see eg J Cafarella, here). Rather, the court’s reasoning revealed that it did not want to qualify Jabhat al-Nusra as an armed force because it was a terrorist group.

The Earlier PKK Decisions

Deviating from the reluctance of the Belgian courts to recognize jihadist groups as armed forces, the 2016-2017 decisions did qualify the PKK as an armed 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 remained flawed to the extent that it took into account the PKK’s political aim to qualify it as an armed force. The 2017 decision stressed that the PKK’s aim is to establish an independent state, and not to terrorise the civilian population, following which the activities covered by the charges were not committed with a terrorist aim. But without a terrorist aim, there are no terrorist offences, and there is no need to apply the exclusion clause (which the court nonetheless did).

At least partially, Belgian courts were trapped in a circular way of reasoning: according to the ‘jihadist cases’, terrorist groups could not be armed forces, while the PKK decisions considered the fact that the PKK had no terrorist aim as an element to qualify it as an armed force. This approach rendered Article 141bis superfluous, as it could not be meaningfully applied.

The Decision of 8 March 2019

In the 2019 decision, the judges realized this, and commenced by stating that based on a summary assessment, the PPK could fit the Belgian Criminal Code’s definition of a terrorist group, but that first, it had to be examined whether the exclusion clause applied. Now, the prosecution argued that the PKK affiliates standing trial were civilians (in the sense of IHL), whereas the exclusion clause only applies to armed forces, and that their activities had no nexus to the conflict. The court replied that the definition of a terrorist group in Article 139 of the Belgian Criminal Code requires the commission of terrorist acts as listed in Article 137 (which criminalizes as terrorist offences physical acts, most of which violent, such as murder, when they are committed with a terrorist aim). Accordingly, the court argued, to the extent that such acts committed 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).

Lastly, as the court accepted that IHL only applies to the territory of the parties to the conflict (+ spill over), the prosecution invoked judgments from Italy, Germany, Denmark and France convicting PKK members in Europe. The court agreed that, to the extent that the PKK committed terrorist acts listed in Article 137 on European soil, participating in its activities would be a terrorist offence. Following its earlier line of reasoning, it dismissed those judgments invoked by the prosecution concerning indirect terrorist offences (such as participation in the activities of a terrorist group) as irrelevant for the qualification of the PKK as a terrorist group, which depends on the commission of terrorist acts as listed in Article 137. For judgments concerning such acts (eg, an act of kidnapping or an attack with Molotov cocktails against the Consulate General of Turkey in Strasbourg), the court held that it was unclear whether these acts could be attributed to the PKK.

Implications

While this judgment is very well substantiated and sophisticated, it raises new issues. How to prove that a terrorist act is attributable to an armed group? The court suggests that significant contacts with the command of the group, support or instructions from the group, or the fact that the group claims responsibility for a terrorist act could establish attributability. This would, for example, make Islamic State a terrorist group in the sense of the Belgian Criminal Code. But would one, undeniable terrorist act outside the territory of the parties to the conflict suffice to qualify an armed group as terrorist? Such would inhibit the application of the exclusion clause to a number of groups that are (or were) party to an armed conflict, like Islamic State. And if one such terrorist act would not turn the armed group into a terrorist group ‘as such’, would participation in the activities of the group then only be a terrorist offence if there is a link with that specific terrorist act? As such a link would in most cases be rather hard to establish, this would create some sort of presumption in favour of the application of the exclusion clause, unless a specific link with the ‘extraterritorial terrorist act’ can be proven.

It seems that the particular way in which the exclusion clause was included in the Belgian Criminal Code combined with the way in which it has now been interpreted, will require many more answers in the future. In any case, it is hoped that the PKK saga paves the way for a better application of the IHL exclusion clause in Belgium, and perhaps beyond.