Medyanews Exclusive
The concept of terrorism is often discussed on the international community’s political agenda yet it is highly controversial and has a big problem with a common definition of the term. In this context, the main issue in defining terrorism is based on interpretation. (1) The relationship between self-determination and terrorism is a controversial issue as is discussing the relationship between the nation-state and the international system.
The definitions about concepts such as ‘terrorism’, ‘terrorist’ and ‘terrorist organization’ differ according to a nation-state’s domestic politics and the international system.
The Washington administration called the response to the 9/11 attacks a ‘War on Terror’ and put pressure on the European Union to “prevent international terrorism”. In this way President Bush in 2001 presented the world with a choice: “Every nation, in every region, now has a decision to make. Either you are with us, or you are with the terrorists”. Therefore for the US and members of the anti-terror alliance they have the right to prevent international terrorism from acquiring territory and financial resources. In other words, ‘the fight against international terrorism’ also means to have a right to threaten all pluralistic and free nations.
After the attacks of September 11, Germany as an early participant in common measures in the anti-terror fight presented its agreement to NATO and expressed its solidarity with the US.
The International Criminal Court (ICC) was established in July 2002, just after 9/11 attacks. (2). The Court has the jurisdiction towards genocide, war crimes and crimes against humanity, which are accepted as international crimes. Countries such as Turkey and Sri Lanka with their state terrorist activities, within the framework of crimes committed against humanity, suggestions that they should be tried at the International Criminal Court, were rejected by a group led by the United States. However, the issue of international terrorism was never totally covered by the ICC. The US opposed the inclusion of terrorism in the treaty, and remained as an oppositional stance.
At an international level there is the lack of agreement on a definition of terrorism and in relation to certain ‘terrorist’ actions in general. Despite all attempts, states have failed to reach a common international definition of terrorism and have not been able to establish a legal definition of terrorism due to the different approaches, and political considerations of states. (3)
Legal definitions of terrorism therefore remain primarily influenced by the political considerations of defining terrorism. The approach towards the concept of terrorism by states will continue to be discussed in the future.
There is hard statistical evidence to estimate for Germany’s immigrant and minority population, however, Germany has around five million people Turkish and Kurdish immigrant population.
In recent years, there has been a significant increase in investigations and lawsuits against Kurdistan Workers’ Party (PKK) executives in Germany. The federal government of Germany announced recently that between 2016 and 2020, 786 people have been sued for being a part of the PKK, Deutsche Welle (DW) Turkish reported.
According to a parliamentary question posed by the Die Linke (Left Party) deputy Ulla Jelpke, The German federal government stated that 1,220 investigations have been launched against PKK members from 1988 to 2020 and 1,519 people have been investigated for the same period.
DW Turkish reported that two cases resulted in life sentences and one was acquitted and two other cases were declared non-prosecution. Reportedly, in 94 cases, the defendants received from 8 months to 13 years of imprisonment. It is noteworthy that the most trials since 2016 are still ongoing.. However, investigations and lawsuits related to demonstration bans are not included in these figures.
PKK executives tried under 129b in German Laws
PKK executives in Germany are being tried under Article 129b of the German Criminal Code. The regulation covers organizations whose origin is outside of Germany. The fact that a criminal act has not been committed in European Union (EU) member states enables the suspect or victim to be prosecuted if they are German citizens or resident in Germany.
After the 11 September 2001 attacks were added to the criminal code for the prosecution, it is now also applied to members of organizations such as the PKK or DHKP-C and the radical Islamist groups in Turkey. 129b is mostly used today with allegations of “being a member of a foreign terrorist organization and carrying out activities for it”, without any concrete act of violence. In this case, if the suspect resides in Germany, the Germany state has the authority to the prosecution only in particular cases or similar future trials and investigations. It will also mean to include certain crimes automatically in the category of terrorist and opposition armed groups.
Article 129 of the German Criminal Code was enacted in 1976, following the armed struggle of the Red Army Faction (RAF) in the 1970s. Today, the article is still criticized and caused intense discussions because of paving the way for a punishment without having even committed a crime.
Jelpke says ‘126 article should be removed’’
Criticizing the article, German Left Party deputy, Jelpke told DW Turkish : ”The Kurdish people who are under investigation because of their political activities, all of their legal activities such as demonstrations or events or their support for election campaigns are referred to as a terrorist act because it is assumed that the PKK is behind it.”
Jelpke criticizes the Ministry of Justice’s authorization of the judicial bodies to implement 129b as “the intervention of politics in the justice system” and demands that “such an article has no place in a rule of law and should be removed,” she said.
President of the Association of Republican Lawyers (RAV), attorney Theune, who participated in the online panel on 27 November, said, ” We should try all legal ways from state to federal courts. If a decision to lift the ban cannot be taken in German courts, next step should be the European Court of Human Rights.”
Underlining that the PKK ban is a political decision, attorney Theune, “It is a political agreement between Turkey and Europe,” he said. Recalling the decision of the European Court of Justice that the PKK should be removed from the ‘terrorist list’, he added: “There is no justification for the PKK ban. The reasons alleged in 1993 and justified reasons have disappeared today. There is no legal obstacle to lift the ban.”
Schleswig Electoral Union (SSW) President Lars Harms said, “While the Gray Wolves who inflict violence and terror are still carrying out free activity in Germany, it is not acceptable to suppress a popular movement like the PKK with prohibitions.”
Numerous terrorist organization decisions since 2010
In Germany, the Federal Court of Appeals described the PKK as a “foreign terrorist organization” according to Article 129b of the German Criminal Code.
The Supreme Court ruled that acts of the PKK or its affiliated organizations, such as murder or deliberate murder, did not have a “right to self-defense”, had no basis in terms of state law, that its members could not be regarded as “warriors”.
Following the decision of the Federal Supreme Court, the Ministry of Justice also granted a general authorisation for investigations into the PKK and its affiliated organisations in 2011. The German government announced that there has been no change regarding the given general authority since then.
One of the recent cases in Germany that can possibly be having an impact on other courts decisions regarding the ban against PKK is the hearing of Kemal Göktepe, who was investigated for carrying the flag of the YPJ, the women’s defense force in Rojava. The case was held in Bavaria state in Germany.
According to the Fırat News Agency (ANF) the Bavarian Supreme Regional Court rejected the public prosecutor’s appeal against the acquittal on the case of the YPJ flags ruled by the Munich District Court. On the 2nd Dec 2020, the Bavarian Supreme Court ruled that carrying YPG/YPJ flags will not be considered a crime.
Another detail in the decision of the Bavarian Supreme Court that was declared rejected was regarding the Ministry of Interior’s circular on March 2, 2017, which banned many symbols, including the YPG/YPJ flag. The court emphasized that the circular in question was not legally binding and was merely a correspondence from the ministry.
PKK policy in Belgium
On January 28th ,2020 Belgium’s Court of Cassation ratified a ruling of a lower court that acquitted 36 people and two media companies allegedly accused of involvement with the Kurdistan Workers’ Party (PKK).
Previously, the Court of Appeals in March 2019 considered the PKK a part of “Turkey’s domestic dispute” and Belgian anti-terror laws cannot be applied’’. It also stated that “insufficient evidence was provided regarding the PKK is guilty of terrorist offenses.” In the final hearing held on January 28, the Court of Cassation ratified the Court of Appeals’ ruling.
Jan Fermon, the Belgium lawyer in the case who has led the defense of the 36 defendants, told ANF, saying the court’s ruling “has opened a new door on the side of Europe. “PKK does not legally qualify as a terrorist organization in Belgium. According to Fermon, this ruling could also have an influence on Belgian government’s attitude towards the EU list of terrorist organizations.
It can be argued that the capacity of the law to shape, frame as well as politically debate on the concepts of terrorism is dependent on the domestic affairs of the states and accordingly to circumstances and interests of governments. It is mainly open to a violation of rights, anti-democratic measures and attempts to impose restrictions on freedoms measures under the scope of the ‘fight against terrorism”. (4) Through this, arbitrary interpretations can be made by each of the states. This leads to violations of human rights related to opinions and freedom of expression and human rights.
The sources
1. Greene, A. (2017). Defining Terrorism: one size fits all?, International and Comparative Law Quarterly, 66(2), 411-440.
2. International Criminal Court were mostly America’s closest allies, including Britain, Canada, and Germany but the United States presented in opposition.
3. Williamson, Myra (2009). Terrorism, war and international law: the legality of the use of force against Really 2001. Ashgate Publishing. p. 38.
4. For more information: Review of anti-terrorist measures taken by international, regional and national authorities and their effects on the enjoyment of human rights.
