Mark Campbell
Today’s Medya News podcast assesses the significance of the landmark Belgium court case that concluded, at the beginning of last year – after a long and protracted fight in the Belgium courts -that the Kurdistan Workers’ Party (PKK) could not be prosecuted as a ‘terrorist’ organisation because it was a party to an armed conflict with the Turkish state.
Jan Fermon, the lead lawyer in the Belgium case, spoke to Medya News about the case. Fermon is a lawyer and a member of the Brussels Bar in Belgium and specialises in international criminal law. He is also presently the Secretary General of the International Association of Democratic Lawyers (IADL).
In January 2020, after a 10 year legal wrangle which was brought against 40 Kurdish individuals and two media organisations, the Belgian Court of Cassation confirmed a decision by the Brussels Court of Appeal that the PKK in Turkey should not be classified as a ‘terrorist organisation.’
The ruling by Belgium’s supreme court stated that EU anti-terrorism legislation cannot be applied against the PKK since it is a party in a non-international armed conflict or civil war where the use of legitimate military force is allowed under international laws and conventions.
As Dr Lukas Theune, a lawyer based in Germany and Alastair Lyon a lawyer based in the UK, had also concluded in earlier Medya News podcast interviews I had hosted, the labelling of the legitimate self defensive struggle of the Kurds for basic human and political rights in Turkey is solely a ‘political action’ rather than anything at all to do with international law.
The Belgium case which began in 2009 also exposed the blatant political attempts, firstly by Turkey but then also by US authorities, to pressurise Belgium to apply this label that is used solely to justify further repression and criminalisation of the Kurds. Such labelling has also limited democracy in Turkey and inflicted brutality and trauma on millions of Kurdish people.
This political pressure, applied by first Turkey and subsequently the US, Fermon noted, might never have come to light were it not for Wikileaks, who leaked the official memos that detailed and exposed all of the political manoeuvrings that went on, secretly between Turkey, the US and Belgium regarding the attempts to criminalise the PKK.
This case, Fermon noted, was not directly about the PKK’s inclusion in a proscribed list by the executive powers of different countries, but was rather a criminal prosecution brought by the Belgium Federal Prosecutor relating to participation in the activity of an alleged ‘terrorist organisation,’ the PKK.
Nevertheless, the case is historic and extraordinary, Fermon noted, as it comprehensively, over a period of ten years, fully exposed the complicity of various states to aid Turkey in their brutal war against the Kurds. The subsequent ruling has now given inspiration, renewed energy and motivation to Kurds and pro-Kurdish rights campaigners in their struggle to achieve the removal of the PKK from the lists of proscribed organisations, which will hopefully lead to the possibility of an alternative approach – a peaceful and political solution to the Kurdish issue.
As Jan Ferman explains in the podcast, this case has its roots in a failed attempt to criminalise the Kurdish media stations Med TV and later Roj TV (in 1996). Having failed, the Belgium state then tried another approach, by imposing massive taxes on the two media organs.
These tactics also failed and so the Turkish state began to apply pressure on the Belgium authorities to begin another investigation so as to bring ‘terrorist’ charges against certain individuals and Kurdish media organs.
Zübeyir Aydar and Remzi Kartal, two Kurdish politicians who had left Turkey and who were in political exile in Europe, were briefly arrested and detained by the Belgium authorities and then charged.
Fermon tells a funny story in the podcast about how the Belgian investigating judge described what he thought of the two Kurdish men after first seeing the ‘evidence’ that Turkey showed him and what he subsequently thought of them after he was in possession of all the facts. He said they went from looking like ‘dangerous individuals’ to ‘freedom fighters.’ And this was the investigating judge!
Fermon details the legal wranglings that continued for many years, detailing the comically bad quality of the so called ‘evidence’ that the Turkish state brought to the court that even embarrassed Turkey’s own prosecution team. It included known cases of Turkish ‘false flag’ operations and cases that had even failed to secure convictions in Turkey.
An embarrassing farce ensued, Fermon observed that when questioned about the quality of Turkey’s evidence “left the Turkish state’s own lawyers very embarrassed and looking down at their feet wanting to climb under the table.”
Jan Fermon also spoke about the enormous political pressure that was placed on Belgium by the US, after Turkey failed in its attempts to get the cases brought in the first place. This was exposed by Wikileaks and was used in the legal proceedings in the case. For example, secret visits to Turkey took place, organised by the US government, of top Belgium cabinet members of the government.
The whole legal battle took more than ten years, Fermon noted, and it went through the whole legal system in Belgium and was tested by the courts to a very high level. It was appealed and was again ruled in a final ruling upholding the court’s decision and rejecting Turkish appeals.
The ‘victorious’ outcome of the case, Fermon asserted, has given some new space and new arguments for lawyers everywhere to argue against the criminalisation of the PKK.
Fermon also briefly summarised another more recent legal case that is making its way through the judiciary of the European Union. This time, it will look at the actual proscription of the PKK in the European Union’s proscribed lists.
Fermon asserted that the victory of the case showed the weakness of Turkey’s position and showed that the criminalisation of the PKK can be successfully challenged. He hoped that others would take up from where he and his team left off and that as long as the Kurds and their friends keep up the struggle, they can succeed in pushing back the criminalisation of the Kurds.
Orhan Kilic, spokesperson for the Assembly of the Kurdish Community of Belgium, welcomed the decision as a “historic step” at the time. He said, “This is a unique event that will have consequences for other countries, and even the European Union. This sets new standards in the debates on the Kurdish issue, the action of the Turkish state and the role of the PKK.”
For Kilic, “We hope that with this decriminalisation, western governments and the EU will be better positioned to force Turkey to seek a peaceful and political solution to the Kurdish question.”
