Today, Thursday, there is a hearing in an ongoing procedure at the Court of Justice of the European Union about the listing of the PKK as a terrorist organisation. The hashtag #DelistThePKK started doing the rounds on Twitter. Exciting? Not exciting enough to get your hopes up: a decision will only come in a couple of months, and the decision won’t be that the PKK should be de-listed.
It’s complicated. But interesting. And campaigning to delist the PKK as a terrorist organisation remains useful. Listen.
The nature of the session is mentioned on the calendar of the Court of Justice as ‘Hearing Joint cases’
So, just a hearing, no judgment. The ‘joint cases’ refers to two cases that were merged because they were about the same issue. In short: in 2014, the PKK started a procedure against its listing as a terrorist organisation, saying that the arguments used to renew this listing every six months is not solid. In 2018, they won that case, as the General Court ruled that the Council of the European Union had failed to provide the listing as terrorist organisation with sufficient reasons. The Council appealed and in 2021 the Court ruled that on a few (but not all) points, the General Court had been too strict and shouldn’t have ruled in favour of the PKK, and ordered a retrial.
Meanwhile, the PKK’s lawyers had started another procedure, because the first one was just about the situation between 2014 and 2018 and time had, naturally, continued and the Council had just added the PKK to the terrorist list again every six months, without changing the argumentation to do so. This new procedure is about 2019 and 2020. The Court then said, okay, this is about the same issue so let’s merge these two cases. Hence: Hearing Joint cases.
So, this is another seperate procedure to what is often referred to as the ‘Belgian case’. Based on Belgian law, a Belgian court ruled in 2020 that the conflict between Turkey and the PKK meets all criteria of an non-international armed conflict, and that the PKK is one of the actors in that conflict and can therefore not be a terrorist organisation. This was indeed a victory for the PKK, as I wrote in an article at the time. Although purely a Belgian case, it could have far-reaching consequences, as that article explains.
The Belgian case helps to explain what is at stake in the Court of Justice today. According to Belgian law, an organisation can not be a party in a non-international armed conflict and a terrorist organisation at the same time. According to European law, it can. Today, the PKK’s lawyers will argue that yes, judicially you can be both a party in an armed conflict and a terrorist organisation, but in order for that to be applicable, you have to determine that the organisation actually is terrorist.
The attacks the PKK has been carrying out have been on military targets, like army posts, army convoys and soldiers, which are, according to the laws of war, legitimate targets in an armed conflict. One of the arguments that the opposing party may bring in, is that the PKK’s attacks are ‘generating a general climate of fear in the population’, one of the characteristics of terrorism. But this has to be substantiated to be applicable – naturally, you can’t just say that because you consider the PKK terrorist its actions are generating fear in the public. What matters is whether there is reason to believe the goal of the PKK is to generate fear in the public, and that would have to be underpinned with examples of systematic brutality against civilians or whole groups in society, like for example ISIS did. The PKK doesn’t do that, and has no intention to do so.
Other counter-argument may be that the PKK aims to destabilize the Turkish state, and this political objective renders its violence terrorist. And now it becomes even more interesting – you’re still paying attention, right? Yes, the PKK is trying to fundamentally change the state but, as the lawyer involved in the case whom I talked to said, you can’t detach that from the characteristics of the state and the government the PKK is fighting against. In other words: the current Turkish state is suppressing the whole Kurdish nation and not respecting their social, political and cultural rights, so possibly it’s legitimate and even good to want to change that and to aspire to make Turkey more democratic. In yet again other words: the PKK exists for a reason.
Here, check the third paragraph in the preamble to the UN Universal Declaration of Human Rights and: “Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.”
The lawyer I talked to said that she doesn’t expect the Court of Justice to rule, in a couple of months time, that what the PKK is doing is not terrorism. But it can rule that the Council of the European Union should argue more convincingly as to why it is continuously adding the PKK to the list of terrorist organisations every six months. (this half-yearly renewal is just the agreed procedure). The legislation that the Council of the European Union uses, was hastily introduced after 11 September 2001. It is time, the lawyer told me, that it is seriously evaluated on it’s legal merits. The ‘Belgian case’ is indeed an interesting one to keep in mind during that evaluation.
And that is something the European Union has to do, which is again on the shoulders of individual member states because they have to see the importance of it. They have to see that not all political violence is terrorism, and that political violence can actually be aimed at strengthening democracy and rule of law. And that, in this case, the PKK has clear objectives and a repeatedly voiced wish to end violence and engage in negotiations for peace and justice. They even want it with a third party as a mediator, and that third party could be the EU.
Very practical, that the Kurdish movement in EU member states is so excellently organized and deeply dedicated. My advice: don’t expect fireworks today, but keep campaigning.