Belgium’s supreme court has overturned an unprecedented ruling by an appeal court that the Kurdistan Workers’ Party (PKK) is a party to an armed conflict rather than a terrorist organisation.

The judgment on Tuesday by the Court of Cassation, which is Belgium’s highest court, is likely to be welcomed by Turkey’s President Recep Tayyip Erdogan who had strongly criticised the appeal court in September when it threw out the prosecution case against 33 Kurds living in Belgium and two Kurdish-language TV stations based in Belgium.

But this week’s judgment upset Kurdish activists and their supporters who had hoped the case could prompt a change in policy by the European Union which includes the PKK on its terrorism list.

“I am extremely disappointed. It’s very serious," said Estella Schmid, the founder of Peace in Kurdistan, a group which campaigns for a peaceful solution to the Kurdish question.

The Court of Cassation bases its decisions on points of law and whether correct procedures have been followed. It does not deal with the substance of a case. In this instance, it decided on Tuesday that the appeal court had made a mistake in not dealing with one element in the prosecution’s argument.

“It’s an extremely strange decision because the Court of Cassation doesn’t normally insist on a strict analysis of every point in the argument. They normally say that, if the main reasons are given, it’s enough. Why suddenly do they say it’s not enough in this case?" Joke Callewaert, one of the defence lawyers, told Middle East Eye.

Other lawyers who did not wish to be named said they felt the supreme court had been scared of the implications for Belgium’s relations with Turkey if it upheld the appeal court.

“They were also worried that a positive judgment might have consequences for the cases of Belgians who had gone out to Iraq and Syria to fight for [the Islamic State group]. They might also argue that they were involved in an armed conflict and were not terrorists," one lawyer said.

Wire taps and house searches

The supreme court’s decision comes after Belgium’s public prosecutor brought a case almost a decade ago against 33 Kurds living in the country, including leading members of the Kurdish National Congress, for allegedly supporting terrorism.

Two Brussels-based Kurdish-language TV companies which are heard and seen in Turkey and across the Middle East were also charged with spreading terrorist propaganda.

The appeal to the supreme court and the earlier appeal case have been backed by government officials in Turkey, where the separatist PKK has been waging an armed campaign, mostly in the Kurdish-majority southeast for decades.

Supporters of the PKK had hoped the supreme court would issue a judgment that would lift the cloud of legal uncertainty which they say has restricted debate among Kurds and others in Europe about the struggle to improve Kurdish rights in Turkey.

“Removing criminalisation would have improved the chances for a political solution to the war between Turkey and the PKK," Jan Fermon, the lead lawyer for the defence told Middle East Eye on Tuesday.

“By indicating clearly that European countries consider this conflict as a civil war and not a matter of terrorism, political incentives are created for both parties to show respect for their counterparts and to seek a political solution through dialogue. Terrorism is to be fought; conflicts are to be solved."

The case started in 2009 and involved phone taps and house searches. According to leaked cables released by WikiLeaks, the US worked closely with the government of Recep Tayyip Erdogan, Turkey’s then-prime minister and current president, to help Belgium bring prosecutions.

Defence lawyers argued that the counter-terrorism provisions of Belgian law and EU law did not apply to armed forces involved in an armed conflict, including a civil war.

According to international case law, the identification of an armed conflict depends on several elements: the degree of organisation of the participants, whether there is a command structure and effective communication from senior officers to the rank and file, the number of victims, the severity of damage and the kind of weaponry involved.

The defence said the PKK fulfilled all the requirements for being a party to an armed conflict. It pointed to the fact that Abdullah Ocalan, the PKK leader, had issued a declaration saying the PKK accepted the Geneva Convention and the conventions banning the use of landmines and child soldiers. This made it a subject of international law.

The Belgian prosecution team said Ocalan could not sign the Geneva Convention because the PKK was not a state.

It also argued that the PKK’s actions only constituted sporadic guerrilla-style violence, well short of a sustained armed conflict, and that the movement did not occupy particular territory.

It went on to argue that, even if there were elements of armed conflict in Turkey, the PKK had a double nature on the pattern of the so-called Islamic State group in Iraq and Syria, which both controlled some territory with a command structure, but also conducted bombings and intimidation of civilians in urban settings beyond the conflict zone.

The defence argument was accepted by the court of first instance in November 2016, and by Belgium’s court of appeal last September, before finally being overturned by the supreme court on Tuesday.

The prosecution also cited bombings of civilian targets in Turkey carried out by the Freedom Falcons (TAK), which it said was inextricably linked to the PKK.

The defence argued that TAK had been set up by dissidents who left the PKK and had no further contact with them, and said that the PKK had always condemned TAK’s actions.

To the dismay of the prosecutor, the appeal court in September decided that the evidence on TAK was not enough for the court to “conclude with certainty” that there were links with the PKK.

In its ruling last September, the appeal court had also rejected the prosecutors’ main claims about the absence of an armed conflict.

The court noted that the PKK’s armed struggle was being waged with weaponry including American M16 machine guns and rocket launchers smuggled from Iraq, rather than with “rudimentary and primitive equipment” as prosecutors had claimed.

It also accepted that the PKK and its HPG armed wing were a “strict hierarchical organisation” with a complex command structure, regulations and codes of conduct including rules governing warfare and humanitarian law and a system of courts to punish transgressors.

“The goal of the PKK is not to instil fear in a population but to establish an independent state… Its focus is a liberated and free population… Civilians are not targeted by the HPG even though civilian victims do occur during the armed actions," the appeal court judgment concluded in ruling that the PKK was a party to an armed conflict.

'Help us to help them'

Belgium’s supreme court, the Court of Cassation, has now overturned the appeal court’s finding. It said the appeal court had failed to deal with the argument that the PKK could not adhere to the Geneva Conventions on the conduct of war because is not a state.

The prosecution will now be free to resume the case against the 33 Kurds.

Diplomatic cables published by WikiLeaks in 2011 showed how US officials played a key role in initiating the case by helping the Belgian and Turkish governments to prepare materials for prosecutors.

A cable to the State Department from the US embassy in Brussels on 11 May 2006 said “Post [US embassy] requests Washington send a team of officials who cover terrorism across the spectrum, including counter-terrorism, law enforcement, and intelligence aspects, to consult with Belgian officials and ideally map out a strategy to combat PKK activities within the parameters of Belgium's legal and political systems”.

A cable of 27 November 2006 reported on a visit to Brussels by the State Department’s deputy counter-terrorism coordinator Frank Urbancic. He met Belgian officials and told them “the United States is trying to engage European partners on the PKK and find a new way to talk about the group, not just as a terrorist organisation but as an organised crime group engaging in a myriad of criminal activities to support terrorism, activities that host countries could investigate and prosecute, under local criminal laws”.

A frequent refrain in the US cables is Belgian irritation at the poor quality of Turkish intelligence. In a 27 November 2006 cable, the Belgian Foreign Ministry’s Secretary-General Jan Grauls is reported as complaining “that Turkey needed to provide better, more specific information to enable Belgian authorities to go after PKK members in Belgium".

He asked for US assistance with Turkey: "Help us to help them."

But nothing improved, according to the cables. On 5 June 2009, a cable to Washington says a senior Belgian official told the embassy the Belgian government “finds some Turkish intelligence suspect, especially lists of names provided by the GOT [Government of Turkey]; the Belgian MFA [Ministry of Foreign Affairs] believes some of these names might be anti-Turkish or Kurdish independence activists who have committed no crime and who may not in fact be tied to any listed terrorist organisation".