Can We Still Afford Human Rights?

The Prosecution of Foreign Fighters in Western Europe: The Difficult Relationship Between Counter-Terrorism and International Humanitarian Law

“…101 As Jan Wouters and Thomas Van Poecke correctly point out: by including the assessment whether the PKK is a terrorist organisation or not in the determination of the status of the PKK as a party to the conflict, the Chamber creates a circular reasoning. 102 Indeed by stating that when the group in question is not terrorist it could be an armed force it renders Article 141bis meaningless: "if you are not acting on the basis of a terrorist intention, you cannot commit terrorist offences in the first place" 103 and you will not be prosecuted under the Title of the Belgian Criminal Code that Article 141bis is trying to discard. 104 In order to avoid it from becoming void, Article 141bis of the Belgian Criminal Code should be interpreted in conformity with IHL rather than based on legitimacy grounds and on whether the group concerned actually abides by IHL.…”

“…102 Indeed by stating that when the group in question is not terrorist it could be an armed force it renders Article 141bis meaningless: "if you are not acting on the basis of a terrorist intention, you cannot commit terrorist offences in the first place" 103 and you will not be prosecuted under the Title of the Belgian Criminal Code that Article 141bis is trying to discard. 104 In order to avoid it from becoming void, Article 141bis of the Belgian Criminal Code should be interpreted in conformity with IHL rather than based on legitimacy grounds and on whether the group concerned actually abides by IHL. 105 The reason why the Belgian Courts are struggling is actually clear: what if we were to consistently apply this exclusion clause in relation to armed groups that at the same time might also be considered a terrorist organisation?…”