By David Phillips, Kelly Berkell
Originally published by Lawfare
Removing the Kurdistan Workers’ Party (PKK) from the State Department’s list of Foreign Terrorist Organizations (FTOs) would create conditions for greater security cooperation between the United States and the PKK in the fight against the Islamic State in Iraq and Syria (ISIS). In exchange for delisting, the PKK could be required to reiterate its rejection of ISIS, pledge to further support the campaign to degrade and destroy the terror group, and officially renounce violence aimed at achieving political objectives. Delisting could also catalyze political negotiations between the Turkish government and the PKK, resulting in an arrangement enhancing Turkey’s security while enshrining greater political and cultural rights for Kurds.
Evolution of the PKK
The PKK was established in 1974, with roots in Marxist-Leninist ideology. Its founder, Abdullah Ocalan, initiated an armed struggle in 1984 to create a Greater Kurdistan on Kurdish-populated territories in Turkey, Iraq, Iran, and Syria. In 1997, the PKK was designated an FTO based on its history of violence both against the Turkish military and against Kurds which the group perceived as collaborating with official security structures. At the peak of the armed struggle, in the 1990s, the PKK conducted bombings, suicide attacks, and kidnappings, while the military’s campaign sought to drain the swamp of support for the PKK. To date, around 40,000 people have died as a result of the conflict between the PKK and the Turkish state.
In 1999, following his capture, Ocalan decided to abandon demands for independence in favor of Kurdish rights and self-rule within a democratic Turkey. The PKK initiated a unilateral ceasefire in 1999 that lasted until 2004.
In July 2007, the Justice and Development Party (AKP) consolidated its single-party rule. Then in 2009, under then Prime Minister Recep Tayyip Erdogan, the Turkish government announced its “Democratic Initiative,” which purported to improve democratic rights for all Turkish citizens, including Kurds. Negotiations, first in Olso between 2009 and 2011, involving Turkey’s National Intelligence Agency (MIT) and PKK representatives culminated with Ocalan announcing another unilateral ceasefire, which endured from 2013 to July 2015.
In June of 2015, the AKP received 40.9 percent of the votes in national elections. This support was far less than expected and reflected disenchantment with Erdogan’s divisive politics, his efforts to establish a presidency-dominated system, and his harsh treatment of civil society. The big winner, by contrast, was the pro-Kurdish People’s Democratic Party (HDP) which won 13.1 percent of the vote and took 80 seats in the Turkish Grand National Assembly.
The follow month—on July 20—a suicide bomber killed 33 people and wounded dozens more in Suruc. The attack targeted a gathering of Kurdish youth activists planning relief efforts for Kobani. Many Kurds believed that MIT was behind the attack or, at a minimum, that MIT had turned a blind-eye to the incident. In retaliation for the Suruc attack, two Turkish police officers were killed by members of a radical youth movement. In response, Turkey cracked down, arresting hundreds and launching airstrikes targeting Kurds.
Turkey granted permission for U.S. warplanes to use Incirlik Air Force Base in Southeast Turkey on July 22, 2015. Turkey used the cooperation as an opportunity to attack the PKK in Iraqi Kurdistan and in southeastern Turkey. Over time, the operation morphed into a full-fledged offensive against the PKK and turned southeastern Turkey into a war zone. Since August 2015, hundreds of civilians have been killed and hundreds of thousands displaced. President Erdogan has stated that Turkey will continue battling the PKK until every last fighter is “liquidated.” This spiral of violence has eliminated any chance of a formal peace process in the near-term.
Erdogan has taken the fight against the Kurds to the political arena as well. The AKP precipitated new elections in November 2015 by rejecting a government of national unity. Erdogan campaigned on a platform that the AKP would restore stability and defeat terrorism, and the party won 49.5 percent of votes. With its absolute majority, the AKP consolidated Erdogan’s power by establishing an imperial presidency.
Defeating ISIS is a top priority for the Obama administration. And in support of this goal, it has provided weapons and air support to Kurdish forces, including the PKK, defending Kobani. The Obama administration is working closely with the Democratic Union Party (PYD), the leading Syrian Kurdish party. Erdogan, however, claims that the PYD is a branch of the PKK and strongly opposes U.S. cooperation.
Kurds have proven to be America’s best ally in fighting ISIS in Iraq and Syria. Although the PYD was excluded from the Geneva Peace Conference, the U.S. Special Presidential Envoy met PYD representatives in Syria in February. The U.S. and the PYD coordinate tactical measures on the battlefield and, increasingly, coordinate political strategies for decentralized democracy in Syria post-Assad. The U.S. Government considers the PYD and PKK to be legally distinct, though they are linked historically and operationally.
There is some precedent for improving relations between Turkey and the PKK. The PKK demonstrated its readiness for ceasefire agreements in both 1999 and 2013. Likewise, the Turkish government has shown willingness to engage in political dialogue, by meeting with PKK representatives in Oslo and with Ocalan on Imrali Island where he is in prison. Increasingly, Turkish and Kurdish polities recognize that conflict will only worsen if either Turkey or the PKK seeks a military solution.
Delisting could be a catalyst for peace in Turkey. In exchange for delisting, the PKK would be required to renounce political violence, reiterate its willingness to resume the ceasefire with Turkey, and engage in political negotiations. In exchange for greater political and cultural rights for Kurds in Turkey, the country would see sustainable peace. As a condition for delisting, the PKK would need to reiterate its rejection of ISIS and pledge its support to destroying the terror group. And delisting could lead to more intensive engagement by the PKK in fighting ISIS, as well as greater security cooperation between the U.S. and the PKK.
Designating Foreign Terrorist Organizations
The decision to delist is based on more than political and security considerations. It is informed by an understanding of legal and technical issues, beginning with the process by which groups are designated FTOs.
Section 219 of the Immigration and Nationality Act authorizes the Secretary of State to designate groups as Foreign Terrorist Organizations. To confer FTO status, the Secretary must find that: (1) the group is a foreign organization; (2) the group engages in terrorist activity or terrorism, or retains the capability and intent to do so; and (3) the group’s terrorist activity or terrorism threatens the security of U.S nationals or the national security of the U.S. Prior to listing, the Secretary consults with the Secretary of the Treasury and the Attorney General. The FTO designation is intended to pressure groups to “get out the terrorism business.” FTO designations stigmatize and isolate the selected group internationally; deter economic transactions including donations to the group; raise public awareness; and signal U.S. opprobrium to other governments.
An FTO may seek judicial review in the U.S. Court of Appeals for the District of Columbia Circuit within 30 days of publication of a designation or its amendment. In the past, organizations have challenged their designations, without success. In People’s Mujahedin Organization of Iran v. U.S. Department of State, (1999) the D.C. Circuit denied the petitions of the Mujahedin-e Khalq (“MEK”) and the Liberation Tigers of Tamil Eelam (“LTTE”) challenging their FTO designations. The Court reviewed only the first two statutory elements for listing. As to the third element—whether the group’s activities threaten U.S. national security—the Court deferred to the Executive Branch.
The State Department has updated the FTO list by adding and removing groups, and amending designations with new aliases. Currently, 59 groups are listed.
Executive Order 13224 allows for the designation of Specially Designated Global Terrorists (SDGTs). EO 13224 extends to a wider range of entities than FTOs, and includes not only groups, but also individuals and “entities such as financiers and front companies.” While the State Department is authorized to designate both FTOs and SDGTs, the Treasury Department designates only SDGTs. EO 13224 took effect in September 2001; FTOs designated prior to that date, such as the PKK, could not be simultaneously designated. Both FTO and SDGT designations trigger an asset freeze. FTO designations, however, go further by imposing immigration restrictions and making it a crime to knowingly provide “material support or resources” to the FTO. Material support can include property, services, currency, lodging, training, expert advice or assistance, safe houses, communications equipment, facilities, weapons, lethal substances, explosives, personnel, or transportation, among others.
In 2010, the U.S. Supreme Court considered the material support prohibition in Holder v. Humanitarian Law Project. There, plaintiffs sought to contribute to lawful, non-violent activities of the PKK and the LTTE, including by “training PKK members to use international law to resolve disputes peacefully; teaching PKK members to petition the United Nations and other representative bodies for relief; and engaging in political advocacy on behalf of Kurds living in Turkey….” Plaintiffs asserted the material support provisions violated the Fifth Amendment’s Due Process Clause on the grounds of vagueness, as well as First Amendment rights to freedom of speech and association. The Court found the statute constitutional as applied. In upholding the ban on supporting even the peaceful activities of an FTO, the Court further ratified the exceptionally broad reach of material support laws.
Terrorist Designation of the PKK and Post-Designation Developments
In order to evaluate the merits of delisting PKK, it is necessary to understand the initial circumstances of the PKK’s designation as an FTO.
The PKK was listed as an FTO based on violent activities in the 1980s and 1990s. The PKK engaged in attacks against Turkish military and civilians, including retaliation against Kurds perceived as collaborating with official security structures. On October 8, 1997, the State Department designated 30 groups including the PKK as Foreign Terrorist Organizations; and on October 31, 2001, the PKK was listed as an SDGT. The State Department later added designations for the Kurdistan Freedom and Democracy Congress (KADEK), Kurdistan People’s Congress (KHK), People’s Congress of Kurdistan, and KONGRA-GEL. In May 2002, the European Union added the PKK to its terrorist list. The United Kingdom, Canada, Australia, and New Zealand all also consider the PKK a terrorist group.
In February 1999, Turkish forces captured Abdullah Ocalan in Nairobi, Kenya. At his trial, Ocalan apologized to the families of those killed during the conflict and called for an end to violence. He announced his commitment to a democratic solution for Kurds within Turkey. As described above, the PKK implemented a unilateral ceasefire, which lasted until June 2004; halting efforts to reach a peace agreement ensued. In March 2013, Ocalan again called for a ceasefire and withdrawal of forces in exchange for political reforms.
According to CT’s most recently released Country Reports on Terrorism (2014):
Following three decades of conflict with the PKK, in late 2012 the Government of Turkey and PKK leader Abdullah Ocalan began talks for a peace process. The talks continued in 2014. The PKK called for a ceasefire in March of 2013…Although ongoing peace talks mitigated violence between the PKK and Turkish government forces, isolated incidents continued.
However, in the period after this report was released, violence escalated dramatically.
Process for Revoking an FTO Designation
The Immigration and Nationality Act authorizes Congress to block or revoke an FTO designation. In addition, the Secretary of State enjoys broad discretion under the Act to revoke FTO designations “at any time,” and is charged with reviewing FTO designations in two specific circumstances.
First, a group may petition to have its FTO designation revoked. The FTO must provide evidence that the relevant circumstances “are sufficiently different from the circumstances that were the basis for the designation such that a revocation…is warranted.” The petition period commences two years after designation or, if the group has previously petitioned for revocation, two years after determination of its petition. The Secretary may consider classified information and must reach a decision within 180 days. If the FTO has not filed an intervening petition, the Secretary reviews designations every five years.
The Secretary “shall revoke” a group’s designation upon finding that: (1) the circumstances that were the basis for designation have changed in such a manner as to warrant revocation; or (2) the national security of the United States warrants revocation. If the Secretary denies an FTO’s petition, the organization may seek judicial review in the D.C. Circuit Court of Appeals within 30 days. When the Secretary declines to revoke following its own periodic review, then there is no opportunity for judicial review.
To date, the State Department has revoked FTO designations for a total of 12 groups. Nine of those groups were designated concurrently with the PKK on October 8, 1997. Eight of the delisted groups had embraced left-wing elements of Marxist-Leninist or socialist philosophies, while three others are Islamist. Another is a right-wing Colombian group.
Delisting of these groups reflects not only changes within the groups themselves, but also shifting perceptions of threats to U.S. national security. Delisting does not signify approval of an organization, rather it reflects pragmatic decision-making about when revocation promotes national security or advances a political objective. When delisting the Japanese Red Army and Tupac Amaru Revolution Movement in 2001, for example, then Secretary of State Colin Powell noted the decision “does not condone or excuse the past terrorism carried out by these groups…Terrorists in these organizations remain accountable for their past crimes and will continue to be subject to all other relevant U.S. laws….” Similarly, in delisting the MEK in 2012, the State Department explicitly did not “overlook or forget the MEK’s past acts of terrorism,” expressing continued “concerns about the MEK as an organization.”
Reconsidering the PKK’s Designation as an FTO
The Secretary of State could revoke the PKK’s designation as an FTO either based on discretion or in response to a petition for delisting filed on behalf of the PKK. And a revised assessment of U.S. national security would have pivotal bearing.
Today, circumstances are dramatically different from those that preceded the PKK’s designation. The rise of the Islamic State has changed U.S. priorities in the Middle East. The PKK’s fight with ISIS has benefited U.S. counter-terrorism efforts in Iraq and Syria. The PKK has contributed to defending and liberating areas such as Makhmour, Sinjar, and Kirkuk in Iraq, as well as Kobani in northern Syria. In August 2014, the PKK was instrumental in establishing a humanitarian corridor to rescue tens of thousands of Yazidis trapped by ISIS on Mount Sinjar.
In addition to the PKK’s battlefield successes against ISIS, the group’s transformation into a political party can contribute to democracy in Turkey. It has renounced separatism and instead seeks democratic autonomy within a Turkish state. The governance of Rojava, the PKK’s affiliate in Syria, led by the PYD, provides a positive example of grass roots democracy, women’s empowerment, and environmental sustainability.
At an October press briefing, the State Department Deputy Spokesperson, in response to a question as to whether he was aware of “many of the PKK militants joining the YPG,” responded that the State Department has “always seen a clear separation between the two.” Erdogan, however, does not recognize the U.S. distinction between the PKK as terrorists and the YPG.
Western scholars, European politicians, and think tanks have advocated delisting the PKK, noting the groups pivotal role in combating ISIS. A petition to delist the PKK, posted on the White House website’s “We the People” platform, gathered over 33,000 signatures.
If the PKK took the affirmative step of petitioning the State Department for revocation of its FTO designation, the petition could set forth evidence supporting changed circumstances since its designation and include the formal renunciation of political violence, which would be endorsed by the group’s central committee. The PKK statement could also pledge to support the U.S.-led multinational coalition’s campaign against ISIS. And as the U.S. Government assesses its approach to the PKK, it should coordinate the delisting process with allies such as Great Britain, Canada, and Australia. Substantial support exists in the European Parliament for delisting.
Turkey’s current disproportionate military offensive against the PKK and resulting civilian casualties underscore the need for a different approach. A more pragmatic policy by the international community toward the PKK would include incentives for the organization’s transition, as well as benchmarks for reform. Maintaining a group’s label as a terrorist organization negates the possibility of engagement, and can embolden more radical factions within the group. Delisting the PKK would enhance the organization’s role fighting ISIS. It could also catalyze political talks between Turkey and the PKK. Turkey would become more secure and stable through a political resolution that grants greater political and cultural rights to Kurds.
David L. Phillips is Director of the Program on Peace-building and Rights at Columbia University’s Institute for the Study of Human Rights. He served as a Senior Adviser and Foreign Affairs Expert to the U.S. Department of State during the administrations of Presidents Clinton, Bush, and Obama.
Kelly A. Berkell is an attorney and fellow at the Center on Terrorism at John Jay College. A graduate of NYU School of Law, Kelly practiced securities litigation before moving into the public sector. Most recently, she served as a fellow at Fordham Law School’s Center on National Security.