Supreme Court, H.S., Nr. P.22.0053.N, 14 June 2022
The Belgian Supreme Court rejects the claim that the judgment of the Antwerp Court of Appeal of 22 December 2021 violated the duty to state reasons by holding, on the one hand, that Islamic State (IS) qualified as a ‘terrorist group’ in the sense of Articles 139 and 140 of the Criminal Code, pertaining to the prosecution of terrorist offences, but did not constitute ‘armed forces’ in the sense of Article 141bis of the same Code (which excludes members of armed forces involved in an armed conflict from prosecution for terrorist offences). The Supreme Court held that the notion of ‘armed forces’ in the sense of Article 141bis must be understood in light of the requirements of intensity and organization under international humanitarian law (IHL), and is distinct from the notion of ‘terrorist group’. The Supreme Court recalls the various reasons that led the Antwerp Court of Appeal to conclude that IS lacked the required degree of organization to be considered an ‘armed force’, including e.g. the lack of a single headquarters or command structure; the large number of foreign fighters operating without a clear overarching command, or; the practice of random detentions in lieu of disciplinary rules as envisaged under IHL. The Supreme Court concludes that the contested judgment was duly motivated.
Brussels Court of Appeal, Baghouri et al. v Kingdom of Belgium, Nr. 2020/******/C, 21 October 2020
The case concerns an appeal against two Orders of the Tribunal of First Instance of 11 December 2019 and 25 February 2020, ordering the Belgian State to provide consular assistance to several children held at the Al-Hol refugee/detention camp in Syria, as well as to provide necessary identity and travel documents enabling them to travel to Belgium.
The appellants seek reform of the contested Order inasmuch as it states that they are not eligible for consular assistance since they cannot invoke Article 9 of the Convention of the Rights of the Child (CRC) in order not to be separated from their children against their will. They claim that the Order is not in the best interests of the children and violates the CRC, the Charter of Fundamental Rights of the EU and Article 22bis of the Constitution. However, the Court of Appeal finds this claim to be unfounded as the parents are not eligible for consular assistance pursuant to Article 83 Consular Code. This is so because they travelled to a region undergoing armed conflict despite a negative travel advice from the Belgian authorities.
Brussels First Instance Tribunal, Baghouri et al. v Kingdom of Belgium, Nr. 2020/******/C, 25 February 2020
The case concerns an appeal by the Belgian government against an Order of the Tribunal of First Instance of 11 December 2019, ordering the Belgian State to provide consular assistance to several children held at the Al-Hol refugee/detention camp in Syria, as well as to provide necessary identity and travel documents enabling them to travel to Belgium.
The Court recognizes the temporary impossibility for the Belgian State to fully execute the Order within the allotted time. This finding is based on the fact that the Belgian State repeatedly requested the Kurdish authorities for the Belgian State to be allowed to provide consular assistance to the children and to organize their repatriation without their parents. The Kurdish authorities refused this request several times because they could not allow the separation of the children from their parents under Kurdish law. In addition, the security threat was such as to jeopardize the security of the consular mission and the children during their repatriation. For this reason, the Court grants the Belgian State an extension of time to implement the decision.
Brussels First Instance Tribunal, Baghouri et al. v Kingdom of Belgium, Nr. 2019/*/C, 11 December 2019
Several parents with Belgian citizenship staying at the Al-Hol refugee/detention camp in Syria claim that the Belgian State should be held liable to undertake all feasible measures to ensure the repatriation of their minor children and themselves.
The Tribunal of First Instance confirms that, since the entry into force of the Law of 9 May 2018, consular assistance is no longer a mere privilege, but a subjective right on the part of individuals covered by the Belgian Consular Code. This right, however, is not deemed to be absolute. Article 83 of the Consular Code indeed imposes several grounds for exclusion, including with respect to individuals who knowingly travel to a region where an armed conflict is ongoing. This manifestly applies to the plaintiffs, but not to their minor children, who should not bear the consequences of their parents’ acts, and who remain fully entitled to consular assistance.
In addition, the Tribunal rules that, given the severe neglect of their children by taking them into life-threatening war zone, the plaintiffs cannot invoke the children’s interest in not being separated from their parents against their will under Article 9 of the Convention of the Rights (CRC) of the Child in order to claim any right to assistance for themselves. The Tribunal confirms that neither the plaintiffs, nor their children, come within the jurisdiction of the Belgian State in the sense of the European Convention on Human Rights.
Based on the accumulation of international obligations assumed by the Belgian State (e.g. under the CRC and the Convention on Statelessness), and given the specific factual circumstances of the case, the Tribunal finds that the Belgian State is required to provide the children with the necessary administrative, identity and/or travel documents, to enable them to travel under supervision from Syria to Belgium.
Constitutional Court, NML Capital Ltd & Yukos Universal Limited, Nr. 48/2017, 27 April 2017
The Constitutional Court examines two actions for annulment filed by the companies NML Capital and Yukos Universal against the law of 23 August 2015 introducing Article 1412quinquies of the Judicial Code, which provides for a far-reaching immunity from execution for property of foreign States or international organizations. In light of the case-law of the Strasbourg Court, the Court acknowledges that restrictions on the right to access to Court and the right to property that stem from immunity of execution for property of foreign States are accepted inasmuch as they reflect generally recognized international immunity rules. What is more, Article 19 of the 2004 UN Convention on State Immunity, while not yet in force, can be regarded as indicative of present international custom on States’ immunity from execution.
The Court notes that the requirement under Article 1412quinquies that a State waiver from immunity from execution be ‘express’ is in accordance with the aforementioned Convention and international custom. By contrast, the additional requirement that such waiver must also be ‘specific’ goes beyond what international custom posits inasmuch as this requirement of specificity applies not only to diplomatic property (including embassy bank accounts), consular property, property of special missions, or international organizations (which is permissible), but also to other property of a foreign State more generally. The provision is indeed annulled to the extent that it extends the specificity requirement to the latter. By contrast, the Court upholds the requirement in Article 1412 quinquies that any attachment of the property of a foreign State presupposes prior approval by the juge de saisie.
VANDERSCHUREN, J., "Satisfecit constitutionnel partiel pour l’article 1412quinquies du Code judiciaire", JT 2018, afl. 6737, 560-564 and http://jt.larcier.be/ (6 july 2018).