Author: Quinten DeGroote

L., M. et al. v Kingdom of Belgium

On By In Court of Appeal
Brussels Court of Appeal, L., M. et al. v Kingdom of Belgium, Nr. 2022/AR/262, 2 December 2024

This judgment overturns an earlier ruling of the Brussels First Instance Tribunal of 8 December 2021 (see here), in which the Tribunal rejected the claims for compensation against the Belgian State, lodged by five individuals of Congolese descent who had been forcibly removed from their mothers as children and placed in religious institutes on account of their mixed-race parentage between 1948 and 1961. The Court of Appeal overturned the judgement of the First Instance Tribunal on two fundamental grounds.

Firstly, with regard to the principle of legality, the Tribunal at first instance had held that, at the time the acts were committed, they did not yet qualify as crimes against humanity. The Court of Appeal rejected this reasoning. Relying on the Statute of the Nuremberg Tribunal, and UNGA resolution 95(I) of 1946, the Court held that the crime of humanity was recognized as an offence by the international community as of 1946. Further, notwithstanding the specific competence of the Nuremberg Tribunal, it was not confined to acts committed in situations of armed conflict. The fact that practices of racial segregation were not limited to Belgium at the time, and may have been institutionalized, moreover did not alter the fact that the abduction of young children solely for racial reasons qualified as a crime against humanity.

Secondly, concerning the issue of prescription, the First Instance Tribunal had found that the case was time-barred. This conclusion was also overturned on appeal. Since the acts were now qualified as crimes against humanity (offences that are not subject to statutory limitation) the Court of Appeal indeed held that prescription could not serve as a ground to bar the proceedings.

In the end, the Belgian government was ordered to pay EUR 50.000 compensation to each of the five “enfants métis” (increased with compensatory interest).

Download

B. A. M. vs Republic of Indonesia

On By In Supreme Court
Supreme Court, B. A. M. vs Republic of Indonesia, Nr. S.22.0043.F, 8 April 2024

The case concerns an appeal in cassation against a judgment of the Brussels Labour Court of Appeal which had upheld the immunity of Indonesia in an employment dispute lodged by an Indonesian national formerly employed at the embassy in Brussels (see here). In particular, the claimant argued that the Labour Court had erred in law by holding that Article 11(2)(e) of the UN Convention on State Immunity (UNCSI) does not reflect customary international law insofar as it conditions the application of State immunity in employment disputes between a foreign State and a national of that State on the latter person not having permanent residence in the forum State.

Rather than addressing the specific provision of the UNCSI, the Supreme Court reaffirmed that State immunity attaches only to acts performed in the exercise of public powers (acta jure imperii), to the exclusion of acta jure gestionis.

The Supreme Court further emphasized that there is no rule of customary international law according to which the exception to State immunity for acta jure gestionis would not apply when the claimant is a national of the foreign State, regardless of the claimant’s permanent residence. Accordingly, the claim asserting that customary international law prevents the forum State from exercising jurisdiction over a foreign State in matters relating to its acta jure gestionis, at least when the claimant is a national of that foreign State residing permanently in the forum State, was deemed unfounded in law.

Download

Prosecutor v former Guatemalan State officials

On By In Assize Court
Leuven Assize Court, Prosecutor v former Guatemalan State officials, Nr. FD30.98.000213-03, 14 December 2023

On 14 December 2023, the Assize Court of Flemish Brabant convicted in absentia five former high-ranking military and political leaders from Guatemala and sentenced them to life imprisonment for crimes against humanity committed against four Flemish missionaries.

The Court established that the killings formed part of a “widespread or systematic attack against the civilian population,” within the meaning of Article 7(1)(a) of the Rome Statute, to which Article 136ter of the Belgian Criminal Code refers. It situated these acts within the broader context of the Guatemalan civil war (1960–1996), noting that the facts at issue were committed between 1980 and 1982. During this protracted conflict, large numbers of civilians were subjected to grave human rights violations, including abductions, extrajudicial executions and enforced disappearances. Against this background, the Court concluded that the murders were not isolated acts but part of a larger pattern of violence, thereby qualifying them as crimes against humanity. This classification was also significant from a procedural standpoint, as such international crimes are not subject to statutes of limitation and are therefore imprescriptible.

With regard to the mode of liability, the Court relied, inter alia, on the doctrine of “Joint Criminal Enterprise” (JCE), reportedly for the first time in Belgian legal practice. Under this mode of liability, all participants in a collective criminal plan (regardless of their rank or level of direct involvement) can be held equally responsible for crimes committed in furtherance of the common purpose. By applying this doctrine, the Court attributed responsibility to the accused not only for their own actions but also for the acts carried out by others within the framework of the shared criminal enterprise.

All five accused were sentenced to life imprisonment, reflecting both the gravity of the crimes and their central role in the underlying criminal conduct.

Download

D. R. vs Republic of Mauritius

On By In Supreme Court
Supreme Court, D. R. vs Republic of Mauritius, Nr. C.22.0012.F, 6 April 2023

The case concerns a French-Mauritian dual national who initiated arbitral proceedings against Mauritius under the 1973 France–Mauritius Bilateral Investment Treaty (BIT), alleging several treaty breaches. In 2018, however, the arbitral tribunal, having its seat in Brussels, found it lacked jurisdiction on the grounds that dual nationals of the two State parties fall outside the BIT’s personal scope of application, even though the treaty does not expressly address this issue. The investor sought annulment of the award before the Brussels Tribunal of First Instance, yet without success.

Contrary to the claimant, the Supreme Court held that the contested judgment had relied on the 2010 BIT between France and Mauritius – which excludes dual nationals from its scope but had not yet entered into force – not to determine the scope of the 1973 Treaty, but rather as an element revealing the common intention of the States Parties, at least as of 2010.

The Supreme Court further accepted that the contested judgment could rightly consider the customary norm excluding diplomatic protection for dual nationals as a “relevant rule of international law applicable in the relations between the parties” in the sense of Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT) for purposes of interpreting the 1973 BIT. By contrast, the European Convention on Human Rights (ECHR) and its First Additional Protocol did not qualify as such, as Mauritius was not bound by these instruments.

With respect to the reliance on national legislation as a “supplementary means of interpretation” under Article 32 VCLT, the Supreme Court rejected that supplementary means can be used only when the interpretation pursuant to Article 31 VCLT leaves the matter ambiguous or results in an outcome that is manifestly absurd (as they can be used to confirm an interpretation pursuant to Article 31 VCLT). On the other hand, it held that the reference to “preparatory work” in Article 32 is merely illustrative and that other supplementary means of interpretation may also be considered.

Download