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 Court of Appeal, Kingdom of Belgium v E. M., Nr. 2020 KR 3, 5 March 2020
This case concerns a Belgian woman who had travelled to Syria to join her partner and claimed to have given birth to a son there. Held in the camp of Al-Hol, operated by the Kurdish authorities, she sued the Belgian State to repatriate her son and herself from Syria. The Court of Appeal of Brussels ruled that the guidelines issued by the Ministry of Foreign Affairs providing for the repatriation of all Belgian children up to ten years old from Syrian territory created a subjective right prone to judicial review. Further, having regard to Article 22bis(4) of the Belgian Constitution as well as Article 3(1) of the Convention of the Rights of the Child, the government’s discretionary power to exercise the right to consular assistance was limited by the child’s best interests. Having regard to the fact that the Kurdish authorities controlled the Al-Hol camp and could determine the modalities for repatriation, the Court found that Belgium did not exercise extraterritorial jurisdiction in the sense of the ECHR or the ICCPR. Nor did the human right to enter one’s own country entail a positive obligation on the part of the State to ensure repatriation.
L. DE BRUCKER, “Het recht op consulaire bijstand vanuit nationaal-, Europees- en internationaalrechtelijk perspectief. Naar een subjectief recht op repatriëring voor kinderen van Syriëstrijders?”, Tijdschrift voor Jeugd- en Kinderrechten 2020, 194-210.
Brussels Court of Appeal, G. v. Kingdom of Belgium, Nr. 2019/KR/5, 19 December 2018
This case concerns an appeal by the Belgian State against the order on provisional measures in G. v. Kingdom of Belgium, which held that the Belgian state must enable two children born in Syria to travel to Belgium based on Belgium’s international obligations. While the judgment had been implemented and the children had been brought to Belgium, the Belgian State nonetheless claimed the initial order set a flawed precedent.
The Court of Appeal asserted that the mother’s original claim did fall under the jurisdiction of the ordinary courts as it concerned the subjective rights of children based on international law instruments. Furthermore, it ruled that the court of first instance did not exceed its jurisdiction by ruling that the children should be enabled to travel to Belgium even though the conditions of national law were not fulfilled, as it did so to avoid violations of their rights provided for by international law. On the other hand, the Court agreed with the Belgian State that the requirement of urgency for a summary procedure had not been fulfilled.
Brussels Court of Appeal, Prosecutor v A.I., B.H. et al., Nr. 2017 FC 1, 26 February 2019
The case concerned several individuals accused of terrorist offences on account of their alleged involvement in a terrorist group operating in Chechnya. The Court held that Article 6(3)(a) ECHR (the right to a fair trial) does not imply that the indictment must state all the concrete information from which the existence of the personal involvement of the accused can be derived. In casu, the charges were sufficiently clear and unambiguous. The Brussels Court of Appeal held, however, that there were no indications that the defendants were indeed guilty of the crimes charged. Accordingly, there was no need to inquire whether the ‘terrorism exception’ of Article 141bis of the Belgian Criminal Code, relating to acts of armed forces during an armed conflict, was applicable.
Brussels Court of Appeal, M.-N. F. et al. v M.L. et al., Nr. 2011 AR 292, 8 June 2018
In the early days of the Rwandan genocide of 1994, an estimated 2.000 men, women and children were massacred when a Belgian contingent of the UNAMIR peacekeeping operation abandoned the school facility where these persons had sought refuge. In the appeals procedure brought by the Belgian government as well as three former officers of the Belgian ‘KIBAT’ contingent against a prior interlocutory judgment, the Brussels Court of Appeal examined to whom the conduct of KIBAT may be imputed. In so doing, the Court affirms that responsibility for the conduct of UN peacekeepers can shift from the United Nations to the Troop-Contributing Country (TCC) if the latter exercises effective control over its national troops. The Court further draws a comparison with the conduct of the Dutch UNPROFOR battalion in the Mothers of Srebrenica proceedings in the Netherlands, but finds that the circumstances are different. In particular, it has not been established that the KIBAT soldiers left the ‘ETO’ school facility pursuant to the decision of the Belgian Government to withdraw from the UNAMIR operation. According to the Court, the imputability of the conduct of KIBAT did not transfer to the Kingdom of Belgium, as the UN retained effective control over its own troops. Consequently, the Belgian officers who gave the order to withdraw from the ETO school facility did so in their capacity as members of UNAMIR and enjoyed immunity from jurisdiction, whereas the claims brought against the Kingdom of Belgium were unfounded.
T. RUYS, L. FERRO, "Wie is verantwoordelijk voor het optreden van VN-blauwhelmen? De Rwandese genocide en de Belgische terugtrekking uit de Ecole Technique Officielle Don Bosco", Rechtskundig Weekblad 2020, Vol. 83, 1516-1519.
T. RUYS, "Mukeshimana-Ngulinzira and Others v. Belgium and Others", American Journal of International Law 2020, Vol. 114, 268-275.