Council Chamber of the Tribunal of First Instance, Federal Prosecutor, Republic of Turkey and F.A. v U.S, K.R. et al., 3 November 2016
The Council Chamber of the Tribunal of First Instance adjudges that the PKK should be considered as a non-State armed group that is party to a non-international armed conflict with the Turkish State under international humanitarian law (IHL). In accordance with the IHL exclusion clause of Article 141bis of the Belgian Criminal Code, this qualification entails that the 42 defendants cannot be prosecuted for ‘terrorist offences’ in connection with their involvement in that conflict as members of the PKK.
In order to establish the intensity and degree of organization required to conclude to the existence of a non-international armed conflict, the Chamber (implicitly) draws from a range of factors, including: the PKK’s armed activities since 1984, the high number of these activities, the use of heavy weapons, the existence of a chain of command, the position of the International Committee of the Red Cross, the formal initiative undertaken by the PKK to comply with international conventions, the territorial control of the PKK over parts of South-East of Turkey (as demonstrated by a call for armistice by the PKK leader in 2013), as well as the conduct of negotiations between the PKK and Turkey.
Supreme Court, M.R. v La Posterie, Nr. C.16.0039.N, 28 October 2016
The Belgian Supreme Court adjudges that the immunity of jurisdiction of a member of the United States Permanent Representation to NATO (as per Article XII of the Ottawa Agreement and Articles 29-31 of the Vienna Convention on Diplomatic Relations (VCDR)) does not violate the right of access to court (Article 6 ECHR). In a case involving a dispute over the payment of rent arrears, the lower court had previously held that such immunity would violate the right of access to court, in light of the fact that the proceedings would “in no way compromise” the proper functioning of the US Permanent Representation or NATO itself. According to the Supreme Court, however, this approach was not legally justifiable. The Supreme Court further recalls that lawsuits regarding the lease of a private home do not fall within the exception to immunity from jurisdiction under Article 31 (1) (a) VCDR.
Belgian Supreme Court, M.E.Y. v O.R.V.; F.B. v Politiezone nr. 5340 Brussel-West, D.B. et al, Nr. P.16.0244.N, 24 May 2016
The case concerns an action for annulment brought against a judgment of the Antwerp Court of Appeals finding the applicants guilty of terrorist offences under the Belgian Criminal Code in connection with their involvement in islamist terrorist groups abroad. In particular, the applicants unsuccesfully raise breaches of Article 3 of the Geneva Conventions, Article 141bis of the Belgian Criminal Code, Article 7 ECHR and the principle of legality. All claims are, however, dismissed by the Supreme Court.
Pursuant to Article 141bis of the Criminal Code, the provisions pertaining to terrorist offences do not apply to the conduct of armed forces during an armed conflict. Such ‘armed conflict’ exists whenever when there is armed violence between States or protracted armed violence between State authorities and organized armed groups or between such groups within a State. The existence of a non-international armed conflict is determined primarily in light of the intensity of the conflict and the degree of organization of the parties involved. Other criteria cited by international jurisprudence are merely indicative criteria that can be used to interpret the requirements of intensity and organization. The appraisal of these criteria in a given case is a matter for the judge of the merits, and is not subject to review by the Supreme Court (as long as proper statement of reasons is provided).