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).