Year: 2018

G v. Kingdom of Belgium

On By In First Instance Tribunal
Brussels First Instance Tribunal, G. v. Kingdom of Belgium, 19 December 2018

This case concerns a mother suing the Belgian state to enable the children she had with an Islamic State fighter during her stay in Syria, to travel to Belgium. The mother, who is detained in Turkey, used to have the Belgian nationality but currently only holds the Algerian nationality. The children were born in Syria but are living in Turkey and are de facto stateless.

According to the Court, the children had a sufficient connection with neither Syria, Turkey, nor Algeria. By contrast, there was a factual connection with Belgium. Furthermore, while it could be argued that, pursuant to the Convention of 1954 Concerning the Status of Stateless Persons, the claim to obtain travel documents should be directed to the Turkish government, this could not be expected to happen in practice.

Furthermore the Court ruled that, even if there was no specific legal ground obliging the Belgian State to provide the requested travel documents, the State nonetheless had an enforceable legal obligation to act, in light a range of commitments made, such as the general principle of aid and assistance to one’s own nationals, articles 50 and 75 of the Belgian Consular Code, the Convention of 1954 Relating the Status of Stateless Persons, the Convention on the Right of the Child, and article 8 of the ECHR. The Court accordingly ruled the claim to be well-founded and granted the requested provisional measures.

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M.-N. F. et al. v M. L. et al.

On By In Court of Appeal
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.

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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.

Prosecutor v X

On By In Court of Appeal
Brussels Court of Appeal, X v Prosecutor, Nr. 2017/FA/707, 5 June 2018

The Brussels Court of Appeal states that according to article 1.1° of the 1954 Statelessness Convention, a person who is not considered a national by any State constitutes a stateless person. In assessing the statehood of Palestine, the Court takes into account the four criteria established in the 1933 Montevideo Convention and holds that, in accordance with the declaratory theory, the political existence of a State is not contingent on its recognition by other States. The Court determines that, based on these elements, Palestine must be considered as a ‘State’ hic et nunc.

According to the Court, the alleged absence of a Palestinian nationality legislation does not imply that the defendant ought to be regarded as a stateless person. Instead, what matters is that the State of Palestine considers the defendant as a Palestinian citizen by virtue of applicable national law. In particular, the defendant’s UNRWA Registration Card indicates Palestinian descent, whereas individuals of Palestinian origin and their descendents who sought refuge in Lebanon following the establishment of the State of Israel are recognized as nationals by the Palestinian National Authorities. It follows that the defendant is not a stateless person in the sense of the 1954 Convention.

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N.A. v African Union

On By In Labour Court
Brussels Labourt Court, N.A. v African Union, Nr. 16/7777/A, 10 January 2018

The plaintiff, who had worked for the Permanent Mission of the African Union in Brussels based on successive short-term contracts, was disputing the termination of his appointment. The Brussels Labour Court upheld the African Union’s immunity from jurisdiction pursuant to a 1985 headquarters agreement concluded with Belgium. The plaintiff had sought to challenge the immunity based on the individual’s right of access to a court (Art. 6 ECHR). However, the Court held that neither the African Union nor its Member States are bound by the ECHR; that the Belgian State, by approving the headquarters agreement and the immunity it provides for, had intended to depart from Article 6 of the (previously ratified) ECHR; and that, at any rate, the restriction on the plaintiff’s right of access to a court was not disproportionate since he had several reasonable alternative remedies available to him – including an appeal before the African Union’s Administrative Tribunal – which he refrained from using.

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