Year: 2019

Prosecutor v N.F.

On By In Assize Court
Brussels Assize Court, Prosecutor v. N.F., Nr. FD30-98.102/02, 19 December 2019

Culpability

In this criminal judgment, a jury considered the question of guilt of the accused, N.F, for acts committed during the Rwandan genocide. Based on several witness statements, the jury concluded that the accused was guilty of the crime of genocide and fifteen counts of war crimes. Specifically, it was found that the accused provided assistance in the deliberate killing of members of the Tutsi ethnic group, such that without his assistance these crimes could not have been committed. The members killed were protected by the Geneva Conventions of 1949 and, consequently, their killing constituted a war crime. These war crimes were moreover part of the genocide of the Tutsis, and the jury found that the evidence presented proved that the accused held a genocidal intent. Conversely, the jury did not find the accused guilty of two counts of war cirmes with which he was charged for lack of information.

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Penalty

The judgment determines the criminal penalty of N.F., who was previously found guilty of genocide and fifteen counts of war crimes. The judgement states that N.F. benefits from mitigating circumstances because of his age. Ultimately, N.F. is sentenced to twenty-five years in prison. The penalty is decided on the basis of the gravity of the crimes committed, which are so serious that they have harmed the whole of humanity and threatened the peace, security and well-being of the world. Moreover, N.F. showed himself to be a leader with a will to exterminate the Tutsi population and incited others to do so as well. Finally, N.F. did not show any indications of having questioned his actions. On the contrary, during the trial, he continued to convey his genocidal ideology. This revealed him to pose a current and specific danger to society.

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Baghouri et al. v Belgium

On By In First Instance Tribunal
Brussels First Instance Tribunal, Baghouri et al. v Kingdom of Belgium, Nr. 2019/*/C, 11 December 2019

Several parents with Belgian citizenship staying at the Al-Hol refugee/detention camp in Syria claim that the Belgian State should be held liable to undertake all feasible measures to ensure the repatriation of their minor children and themselves.

The Tribunal of First Instance confirms that, since the entry into force of the Law of 9 May 2018, consular assistance is no longer a mere privilege, but a subjective right on the part of individuals covered by the Belgian Consular Code. This right, however, is not deemed to be absolute. Article 83 of the Consular Code indeed imposes several grounds for exclusion, including with respect to individuals who knowingly travel to a region where an armed conflict is ongoing. This manifestly applies to the plaintiffs, but not to their minor children, who should not bear the consequences of their parents’ acts, and who remain fully entitled to consular assistance.

In addition, the Tribunal rules that, given the severe neglect of their children by taking them into life-threatening war zone, the plaintiffs cannot invoke the children’s interest in not being separated from their parents against their will under Article 9 of the Convention of the Rights (CRC) of the Child in order to claim any right to assistance for themselves. The Tribunal confirms that neither the plaintiffs, nor their children, come within the jurisdiction of the Belgian State in the sense of the European Convention on Human Rights.

Based on the accumulation of international obligations assumed by the Belgian State (e.g. under the CRC and the Convention on Statelessness), and given the specific factual circumstances of the case, the Tribunal finds that the Belgian State is required to provide the children with the necessary administrative, identity and/or travel documents, to enable them to travel under supervision from Syria to Belgium.

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Russian Federation v Godeau Finances

On By In Supreme Court
Supreme Court, Russian Federation v Godeau Finances, Nr. C.18.0282.F/1, 6 December 2019

The Supreme Court addresses a case by the Brussels Court of Appeal between a Belgian Real Estate company and the Russian Federation. The company sought compensation after the Russian Federation renounced the acquisition of a set of real estate properties intended for the housing of personnel of its Permanent Mission to the EU.

The Supreme Court confirms that State immunity from jurisdiction is a rule of customary international law which only applies to acts performed in the exercise of public authority (‘acta jure imperii’) and not to ‘acta jure gestionis’. In order to determine whether an act is done in the exercise of a State’s public authority, the nature of the act and the capacity in which the State has intervened, and the context in which the act was performed must be taken into account.

The Supreme Court finds that, by relying exclusively on the nature or form of the acts of the Russian Federation’s Permanent Mission to the EU in order to determine that they constituted acta jure gestionis, without examining the quality in which the applicant intervened having regard to the context in which the acts were undertaken, the Court of Appeal infringed customary international law. Consequently, the judgement is annulled.

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A.A.

On By In Supreme Court
Belgian Supreme Court, A. A., Nr. P.18.1301.N, 2 January 2019

The case concerns an Iranian diplomat working at the embassy in Vienna (Austria), who was arrested in Germany and extradited to Belgium to face criminal charges for alleged involvement in terrorist activities. The Court acknowledges that diplomats enjoy inviolability when they are ‘in transit’ to or from the receiving State as part of their diplomatic assignment pursuant to Article 40(1) of the Vienna Convention on Diplomatic Relations. However, this inviolability does not apply where a diplomat returns to the receiving State from a holiday in a third country.

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G. v. Kingdom of Belgium

On By In Court of Appeal
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.

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