December 2024 – ILBC DATABASE

Supreme Court, I. à X. E. N. v Prosecutor, Nr. P.24.1012.F/1, 18 December 2024

The judgment concerns (among others) an appeal in cassation by a person who was found guilty by the Court of Assizes of the Judicial District of Brussels of genocide and war crimes committed in Rwanda between 9 April and 28 May 1994. The applicant claimed that the conviction for genocide violated the principle of legality in criminal law (inter alia Article 7 ECHR), since Belgian criminal law did not formally criminalize genocide at the time the acts were committed (but did so only as of 1999).

The Supreme Court dismissed the claim since the conviction was based on international law already in force at the time of the acts, namely the 1948 Genocide Convention, ratified by Belgium in 1951. The Court held that this convention defines the offence with sufficient clarity and confirms the existence of an international custom that is binding on States, including within their domestic legal order. Accordingly, the crime of genocide already formed part of the Belgian legal order before the entry into force of the dedicated legislation adopted in 1999. Furthermore, the Court held that whereas the Genocide Convention does not explicitly prescribe penalties, the national judge could determine the sentence under domestic criminal provisions, such as those relating to murder, since the killing of members of the targeted group constitutes one of the constitutive elements of genocide.

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Brussels Court of Appeal, L., M. et al. v Kingdom of Belgium, Nr. 2022/AR/262, 2 December 2024

This judgment overturns an earlier ruling of the Brussels First Instance Tribunal of 8 December 2021 (see here), in which the Tribunal rejected the claims for compensation against the Belgian State, lodged by five individuals of Congolese descent who had been forcibly removed from their mothers as children and placed in religious institutes on account of their mixed-race parentage between 1948 and 1961. The Court of Appeal overturned the judgement of the First Instance Tribunal on two fundamental grounds.

Firstly, with regard to the principle of legality, the Tribunal at first instance had held that, at the time the acts were committed, they did not yet qualify as crimes against humanity. The Court of Appeal rejected this reasoning. Relying on the Statute of the Nuremberg Tribunal, and UNGA resolution 95(I) of 1946, the Court held that the crime of humanity was recognized as an offence by the international community as of 1946. Further, notwithstanding the specific competence of the Nuremberg Tribunal, it was not confined to acts committed in situations of armed conflict. The fact that practices of racial segregation were not limited to Belgium at the time, and may have been institutionalized, moreover did not alter the fact that the abduction of young children solely for racial reasons qualified as a crime against humanity.

Secondly, concerning the issue of prescription, the First Instance Tribunal had found that the case was time-barred. This conclusion was also overturned on appeal. Since the acts were now qualified as crimes against humanity (offences that are not subject to statutory limitation) the Court of Appeal indeed held that prescription could not serve as a ground to bar the proceedings.

In the end, the Belgian government was ordered to pay EUR 50.000 compensation to each of the five “enfants métis” (increased with compensatory interest).

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