A.C. v NATO and Belgium

On By In Supreme Court
Supreme Court, A. C. v NATO and Belgium, Nr. C.20.0313.F/1, 7 November 2024

In a judgment of 23 November 2017, the Brussels Court of Appeals upheld NATO’s immunity from jurisdiction in tort proceedings brought by relatives of individuals killed during a NATO strike in Libya in 2011. A subsequent appeal in cassation against the judgment was dismissed by the Supreme Court.

The Supreme Court confirms that the immunity from jurisdiction of international organizations serves a legitimate purpose. Whether its application constitutes a proportionate restriction of the right to access to court in the sense of Article 6(1) ECHR must be determined, not on the basis of the nature of the substantive right that is allegedly breached, but in light of the existence of other reasonable means to protect the rights guaranteed by the ECHR. Such reasonable means can notably consist of remedies available in a country that does not grant immunity of jurisdiction to an international organization. What is more, as indicated by the Court of Appeals, an alternative remedy could exist in a judicial procedure brought against the NATO Member State that carried out the contested airstrikes. The fact that the latter State had not been identified, and that the Court of Appeal had not established a concrete possibility for the claimant to identify this State, was not deemed not alter the foregoing.

Multiple sub-branches addressed different procedural and legal grounds were all found inadmissible or without merit. Thus, the Supreme Court i.a. held that, for lack of direct effect in Belgium, the UN Security Council resolutions invoked by the claimant did not constitute a law the violation of which could underpin an appeal in cassation, and that relevant passages from UNSC resolutions did not constitute binding decisions in the sense of Article 25 UN Charter. In the end, the Supreme Court dismissed the appeal and concluded that NATO’s immunity stands and cannot be bypassed.

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B. A. M. vs Republic of Indonesia

On By In Supreme Court
Supreme Court, B. A. M. vs Republic of Indonesia, Nr. S.22.0043.F, 8 April 2024

The case concerns an appeal in cassation against a judgment of the Brussels Labour Court of Appeal which had upheld the immunity of Indonesia in an employment dispute lodged by an Indonesian national formerly employed at the embassy in Brussels (see here). In particular, the claimant argued that the Labour Court had erred in law by holding that Article 11(2)(e) of the UN Convention on State Immunity (UNCSI) does not reflect customary international law insofar as it conditions the application of State immunity in employment disputes between a foreign State and a national of that State on the latter person not having permanent residence in the forum State.

Rather than addressing the specific provision of the UNCSI, the Supreme Court reaffirmed that State immunity attaches only to acts performed in the exercise of public powers (acta jure imperii), to the exclusion of acta jure gestionis.

The Supreme Court further emphasized that there is no rule of customary international law according to which the exception to State immunity for acta jure gestionis would not apply when the claimant is a national of the foreign State, regardless of the claimant’s permanent residence. Accordingly, the claim asserting that customary international law prevents the forum State from exercising jurisdiction over a foreign State in matters relating to its acta jure gestionis, at least when the claimant is a national of that foreign State residing permanently in the forum State, was deemed unfounded in law.

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C.C. v A.P.

On By In Supreme Court
Supreme Court, C.C. v A.P., Nr. C.21.0470.F, 26 January 2024

Does Article 3.1 of the UN Convention on the Rights of Children (‘CRC’) have direct effect? This issue was at the heart of the judgment of the Supreme Court of 26 January 2024. In a short judgment, the Court answered that question in the negative and quashed the decision of the Court of Appeal of Liège.

The case concerned two (divorced) parents who were in dispute over their child’s housing and education. In support of his application, A.P. (the defendant party), had produced certain documents taken from the child’s youth case file. Although this contravened Article 27, §5 of the Code on Prevention, Youth Support and Youth Protection, the Court of Appeal had nevertheless admitted these documents to the procedure, as it considered that ‘[a] child’s life forms a whole, even if, from a legal or psychosocial level, different authorities are each responsible to deal with a part of its existence’. It based its reasoning on Art. 3.1 CRC, which stipulates that all decisions concerning children must be taken in their best interests. As it considered it in the best interests to have of as much information as possible, the Court of Appeal gave precedence to Article 3.1 over the aforementioned provision of domestic law.

In its judgment, the Supreme Court recalls that, for an international norm to have direct effect, two conditions must be fulfilled: the norm must be (i) sufficiently precise and (ii) complete. Article 3.1 CRC, however, does not fulfil these conditions, as it leaves the State with several options for meeting the requirements of the child’s best interests. The Court did not provide any further explanation, but has spoken out on this matter in other judgments (Cass., 2 March 2012, C.10.0685.F, Pas., 2012, n° 145 ; Cass., 4 November 1999, C.99.0048.N, Pas., 1999, n° 588, et Cass., 4 November 1999, C.99.0111.N.). In the end, the Court concluded that Article 3.1 CRC cannot serve as a source of subjective rights or obligations for individuals, and cannot override domestic law.

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Prosecutor v former Guatemalan State officials

On By In Assize Court
Leuven Assize Court, Prosecutor v former Guatemalan State officials, Nr. FD30.98.000213-03, 14 December 2023

On 14 December 2023, the Assize Court of Flemish Brabant convicted in absentia five former high-ranking military and political leaders from Guatemala and sentenced them to life imprisonment for crimes against humanity committed against four Flemish missionaries.

The Court established that the killings formed part of a “widespread or systematic attack against the civilian population,” within the meaning of Article 7(1)(a) of the Rome Statute, to which Article 136ter of the Belgian Criminal Code refers. It situated these acts within the broader context of the Guatemalan civil war (1960–1996), noting that the facts at issue were committed between 1980 and 1982. During this protracted conflict, large numbers of civilians were subjected to grave human rights violations, including abductions, extrajudicial executions and enforced disappearances. Against this background, the Court concluded that the murders were not isolated acts but part of a larger pattern of violence, thereby qualifying them as crimes against humanity. This classification was also significant from a procedural standpoint, as such international crimes are not subject to statutes of limitation and are therefore imprescriptible.

With regard to the mode of liability, the Court relied, inter alia, on the doctrine of “Joint Criminal Enterprise” (JCE), reportedly for the first time in Belgian legal practice. Under this mode of liability, all participants in a collective criminal plan (regardless of their rank or level of direct involvement) can be held equally responsible for crimes committed in furtherance of the common purpose. By applying this doctrine, the Court attributed responsibility to the accused not only for their own actions but also for the acts carried out by others within the framework of the shared criminal enterprise.

All five accused were sentenced to life imprisonment, reflecting both the gravity of the crimes and their central role in the underlying criminal conduct.

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D. R. vs Republic of Mauritius

On By In Supreme Court
Supreme Court, D. R. vs Republic of Mauritius, Nr. C.22.0012.F, 6 April 2023

The case concerns a French-Mauritian dual national who initiated arbitral proceedings against Mauritius under the 1973 France–Mauritius Bilateral Investment Treaty (BIT), alleging several treaty breaches. In 2018, however, the arbitral tribunal, having its seat in Brussels, found it lacked jurisdiction on the grounds that dual nationals of the two State parties fall outside the BIT’s personal scope of application, even though the treaty does not expressly address this issue. The investor sought annulment of the award before the Brussels Tribunal of First Instance, yet without success.

Contrary to the claimant, the Supreme Court held that the contested judgment had relied on the 2010 BIT between France and Mauritius – which excludes dual nationals from its scope but had not yet entered into force – not to determine the scope of the 1973 Treaty, but rather as an element revealing the common intention of the States Parties, at least as of 2010.

The Supreme Court further accepted that the contested judgment could rightly consider the customary norm excluding diplomatic protection for dual nationals as a “relevant rule of international law applicable in the relations between the parties” in the sense of Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT) for purposes of interpreting the 1973 BIT. By contrast, the European Convention on Human Rights (ECHR) and its First Additional Protocol did not qualify as such, as Mauritius was not bound by these instruments.

With respect to the reliance on national legislation as a “supplementary means of interpretation” under Article 32 VCLT, the Supreme Court rejected that supplementary means can be used only when the interpretation pursuant to Article 31 VCLT leaves the matter ambiguous or results in an outcome that is manifestly absurd (as they can be used to confirm an interpretation pursuant to Article 31 VCLT). On the other hand, it held that the reference to “preparatory work” in Article 32 is merely illustrative and that other supplementary means of interpretation may also be considered.

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