A. et al v Kingdom of Belgium

Brussels First Instance Tribunal, A. et al v Kingdom of Belgium, Nr. 2020-14-C, 29 April 2020

This case concerns a man who travelled to Syria in 2013 and who was detained in the prison of Al-Hasakah by the Syrian-Kurdish authorities. Relying on several human rights and humanitarian treaties, the man claimed that the Belgian government was under an obligation to repatriate him from Syria. The Tribunal nonetheless held that the applicant was not within the ‘jurisdiction’ of the Belgian State, and that he could also not rely on the Geneva Conventions or the ICC Rome Statute since Belgium was not a party to the armed conflict in Syria. The Tribunal further held that, having travelled to Syria on his own initiative, the applicant was not entitled to consular assistance pursuant to Article 83 of the Belgian Consular Code.


Kingdom of Belgium v E.M.

Brussels Court of Appeal, Kingdom of Belgium v E. M., Nr. 2020 KR 3, 5 March 2020

This case concerns a Belgian woman who had travelled to Syria to join her partner and claimed to have given birth to a son there. Held in the camp of Al-Hol, operated by the Kurdish authorities, she sued the Belgian State to repatriate her son and herself from Syria. The Court of Appeal of Brussels ruled that the guidelines issued by the Ministry of Foreign Affairs providing for the repatriation of all Belgian children up to ten years old from Syrian territory created a subjective right prone to judicial review. Further, having regard to Article 22bis(4) of the Belgian Constitution as well as Article 3(1) of the Convention of the Rights of the Child, the government’s discretionary power to exercise the right to consular assistance was limited by the child’s best interests.  Having regard to the fact that the Kurdish authorities controlled the Al-Hol camp and could determine the modalities for repatriation, the Court found that Belgium did not exercise extraterritorial jurisdiction in the sense of the ECHR or the ICCPR. Nor did the human right to enter one’s own country entail a positive obligation on the part of the State to ensure repatriation.

L. DE BRUCKER, “Het recht op consulaire bijstand vanuit nationaal-, Europees- en internationaalrechtelijk perspectief. Naar een subjectief recht op repatriëring voor kinderen van Syriëstrijders?”, Tijdschrift voor Jeugd- en Kinderrechten 2020, 194-210.

Prosecutor v N.F.

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.

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.


A.A.

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.


Prosecutor v A.I., B.H. et al.

Brussels Court of Appeal, Prosecutor v A.I., B.H. et al., 2017 FC 1, 26 February 2019

The case concerned several individuals accused of terrorist offences on account of their alleged involvement in a terrorist group operating in Chechnya. The Court held that Article 6(3)(a) ECHR (the right to a fair trial) does not imply that the indictment must state all the concrete information from which the existence of the personal involvement of the accused can be derived. In casu, the charges were sufficiently clear and unambiguous. The Brussels Court of Appeal held, however, that there were no indications that the defendants were indeed guilty of the crimes charged. Accordingly, there was no need to inquire whether the ‘terrorism exception’ of Article 141bis of the Belgian Criminal Code, relating to acts of armed forces during an armed conflict, was applicable.