Tag: Immunity from jurisdiction

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.

J.P.-A. v Kingdom of the Netherlands and Dutch Central Bank

On By In Supreme Court
Supreme Court, J.P.-A. v Kingdom of the Netherlands and Dutch Central Bank, Nr. C.14.0322.F/1, 23 October 2015

During the financial crisis of 2008, the Dutch State decided to buy the Dutch activities of the Fortis group instead of proceeding with the recapitalization as previously agreed to. In the wake of the events, a group of former shareholders decided to file a lawsuit against the Dutch State, as well as against the Dutch central bank (DNB), which they deemed complicit in the dismantling of the Fortis group.

In 2013, the Court of Appeal held that the Kingdom of the Netherlands and DNB enjoyed immunity from jurisdiction. In particular, the Court found that while both Belgium and the Netherlands had made a declaration pursuant to Article 24 of the European Convention on State Immunity (the Basel Convention), such declarations were without prejudice to the immunity from jurisdiction which foreign States enjoy in respect of acts performed in the exercise of sovereign authority. After careful consideration of the nature of the act, the context in which the act was done and the capacity in which the Dutch State had acted (as the guarantor of the State’s financial stability), taking into account the context in which the Dutch State acted (cf. the urgency and severity of the financial crisis and the absence of a private investor capable of intervening), the Court of Appeal concluded that the Dutch State had effectively acted in the exercise of its public authority and accordingly enjoyed immunity from jurisdiction. Furthermore, while DNB constituted a distinct legal entity, it equally enjoyed immunity from jurisdiction for ‘acts performed by the entity in the exercise of sovereign authority’ pursuant to Article 27(2) of the Basel Convention.

The Belgian Supreme Court adjudges that this conclusion was legally constituted and dismisses the appeal in cassation.

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V. et al v the Holy See

On By In First Instance Tribunal
Ghent First Instance Tribunal, V. et al v the Holy See, Nr. 11/2648/A, 1 October 2013

Some 39 plaintiffs who claim to have been victims of sexual abuse as minors by ministers of the Roman Catholic Church in Belgium, argue that in addition to the damages stemming from the abuse itself, they also suffered damages due to the church authorities’ year-long refusal or failure to acknowledge and address the problem. The Holy See objects that the Court has no jurisdiction to adjudicate the claims against it as it enjoys immunity from jurisdiction.

The plaintiffs argue that the Holy See can only enjoy state immunity in its capacity as the government of Vatican City State, but not when it is sued ‘on behalf of the Pope’ in a civil court as the government of the Roman Catholic Church. The Court, however, rejects this argument as it would undo the de facto recognition of the Holy See as foreign sovereign by the Belgian State. The Court, moreover, dismisses the argument by the plaintiffs that the alleged policy errors of the Holy See were ‘acta jure gestionis’ for which it cannot rely on immunity from jurisdiction. The Court also confirms that the invocation of such immunity from jurisdiction does not entail a violation of the plaintiffs’ right of access to justice under the ECHR.

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Republic of Argentina v NMC Capital Ltd

On By In Supreme Court
Belgian Supreme Court, Republic of Argentina v. NMC Capital LTD, Nr. C.11.0688.F, 22 November 2012
ECLI:BE:CASS:2012:ARR.20121122.3

The judgment annuls a previous judgment by the Brussels Court of Appeals dated 21 June 2011. In the latter judgment , the Court of Appeals took the view that Argentina’s general waiver of immunity from jurisdiction and immunity from execution also covered the goods of Argentina’s diplomatic mission in Belgium, including its bank accounts (without there being a need to verify whether the amounts seized were used for purposes other than the functioning of the diplomatic mission). According to the Supreme Court, this approach violated articles 22, 3 and 25 of the Vienna Convention on Diplomatic Relations as well as the customary rule of ‘ne impediatur legatio’. In particular, the Supreme Court confirmed the need for an explicit and specific waiver of immunity in respect of goods of the diplomatic mission.

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Confederation of Christian Trade Unions and General Federation of Labour of Belgium v United States

On By In Labour Court of Appeal
Labour Court of Appeal Brussels, Confederation of Christian Trade Unions and General Federation of Labour of Belgium v United States, Nr. 2010/AB/1214, 3 May 2012
ECLI:BE:CTBRL:2012:ARR.20120503.14

The jurisdictional immunity of states is a rule of customary international law that prohibits the jurisdictions of one state from exercising its jurisdictional power over another state that has not consented. However, this immunity is limited: it concerns acts relating to sovereignty, not administration. In principle, the states may not invoke jurisdictional immunity before a court of another state in proceedings relating to employment contracts. However, no exception to the states’ jurisdictional immunity is provided for collective labor relations. Disputes concerning the regulations on the establishment of works councils are collective and not individual. The primacy of access to justice (Article 6 of the ECHR) over the rule of jurisdictional immunity and immunity from execution presupposes that the person against whom the immunity is asserted does not have other reasonable means of effectively obtaining the protection of the rights guaranteed to him by the ECHR. What matters in this regard is not that an action can be brought in the state of residence of the plaintiffs or that certainty is provided as to the application of the law of that state by the foreign jurisdiction, but that that jurisdiction (or the body of the international organization to which an internal action can be brought, as in the cases submitted to the Supreme Court) provides the guarantees of impartiality and independence of the court.

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