Category: First Instance Tribunal

Federal Prosecutor, Republic of Turkey and F.A. v U.S., K.R. et al.

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Council Chamber of the Tribunal of First Instance, Federal Prosecutor, Republic of Turkey and F.A. v U.S, K.R. et al., 3 November 2016

The Council Chamber of the Tribunal of First Instance adjudges that the PKK should be considered as a non-State armed group that is party to a non-international armed conflict with the Turkish State under international humanitarian law (IHL). In accordance with the IHL exclusion clause of Article 141bis of the Belgian Criminal Code, this qualification entails that the 42 defendants cannot be prosecuted for ‘terrorist offences’ in connection with their involvement in that conflict as members of the PKK.
In order to establish the intensity and degree of organization required to conclude to the existence of a non-international armed conflict, the Chamber (implicitly) draws from a range of factors, including: the PKK’s armed activities since 1984, the high number of these activities, the use of heavy weapons, the existence of a chain of command, the position of the International Committee of the Red Cross, the formal initiative undertaken by the PKK to comply with international conventions, the territorial control of the PKK over parts of South-East of Turkey (as demonstrated by a call for armistice by the PKK leader in 2013), as well as the conduct of negotiations between the PKK and Turkey.

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X {Ex parte}

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Bruges First Instance Tribunal, X, Nr. 14/1508/B, 23 November 2015

The Tribunal examined a request of a man of Palestinian origin seeking recognition as a stateless person. Since statelessness presupposes an absence of ‘nationality’, and ‘nationality’ in turn necessitates a connection between an individual and a ‘State’, the Tribunal needed to determine whether Palestine qualified as such. Starting from the four cumulative conditions of the 1933 Montevideo Convention, the Tribunal accepts that Palestine fulfills the requirements of a permanent population and a defined (even if fragmented) territory. By contrast, it is less clear whether the Palestinian National Authority (PNA) qualifies as an ‘effective government’, since it only has limited powers and Israel still controls their airways, external borders, territorial waters, national registrations, taxes and functions in the government itself. In any case, according to the Tribunal, fulfillment of the Montevideo criteria is ‘manifestly meaningless’ if the Palestinian State is not internationally recognized. As a significant number of countries, including Belgium itself, has not recognized Palestine as such, the Tribunal cannot under present circumstances establish the existence of a sovereign Palestinian State. It follows that the applicant cannot be seen as having the ‘Palestinian nationality’ and must be regarded as being stateless.  

Rb. Brugge 23 november 2015, T.Vreemd 2016, afl. 2, 223.
AGENTSCHAP INTEGRATIE EN INBURGERING, “Palestijnse nationaliteit wordt niet erkend, staatloosheid dus niet uitgesloten”, T.Vreemd 2016, 509-510.
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A. v Kingdom of Belgium

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Brussels First Instance Tribunal, A. v Kingdom of Belgium, Nr. 2013/9033/A, 4 May 2015

The claimant is a Belgian national born in Palestine. He asserts that numerous products originating from Israeli settlements in occupied Palestinian land are commercialized in Belgium undr the label ‘Made in Israel’, in contravention with international law. According to A., authorizing this commercialisation makes Belgium complicit in the illegal occupation of Palestine and Israel’s violations of international humanitarian law. In light hereof, the claimant requests the Court to forbid the Belgian State to continue allowing the entry and sale of these products.

However, the Court declared his claim inadmissible on the grounds that A. did not have a personal, direct, concrete and legitimate interest. Contrary to what A. asserts, this interest cannot be derived from the direct applicability of jus cogens. Only people who have a direct and personal interest because of the violation of international laws, can turn to the courts.

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V. et al v the Holy See

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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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M.-N.F., I.S. et al. v Kingdom of Belgium, M.L. et al.

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Brussels First Instance Tribunal, M.-N.F., I.S. et al. v Kingdom of Belgium, M.L. et al., Nr. 04/4807/A, 8 December 2010

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. Several relatives of the victims brought  proceedings against the Belgian government and three former officers of the Belgian ‘KIBAT’ contingent seeking compensation. In its interlocutory judgement, the Court dismisses objections that the claims had expired. In addition, the Court asserts that the decision to evacuate the ‘ETO’ school facility was taken under the auspices of the Belgian government and not UNAMIR. Furthermore, the Court emphasizes that the defendants could not harbor any illusions as to the fate that awaited the refugees upon the withdrawal of the Belgian peacekeepers, and that the Rwandan refugees had lost a chance of survival as a result of the retreat of KIBAT.

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C. RYNGAERT, Oxford Reports on International Law in Domestic Courts, 2010, 1604.