Antwerp First Instance Tribunal, Prosecutor v A.S., N.N. et al, 20/A/3763, 4 February 2021
The Tribunal of First Instance imposes heavy prison sentences on four individuals of Iranian origin, including an diplomat accredited to the Iranian embassy in Austria, for planning a terrorist attack. The Tribunal finds that the diplomat cannot invoke immunity from jurisdiction under Article 31 VCDR, since this only applies in the bilateral relationship between the sending and the receiving State. In addition, the diplomat was not in transit in the sense of Article 40 VCDR. This provision must be read restrictively, and does not extend to situations where a diplomat is on a holiday abroad. The Tribunal also observes that the activities of which the diplomat is accused cannot form part of the normal diplomatic function, and that it cannot have been the intention of the States parties to the VCDR for such acts to be covered by diplomatic immunity.
According to the Tribunal, the immunity of Iran itself is not triggered since Iran or its secret service are not a party to the proceedings. With respect to the residual functional immunity of the diplomat as a State organ, the Tribunal asserts that such immunity extends only to acts performed in the exercise of official functions. The planning of a terrorist attack can be presumed not to be part of such tasks. Nor did Iran claim responsibility for this conduct. In any case, the Tribunal finds it difficult to accept that there is an exception to State immunity for commercial acts, but not for crimes against humanity that flout the basic right to life.
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.
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.
Belgian Supreme Court, Republic of Argentina v. NMC Capital LTD, Nr. C.11.0688.F, 22 November 2012
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.
Labour Court of Appeal Brussels, Confederation of Christian Trade Unions and General Federation of Labour of Belgium v United States, A.R. 2010/AB/1214, 3 May 2012
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.
Belgian Supreme Court, Western European Union v S. M., Nr. S.04.0129.F, 21 December 2009
The assertion that immunity is on the same level as the ECHR, which considers access to the courts to be a fundamental right, must be made with the necessary caution. The international organisation is an actor of international law, whereas the proper administration of justice takes place -in principle- within the State. Moreover, international organisations are not party to international instruments such as the ECHR. Of course, this does not mean that the principles contained in international human rights treaties are not applicable to international organisations. Nevertheless, the Supreme Court is of the opinion that the judge who establishes that a conflict has arisen between two norms of international law that also apply in the internal legal order (access to the courts and immunity) and that are invoked respectively by the parties in the dispute, may not give precedence to one norm over the other.