On December 2, 2024, Brussels’ Court of Appeal found the Belgian State guilty of crimes against humanity for the abduction of mixed-race children during the colonial rule in the Democratic Republic of the Congo. The Court ruled in favour of five women born to a black mother and a white father who were forcibly removed from their families and placed in religious orphanages before the Congo’s independence in 1960. Each plaintiff was awarded 50,000 euros in damages for the suffering caused by the loss of ties to their mothers, to their home environment, and their loss of identity.
This decision reversed the first instance judgment of December 8, 2021. In 2019, Belgium’s Prime Minister apologized for the injustice suffered by people of mixed ancestry born during the colonial period. It is estimated that thousands of children were affected by the policy of forced removals during Belgium’s rule over the Democratic Republic of the Congo, Rwanda, and Burundi.
Respect of the Principle of Legality
The Court of Appeal’s assessment of the respect for the principle of legality is particularly interesting, as it reverses the first decision by which the Tribunal of First Instance ruled that crimes against humanity were not criminalized at the time of the facts between 1948 and 1961.
Under Belgian Law, crimes against humanity were criminalized as of 1999. As the incriminated facts occurred before this, the Court of Appeal analyzed whether they were criminalized under international law when they were committed. The Court notes that crimes against humanity were criminalized under Article 6(c) of the Charter of the International Military Tribunal (“the Charter of the Nuremberg Tribunal”) annexed to the 1945 London Agreement, to which Belgium had adhered. In Resolution 95(I) of 1946, the United Nations General Assembly confirmed the principles of international law as recognized by the Charter of the Nuremberg Tribunal.
The Belgian State argued that under Article 6(c) of the Charter of the Nuremberg Tribunal, crimes against humanity were not criminalized as a standalone crime but rather “in execution of or in connection with any crime within the jurisdiction of the Tribunal” and in any event, in a context of armed conflict.
Nevertheless, the Court of Appeal insisted that Article 6(c) of the Charter of the Nuremberg Tribunal should be read in conjunction with Article 7, paragraph 2 of the European Convention on Human Rights and Article 15, paragraph 2 of the International Covenant on Civil and Political Rights, which state that the principle of legality “shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by civilized nations”.
Furthermore, for the Court of Appeal, the caveat included in Article 6(c) of the Charter of the Nuremberg Tribunal does not define the crime as such but rather limits the Nuremberg Tribunal’s jurisdiction. In the same vein, in Kolk and Kislyiy v. Estonia, the European Court of Human Rights rejected the plaintiffs’ arguments under Article 7 of the European Convention on Human Rights, by which they alleged that they could not have foreseen that the 1949 deportations of civilians they participated in would amount to crimes against humanity. The European Court ruled that those deportations of civilians, committed outside of an armed conflict, had been considered crimes against humanity in 1949.
Abduction of Mixed-Race Children as a Crime against Humanity
Under Belgian criminal law, the abduction of children was criminalized long before the Congo’s independence. Furthermore, the abduction of children under the age of seven was also criminalized under international law. As a result, the Court of Appeal ruled that the abduction of children by the State, as part of a general and systematic policy targeting children born to a black mother and a white father to separate them from their mother and their environment, only because of their origin, constitutes an inhumane act and persecution under Article 6(c) of the Charter of the Nuremberg Tribunal.
The Court of Appeal considered the Belgian State’s arguments regarding the motive of the abduction and the fact that it was a common practice among colonial powers to be irrelevant.
Non-Application of Statutory Limitations
The Belgian State argued that the plaintiffs’ civil action was statute-barred, asserting that Article 26 of the Preliminary Title of the Code of Criminal Procedure, which prevents the prescription of civil action before public action, did not apply. As such, Belgium maintained that it was subject to a special statutory limitation regime under the State Accountancy Act and that the five-year statute of limitations for claims against it, including those arising from extra-contractual liability, as stipulated in the State Accounting Act since 1846, precluded the civil action. However, the Court of Appeal rejected this argument, emphasizing that Article 26 of the Preliminary Title of the Code of Criminal Procedure and the State Accountancy Acts are of a mandatory nature and that as a result, any derogation should be expressly stated.
Belgium also claimed it enjoyed criminal immunity prior to 2018. The Court of Appeal ruled that criminal immunity does not impede civil actions.
Furthermore, the European Court of Human Rights, in Kolk and Kislyiy v. Estonia, ruled that “Article 7, paragraph 2 of the Convention expressly provides that this Article shall not prejudice the trial and punishment of a person for any act or omission which, at the time it was committed, was criminal according to the general principles of law recognized by civilized nations. This is true of crimes against humanity, in respect of which the rule that they cannot be time-barred was laid down by the Charter of the Nuremberg International Tribunal (see Papon v. France (no. 2) (dec.), no. 54210/00, ECHR 2001 XII, and Touvier v. France, no. 29420/95, Commission decision of 13 January 1997, Decisions and Reports 88-B, p. 161).”
In conclusion, the Court of Appeal’s decision constitutes a crucial step in recognizing certain colonial crimes as crimes against humanity and in affirming the non-application of statutory limitations. The actions of a colonial power may also amount to human rights violations or illegal acts under national law, as judged by a Dutch Court which ordered the Netherlands to pay damages to the wives and children of men summarily executed in 1947 under Indonesia’s colonial rule.