Some colonial crimes can mean crimes against humanity – Ejil: talk!

On December 2, 2024, Brussels owed the Belgian state for crimes against humanity for the kidnapping of children mixed breeds during colonial rule in the Democratic Republic of Congo. The court decided in favor of five women who were born a black mother and a white father who were exposed to religious orphanages in 1960. Each plaintiff received damages of 50,000 euros for the suffering caused by the loss of connections to his mothers, his home environment and its loss of loss of identity.

This decision returned the first judgment of December 8, 2021. In 2019 Belgium's Prime Minister apologized for the injustice suffered by people mixed ancestors who were born during the colonial period. It is estimated that thousands of children were affected by the politics of the forced distances during Belgium's rule over the Democratic Republic of Congo, Rwanda and Burundi.

Respect of the principle of legality

The assessment of the Court of Appeal by respect for the principle of legality is particularly interesting, since the first decision with which the tribunal of the first instance decided that crimes against humanity at the time of the facts between 1948 and 1961 were not criminalized.

According to Belgian law, crimes against humanity were criminalized from 1999. When the burdened facts appeared before, the Court of Appeal analyzed whether they were criminalized under international law when they were committed. The Court states that crimes against humanity in accordance with Article 6 (C) of the Charter of the International Military Court (“The Charter of the Nuremberg Tribunal”) of the 1945 London agreement was stopped. In Resolution 95 (I) of 1946, the General Assembly of the United Nations confirmed the principles of international law, as was recognized by the Charter of the Nuremberg Tribunal.

The Belgian state argued that according to Article 6 (c) of the Charter of the Nuremberg tribunal, crimes against humanity were not criminalized as an independent crime, but “in a connection with a crime within the jurisdiction of the tribunal” and in an event in an event in a context of armed conflicts.

Nevertheless, the Court of Appeal insisted that Article 6 (c) of the Charter of the Nuremberg Tribunal in conjunction with Article 7, Paragraph 2 of the European Convention on Human Rights and Article 15, Paragraph 2 of the International Federation, which had in no way adhered to the International Confederation of Civil and Political Rights, in which legality, in which legality, in which legality was not adhered to in any way. The general legal principles recognized by civilized nations ”.

In addition, the restriction contained in Article 6 (c) of the Charter of the Nuremberg Tribunal does not define the crime as such, but rather limits the responsibility of the Nuremberg tribunal. In the same way, the European judicial court in Kolk and Kislyiy against Estonia rejected the plaintiff's arguments in accordance with Article 7 of the European Convention on Human Rights, with which they did not predict that they had not foreseen the deportations of the civilian population of 1949, in which they would take part against the crime against humanity. The European court decided that the deportations of civilians who were committed outside of an armed conflict were considered in 1949 crimes against humanity.

Kidnapping of children with mixed breeds as crimes against humanity

According to Belgian criminal law, the kidnapping of children was criminalized long before the Congo's independence. In addition, the kidnapping of children under the age of seven under the age of international law was criminalized. As a result, the Court of Appeal decided that the kidnapping of children by the state as part of a general and systematic policy, which was aimed at by children who were born by a black mother and a white father to separate her from her mother and the environment, only because of her origin an inhuman action and persecution in accordance with Article 6 (c) of the Charter of the Nüregel tribunal.

The Court of Appeal took into account the arguments of the Belgian state regarding the motif of kidnapping and the fact that it was a common practice among colonial powers.

Non -request from legal restrictions

The Belgian state argued that the plaintiff's civil claim was prescribed by law, and claimed that Article 26 of the preliminary title of criminal proceedings, which prevents the prescription of civil lawsuits before the public law, does not apply. As such, Belgium claimed that it is subject to a special legal entanglement regime in accordance with the State Auditory Act and that the five -year limitation period for claims, including those that result from additional liability, determined the civil lawsuit in the State Banking Act. However, the Court of Appeal rejected this argument and emphasized that Article 26 of the preliminary title of criminal proceedings and the state auditing laws are mandatory and that any deviation should be expressly stated.

Belgium also claimed that it enjoyed criminal immunity before 2018. The Court of Appeal decided that criminal immunity did not disabled any civil lawsuits.

In addition, the European Court of Human Rights in Kolk and Kislyiy against Estonia expressly decided: “Article 7, paragraph 2 of the convent, expressly stipulated that this article is not pre -preserved for the negotiation and punishment for the acts that were recognized by the general law or interruption, which was recognized by the general legal reasons, not in front of a person who was recognized by the legally recognized law can.

In summary, the decision of the Court of Appeal represents a decisive step in order to recognize certain colonial crimes as a crime against humanity and to confirm the non -application of legal restrictions. The actions of a colonial power can also mean human rights violations or illegal acts under national law, as measured by a Dutch court, which ordered the Netherlands to pay women and children of men who were executed in 1947 according to Indonesian colonial rule.