Mukeshimana-Nguilinzira and ors. v Belgium and ors., Brussels Court of First Instance, ILDC 1604 (BE 2010), 8 December 2010
Relevance of the case
The present (interim) decision addresses the relationship between international organizations and their member states for the purposes of establishing responsibility for internationally wrongful acts, in particular in the context of UN peace operations to which UN member states contribute troops. The Dutch Supreme Court’s decision in Nuhanovic, with respect to the genocide in Srebrenica (1995), is the most well-known domestic court decision in this context. In this case, the Dutch Supreme Court upheld the validity of the ‘effective control’ standard in apportioning responsibility between an international organization and its member states. This Belgian decision applies a similar standard in a case concerning Belgian UN peacekeepers withdrawing from a compound in Rwanda (1994), after which scores of Rwandans were massacred by extremist militia.
I. The facts of the case
On 5 October 1993, the UN Security Council established a peacekeeping operation in Rwanda, the Mission des Nations Unies pour i’Assistance au Rwanda (MINUAR). MINUAR, which commenced its deployment in late October 1993, operated under a Chapter VI mandate to keep peace and security in Rwanda’s capital, Kigali. According to MINUAR’s rules of engagement, it was to remain impartial in the Rwandan civil war and in particular to refrain from any favourable or hostile act vis-a-vis the Rwandan army or the troops of the exiled Tutsi (FPR). Its mandate and rules of engagement strictly limited its capacity to resort to force in cases of self-defence against persons or groups who threatened protected sites and populations. Only on 17 May 1994 did the UN Security Council, on the basis of Resolution 918 expand the mission’s mandate to the protection of displaced persons, refugees, and civilians in danger.
The military division of MINUAR was composed of different sectors, of which the Kigali sector was commanded by the Belgian Colonel Marchal. Belgium contributed a batallion under the command of Lieutenant-Colonel Dewez. This batallion was spread over different encampments in Kigali. One encampment was based at the Official Technical School (Ecole Technique Officielle, ETO). It was placed under the order of captain Lemaire.
Between 7 and 11 April 1994, about 2,000 Tutsi and some moderate Hutu sought refuge in the ETO. Colonel Marchal initially attempted to refuse access to the
[This Commentary is based on the author’s commentary for the ILDC, mentioned above.].
encampment, but finally access was permitted. Accordingly, the ETO was de facto transformed into a refugee camp under the protection of Belgian MINUAR soldiers.
On 11 April 1994, French soldiers passed by the ETO to evacuate foreign citizens, after which the Belgian MINUAR soldiers started evacuating their encampment by firing into the air to prevent the Rwandan refugees from hindering their departure. No measures were taken to guarantee the security of the Rwandan refugees. Shortly after the departure of the Belgian soldiers, the Interahamwe militias entered the ETO and killed the refugees. Most were killed in the hours following the departure of the Belgian soldiers.
Eight survivors and relatives of those killed brought a civil lawsuit against Belgium and the commanders Marchal, Lemaire, and Dewez before the Brussels Court of First Instance on 7 April 2004. Another survivor brought a suit on 4 December 2007. They requested the court to hold the defendants tortuously liable and to order them to indemnify them for the damages suffered by their relatives during the massacre which followed the evacuation of the ETO by Belgian soldiers on 11 April 1994. The plaintiffs argued that control over the troops stationed at the ETO was withdrawn from MINUAR and was placed under the exclusive responsibility of the Belgian State.
The Belgian State and the military commanders contested the jurisdiction of the Belgian State, arguing that the complaint in reality targeted the UN and its members. They also observed that the Belgian contingent encamped at the ETO was still subject to the authority of MINUAR.
II. The legal question
This case concerns the attribution and apportioning of international responsibility with respect to a UN peacekeeping operation in which Belgian troops participated. In particular, the Court was called on to rule, firstly, whether the decision to evacuate Belgian UN peacekeepers from the Belgian/UN compound where Rwandan refugees had sought protection was attributable to Belgium or to the UN, and secondly, whether there was a causal link between the decision to evacuate the compound and the massacre of the Rwandan refugees.
III. Excerpts [translation ILDC]
As the victims did not invoke the responsibility of the UN or other UN member states, but only the responsibility of the Belgian State, Belgian courts had jurisdiction over acts committed by Belgian MINUAR peace-keepers. No analogy could be drawn to the case of Kosovo, where Belgium, as a NATO member, consented to and provided operational support to a military operation decided by NATO (para. 26).
The victims had prima facie established that the acts in question amounted to crimes under international law (para. 35).
Article 136 quater of the Penal Code, which rendered war crimes punishable in Belgian law, also applied to offences committed in a non-international armed conflict, which opposed the forces of the Rwandese army and organized armed groups against the Tutsi troops. Caught in this conflict, the refugees at the ETO were protected persons under the Geneva Conventions (para. 34).
In order for the statute of limitations of war crimes to be determined, it sufficed that the acts in question could qualify as war crimes, without having to verify whether the massacre at the ETO was punishable as a crime against humanity or genocide prior to the entry into force of the Act of 10 February 1999, as repealed in 2003 (Belgium) (which made war crimes punishable under Belgian law) or whether the principle of non-retroactivity of criminal law constituted an obstacle to this determination (para. 34).
At no time was the concrete decision to evacuate the ETO the subject of a dialogue between the Belgian commander and the UN commander. Instead, there was a permanent dialogue between Marchal and the chiefs of staff of the Belgian army, which did not hesitate to carry on regardless of consultations with the MINUAR. Therefore, the decision to evacuate the ETO was a decision taken by Belgium and not by the MINUAR (para. 38).
The complaints regarding the Belgian State’s general attitude, such as the failure to take measures to stop the genocide, the decision to withdraw the blue helmets of the MINUAR, Belgium’s restriction of its operations to the protection of its nationals, and a fortiori the policy conducted in this context by the UN, did not concern commanders Marchal, Dewez, and Lemaire. The latter did not have the capacity to influence the general course of events in Rwanda, the decision to withdraw the Belgian blue helmets from MINUAR, or the commitment of soldiers to operation Silver Back. For those commanders, the only relevant question was whether the evacuation of the ETO constituted failure to act in the face of war crimes taking place. The commanders should perhaps have considered the decision to evacuate illegal and should have resisted it, as they lacked means of protecting the refugees. This question had specific relevance for Mr Lemaire in respect of Mr Ngulinzira, the former having been entrusted with a mission to protect the latter, according to the plaintiffs (paras. 40-2).
The Belgian commanders could not have been ignorant of the war crimes committed on a large scale in Rwanda before the evacuation of the ETO, and of the fact that such crimes would be perpetrated against the ETO refugees once the protection by the Belgian soldiers came to an end. The commanders could have had no illusion as to the fate that awaited the refugees after the departure of the Belgian blue helmets. The commission of the crime proscribed in art. 136septies, 5° PC did not require additional knowledge of official orders given with a view to perpetrating the crimes (para. 46).
The fact that the commanders obeyed orders did not absolve them as such of their potential responsibility; nor did the fact that prior to the evacuation they searched in vain for alternative solutions for the protection of the refugees, because those orders could lead to the commission of war crimes (para. 47).
The mere passive presence of Belgian soldiers sufficed to guarantee the Rwandan refugees’ security. Besides, the rules of engagement of their mandate authorized them to use force in self-defence in case their encampment had been attacked (para. 48).
It had not been proven that the harm suffered by the refugees at the ETO was necessary to prevent harm to other persons (para. 49).
It was undeniable that the refugees were not endangered as long as the Belgian blue helmets were at the ETO, and that they were massacred after the Belgian blue helmets’ departure. The fact that a number of refugees were killed outside the ETO, on the hill of Nyanza, or that Rwandan soldiers or policemen participated in the killings of the militia, did not break the chain of causality. Different witness statements demonstrated that the majority of those who continued to enjoy the protection of the UN were saved. Accordingly, the immediate incidence of the evacuation of the ETO on the massacres of the refugees was sufficiently established, without the plaintiffs being required to adduce proof that their relatives would have survived the war, had there been no massacre on 11 April 1994. There was no proof that, without the evacuation of the ETO, they would have been killed anyway (para. 51).
Decisions on the blameworthiness of the commanders and the evaluation of the damages to be awarded were reserved for a later date. The screening of a film Shooting Dogs, to which the parties could react, would in all likelihood allow for the drawing of a clearer picture of the situation prevailing in Rwanda at the time (paras. 48, 52).
While this decision was only an interim decision (‘jugement avant dire droit’), it nevertheless raised a number of interesting legal issues. Some related to the admissibility of the complaints (e.g., jurisdiction, statute of limitations, and attribution); others related to the merits (notably the question of whether there was a causal link between the decision to evacuate the ETO and the ensuing massacre of the refugees). For our purposes of international institutional law, the main legal question was to whom the decision to evacuate the ETO should be attributed: to Belgium or rather to the UN (or to both)? The Court held that this decision was taken by Belgium, and not by the UN, as the Belgian UN peacekeepers were de facto under Belgian command and control. Thus, the acts of the peacekeepers were attributable to Belgium, and could engage Belgium’s responsibility. While the court did not cite the ILC’s Draft Articles on the Responsibility of International Organizations for Internationally Wrongful Acts1 (ARIO 2009), its decision seemed to be inspired a contrario by what is now art. 7 in ARIO 2011.2 This provision stipulates that ‘[t]he conduct of an organ of a State or an organ or agent of an international organization that is placed at the disposal of another international organization shall be considered under international law an act of the latter organization if the organization exercises effective control over that conduct’. As there was no effective control on the part of the UN, but instead on the part of the state, the court went on to apply the law of state responsibility.
It is noted that, at the time of the decision, the ILC in its Commentary to then art. 6 ARIO had clarified that the article had specific relevance ‘in the case of military contingents that a State places at the disposal of the United Nations for a peacekeeping operation’. It is also noted that at that time, in a somewhat similar situation, a Dutch court had held that the acts of Dutch peace-keepers in Bosnia Herzegovina could not be attributed to The Netherlands, and the European Court of Human Rights (ECtHR) did not consider the acts of NATO member state troops acting under the authority of the UN in Kosovo to be attributable to the member states.
The Belgian court seemed to distinguish the MINUAR case from Behrami, but why precisely both cases should conceptually be distinguished remained elusive. Arguably, both cases should have been decided by reference to the ‘effective control’ standard as set forth in art. 6 ARIO 2009/art. 7 ARIO 2011. It is well-known, however, that the ECtHR applied a standard of ‘ultimate control’ in Behrami. According to the ECtHR, the UN Security Council had ‘delegated to NATO the power to establish, as well as the operational command of, the international presence, KFOR,’ and thus that the UN ‘was to retain ultimate control over the security mission’.  The Belgian MINUAR case implicitly rejected this ‘ultimate control’ standard, and instead emphasized the standard of de facto operational control. The Dutch Court of Appeal (2011) and the Dutch Supreme Court (2013) later applied the same standard in the Srebrenica cases of Mustafic and Nuhanovic.
A major part of the decision was devoted to technical questions of prescription under Belgian law. From an international law perspective, it was notable that the court reaffirmed the imprescriptibility of international crimes. However, due to a peculiarity of Belgian law, the court ruled that the statute of limitations as regards the complaint against the Belgian State had run out. Under Belgian law, the statute of limitations for a civil action, which was normally five years, could be extended if the wrongful act could be considered a criminal offence. This would normally have meant that, if the criminal offence amounted to an international crime, no statute of limitations at all would be applicable. But as the Belgian State could technically not commit a criminal offence, the statute of limitations for the civil action against the Belgian State could not be extended. The court left it open whether the statute of limitations could nevertheless be extended as regards the vicarious liability of the Belgian State, that is the liability of the state for the wrongful acts of its agents rather than for its own acts. This was to be decided at a later stage in the proceedings.
As the civil suits against the Belgian commanders were not subject to a statute of limitations, the court went on to consider the merits as regards those suits. The court set out at great length that there was a causal link between the commanders’ decision to evacuate the ETO compound and the massacre of the refugees by the Interahamwe militias, but stopped short of holding the commanders liable for a failure to act in this phase of the proceedings. In order to shed additional light on the circumstances prevailing in Rwanda at the time, the court, somewhat unusually, acceded to a request to order the screening of a movie (rather than a documentary) on the Rwandan genocide. This was supposed to help the court in its determination of whether the commanders were blameworthy. Still, it was notable that some initial determinations as to the blameworthiness of the commanders were already made by the court in this interim decision: the court rejected the defence of superior orders, ruled that the doctrine of superior responsibility/failure to act applied to commanders in respect of international crimes committed by militias over which the former did not exercise formal authority, and held the mental element of the crime of failure to act in the face of the crimes committed by the militias, to be established, at least in part.
At the time of publication, the decision was still under appeal.
-  ARIO Commentary 2009, p. 62.
-  HN v Netherlands (Ministry of Defence and Ministry of Foreign Affairs), First instance judgment,LJN: BF0181/265615; ILDC 1092 (NL 2008), 10 September 2008.
-  ECtHR, Behrami and Behrami v France and Saramati v France, Germany, and Norway, Decision(Grand Chamber) of 2 May 2007 on the admissibility of App. Nos. 71412/01 and 78166/01.
-  Behrami, para. 135.
-  Supreme Court (HR), State of The Netherlands v Mustafic et al., ECLI:NL:HR:2013:BZ9228; State ofThe Netherlands et al. v Nuhanovic, ECLI:NL:HR:2013:BZ9225—see also ch. 6.9 in this volume.
-  cf. art. 33 of the Rome Statute of the International Criminal Court (17 July 1998), UN DocA/CONF.183/9, entered into force 1 July 2002 (Rome Statute).
-  cf. art. 28 of the Rome Statute.