Khaled El Hamedi (*) will not stop his fight against NATO and will continue his legal battle for the accountability of NATO for the injustice inflicted upon his family Belgian Court of Appeal takes unfortunate decision to uphold immunity of NATO for the annihilation of an entire family during Libya campaign. Victims consider further legal action and founded an association of victims of NATO to demand accountability.
On November 23, 2017 the Court of Appeal of Brussels (Belgium) decided to uphold the immunity of NATO in the case filed by a Libyan national, Khaled El Hamidi, who lost his entire family in a raid conducted by NATO warplanes against his home in Sorman Libya on June 20, 2011. As a result of this M. El Hamedi’s wife, M Safae Ahmed Azawi and his two little children Khaled’s and Alkhweldi, his little niece Salam, his Aunt Najia, his cousin Mohamed, his neighbour’s children and workers at his family’s home died a horrible death.

As a result of this Khaled El Hamedi demanded that NATO would be held accountable for the annihilation of his entire family. He submitted a case to the Brussels Court demanding that the Court rules that NATO was to be held responsible and should compensate the family. NATO declined the jurisdiction of the Belgian Courts and invoked the immunity granted in the 1951 Otawa agreement that established NATO.
M. El Hamedi cannot agree with a situation where an organisation like NATO that decides on life or death of so many around the world would benefit from complete impunity for its actions. The cry for accountability is in line with the recent case law both national and international. In particular the immunity of NATO is in violation of the right of access to a Court, enshrined i.a. in the European Human Rights Convention and other international human rights instruments. The Belgian Court of Cassation decided previously that immunity of international organisations can be overturned if the latter don’t set up an internal mechanism accessible for citizens who suffered harm because of the ctions undertaken by the organisation. NATO does not have such mechanism in relation to its actions in Libya.
Unfortunately, the Brussels Court of Appeal decided on November 23, 2017 to uphold the immunity of NATO missing thus a historic opportunity to make a big leap forward in the enforcement of international human rights law and international humanitarian law.
The Brussels Court of Appeal decide that the immunity granted to NATO was an acceptable restriction of the right to access to a Court. The immunity, according to the Court of Appeal was proportionate to the aim pursued by it: allow an international organisation to realise its goals. In order to take that decision, the Brussels Appeal Court relied on Dutch case law regarding immunity for UN bleu helmets.
Such a comparison is however not correct. The United Nations Charter is the very root of contemporary international public law. The entire international legal system is built on the Charter and the UN is the organisation that was created and joined by almost all states in the world to implement the Charter. The Charter was the common expression of the peoples of the world who had fought the tyranny of fascism and the aggression wars committed by Nazi Germany, Italy, Japan and their allies. The UN charter is binding upon all countries in the world. NATO is a totally different kind of international organisation. It is primarily a military alliance of a very limited number of privileged countries. It has been argued that such an alliance who’s basic role is to prepare for the use of force in international relations is illegal while in violation with the UN charter which bans the use of force in international relations unless in limited cases of self-defence and even then only until the Security Council has been able to take the necessary measures to restore peace. There is therefore no place in a decision of a court of law for any comparison between the Organisation of the United Nations, the guarantor of the legal international order and a limited military alliance which is mots likely unlawful under international law.
The question is whether an organisation that decides on the life or death of many around the globe will continue to be able to do so without any form of accountability and benefiting from total impunity or if, on the contrary, it will be held accountable for its actions. Today’s state of affairs is dangerous while it creates a situation in which there is no incentive at all for NATO to respect international law.
M. El Hamedi will therefor continue his fight for accountability for NATO for the injustice inflicted upon his family. His legal team is examining the possibility for further legal action in Belgium and if necessary in the European Court of Human Rights. But his struggle opens also the road for all other victims of NATO. That is why he decided to establish with many others who suffered from NATO crimes in Libya, the Association of Victims of NATO and War on Libya ( www.anvwl.com) that will unite all the forces of those who suffered from NATO actions in Libya and elsewhere in the world.
Their struggle will continue until a mechanism for accountability of NATO is created.
