18F Chamber of the Brussels Appeal Court, Thursday 12 October 2017, 10 a.m. Palais de Justice Place Poelaert, Brussels, Room 0.20
On June 20, 2011 at 2.30 am NATO warplanes bombed the compound in Sorman- Libya where Khaled El-Hamedi and his family lived. The building that served as a home to the El Hamedi family was turned into rubble. 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 neighbors children and workers at his family’s home died a horrible death.
Thirteen people including three children died equally that night. On June 21, 2011, in an initial communication[1] to the press on these dramatic events, the NATO spokesperson Wing Commander Mike Bracken (Spokesperson fort Operation “Unified Protector”) declared that the attack aimed a communication centre, that precision bombs were used to avoid damage or harm caused to civilians. He also declares that the target was chosen after extensive intelligence collection, observation and reconnaissance. Independent observers who visited the site later did not find any evidence of any military and/or communication equipment being present. In a communication on February 15, 2012 to the President of the Commission of Inquiry on Libya (COIL), installed later by the United Nations Human Rights Council, NATO’s legal advisor M. Peter Olson states on the contrary that NATO did not have any reliable source of information on the ground but remains convinced that the home of Khaled El Hamedi was a legitimate target. The UN COIL found these explanations insufficient and concluded that NATO had not provided the necessary information to allow the Commission of Inquiry to examine whether the bombing of the family home of the El Hamedi family was compatible with the laws of war and especially with international humanitarian law.
Khaled El Hamedi cried out his grief and demanded that NATO would be held accountable for the annihilation of his entire family. Khaled and the relatives of the one of the house worker’s family submitted a case to the Brussels Court of First Instance 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. The Belgian government however decided to intervene in the case to speak on behalf of NATO.
On October 22, 2012 the Court of First Instance upheld NATO’s immunity and dismissed the demand of Khaled El Hamedi. The latter appealed while he 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 that immunity of international organisations can be waived if the latter don’t set up an internal mechanism accessible for citizens who suffered harm as a result of the actions undertaken by the organisation. NATO does not have such mechanism in relation to its actions in Libya.
What is at stake in the case that will be heard by the Brussels Appeal Court is of great significance. 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. The Brussels Appeal Court has a historic opportunity, in line with the law, to change this and to make a big leap forward in the enforcement of international human rights law and international humanitarian law.
[1]Nato press briefing on Libya: http://www.nato.int/cps/en/natolive/opinions_75652.htm?selectedLocale=en
For more information please contact Khaled El Hamedi’s lawyer: Jan Fermon, +32475441896, jan.fermon@progresslaw.net
