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.
On November 23, 2017, the Court of Appeal of Brussels 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 neighbor’s children and workers at his family’s home died a horrible death.
Khaled El Hamedi submitted the 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 Ottawa agreement that established NATO.
“M. El Hamedi cannot agree with a situation where an organization 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” explains Jan Fermon, lawyer of Khaled El Hamedi.
The Belgian Court of Cassation decided previously that immunity of international organizations can be overturned if the latter don’t set up an internal mechanism accessible for citizens who suffered harm because of the actions were undertaken by the organization. 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 decided 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 organization to realize its goals. In order to take that decision, the Brussels Appeal Court relied on Dutch case law regarding immunity for UN blue 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 organization 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 organization. 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 most likely unlawful under international law.
The question is whether an organization 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.