88 QIL 60 (2019) 69-97
ZOOM IN
or death to practical assistance with return home or following a robbery.97
At the moment − setting aside the fact that most European States have
cut off diplomatic relations with Syria − there is no agreement either on
the question of whether a national has a legal right or, again, merely a
legitimate expectation, of receiving protection from his own Embassy or
consular post, nor is there uniformity amongst States − not even EU
Member States − on the extent of protection offered by individual missions or posts.98
Remarkably, the question of whether an obligation to provide assistance to the family members of FTFs is incumbent upon the diplomatic
and consular services has recently been brought before the Belgian
courts. The lower court ordered that Belgium should do everything in its
powers to bring back six children and their mothers − the latter tried and
convicted in absentia by Belgian courts − from the Al-Hol camp in
Syria.99 The court ruled that the best interest of the children should be
upheld by all Belgian authorities, including the Belgian diplomatic and
consular services, and it further stated that, according to the Code of
Consular Affairs, Belgian citizens are entitled to consular assistance when
they find themselves in extreme circumstances. Even though the mothers
might no longer be entitled to consular assistance in light of the conviction the same cannot be claimed with regard to the children.100 Therefore,
the court ordered Belgium to organize the travel within 40 days after being notified of the decision or pay a daily penalty of 5,000 euros for each
child up to a maximum 1 million euros. The decision, immediately appealed by the Belgian Government − worried that it could set a dangerous precedent − has been overturned in February 2019, when the Appeals Court ruled that Belgium has no obligation to bring back the children and their mothers.101 Notwithstanding the alleged lack of a legal ob-
97
See Denza (n 83) 474.
ibid 475.
99
Royaume de Belgique, Affaires étrangères, Commerce extérieur et Coopération au
Développement, ‘Ordonnance du 26 décembre 2018 dans l’affaire Tatiana Wielandt et
Bouchra Abouallal contre l’Etat belge’ (29 January 2019) <https://diplomatie.
belgium.be/fr/newsroom/nouvelles/2019/ordonnance_dans_affaire_tatiana_wielandt_e
t_bouchra_abouallal>.
100
Mehra, Paulussen (n 39) 4.
101
ibid.
98