It is a Wednesday morning in October 2021 in a small courtroom of the new Palais de Justice in Brussels. A little fewer than a hundred people, as well as several media outlets, have come to attend what appears to be a singular event: the Belgian State has been cited for crimes against humanity committed during the colonial period. Specifically, the State is accused of having abducted five mixed-race children between 1959 and 1962 and placing them in religious institutions in the Congo where they were abused, and then abandoned, at the time of independence in 1960.
Although only five of the plaintiffs, now elderly women, are seeking reparations from the State, they are among thousands of mixed-race children who were taken from their families by the colonial administration in Congo and Ruanda-Urundi. This practice of targeted segregation and forced removal by the Belgian State during the colonial era reflected the will to isolate mixed-race children, who were considered at the time as a danger to the colonial order, a threat to white prestige, as well as an incarnation of European degeneracy and moral decadence 1.
The opening of this trial on October 13, 2021, more than 60 years after the events, allows us to question anew the relevance of the use of the courts for responding to mass violence and historical injustices, and in particular, for recognizing and repairing crimes committed during colonization today. Indeed, the decision to follow the judicial route presents a paradox. On one hand, going to court seems necessary, because the claims carried by the mixed-race children have remained unanswered for years, despite the Belgian State's official recognition of the committed harms. At the same time, however, the trial also turned out to be a highly constrained space for the plaintiffs, who had to submit to the trivialization of colonial violence by the Belgian State, a violence that they experienced personally.
The trial: a way out in the face of political uncertainty
The case of the mixed-race children is generally considered to be the most advanced in the recognition of crimes committed during colonization by Belgium 2. Indeed, through several actions, the Belgian State has acknowledged, beginning in 2015, that it carried out this practice of targeted segregation as well as the forced abduction of mixed-race children3. This recognition was made by several parliaments of the federated entities starting in 2017, followed in 2018 by the Federal Parliament4. In 2019, Prime Minister Charles Michel offered a public apology5.
The Federal Parliament's resolution enjoined the Belgian government to adopt a procedure for granting or recovering Belgian nationality for mixed-race children; to set up a mechanism for granting them access to the colonial archives in Belgium; and to examine how "by moral and administrative means, it can repair the past injustices done to the African mothers from whom their children were taken and (...) the prejudices caused to the mixed-race children resulting from colonization"6.
Yet, two years after this recognition by the various parliaments and the Prime Minister's apology, the mixed-race children still do not have access to the archives, and no reparations, as suggested by Parliament, have been considered. In the words of the lawyers for the five mixed-race women during the 2021 trial: "The issue of compensation for the victims has simply been swept under the carpet and off the agenda. The reparations law so long awaited by the victims never saw the light of day. The plaintiffs had no other recourse than to turn to the courts in order to obtain repair"7.
Inconsistent political commitments
The proceedings at the hearing revealed that the plaintiffs and their lawyers had made numerous attempts to gain access to the plaintiffs' files from various government departments, as well as the Ministry of Foreign Affairs, without success. Worse still, the administration responded in some cases that, despite the State's recognition of the harms the plaintiffs had endured, it would take several years to grant them access to the administrative documents they wished to obtain.
These pitfalls illustrate the need for the five women to take their case to the courts, to push the State to honour its commitments. They also demonstrate the limits of employing the political arena, where the recognition of the crimes committed during colonization leads neither to material reparations, nor to the implementation of other concrete commitments. Recourse to the judicial arena - the courts - therefore, appears indispensable. All the more so that political gains remain fragile and subject to the vagaries of the political balance of a given period. A lawsuit thus constitutes a way out, in that it provides the possibility of forcing political and social actors to make good on their promises and, in so doing, forces them out of their hollow political commitments. But at the same time, a lawsuit imposes its own violence and constraints.
The State's double discourse
If the trial offered a way out of the political impasse (in theory), the debates at the hearing turned out to be an ordeal, so much so that the arguments of the Belgian State can be seen to amount to an additional assault on the five mixed-race women. Indeed, one of the main lines of the State's defence was that qualifying the facts of the case requires placing oneself in the colonial era, during which the practices of targeted segregation and forced abduction of children were not considered by the international community as a crime against humanity. Indeed, the defence (the Belgian State) argued that "one must qualify the facts according to the law and the jurisprudential context of the time: one must preserve each cenacle's objectives"8.
This position amounts to saying that, even though the State had recognized the facts of these crimes through several official actions in the political arena, in this trial, the State was adopting a different position that allowed it to avoid the qualification of crime against humanity. The State thus made a distinction between its approach in the political arena and that adopted in the judicial arena: in the political arena, it assessed the injustices of colonization in light of contemporary norms, whereas in the judicial arena, it held that these events had to be considered according to the norms of the colonial era.
The incongruity of this situation was clearly felt at the trial, where several astonished sighs could be heard. How can one consider that, in a courtroom in Brussels in the 21st century, in front of plaintiffs who still bear the psychological and material scars of violence inflicted by the Belgian State, the latter comes to maintain that it is necessary to place oneself at the "time of the facts" in order to judge these acts of violence? In other words, that it is necessary to put on the moral garb of the past to judge the facts today?
A perilous path for the plaintiffs
It was this argument, asserted with force again and again, that convinced the judge to reject the five mixed-race women's request for reparations and to maintain that "carried out today, a policy of placing mixed-race children comparable to that denounced by the plaintiffs would likely fall under the incrimination of a crime against humanity. Nevertheless, these contextual elements do not make it possible to establish that between 1948 and 1961, the policy of placing mixed-race children in religious institutions for racial reasons was considered by the Community of States as a crime against humanity and incriminated as such" 9.
As if this argument were not enough, the disqualification of the plaintiffs' claims was amplified when the Belgian State considered that their legal action had had the effect of "reinforcing identity-based divisions and stirring up hatred instead of strengthening the sense of historical continuity and collective identity of the national community". In other words, for the State, the fact that these five mixed-race women sought justice made them agitators fuelling resentment between populations.
Another argument of the Belgian State revealed this shift from an empathetic state in the political space to a state ready to do anything to disqualify the five mixed-race women's demands for justice. The State argued that the plaintiffs "prove neither the existence nor the extent of the prejudice and, consequently, if damages were to be paid to them, they would be reduced to a symbolic euro." 10This argumentative mechanism deployed by the State reveals a form of double discourse in which recognized harms and official apologies coexist with the denial of the intrinsically inhuman character of the acts committed and of the victims' right to justice.
Disillusionment
This double discourse invites us to reflect on the limits of the political and judicial arenas in the recognition of colonial crimes. On the one hand, efforts in the political arena face many constraints, since the commitments made by the State do not lead to real and concrete actions. On the other hand, if lawsuits are necessary for circumventing the fragility of achievements in the political arena, they are also costly for the plaintiffs. By being accused of dividing communities, the plaintiffs have endured a reversal of the State's position, which had officially recognized the facts of their case. Moreover, insofar as they have to reimburse the cost of the proceedings incurred by the State, they are now facing significant material costs for bringing this lawsuit forward.
This situation raises the question of where to focus demands for the recognition of colonial crimes, given the constraints that weigh on each of these arenas. To what extent can judicial institutions be a space for justice, both for victims of violence and for those pursuing the recognition of colonial crimes? Where should efforts be deployed in a context where the State is in favour of only symbolic recognition?