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Universal jurisdiction: lessons from the Belgian experience1

Published online by Cambridge University Press:  17 February 2009

Luc Walleyn
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Extract

Belgium was variously praised, criticized and ridiculed for its 1993 law (as amended in 1999) giving it universal jurisdiction over war crimes, crimes against humanity and genocide. The invocation of this law against Israeli and US defendants provoked an unprecedented conflict with Israel and serious tension with the United States of America in 2003. After months of diplomatic incidents, economic threats, provocative complaints and political debate, Belgium's controversial anti-atrocity law was repealed on 5 August 2003, ten years after entering into force. Even in the international legal community, real understanding of what happened in this legal laboratory is not common. This article is not a neutral study, but a contribution from an actor and a privileged witness.

Type
Current Developments
Information
Yearbook of International Humanitarian Law , Volume 5 , December 2002 , pp. 394 - 406
Copyright
Copyright © T.M.C. Asser Instituut and the Authors 2002

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References

3. Loi relative à la répression des infractions graves aux Conventions de Genève de 1949 et aux Protocoles I et II de 1977 additionnels à ces Conventions [Law of 16 June 1993 on the repression of grave breaches of the Geneva Conventions], Moniteur beige (MB), 5 August 1993, as amended by Loi du 10 février relative à la répression des violations graves du droit international humanitaire [Law of 10 February 1999 relating to the repression of serious violations of international humanitarian law], Published in MB, 23 March 1999. Both laws are reprinted in volume 2 of the YIHL (1999) at pp. 539 et seq.Google Scholar

4. The three other conventions contain a similar rule in Arts. 50, 129 and 149.

5. 6 Revue de Droit Pénal et de Criminologie (1955–1956) pp. 594–633Google Scholar.

6. ‘Extradite or prosecute’, a rule initially used in the law concerning extradition.

7. The ‘Council of State’ is the highest administrative court, which also gives non-binding advice on proposed legal bills.

8. The Military Code of the United States of America also contains provisions for an enlarged jurisdiction over war crimes: ‘The jurisdiction of the United States military tribunals in connection with war crimes (…) extends also to all offences of this nature committed against nationals of allies and of co-belligerents and stateless persons’. US Army Field Manual 27–10, §507(a).

9. The 1948 Convention for the Repression of Genocide does not assert universal jurisdiction for this crime, though many have argued that jus cogens already provides the basis for universal jurisdiction over genocide.

10. That part of international law that is always binding for every nation, even without agreement upon any convention.

11. ICJ, 11 July 1996. Case concerning application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), par. 31. <http://www.icj-cij.org/icjwww/idocket/ibhy/ibhyjudgment/ibhy_ijudgment_19960711_frame.htm>

12. Prosecutor v. Tihomir Blaškić, Case IT-95–14-AR, 29 October 1997, <http://www.un.org/icty/blaskic/appeal/decision-e/71029JT3.html>. Para. 29: ‘(…) The International Tribunal does not have the mission of replacing the jurisdiction of any State. By virtue of Article 9 of the Statute, the International Tribunal and the national jurisdictions are concurrently competent. The national jurisdictions of the States of Ex-Yugoslavia, as those of all States, are required by customary law to judge or to extradite those persons presumed responsible for grave violations of international humanitarian law. The primacy of the Tribunal foreseen in Article 9 (2) is applicable to all national jurisdictions or, if these jurisdictions lack this customary obligation, it can intervene and judge.’

13. Loi relative à la reconnaissance du Tribunal international pour l'ex-Yougoslavie et du Tribunal international pour le Rwanda, et à la coopération avec ces Tribunaux. MB, 27 April 1996.

14. Brussels Investigation and hearing judge, 6 11 1998, Journal des Tribunaux (1999) p. 308Google Scholar.

15. Petrovsky v. Demjanjuk, US Appeals Court, 6th Circuit, 31 October 1985. 776 F.2d 571 (6th Cir. 1985).

16. The Belgian government and legislature expressly confirmed international customary law as a basis for jurisdiction and noted the procedural character of the law of 10 February 1999. As such, and particularly with regard to universal jurisdiction, it is thus for immediate application, irrespective of the date of the violation.

17. Art. 5, Law of 16 July 1993.

18. MB, 23 March 1999.

19. Cour de Cassation, 27 May 1971, arrêt Franco-Suisse/Le Ski.

20. Other countries include Germany, Australia, New Zealand, South-Africa, Bolivia and Canada.

21. Against and in favor of the suspect.

22. A famous paedophile who abducted, abused and killed young girls. The trial is planned to start March 2004.

23. Cour d'Assises Bruxelles, 8 June 2001. Full information on the trial, including the trial can be found on <http://www.asf.be/AssisesRwanda2/fr/frStart.htm>.

24. More than 40 complaints were filed, but only a few of these cases originated a real investigation.

25. ICJ, 14 February 2002. R.D.C/Belgium. Case of the arrest warrant of 11 April 2000. 121/2002. For commentary, see Wouters, J. and De Smet, L., ‘The ICJ's judgement in the case concerning the arrest warrant of 11 April 2000: some critical notes’, 4 YIHL (2003) p. 373CrossRefGoogle Scholar.

26. Different individual opinions within the ICJ suggest a split on this issue within the Court. Clearly the majority of the judges did not want to close the future development of universal jurisdiction.

27. Cour d'Appel Bruxelles, Chambre des Mises en Accusation, Kabila et Cs. 16 February 2002,.unpublished.

28. Cour d'Appel Bruxelles, o.c, Sharon et Cs. 26 June 2002, unpublished.

29. Ibid.

30. Belgian Senat. Proposal 1255–02. All quoted proposals and the record of the discussions in both chambers of the parliament can be found on the site of the Belgian senate <http://www.senate.be>.

31. Belgian Senat. Proposal 1256–02.

32. The General Prosecutor's brief and the judgment of 12 February 2003 can be found on the site of the Cour de Cassation at <http://www.juridat.be/juris/jucf.htm>. An unofficial translation of the decision on <http://www.indictsharon.net>.

33. It is true that Belgian law permits not only investigation but also trial in absentia. For serious crimes, however, such trials are not usual and generally the prosecution seeks the arrest and extradition of the accused before starting the trial, in order to avoid a second procedure after the arrest occurs.

34. Art. 7(4) of the law of 23 April 2003.

35. Doc. Senat. 1999–2003. 2–1256/13. <http://www.senate.be>.

36. Statement of State Department spokesmen Boucher. <http://www.Expatica.com>, 9 May 2003.

37. House of Representatives. Bill No. 2050, 9 May 2003. The bill contains: a prohibition on any kind of American cooperation with an investigation or prosecution under a universal jurisdiction act; a requirement that the President ensure US classified material is not used for such investigations or prosecutions; an authorization for the President to use all necessary means to assist any American or ally imprisoned due to enforcement of a universal jurisdiction act.

38. Between election date and the date a new government is installed, the dismissed government has only a limited power.

39. See statement of Human Rights Watch, 12 June 2003. <http://www.hrw.org/press/2003/06/belgium0621303.htm>.

40. Press release of the Belgian government, 14 July 2003. <http://www.diplomatie.be/en/press/homedetails.asp?TEXTID=8273>.

41. Loi relative aux violations graves du droit international humanitaire (law on grave breaches of international humanitarian law) of 5 August 2003. MB, 8 August 2003. The law entered in force on the day of its publication.

42. The new Art. 10bis of the Belgian code of criminal procedure.

43. This provision concerns mainly the investigation against the former president of Chad, Hissene Habré.

44. Council Decision 2002/494/JHA, 13 June 2002, (OJ L 167, 26/06/2002 P-0002).

45. Council Decision 2003/335/JHA, May 2003 on the investigation and prosecution of genocide, crimes against humanity and war crimes. (OJ L 118, 15/05/2003, P 0012–0014).