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July 6, 2003 

Belgian law to punish grave breaches of Int. Humanitarian Law
A contested law with uncontested objectives

Stefaan Smis and Kim Van der Borght

In 1993, Belgium enacted a law that placed it in the lead of a development in international and national law that was reinvigorated following the horrendous crimes committed during the Nazi regime. Following the Second World War, the main perpetrators were brought to trial before the ad hoc military tribunals of Nuremberg and Tokyo. To ensure that the remaining perpetrators would not remain unpunished, the then newly established State of Israel adopted implementing legislation to accept claims brought to its courts for genocide, war crimes and crimes against humanity. The Belgian law represented a further step in that direction.
The Belgian law of 1993, as amended in 1999, allowed Belgian courts to prosecute persons for genocide, war crimes and crimes against humanity on the basis of universal jurisdiction in absentia. This meant that Belgian courts had jurisdiction to prosecute such crimes regardless of the place of commission of the crime, the presence of the perpetrator on Belgian territory, the nationality of the perpetrator or the victim or the time the crime was committed. To bring a claim a person need not have to be a Belgian national or reside in Belgium. The law moreover recognised no immunities on the basis of the official position of the person.

Functional immunities
The law was not uncontested. It was praised by human rights organisations, but doubts were raised about its legality in international law. By rejecting all immunities, it led to tension with well-established rules of diplomatic law that accord functional immunity to Heads of State, Heads of Government and Ministers of Foreign Affairs while they are in office, to allow them to perform their function unhindered. In this context, Judge Oda wrote that Belgium might well have been at the forefront of a trend, but the International Court of Justice decided that Belgium had outrun international legal developments. The Court judged that the immunity of incumbent Heads of State, Heads of Government and of Ministers of Foreign Affairs is complete. The Court emphasised that this immunity does not mean impunity in respect of all crimes that may have been committed while in office. These high offices accord complete immunity from prosecution by a foreign jurisdiction, but only for as long as these offices are held. Even when in office, a Head of State, Head of Government or a Minister of Foreign Affairs can be tried by his or her national courts or by an international criminal court if such a court has jurisdiction.
An amendment in 2003 brought the Belgian law in line with this judgement of the International Court of Justice by setting aside immunities only as far as international law permits. This formulation allows the Belgian law to develop in line with international law rather than ahead of it.

Filtering genuine claims from abuses of legal process
During extensive discussions in the Justice Commission of the Belgian Chamber of Representatives, it was recognised that the law could be abused by bringing unsubstantiated and politically motivated claims to Belgian courts. Given the publicity such claims would receive, it was probable that some individuals or groups would use this to voice their political opinions. The Belgian legislature wanted to ensure that such claims could be dismissed at the earliest opportunity or transferred to a more appropriate jurisdiction where the claim could be better assessed.
In the law, a distinction was made between claims brought on the basis of universal jurisdiction in absentia and claims that have a link with Belgium. In claims brought by Belgian nationals or persons in Belgium, the default rules of Belgian law apply that prohibit abuses of the court system. If no direct link exists with Belgium, only the Federal Prosecutor can initiate a criminal investigation. The Federal Prosecutor will initiate such an investigation unless one of the four exceptions listed in Article 7(1) apply: if the claim is clearly without merit; if the facts described in the claim cannot be interpreted as constituting a crime as defined in the law; if the claim cannot give rise to an admissible criminal investigation; or where the needs of justice or the international obligations of Belgium require that the claim should be brought before an international court or tribunal, before the national courts of the place of commission of the suspected crimes, the national courts of the state from which the suspect is a national or where the suspect can be found. Under the latter circumstances, the Federal Prosecutor will not initiate criminal investigations if he judges that such courts or tribunals have jurisdiction and are independent, impartial and equitable. If the decision of the Federal Prosecutor is taken on the basis of the fourth exception, the Minister of Justice is obliged to inform the relevant authorities of this decision and of the facts of the case. Against the decision of the Federal Prosecutor not to initiate criminal proceedings, an appeal is possible in the Court of Appeal.

Contributing to a comprehensive international system
The 2003 amendments to the law make the prosecution for genocide, war crimes and crimes against humanity part of a comprehensive international system that was completed by the establishment of the International Criminal Court. Notwithstanding the general principle maintained in the law that accords universal jurisdiction to Belgian courts even if the suspected perpetrator is not found in Belgium, it is the intention of the Belgian legislature to avoid using such universal jurisdiction in absentia if more appropriate mechanisms are available to obtain justice for the victims. Claims can be transferred to the International Criminal Court. The procedure prescribes that the Minister of Justice in consultation with the Council of Ministers issues an executive order informing the International Criminal Court of its intention. This is not possible for a claim that refers to a crime committed on Belgian territory or that is committed by or against a Belgian national, unless this crime is identical with or connected to a crime for which the International Criminal Court has accepted a claim as admissible. The Belgian courts can regain jurisdiction over the claim if the International Criminal Court does not initiate an investigation or declares the claim inadmissible or outside its jurisdiction.
Transferring a claim to another state is subject to the prevailing jurisdiction of the International Criminal Court, and can be done via two distinct procedures. The first procedure allows the transfer of a claim to a court or tribunal of the state where the crime was committed. Unless the crime was committed in Belgium, the claim can also be transferred to a court or tribunal of the state of which the suspected perpetrator is a national or where the suspected perpetrator can be found. Such a transfer is conditional upon such a court or tribunal respecting basic principles of equity. The second procedure is the transfer to the state of which the suspected perpetrator is a national on the condition that that state criminalises grave breaches of humanitarian law and guarantees the right to an equitable trial. Such a transfer is not possible if the victim is a Belgian national or if the crime was committed in Belgium. Under the second procedure, there is no guarantee that the claim will ever be presented to a court in the transferee state. The decision-making procedure in Belgium for such transfers to a state or to the court or tribunals of a state involves the intervention of the Minister of Justice in consultation with the Council of Ministers.

A national law in line with definitions of international crimes
Taking into account the rapid entry into force of the Statute of the International Criminal Court and the definitions of crimes used in this instrument, it became necessary to amend the law and adapt its definitions to the new international instruments. The entry into force of the Rome Statute required co-operation between Belgium, the International Criminal Court and other countries that might exercise jurisdiction. The descriptions of the crimes in the 2003 amendments (Article 1) are parallel with those in the Rome Statute. Even though the Rome Statute was the main source of inspiration for the amendments, certain other international instruments were also taken into account such as the second protocol of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict.

Concluding remarks
The 2003 amendments of the Belgian law limited the scope of the law by incorporating the judgement of the International Court of Justice and by basing its definitions on international instruments. Nevertheless, the amended law has led to diplomatic tension between Belgium and some of the countries with which it maintains good relations. Specifically, strong pressures from Israel and the United States have led to a decision of the incumbent Belgian Government to introduce a new series of amendments that require a clear link with Belgium before a Belgian court can accept jurisdiction. The future law will be based on the nationality principle, allowing Belgian courts to accept cases where the perpetrator is a Belgian national or normally resides in Belgium. A claim can be also be accepted on the passive personality principle allowing Belgian courts to accept cases where the victim is a Belgian national or has resided in Belgium for at least three years. Moreover, a claim will only be accepted if the suspected perpetrator is a national of a country that does not criminalise genocide, war crimes and crimes against humanity or that cannot guarantee a fair trial.
To ensure that no uncertainty exists about the immunities of government officials visiting Belgium to attend meetings of international organisations or about the immunities of officials of international organisations based in Belgium, the future law will contain explicit provisions detailing these immunities as they exist both in international customary law and in the treaties to which Belgium is a party.

Stefaan Smis is Professor of International Dispute Settlement, Vrije Universiteit Brussel (Belgium) and Kim Van der Borght is a Fellow in Residence, Dean Rusk Center, School of Law, University of Georgia; Fellow of the Centre for International Law, Vrije Universteit Brussel (Belgium); Lecturer in Law (on leave), University of Hull.