BELGIUMS WAR CRIMES STATUTE: A POSTMORTEM

(Part I only details the development of the statute. It may be skipped at the pleasure of the reader, though it helps to contextualize how the current incarnation of the Belgian law came into force.)

1.

2.

Introduction The life and death of Belgiums universal jurisdiction law is a textbook case of the intersection of law and power in the international arena. a. A government, its consciousness raised by the increased global attention to individual responsibility for human rights atrocities, enacts a broad statute opening its courts to prosecutions of suspected murderers, torturers, and war criminals around the world. b. Belgium tries to use the law to try and convict a handful of accomplices to the atrocities committed in Rwanda, but politically troublesome cases begin to enter the picture. i. Opposing sides in the Middle East seek to have their day in Brussels ii. The Democratic Republic of Congo (DRG) successfully brings an action in the World Court challenging arrest warrants against a former DRG official. iii. The U.S. government eventually signals its opposition to the statute, resulting its nearinstantaneous modification. 1. When the U.S. said that it was still too broad, the government guts the idea entirely. While the fate of Belgiums universal jurisdiction law a Manichean1 battle of the highest order, the real situation is much more complex. a. It highlights the myriad of international actors who have a direct interest in these laws and the steps they will take to advance their claims. b. It affords critical lessons regarding what is now the central question regarding universal jurisdiction: Do its benefits to human rights and public order outweigh its costs? I. History The Belgian statute began in 1903. The government, responding to a proposal made by military judges and various legal academics, amended the penal code to include certain violations of the 1949 Geneva Conventions and 1977 Additional Protocols, regardless of where such crimes were committed. a. Meant to help implement Belgiums obligations under the treaties regarding grave breaches. 1991: At the behest of various human rights NGOs, the law was amended to add genocide, as defined in the 1948 Genocide Convention, and crimes against humanity, as defined in the Statute of the International Criminal Court. a. The 1999 amendment clarified that official immunity of a person would not prevent the application of the law. b. Belgiums statute was not the first of its kind, but definitely the broadest in terms of the crimes it covered and the lack of any required link between the suspect, victims, or events on the one hand, and Belgium , on the other. 2001: Belgium tried two Rwandan nuns and two Rwandan men for participation in the genocide; all four were convicted. In June of the same year, twenty-three survivors of the 1982 massacre of Palestinian refugees by Lebanese militiamen of Sabra and Shatila camps filed a criminal complaint against Ariel Sharon, who was the Israeli defense minister in 1982 and, since 2001, has been the prime minister of Israel, and Amos Yaron, the Israeli general in charge of the Beirut sector. a. Belgiums criminal procedure incorporates the system of p laintiff-prosecutors or constitution de partie civile victims may initiate cases before an investigating judge. i. As the investigating judge was undertaking his inquiry and hearing arguments from the public prosecutor and lawyers for Sharon, thirty-three Israelis and Belgians initiated proceedings against Yasir Arafat under the law. b. The court also faced criminal complaints against Fidel Castro, Saddam Hussein, former DRG foreign minister Abuldaye Yerodin, former Iranian President Hashemi Rafsanjani, etc. Before long, several courts began to consider the laws consistency with Belgian constitutional law and international law. a. October 2001: DRG initiated a case against Belgium before the ICJ to contest the legality of an arrest warrant issued by a Belgian judge against Yerodin. b. December 2001: Four members of Parliament introduced legislation, never passed, to limit the law to cases where individuals had not been tried for the same offense elsewhere and to channel such cases to certain special panels of judges.

1.

2.

3. 4.

5.

Of or relating to a dualistic view of the world, dividing things into either good or evil, light or dark, black or white, involving no shades of gray (e.g. law v. power, a community-minded state v. a hegemon).

6.

7.

8. 9.

February 2002: The ICJ found Yerodins arrest warrant inconsistent against his immunity as the MoFA2 at the time of the warrant, though the judges vast disagreements regarding universal jurisdiction prevented any judgment on the matter. d. June 2002: As for Sharons case, a Belgian appeals court ruled that he and Yaron could not be tried because such cases were inadmissible when the defendant was not in Belgium. i. Belgian Prime Minister Guy Verhofstadt expressed support for amending the law to permit investigations despite defendants absence. ii. February 12, 2003: The Belgian Cour de Cassation overruled the Belgian court of appeal, finding that the presence of the accused was not necessary under Belgian law for the case to proceed. 1. Nonetheless, it found the immunity of sitting heads of state to be a principle of customary international law. a. It dismissed the case against Sharon but allowed the investigation against Yaron to proceed, thus leaving open the possibility of Sharon being tried after he left office. b. Israel protested and withdrew its ambassador to Belgium. e. March 2003: Seven Iraqi families requested an investigation of George H.W. Bush, Dick Cheney, Colin Powell and Norman Schwarzkopf for allegedly committing war crimes during the Gulf War. i. In response, Powell warned the Belgian government that it was risking its status as a diplomatic capital and the host state for the NATO by allowing investigations of those who might visit Belgium. 1. Verhofstadt almost immediately proposed amendments to the statute to limit its scope. f. April 2003: Parliament amended the law such that only the federal prosecutor could initiate cases if the violation was overseas, the offender was not Belgian or located in Belgium, and the victim was not Belgian or had not lived in Belgium for three years. Furthermore, the prosecutor could refuse to proceed on the basis of the complaint being manifestly unfounded or if the matter should be brought before international tribunals or in the tribunals where the acts were committed or before the State tribunals. i. After the amendment, Israel sent their ambassador back to Belgium. ii. The amendment was not enough for US officials, as, on June 12, 2003, Sec. Donald Rumsfeld announced that the US would refuse to fund a new HQ building for NATO in Belgium and consider barring its officials from travelling to meetings there unless the law was rescinded. 1. Verhofstadt agreed to submit amendments that would further limit the law. g. Under the law that came into force in August 2003, Belgian courts can hear cases regarding the three sets of crimes when committed outside Belgium only if the defendant or victim is a citizen or resident of Belgium. For the defendant, nationality or residence is determined on the date proceedings commence; for the victims, it is the date of the crime. i. If only the victim has the requisite ties to Belgium, the public prosecutor has an extensive role: he can move a case forward and he is not required to pass on the case to an investigating judge. ii. The new law precludes cases against chiefs of state, heads of government, and foreign ministers while they are in office; and persons whose immunity who is recognized by international law; and persons whose immunity is recognized by a treaty to which Belgium is a party. iii. No acts of arrest may be taken against targets officially invited to Belgium by its government or by an international organization based in Belgium. iv. Pending cases are to be dismissed unless the plaintiff was a Belgian national or the accused had his principal residence in Belgium at the time at the date of the laws effectivity and the case meets the special criteria outlined above. In the end, Belgium changed its law in three critical ways since its 1993 and 1999 incarnations: a. Universal jurisdiction was replaced by a required link with Belgium in terms of the nationality or residence of the plaintiff or accused; b. Immunity from prosecution for leading foreign govt officials while in office, and immunity from arrest for all persons on official visits; and c. The role of the public prosecutor was increased where only the victim is Belgian. At the same time, the law does not close the Belgian courts to victims of human rights abuses outside Belgium if a. The requisite tie to Belgium is present; b. The other states with a link to the crime do not have an independent system of justice; and c. The accused is not one of the immunized governmental officials specified in the law, or has always been a private citizen. The law still does not require the accused to present in Belgium for an investigation. The Belgian courts are open for prosecution of other crimes if Belgium has an obligation under treaty or customary law to submit cases to its authorities for proceedings. c.

Minister of Foreign Affairs

1.

2.

3.

4.

5.

II. The original Belgian law represented a unique opportunity for bringing to justice those suspected by human rights abuses suspected by the victims and not the public prosecutors. This shows Belgiums experiences the tension between pleas of victims and worries of governmental officials about the monetary and diplomatic price of trials with regard to universal jurisdiction laws. a. In the cases of the Rwandan nuns, the trial proceeded because of a combination of historical-conditioning factors: i. Presence of the accused in Belgium for investigation ii. Severity of the atrocities of which they are accused; iii. Strength of the evidence iv. Sense that the prosecution was apolitical v. Absence of an effective judiciary in the state where the atrocities took place; vi. Special links between the state of the crime and Belgium; vii. Political powerlessness of the defendants; viii. Lack of opposition from any state, including Rwanda. b. The other cases brought under the law suffered from an absence of one or more of these factors (e.g. the defendants held high positions, flimsy evidence, accusations of selective prosecutions, officials with friends in high places, so to speak). The key questions for observations of la dbcle belge are the following: a. Is it possible to distinguish between cases that prosecutors and judges using universal jurisdiction statutes should investigate and those that they should not? b. If not, should such states open their door or close it? c. If so, where is the line, and who should draw it? Those who take extreme positions would answer question (a) in the negative. a. On the one hand, human rights NGOs would open the courthouse door to all plaintiffs, leaving it to the investigating judge and the trial court to determine the merits of the case. i. Foreign policy consequences, the political motivation of some plaintiffs and the one-sided nature of some prosecutions are all irrelevant for those who see the beauty of universal jurisdiction. b. On the other hand, the US government and some former officials would shut that door. i. Henry Kissinger, for example, cited a litany of problems, like the arrogance of the forum state in failing to give deference to the state of territoriality, the unfairness to the defendant, the political motivation and selectivity behind such trials, and the inappropriateness of battling out political disputes in distant courtrooms. c. The author rejects both positions for failing to balance the need to avoid impunity of serious abusers of human rights with possible deleterious consequences of public order of the abuse of such laws. i. Any policy on universal jurisdiction must advance the twin goals of individual accountability and public order, but each individual decision to investigate will affect each goal differently. ii. It is unrealistic to see universal jurisdiction as charity work for forum states. Universal jurisdiction does not operate in a vacuum. a. The process whereby one state investigates then seeks the arrest of a sitting or former official of another state despite how criminal the acts stated by said official are raises interstate tensions with regard to the differences between state responsibility and individual responsibility. i. It is one of the central challenges of international criminal law. ii. The very elements of that give individual punishment some added value over state responsibility as a response to human rights abuses whether in forms of deterrence, public disapprobation, retribution, or the effects on victims create frictions when one state prosecutes the officials of another. In other words, when justice becomes personal, so does foreign policy.

III. To sort through this challenge facing universal jurisdiction, the author returns to the factors which made the prosecutions of the Rwandans in Belgium so generally acceptable. The author seeks to ascertain whether each factor should be necessary for prosecutions to advance under universal jurisdiction, in the hopes of arriving at a set or pragmatic guidelines for decision makers: 1. Presence of the accused a. Universal jurisdiction will function best where the accused is already in the country, an example of which would be the Nazi war criminals being tried in Australia. b. Trials in absentia should be the exception. 2. Severity of the atrocities with which the defendant is associated. Universal jurisdiction ought to be reserved for particularly heinous offenses. 3. Strength of the evidence against the defendants prosecutions should not proceed where there is a significant likelihood of acquittal.

Sense that the prosecution is apolitical and not tantamount to taking sides in an ongoing conflict no precise guideline is possible, other than forum states should explicitly consider the costs to themselves and the community of states of prosecutions perceived by important actors as taking sides in an ongoing conflict. 5. Absence of an effective judiciary in the state where the atrocities took place and presence of one in the forum state. a. One issue on both sides of the universal jurisdiction debate seem to agree is that the priority to prosecute belong to the state of territoriality if it is willing and able to do so. b. The easiest case is where the state is unable to prosecute because of a shattered judiciary. c. Cases where the state is able but unwilling are much harder such unwillingness should be necessary for prosecutions abroad, though it is not sufficient by itself to warrant such prosecutions. 6. Special links between the state where the crime took place and the forum state they hardly seem necessary for such cases to proceed (e.g. prosecutions of Bosnians in Europe). 7. The political powerlessness of the defendants a. This should not in itself be a normative constraint for determining whom to prosecute. b. On the other hand, some politically powerful defendants enjoy protections under international law by virtue of their office. c. If the defendant is a sitting head of state, foreign minister, or other immunized official, a state must not proceed against such person while such is still in office. 8. The absence of opposition from any state to their prosecution A general rule on the issue is impossible to devise. Such prosecutions must be carried out while exercising political and judicial care. The above analysis, however, does not address the question as to who should apply such criteria. 1. It is incumbent upon the prosecutor to make the key decisions to screen cases. a. Screening places the government in its proper rile with respect to the highly important matter of criminal prosecution because it puts the decision to prosecute on the entity that will bear the greatest political and financial cost to do so. b. The government must play a central role, instead of letting the partie civile control the process. c. Screening runs against the grain of the plaintiff-prosecutor system a system constructed precisely to encourage prosecution of cases where the prosecutor, the government, or both may be politically resistant to moving forward. i. It is capable of abuse by a state, which may always see foreign policy risks in prosecution. ii. It also risks the possibility that senior officials friendly to the forum state will never face justice while the lower-level offenders are. iii. Yet, the prosecution by some states under universal jurisdiction suggests the calculation need not always run that way, that pressure from civil society or national legislatures may make the government realize that trials are in the nations o the worlds interest. 2. Some suggest that the final determination should be with the investigating judge. a. The author does not preclude such a possibility. However, while the issue as to who makes the determination requires further reflection, whoever does so must take note of the factors noted above. 4. IV. How, then, do we evaluate the denouement of the Belgian story? 1. By eliminating true universality of jurisdiction, Belgium took a far more conservative stance than the one outlined above. 2. By prohibiting victim-initiated cases where the only basis for jurisdiction is the victims Belgian nationality, the government excised the most mischievous element of the law allowing the prosecutors to balance the above factors with the interest of the victims and those who seek to manipulate them. a. Again, Belgium has taken a more conservative nature than the one previously suggested because screening does not require the elimination of the victims role. Rather, it only gives a veto to the public prosecutor. 3. Belgium has not adopted the restrictive approach noted above in some ways: a. It has not required the defendants presence b. It has not created a severity threshold c. It has not introduced any authorization for the public prosecutor to consider the relationship of the prosecution to human rights, public order, and foreign policy concerns. The Belgian alternative thus unnecessarily dilutes the idea of universal jurisdiction while remaining open to some hazards.