[Source: Available in French on http://www.moniteur.be [1], unofficial translation.]
New section I (a) of the Criminal Code (L. 5 August 2003, Article 5)
(L. 5 August 2003, Article 6)
The crime of genocide, as defined below, whether it is committed in time of peace or of war, constitutes a crime under international law and shall be punished in accordance with the provisions of this Act. In accordance with the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948 and without prejudice to the penal rules applicable to breaches committed by negligence, the crime of genocide shall mean any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(L. 5 August 2003, Article 7)
Crimes against humanity, as defined below, whether committed in time of peace or of war, constitute a crime under international law and shall be punished in accordance with the provisions of this Act. In accordance with the Statute of the International Criminal Court, a crime against humanity shall mean any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
(1) War crimes referred to in the Conventions adopted in Geneva on 12 August 1949 and in Protocols I and II additional to those Conventions, adopted in Geneva on 8 June 1977, by the laws and customs applicable to armed conflicts, as defined in Article 2 of the Conventions adopted in Geneva on 12 August 1949, in Article 1 of Protocols I and II adopted in Geneva on 8 June 1977 additional to those Conventions, and in Article 8(2)(f) of the Statute of the International Criminal Court, and listed below constitute crimes under international law and shall be punished in accordance with the provisions of this section, when the crimes undermine, by act or omission, the protection of persons and property that is guaranteed by the Geneva Conventions, the Additional Protocols, laws and customs, without prejudice to the penal rules applicable to breaches caused by negligence:
(2) Serious violations of Article 3 common to the Conventions signed in Geneva on 12 August 1949, in the case of armed conflict defined by common Article 3, and listed below, constitute crimes under international law and shall be punished in accordance with the provisions of this Act, when such violations undermine, by act or omission, the protection of persons that is guaranteed by those Conventions, without prejudice to the penal provisions applicable to breaches committed out of negligence:
(3) The serious violations defined in Article 15 of Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, adopted in The Hague on 26 March 1999, committed during armed conflict, as defined in Article 18, paragraphs 1 and 2, of the Hague Convention of 1954 and in Article 22 of the aforementioned Second Protocol, and listed below, constitute crimes under international law and shall be punished in accordance with the provisions of this Act when such breaches undermine, by act or omission, the protection of property guaranteed by those Conventions and the Protocol, without prejudice to the penal provisions applicable to breaches committed out of negligence:
(L. 5 August 2003, Article 9)
The breaches listed in Articles 136 (a) and 136 (b) shall be punished by life imprisonment.
The breaches listed under Nos. 1, 2, 15, 17, 20 to 24 and 26 to 28 of paragraph 1 of Article 136 (c) shall be punished by life imprisonment.
The breaches listed under Nos. 3, 4, 10, 16, 19, 36 to 38 and 40 of the same paragraph of the same Article shall be punished by prison sentences of 20 to 30 years. They shall be punished by life imprisonment if they resulted in the death of one or more persons.
The breaches listed under Nos. 12 to 14 and 25 of the same paragraph of the same Article shall be punished by prison sentences of 15 to 20 years. The same breach and that referred to in Nos. 29 and 30 of the same paragraph of the same Article shall be punished by prison sentences of 20 to 30 years if they resulted in an apparently incurable illness, the permanent incapacity to work or the loss of use of an organ or serious mutilation. They shall be punished by life imprisonment if they resulted in the death of one or more persons.
The breaches listed under Nos. 6 to 9, 11 and 31 of the same paragraph of the same Article shall be punished by prison sentences of 10 to 15 years. In the case of aggravating circumstances stipulated in the preceding paragraph, they shall be punished by the sentences provided for in that paragraph, as is appropriate to the case in question.
The breaches listed under Nos. 5 and 32 to 35 shall be punished by prison sentences of 10 to 15 years, without prejudice to the application of the more severe penal provisions repressing outrages upon human dignity.
The breach stipulated in No. 18 of the same paragraph of the same Article shall be punished by prison sentences of 10 to 15 years. It shall be punished by prison sentence of 15 to 20 years when it resulted in serious consequences for public health.
The breach listed under No. 39 of the same paragraph of the same Article shall be punished by prison sentences of 10 to 15 years.
The breach listed under No. 1 of paragraph 2 of Article 136 (c) shall be punished by life imprisonment.
The breaches listed under Nos. 2 and 4 of the same paragraph of the same Article shall be punished by prison sentences of 10 to 15 years, without prejudice to the application of the severer penal provisions repressing outrages upon human dignity.
The breach listed under No. 3 of the same paragraph of the same Article shall be punished by prison sentences of 10 to 15 years. The same breach shall be punished by prison sentences of 20 to 30 years if it resulted in an apparently incurable illness, permanent incapacity to work, the loss of use of an organ, or serious mutilation. It shall be punished by life imprisonment if it resulted in the death of one or more persons.
The breaches listed under Nos. 1 to 3 of paragraph 3 of Article 136 (c) shall be punished by prison sentences of 15 to 20 years.
(L.5 August 2003, Article 10)
Anyone making, being in possession of or transporting any kind of instrument, device or object, erecting a construction or converting an existing construction in the knowledge that such instrument, device, or object, such construction or conversion is intended to commit one of the breaches provided for in Articles 136 (a), 136 (b) and 136 (c) or to facilitate the perpetration of such breaches shall be punished by the sentence stipulated for the breach which they have allowed or facilitated.
(L. 5 August 2003, Article 11)
The sentence stipulated for a breach that has been committed shall be applied to the following:
(L. 5 August 2003, Article 12)
Paragraph 1. Without prejudice to the exceptions listed under Nos. 18, 22 and 23 of Article 136 (c), paragraph 1, no interest, no political, military or national necessity can justify the breaches defined in Articles 136 (a), 136 (b), 136 (c), 136 (e) and 136 (f), even if they were committed as reprisals.
Paragraph 2. The fact that the accused acted on the orders of his government or a superior does not free him from his responsibility if, in the given circumstances, the order could clearly have led to one of the breaches targeted in Articles 136 (a), 136 (b) and 136 (c) being committed
[Source: Available in French on http://www.moniteur.be [1]; unofficial translation.]
New provisions in the first section of the Code of Criminal Procedure
(L. 5 August 2003, Article 13)
(1) In accordance with international law, legal action shall not be taken against:
(2) In accordance with international law, for the duration of their stay no pressure to initiate legal action may be exerted with regard to anyone who has been officially invited to reside in the territory of the Kingdom by the Belgian authorities or by an international organization established in Belgium and with which Belgium has concluded a headquarters agreement. [...]
(L. 5 August 2003, Article 16 (2))
(1) Except for [certain cases], a foreigner may be tried in Belgium who, outside the Kingdom of Belgium, has committed: [...]
(1bis) A serious violation of international humanitarian law as stipulated in Part II, section I (a) of the Criminal Code, [...] against a person who, at the time of the occurrence, is a Belgian national or a person whose actual place of normal and legal residence has been in Belgium for at least three years.
Legal action, including the investigation, may be initiated only at the request of the federal prosecutor who assesses any charges that may have been brought. There is no channel through which to appeal against that decision. [N.B.: On 23 March 2005, the Belgian Constitutional Court (“Cour d’arbitrage”) held that the preceding paragraph is unconstitutional and ceases to be in force on 31 March 2006 (See the decision in French, online: http://www.const-court.be [2]).]
If a charge has been submitted to the federal prosecutor in application of the preceding paragraphs, he must instruct the examining magistrate to investigate that charge unless:
If the federal prosecutor deems a case to be closed, he shall notify the Minister of Justice, indicating the points which are listed in the previous paragraph and on which he bases that classification. [N.B.: On 23 March 2005, the Belgian Constitutional Court (“Cour d’arbitrage”) held that the preceding paragraph is unconstitutional and ceases to be in force on 31 March 2006 (See the decision in French, online: http://www.const-court.be [2]).]
If a case is classified as closed solely on the basis of points No. 3 and No. 4 above or solely on the basis of point No. 4 above and when those acts were committed after 30 June 2002, the Minister of Justice shall inform the International Criminal Court accordingly. [...]
(L. 5 August 2003, Article 18)
Apart from the cases referred to in Articles 6 to 11, the Belgian courts are also authorized to take cognisance of breaches committed outside the territory of the Kingdom and stipulated in international treaty or customary law which is binding on Belgium, when that rule requires it, in whatever manner, to submit the matter to its competent authorities to take legal action.
Legal action, including the investigation, may be initiated only if requested by the federal prosecutor who assesses any charges that may have been brought. There is no channel through which to appeal against that decision. [N.B.: On 23 March 2005, the Belgian Constitutional Court (“Cour d’arbitrage”) held that the preceding paragraph is unconstitutional and ceases to be in force on 31 March 2006 (See the decision in French, online: http://www.arbitrage.be [3].).]
If a charge has been submitted to the federal prosecutor in application of the preceding paragraphs, he must instruct the examining magistrate to investigate that charge unless:
If the federal prosecutor deems the case to be closed, he shall notify the Minister of Justice to that effect, referring to the points listed in the preceding paragraph on which that classification is based.
If a case is classified as closed solely on the basis of points 3 and 4 above or solely on the basis of point 4 above and when those acts were committed after 30 June 2002, the Minister of Justice shall inform the International Criminal Court accordingly.
[Source: Université Libre de Bruxelles, Centre de Droit International, Dossier d’Actualité sur la compétence universelle en droit belge, http://www.ulb.ac.be/droit/cdi [4], unofficial translation.]
The Law on “universal jurisdiction”, as it is called, was adopted on 16 June 1993 and addressed the repression of grave breaches of the Geneva Conventions of 12 August 1949 and the Additional Protocols I and II of 8 June 1977. Its scope of application was limited to war crimes, whether they are committed during an international or non-international conflict. To that extent, the Law broke new ground, in particular with regard to the international instruments that it set out to implement. It will be recalled that the notion of war crimes was restricted in the Geneva Conventions and the Additional Protocols to international armed conflicts.
That Law is also an innovation under Belgian law in that it enables legal action to be taken against an accused party regardless of whether the latter is on Belgian territory or not. This possibility is not referred to explicitly in the Law but appears in the parliamentary proceedings of the Senate on 30 April 1991.
On the basis of that Law, an investigation concerning Augusto Pinochet was initiated on 1 November 1998 [available in French on http://competenceuniverselle.files.wordpress.com/2011/07/loi-du-5-aout-2003-texte-de-loi1.pdf [5]].
The Law was submitted to an initial revision on 10 February 1999. That revision made two important amendments: on the one hand, the universal jurisdiction of Belgian judges was extended to the crime of genocide and to crimes against humanity and, on the other hand, the perpetrators of criminal breaches were to cease to be able to plead any kind of immunity.
There were few lawsuits based on that Law at first. The trial at the crown court in Brussels in April 2001 of four persons accused of having taken part in the Rwandan genocide and their conviction led to an increase in the number of lawsuits [details on this process available on http://trial-ch.org/ [6]]. These were aimed at, among others, Fidel Castro, Saddam Hussein, Laurent Gbagbo, Hisséne Habré and Ariel Sharon. The charges proffered against Arial Sharon on 1 and 18 June 2001 gave rise to strong criticism from the Israeli authorities.
The Law, as amended in 1999, was again amended four years later. On 14 February 2002 Belgium was ordered by the International Court of Justice to annul the international warrant for the arrest of Abdulaye Yerodia when he was the Minister for Foreign Affairs of the Democratic Republic of Congo on the grounds that the warrant for arrest took no account of the immunity granted to heads of State and to the Foreign Affairs Ministers in office. [See ICJ, Democratic Republic of the Congo v. Belgium [7]] Following that ruling, a bill which took account of the adoption of the Statute of the International Criminal Court and which provided for bringing the Law into line with the existing rules of international law, was presented to the Senate on 18 July 2002. The text was approved by the Senate on 30 January 2003 and forwarded to the Chamber on 5 February 2003.
However, bringing charges against US political and military leaders, particularly after the intervention of the United States in Iraq, was to trigger increasingly harsh reactions by those leaders, which culminated in threats to move NATO headquarters and finally led to the 1993 Act being repealed. The first charge, relating to acts committed during the first Gulf War, was brought against George Bush Senior and former members of his team in March 2003. Colin Powell, who was targeted by that charge, considered that the Belgian Act presented a “serious problem”, particularly given the fact that NATO headquarters was in Brussels and issued a warning to Belgium.
Consequently, the bill was amended and stipulated that, in situations that are not linked to Belgium, the public prosecutor could refuse to instruct the examining magistrate in certain cases. Moreover, the bill also stipulated that the Justice Minister had the authority to issue a negative injunction, which in explicit terms meant the possibility of referring the charge back to the State on whose territory the breach was committed or of which the perpetrator is a national. The Law was passed on 23 April 2003.
Moreover, following the two rulings by the Chamber of Indictment in Brussels which deemed the lawsuits against Abdulaye Yerodia and against Ariel Sharon and Amos Yaron to be inadmissible on the grounds that those persons were not present on Belgian territory, a second bill interpreting the 1993 Law, according to which legal proceedings could be instituted regardless of the location of the accused, was also presented. That second bill was never adopted because the rulings were subsequently nullified by the Court of Cassation.
It was not to prevent a charge being lodged against US General Tommy Franks on 14 May 2003. On 13 May 2003, at a press conference at NATO headquarters, General Richard Myers, who had been informed by a journalist that the charge was about to be lodged, said that he considered the situation “very serious” and that it could have a significant bearing on where NATO held its meetings.
At the meeting of NATO defence ministers one month later, and despite the lawsuit filed against General Franks having been referred back to the United States in accordance with the new procedure, Donald Rumsfeld, after having called the lawsuit “absurd” and refusing to recognize Belgium’s authority to try American leaders, confronted it with its responsibilities as the country in which NATO has its headquarters and made the American contribution to the building of a new headquarters subject to assurance that Belgium would again be a “hospitable place for NATO to conduct its business”, while at the same time acknowledging that Belgium’s sovereignty had to be respected. [Speech available on http://www.nato.int/docu/speech/2003/s030612g.htm [8]].
At the end of June 2003, the Belgium Minister for Foreign Affairs announced his intention to amend the Law again as soon as the new government had been formed.
The Law of 16 June 1993 was repealed on 5 August 2003. The Criminal Code, the Act of 17 April 1878 containing the first part of the Code of Criminal Procedure and the Code of Criminal Procedure were thus amended to allow serious breaches of international humanitarian law to be prosecuted. However, in the absence of connections authorizing the Belgian courts to take cognizance of it, the charge is upheld only if a rule of international law, deriving from treaty or customary law which is binding on Belgium, requires it to prosecute perpetrators of the breaches specified therein.
If universal jurisdiction really does subsist under Belgium law, its bearing is far more restricted (given that in the current state of international law, universal jurisdiction in absentia can no longer be exercised) and with an extensive system for filtering the charges (provided that the system set up at the time of the previous amendment of the law is upheld). According to several hypotheses, the federal prosecutor may thus close the case without further action, particularly if he considers that an international court or another national court has “more justified” competence. The only requirements are the competence and “guarantees of impartiality and independence” of the court. Consequently, the closure of the case is not conditional upon the existence of effective proceedings before that court. It should be noted that the legislator has chosen vague terms to define the qualities to be demonstrated by a court whose competence would take precedence over Belgian universal competence.
That sovereign assessment by the federal prosecutor is evidently a political safeguard to prevent Belgium from finding itself in another a difficult diplomatic situation.
Links
[1] http://www.moniteur.be
[2] http://www.const-court.be
[3] http://www.arbitrage.be
[4] http://www.ulb.ac.be/droit/cdi
[5] http://competenceuniverselle.files.wordpress.com/2011/07/loi-du-5-aout-2003-texte-de-loi1.pdf
[6] http://trial-ch.org/
[7] https://casebook.icrc.org/case-study/icj-democratic-republic-congo-v-belgium
[8] http://www.nato.int/docu/speech/2003/s030612g.htm
[9] https://www.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=3F6C2B8B20272F58C12563CD0051A2BB
[10] https://www.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=58854E245CB34B82C12563CD0051A8E4
[11] https://www.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=C083F579BD003884C12563CD0051B5D3
[12] https://www.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=6F96EE4C7D1E72CAC12563CD0051C63A
[13] https://www.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=73D05A98B6CEB566C12563CD0051E1A0