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Prosecuting International Crimes in Belgium
Abstract
The past decade has seen intense legislative and judicial activity in Belgium regarding the prosecution of international crimes: a large number of complaints were filed with Belgian courts, which had been granted broad extraterritorial jurisdiction. Insofar as Belgium constituted a sort of laboratory for the implementation of a quasi-absolute universal jurisdiction, the analysis of the ‘Belgian case’ may prove very useful. The evolution of Belgian law over the past decade has been tumultuous. This paper is intended to offer an overview of the different cases brought to court in Belgium, to assess their significance and implications, and to draw a number of conclusions.
... One commentator has observed that, when Belgium carried out proceedings with respect to individuals suspected of having taken part in the Rwandan genocide, 'local authorities offered the most extensive judicial cooperation, despite the absence of a treaty between Belgium and Rwanda'. 63 More recently, Finnish courts were able to hold public hearings in Rwanda and Tanzania for weeks on end. 64 In sum, far from collectively objecting to the principle of universality, many African states seem to wholeheartedly endorse the principle. ...
... It limits the jurisdiction of Belgian court to the traditional grounds of extraterritorial jurisdiction -active and passive personality -and the exercise of universal jurisdiction on the basis of the principle aut dedere aut judicare stemming from Belgium's treaty obligations. 89 The use of universal jurisdiction in Belgium is to be blamed for yet another change, apart from the legal one: the radical shift in the perception of universal jurisdiction by the Belgian society. When in 1998 Belgium joined Spain in requesting extradition of Augusto Pinochet, the move was welcomed by public opinion at large. ...
Universal jurisdiction is where international law and international politics walk together on a thin line between their respective worlds. Yet, while much has been written about legal aspects of this controversial legal concept, its political implications remain largely under-researched. This article explores two cases where the interplay between law and politics has led to strikingly opposite results: the case of Spain and Augusto Pinochet, where a state has been shamed into compliance through the exercise of universal jurisdiction by another country ('Pinochet effect'); and the one of Belgium and United States, where a state has been shamed to change its laws through the exercise of universal jurisdiction by its own courts ('Rumsfeld effect'). This article identifies the key aspects of the two model cases by creating a kind of a check-list aiming to simplify the testing of the presence of the Pinochet and Rumsfeld effect in other cases based on universal jurisdiction. The article equally introduces a first testing of the presence of said effects on the prosecution of the former Chadian dictator Hissène Habré.
Cambridge Core - Human Rights - Realizing Reparative Justice for International Crimes - by Miriam Cohen
This detailed evaluation of the relationship between trials and truth commissions challenges their assumed compatibility through an analysis of their operational features at national, inter-state and international levels. Alison Bisset conducts case-study analyses of national practice in South Africa, East Timor and Sierra Leone, evaluates the problems posed by the International Criminal Court and considers the challenges presented by the possibility of bystander state prosecutions. At each level, she highlights potential operational conflicts and formulates targeted proposals to enable effective coexistence.
International criminal law has developed considerably in the last decade and a half, resulting in a complex and re-invigorated discipline. This has impacted directly on the popularity of the study of the subject, particularly on postgraduate law degrees. This textbook serves these courses by providing an introduction to the principles of international criminal law and processes. Written by four international lawyers with experience of teaching international criminal law, it is accessible yet sophisticated in its approach. It covers substantive international criminal law, the institutions designed to enforce it and their procedures, and the international law applicable to domestic prosecutions of international crimes. It will be essential reading for students and teachers of international criminal law. In addition, practitioners and researchers in the field (and in related fields such as criminal law), students of international law and international relations will find this introduction invaluable. © Robert Cryer Håkan Friman, Darryl Robinson and Elizabeth Wilmshurst 2007.
The history of universal jurisdiction over core international crimes has often been framed as a story of rise and fall. Non-governmental organization (NGO) activism was regarded as a cause for both the rise and the fall; the rise culminated with the arrest of General Pinochet in 1998 and the fall came with the ‘amputation’ of the universal jurisdiction laws in Belgium in 2003 and Spain in 2009 and 2014. In this article, the author offers an alternative view of this history. He argues that universal jurisdiction is not necessarily on the decline since the number of universal jurisdiction statutes and trials has increased and the number of universal jurisdiction complaints has not substantially decreased in recent years. Rather, the trajectory of universal jurisdiction can be understood as an ongoing competition between two conceptions of the role states play in the universal jurisdiction regime. In the ‘global enforcer’ conception, states have a role in preventing and punishing core international crimes committed anywhere in the world, while in the ‘no safe haven’ conception, states should not be a refuge for participants in core international crimes. In recent years, the ‘no safe haven’ conception has made important inroads in legislation and prosecution of international crimes, but the ‘global enforcer’ conception is still present in the universal jurisdiction regime. Though NGOs prefer the ‘global enforcer’ conception, with its strong anti-impunity rationale, these organizations have (involuntarily) contributed to the advancement of the ‘no safe haven’ approach through their legalistic position and ambiguous rhetoric about universal jurisdiction.
The primary goal of this article is to analyze Belgium’s universal jurisdiction law concerning humanitarian law violations and its relationship to global governance norms. When discussing the notion of universal jurisdiction, there are relatively few empirical situations that scholars can draw on to illuminate the debate. In general, there is a very theoretical orientation to the universal human rights debate. Belgium’s 1993 universal jurisdiction law (expanded in 1999) brings a greater degree of empirical clarity to this debate. This law allowed Belgium to hear cases concerning violations of humanitarian law, including genocide and other crimes against humanity, which happened anywhere, without any connection to Belgium. In essence, this was an attempt at the protection of human rights on a universal basis and may be the way forward in the prevention of mass atrocities.
After Egypt's January 2011 revolution ousted former President Hosni Mubarak, a conversation began amongst a number of international
and Egyptian human rights groups regarding the need to promote international transitional justice precedents within the Egyptian
context and to raise public awareness of them. This note argues that, in many ways, the Egyptian revolution surpassed the
bounds of reformist transitional justice agendas. It begins by identifying two specific limitations in their scope: regarding
the accountability of external actors and regarding the guarantee of economic and social rights. The article then describes
the more far-reaching conceptions for change that were communicated in the key demands and subsequent campaigns of the 2011
revolution. Finally, it argues that Egypt's transition itself has stalled, as the ruling military council lacks the political
will to propel transitional justice, rendering such discussions premature. It recommends that international practitioners
take their cues from Egyptian actors negotiating these challenges, rather than proceeding without sufficiently questioning
the context.
This study offers an analysis of "when" and "how" Canada may -or must- exercise jurisdiction over suspected perpetrators of genocide, crimes against humanity and war crimes. The first part looks at the legislative choices made in the Crimes against Humanity and War Crimes Act as to temporal, territorial and extraterritorial jurisdiction, including universal jurisdiction and the requirement of the presence of the accused on Canada's territory, in light of the correlative rules and obligations of international law. The second part of the study is concerned with "how" Canada will -or should- decide to exercise jurisdiction. It describes the political safeguards put in place by the Act and assesses the criteria that guide -or should guide- the exercise of prosecutorial discretion. The "when" and the "how" are clearly intertwined. Indeed, the criteria upon which the Attorney General should base his or her decision to prosecute a person cannot- or should not- be dissociated from Canada's international obligations and responsibilities in this regard. This study examines Canada's approach regarding suspected war criminals present on its territory, which combines criminal and administrative remedies. It assesses some of the challenges it faces in living up to its commitment to fight impunity for the worst international crimes, in light of the "unbearable lightness" of international obligations.
This article examines the extent to which the International Criminal Court influences national jurisdictions with respect to due process protections. An analysis of two of the Rome Statute’s safeguards against failing national justice systems, namely the admissibility criteria found in Article 17 and Article 20(3), shows that the Court’s influence may extend to domestic due process rights. The Rome Statute’s complementarity principle leaves room for such an interpretation, inter alia, by demanding regard to due process as recognized by international law when the Court assesses admissibility. A liberal interpretation of this idea is known as the due process thesis. However, the author suggests a narrower approach, only in cases of gross violations of core fair trial rights. Then, the article examines how this moderate form of the due process thesis might affect evidence law. The reason for this is twofold. First, most evidentiary rules can be construed as a form of due process protection, rendering them a comprehensive area of law suitable for examination. Second, evidence law is inseparable from the practical problems of fact-finding impediments, which are currently widely discussed in the international criminal justice discourse.
The Rome Statute contains a body of legal standards on elements of the offences, concepts of criminal responsibility and defences of unprecedented detail. Whereas these standards serve the International Criminal Court as normative framework, the principle of complementarity implies that domestic jurisdictions are to take the lead in the adjudication of international crimes.This article addresses the question whether domestic legislators and courts are bound to meticulously apply the international standards, or whether they are left some leeway to apply their own (criminal) law. The article starts with a survey of the actual performance of national jurisdictions. Current international law does not explicitly compel states to copy the international standards; at most one might argue that the codification of international criminal law and the principle of complementarity encourage harmonization.Capitalizing on the concept of 'open texture of law' and the methodology of casuistry, the present author argues that a certain measure of diversity in the interpretation and application of international standards is inevitable and even desirable. However, as a general rule, states have less freedom of interpretation in respect of the elements of crimes than in the application of concepts of responsibility and defences.
The fact that the International Criminal Court has not been granted universal jurisdiction exercisable
proprio motu
has often been criticized on the basis that it will leave some offences beyond its power to prosecute. This article investigates whether the drafters of the Rome Statute were necessarily wrong in deciding not to grant the court such jurisdiction. It concludes that to have given the Court universal jurisdiction would have been lawful under current international law, and would have provided a welcome reaffirmation of the concept. Still, the nature of the cooperation regime and of the Prosecutor's investigatory remit, would mean that such jurisdiction would be difficult, if not impossible, for the Court to use. As the Court has to operate in a world of sovereign States, not all of whom are sympathetic to it, the drafters' choice was a prudent one.
Applying a theoretical framework based on the incentives and disincentives for political branches to exercise universal jurisdiction to prosecute core international crimes, this article undertakes a global survey of contemporary universal jurisdiction cases and qualitative case studies of five states to analyze the current state of universal jurisdiction, predict its likely future evolution, and suggest a starting point for a realistic normative assessment of universal jurisdiction and for the institutional design of the universal jurisdiction regime.
On March 4, 2005, a car carrying Nicola Calipari and Andrea Carpani, members of the Italian Ministry of Intelligence, and Giuliana Sgrena, a journalist who had been taken hostage one month before and who had just been released and was on her way back to Italy, was traveling to the Baghdad Airport. The car was fired on by US forces from a checkpoint, killing Mr. Calipari and wounding Ms. Sgrena and Mr. Carpani. As a result of this tragic event, a joint investigation occurred and but Italy and the United States could not agree on the results. The United States determined that the soldiers involved had acted appropriately. Italy disagreed and on February 7, 2007, Mario Lozano, an U.S. Army National Guardsman, was indicted by Italian prosecutors who declared that Lozano can be tried in absentia because the case was policial. The trial occurred and the decision was announced on October 25th. Judge Spinaci ruled that the law of the flag, or the law of the soldier's sending state, prevails over a claim of passive personality jurisdiction in a case like this. This paper analyzes Judge Spinaci's decision and determines that he is correct. Absent another international agreement, the exercise of passive personality criminal jurisdiction over a combatant for combatant acts is inappropriate when the combatant's sovereign is seized of the case. Rather, because the combatant is acting on behalf of the sovereign, any claim against the combatant should be resolved through political means.
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