Section 2: Belgium Legislation
E. Belgium Supreme Court and Amendments of Law
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states, if the state they represent waives immunity;(iii) after they cease holding office (except for official acts); and (iv) before an international court.455
The third example of the Court is related to immunity ratione materiae, as aforementioned discussed (part C.3.7 of the first section); the ICJ’s view in this regard has been the subject of widespread criticism. As correctly stated by professor Sands, ‘Broad presumptions in favor of immunities -as reflected in the ICJ’s recent decision- can only lead to a diminished role for national courts, a watered-down system of international criminal justice, and greater impunity’.456
As a result, in attention to end to international impunity as a core goal’s exercise of universal jurisdiction, I must say that: solely personal immunity operates as a procedural defense in front of foreign national courts, even for crimes under international law. After the period of office, all State officials are punishable for committing such crimes, even if they have acted in official capacity on behalf of the State.
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Whereas, indeed, article IV of the Convention on the Prevention and Punishment of the Crime of Genocide provides that persons who have committed acts rendered criminal by the Convention shall be punished regardless of their official capacity:
That, nevertheless, article VI of that same Convention only provides for prosecution of such persons either before appropriate tribunals in the State or in whose territory the act was committed or before the International Criminal Court;
That it follows from the combination of these two provisions that immunity from jurisdiction is excluded in the case of prosecution before courts identified in article VI cited above but that immunity is not excluded if the accused is brought before the courts of a third State claiming jurisdiction that international law does not provide;
Whereas, moreover, article 27.2 of the Rome Statute of the International Criminal Court provided that immunities which may attach by reason of the official capacity of a person, in accordance with domestic law or international law, do not prevent the aforementioned court from exercising jurisdiction over such person;
That this provision does not impair the principle of customary international criminal law relative to jurisdictional immunity when the person who is protected is prosecuted, as in this case, before national courts of a state which asserts universal jurisdiction in the absence of the accused;
Whereas, finally, the Geneva Conventions of August 12, 1949 as well as the Additional Protocol I and II to these Conventions contain no provision that would prevent the defendant from invoking jurisdictional immunity before Belgian courts;
Whereas, without a doubt, under the terms of article 5.3, of the law of June 16, 1993, concerning the punishment of grave violations of international humanitarian law, immunity attaching to a person's official status does not prevent the application of the above-mentioned law;
Whereas, nonetheless, this rule of domestic law would contravene the principle of customary international criminal law on jurisdictional immunity if it were to be interpreted as having as its purpose to set aside the immunity sanctioned by such principle; that this domestic law cannot have such a purpose, but rather must be understood only as preventing the official capacity of a person from absolving the person from criminal responsibility for crimes enumerated by this law;
Whereas the ruling holds that these actions are not admissible;
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That means, by virtue of the reasoning substituted by this Court for that which the petitioners appeal, the criminal action brought against the defendant for acts of genocide, crimes against humanity and war crimes is in effect inadmissible”.457
Above-decision was, in practice, the first amendment to the law of 1993/1999 Belgium. This verdict was the start of domestic amendments for reducing the exclusive position of Belgium, as the world’s capital for universal jurisdiction.
The Law of 1993/1999 was amended by a law of 23 April 2003 in relation to immunity and creates a mechanism for filtering cases that did not constitute a minimum link with Belgium.
According to the law of April 2003, Article 5(3) of the law was modified by the following provision:
‘International immunity derived from a person’s official capacity does not prevent the application of the present law except under those limits established under international law’.458
The provision is made conditional upon the limits set by international law459. The law in its current form thus respects the observations of the ICJ that international law has firmly established that diplomatic and consular agents, certain high-ranking state officials such as Heads of State, Heads of Government and Ministers of Foreign Affairs enjoy both civil and criminal immunities from jurisdiction in other States.460 Also according to this amendment, article 7 of the law of 1993/1999 was replaced as following:
“Belgium courts shall have jurisdiction over the violations provided by the present law, independent of where they have been committed and even if the alleged offender is not located within Belgium. The criminal action will nonetheless be subject to the request of the federal prosecutor if:
457Abbas Hijazi and others V. Sharon and others, Belgium, Court of Cassation, 12 February 2003, English translation of the decision, In: 42 ILM 2003, pp.599-600 458Belgium, Amendment 23 April 2003, In: 42 ILM 2003, p.755
459Smis and Borght, op-cit, p.743 460Ibid
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1. The violation was not committed on Belgian territory 2. The alleged offender is not Belgian 3. The alleged offender is not located within Belgian territory 4. The victim is not Belgian or has not resided in Belgium for at least three years”.461
On August 5, 2003, the Belgian legislature completely reviewed the 1993/1999/2003 law by eliminating it as a stand-alone law and integrated it into in the penal code and in the code of criminal procedure.462
In accordance with article 1bis, paragraph1, of the Belgium’s Code of Criminal Procedure:
In accordance with international law, there shall be no prosecution with regard to:
- Heads of State, heads of government, and ministers of foreign affairs, during their terms of office, and any other person whose immunity is recognized by international law;
- Persons who have immunity, full or partial, based on a treaty by which Belgium is bound.463
In accordance with article 12bis of Belgium’s Code of Criminal Procedure maintenance the principal of universal jurisdiction in Belgian law, but it is a jurisdiction limited to what conventional and customary international law, that is to say a ‘universal jurisdiction called territorial’, sine it requires that the prosecuted person be in Belgian territory.464
By limiting the exercise of universal jurisdiction to the case where the presumed perpetrator of a crime of international law is located in Belgium, one does not , however, exclude the right of the public prosecutor to open an investigation against the perpetrator even if he or she is not located in Belgium, in exactly the same manner as these investigations can be opened by the public prosecutor regarding a extraterritorial offenses for which the perpetrator is not located in Belgium.465
461Amendment 23 April 2003, op-cit, p.755 462David, op-cit, p.367
463Law on grave breaches of international humanitarian law, 5 August 2003, In: 42 ILM 2003, p.1265
464Bush (Ct. Cass) (Belgium), Journal Des Tribunaux, Sept.24, 2003, at 639 (Conclusions of Attorney General J. Spreutels), In: David ,op-cit, p.376
465L. Zegveld, The Bouterse Case, 32 Neth. Y. B. Int'l L.97,108(2001), at 112; Institute of International Law, Warsaw session, Res. of Aug.26, 2005, §3(b) (2005);
Code of Criminal Instruction, art.28bis, combined with art.24.In: David, Ibid
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Belgium has gone from employing an absolute universal jurisdiction to a universal jurisdiction limited only to the demands of international law466. In addition to the strict provisions on extraterritorial jurisdiction, the new position in Belgian law is that only the Federal Prosecutor has the competency to initiate a prosecution for war crimes, crimes against humanity and genocide, committed abroad.467
The new law has also reduced the victims’ ability to obtain direct access to the court-unless the accused is Belgian or has his primary residence in Belgium, the decision whether or not to proceed with any complaint now rests entirely with the federal prosecutor, complaints will have to show a direct link between themselves and the alleged crimes; however the federal prosecutor may initiate proceedings relating to a case that has no link with Belgium if so required by an international treaty or customary law.468
Where the crimes took place outside Belgian and the accused are not Belgian, the government may refer cases to the ICC or to the courts of a country that accepts the ICC jurisdiction, or even to a country that has not accepted this jurisdiction, provided it has a fair judicial and democratic system.469
466Ibid, p.381
467Smis and Borght, op-cit, p.745 468Beigbeder, op-cit, p.54 469Ibid, pp. 54-55
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