UNIVERSAL JURISDICTION FOR INTERNATIONAL CRIMES : THE CASE OF BELGIUM

Transcription

1 1. UNIVERSAL JURISDICTION FOR INTERNATIONAL CRIMES : THE CASE OF BELGIUM Introduction - Definition - Origins I. The law provides for a universal jurisdiction aimed at implementing international rules binding Belgium - International conventions - International custom II. The law provides for a universal jurisdiction going beyond international rules binding Belgium - International crimes but no UJ - UJ for non international crimes - UJ in absentia

2 I. The law provides for a universal jurisdiction aimed at implementing international rules binding Belgium A. Universal jurisdiction under international conventions - The aut dedere aut judicare rule - Universal jurisdiction subject to a request for extradition from another State party to the convention - From a case by case adaptation of the Belgian law to some conventions (aviation terrorism, The Hague, 1970, and Montreal, 1971; terrorism, Strasbourg, 1977; nuclear materials, Vienna, 1980) to Art. 12 bis of the Preliminary Title of the Code of Criminal Proceedings (CCP) - Other conventions (War crimes, Geneva, 1949 and 1977; drugs traffic, UN, 1961, 1971, 1972) 2.

3 B. Universal jurisdiction under international custom 3. - Through a law : genocide and crimes against humanity (law of 16 June 1993 as amended on 10 February 1999) - Without a law : Greenpeace case (App. Antwerpen, 19 July 1985; Cass., 19 Dec. 1986); Pinochet case (Brussels, 6 Nov. 1998)

4 II. The law provides for a universal jurisdiction going beyond international rules binding Belgium A. Universal jurisdiction for crimes not subject to compulsory universal jurisdiction according to international law - sexual offences, procuring, traffic in persons (1949 UN Convention; 2 nd 2000 AP to the Convention on the Rights of the Child; AP to the 2000 Convention on Transnational Organized Crime; Preliminary Title of the CCP, Art. 10 ter) - corruption and bribery (1996 and 1997 EU Conv.; 1997 OEDC Conv.; 1999 CoE Conv.; Preliminary Title of the CCP, Art. 10 quater) - maritime pollution (1973 MARPOL Conv.; 1982 Montego Bay Conv.; law of 6 April 1995, as amended by the law of 29 Jan. 1999, Art. 17 bis) 4.

5 B. Universal jurisdiction for crimes not criminalised by international law : war crimes committed in non international armed conflicts (1993 law) C. Universal jurisdiction in conditions not provided for by international law : universal jurisdiction in absentia 1. Universal jurisdiction in absentia in international law - an implicit approval by the ICJ - a more or less explicit approval by 7 judges against an explicit condemnation by 4 judges - the Lotus precedent (1927) - the provisions referring to national law in most international criminal law conventions since the Tokyo Convention of the doctrinal position (2001 Princeton Principles; 2002 Brussels Principles) 5.

6 2. Universal jurisdiction in absentia in Belgian law 6. - the controversy relating to Art. 12 of the Preliminary Title of the Code of Criminal Proceedings - the errors in the travaux préparatoires of the 1993 law and the intent of the legislator - the rulings of the Brussels Chamber of indictments (Yerodia case, 16 April 2002; Sharon case, 26 June 2002) - the judgements of the Cour de cassation (22 Nov and 12 Febr. 2003)

7 3. The 2003 amendments to universal jurisdiction in absentia - the origins : to put an end to the wave of complaints lodged in Belgium from the Rwandan cases to Tommy Frank (Pinochet, former Cambodian leaders, Rafsanjani, Yerodia and Kabila, P. Kagame, D. Basri, H. Habré, S. Nguesso, A. Patassé, L. Gbagbo, P. Biya, A. Sharon et al., Y. Arafat, leaders of the Western Sahara, G.W. Bush sr. et al., T. Franks et al.) - the reasons : possibility of universal jurisdiction in absentia (1993 law, Art. 7) + right of the victims to lodge directly a complaint before an investigating judge (Code of Criminal Proceedings, Art. 63 ff.) + lack of immunity of a foreign official (1993/1999 law, Art. 5 3) 7.

8 - the means (new Art. 7) : to introduce some filters if there is no link between the crime and Belgium (crimes committed abroad by foreigners against foreigners and absence of the presumed author in Belgium) : - opening of the case subject to the approval of the federal prosecutor if no forum more conveniens (the territorial State, the national State, the State where the presumed author is found) (Art. 7 1) - the power of the Government to refer the case to the ICC; if the ICC does not take up the case, the Belgian justice remains seized with the case (Art. 7 2) 8.

9 - the power of the Government to refer the case to a foreign State (the territorial State, the national State or the State where the presumed author is found) and respecting the rules of due process; if no follow up, the Belgian justice remains seized with the case (Art. 7 3) - the power of the Government to remove the case from Belgian justice to a foreign State respecting the rules of due process and having a law punishing IHL crimes (Art. 7 4) - the removal of the case is decided by the Cour de cassation 9.

10 - Problems (Council of State opinion) : Discrimination between the victims who can obtain justice and the victims who cannot (Constitution, Art. 10, 11, 191) - Possible blow to the principle of separation of powers: has the Cour de cassation full jurisdiction to adjudicate the removal of the case or is it a mere chamber of confirmation for the governmental decisions? - No criteria for the choice of the government between a mere referral of the case to a foreign State and a definitive removal of the case

11 11. Conclusions - The 2003 amendments : a setback - A setback consistent with the double standards in international criminal justice : cfr. the post war IMTs, the ICTs and the ICC - In international relations, power continues to prevail over justice

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