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February 27, 2003 Belgian
Court Upholds Universal Jurisdiction, But Law’s Future is Uncertain The Belgian Supreme Court has given a green light for the renewed prosecution of suspected war criminals in Belgium by reaffirming the country’s much-debated law of universal jurisdiction. In a ruling delivered on February 12, the court announced that investigations could be launched under the universal jurisdiction law even against suspects who were not physically present in Belgium. The decision overturned an earlier ruling by a lower court that dismissed a case against Israeli Prime Minister Ariel Sharon for his role in the 1982 Sabra and Shatila massacres on the grounds that he was not already in Belgium to face trial. In delivering its ruling, the Supreme Court (or Cour de Cassation) said that Sharon could not be prosecuted as long as he remained prime minister, since his office gave him immunity. However it said that the case against Sharon’s co-defendant, the former Chief of Staff of the Israeli Army Amos Yaron, could now proceed. One of the lawyers who brought the case against Ariel Sharon, Chibli Mallat, described the decision as "one of the most important rulings there has been in international law". However the Israeli government reacted with fury. Foreign Minister Binyamin Netanyahu accused Belgium of harming "not only Israel but also the entire free world" and warned that Israel would respond "with severity". Israel’s ambassador to Belgium was recalled for consultations. According to a report in the Israeli newspaper Ha’aretz, the head of the Shin Bet internal intelligence service, Avi Dichter, recently cancelled a trip to Belgium for a scheduled conference out of concern that he might be arrested in connection with Israeli actions in the Occupied Territories. Belgium’s "Anti-Atrocity Law" was originally passed in 1993. It is the most far-reaching application of the principle of universal jurisdiction anywhere in the world, giving victims the right to prosecute suspected war criminals from any country of origin in Belgian courts. The law prompted the launching of private cases against numerous current or former political leaders, including Yasser Arafat, Fidel Castro, and Saddam Hussein. These cases have all been in suspension since the lower court ruling last year. The case that may now be the first to come to trial is that of the former dictator of Chad, Hissene Habre. Habre, who has been accused of torture and crimes against humanity, is currently living in Senegal. After earlier attempts to prosecute Habre in Senegal faltered, the country’s president said he would be willing to hand Habre over to be tried in a third country if he could be guaranteed a fair trial. The longer-term future of the Anti-Atrocity Law remains uncertain. The Belgian government is concerned about the diplomatic complications the law has caused, and legislation to modify it has been introduced in the Belgian legislature. Under the proposed amendments, victims would only have the automatic right to launch cases under the following circumstances: if the alleged crime took place on Belgian territory; if the alleged criminal is Belgian; if the alleged criminal is present on Belgian territory; or if the victim is Belgian or has been living in Belgium for one year. If none of these conditions apply, it would be up to the discretion of the prosecutor to decide whether to begin an investigation when a complaint was filed. These amendments (which also incorporate the principle of temporary immunity for serving heads of state, prime ministers and foreign ministers, in line with a recent ruling by the International Court of Justice) are seen as acceptable by some human rights organizations. According to Geraldine Mattioli of Human Rights Watch, the proposed changes represent "a reasonable compromise." Even with them, she believes, "the Belgian law would remain extremely progressive in terms of international criminal law, and would preserve Belgium’s place in the forefront of the fight against impunity." However, with parliamentary elections due this spring, the amendments appear in danger of faltering. They were passed by the Senate on January 30, but have been stuck in the Chamber of Deputies since then. The two Liberal parties in the governing coalition, who had agreed to support the proposed changes, appear to have changed their mind in the aftermath of the Supreme Court’s recent ruling. If the amendments are not accepted by both houses before the parliament is dissolved in early April, they will lapse. There are indications that the Liberal parties may intend to push for a tougher amendment in the next legislative session, removing the right of non-Belgian citizens to file cases altogether. "The opponents of the law appear to be organizing themselves for an attempt to propose new legislation that would seriously undermine the Anti-Atrocity Law," Geraldine Mattioli observes. Related chapters from Crimes of War: What the Public Should Know: Arab-Israeli
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