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[casi] Rumsfeld Wrong to Attack Belgian Human Rights Law

1) Rumsfeld Wrong to Attack Belgian Human Rights Law

2) A revised Human Rights Watch Backgrounder on the Belgian law


CONTACT:  Human Rights Watch
Newsroom: 212-290-4700

Rumsfeld Wrong to Attack Belgian Human Rights Law

(BRUSSELS - June 13 - U.S. Defense Secretary Donald H. Rumsfeld was wrong to
attack Belgium's "anti-atrocity" law, Human Rights Watch said today.
At a news conference in Brussels Thursday evening, Rumsfeld threatened
Belgium that it risked losing its status as host to NATO's headquarters if
it did not rescind a law that permits prosecutions in Belgium for atrocities
committed abroad.

That law has resulted in a landmark trial of four Rwandans for involvement
in the 1994 genocide in their country and the lodging of dozens of other
complaints against foreign leaders, including U.S. officials. After both
Belgian politicians and human rights groups expressed concern over potential
abuse of the law, however, the Belgian parliament adopted amendments in
April 2003 to create "filters" that limit the ability of victims to directly
file cases with no connection to Belgium and to authorize the government to
refer cases to other countries.

"The Belgian law offers a court of last resort for atrocity victims, and it
now provides ample protection against misdirected cases," said Reed Brody,
counsel with Human Rights Watch. "Rumsfeld should have read the new law
before lashing out."

Under the new amendments, the Belgian government recently referred to the
United States a case against Gen. Tommy Franks, the American commander of
the Iraq war.

A revised Human Rights Watch Backgrounder on the Belgian law can be found


A revised Human Rights Watch Backgrounder on the Belgian law

Human Rights Watch

Revised, June 2003

What does the Belgian anti-atrocity law provide ?

The 1993 law, amended in 1999 and again in 2003, gives Belgian courts the
authority to
prosecute persons accused of genocide, crimes against humanity or war crimes
of where the crimes took place or whether the suspect or the victims are
Amendments adopted in April 2003 create “filters” that limit the ability of
victims to
directly file cases with no connection to Belgium and also authorize the
government to
refer certain cases to other countries.

What is the legal basis for this law?

The Belgian law puts into practice the international law principle of
jurisdiction" which holds that every state has an interest in bringing to
justice the
perpetrators of particular crimes of international concern, no matter where
the crime was
committed, and regardless of the nationality of the perpetrators or their
victims. A
principal reason why international law provides for universal jurisdiction
is to ensure that
there is no "safe haven" for those responsible for the most serious crimes.

Why is this law important?

Prosecutions based on universal jurisdiction are an essential part of the
emerging system
of international justice. They help to break down the wall of immunity with
which tyrants
and torturers protect themselves in their own countries.

Who may file complaints under the Belgian law?

The state prosecutor may present charges to a court. In addition, as in most
civil law countries, in Belgium victims have the right to file criminal
directly before an investigating judge (juge d'instruction). However,
amendments to the
law adopted in 2003 limit the right of victims to file complaints directly
to cases in which
there is some link between Belgium and the crime (see below).

Which other countries have universal jurisdiction laws?

The United Nations Convention against Torture and Other Cruel, Inhuman or
Treatment or Punishment, ratified by 132 countries, obliges states to
prosecute -- or to
extradite for prosecution -- persons on their territory accused of torture,
no matter where
the torture was committed. Similarly, the Geneva Conventions, ratified by
almost allഊcountries, prescribe that states parties must search for persons
alleged to have committed
grave breaches of the Geneva Conventions (that is, war crimes), and bring
such persons,
regardless of their nationality, before their own courts. According to a
study by Amnesty
International, most states have given their courts universal jurisdiction
over at least some
crimes. Amnesty International, Universal jurisdiction: The duty of states to
enact and
implement legislation,
In addition to universal jurisdiction, many countries, such as France, give
their courts
competence to investigate and even try a crime committed abroad against one
of their
nationals (the "passive personality" basis of jurisdiction) whether or not
the suspect is in
the country.

Until recently, Belgium was one of the rare countries (together with Spain)
which had a
practice of undertaking investigations into charges of atrocities committed
abroad even
when none of its citizens was a victim and the suspect was not in the
country. In the last
two years, however, a number of countries, such as Australia, Germany, New
and South Africa, have amended their laws, after joining the International
Criminal Court
(ICC), to provide for the opening of investigations without any such nexus
What cases have been tried under the Belgian law?

There has been only one trial thus far. Four Rwandans were convicted in June
2001 by a
Belgian jury on charges of involvement in the 1994 genocide in their
country. Most
observers considered the trial exemplary.

What are some other recent prosecutions under universal jurisdiction?

Following the genocides in the former Yugoslavia and Rwanda, a number of
countries, including Austria, Denmark, Germany, the Netherlands and
brought alleged perpetrators to trial on the basis of universal
jurisdiction. A Danish
prosecutor on November 19, 2002 initiated an investigation of Nizar
al-Khazraji, former
chief of staff of Iraq's armed forces, for his suspected involvement in war
perpetrated in Iraq against Kurdish civilians during the 1980-88 Iran-Iraq
The classic recent case of an attempted universal jurisdiction prosecution
was Spain’s
indictment of Gen. Augusto Pinochet. Spain charged Pinochet for crimes
mostly in Chile and mostly against Chileans and then sought to obtain his
presence for
trial via extradition from Great Britain. (Belgium also indicted Pinochet
and also sought
his extradition to stand trial, as did France and Switzerland).

Who has been sued under the Belgian law?

Cases have been filed in Belgium against Mauritanian President Maaouya ould
Sid'Ahmed Taya, then-Iraqi President Saddam Hus sein, Israeli Prime Minister
Sharon, Ivory Coast President Laurent Gbagbo, Rwandan President Paul Kagame,
President Fidel Castro, Central African Republic President Ange-Felix
Patassé, Republic
of Congo President Denis Sassou Nguesso, Palestinian Authority President
YassirഊArafat, former Chadian President Hissène Habré, former Chilean
President Gen.
Augusto Pinochet, former Iranian president Hashemi Rafsanjani former
interior minister Driss Basri, former Foreign Minister Abdoulaye Yerodia
Ndombasi of
the Democratic Republic of the Congo, among others. Many of these cases have
not been
actively pursued, however, and a recent rulings on state immunity bar states
prosecuting certain sitting foreign officials. The cases against Gbagbo,
Ndombasi and Sharon have been dismissed.

How did the 2003 amendments change the Belgian law?

The April 2003 amendments to the Belgian anti-atrocity law limit the ability
of victims to
file complaints directly and grant the Belgian government the power to
transfer some
cases out of Belgium. They also contain provisions designed to harmonize the
law with the Rome Statute of the ICC and international law on immunity.

Victims can now file suits directly only if there is a link between the
crime and Belgium.
Such a link exists if the suspect is on Belgian soil, if the crime took
place in Belgium, or
if the victim is Belgian or has lived in Belgium for at least three years.
If this link does
not exist, cases may now only be brought by the state prosecutor. However,
prosecutor must go forward with a case presented by victims unless one of
four criteria is
met: the complaint is manifestly without merit; the complaint does not
allege a violation
of the anti-atrocity law; the complaint does not fall within the competence
of the Belgian
courts; or, in the “interests of justice” and respect for Belgium’s
international obligations,
the case should be transferred to another court, so long as that
jurisdiction upholds the
right to a fair trial. The victims may appeal the prosecutor’s decision not
to move

In addition, the Belgian government can now step in to send many cases
elsewhere. One
amendment allows the Belgian government to refer pending cases to the
accused’s home
state or the state in which the accused is present if that state upholds the
right to a fair
trial. If that state does in fact take the case up, then the Belgian courts
will dismiss the
case. Another amendment provides that if the victim is not Belgian, the
government can
transfer the case to the accused’s home state, so long as that state upholds
the right to a
fair trial and has laws that criminalize the grave human rights violations
covered by the
Belgian law. (For cases filed before the 2003 amendments, the government
must first
seek the non-binding advice of an appeals court regarding the four criteria
above.) The case is then dismissed even if the other state decides not to
act on the
complaint. This provision is very controversial because it allows the
government to
interfere with pending cases and opens the door to political and diplomatic
over every case that is filed.

Finally, the amendments allow for cooperation between Belgian courts and the
established ICC and align the Belgian definitions of crimes with those in
the ICC statute.
They also recognize state immunity to the extent established by
international law.
What about the case against Tommy Franks?ഊIn May 2003, Iraqi victims
alleging U.S. war crimes filed charges with the state prosecutor against
U.S. Gen. Tommy Franks and other military officials. Before the
prosecutor made a final decision as to whether to press charges, the Belgian
announced that, under the new amendments, it was referring the case to the
United States.
The victims are seeking to appeal this decision.

What happened to the case against Ariel Sharon?

In the case brought against Ariel Sharon, former Israeli General Amos Yaron
and others
for their alleged role in the 1982 Sabra and Shatilla massacres, the Belgian
Court of
Cassation, ruling in February 2003, dismissed the charges against Sharon
pursuant to
principles of customary international law regarding immunity for sitting
heads of
government, but held that the case could go forward against Yaron. In June
2003, an
appeals court rejected the defense’s other arguments against admissibility.
The case will
thus go forward unless the government steps in.

What other cases now stand a good chance of being tried before the Belgian

The case against Chad's exiled former president, Hissène Habré, may be the
next in line
after a Belgian judge and police team visited Chad last year to investigate
the charges.
The Belgian government has said that it will not seek to block this case.
Habré lives in
exile in Senegal, where he was indicted two years ago on charges of torture
and crimes
against humanity before the Senegalese courts ruled that he could not be
tried there. The
president of Senegal has agreed to hold Habré pending an extradition reque
st from
Belgium and the government of Chad has told Belgium that it would waive any
that Habré might seek to assert. More information on this case can be found

Why is the Belgian law needed now that the International Criminal Court
(ICC) has
come into being?

The establishment of a permanent ICC is among the most significant events in
the global
fight against impunity. The ICC has jurisdiction over cases of genocide, war
crimes, and
crimes against humanity when national courts are unable or unwilling to
prosecute. While
the ICC will be a powerful tool to attack the worst atrocities, it will not
eliminate the need
to bring prosecutions based on universal jurisdiction. First, the ICC’s
jurisdiction is
prospective only - addressing crimes committed after its statute went into
effect on July
1, 2002. Second, the ICC will only be able to handle a limited number of
cases. Finally,
the ICC suffers from a jurisdictional regime which requires that, in the
absence of a
Security Council referral, either the state on whose territory the crimes
were committed
or the state of nationality of the accused be a party to the statute or
consent to jurisdiction.
Many future atrocities may thus be outside of the court’s reach.

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