Debating Universal Jurisdiction in Belgium

January 25, 2003

Debating Belgium’s War-Crime Jurisdiction

For two and half years in the late 1980’s, Souleymane Guengueng was imprisoned in Chad, tortured and starved as he watched fellow inmates die around him. Packed into a 7-by-3-foot windowless cell that he shared with eight other prisoners, he pledged to inform the world of the ruthlessness of Chad’s dictator, Hissène Habré, if he survived.

Now, 12 years later, Mr. Guengueng, a 53-year-old accountant, is trying to do just that.

Since his release following Mr. Habré’s overthrow in 1990, Mr. Guengueng has been documenting the abuses of the former regime, hoping to force Mr. Habré — accused of some 40,000 political killings during his eight-year rule — to stand trial. Mr. Guengueng couldn’t bring a case in Chad, because many of the torturers from the old regime remain in government. And Senegal, where Mr. Habré now lives, refused to prosecute. But Mr. Guengueng and others have a case pending against him — in Belgium.

Over the last decade, the Belgian justice system has become a magnet for human rights advocates and atrocity victims around the world because of its unusually liberal law granting its courts “universal jurisdiction” — which means it can prosecute anyone who has committed genocide, war crimes or crimes against humanity anywhere in the world. Although other countries have similar laws, Belgium’s is particularly broad, and its judges are unusually willing to use it.

By the end of the 1990’s, some 25 cases were pending there, charging the most heinous international crimes against leaders like Yasir Arafat and Fidel Castro. But now, that law is the subject of a bitter legal and political dispute, which it may not survive.

The controversy started in 2001, when the survivors of the 1982 massacres at the Sabra and Shatila refugee camps in Beirut by pro-Israeli Christian Lebanese militia filed a criminal complaint in Belgium against Israel’s prime minister, Ariel Sharon, who was minister of defense in the early 1980’s. Soon, the law that had won widespread praise was being attacked by lawyers, business leaders and foreign governments — in particular, the United States and Israel.

Last summer, a Belgian appeals court dismissed the case against Mr. Sharon, deciding for the first time that Belgium can proceed only against accused criminals who are physically on its territory. That decision sparked a contentious debate in Belgium. At the moment, the country’s highest court is preparing to hear an appeal by the Palestinians while human rights advocates lobby the Belgian Parliament to restore the law’s original scope. Belgian business groups and American and Israeli diplomats are urging the opposite result. Two bills — both of which would nullify the court’s decision in the Sharon case and substantially restore the original law — are pending in Parliament. Last week the Belgian prime minister, Guy Verhofstadt, said he supported those amendments, and on Wednesday the Senate Justice Commission voted in favor of them.

Although this case is now making headlines in Europe, the idea of “universal jurisdiction” was already the subject of intense debate in the scholarly world.

No one argues with the goal of ending impunity for the world’s worst human rights criminals. The question is how. How do you ensure due process? How do you balance achieving justice against practical political considerations? “What do you do when there’s tension between the ideals of justice and the need for peace, democratization and stability?” asked Gary Jonathan Bass, author of “Stay the Hand of Vengeance: The Politics of War Crimes Tribunals” and assistant professor of politics at Princeton University. Winning peace may require making a deal with the devil, Professor Bass explained — allowing a tyrant to get away, literally, with mass murder.

In Chile, in return for his surrender of power in 1990, the dictator Augusto Pinochet received immunity from prosecution as “senator for life.” This week, Defense Secretary Donald H. Rumsfeld suggested that providing amnesty for Saddam Hussein would be a “fair trade” to avoid a war.

Others scholars, meanwhile, question whether the law can be fairly applied. “It might be applied only against weak and vulnerable countries, or politically applied and therefore create unenforceable claims and discredit the process,” said Richard Falk, professor of politics and international law at Princeton and author of numerous books on international justice. “The question is, Is it better to do what you can even if it’s very modest, or to try to do nothing and avoid double standards?”

Originally used to prosecute pirates, the principle of universal jurisdiction allows any country to prosecute a small number of crimes — regardless of where, when or by whom committed — that are considered so heinous, dangerous and internationally condemned that they offend all of humanity. Although arguably the basis for Israel’s trial of Adolf Eichmann in 1961, it seemed largely forgotten until 1998, when a Spanish judge invoked universal jurisdiction to extradite Mr. Pinochet from London to stand trial in Spain.

Scholars’ recent interest in universal jurisdiction, Professor Falk said, is a byproduct of the cold war’s end, when security, for a time, seemed less pressing and humanitarian concerns commanded attention. “Beginning with the former Yugoslavia, criminal accountability for crimes of state leaders became an important international concern,” he said. That led to the two ad hoc United Nations tribunals that were created after the genocides in the former Yugoslavia and Rwanda, and culminated last year in the surprising creation of the International Criminal Court.

But this court doesn’t eliminate the need for using domestic courts to pursue international outlaws, legal experts say. “The I.C.C. only has jurisdiction over crimes committed in a country or by nationals of a country that has ratified the statute,” said Reed Brody, special counsel for Human Rights Watch and a lead lawyer on the Habré case. Many countries — including the United States, Israel, Russia and China — have not. (The United States wants all Americans exempted from prosecution, arguing the court might stage politically motivated trials of its senior leaders). Furthermore, the new court can prosecute crimes committed only after it came into existence — on July 1, 2002.

In the hopes of creating consensus on how to pursue universal justice, 30 law professors, judges, diplomats and lawyers from around the world met at Princeton two years ago to draft a set of principles to guide judges and legislatures. The resulting “Princeton Principles on Universal Jurisdiction,” which will be published with a collection of essays by the University of Pennsylvania Press, reflect the broadest version of Belgium’s law. The guidelines encourage domestic courts worldwide to prosecute heinous war criminals even if they have no connection whatsoever to the country sitting in judgment — so long as they provide “international due process norms” and other safeguards.

Such formulations don’t solve the current dispute in Belgium, though. “Belgium is a small country,” said Michèle Hirsch, who represents Israel in the Sharon case. “We cannot be the judge of the world.”

To the law’s supporters, though, it is a moral imperative. “Genocide and crimes against humanity should not be accepted in the world today, just as terrorism isn’t accepted,” said Senator Alain Destexhe, a member of the Belgian Parliament. “Universal jurisdiction is a strong political commitment for peace, stability, rule of law and democracy.”

Mr. Destexhe insists the law’s critics, including the United States, are being unnecessarily alarmist. “The objective is to go after the worst criminals in the world who commit crimes against humanity and genocide. It’s not to go after the U.S.”

One of the two amendments approved by the Senate Justice Commission on Wednesday would require that in the future, for victims to file a case without prior approval from a judge, the victims or the accused must have a connection to Belgium. The other would prohibit prosecuting government officials while they’re in office, a change demanded last February by the International Court of Justice in the Hague.

At the moment, victims like Mr. Guengueng are fighting to pursue their cases. “Many people have exposed themselves to physical and emotional intimidation in coming forth to testify against the former regime,” he wrote in an editorial published in the Belgium newspaper La Libre Belgique in November. “They had faith in Universal Jurisdiction.” he added. “The victims of Hissène Habré’s repressive regime depend on Belgium to exercise this moral obligation.”

Despite the legal hurdles, Mr. Guengueng remains optimistic. As he said during a recent trip to New York, “I still believe justice will be done.”