On learning lessons: Belgium’s universal jurisdiction law under threat

In an unprecedented act of interference in a sovereign state’s judicial and political processes, the US government yesterday forced the Belgian government to gut Belgium’s admirable and progressive universal jurisdiction legislation (anti- atrocity law), which had already undergone careful reconfiguration in Belgium’s parliament two months ago. The US feared that this law, which incorporates international law into Belgian national law, might lead to the prosecution of US military or governmental officials, or their possible arrest in Belgium. Numerous legal impediments to these possibilities exist. Belgium outlined all of them in an attempt to deflect US pressure, but to no avail in the face of US Secretary of Defense Donald Rumsfeld’s strong-arm techniques of persuasion.

Although it was highly unlikely that any cases brought against US officials in Belgium would ever have gotten past the post and reached investigative and trial stage, and despite the Belgian government’s deferral of all cases thus far brought against American governmental and military officials back to the United States, Rumsfeld kept up the pressure on Belgium by threatening to withhold massive funding for NATO operations and building projects, and even warned repeatedly that the US would move NATO out of Belgium altogether unless the law was watered down.

Economically speaking, such a move against Brussels would be tantamount to taking the New York Stock Exchange out of Manhattan. Very few countries could have withstood such pressures, and the Belgian government has now capitulated, posing the risk of rendering its universal jurisdiction law barely universal. These disturbing developments are expected to weaken a number of high profile, legally sound attempts at attaining international justice in Belgian courts, primarily a case against former Chadean dictator Hissene Habre and the landmark case against Ariel Sharon, Amos Yaron, Rafael Eitan and other Israelis and Lebanese for their roles in the as-yet uninvestigated Sabra and Shatila massacres of 1982, a war crime that the Belgian Supreme Court recently ruled warranted a full legal investigation.

Gloating over his success at forcing Belgium’s compliance with questionable US conceptions of global justice, Rumsfeld said approvingly of Belgian obedience yesterday that: “Belgium has learnt its lesson: there are consequences to its actions.”

Ironically, it was precisely this very lesson that Belgium’s universal jurisdiction law was designed to impart to war criminals and rights violators throughout the world: “If you violate the Geneva Conventions, the Convention for the Prevention of Torture or the Convention for the Prevention of Genocide, know that you cannot enjoy impunity. You will not escape justice; there will be legal and judicial consequences to your actions.” Thousands of victims and survivors of grave human rights abuses, torture, genocide, and crimes against humanity face a darker and more dangerous world today, while those who tormented them and murdered their families can breathe easier now, knowing that “business as usual” will continue and their chances of ever being brought to book for their crimes are once again slight.

Some analysts have stated that Belgium’s law was no longer relevant anyway, given the establishment of the International Criminal Court (ICC) at the Hague last year. But that new court, a landmark achievement in the history of International Law, cannot hear cases of war crimes, crimes against humanity, or genocide pre-dating 1 July 2002. Atrocities committed before that date will never be investigated or prosecuted without either the formation of special international criminal tribunals or the use of national venues such as that offered by Belgium.

Although many commentators and analysts have attempted to depict the Belgian universal jurisdiction law as bizarre, extreme, embarrassing, outrageous, or even dangerous, it is nothing of the sort. In fact, the Belgian universal jurisdiction legislation of 1993, 1999 and 2003 simply formalized and codified in Belgian national law what is expected of every state that is a signatory to the Geneva Conventions: to prosecute or extradite anyone guilty of the most heinous crimes known to humanity.

For acts of torture, war crimes (i.e., any grave breach of the Geneva Conventions), and crimes against humanity, the jurisdiction for prosecution is not simply territorial, but universal. All countries have not only the right, but also the duty, to prosecute such criminals in the interests of protecting all of humanity by denying criminals any sanctuary or immunity. Belgium simply took this principle seriously and put it into practice, enframing it in its national law and guiding it with clear and careful policies. Would that all countries followed Belgium’s lead! No Belgian official should have to express embarrassment or shame over the universal jurisdiction law. The law should instead be celebrated as a reason for national pride and advanced as a lesson in courageous and principled legislation from which others can learn and draw inspiration.

For supporters of the global campaign against impunity for war crimes and crimes against humanity, the clock has now been set back dramatically following the Belgian government’s decision to bow low to irrational US demands. In a world dominated by a lone superpower hostile to the concept of international humanitarian law and global justice, those committed to halting the worst abuses humanity can inflict on itself by preventing impunity confront immense tasks.

First and foremost among these tasks is the job of educating the public — journalists, educators, students, and local and national decision-makers — about the role and importance of international humanitarian law and international human rights law. These laws belong to all of us. They are meant to protect everyone from harm and abuses of power; they are not meant to protect the elite, the well connected, and the powerful from oversight and accountability. Only in an atmosphere of profound public ignorance of the precepts, principles, and practice of international law could Belgium’s universal jurisdiction legislation be successfully passed off as more dangerous than the criminals it is meant to apprehend and the crimes it was enacted to obstruct.

The intricate framework of International Law, one of the noblest accomplishments of the bloody 20th century, is now under serious assault. Fierce US opposition to the ICC, coupled with yesterday’s developments in Belgium, limit or weaken the venues in which victims of atrocities can seek redress. Protecting, preserving, and advancing the ever-evolving body of international law is a priority and a duty for all of us, not only for our sakes or the sake of those who have suffered unspeakable wounds in the past, but more so for the coming generations, who stand to lose much if the current climate of disregard and disrespect for International Justice is allowed to flourish and further erode the emerging global framework of accountability, a framework that Belgium did so much to advance and improve.

Chibli Mallat (L), Luc Walleyn (M) and Michael Verhaeghe (R)

The International Campaign for Justice for the Victims of Sabra and Shatila has endeavored to play its small part in this crucial educational effort. We are moved by the concern and letters of support we have received from people throughout the world, thankful for the hard work of the lawyers, Luc Walleyn, Michael Verhaeghe, and Chibli Mallat; amazed by the courage of the survivors of the massacre, and grateful that our case has progressed as far as it has in Belgium’s judicial system.

A landmark Belgian Supreme Court ruling found in favor of the Sabra and Shatila plaintiffs last February, and despite the aforementioned unprecedented and unprincipled US pressures, our case may yet go forward in the Belgian courts. We have not reached the end of the road or abandoned hope, since the Belgian parliament and public have yet to weigh in on Donald Rumsfeld’s draconian demands. In addition, the option to pursue the case in another venue, in Europe or elsewhere, remains a distinct possibility.

As Amnesty International and Human Rights Watch both note in their analyses of the use of the principle of universal jurisdiction in national courts, the most important ingredient for successful prosecution of war crimes and crimes against humanity in national venues is the political will to put teeth into international law. The Belgian people are to be commended for going farther than any other country in doing just that. Perhaps their courage, initiative, and commitment to international justice will inspire other countries to pursue a similar path by offering up their national courts for international criminal prosecution of the worst crimes known to humanity.

Laurie King-Irani is North American Coordinator International Campaign for Justice for the Victims of Sabra and Shatila. New updates, analyses, op eds, and reports will be added to the Campaign’s website www.indictsharon.net in the coming days. Please check back and spread the word.