Prepared by Chibli Mallat, Michael Verhaeghe, Luc Walleyn and Laurie King-Irani, 19 February 2003.
The following background explanation to the Belgian Supreme Courts landmark decision comes in two parts: the first is the report of the Procureur-Général auprès de la Cour de Cassation (PG), who represents the State in the civil law system as interested party responsible for public order in criminal cases. In his report, the PG called for the rejection of the appeal in cassation on the grounds that the mere fact of the defendant not being present on Belgian soil is sufficient in terms of law and logic to prevent any judicial action whatsoever to be taken against him in a Belgian court.
The Court of Cassation (Belgiums Supreme Court), composed of five judges, did not accept this point of view. On the contrary, it upheld the competence of the Court in accordance with Belgian law for serious violations of international humanitarian law, namely war crimes, crimes against humanity and genocide, regardless of where the plaintiff is or any other condition not specified by the law. It therefore reversed the 26 June 2002 decision of the Court of Appeals and sent the case back for correction (by the Court of Appeals, but with a different composition than the earlier court), thus allowing the investigation and trial to go forward. The Court drew a clear distinction, however, between Ariel Sharon and the rest of the accused. For the former, being Prime Minister of Israel, enjoys procedural immunity from prosecution under international customary law so long as he holds that position. The others accused do not, however, enjoy immunity, and their trial can go forward.
In his conclusions, the PG did not follow the earlier reasoning of the Brussels Appeal Court. He acknowledged that the universal jurisdiction provision of the 1993 law is a lex specialis (special law), not subject to the restrictions that the Criminal Procedure Code provides for in other situations of extra-territorial jurisdiction. However, the PG did hold the opinion that Art. 7 of the 16 June 1993 law, which gives the Belgian courts jurisdiction over war crimes and crimes against humanity, does require the presence of the alleged perpetrator on Belgian territory in order to allow a criminal proceeding.
The PG stated that Art. 7 is ambiguous and needs further interpretation concerning whether or not it allows for prosecution in the absence of the alleged perpetrator on Belgian territory.
1. Position of the Procureur-Général
a. Travaux Préparatoires
The PG based his analysis on the travaux préparatoires, considering that the legislator (the Belgian Parliament) intended to implement the duty to prosecute as provided for in the Geneva Conventions embodying the principle aut dedere aut judicare (extradite or prosecute).
With regard to this principle, the PG states that the principle itself necessitates a situation in which the alternatives, extradition or prosecution, are at least possible. If a person were not present in Belgium, a decision according to the aut dedere aut judicare principle would be impossible, as there was no one present who could be extradited.
Given the substantial international tradition to limit universal jurisdiction to the above named principle, he concludes that if the legislator had the intention to go further, it should have been mentioned explicitly in the statute.
b. Interprétation de manière téléologique
The PG also elaborated on the statutes objective. The PGs understanding is that the legislator wanted Art. 7 to fight impunity by ensuring that the crimes enumerated in the 1993 statute are prosecuted effectively, not just symbolically. According to his opinion, an in absentia trial would be an imperfect tool, engendering a virtual rather than a real process. Without the defendants presence, a trial would take place in a vacuum. The PG concludes that such a trial would not further the effective prosecution of these crimes, but rather, would do more harm than good to this objective. Furthermore, the PG argues that an in absentia trial would raise questions as to its legality, as it might be a violation of the defendants right to due process.
2. Position of the plaintiffs
a. Interpretation of Art. 7
The civil parties argue that the wording of Art. 7 is clear and precise and does not need to be interpreted.
If, however, Art. 7 would need to be interpreted, one should rely upon the legislators intention. According to the travaux préparatoires, the legislature intended to create unrestricted universal jurisdiction in Belgium. The Belgian legislator interpreted Art. 49 of the 1949 First Geneva Convention in such a way as to impose on states the obligation to search and to try perpetrators. Only additionally is it is possible for a state to hand over perpetrators to another state. The principle of Art. 49 is thus not just aut dedere aut judicare, but rather, aut judicare aut dedere or even aut prosequi aut dedere.
Hence the PG errs if he considers Art. 7 to embody only the principle of aut dedere aut judicare (extradite or prosecute). The Belgian legislator considered itself a pioneer in the emerging field of universal jurisdiction and intended to create absolute universal jurisdiction for genocide, crimes against humanity, and war crimes in 1993, and certainly in 1999 when the present law was passed. Even if the idea of absolute universal jurisdiction is not shared unanimously today, it nevertheless does not alter the legislators intention, and is permitted by international law.
Furthermore, important precedents in Belgium support this broad view of universal jurisdiction. Over the last decade, Belgian Investigating Judges have launched criminal investigations of acts committed in Rwanda, Congo, Chad, and Guatemala despite the fact that the alleged perpetrators were not present in Belgium. Additionally, Belgium issued international arrest warrants and extradition requests. The Belgian state has also defended this practice before the International Court of Justice, and the majority of the ICJ judges accepted this practice in general (disagreeing only on the more specific matter of prosecuting foreign ministers and sitting heads of state or government).
Finally, the PGs opinion does not adequately reflect the current state of Belgian Law on this point, and modifying the law is the task of the legislator, not of the judiciary, particularly considering that the matter is currently under debate in the Chamber of Representatives after adoption of two law proposals by the Senate some weeks ago.
b. Investigation and trial in absentia do not violate the defendants right to due process
Investigation and trial in absentia is normal in cases unrelated to universal jurisdiction. Trial is not yet the issue in the present stage, but should not violate the defendants right to due process, as the defendants have the possibility of being represented in court by an attorney. The European Court of Human Rights never found the existing practice of in absentia trials in Belgium to be illegal, as the defendant can always seek legal representation to have his interests adequately represented. Especially in this case, there are no reasons to assume that Ariel Sharon and Amos Yaron are not going to enjoy adequate representation in court, as they are already represented by counsel and have even elected domicile in Belgium for the purpose of the procedure.
The plaintiffs produced an amicus curiae brief by Eric David, professor of international law at the Brussels University and one of the representatives of Belgium in the procedure before the ICJ in the case against Congo. Amnesty International also made public a long analysis against the argument of the PG.
3. The Ruling of the Court
In its ruling of 12 February 2003, the Court de Cassation (Belgiums Supreme Court) rejected the reasoning of the Prosecutor General, and stressed that prosecution based on the law of 16 June 1993 for acts of genocide, crimes against humanity, and grave breaches of the Geneva Conventions is not limited by the restrictions provided for by the Code of Procedure, and specifically does not require the presence of the accused on Belgian soil.
The Court observes, however, that defendant Ariel Sharon was Prime Minister of Israel at the time the complaint was lodged, and that still he remains the incumbent of that position today. Recalling the customary principle that grants heads of states and governments procedural immunity from prosecution, the Court notes that no international convention provides for an exception to that rule in cases of prosecution for international crimes.
Art. IV of the 1948 Genocide Convention does exclude immunity, but the Court takes into consideration that Art. VI of the same convention provides only for prosecution before national courts of the state on which territory the crimes were committed, and before an international criminal court, but not for prosecution before national courts judging on the basis of universal jurisdiction.
Either the Rome Convention on the Statute of the International Criminal Court or the Geneva Conventions and both additional protocols provide that internationally protected persons can be prosecuted before national courts abroad on the principle of universal jurisdiction.
Thus, the provision of Art. 5 of the law of 16 June 1993, stating that no immunity can bar prosecution based on this law, should be limited to what international criminal customary law permits and be seen as prohibiting impunity based on official quality, but not as providing an exception to the principle of international immunity for heads of states and governments.
The Supreme Court ruling concludes that the ruling of the Brussels Appeals Court is acceptable when it concludes that prosecution against Ariel Sharon is not admissible so long as he is protected by the aforementioned procedural immunity, and rejects the same ruling in so far as it considers prosecution against Amos Yaron and others involved in the Sabra and Shatila massacre requires their presence on Belgian territory.
This case is now transferred to another chamber of the Brussels Court of Appeal. Amos Yaron is ordered to pay half of the fees. The plaintiffs pay the other half in so far as the other defendant was ruled immune from prosecution.
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