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Country Case Studies

VI. Belgium

Belgium’s universal jurisdiction legislation, the “Act concerning Punishment for Grave Breaches of International Humanitarian Law,” came into force in 1993 and was amended in 1999 to include universal jurisdiction over crimes against humanity and genocide in addition to war crimes. The Code of Criminal Procedure140 further granted victims the right to initiate a criminal investigation on the basis of universal jurisdiction. Following a wave of complaints against high-ranking officials of various foreign states,141 political pressure led to an amendment of the act in April 2003, removing the right of victims to initiate a universal jurisdiction prosecution, and introducing immunity provisions “in accordance with international law.”142  Further pressure led to the act being repealed altogether in August 2003.143  The act’s provisions concerning international crimes were incorporated into the Belgian Criminal Code,144 and there is no longer a specific law in force in Belgium covering international crimes. 

In conjunction with amendments to the Code of Criminal Procedure, Belgian courts currently exercise an extended form of active and passive personality jurisdiction over war crimes, crimes against humanity and genocide.145  Article 12 bis of the Preliminary Title of the Criminal Procedural Code gives Belgian courts jurisdiction over any offense committed outside Belgium that Belgium is under a treaty obligation to prosecute.146  International crimes are tried in Belgium by the Court d’Assises, composed of a judge and a twelve-person jury.147

Prosecutions based on universal jurisdiction and leading to a conviction since 2001 include the “Butare Four”case,148 and the case of Rwandan businessmen Etienne Nzabonimana and Samuel Ndashykirwa (“The Two Brothers” case),149 both cases concerning crimes committed in Rwanda during the 1994 genocide.  Ongoing cases include the case against former Chadian dictator Hissène Habré.150  The law concerning universal jurisdiction was changed in August 2003, requiring cases against U.S. Gen. Tommy Franks, former Israeli Prime Minister Ariel Sharon and petroleum company TotalFinaElf to be dropped.

A. Jurisdictional Challenges

1.   Presence

As of August 2003, Belgian authorities can exercise jurisdiction over alleged perpetrators of genocide, crimes against humanity and war crimes who are either Belgian nationals or Belgian residents, including perpetrators who became residents or citizens after the crime was committed.151  Courts can also exercise jurisdiction over international crimes if the victims are Belgian nationals or had lived in Belgium for at least three years at the time the crime was committed.152  Courts therefore exercise a form of passive or active nationality jurisdiction, unless Belgium has an obligation to prosecute under treaty law.

2.   Immunities

In the case against former Israeli Prime Minister Ariel Sharon, the Cour de Cassation held the complaints inadmissible,153 underlining the verdict of the International Court of Justice, in the “Arrest Warrant”case,154 that a sitting prime minister enjoyed a functional immunity from jurisdiction in a foreign court, no matter what crimes were involved.  To bring Belgian legislation into line with the judgment of the ICJ, the Law relating to Grave Breaches of International Law was modified in April 2003, and now Belgian law recognizes immunities within the limits established by international law.155 

3.   Limitation

Crimes against humanity, war crimes and genocide are not subject to a period of limitation.156

4.   Subsidiarity

The principle of subsidiarity was introduced by the changes to the legislation in April 2003. The prosecutor may refrain from referring the complaint to the investigative judge if, taking into consideration the interests of justice and Belgium’s international obligations, the particular complaint should be brought before an international tribunal or before a court in the territorial state or the state of nationality of the alleged perpetrator.  If the prosecutor determines that the ICC is the appropriate forum, the minister of justice may, after consultations with the Council of Ministers, refer the case to the ICC. If the ICC decides not to exercise its competence over the matter, Belgian courts will have jurisdiction. It is then once again up to the federal prosecutor to decide how to proceed with the complaint.157

B.  Practical Arrangements for the Exercise of Universal Jurisdiction in Belgium

1.   Special departments in charge of the investigation and prosecution of international crimes

a. Police

A unit was set up in 1998 to deal exclusively with international crimes following an increase in complaints based on universal jurisdiction, particularly concerning alleged perpetrators from Rwanda. The unit is part of the crime section of the judicial police of the arrondissement judiciaire Bruxelles. So far the unit has investigated international crimes committed in a number of countries, including Rwanda, Chad, Guatemala and Burma.  It was created to bring together all the relevant expertise within one unit and now includes six experienced investigators.158

b. Prosecution

The Parquet Federal has had exclusive competence over international crimes since 2003.159 It decides whether to open an investigation, and can order an investigative judge to start an investigation. While the judge is completely independent once an investigation begins, the Parquet Federal is under the direct authority of the Ministry of Justice, which can command the prosecution to prosecute a case but cannot order it to refrain from doing so.

c. Investigative judge

Theoretically, the investigation of international crimes by an investigative judge depends on the whereabouts of the suspect or the location at which the complaint is filed. In practice, however, it has so far been possible to transfer all cases involving international crimes to just a very limited number of investigative judges, who have thus accumulated valuable experience. At present they also deal with the investigation of terrorism cases (among other, ordinary crimes).160 The budget available to the investigative judge is provided by the Ministry of Justice, and the resources allocated have been considered adequate,161 although there is no specific budget for the investigation of war crimes, crimes against humanity and genocide.162

d. Notification

Both cases that led to conviction, Butare Four and The Two Brothers, were brought to the attention of the Parquet by parties civiles.  The “constitution de parties civiles” is the equivalent of a private petition and obliges the investigative judge to start the investigation.  At present there is no cooperation with immigration authorities, which is striking in light of the fact that the perpetrators in the Rwanda cases had all claimed asylum in Belgium.163  This has become even more pressing because of the changes to the legislation in April 2003 that prevent the investigative judge from acting solely on a complaint initiated by parties civiles, and because public prosecutors have rarely been the driving force behind complaints based on universal jurisdiction.

2.   Decision to investigate and prosecute 

Since the modification of the universal jurisdiction legislation in August 2003,164 the prosecutor’s discretion has widened.  The prosecutor can decide not to investigate a complaint if the complaint is obviously unfounded, the crimes referred to in the complaint do not qualify as serious violations of international humanitarian law, or if an admissible public action cannot result from the complaint.  The prosecutor can further reject a complaint if facts of the case indicate that the case should be heard by the courts of the state where the crimes were committed or by an international court.165

The decision about whether to investigate a complaint now lies solely at the prosecutor’s discretion, and public prosecutors play an increasingly important role in the exercise of universal jurisdiction in Belgium.  The police and the investigative judge are only consulted by the prosecution. In exceptional cases, the minister of justice can order the federal prosecutor to initiate an investigation (droit d’injonction positive).166  The investigation is carried out by the special police department in charge of the investigation of international crimes under the supervision of the investigative judge, who acts as a judicial official and police investigator.

In a complaint brought against the modified universal jurisdiction law, the Cour d’Arbitrage decided on March 23, 2005, that judicial review of a prosecutor’s decision not to open an investigation was permissible to some extent.167  If the prosecutor decides not to further proceed with a case, the Indicting Chamber (Chambres des mises an accusation) will take the decision whether to continue with a case.  However, at no stage of the review are private parties filing the complaint allowed to intervene to present their case, and the chamber will base its decision on the reasons set out by the prosecutor only.

No such judicial review is possible where the prosecutor decides not to investigate because the facts of the case indicate that the case should be heard by the courts of the territorial state or by an international court.168

3.   Investigation

a. Investigation in Belgium

The police and the investigative judge consult experts and check Internet resources as well as related academic and NGO material. Other crucial sources of evidence in past cases were provided by parties civiles who supplied names of witnesses and material related to crimes. In the Rwanda cases, emigré communities proved to be a useful starting point for seeking witnesses and additional contacts in the territorial state.169 Once the investigation in Belgium is complete and all available evidence has been collected, the judge decides whether an investigation abroad is necessary.

b. Extraterritorial investigation

At the date of writing, Belgian investigators have carried out five rogatory missions—three to Rwanda, one to Guatemala and one to Chad. Prior to the rogatory mission to Rwanda, one preparatory commission of investigators went to Rwanda.  The rogatory letter is executed by the local authorities in the presence of the Belgian team.  In Rwanda, for instance, it was a Rwandan representative of the judiciary who conducted the interviews. The team investigating in the context of a rogatory mission abroad includes one investigative judge, a prosecutor and investigators, and often a registrar and a translator.170

C. Cooperation

1.   National cooperation

There is no systematic cooperation with immigration authorities. There is extensive cooperation between the Parquet federal, investigative judges and the relevant police unit.

2.   International cooperation

For the investigation in Guatemala from 1980 onwards, the foreign ministries of Guatemala and Costa Rica cooperated with the Belgian authorities, through the assistance of a Belgian liaison magistrate based in Venezuela. Although Spain is also investigating the events that occurred in Guatemala, there has been no official cooperation between Spain and Belgium. While the Belgian authorities considered it essential to investigate abroad, the Spanish authorities relied on documents and other evidence available without investigating in the territorial state. In the Rwanda cases there was cooperation with Switzerland and Canada.171

Before going abroad the investigating team compiles a list of questions, documents and witnesses in which they are interested for local authorities to review and approve (letter rogatory). The Belgian embassy in the territorial state is usually contacted to establish a first contact with local authorities. Where no embassy exists, the Belgian Ministry of Justice has liaison officers in various ministries of justice around the world who help to establish early contacts. In the Guatemala case, a Belgian liaison officer affiliated with the Ministry of Justice of Venezuela contacted all relevant authorities in Guatemala and Costa Rica. For every piece of evidence the Belgian investigation team wanted to seize, the Public Ministry of the territorial state had to be contacted.172 During the investigation in Rwanda the team of investigators always had a team of local police traveling with them, for their protection.173 In Guatemala, the team was accompanied by two officers charged with their protection.174

Neither the EU Network nor the Interpol working group seem to have played an important role in past investigations, as the majority of investigations carried out by Belgian authorities abroad have taken place before the operation of either cooperation mechanism. However, Belgian officials attend both EU and Interpol meetings,175 enabling authorities of other countries to benefit from the experience of Belgian authorities in the investigation and prosecution of international crimes and vice versa.

D.  Role and Rights of Victims and Witnesses

1.   Victims—Compensation and legal representation

Victims may file a civil action for damages in the criminal proceedings.176 In addition to those who are directly affected by the crime, family members may bring a claim for compensation as long as they can prove a family link to the victim. In the second Rwanda trial a number of victims succeeded in their claims for compensation against the two convicted perpetrators.177 

Although victims are entitled to legal representation where they cannot afford to pay for it themselves, this does not include costs incurred during the pre-trial phase. During trial, lawyers for victims and for the defense receive €500 per day in court.

2.   Witnesses

As the emphasis in Belgium is placed on oral proceedings, the number of witnesses testifying in person during trial is quite large. In the second Rwanda trial, for instance, seventy-six witnesses testified in person.178  The identity of witnesses cannot be concealed under Belgian law, but investigators indicated that even had they been available, mechanisms to protect anonymity would have been ineffective in the cases tried so far. This was because persons in the territorial state were already aware who testified in the trial, due to media attention, and the fact that a witness travels from Rwanda to Belgium.179  Post-trial protection in the territorial state does not appear to be extensive. Indeed, according to a Belgian victims’ lawyer, the Belgian authorities need to improve their efforts with regard to witness protection and to rely less on local authorities in this respect.180  This view was supported by an investigative judge, who observed that protection measures for witnesses and victims provided by local police in the territorial state were limited.

Accommodating a large number of witnesses in the same location can have the advantage of providing a system of mutual support for witnesses who are all far away from home, but it has the obvious disadvantage of accommodating prosecution and defense witnesses together.181  The majority of witnesses in the second Rwanda trial remained in Belgium for one week and left before the following witnesses arrived. Throughout their stay, they were all entitled to receive psychological help from a witness and victims unit. Twelve witnesses went into hiding once they had testified, and a number of witnesses claimed asylum, especially the defense witnesses who argued that their testimonies in favor of the accused would endanger them on their return to Rwanda.182

It is not possible under Belgian law to film a witness testimony in the territorial state, as this method does not allow both parties to challenge statements. Preparing a witness is not allowed under Belgian law and is viewed as a contamination of the original statement given in front of the jury. Witnesses are, however, given the chance to read through copies of their statements before they testify at trial. This reminds them of their original statement, often given years before the trial.183 

E. Fair Investigation and Trial

With regard to the Rwanda trial in 2005, the team investigating abroad did not encounter difficulties in meeting with and finding witnesses for the defense.184 The investigative judge is under an obligation to investigate evidence incriminating and exculpating the accused. While the defense lawyer is not entitled to have a private investigator appointed, the lawyer has the right to ask the investigating judge to go back to the territorial state and to take more statements from a list of potential defense witnesses.185 Since investigations abroad form part of the pre-trial phase, they are not covered by legal aid.




[140] Code of Criminal Procedure of 1878, art. 7.

[141] Complaints were filed, inter alia, against then Israeli Prime Minister Ariel Sharon and others for their role in the Sabra and Shatila massacre; against former Chinese President Jiang Zemin for international crimes allegedly committed against Falungong practitioners; and against former U.S. President George H.W. Bush, then Secretary of Defense (and current U.S. Vice President) Dick Cheney, Gen. (now retired) Norman Schwarzkopf, and Chairman of the Joint Chiefs of Staff Colin Powell for war crimes allegedly committed in the 1991 Gulf War. U.S. Gen. Tommy Franks was also the subject of a complaint for war crimes allegedly committed under his command during the 2003 Iraq war. All of these complaints were dismissed after the change to the legislation in August 2003. 

[142] For these amendments see the unofficial translation available in International Legal Materials, 42 (2003), p.749.

[143] Loi relative aux violations graves du droit international humanitaire, 5 August 2003, Moniteur Belge (Law Gazette), No. 286, August 7, 2003; unofficial English translation available online in International Legal Materials, vol. 42 (2003), p.1248. For an overview of the changes see Luc Reydams, “Belgium Reneges on Universality: The 5 August 2003 Act on Grave Breaches of International Humanitarian Law,” Journal of International Criminal Justice, vol. 1 (2003), p. 679.

[144] Criminal Code of 1867 (Code Penal), arts. 136 bis – 136 octies, available online at http://www.juridat.be/cgi_loi/legislation.pl (retrieved April 2006).

[145] Preliminary Title of the Code of Criminal Procedure (Titre préliminaire du Code de procedure pénale), Chapter II, arts. 6 (1), 7(1) and 10 (5).

[146] Preliminary Title of the Code of Criminal Procedure, art. 12 bis; Belgium ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on June 25, 1999. Torture as a criminal offense has been incorporated in article 417 bis of the Criminal Code.

[147] Belgian Constitution, as of February 17, 1994, art. 150.

[148] La Cour d’Assises de L’arrondissement Administratif de Bruxelles-Capitale, verdict of June 8, 2001. Documentation of the whole trial is available online at http://www.asf.be/AssisesRwanda2/fr/fr_ICI_procesassises.htm (retrieved April 2006).

[149]La Cour d’Assises de L’arrondissement Administratif de Bruxelles-Capitale, verdict of  June 29, 2005. See also “Rwandans sentenced over genocide,” BBC News, June 29, 2005, [online] http://news.bbc.co.uk/2/hi/africa/4635637.stm (retrieved April 2006).

[150] For details concerning the Habré case, see [online] http://www.hrw.org/justice/habre/.

[151] Preliminary Title of the Code of Criminal Procedure (Titre préliminaire du Code de procedure pénale), Chapter II, art. 7 (1), introduced in 1964, provides for active personality jurisdiction, with article 6(1) bis providing courts with jurisdiction over international crimes committed abroad by “any person who has his principle residence on [Belgian] territory” (“…toute personne ayant sa residence principale sur le territoire du Royaume”). According to the government’s explanatory memorandum, this includes those who became residents after the commission of the crime, see http://www.ulb.ac.be/droit/cdi/fichiers/chbre-51-0103-01.pdf, p. 5.

[152] Article 10 (5), introduced in 1984, provides for general passive personality jurisdiction.

[153] La Cour de Cassation, decision of September 24, 2003.

[154] Case Concerning the Arrest Warrant of April 11, 2000 (The Democratic Republic of Congo v. Belgium), judgment of April 14, 2002, available online at http://www.icj-cij.org/icjwww/idocket/iCOBE/icobejudgment/icobe_ijudgment_20020214.PDF  (retrieved March 2006).

[155] See Moniteur Belge, May 7, 2003, unofficial English translation available in ILM, vol. 42 (2003) p.204.

[156] Code of Criminal Procedure, art. 21.

[157] Article 7 of the Law amending the law of June 16, 1993, concerning the prohibition of grave breaches of international humanitarian law and article 144 ter of the Judicial Code.

[158] Human Rights Watch interview with Belgian officials, October 24, 2005.

[159]Human Rights Watch interview with Belgian prosecutor, April 22, 2004.

[160] Human Rights Watch interview with Belgian investigative judge, October 24, 2005.

[161]Human Rights Watch interview with Belgian investigative judge, October 24, 2005; Human Rights Watch interview with Belgian officials, October 24, 2005.

[162]Human Rights Watch interview with Belgian prosecutor, April 22, 2004.

[163]Human Rights Watch interview with Belgian officials, October 24, 2005.

[164] Amendment to the “Loi relative aux violations graves du droit international humanitaire” and to article 144 ter of the Judicial Code, April 23, 2003. See Moniteur Belge, May 7, 2003.

[165] Code of Criminal Procedure, arts. 10 (5) and 12 bis; Cour d’Arbitrage, Judgment Nr. 62, March 23, 2005, available online at http://www.arbitrage.be/ (retrieved April 2006).  

[166] Belgian Constitution, as of February 17, 1994, arts. 151. In February 1995, the Belgian minister of justice asked the prosecutor general in Brussels to initiate proceedings against alleged perpetrators of crimes committed in Rwanda in 1994.

[167]Cour d’Arbitrage, Judgment Nr 62, March 23, 2005, available online at http://www.arbitrage.be/ (retrieved April 2006).

[168] Ibid.

[169]Human Rights Watch interview with Belgian officials, October 24, 2005.

[170]Human Rights Watch interview with Belgian investigative judge, October 24, 2005.

[171] Human Rights Watch interview with Belgian officials, October 24, 2005; Human Rights Watch interview with Belgian investigative judge, October 24, 2005.

[172] Human Rights Watch interview with Belgian investigative judge, October 24, 2005.

[173]Human Rights Watch interview with Belgian officials, October 24, 2005.

[174] Human Rights Watch interview with Belgian investigative judge, October 24, 2005.

[175] Past Network meetings as well as Interpol meetings were attended by Belgian officials.

[176] Code of Criminal Procedure, arts. 66, 67.

[177] Human Rights Watch interview with Belgian lawyer, August 25, 2005.

[178]Human Rights Watch interview with Belgian officials, October 24, 2005.

[179] Human Rights Watch interview with Belgian officials, October 24, 2005.

[180] Human Rights Watch interview with Belgian lawyer, August 25, 2005.

[181] Witnesses in the Rwanda trials were accommodated in former army barracks, where it was possible to observe them and to keep the costs of accommodation down.

[182] Human Rights Watch interview with Belgian officials, October 24, 2005.

[183] Human Rights Watch interview with Belgian officials, October 24, 2005.

[184] Human Rights Watch interview with Belgian officials, October 24, 2005.

[185]Code of Criminal Procedure, art. 61 ter.


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