Adieu to Belgium’s genocide law

As the International Criminal Court celebrates its first anniversary, Belgium has decided to scrap its controversial ‘genocide law', abandoning the victims of war crimes.

The first act of Belgium's new ruling coalition was to sound its intention to abolish the troublesome ‘genocide law' and banish its surviving elements to the legal equivalent of exile in the dimmest corners of the law books.

Prime Minister Guy Verhofstadt announced the deathblow at the weekend. He said that the purging of the 1993 law – which had originally allowed victims to bring war crimes and genocide cases in Belgian courts no matter where in the world they occurred or by whom they were committed – was designed to avoid future abuses.

Some elements of the legislation will be integrated into other laws in order to allow cases with a link to Belgium to continue to be heard in the country's courts. All cases or complaints involving foreigners will be dropped immediately, Verhofstadt added. 

Given the diplomatic and political storms the law has unleashed, it was perhaps unsurprising – if disappointing – that the government of a minor power such as Belgium would buckle and restrict the law. After all, the law had stacked up some powerful opponents, including the United States and Israel.

Belgium had found itself in a tough position: defend a morally and legally sound law and risk losing some very good friends or bury the offensive article and get on with business as usual. After months of political toing and froing and legislative fine-tuning, pragmatism won over ethics and the letter of the law. The fledgling government now hopes to wipe the slate clean – if it can secure parliament's approval, that is. 

Stream of conscience

The ten-year-old law – which had slumbered quietly in a cobwebbed corner until the landmark ruling against two Rwandan nuns in 2001 brought it to international attention – has seen a flood of high-profile complaints against several heads of state, including Cuban President Fidel Castro, Israeli Premier Ariel Sharon and Palestinian President Yasser Arafat.

Although Israeli protests shook the Belgian political establishment's resolve, the law's demise was sealed once and for all when several complaints were filed against prominent US officials.

These included former President George Bush senior and current Secretary of State Colin Powell for their role in the 1991 Gulf War, as well as current President George W Bush, General Tommy Franks and British Prime Minister Tony Blair for the war in Iraq.

The architect of the Iraqi invasion, Donald Rumsfeld, put Belgium on notice during a recent meeting in Brussels. He warned that if it did not repeal the law, Washington would push for NATO to be re-housed in a safer country. As a foretaste of the medicine to come, he announced that his government would withhold its contribution to the construction of new premises for the military alliance. His fury was such that he confused which capital he was in, referring to it as Baghdad.

Universally speaking

Senior US officials, including Rumsfeld, have decried the law's ‘universal competence' complaining that it could result in Americans actually facing trial in Belgian courts in politically motivated lawsuits.

This overlooks the fact that the Belgian legal system guarantees due process, which would protect against such abuses. Furthermore, the Belgian government had already watered down the law's universality earlier this year by extending immunity to serving government officials and allowing complaints to be forwarded to a defendant's country if it was democratic and could handle the suit properly.

The latest amendments will also not permit the prosecution of nationals from NATO or EU countries. This sets up a de facto two-tiered legal system and compromises the principle of equality in the eyes of the law.

But even these checks and balances – which actually contravene the principles of international law – were apparently not enough, and only a complete reversal of the law would suffice. After all, the Americans and other critics of the law ask, who is Belgium to appoint itself the ‘world's judge'.

The Geneva Conventions says that Belgium, or any other country for that matter, has not only the right but also the duty to enact universal jurisdiction in these circumstances. This is because some acts, such as genocide, are considered so universally repulsive and unacceptable that any country that can guarantee a fair trial is morally and legally obliged to do so.

Rough seas

In addition to risking friendly diplomatic ties, critics of Belgium's law say it is unique in its universality. The government seems to have finally been persuaded of this point. Verhofstadt said the latest modifications would bring Belgian legislation in line with other Western countries.

Unfortunately, his researchers appear to have not done their homework thoroughly. If they had done so, they should have uncovered the fact that other countries have very similar laws on their books to protect fundamental human rights and, what's more, have used them.

The United States, for one, has laws, including anti-terrorism, that suspiciously resemble universal jurisdiction. Despite its vocal criticism, the world's sole superpower has its very own ‘genocide law', under the impenetrable and rather strange name of the Alien Tort Claims Act.

The 1789 law was originally enacted to combat piracy on the high seas, a major problem of the time. Two decades ago, lawyers used its universality to reinvent it as an instrument to try human rights abuses and war crimes committed anywhere in the world.

A successful lawsuit against a Paraguayan general charged with torture in 1980 triggered a storm of similar human rights cases. Cases are currently being filed against Venezuelan President Hugo Chávez and former Iraqi dictator Saddam Hussein.

US courts have awarded victims huge damages, including $4.5 billion to two Bosnian women. The law has even had its fair share of high profile complaints, including one against former British premier Margaret Thatcher and Prince Charles for their involvement in the Falklands war.

Road to the Hague

It smacks of double standards for the United States to demand that Belgium scrap its ‘genocide law' while America keeps similar laws on its books and reserves the right to try Iraqi officials for human rights abuses that were not committed against Americans or on American soil.

Of course, too many national courts with universal jurisdiction could theoretically cause chaos. The best way to guarantee fair treatment for all those accused of human rights violations – whether they are American or any other nationality – is to allow the cases to be tried by an impartial global court.

The International Criminal Court (ICC) is a year old this month and has the framework to fill this role. I would say to Mr Rumsfeld and other US officials that, if they object to Brussels hearing cases against Americans, all his government has to do is drive a few kilometres up the road and sign up for the ICC in the Hague.

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This article appeared on Expatica on 17 July 2003.