Debating Belgium's War-Crime Jurisdiction

[Dave Monroe]

The New York Times
Saturday, January 25, 2003
Debating Belgium's War-Crime Jurisdiction
By DAPHNE EVIATAR

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....

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."

http://www.nytimes.com/2003/01/25/arts/25COUR.html

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