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When a group of Iraqis brought an action in March against former President George H.W. Bush, Richard Cheney, Colin Powell, and other U.S. government officials under Belgium’s “universal jurisdiction” law, charging them with war crimes in the 1991 Iraq war, the Belgian parliament quickly approved changes to the law that would enable the government to dismiss the action. And on May 17, Belgian Prime Minister Guy Verhofstadt invoked the new law in discussing an action filed against U.S. Gen. Tommy Franks and a U.S. Marine colonel, charging them with war crimes in the current war in Iraq. Characterizing the action as political and as an “abuse of the law,” he said, “[t]he law leaves open the possibility of sending back the complaint to the United States, and that is what I . . . aim to do.” The Belgian government’s reaction to these cases provides an interesting contrast to its reaction when a similar action was brought against Ariel Sharon, the prime minister of Israel, and former Israeli military and intelligence officers, based on events in the Sabra and Shatila refugee camps in Lebanon in 1982. On Feb. 12, 2003, Belgium’s Cour de Cassation (highest appellate court) issued a ruling that the nation’s courts had jurisdiction in the action against Sharon, even if he is not present in Belgium. The decision reversed a lower court ruling that interpreted the 1993 law (as amended in 1999) to require the presence of the defendant in Belgium. Even before the highest court decided the case, the Belgian Senate adopted amendments to the law making clear that the defendant’s presence in Belgium was not a requirement for the assertion of jurisdiction. POLITICAL REASONS The decision of the Cour de Cassation was hailed by human rights organizations. Amnesty International praised Belgium for taking “a lead role in the fight against impunity to ensure an effective system of international justice.” The decision was denounced in Israel. Elyakim Rubenstein, Israel’s attorney general, said the criminal indictment in Belgium against Sharon and the other officers “is an injustice, not a search for justice . . . . It was submitted solely for political reasons.” In an open letter published in Belgian and Israeli newspapers, Belgian Foreign Minister Louis Michel chided his “Israeli friends” for not recognizing the “ethical underpinnings” of the law. He wrote, “It is clearly wrong to portray the complaint as a politically inspired act by the Belgian government aimed at the state of Israel and its prime minister.” Does Belgium’s assertion of jurisdiction in the action against Sharon indicate the existence of an effective system of international justice in the fight against impunity, or a misuse of the judicial process for political purposes? Under generally accepted principles of international law, a state has jurisdiction to try and punish its citizens; those who act in its territory; those who act outside its territory but intend to and/or cause an effect within its territory; and those who engage in conduct threatening the security or sovereignty of the state. Some states also assert jurisdiction to try an offender if the victim is a national of that state. What all these bases of jurisdiction have in common is that the state asserting jurisdiction has a particular interest in seeing the perpetrator brought to justice. In addition, it has long been accepted that some crimes are so heinous that any state in which the offender is found has a right to try and punish him. Piracy is the classic example, but this principle of “universality” now applies to a number of other crimes, including genocide, war crimes, apartheid, and terrorism. A number of treaties obligate a state in which the offender is found to submit the case to its authorities for prosecution, even if it has no jurisdictional link to the case, if it does not extradite him to a state that otherwise has jurisdiction under the treaty. Thus, jurisdiction is generally based either on a state’s links to the case that give it a special interest in seeing the offender brought to justice, or on his presence in the state. BELGIUM, OVERREACHING Belgium’s law gives its courts jurisdiction to try persons for certain crimes, such as genocide and war crimes, even if there are no links to Belgium, and even though the alleged offender is not present in Belgium. It is not clear whether international law permits a state to exercise jurisdiction under such circumstances. The Belgian universal jurisdiction law was challenged in a recent case in the International Court of Justice in the Hague, but the majority decided not to rule on that question and decided the case on other grounds. But, whatever the legal or policy arguments for Belgium’s law, its application to Ariel Sharon is inappropriate. First, Belgium has no special interest or connection to this case. Under the amendments just adopted by the Belgian parliament, a link with Belgium will be required before a victim can file a case directly in the future. But the requirement apparently does not apply to cases already filed. If Belgium now recognizes the need for a link between the state asserting jurisdiction and the action, it should apply that rule to all actions not yet tried. Second, the killings at Sabra and Shatila that form the basis for the complaint were perpetrated by the Lebanese Christian Phalangia army, not by forces under Sharon’s command. No government official has ever been convicted of war crimes for acts committed by the armed forces of another state — even an ally — not under his command. Such a rule would, for instance, make the U.S. secretary of defense criminally responsible for atrocities committed by various Afghan factions in the war in Afghanistan. Third, the action in Belgium was clearly instituted to arouse public opinion and animosity against Israel. If one has any doubt, consider that the prosecution was not instituted in 1993, when Belgium adopted the universality law, but only years later, after Sharon became prime minster of Israel. Further, only Ariel Sharon and Israeli officers are named in the complaint. Neither those who actually perpetrated the massacre nor their leaders are named in the complaint. Admittedly, Belgium did not institute the prosecution, and the proceedings may not be “a politically inspired act by the Belgium government,” as Michel’s letter argues. But the rush by the Belgian Senate to amend the law when a lower court interpreted it as barring jurisdiction raises some questions even on that score. This is so, particularly when compared with the Belgian parliament’s swift amendment of the law to enable the government to bar the action against former President Bush and other U.S. government officials. In any event, it is Belgian law that makes the prosecution possible and Belgian courts that will hear the case. The U.S. Supreme Court long ago held that judicial enforcement of a racial covenant in a private contract constituted state action. In the same manner, Belgium cannot avoid responsibility for an action by its courts under its laws simply because it was instituted by private parties. Belgium has an obligation not to permit its laws and courts to be misused for political purposes. Otherwise, a law that was intended to promote the rule of law will have the opposite effect. Belgium apparently realized that, and quickly decided to amend the law when the action against U.S. officials was instituted and the United States protested. WHY NOT ARAFAT? Moreover if the law is a reflection of Belgium’s commitment to fight against impunity, it is puzzling that Belgium has not indicted Yasir Arafat for an action that has a strong connection to Belgium: the murder of Guy Eid, a Belgian diplomat, who was kidnapped, brutally beaten, and killed in Khartoum in 1973, together with the U.S. ambassador to the Sudan, Cleo Noel Jr., and the U.S. charge d’affairs, George Moore. The operation was carried out by Fatah, Arafat’s military arm. And according to Vernon Walters, the deputy director of the Central Intelligence Agency at the time of the murders, they were killed on Arafat’s personal orders. The U.S. Justice Department took the position in 1985 (when the existence of a tape in which Arafat personally ordered the murders was revealed) that his indictment would violate the ex post facto clause of the U.S. Constitution because the law giving U.S. courts jurisdiction was adopted after the murders. While the Justice Department’s conclusion that an indictment of Arafat is barred by the ex post facto clause is, at least in this writer’s opinion, incorrect, Belgian law clearly does not bar retroactive application of its 1993 law, as evidenced by the actions against Sharon and Bush, both of which are based on events that predate the 1993 law. Finally, this matter has already been investigated by Israel. At the time of the events in question, the government of Israel set up a commission, headed by Justice Yitzhak Kahan, then president of the Israeli Supreme Court, to investigate the matter. Justice Aharon Barak, the current president of the Supreme Court, also was a member of the commission. It held 60 sessions, heard 58 witnesses, and received documentary evidence, including 180 statements from 163 witnesses. The commission issued a report over 100 pages long. It concluded that while the massacre was carried out by a Phalangist unit, and that no Israeli was directly responsible, Israel had indirect responsibility. The commission made a number of recommendations, including that Sharon, then the defense minister, resign, and that several high officers in the military and intelligence be removed. These recommendations were implemented. Even the International Criminal Court, established to ensure that those responsible for the most serious crimes against humanity are brought to justice, does not have jurisdiction in a case that was investigated by the state concerned, absent a showing of bad faith. The Rome Statute, which established the International Criminal Court, provides that a case is inadmissible if it has been investigated by a state that has jurisdiction and that state has decided not to prosecute the person concerned, unless the “proceedings were . . . undertaken or the national decision was made, for the purpose of shielding the person concerned from criminal responsibility.” JUSTICE AT HOME This reflects a judgment by the international community that the investigation should be done by the state concerned, unless that state refuses to do so in good faith. If the state investigation is done in good faith, then no further prosecution is permissible. A contrary approach would seriously interfere with national systems of justice. For example, a person who appeared before the Truth and Reconciliation Commission in South Africa could be prosecuted in Belgium, or any other state that decided to give its courts jurisdiction, even if the commission decided not to prosecute. Clearly, the Kahan Commission was not established for the purpose of “shielding the person concerned from criminal responsibility.” It was established in response to outrage in Israel at what had happened. The members of the commission are persons of unquestionable integrity and world renowned for their ability. They approached their task with great seriousness, as demonstrated by the extensive hearings held, the massive evidence gathered, and their report and recommendations. If the International Criminal Court, established by the international community, cannot try someone where there have been proceedings in the state concerned absent a showing of bad faith, then, surely, the domestic courts of a state that has no connection with the matter should not do so. Malvina Halberstam is a professor of law at the Benjamin N. Cardozo School of Law at Yeshiva University in New York City, and served as counselor on international law in the U.S. State Department.

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