Global Policy Forum

By Peter Ford

Swamped by a spate of lawsuits against US and other world leaders, Belgium is to limit a war-crimes law that had angered Washington and prompted warnings that NATO might be unable to meet in the Belgian capital if foreign delegates risked arrest.

The move hands the Bush administration a victory in its campaign against a trend in international law to give courts worldwide jurisdiction over the worst human rights violations, wherever they occur."Belgium has clearly capitulated to US pressure. This does harm to the universality of universal justice and it's a clear setback," says Reed Brody, advocacy director of Human Rights Watch in New York.

US officials had argued that they could be subjected to frivolous and politically motivated suits under the law, and liable to arrest whenever they came to Belgium for meetings at NATO and other international organizations. They dismissed Belgian claims that such officials are given ironclad immunity under a number of existing conventions.

Only cases with Belgian links

The incoming Belgian government will amend the country's "universal jurisdiction" law to cover only cases with a clear link to Belgium, prime minister Guy Verhofstadt announced on Sunday.Under the existing law, which allows Belgian courts to try war crimes and crimes against humanity regardless of where the alleged crimes were committed or the whereabouts of the perpetrator, plaintiffs have recently filed complaints against President Bush, Secretary of State Colin Powell and US General Tommy Franks, as well as British Prime Minister Tony Blair."Certain people and certain organizations, pursuing their own political agenda, systematically use this law in an abusive manner," Mr. Verhofstadt told reporters Sunday. "Modifying this law will make it impossible to abuse this law."

Belgium's law has attracted particular attention because of its peculiarity allowing plaintiffs to lodge war-crimes and crimes-against-humanity cases directly, with no decision by a prosecutor, and because cases can go forward even against defendants who are not present.That meant, complains lawyer Michí¨le Hirsch, that "Belgium became the virtual judge of the world."We need to keep the universal jurisdiction law," she says, "but in a way that we can render effective justice, not virtual justice.

"We need universal justice" to ensure that war criminals cannot escape punishment by fleeing to another country, adds Ms. Hirsch, who represented Rwandan genocide victims in a 2001 case before the Belgian court, and later represented Israel in a case brought against Prime Minister Ariel Sharon. "But Belgium cannot be competent to try all cases."

Justice or foreign policy?

The way the law was used, says Prof. Pierre d'Argent, an outspoken critic of the current law who teaches at the Catholic University of Louvain, Belgium, also meant that "it was not the government that was making foreign policy, but independent judges. By issuing warrants they began to do foreign policy."Belgium's relations with Israel were soured after a case was brought against Mr. Sharon for his alleged role in the Sabra and Shatila massacres of Palestinian refugees in Beirut during the 1982 Israeli invasion of Lebanon, when Sharon was defense minister.

It is unclear whether the changes to Belgium's law, which have yet to be presented to parliament, will satisfy US demands. Secretary of Defense Donald Rumsfeld said 10 days ago that Washington would suspend its contribution to a new NATO headquarters in Brussels unless Belgium rescinded the law, which was introduced in 1993.

His threat came against the background of a broad US effort to persuade countries around the world to sign immunity agreements under which they pledge never to send US citizens to The International Court of Justice in the Hague, which was set up last year to try the worst human rights abuses committed in the future.Forty-four nations, mostly poor countries such as Tajikistan, Palau, Honduras, and Gambia, have signed such deals so far, sometimes in the face of threats that they would lose US military assistance if they did not do so.European Union nations have refused to sign such agreements, arguing that they are contrary to international law."It is the concept of universal competence that bothers Washington," rather than a fear its officials might be arrested in Belgium, says Michel Goffin, an aide to Belgian Justice Minister Marc Verwilghen.The threats against Belgium "are part of a jihad the US is waging against independent international justice on every front," adds Mr. Brody. "It has much less to do with whether a US peacekeeper might be accused of genocide than with destroying the whole idea of an independent tribunal that can rule on US actions abroad."

Though more than 30 complaints have been filed with Belgian courts under the universal jurisdiction law against figures ranging from Yasser Arafat to Fidel Castro, only the Rwandan case has come to a trial. Four Rwandans, including two nuns, were found guilty of genocide two years ago.Another case, against former Chadian dictator Hissen Habre, is well advanced and is likely to go forward even under the new law, since the plaintiffs are Belgian nationals, giving the case a clear link to Belgium.According to the government's statement Sunday, however, the amended law does not consider the presence of the accused in Belgium to be a sufficient link to trigger an investigation.

That would violate Belgium's obligations under standard international law, however, and even opponents of the current legislation, who thought it went too far, worry that the government may have done too much to assuage US concerns about its officials visiting NATO."I would find it quite sad to have that kind of regression," says Professor d'Argent. "It would take us back to a situation of no universal jurisdiction at all.""Previously Belgium did more than international law requires," adds Brody. "Now it looks as though they are settling for less than it demands."Under the new Belgian rules, an appeals court judge will send a case for trial in the accused's country of origin if there is no clear link to Belgium, such as a Belgian victim, and so long as the courts in that country guarantee a fair trial.That provision may come under attack during parliamentary debate, predicts D'Argent. "The problem is how you decide where fair justice is possible," he says. "It introduces difficult judicial assessments."

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