Belgium Universal Jurisdiction Statute - Essay Example

Hissene Habré is accused of torture and crimes against humanity. A coalition of Human Rights groups and organisations1 have documented evidence of details of numerous crimes against humanity carried out by Habré’s dreaded political police, the Documentation and Security Directorate (DDS).2 Belgiums universal jurisdiction statute, enacted in 1993 compels prosecutors to investigate complaints of humanitarian crimes. Under that law, a Belgian Magistrate has issued an international arrest warrant for Hissene Habré who is currently resident in Senegal. Even the Senegalese concede the merits of the case against Hebré though they oppose the extradition to Belgium. Senegal has ratified the U.N. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and is obligated under its provisions to either prosecute or extradite Hebré (aut dedere aut prosequi).3 However, such obligation does not require Senegal to extradite Habre specifically to Belgium. Recent conventions and state practice has embraced a duty not to extradite persons that face seriously discriminatory applications of criminal law authority. This limitation on the duty to extradite is incorporated in both the European Terrorism Convention4 and the United Nations Terrorist Financing Convention5: “Nothing in this Convention shall be interpreted as imposing an obligation to extradite…if the requested State Party has substantial grounds for believing that the request for extradition…has been made for the purpose of prosecuting or punishing a person on account of that persons race, religion, nationality, ethnic origin or political opinion or that compliance with the request would cause prejudice to that persons position for any of these reasons.” Thus, an individual does not face fair criminal prosecution where relevant forms of discrimination result in selective prosecution.6 Such emergent exceptions to extradition should also be automatically incorporated in Article 1(F)(b) of the Convention relating to the Status of Refugees.7 Belgium as well as the Western World has shown a persistent practice of discrimination against Africans and to some extent Latin Americans so far as prosecution for crimes against humanity are concerned. While Belgium has readily prosecuted or initiated investigations against Africans accused of crimes against humanity, in March 2003, when at the behest of family members of civilians killed in the 1991 Gulf War, Belgian prosecutors launched an investigation of former President George H.W. Bush, Vice President Dick Cheney, Secretary of State Colin Powell, and retired General Norman Schwartzkopf, concerning the bombing of Baghdads al-Amiriya shelter,8 Belgium hastily amended its law to exclude such embarrassing prosecutions in the future. Nevertheless, at a June NATO meeting, U.S. Defense Secretary Donald Rumsfeld threatened to move NATOs headquarters out of Brussels unless the Belgian law was rescinded.9 In July 2003, Belgium responded by caving in to American pressure. The Belgian legislature amended the statute to apply only if the victim or the accused was a Belgian citizen or long-term resident at the time of the alleged crime, and to grant immunity to high government officials.10 In the words of one of the laws supporters: “We didnt lose everything, but we lost a lot. We have to live in the real world. It was an excellent law, but unfortunately it was used in a political way, and at the end of the day, we moved backward rather than forward. Its a setback."11 One possible argument against selective prosecution can be best explained in the U.S., Fifth Circuit Court’s words: “It has never been held that one who is guilty of a crime cannot be punished merely because others equally guilty have not been prosecuted or convicted.”12 However, though it might be true in a domestic legal system based on equality, the aforesaid argument takes an entirely different direction in the international setting where international politics and the imbalance of power between strong and weak nations are more enmeshed in decisions to prosecute rather than any coherent policy as in the domestic prosecution. Selective prosecution of this nature based on political motivations is a gross violation of due process. And any person, no matter how serious a crime he is accused of, is entitled to due process and fair trial. The guarantee of a fair trial incorporates the principle of equality and therefore prohibition of selective prosecution is a general principle of customary international criminal law.13 This principle reflects the corresponding guarantee of equality before the law found in many international instruments, including the 1948 Universal Declaration of Human Rights, the 1966 International Covenant on Civil and Political Rights, the Additional Protocol I to the Geneva Conventions, and the Rome Statute of the International Criminal Court. All these instruments provide for a right to equality before the law, which is central to the principle of the due process of law. The provisions reflect a firmly established principle of international law of equality before the law, which encompasses the requirement that there should be no discrimination in the enforcement or application of the law based on impermissible motives such as, inter alia, race, colour, religion, opinion, national or ethnic origin. Therefore, the discretion to prosecute is to be exercised in good faith for the purpose for which it was conferred and not for some ulterior, extraneous or improper purpose.14 In the United States, where the guarantee of equal protection under the law is a constitutional one, the court may intervene where the accused demonstrates that the administration of a criminal law is “directed so exclusively against a particular class of persons [...] with a mind so unequal and oppressive” that the prosecutorial system amounts to “a practical denial” of the equal protection of the law.15 These principles were upheld by the Appeals Chamber of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991.16 The use of universal jurisdiction in a discriminatory fashion by Belgium renders it in violation of the principle of non-discrimination, which is a jus cogens norm.17 Singling out Africans for prosecution is a categorical discrimination based on ethnicity and smacks of paternalism. The second leg of arguments, which supports Senegal’s view not to extradite Habre to Belgium, is based on the doctrine of tu quoque. Simply put, tu quoque is the Latin rendition of "you too", with the argument built-in, though often unstated: “Since you have committed the same crime, why are you prosecuting me?”18 Belgium itself has been responsible for crimes against humanity and genocide in its former colonies in Africa. One of the best arguments against this neo-colonialist paternalism and politically motivated use of universal jurisdiction by Belgium is Judge Bula-Bulas Separate Opinion in the ICJ case concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium).19 In this opinion dealing with an arrest warrant issued by a Belgian Judge against Yerodia, a Congolese minister, Judge Bula-Bula reminds his readers that Belgium was the Congos colonial master, inflicting hideous evils on the Congolese people for decades.20 Furthermore, during the civil war following decolonization, Belgium was deeply implicated in the assassination of nationalist Prime Minister Patrice Lumumba (a deed Bula-Bula labels a crime against humanity")21 – and Bula-Bula reminds us that Yerodia was a Lumumbist in the government of fellow Lumumbist Laurent Kabila.22 According to Bula-Bula, the sole reason that Yerodia was forced out of Kabilas government was Belgian meddling on behalf of a Congolese opposition party.23 He finds it "most singular" that of all the world leaders investigated by Belgium, Belgium issued a warrant only for Yerodia, meanwhile backpedaling as hard as possible from the politically embarrassing Sharon prosecution.24 In short, Belgium is not simply setting herself up as the "prosecutor for the whole human race," she is also acting in questionable faith to perpetuate "neocolonialist chaos" that serves her own interests.25 At this juncture, one needs to consider whether the tu quoque doctrine acts as a defence to crimes against humanity. The United States Military Tribunal in the High Command Case has rejected the argument that tu quoque is a defence to crime in categorical terms: “The further objection was made that one of the nations, namely, the USSR, co-operated in the promulgation of Control Council Law No. 10 after it had engaged in a war of aggression which is made criminal under the law; this objection also is without merit. The London Agreement and Charter from which Control Council Law No. 10 stems has been approved by nineteen nations other than the four signatories thereto. We need not and do not determine whether the charge that one of the signatories of the London Agreement and Charter and Control Council Law No. 10 is guilty of aggressive war for such determination could avail the defendants nothing. Under general principles of law, an accused does not exculpate himself from a crime by showing that another committed a similar crime, either before or after the alleged commission of the crime by the accused.”26 This principle has been approved by the United States Military Tribunal in United States v. von Weizsaecker, et al. (the Ministries case)27 and United States v. Ohlendorf, et al.28 The ICTY in the Kupreskic case,29 the Trial Chamber took a similar view. First, the Trial Chamber argued that although the tu quoque argument was raised as a defence in war crimes trials following World War Two, "it was universally rejected" (citing to the High Command case), and further claimed that "there is in fact no support either in State practice or in the opinions of publicists for the validity of such a defence".30 Second, the Trial Chamber argued that "the tu quoque argument is flawed in principle. It envisages humanitarian law as based upon a narrow bilateral exchange of rights and obligations. Instead the bulk of this body of law lays down absolute obligations."31 The consequence of this, the Trial Chamber argued, is that "these norms of international humanitarian law do not pose synallagmatic obligations, i.e. obligations of a State vis-à-vis another State",32 but lay down erga omnes obligations. In addition, most norms of international humanitarian law are norms of jus cogens, having a non-derogable and overriding character.33 Certainly, it is conceded that crimes against humanity are crimes erga omnes, and tu quoque argument cannot be a defence to such a crime. However, it is submitted that what the tu quoque rule prohibits is the prosecution and punishment of a person by a state which itself has violated it’s humanitarian obligations. This would clearly violate the principles of non-discrimination, reciprocity, fairness and the doctrine of equity that he who comes to court should do so with clean hands. Belgium having itself perpetrated gross human rights violations in Africa and having a record of political use of the universal jurisdiction should not be the venue of Habre’s trial. His crimes being violations of erga omnes obligations, he can be prosecuted in any African country before an African judge, or by a tribunal having the sanction of the international community or in any country, which is not tainted with colonial oppression or paternalism. The tu quoque rule as a prohibition on prosecution and punishment by a country perpetrating the same offence is already a part of customary international law and this is what the United States Military Tribunal and the ICTY failed to realize. In the Judgement of the Nuremberg Tribunal in the Trial of the Major War Criminals before the International Military Tribunal at Nuremberg34 in the part relating to the guilt of Admirals Dönitz and Raeder for the charge of unrestricted submarine warfare, the Tribunal held that they were guilty of violating the applicable law. But, in light of the similar conduct of the British Admiralty and the United States Navy, the Tribunal did not impose any punishment on the Admirals for these violations; they were punished for other crimes only. Though the ICJ has never dealt with the issue, two separate opinions in two different cases before the ICJ have referred to it. In the Barcelona Traction case, Judge Fitzmaurice stated that, for the sake of argument, "Let it be assumed, […], that a purely tu quoque argument might have some validity on a sort of preclusive basis".35 Again, in the Application of the Genocide Convention case, in which the Court decided to admit the counter-claims made by Yugoslavia, in his separate opinion, Judge ad hoc E. Lauterpacht considered whether the Court could exercise its discretion to delay the consideration of Yugoslavias "counter-claims" until after it had disposed of the main claims made by Bosnia and Herzegovina, and answered no. Inter alia, Judge ad hoc Lauterpacht stated, "the Court cannot disregard the possibility that the Yugoslav Counter-Memorial is advancing a tu quoque argument."36 Thus, he seemed to assume that a tu quoque argument is one that can be validly made as a matter of law, although whether it can be, in fact, is a different question. The law has also been recognized by the Federal Supreme Court of the Federal Republic of Germany that "no State may accuse another State of violations of international law and exercise criminal jurisdiction over the latters citizens in respect of such violations if it is itself guilty of similar violations against the other State or its allies."37 Therefore, it follows that though Habre may be prosecuted elsewhere including Chad, it would be unfair and possibly illegal for western colonial powers, especially Belgium to prosecute or punish him. Read More