Universal competence to pursue and punish the crime of genocide stems primarily from ius cogens, and notably from the 1948 Convention. In its 8 April 1993 decision, the International Court of Justice declared, “all parties have assumed the obligation to prevent and to punish the crime of genocide”[68] and, “the rights and obligations established by the 1948 Convention are rights and obligations erga omnes.” The ICTY Appeals Chamber declared in the Blaskic case that the obligation for each national jurisdiction “to judge or to extradite the persons presumed responsible for grave violations of international humanitarian law”[69] was customary in character. If it is true that Article VI of the Convention effectively expresses preference for the jurisdiction of the tribunals of the State directly concerned with the events, this competence is however not exclusive.[70]
From the preceding considerations there follows the observation that the law of 10 February 1999 (modifying the law of 16 June 1993) is a procedural law relative to universal competence for crimes of genocide. This law is therefore immediately applicable, whatever the date of the violation.[71] The Belgian legislator has also clearly applied the same principle in the same domain with the 22 March 1996 law relative to the recognition of the International Tribunal for ex-Yugoslavia and Rwanda: this recognition rests, in effect, on a formal competence in positive Belgian law in relation to deeds committed since 1991, well before the law of 22 March 1996.
The civil parties fully adhering to the reasoning developed in the order rendered on 6 November 1998 in the Pinochet case[72] and based in particular on the observation that the crime against humanity can be incriminated in the ius cogens.
This same reasoning can be found in a number of decisions pronounced in other countries, as, for example, in the Demjanjuk decision, in which a United States federal court decided:
“The universality principle is based on the assumption that some crimes are so universally condemned that the perpetrators are the enemies of all people. Therefore, any nation which has custody of the perpetrators may punish them according to its law applicable to such offences ... Israel or any other nation ... may undertake to vindicate the interest of all nations by seeking to punish the perpetrators of such crimes."[73]
In addition, the civil parties emphasise that the Belgian government and legislature expressly approved this reasoning in the preparation of the law of 19 February 1999, modifying the law of 16 June 1993.[74] In confirming the ius cogens as a source for incrimination, the government and legislator also evidenced the procedural law character of the law of 10 February 1999. As such, and particularly with regard to universal competence, it is thus (as is the crime of genocide) for immediate application, whatever the date of the violation.[75]
According to article 146 of the 1949 Geneva Convention,
“Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.”
Hence, the Military Code of the United States of America contains an express disposition with regard to the universal competence for crimes against humanity.[76]
The law of 16 June 1993 forms, in domestic Belgian law, the execution of this international obligation in terms of universal jurisdiction. Also according to these terms, the law of 16 June 1993 must be immediately applied, whatever the date of the violation (cf. supra).
For more information about the competence of Belgian Courts to try this case, please see the World Organization against Torture (USA) submission to the Court of Appeals of Brussels, available in the Documents part of this section of the website.
[The Case Against The Accused]
The above text is an extract from the Complaint lodged in Belgium against Israeli Prime Minister Ariel Sharon, Amos Yaron and other Israelis and Lebanese responsible for the massacre. The full text of the Complaint can be found in the section of this website titled The Case Against The Accused.
[The Case Against The Accused]
Dr. Laurie King-Irani is North American Coordinator of International Campaign for Justice for the Victims of Sabra & Shatila. For media queries, write to coordinator@indictsharon.net. For website queries, write to webmaster@indictsharon.net.
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This page is part of indictsharon.net, the website of the International Campaign for Justice for the Victims of Sabra & Shatila, offering news on the case lodged in Belgium against Israeli Prime Minister Ariel Sharon and other Israelis and Lebanese responsible for the massacre, killing, rape and disappearance of civilians that took place in Beirut between 16 and 18 September 1982 in the camps of Sabra and Shatila and the surrounding area.
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