Human Rights Watch issues appeal to the Belgian government not to dismiss the Sabra & Shatila case war crimes case

Belgium: Anti-Atrocity Law Limited But Case Against ex-Chad Dictator Can Move Forward

(Brussels, 5 April 2003) -- Today's vote in the Belgian Parliament to amend Belgium's landmark anti-atrocity law will create political and diplomatic hurdles to the prosecution of many human rights crimes, Human Rights Watch said today. Some key cases which had been stalled, however, including that against Chad's exiled former president, Hissene Habre, will now move forward.

The Belgian law, which permits victims to file complaints in Belgium for atrocities committed abroad, has come under attack as a result of a growing number of filings against foreign leaders. The Belgian Supreme Court, in a February decision on a complaint by victims of a 1982 massacre of civilians in the Palestinian refugee camps of Sabra and Shatilla, upheld the law against legal challenges, while ruling that top sitting state officials, such as Israeli Prime Minister Ariel Sharon, enjoyed immunity from Belgian courts.

Human rights organizations have long proposed establishing "filters" to prevent frivolous cases and render the law more politically viable. A controversial new provision adopted today, however, goes much further by allowing the government, in cases in which the victim is not Belgian, and where the accused's home state upholds the right of a fair trial, to step in and send the complaint to that state. This provision was pushed through after a complaint was filed on March 19 against former U.S. President George Bush, and other senior figures by the families of Iraqi victims of a U.S. attack on a Baghdad shelter in the 1991 Gulf War which left over 400 persons dead.

In practice, said Human Rights Watch, this provision will subject the government to diplomatic pressure when a complaint is filed.

"Everyone agrees that Belgium should be a court of last resort for atrocity victims, not a dumping ground for political grievances," said Reed Brody, Special Counsel with Human Rights Watch. "But today's amendment opens the door to political and diplomatic negotiations over almost every case that is filed. The government has promised that it would step in only in exceptional cases. We will be holding their feet to the fire to keep that promise."

Human Rights Watch noted that today's vote ensures that several stalled cases in which there are Belgian victims can now go forward. These include the cases of Belgians killed in Guatemala and Rwanda as well as the case against Chad's exiled former president, Hissene Habre. A Belgian judge and police team visited Chad last year to investigate the charges against Habre who lives in exile in Senegal, where he was indicted three years ago on atrocity charges before the Senegalese courts ruled that he could not be tried there. Senegal is holding Habre pending an extradition request from Belgium and the government of Chad recently told Belgium that it would waive any immunity that Habre might seek to assert. The Habre case is not subject to government intervention because a number of the victims are Belgian and because Chad does not offer the possibility of a fair trial.

"It is now clear that the case against Habre can go forward," said Brody. "We hope that Habre will be indicted soon and then extradited from Senegal to stand trial in Belgium."

Human Rights Watch also called on the government not to dismiss the Sabra and Shatilla case. "There is abundant evidence that crimes against humanity were committed in the massacre of over 700 civilians, but not a single individual has been brought to justice," said Brody. "Sending the case to Israel is just a recipe for continued impunity."

Under other amendments adopted today, before a victim can file a case directly in the future, there must be some link with Belgium, either because the suspect is on Belgium soil, because the crimes took place in Belgium or because the victim is Belgian or has lived in Belgium for three years. If there is no such link, the victim can take the case to the state prosecutor who must bring the case unless it appears unfounded or unless an international court or the courts where the crimes took place or of the suspect's home state offer a fair, independent and more effective avenue to justice. The victims can appeal the prosecutor's decision not to act.

Background to the Belgian Law

A 1993 law gives Belgian courts the authority to hear criminal complaints by victims accusing officials of genocide, crimes against humanity and war crimes abroad, regardless of where the crimes took place, whether the suspect or the victims are Belgian and whether the accused is in Belgium. The Belgian law puts into practice the international law principle of "universal jurisdiction" which holds that every state has an interest in bringing to justice the perpetrators of particular crimes of international concern. Prosecutions based on universal jurisdiction are an essential part of the emerging system of international justice. They help to break down the wall of immunity with which tyrants and torturers protect themselves in their own countries.

There has been one trial thus far under the Belgian law. Four Rwandans were convicted in June 2001 by a Belgian jury on charges of involvement in the 1994 genocide in their country.

As in most French-inspired civil law countries, Belgium gives victims the right to file a complaint directly before an investigating judge (juge d'instruction). Cases have been filed in Belgium against Mauritanian President Maaouya ould Sid'Ahmed Taya, Iraqi President Saddam Hussein, Israeli Prime Minister Ariel Sharon, Ivory Coast President Laurent Gbagbo, Rwandan President Paul Kagame, Cuban President Fidel Castro, Central African Republic President Ange-Felix Patasse, Republic of Congo President, Denis Sassou Nguesso, Palestinian Authority President Yassir Arafat, former Chadian President Hissene Habre, former Chilean President Gen. Augusto Pinochet, former Iranian president Hashemi Rafsanjani former Moroccan interior minister Driss Basri, former Foreign Minister Abdoulaye Yerodia Ndombasi of the Democratic Republic of the Congo, among others. Many of these cases have not been actively pursued, however. The case of Laurent Gbagbo has been dismissed. In addition, the cases against sitting officials will not go forward in light the ruling in the Sharon case that top state officials enjoy immunity while in office.

The establishment of a permanent International Criminal Court (ICC) may also relieve some pressure on Belgium. The ICC has jurisdiction over cases of genocide, war crimes, and crimes against humanity when national courts are unable or unwilling to prosecute. The ICC, however, will be prospective only - addressing crimes committed after its statute went into effect on July 1, 2002. In addition, the ICC suffers from a jurisdictional regime which requires that, in the absence of a Security Council referral, either the state on whose territory the crimes were committed or the state of nationality of the accused be a party to the statute or consent to jurisdiction. As the state of territory and nationality will often in practice be one and the same state, and that state may well not be a state party, many future atrocities may be outside of the court's reach.

[The Case Against The Accused]