TCS Daily

From Brussels With Love

By Christian D. de Fouloy - August 20, 2003 12:00 AM

In its original format dating back to 1993, Belgium's so-called "universal competence" law allowed virtually anyone to use Belgian courts to bring war crimes, genocide and crimes against humanity charges against virtually anyone else, regardless of where those alleged crimes were committed or where the defendants may happen to be at the time.


The law was first applied against Rwandans implicated in that country's 1994 genocide but has been used since by human rights campaigners, political groups and others to file complaints against such international figures as U.S. President George W. Bush, Vice President Dick Cheney, National Security Advisor Condoleezza Rice, Defense Secretary Donald Rumsfeld and General Tommy Franks.

Suits have also been filed against former President George Bush, retired General Norman Schwarzkopf and Secretary of State Colin Powell (for alleged crimes during the 1991 Gulf War), as well as against U.K. Prime Minister Tony Blair, Israeli Prime Minister Ariel Sharon, Palestinian leader Yasser Arafat, Cuban President Fidel Castro, and former Chilean dictator Augusto Pinochet. They've even been filed against Belgium's own current foreign minister, Louis Michel.


Relations between Brussels and Washington have been poor since the start of the Iraq crisis, when Belgium joined the French-led "coalition of the unwilling" in opposing war and in splitting NATO along with France and Germany by refusing to back a U.S. request to boost Turkey's defenses.

The increasingly political use of the universal competence law only threatened to make things worse. The U.S. warned Belgium that its status as an international hub might be jeopardized by this kind of legislation, since it would affect the ability of people to travel to Belgium. Powell noted that officials from several nations at NATO headquarters in Brussels had problems with the law making them vulnerable to frivolous litigation. In the most blunt confrontation, Rumsfeld warned publicly that American officials would be unable to come to NATO and hinted that financing for a new headquarters would not be forthcoming.


At first Belgium reacted by watering down the law to allow the government to dismiss politically motivated or "propaganda" cases by transferring them to courts in the defendants' home country. But the U.S. insisted it wanted more done to prevent complaints being filed in the first place, preferably by repealing the entire law. Britain and Spain agreed.


Now the Belgian government, newly reformed for the second term of Prime Minister Guy Verhostadt, has repealed the law altogether. It has been replaced with a new text that has considerably less scope and is more in line with those on the books in other Western countries.


Immunity will be accorded to foreign leaders, and a direct link with Belgium must exist before victims can file a legal suit. In cases where a victim is claiming damages in a criminal case, the suit can only be filed if either the defendant's primary residence is located in Belgium or they hold Belgian nationality. However, a victim not seeking damages can still ask a federal judge to bring a case if the victim is Belgian or has lived in the country for at least three years at the time of the alleged crime. Before taking action, the Belgian federal judge must take into consideration multilateral treaties such as those in the EU or the North Atlantic.


The change resolves the diplomatic dispute between Belgium and the U.S. But the bad feelings are likely to continue for a while.


It's not hard to see why Belgium would change the law, considering that its international role creates some 55,000 jobs and is worth up to €6 billion. Henry Kissinger has argued that the one-sidedness of the current pursuit of universal jurisdiction could threaten the very purpose for which the concept has been developed. In the end, an excessive reliance on universal jurisdiction may undermine the political will to sustain the humane norms of international behavior so necessary to temper the violent times in which we live. Kissinger believes that in time, it may be possible to renegotiate the International Criminal Court (ICC) statute to avoid its shortcomings and dangers. Until then, the United States should go no further toward a more formal system than one containing the following three provisions:


First, the U.N. Security Council would create a Human Rights Commission or a special subcommittee to report whenever systematic human rights violations seem to warrant judicial action. Second, when the government under which the alleged crime occurred is not authentically representative, or where the domestic judicial system is incapable of sitting in judgment on the crime, the Security Council would set up an ad hoc international tribunal on the model of those of the former Yugoslavia or Rwanda. And third, the procedures for these international tribunals, as well as the scope of the prosecution, should be precisely defined by the Security Council and the accused should be entitled to the due process safeguards accorded in common jurisdictions. In this manner, internationally agreed procedures to deal with war crimes, genocide, or other crimes against humanity could become institutionalized.


As to the future of Belgo-American relations, good economic common sense will prevail in the end. Today, there are more than 1,500 American companies doing business in Belgium. They generate 110,000 jobs directly and twice that amount indirectly. The Belgian government continues to welcome additional American firms interested in entering the European market or looking for European headquarters. On average, Belgium attracts around 3 percent of the total U.S. foreign direct investment in the EU. On the other side, the accumulated value of total Belgian investments in the U.S. at the end of 2001 represented $15 billion, or 1.8 percent of all EU investments. This is about twice as much as Spanish investments.


Now that the war in Iraq is over, passions have cooled. Day by day, events sharpen the conviction of many Americans that no country alone can successfully accomplish enormous challenges such as nation building in Iraq. The magnitude of what must be done and the implications for the Middle East as a whole of success or failure, calls for cooperation between both sides of the Atlantic. Within this perspective, it is most important to put the Belgium-U.S. relationship back on track and to re-establish a sincere dialogue between Washington and Brussels.   


Christian D. de Fouloy is Senior Research Fellow at the European Enterprise Institute.


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