Belgian Waffle: A cautionary ICC tale

NRO ^ | 7/31/2003 | Carlos Ramos-Mrosovsky

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Belgian prime minister Guy Verhofstadt's new government has announced its intention to repeal Belgium's controversial war-crimes law, also known as the "universal-competence" law.

Good riddance.

The war-crimes law granted Belgian courts the authority to try any alleged war criminal, irrespective of where, when, and against whom his crimes may have been committed. Belgium's ill-conceived statute failed to bring even one war criminal to justice — though Belgian courts did become the venue of choice for groups seeking indictments against "war criminals" such as Henry Kissinger, Ariel Sharon, Tony Blair, Dick Cheney, Donald Rumsfeld, Tommy Franks, and both of the Presidents Bush.

The law's impending repeal is a victory for the Bush administration and opponents of U.S. accession to the International Criminal Court (ICC). The Belgian law's absurd history largely confirms the administration's view that permanent international judicial bodies will be exploited for political ends and inimical to U.S. interests. These events also deal a heavy blow to the misbegotten and dangerous idea of "universal jurisdiction."

The implications of Verhofstadt's decision for the ICC may not be obvious at first. The charges against Bush, Blair, Sharon, &c., were brought under a Belgian national law, not under the Rome Statute of the ICC. Yet the Belgian law amounted to the ICC statute writ small, asserting worldwide, or universal, jurisdiction over all war crimes and all alleged war criminals.

Universal jurisdiction — "universal competence" in Belgium's case — is a new and initially appealing concept in international law. Basically, the idea is that certain crimes — war crimes, genocide, crimes against humanity — are so heinous that those responsible should be subject to prosecution anywhere by anyone, regardless of national frontiers and various kinds of diplomatic immunity. Universal jurisdiction reached its high-water mark with the 1999 extradition case of Chilean dictator Augusto Pinochet.

Unfortunately, the concept's very universality is what makes it so dangerous. Its logical conclusion is that anyone can charge anybody over practically anything, since parties usually have self-interested and varying definitions of war crimes. Preposterous cases meddle with effective diplomacy, tamper with internal amnesties (as with Pinochet), and generate the kinds of abuses seen in Belgium.

The object of gross politicization — and a source of immense embarrassment for the Belgian government — the Belgian law failed in precisely the way the Bush administration has predicted that universal jurisdiction will fail in the ICC.

As U.S. pressure on Brussels to do something about the spurious lawsuits mounted, no one explained the problem better than the Belgians themselves. According to Verhofstadt, himself no great friend of the U.S., "certain people and certain organizations, pursuing their own political agenda, systematically use[d] this law in an abusive manner." Or, as Belgian foreign minister Louis Michal deliciously put it, the law and its implementation have become "mad, ridiculous, irrational and malign."

Indeed, no one had as much to lose as the Belgians themselves. Brussels, the diplomatic home to NATO (and the EU), faced Donald Rumsfeld's threat to move the alliance's headquarters elsewhere if the legal harassment of U.S. officials continued.

Compared to the potential harm that the ICC could do to the United States and its allies, the damage from the Belgian law was slight. No one was ever actually tried wrongfully (or rightfully), and many of the cases were sensibly dismissed. Even so, the political charges still got unacceptably far, especially in the case of Israeli prime minister Ariel Sharon. The cour de cassation, Belgium's highest appeals court, ruled that Sharon's position as head of state insulated him from prosecution — but that he could stand trial for war crimes upon leaving office!

Belgium's ill-starred attempt to enshrine universal jurisdiction in its war-crimes legislation should serve as a cautionary tale about the potential of the ICC. We now know how permanent international courts will be used: badly. The exploitation and failure of one institution presages the exploitation and failure of another.

The Verhofstadt government is now replacing the old war-crimes law with a new Genocide Act that confines prosecutions to cases wherein the victim or perpetrator is a Belgian national or resident. The new law passed the Belgian parliament's lower house by a margin of 89 to 3 on Tuesday and is expected to pass through the Belgian senate just as easily. Reason and Rumsfeld have prevailed.

After considering the failure of Belgium's Universal Competence Law, it is instructive to imagine the problem greatly magnified, only this time in the form of an International Criminal Court. What was an annoyance in Belgium would be a menace on a global scale. In Belgium, a ragtag set of plaintiffs — mostly radical NGOs and angry Middle Easterners — pushed for indictments. In the ICC, however, cases would be brought by the body's unaccountable international prosecutor or by states ratifying the ICC's Rome Statute.

With forces deployed worldwide and a long list of jealous rivals, the U.S. government has good reason to fear politicized prosecution of its soldiers and officials from the ICC. We would be naïve indeed if we did not expect other countries — even, or perhaps especially, our ostensible friends in Europe — to exploit the ICC as another arena for furthering their anti-American agendas. For the present, then, we must stay out of the ICC and continue to pursue agreements with foreign governments to protect American personnel from spurious and politicized charges (so-called Article 98 agreements).

All of this leaves unanswered the question of what to do about real war criminals. This was, after all, the noble purpose for which these various legal instruments were initially conceived. The best option is, ironically, that which the ICC would be used to impede: an active and forceful U.S. foreign policy. Ad hoc tribunals, specifically tailored to a particular set of crimes — for example, the Nuremberg court, the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR), and now Iraq's new war-crimes court — are a partial solution, and have met with some success. These institutions guarantee a degree of shared international purpose within a limited mandate that is less vulnerable to politicization.

As for the International Criminal Court, the lessons of Belgium should be clear. President Bush is right to say no and to say so forcefully.

— Carlos Ramos-Mrosovsky is an NR intern and a student at Princeton University. He is the founding editor of American Foreign Policy, a collegiate publication.

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