Avis du Conseil d'Etat sur l'examen d'un projet de loi « portant assentiment au Statut de Rome de la Cour pénale internationale, fait à Rome le 17 juillet 1998 »
||CONSEIL D'ÉTAT, section de législation, deuxième chambre
||Avis du Conseil d'Etat du 21 avril 1999, Parliamentary Document 2-239 (1999/2000), p. 94.
Except for certain specific cases, ministers are required by law to request the opinion of the Council of State on all legislative proposals. The opinions rendered by the Council are not, however, binding in law. The opinion on the draft law on approval of the ICC Statute was issued following a request from the Minister of Foreign Affairs. The proposal under review contained a provision stating that "the Rome Statute of the International Criminal Court adopted in Rome on 17July 1998, shall have full and complete effect" [Le Statut de Rome de la Cour pénale internationale, fait à Rome le 17 juillet 1998, sortira son plein et entier effet]. In its opinion, the Council of State examined several constitutional issues raised by the ratification of the ICC Statute and concluded that the Rome Statute was inconsistent with a number of constitutional provisions. In order to avoid amending several scattered provisions which would render the Constitution difficult to understand, it suggested adding a new provision: "The State adheres to the Statute of the International Criminal Court adopted in Rome on the 17 July 1998."
The Belgian Government chose to ratify the Statute before the Constitution was amended. It reckoned that since ratification by 60 States was required for the entry into force of the Statute, it had time to make the necessary constitutional and legislative adaptations if needed and that, in any case, if Belgium ratified the Statute, its provisions would have direct effect in domestic law and would prevail over any contrary legal provisions, including constitutional provisions (Rapport fait au nom de la Commission des relations extérieures et de la défense, Exposé introductif du Vice-premier Ministre et Ministre des Affaires étrangères, Doc. Parl. 2-329/2 (1999/2000), p. 1-5).
The Law approving the Rome Statute of the International Criminal Court adopted in Rome on 17 July 1998 [Loi portant assentiment au Statut de Rome de la Cour pénale internationale, fait à Rome le 17 juillet 1998] was adopted on 25 May 1998. Belgium ratified the ICC Statute on 28 June 2000.
The Council of State noted at the outset that under the Belgian Constitution a Belgian court cannot relinquish its competence in favour of the ICC. The Constitution provides that no one may be subtracted against its will from the judge that the law has assigned to him ("Nul ne peut être distrait, contre son gré, du juge que la loi lui assigne." (Art. 13).
The Council of State was of the opinion that if the power of the Security Council to request the deferral of an investigation or prosecution before the ICC for a renewable period of twelve months under Article 16 ICC was construed as extending to investigation and prosecution by national authorities, it would be contrary to the principle of judicial independence. It would be contrary to that principle if a non-judicial body could intervene to prevent Belgian judicial authorities from investigating or prosecuting cases. In addition, such deferral could irremediably compromise the public prosecution (in particular with regard to the collection of evidence) and imperil the right of the accused to be tried within a reasonable period. In its explanatory notes on the draft law (Exposé des motifs, Doc. parl. 2-329/1, 1999/2000, p.7), the Belgian Government stated that Article 16 ICC was not to be interpreted as applicable to proceedings before national tribunals. On the contrary, if proceedings before the ICC were suspended, nothing would prevent competent national authorities from acting in its place.
Similarly, the Council of State held that if Article 108 ICC was to be construed as subjecting to the approval of the ICC the prosecution and conviction of persons already convicted by the ICC for offences committed before their trial, that provision would be contrary to the principle of judicial independence, which is protected by Article 14 of the UN Covenant on civil and political rights (1966) and Article 151 of the Belgian Constitution. In its explanatory notes on the draft law (Exposé des motifs, Doc. parl. 2-329/1, 1999/2000, p. 7), the Belgian Government noted that this difficulty could be overcome by adding a provision to the Constitution to the effect that the State adheres to the Rome Statute.
The Council of State also examined the compatibility of Article 27 ICC (irrelevance of official capacity) with the immunity regimes for the King and for members of Parliament, and the special procedures established for the arrest and prosecution of a member of Parliament or of Government (privilèges de juridiction). Under Belgian constitutional law, the immunity of the King is absolute. It covers both acts committed in the performance of its duties and acts committed outside (Art. 88 of the Constitution states that "la personne du Roi est inviolable ..."). Members of Parliament enjoy immunity from civil and criminal responsibility for the opinions they express or votes they cast in the performance of their duties. The Council was of the opinion that Article 27 ICC was contrary to the immunities established by the Belgian Constitution.
As for the privilèges de juridiction, the Council pointed out that the Constitution requires that the prosecution of a member of the Chamber of Representatives or of Government must be authorized by Parliament. Article 27 ICC would be inconsistent with such constitutional requirements. With regard to the penal responsibility of ministers, the Council observed that Article 27 ICC was not contrary to the constitutional provision which requires that ministers be tried before the Court of Appeal (Art. 103 of the Constitution), since such jurisdiction could be transferred to an institution of public international law. Nonetheless, the arrest of a minister or a summons for him to appear before the Court of Appeal is subject to authorization by the Chamber of Representatives. A refusal by the Chamber to grant such authorization when the acts have been committed in the performance of the suspect's duties is final. It is practically equivalent to perpetual immunity, and thus would prevent the trial of a minister before the ICC. In its explanatory notes on the draft law (Exposé des motifs, Doc. parl. 2-329/1, 1999/2000, p.7), the Belgian Government noted that the adaptation of the Constitution to accommodate Article 27 ICC could be provided for in the next declaration of constitutional revision. The difficulty could be overcome by adding a provision to the Constitution stating that the State accedes to the Rome Statute.
Finally, the Council considered that exercising the King's right of pardon, as provided for in Articles110 and 111 of the Belgian Constitution, was not inconsistent with the ICC Statute. Royal pardon is territorial in nature: the King may exercise his right only with regard to penalties imposed by Belgian courts.