Practice Relating to Rule 151. Individual Responsibility
Belgium’s Law concerning the Repression of Grave Breaches of the Geneva Conventions and their Additional Protocols (1993), as amended in 1999, provides a list of punishable acts or omissions (“grave breaches”) committed against persons protected by the 1949 Geneva Conventions and both the 1977 Additional Protocol I and the 1977 Additional Protocol II.
The 1993 law was amended in 1999 to expand the range of crimes to which it applied. Since then, the crime of genocide and crimes against humanity also constitute punishable crimes under this Law.
In the Violations of IHL in Somalia and Rwanda case
in 1997, a Belgian Military Court acquitted two Belgian soldiers accused of having injured and threatened, in 1993, the civilian population whilst performing duties as part of the UNOSOM II peacekeeping operation in Somalia. The Court came to the conclusion that the 1949 Geneva Conventions and their 1977 Additional Protocols were not applicable to the armed conflict in Somalia and that, therefore, the civilian population could not be granted protection on this basis. The Court held that even common Article 3 of the 1949 Geneva Conventions did not apply to the situation, as the Somali militia did not have an organized military structure, a responsible leadership or exercise authority over a specific part of the territory. Consequently, Belgium’s Law concerning the Repression of Grave Breaches of the Geneva Conventions and their Additional Protocols (as amended) was also inapplicable. The Court further stated that the members of the UNOSOM II mission could not be considered as “combatants” since their primary task was not to fight against any of the factions, nor could they fall into the category of an “occupying force”.
In The Four from Butare case
in 2001, a Belgian court found the accused individually responsible and guilty of war crimes during the 1994 genocide in Rwanda. The four Rwandans had been arrested under the Law concerning the Repression of Grave Breaches of the Geneva Conventions and their Additional Protocols (as amended). They had been charged with violations of grave breaches of provisions of the 1949 Geneva Conventions and the 1977 Additional Protocol I, as well as violations of common Article 3 of the 1949 Geneva Conventions and Articles 1, 2 and 4 of the 1977 Additional Protocol II.
In 2002, the judgment was confirmed by the Belgian Court of Cassation.
Belgium’s Law concerning the Repression of Grave Breaches of the Geneva Conventions and their Additional Protocols (1993), as amended in 1999, provides:
Where a breach provided for in the present Act [i.e. genocide, crimes against humanity and a list of war crimes] falls under the competence of a military court, public prosecution shall be instituted through a summons issued by the Public Prosecutor’s Office for the accused to appear before the trial court or through a complaint filed by any person claiming to have suffered injury as a result of the breach and bringing a suit for damages before the president of the judicial commission at the Conseil de Guerre
[Court Martial] under the conditions provided for in Article 66 of the Code of Criminal Investigation.
At the Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court in 1998, the Belgian Minister of Foreign Affairs stated that Belgium was in favour of inserting in the ICC Statute provisions that would permit the Court to rule on reparation claims.