Related Rule
Belgium
Practice Relating to Rule 157. Jurisdiction over War Crimes
Belgium’s Law of War Manual (1983) states:
The States signatory to the [1949 Geneva] Conventions undertook to take a series of measures to promote respect thereof.
These measures can be summarized as follows:
3) search for, identification of and prosecution by the national courts of the authors of grave breaches, regardless of their nationality, or delivery (extradition) of those authors to the State asking for them, within the limits of the legislation in force. 
Belgium, Droit Pénal et Disciplinaire Militaire et Droit de la Guerre, Deuxième Partie, Droit de la Guerre, Ecole Royale Militaire, par J. Maes, Chargé de cours, Avocat-général près la Cour Militaire, D/1983/1187/029, 1983, p. 55.
Belgium’s Law Containing the Preliminary Title of the Code of Criminal Procedure of 1878, as amended, provides:
Any Belgian or any person having his principal residence in the territory of the Kingdom who has committed the following offences outside the territory of the Kingdom may be prosecuted in Belgium:
1 bis. a serious violation of international humanitarian law set forth in Book II, Title I, of the Penal Code. 
Belgium, Law Containing the Preliminary Title of the Code of Criminal Procedure, 1878, as amended, Article 6, § 1 bis.
The Law further provides:
Apart from the cases referred to in Articles 6 and 7(1), an alien who has committed the following offences outside the territory of the Kingdom may be prosecuted in Belgium:
1 bis. a serious violation of international humanitarian law set forth in Book II, Title I, of the Penal Code, committed against a person holding, at the time of the offence, Belgian nationality (or a person having been recognized as a refugee in Belgium and having there his habitual residence under the 1951 Geneva Convention relating to the Status of Refugees and the Additional Protocol thereto), or a person whose effective, habitual and legal residence has been in Belgium for at least three years.
Prosecution, including the inquiry into the facts of a case, may only be instituted at the request of the Federal Prosecutor, who shall assess any complaints. 
Belgium, Law Containing the Preliminary Title of the Code of Criminal Procedure, 1878, as amended, Article 10, § 1 bis.
The Law also provides:
Apart from the cases referred to in Articles 6 to 11, Belgian courts shall also have jurisdiction on offences committed outside the territory of the Kingdom and set forth in a rule of treaty or customary international law or in a rule of secondary European Union law by which Belgium is bound, when such a rule requires Belgium, in any way, to submit the matter to its competent authorities for prosecution.
Prosecution, including the inquiry into the facts of a case, may only be instituted at the request of the Federal Prosecutor, who shall assess any complaints. 
Belgium, Law Containing the Preliminary Title of the Code of Criminal Procedure, 1878, as amended, Article 12 bis.
Belgium’s Law concerning the Repression of Grave Breaches of the Geneva Conventions and their Additional Protocols (1993), as amended in 1999, which provides for the punishment of genocide (Article 1(1)), crimes against humanity (Article 1(2)) and grave breaches of the 1949 Geneva Conventions and 1977 Additional Protocols (Article 1(3)), states: “The Belgian courts shall be competent to deal with breaches provided for in the present Act, irrespective of where such breaches have been committed.” 
Belgium, Law concerning the Repression of Grave Breaches of the Geneva Conventions and their Additional Protocols, 1993 as amended in 1999, Article 7.
Belgium’s Law relating to the Repression of Grave Breaches of International Humanitarian Law (1993), as amended in 2003, provides:
Subject to the withdrawal of jurisdiction in the cases provided in the following paragraphs, Belgian courts shall have jurisdiction on the offences set forth in the present law, irrespective of the place where they have been committed and even if the presumed perpetrator is not found in Belgium.
However, public prosecution may only be triggered upon the initiative of the Federal Prosecutor when:
1. the offence has not been committed on the territory of the Kingdom;
2. the presumed perpetrator does not hold Belgian nationality;
3. the presumed perpetrator is not found on the territory of the Kingdom; and
4. the victim does not hold Belgian nationality, nor has he been residing in Belgium for at least three years. 
Belgium, Law relating to the Repression of Grave Breaches of International Humanitarian Law, 1993, as amended on 23 April 2003, Article 7, § 1(1)(2).
In The Four from Butare case in 2001, a Belgian Court found four Rwandans guilty of war crimes during the 1994 genocide in Rwanda. The accused were arrested under the Law concerning the Repression of Grave Breaches of the Geneva Conventions and their Additional Protocols as amended and charged with grave breaches of the 1949 Geneva Conventions and of 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. 
Belgium, Cour d’Assises de Bruxelles, The Four from Butare case, Judgment, 7–8 June 2001.
The judgment was confirmed by Belgium’s Court of Cassation in 2002. 
Belgium, Court of Cassation, The Four from Butare case, Judgment, 9 January 2002.
In 2003, in the Ariel Sharon & Amos Yaron case, the Second Chamber of Belgium’s Court of Cassation held:
IV.
A.
Whereas, indeed, by virtue of Article 12bis of the law of 17 April 1878, amended by the law of 18 July 2001, a clause which ought to be read in combination with its preceding clause, Belgian courts may equally enjoy jurisdiction to try those offenses committed outside the territory of the Kingdom which are the subject of an international treaty to which Belgium is a party, as long as this treaty imposes upon Belgium, in whatever manner, the duty to submit the matter to its competent authorities for prosecution;
Whereas it follows from the very text of Article 12bis cited above that jurisdiction as conferred upon Belgian courts concerns crimes provided by all treaties ratified by Belgium containing a binding rule for the extension of jurisdiction in derogation from the principle of territoriality under criminal law;
Whereas neither Articles V nor VI of the Convention for the Prevention and Punishment of the Crime of Genocide [1948 Genocide Convention], nor the Rome Statute [1998 ICC Statute], nor Articles 49-50-129-146 of the four Geneva Conventions of 12 August 1949, contain such a rule;
That crimes of international law as provided by the law of 16 June 1993, amended by the law of 10 February 1999, falling outside the scope of the terms of Chapter II of the Preliminary Title of the Code of Criminal Procedure, do not constitute crimes for which prosecution requires the presence of the accused in Belgium when the crimes in question have been committed outside of the territory;
That, since it holds the opposite, the contested decision is therefore not legally justified. 
Belgium, Court of Cassation, Ariel Sharon & Amos Yaron case, Judgment, 12 February 2003, pp. 5–8, § IV(A).
In 2003, in the B.P. et al. case, the Second Chamber of Belgium’s Court of Cassation held:
… the residence condition, as provided in Article 10§1bis of the Preliminary Title of the Code of Criminal Procedure, should be fulfilled by the victim of a grave breach of international humanitarian law , and not by the complainant;
Whereas, alternatively, the complainants invoke the principle of extraterritorial jurisdiction envisaged in Article 12bis of the said Preliminary Title;
… this criterion is not fulfilled, since no existing rule of international humanitarian law requires Belgium to exercise universal jurisdiction by default with regard to the crimes which giving rise to the present case. 
Belgium, Court of Cassation, B.P. et al. case, Judgment, 17 December 2003, p. 2.
In 2004, in the TotalFinaElf et al. case, the Second Chamber of Belgium’s Court of Cassation held:
… it follows from the text of Article 12bis of the Preliminary Title of the Code of Criminal Procedure that the jurisdiction it confers upon Belgian courts concerns crimes provided by all treaties ratified by Belgium containing a binding rule for the extension of jurisdiction in derogation from the principle of territoriality under criminal law; … this provision allows the extension of jurisdiction of Belgian courts in case international law so requires, but … presently no international rule exists imposing universal jurisdiction by default upon Belgian courts. 
Belgium, Court of Cassation, TotalFinaElf et al. case, Judgment, 5 May 2004, § III.
In 2004, in the K.P. et al. case, the Second Chamber of Belgium’s Court of Cassation held:
… the jurisdiction that Article 12bis of the Preliminary Title of the Code of Criminal Procedure confers upon Belgian courts concerns crimes provided by all treaties ratified by Belgium containing a binding rule for the extension of jurisdiction in derogation from the principle of territoriality under criminal law; … this provision allows the extension of jurisdiction of Belgian courts in case international law so requires, but … presently neither Articles 146 and 147 of Geneva Convention [IV] of 12 August 1949, nor the Rome Statute of the International Criminal Court of 17 July 1998, or the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984, or any other international norm presently imposes universal jurisdiction by default upon Belgian courts. 
Belgium, Court of Cassation, K.P. et al. case, Judgment, 19 May 2004, § III.
In 2005, in the Law on grave breaches of international humanitarian law case, Belgium’s Court of Arbitration held:
B.6.2. It rests with the legislator to determine, in conformity with international obligations and with the principles of equality and non-discrimination, the modalities for the exercise of public action in case of grave breaches of international humanitarian law or other grave breaches committed outside the Belgian territory.
The fact that the legislator has opted for universal jurisdiction does not prevent it from reconsidering this option and limit the possibility to bring an action for those crimes which have their source in international law.
B.6.3. … the legislator could reasonably find it necessary to limit extra-territorial criminal jurisdiction for grave breaches of international humanitarian law, and, in particular, to require the perpetrator’s or the victim’s personal attachment to the country. Equally, it could reasonably find it necessary to limit in certain circumstances the possibility of triggering public prosecution, by conferring this power exclusively upon the Federal Prosecutor.
However, the Court has to establish whether, by precluding in certain circumstances the victims from triggering public prosecution through “constitution de partie civile”, the contested provisions have disproportionately infringed upon the rights of the victims concerned.
B.7.4. By conferring the power to initiate proceedings exclusively upon the Federal Prosecutor for the crimes provided for in Articles 10§1bis and 12bis of the Preliminary Title of the Code of Criminal Procedure [grave breaches of international humanitarian law], the contested measure does not infringe disproportionately upon the rights of the victims.
This monopoly on the initiation of proceedings stems from the will to set up a centralization and coordination body for the exercise of public action with regard to these breaches.
Furthermore, the Federal Prosecutor, far from possessing a discretionary competence on the matter, can only decide to discontinue proceedings on any one of the four grounds specifically provided for by the law: a claim is manifestly ill-founded, there is an error of qualification, inadmissibility, or the particular circumstances of the case suggest that another jurisdiction would be more appropriate.
B.7.6. … However, by not allowing under any circumstances for a Federal Prosecutor’s decision to discontinue proceedings to be reviewed by an independent and impartial judge, [the legislator] has adopted a measure which goes beyond the objective it pursues. 
Belgium, Court of Arbitration, Law on grave breaches of international humanitarian law case, Judgment, 23 March 2005, §§ B.6.2, 6.3, 7.4 and 7.6.
In its oral pleadings before the ICJ in the Arrest Warrant case in 2000, Belgium addressed the issue of compatibility of its law containing the principle of universality with international law as well as universal jurisdiction as such and stated:
Article 7 of the Law enshrines the universal jurisdiction of the Belgian courts. They may deal with the offences referred to in the Law irrespective of the nationality of the perpetrator or where the offence was committed.
This jurisdiction is entirely consistent with the second paragraph of the Article common to the four 1949 Geneva Conventions (Articles 49, 50, 129 and 146 respectively) … The jurisdiction that the State must therefore exercise is a universal jurisdiction, which can today be regarded as generally accepted, as it is found in a number of international criminal law conventions. 
Belgium, Oral pleadings before the ICJ, Arrest Warrant case, 21 November 2000, Verbatim Record CR 2000/33, § I.A (7).
In later pleadings in the same case, Belgium stated that in its contention, “the permissive rules concerning the exercise of universal jurisdiction … in circumstances in which serious violations of international humanitarian law are alleged, permit Belgium to take the course that it has followed”. 
Belgium, Oral pleadings before the ICJ, Arrest Warrant case, 17 October 2001, Verbatim Record CR 2001/8, p. 50.
Referring to Article 49 of the 1949 Geneva Convention I, Article 50 of the 1949 Geneva Convention II, Article 129 of the of the 1949 Geneva Convention III and Article 146 of the 1949 Geneva Convention IV, Belgium further stated that these provisions contained the obligation of States to prosecute the authors of crimes defined by the Conventions, regardless of their nationality and of the place of the crime, as long as they were present on the territory of the State exercising its jurisdiction. According to Belgium, such an obligation also existed as regards crimes against humanity, resulting from customary and treaty law. 
Belgium, Oral pleadings before the ICJ, Arrest Warrant case, 18 October 2001, Verbatim Record CR 2001/9, § 10(6).
According to the Report on the Practice of Belgium, it is the opinio juris of Belgium that it has the right to consider “grave breaches” committed also in the context of non-international conflicts as punishable under Belgian penal law, regardless of the nationality of the alleged perpetrator or the victim or of the place where the act was committed, on the basis of universal jurisdiction. 
Report on the Practice of Belgium, 1997, Chapter 6.4.
In a meeting with the Human Rights Committee in 2004 to discuss its fourth periodic report submitted in 2003, Belgium stated:
7. … Belgium’s withdrawal of a warrant for the arrest of former Congolese minister Mr. Yerodia Aboulaye Ndombasi following a relevant decision by the International Court of Justice in The Hague indicated its willingness to assume responsibility when found to be contravening provisions of international agreements to which it was a party.
8. The concept of universal jurisdiction drew legitimacy from an interpretation of the Geneva Conventions, by virtue of which offences recognized by the community of nations as of universal concern, such as war crimes, could be prosecuted by individual States. The above-mentioned proceedings instituted against Mr. Ndombasi, had been declared inadmissible owing to the defendant’s immunity and not because of the inapplicability of universal jurisdiction.
9. The Belgian universal jurisdiction law had not been repealed as such. However, in 2003 a series of provisions stipulating the necessity of a link with the prosecuting State had been introduced, which restricted its scope. A question had been raised concerning the legal status of persons whose complaints were no longer admissible under the amended legislation. There had been concern that the new provisions might violate the victim’s right to effective recourse.
10. The majority of complaints that had been declared inadmissible on the basis of the new criteria had concerned cases where the accused enjoyed immunity. By rejecting such cases, Belgium was complying with a relevant decision of the International Court of Justice. 
Belgium, Summary record of meeting with the Human Rights Committee of 13 July 2004 in relation to the fourth periodic report under the International Covenant on Civil and Political Rights, UN Doc. CCPR/C/SR.2199, 23 July 2004, §§ 7–10.