Practice Relating to Rule 161. International Cooperation in Criminal Proceedings
Section A. Cooperation between States
Belgium’s Law of War Manual (1983) states:
The States Signatory to the [1949 Geneva] Conventions have engaged to take a series of measures in order to promote their respect. These measures can be summarized as follows:
3) search for, identification and prosecution before the own courts of the authors of grave breaches, whatever their nationality may be, or extradition of these authors to the State which requests for it, within the limits of the legislation in force.
Belgium’s Law Containing the Preliminary Title of the Code of Criminal Procedure of 1878, as amended, provides:
Seized with a complaint pursuant to the paragraphs above [including for serious violations of international humanitarian law] the Federal Prosecutor requires the investigating magistrate to conduct an enquiry into the complaint unless … on the basis of the specific circumstances of the case, it is clear that, in the interest of the proper administration of justice and in compliance with Belgium’s international obligations, the matter should be brought … before a court in the place where the facts occurred, or before the courts of the State of which the perpetrator is a national or those of the place where he is present, provided that that court displays the qualities of independence, impartiality and equity resulting inter alia from the relevant international commitments binding on Belgium and that State.
Belgium’s Law relating to the Repression of Grave Breaches of International Humanitarian Law (1993), as amended in 2003, provides:
Seized with a claim pursuant to paragraph 2, the Federal Prosecutor shall request the investigating judge to conduct an investigation into the claim, except if … it results from the specific circumstances of the case that, in the interest of the good administration of justice and in compliance with Belgium’s international obligations, this case should be brought before … either the court of the place where the acts were committed, or before the court of the State of which the perpetrator is a national, or before the court of the place where he may be found, and to the extent that this court is competent, independent, impartial and fair.
In 2002, upon ratification of the 2000 Optional Protocol on the Involvement of Children in Armed Conflict, Belgium declared:
The Government of the Kingdom of Belgium shall not act upon a request for judicial cooperation where doing so would lead to discrimination between governmental and non-governmental forces in violation of the principle of international humanitarian law of equality of parties to a conflict, including in the event of armed conflict of a non-international nature.