INTERNATIONAL C OURT OF J USTICE
Questions relating to the Obligation to Prosecute or Extradite
(Belgium v. Senegal)
Comments of the Kingdom of Belgium on the replies given by the
Republic of Senegal to the questions put by certain judges
I. Comments on the replies given by Senegal to the question put by Judge Greenwood
1. In its comments on the question put by Judge Greenwood, Senegal partially described
Belgium’s legislation regarding the extraterritori al jurisdiction of the Belgian courts over, for
example, war crimes and crimes against humanity 1. For clarification, Belgium will very briefly
retrace the history of that legislation, so that the Court is fully informed on the matter.
2. In 1993, the legislature gave the Belgian c ourts extraterritorial jurisdiction, described as
absolute universal jurisdiction, over acts constituting grave breaches of the Geneva Conventions of
12 August 1949 and of its firs t two Additional Protocols . In 1999, that jurisdiction was extended
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to cover crimes of genocide and crimes against humanity . It was this legislation which, in 2000,
enabled the Belgian judicial authorities to deal with the acts of which Hissène Habré is accused:
Article7, paragraph1, of the Law in question provided that “[t]he Belgian courts shall have
jurisdiction to deal with the grave breaches contemplated in the present Law, regardless of the
place where they were committed.” [Translation by the Registry.] No bond of attachment was laid
down as a condition for this jurisdictional rule.
3. Following the entry into force of the Rome Statute of the International Criminal Court, the
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Belgian legislature repealed the above legisl ation by means of the Law of 5August 2003 , which
then incorporated into the Preliminary Title of the Code of Criminal Procedure (PTCCP) the rules
on extraterritorial jurisdiction of the Belgian courts over, in particular, war crimes and crimes
against humanity.
4. Three new provisions of this Preliminary Title have thus since embodied the rules on
extraterritorial jurisdiction in this respect: Articles 6, 10 and 12bis. These three provisions are also
supplemented by a transitional provision (Article 29 of the Law of 5 August 2003).
5. Firstly, Article6 of the modified PT CCP provides for the traditional active personal
jurisdiction of the Belgian courts to be extende d to certain offences committed by persons whose
principal residence is in Belgian territory. These include war crimes and crimes against humanity.
1Letter of 28 March 2012 from the Agent of Senegal to the Registrar of the Court, Supplementary written replies
of the Government of Senegal to the que stions put by judges at the close of the hearing held on 16 March 2012, p.3;
CR 2012/7, 21 March 2012, pp. 28-31, paras. 9-32 (Thiam).
2Law of 13June 1993 on the punishment of grave breach es of the international Geneva Conventions of
12August1949 and of Additional Protoc olsI and II to those Conventions, Moniteur belge (hereinafter “ MB”),
5 August 1993.
3Law of 10February 1999 on the punishment of grav e breaches of international humanitarian lawMB,
23 March 1999.
4Law of 5 August 2003 on grave breaches of international humanitarian law, MB, 7 August 2003. - 2 -
6. Secondly, the Belgian legislature also conferred on the Belgian courts an extensive passive
personal jurisdiction (Article 10, paragraph 1bis, of the PTCCP), enabling them to deal with a war
crime or a crime against humanity committed by a foreigner outside Belgium against a person who,
at the time of the acts, was either a Belgian national or a person who had been habitually resident in
Belgium for at least three years.
In 2006, following a judgment by the Belgian Constitutional Court (known at that time as the
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Court of Arbitration) , the jurisdictional rules laid down by Article10, paragraph1 bis, of the
PTCCP were extended to victims who, at the time of the acts, were recognized as refugees in
Belgium and had their habitual residence in the territory of the Kingdom, pursuant to the
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1951 Convention relating to the Status of Refugees and its Protocol .
7. Thirdly, Article 12bis of the PTCCP, in its present version, provides that “[a]part from the
cases referred to in Articles6 to 11 [inc luding, therefore, Article 10, paragraph 1bis], the Belgian
courts shall also have jurisdiction to deal w ith offences committed outside the territory of the
Kingdom and covered by a rule of conventional or customary international law or by a rule of
European Union secondary law which is binding on Belgium, where that rule requires it, in
whatever manner, to submit the case to its competent authorities for the purposes of prosecution”
(emphasis added) [translation by the Registry].
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As was made clear during the parliamentary work on the Law , this provision means that the
Belgian courts have jurisdiction on the basis of the principle aut dedere aut judicare, for example
over war crimes and crimes against humanity. It also permits the direct application of Article7,
paragraph 2, of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment of 10 December 1984.
8. Fourthly, since jurisdictional rules were involved, these were applicable immediately to
proceedings already under way. The legislature therefore included, in the transitional provisions of
the 2003 Law referred to above, an Article 29 providi ng that the Belgian courts remained seised of
cases in which, at the time when the Law entered in to force, at least one measure of investigation
had been taken and where at least one complainan t held Belgian nationalit y at the time when the
prosecution was initially brought. That was indeed the case with the complaints filed against
Hissène Habré. The aim of the present Law is to maintain the jurisdiction of the Belgian courts
only where there is a bond of attachment with Belgiu m, be that the mere presence of the suspected
person in Belgium after the commission of the acts. Moreover, Article29 of the 2003 Law was
amended following the above-mentioned judgment of the Belgian Constitutional Court, the Belgian
courts remaining seised in the same circumstance s where at least one of the complainants was
recognized as a refugee in Belgium and had their habitual residence there, within the meaning of
the 1951 Convention relating to the Status of Refugees and its Protocol.
9. Furthermore, in order to take account of the Judgment of 14February 2002 rendered by
the Court in the case concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the
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Court of Arbitration, judgment .04/2006 of 2June 2006, available at: http://www.const-
court.be/public/f/2006/2006-104f.pdf.
6Law of 22 May 2006 amending certain provisions of the Law of 17 April 1878 containing the Preliminary Title
of the Code of Criminal Procedure and a provision of e Law of 5August 2003 on grave breaches of international
humanitarian law, MB, 7 July 2006.
7Chamber of Representatives, S2.003, DOC 51103/003, p8., 9 and 41, available at:
http://www.lachambre.be/FLWB/pdf/51/0103/51K0103003.pdf. - 3 -
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Congo v. Belgium) , the same Law inserted an Article 1bis into the PTCCP, paragraph 1 of which,
in its first indent, excludes the prosecution of fo reign Heads of State, Heads of Government and
Ministers for Foreign Affairs, during the period in which they exercise their functions, and of any
person whose immunity from jurisdiction is r ecognized by international law. The second
paragraph covers international immunity from enforcement.
10. Finally, while the jurisdiction of the Belgian courts based on Article 12bis of the PTCCP
is linked to the performance of an international obligation, as the wording of that article makes
perfectly clear, the broadened rules of active personal jurisdiction and the extensive rules of passive
personal jurisdiction are, for their part, based on the right of States to extend more widely the
jurisdictional rules applying to their courts 9. This extension of the rules of extraterritorial
jurisdiction must, however, abide by the other rele vant rules of international law, including those
relating to international immunities (see the points in para.9 above regarding Article1bis of the
PTCCP).
11. In conclusion, the extraterritorial jurisd iction of the Belgian courts in respect of the
complaints filed in Belgium against Hissène Habré was initially based on Article 7 of the 1993 Law
mentioned earlier (see para. 2 above). That jurisdiction has been maintained through and under the
terms of Article 29 of the 2003 Law referred to above (see para. 8).
II. Comments on the reply given by Senegal to the question put by Judge Abraham
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12. Belgium takes note of Senegal’s reply to the question put by Judge Abraham .
13. It observes that Senegal’s reasoning is based on the rules and jurisprudence applicable in
respect of diplomatic protection. However, Be lgium has already made clear in its reply to
JudgeAbraham’s question 11at in the present case, it has no intention whatever of exercising its
diplomatic protection .
14. Consequently, the fact that none of the co mplainants held Belgian nationality at the time
when the acts of which they claim to be the victims were committed is of no relevance.
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8Arrest Warrant of 11April2000 (Democratic Republic of the Congo v. Belgium), Judgment, I.C.J. Reports
2002, p. 3.
9“Lotus”, Judgment No.9, 1927 , P.C.I.J., SeriesA, No.10 , pp.18-19 and 30-31; Arrest Warrant of
11April2000 (Democratic Republic of the Congo v. Belgium), Joint Separate Opinion of Judges Higgins, Kooijmans
and Buergenthal, I.C.J. Reports 2002, p. 76, paras. 45-46; p. 80, paras. 57-58.
10Letter of 28 March 2012 from the Agent of Senegal to the Registrar of the Court, Supplementary written replies
of the Government of Senegal to the que stions put by judges at the close of th e hearing held on 16 March 2012, pp. 2-3;
CR 2012/7, 21 March 2012, pp. 25-27, paras. 1-7 (Thiam).
11CR 2012/6, 19 March 2012, pp. 52-53, para. 54 et seq. (Wood).
Written comments of Belgium on the replies or supplementary replies of Senegal to the questions put by Members of the Court at the close of the hearing held on 16 March 2012 (translation)