Arrest This: Against Belgium's self-righteous, illegitimate, kangaroo courts

National Review, June 16, 2003 by Lee A. Casey, David B. Rivkin Jr.

Once the war against Saddam Hussein reached a successful conclusion, the war against that war entered a new phase. Activists, asserting that the United States committed "war crimes" in Iraq, are even now in the process of initiating criminal prosecutions against American officials, including President George W. Bush and Gen. Tommy Franks, as well as British prime minister Tony Blair. These actions have been brought in Belgium and Switzerland; the Belgian government already has "referred" the Franks case to the U.S. Justice Department -- giving the U.S. an opportunity to punish its general lest the Belgian government do it for us.

This Belgian missive should be rejected and returned forthwith, along with a note politely explaining that the writ of Albert II, king of the Belgians, does not run on these shores -- and reminding his majesty's government that the U.S. has never taken kindly to such pretensions. An updated quote from Patrick Henry would be a nice touch: "Caesar had his Brutus, Charles I his Cromwell, and Albert II's ministers may profit by their example." To give this referral any other consideration would work to validate the profoundly flawed legal theory on which Belgium's actions are based.

Belgium's referral has been made under an assertion of "universal jurisdiction," and this is not the first time that Brussels has attempted to punish foreign leaders for what it defines as "international crimes." Under its "Law Concerning the Punishment of Serious Violations of International Humanitarian Law," Belgium's courts are even now considering allegations against as many as 30 foreign political leaders, including Israel's Ariel Sharon, as well as the first President Bush, Colin Powell, and Dick Cheney, on account of the 1991 Gulf War.

In 2000, a Belgian investigating magistrate actually issued an international arrest warrant against Congo's foreign minister, Abdoulaye Yerodia Ndombasi, alleging violations of the Geneva conventions and "crimes against humanity."

Whatever the substantive merits of Belgium's claims against Yerodia Ndombasi, its proceedings in that case can only be characterized as epic chutzpa -- considering its own sorry record of imperial brutality in what was, not so very long ago, the "Belgian" Congo. The claims were also legally unfounded, since, under international law, Belgium has no right to prosecute criminally offenses that did not take place in Belgium ("territorial" jurisdiction), were not perpetrated by Belgian nationals ("nationality" jurisdiction), did not victimize Belgian nationals ("passive personality" jurisdiction), and did not threaten Belgian national security ("protective" jurisdiction). In fact, Belgium's only claim of right to prosecute in this case was founded on the dubious doctrine of "universal" jurisdiction.

Not surprisingly, Congo rejected Belgium's claims, and challenged the arrest warrant before the International Court of Justice (ICJ). In February 2002, the ICJ ruled in Congo's favor -- although it never reached the fundamental question of Belgium's right to assert universal jurisdiction over foreign officials. Rather, it concluded that high- level government officials, such as a foreign minister, simply are immune from prosecutions by foreign judicial systems, noting that it was "unable to deduce from [the relevant state practice] under the well accepted rules of customary international law any form of exception to the rule according immunity from criminal jurisdiction and inviolability to incumbent Ministers of Foreign Affairs."

But if the question of universality is seriously examined, it quickly becomes evident that the Belgian, and other, universal-jurisdiction statutes also have no foundation in accepted international-law principles. There is, of course, plenty of support for universal- jurisdiction theories in the legal literature, and universality is the obvious goal of many activists and non-governmental organizations. However, law professors, commentators, and NGOs do not make international law -- sovereign states do, either by treaty or through long and consistent practice. Although the opinion of scholars may be some evidence of international law, only actual state practice that is widespread and consistent over lengthy periods of time can result in a binding norm. To justify the universal-jurisdiction claims of Belgium and Switzerland, not to mention those of their excited NGO supporters, there would have to be a long and well-established line of cases where the courts of one country have tried and punished the nationals of another, even though the prosecuting state has no connection to the offense other than its "international" character, and equally abundant precedent where the accused's home state has accepted the prosecution and punishment of its nationals -- including government officials -- for the sole reason that this is what international law requires. And this practice would have to exist for each and every "offense" over which jurisdiction is claimed -- which it does not.