Brussels, 4th May 2007 (FH) - Once again Belgium makes a name for itself in the trial of Bernard Ntuyahaga where it applies its universal jurisdiction to judge on crimes committed during the events of 1994 in Rwanda, thus decentralising the international criminal justice.
After the trials of the “Four of Butare” in 2001 and two salesmen of the Kibungo region in 2005, it is Bernard Ntuyahaga, major of the ex-FAR (Rwandan Armed Forces), who came before the Court of Assizes of Brussels since two weeks due to international law crimes.
He is accused of the murders of ten Belgian Blue Helmets of the KIBAT II contingent of the MINUAR, Prime Minister Agathe Uwilingiyimana and other persons, of which some have not been identified yet.
Belgian courts have universal jurisdiction to prosecute serious violations of the international humanitarian law on the basis of the law of 16 June 1993 concerning the punishment of serious breaches of the Geneva Convention of 1949 and its amending protocols of 1977.
This universal jurisdiction has however been extensively modified on 5 August 2003. Before this date, Belgian judges could prosecute the perpetrator of such a crime, irrespective of his or the victim’s nationality and the place where the crime was committed. Today, one criterion has to be fulfilled: the perpetrator has to have the Belgian nationality or to have his permanent residency in Belgium, or the victim has to be Belgian or to be a refugee in Belgium or to be a person who has stayed effectively, habitually and legally in Belgium for at least 3 years. Nevertheless, all this has had no influence on the case of Ntuyahaga since some of the victims - the ten Blue Helmets - are Belgians.
This universal jurisdiction is derived from the principle according to which it is in every state’s interest to prosecute the perpetrator of grave crimes; otherwise he has to extradite him or to transfer him to the competent authority.
The Belgian law of 16 June 1993, called “law on universal jurisdiction”, was born out of the obligation of the contracting states of the Conventions to take legislative measures to guarantee the prosecution of serious crimes committed during international conflicts.
Belgium had decided to go further in this by broadening the scope of its law to non-international conflicts, granting itself the competence, notably, to try the crimes perpetrated in Rwanda during the first months of 1994. But this law did not aim at all types of serious crimes; it was not before 1999 that the legislator extended the jurisdiction of the Belgian judges to the crime of genocide and crimes against humanity.
Nevertheless, due to a general principle of law which prohibits retroactivity of criminal law, the law of 10 June 1993 could normally not extend to the Rwandan genocide. This is the consequence of the principle of legality according to which a person may only be prosecuted for acts that were already considered a crime at the time when the person committed them.
But because this law of 1999 is a law conferring jurisdiction it came into effect immediately. Already in summer 1994 the events in Rwanda had been classified by the international community as genocide. Therefore the law could, as the examining magistrate Damian Vandermeersch reminded in 2001, extend to facts prior to its coming into force and grant Belgium the competence to try the perpetrators of acts of genocide and of crimes against humanity committed in Rwanda in 1994.
In addition to the existence of this law, numerous experts have pointed out that at the time when Belgium ratified the Convention of 1948 on the prevention and punishment of genocide, it did not deem it necessary to create internal provisions to adapt its legislation, considering the principles aimed at by the Convention already part of the Belgian judicial system. It regarded itself therefore competent even before the adoption of the law of 1999.
Still, the indictment against Ntuyahaga, different from the one delivered by the ICTR in 1998, does not include the charge of genocide concerning the intentional murders of an “undetermined number of persons not yet identified” that he is accused of. Neither did Belgium prosecute the “four of Butare” for genocide in 2001.
The Ntuyahaga case was opened in Belgium on 21 April 1995 by the examining magistrate Vandermeersch on the order of the Minister of Justice. Afterwards, several persons were suspected for these crimes, among them Théoneste Bagosora, prosecuted today for these assassinations by the ICTR.
Before the reform of 2003, a lot of persons were prosecuted in Belgium pursuant to the law of “absolute” universal jurisdiction, a process which the Belgian authorities wanted to slow down. In fact, a victim could lodge a complaint himself and directly; any diplomatic immunity was explicitly considered non-existent and no criterion of connection was demanded.
The countries which have adopted this universal jurisdiction are seldom. Spain started an investigation in this frame but has not prosecuted (yet?) Rwandans. In Canada, a trial was opened against Désiré Munyaneza, a Rwandan accused of having participated in the genocide, committed rapes and killed civilians, in March. In most countries, like in Belgium and Switzerland today, some criterion of connection makes the law difficult to be applied and the prosecutions complex to be opened.
AV/PB/CV
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