Proposition 51K0564

Projet de loi concernant la coopération avec la Cour pénale internationale et les tribunaux pénaux internationaux.

General information ¶

Submitted by

PS | SP MR Open Vld Vooruit Purple Ⅰ

Submission date

Dec. 8, 2003

Official page

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Status

Adopted

Requirement

Simple

Subjects

International Court of Justice International Criminal Court international criminal law international cooperation judicial cooperation criminal procedure criminal law

Voting ¶

Voted to adopt

CD&V Vooruit Ecolo LE PS | SP Open Vld MR VB

Abstained from voting

N-VA FN

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Discussion ¶

Jan. 22, 2004 | Plenary session (Chamber of representatives)

Full source

Mr. Speaker, Mrs. Minister, dear colleagues, the bill examined in the Justice Committee and which is now on our banks concerns the conformation of Belgian law with the provisions of the Rome Statute of the International Criminal Court.

The purpose of this treaty is important. It is about setting up a permanent court to punish the most serious violations of international humanitarian law committed by natural persons.

The Court may judge crimes of genocide, crimes against humanity, and the most serious war crimes both in the context of an international armed conflict and in the context of a non-international armed conflict.

The Court will have a subsidiary character in relation to national repressive courts. It may exercise its jurisdiction only when such crimes have not been judged in advance by a national court or when the investigations and prosecutions conducted at the national level have failed due to the lack of will or the inability of the national bodies to effectively carry them out.

The Court shall consist of eighteen judges divided into Chambers of Instruction, First Instance and Appeal and may be brought in three different ways.

It may be submitted by the Security Council or by a State Party to the Statute. However, it may also be brought directly by the Prosecutor of the Court acting on its own initiative in full independence and under the sole control of the judges themselves concerning one or more crimes falling within its jurisdiction.

The functioning of the Court is essentially autonomous. Its funding will depend both on the UN and on contributions made by States Parties to the Statute, or even on voluntary contributions of public or private origin.

The Security Council may temporarily suspend the functioning of the Court, but it may do so only by means of an explicit resolution, for a maximum period of twelve months, renewable. Such a measure could be understood in the context, for example, of peace negotiations.

The establishment of the International Criminal Court will constitute an important step forward for international respect for human rights.

After signing the Rome Statute establishing the International Criminal Court, the government ratified it on 28 June 2000. The compliance of Belgian law with the Statute therefore constitutes the fulfillment of new international obligations of Belgium and will allow us to honour our obligations in terms of cooperation with the International Criminal Court.

Regarding the constitutionality of the draft, referring to the first general observation of the State Council opinion, members of the Justice Committee questioned the constitutionality of the draft law under consideration and advocated for a revision of the Constitution prior to the adoption of the draft law.

Indeed, the legislative section of the State Council refers to an observation that it had already made earlier in its opinion on the draft law of consent to the Statute. At that time, the opinion of the State Council had not been followed. This observation reminds that, according to the section of legislation, it is necessary to adapt the Constitution to the Rome Statute before ratifying the draft and promulgating the law of cooperation.

The Government and the Commission did not follow this observation for the following reasons: - First, by voting the Act of Assent to the Statute to allow its prompt ratification, while the Constitution could not be revised on this point, the Parliament first showed, during the previous legislature, that it did not follow the analysis of the State Council. Then, the government did the same by depositing the instrument of ratification of the Statute before the Constitution was amended. In doing so, Parliament and Government adhere to the consistent jurisprudence of the Court of Cassation and the Administrative Section of the Council of State, which consider that a treaty has priority over any norm of domestic law, while the Legislative Section of the Council of State and the Court of Arbitration, in certain judgments, consider that a treaty can not be ratified by Belgium when it contains provisions contrary to the Constitution, only on the sole condition of adapting the Constitution in advance to the content of the treaty.

By adopting the draft, the government and Parliament only confirm the attitude they had already taken in the framework of cooperation with international criminal courts. Indeed, when adopting the law of 22 March 1996 on cooperation with these courts, the State Council had already raised the question of constitutionality and, nevertheless, the law of 1996 was adopted without constitutional change and, at the end of legislation, the government of the time did not open the Constitution for revision on this point.

However, the constituent has now the possibility to insert a new article in Title IV of the Constitution in order to adapt it to the Statute. To this end, the Minister of Justice referred, in December last year, to the interministerial commission on humanitarian law to make a proposal for a text of revision of the Constitution as soon as possible.

As regards the general obligation of cooperation between the International Criminal Court and Belgium, the basis and modalities of this cooperation and the regulation of the relations between the Court and Belgium, I refer to the report of the committee.

I have thus concluded with the report of the committee and I ask for your permission, Mr. Speaker, to intervene now as a parliamentary to indicate what is the position of the MR in this case.

Please, Mrs. You can continue as a spokesman for your group.

Belgium was the thirteenth country to deposit its instrument of ratification of the Rome Statute of the International Criminal Court on 28 June 2000. The Statute entered into force on 1 July 2002 after approximately sixty States became Parties. To date, 92 countries, including all Member States of the European Union, have ratified or acceded to the Statute. As the President of the International Criminal Court, Philippe Kirsch, pointed out at the second session of the Assembly of States Parties:

The International Criminal Court has become a reality in recent months. Indeed, the Court is no longer the object of a mere aspiration. Instead, it is now a functional institution. The highest officials have been appointed and, at present, the Court is building its structures and defining its procedures. We are preparing to respond to the challenge that the international community has set us: to ensure that justice is delivered fairly and effectively and through effective, transparent and fair trials. The Court and the judicial authority must be prepared for the first case to be brought."

He also added that "The International Criminal Court is both independent and interdependent; it cannot act alone. It will only be effective if it works in close collaboration with other actors of the international community.”

Louise Arbour, prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda, already stated in 1997 before the Preparatory Committee for the establishment of the International Criminal Court that "the proper functioning of the International Criminal Court established by a treaty will depend on the practice of effective cooperation between States, as well as in the case of ad hoc tribunals for the former Yugoslavia and Rwanda."

Unlike national courts, the International Criminal Court has no direct enforcement power. It may not execute arrest warrants or search houses or buildings or force witnesses to appear. The International Criminal Court depends on national authorities to carry out its specific tasks. The adoption of this bill is essential to the proper functioning of the International Criminal Court, which, on the basis of the principle of complementarity with national courts, is responsible for prosecuting the most serious international crimes. It is through this cooperation that the Court, which does not have its own police or coercive force, can carry out its mission of international jurisdiction.

Today, the main officers of the Court, the judges, the secretary, the prosecutor, the deputy prosecutor have entered office. As the Minister of Justice pointed out in her introductory presentation to the Justice Committee, the Office of the Court’s Prosecutor has already received more than 600 complaints concerning facts likely to fall within the jurisdiction of the Court. Currently, some cases falling within the jurisdiction of the Court are examined with the utmost care by the prosecutor. Requests for cooperation from the Court are therefore likely to be issued within a relatively short period of time. It is therefore of the utmost importance that Belgium adopt a cooperation law as soon as possible in order to be able to comply with its international commitments.

It is for these fundamental reasons that the MR will support the text proposed by the government, even if we would have preferred that the text of the Constitution be adapted in advance. The Minister admitted it in a committee, the doctrine and jurisprudence are more than divided in the matter, on the issue of ratification of a treaty concerning provisions contrary to the Constitution. However, we believe that the process of approval, ratification and enforcement of our domestic law cannot be postponed if we want cooperation with the International Criminal Court to be effective as soon as possible.

As the Deputy Prime Minister and Minister of Foreign Affairs pointed out, in the context of the examination of the draft law concerning consent to the status of the International Criminal Court, made in Rome on 17 July 1998, postponing the process of parliamentary consent to the status would not be sufficient from a political point of view because Belgium would lose its driving role in matters of international humanitarian law.

During the last legislature, Parliament did not have the opportunity to revise the Constitution on this point. No article to resolve this problem was open to review, but today it is quite feasible. The Constituent has therefore the possibility to insert a new article in Title IV of the Constitution, in order to adapt it to the Statute.

We hope that the Interministerial Commission on Humanitarian Law will send to the Government, as soon as possible, a proposal for the revision of the Constitution. In our opinion, this issue should be resolved before the end of this year.

Mr. Deputy Prime Minister Michel, I greet you with pleasure. The House and its President look forward to seeing you in better shape.

Mr. Speaker, Mrs. Vice-Premier, Mr. Vice-Premier, I have not applauded the rapporteur because she has attached her personal discourse to the report. I congratulate her and, of course, thank her for the excellent report in which she very well summed up the discussion in the Committee on Justice.

N-VA considers this design fundamentally a good thing. I have said in the committee that I am one of the most fervent supporters of the nation-state. I believe in the preservation and future of the nation-state as a response to globalization. However, I am also one of the most fervent advocates of strengthening the international legal order. I believe that this draft, which approves cooperation with the International Criminal Court and international criminal courts, is a very good step in strengthening the international legal order. Identity and national state should not lead to immunity, especially if it concerns fundamental crimes as they are intended in the draft and may be the subject of prosecution and punishment by the International Criminal Court. These include genocide, crimes against humanity, war crimes and crimes of aggression. We are pleased that many countries have already joined. I regret, however, that a number of important states, not least the United States of America, are opposed to this arrangement in the international legal order. Moreover, the United States is very active in persuading countries not to join and consequently in creating a certain form of immunity.

Mrs. Minister, it is a good thing that this international legal system is established so that dictators everywhere in the world know that they do not have immunity and that sooner or later they risk being held accountable before an international court. This statute does not provide for any immunity for heads of state, heads of government, ministers, nor for parliamentarians.

Despite this very positive, fundamental approach, I have some major concerns about this design. The first concern concerns the unconstitutionality. It is not responsible to approve this draft without adapting our Constitution to this limitation of national autonomy and without our Constitution stipulating that Belgium joins the International Criminal Court. The State Council has noted this. Several of my colleagues, along with me, have expressed this criticism. The Government puts this criticism aside and proposes that this law nevertheless be approved, although, Mr. Chairman of the Committee for the Revision of the Constitution, the relevant title in the Constitution is subject to revision. In a very short time, even before the approval of this draft, the Constitution could have been adjusted. The State Council has itself formulated a proposal in this regard, in the sense that in our Constitution would be inscribed "The State joins the International Criminal Court".

The second issue concerns the separation of powers. In my opinion, the executive power in the person of the Minister of Justice, which in this draft is referred to as the central authority, is given too much power. This violates the principle of the separation of powers, which is inscribed in our Constitution. I think, for example, of the competence of the central authority which can act in the event of a suspension and in the event of a refusal to execute the arrest and the claim by the International Criminal Court.

Third, this draft does not, in my view, provide sufficient legal guarantees for those who are detained and prosecuted in the light of it. The fact that this is a very serious criminal offence should not dispense us from providing judicial guarantees. Fundamental rights and freedoms must be respected at all times.

This principle also applies, for example, in the fight against terrorism, in which persons who have a healthy view of the matter rightly accuse the United States of detaining people at Guantanamo — even if they are confessed of terrorist acts — without any form of trial. The right to respect for fundamental rights and freedoms must be respected. Well, even in that regard, the provisions of this draft have not been drawn up with sufficient care. In the discussion in the committee, I have cited several examples in this regard. One of them relates to Article 13 § 2, which, upon a request by the court to declare enforceability, only grants to the council the power to verify whether there is no error concerning the person and whether the documents referred to in Article 91 of the Statute have been submitted. Well, this comes in conflict with our principles of legal protection and with our principles of the right to be investigated by an independent legal body.

A fourth objection concerns the uncertainty, both as regards the immunity of ministers and as regards the procedure where Belgian parliamentarians would be involved in proceedings before the International Criminal Court. The Minister referred to Article 103 of the Constitution which provides for a very special procedure for ministers, in which the Chamber must grant leave if the International Criminal Court wants to proceed to prosecute a minister. I feel that the position of the government is that in that case Article 103 of the Constitution remains unshorted. In other words, the House of Representatives could put itself above the international legal order and, because it believes, for example, that national security would be compromised, would not allow a minister to be prosecuted and must appear before the International Criminal Court. It is clear that this international arrangement is usually established precisely for the purpose of a possible prosecution and punishment of government leaders, heads of state, ministers and the like. If we do not provide that Article 103 of the Constitution does not prevent such acts of persecution and punishment, we fail in our international obligations and in our cooperation with the international legal order.

The same applies to the procedure for Members of Parliament. Article 59 of the Constitution may conflict with the procedure outlined herein. Despite my comments, this has not been sufficiently clarified and there have been insufficient adjustments in the Justice Committee.

That is also the reason why I will not approve the design—although I in principle fully and fully support it—. I will remember.