Complementarity: Contest or Collaboration? - FICHL

The Principle of Complementarity: a Means Towards a More Pragmatic Enforcement
of the Goal Pursued by Universal Jurisdiction?
jurisdiction. For the cases with a link to Belgium, a civil party or a local
public prosecutor acting on a complaint could initiate criminal proceedings.
For the purposes of the Act of 1993, a “link” to Belgium was understood
to be the presence of the alleged offender on Belgian territory or the
residence of a minimum of three years of a foreign victim. 146 The latter
requirement was aimed at ending the practice of “forum shopping” by
foreign victims.
Second, the prosecution of cases without any links to Belgium became
the prerogative of the Office of the Federal Prosecutor. In principle,
upon receipt of a complaint, the Federal Prosecutor has the duty to submit
the case to an examining magistrate. However, two exceptions are provided
by the Act of 2003, such as a manifestly unfounded complaint and a
forum non conveniens exception. 147 According to the latter, the prosecutor
must not proceed with cases that should be brought either before an international
court or – assuming the possibility of a fair and impartial trial –
before a national court. Here, a national court could be the one: (i) of the
place where the crimes were committed; (ii) where the suspect is found;
or (iii) of the state of which the alleged perpetrator is a citizen. 148 In addition,
for cases without any links to Belgium, other political and judicial
filters are possible. They could involve no less than seven bodies. 149
146 Antonio Cassese, “The Belgian Court of Cassation v. the International Court of Justice:
the Sharon and others Case”, see supra note 138, p. 439 and n. 6; Luc Reydams,
“Belgium Reneges on Universality: The 5 August 2003 Act on Grave Breaches of International
Humanitarian Law”, see supra note 142, pp. 681-682. In addition, for the
purposes of the Act of 1993, “link” to Belgium was also understood as territoriality,
Belgian nationality of the offender or the victim. But in these cases, we cannot speak
of universal jurisdiction any more.
147 A forum non conveniens decision can be appealed by a complainant before the
Chambre de mises en accusation (the pre-trial Chamber of the Belgian Court of Appeal).
148 Luc Reydams, “Belgium Reneges on Universality: The 5 August 2003 Act on Grave
Breaches of International Humanitarian Law”, see supra note 142, p. 682.
149 Namely, the Federal Prosecutor, the Chambre de mises en accusation (the pre-trial
Chamber of the Belgian Court of Appeal), the Minister of Justice, the Cabinet of Ministers,
the Court of Cassation, the International Criminal Court and foreign authorities.
For more details, see Luc Reydams, “Belgium Reneges on Universality: The 5 August
2003 Act on Grave Breaches of International Humanitarian Law”, see supra note 142,
pp. 683-684.
FICHL Publication Series No. 7 (2010) – page 287