Lack of jurisdiction of Belgian courts to examine humanitarian law crimes related to the First Gulf War. Non-violation of a fair trial
JUDGMENT
Hussein and others v. Belgium 16.03.2021 (app. no. 45187/12)
SUMMARY
The case concerned ten Jordanian applicants who lodged a civil-party application with the Brussels
investigating judge with a view to the institution of criminal proceedings against high-ranking
Kuwaiti officials for crimes under international humanitarian law, in respect of acts linked to the first
Gulf War (1990-1991.
In 2001, at the time when the applicants had lodged their civil-party application, Belgian law
recognised an absolute form of universal criminal jurisdiction, even in the absence of any connection
with Belgium. Subsequently, the Belgian legislature gradually introduced criteria requiring a
connection with Belgium and a filtering system for assessing whether a prosecution should be
brought. When the 5 August 2003 Act had come into force, the proceedings which the applicants
had initially brought in 2001 no longer satisfied the new criteria governing the jurisdiction of the
Belgian courts as defined for the future; it could therefore not be retained on that basis.
Ultimately, the applicants’ action had failed on the grounds that no investigative act had yet been
carried out at the time of the entry into force of the 5 August 2003 Act, and the Belgian courts had in
any case lacked jurisdiction to hear and determine the action.
The Court ruled that the Belgian courts had provided a specific and explicit response to the pleas
raised by the applicants and had not failed in their obligation to give reasons. It discerned nothing
arbitrary or manifestly unreasonable.
The Court also considered that the decision by the Belgian courts, following the entry into force of
the 2003 Act, to decline jurisdiction to hear and determine the civil-party application in 2001, had
not been disproportionate to the legitimate aims pursued. Indeed, the reasons given by the Belgian
authorities (proper administration of justice and the immunities issue raised by the proceedings
under international law) could be considered as compelling grounds of public interest.
PROVISION
Articl 6 par. 1
PRINCIPAL FACTS
The applicants are Jordanian nationals who were born between 1930 and 1973 and live in Amman
(Jordan).
During the first Gulf War (1990-1991) the applicants, who were living in Kuwait, were prosecuted by
the Kuwaiti authorities and deported to Jordan.
An association was subsequently set up under Jordanian law (“Cooperative Society for the Gulf War
Returnees” for the purposes of providing for mutual aid among its members, and in particular of
obtaining compensation for the pecuniary and non-pecuniary damage which they had sustained In December 2001 counsel for the 7,738 members of the association, including the applicants, applied to join the proceedings as civil parties in their name and on their behalf to the Brussels
investigating judge against 74 persons, most of them senior officials of the State of Kuwait, with a
view to launching criminal proceedings for genocide on the basis of the 16 June 1993 Act on the
suppression of serious violations of international humanitarian law (the so-called
“universal jurisdiction law”), as amended by Act of 10 February 1999 and ultimately superseded by
the Act of 5 August 2003. They also claimed compensation for pecuniary and non-pecuniary damage
sustained as a result of the offences of which they were the alleged victims.
After the proceedings, which ended with the 18 January 2012 judgment of the Court of Cassation,
the applicants’ action failed on the grounds that no investigative act had yet been carried out at the
time of the entry into force of the 5 August 2003 Law and the Belgian courts had in any case lacked
jurisdiction to hear and determine the criminal proceedings.
The applicants relied, in particular, on Article 6 (right to a fair trial). They submitted that in declaring
the proceedings inadmissible and declining jurisdiction, the Belgian courts had provided insufficient
reasons for their decisions and deprived them of the right of access to a tribunal.
THE DECISION OF THE COURT…
Article 6 § 1 (right to a fair trial
Reasoning of domestic judicial decisions
In the light of its case-law, the Court considered that the domestic courts had provided a specific and
explicit response to the plea raised by the applicants and that they had not failed in their obligation
to provide reasons. Furthermore, the Court discerned nothing arbitrary or manifestly unreasonable
in the domestic courts’ interpretation of the concept of “investigative act”. Indeed, that
interpretation corresponded to the purpose of the 5 August 2003 Act of reducing universal
jurisdiction litigation, while also establishing a transitional mechanism in order to prevent cases
pending at the investigative stage from being affected. There had therefore been no violation of
Article 6 § 1 of the Convention as regards the reasoning of the decisions given by the Indictments
Division and the Court of Cassation.
Access to a tribunal
The Court noted that the applicants had quite evidently sustained a limitation of their right of access
to a tribunal since the Belgian courts had declined jurisdiction to hear and determine the criminal
proceedings which they had brought by lodging a civil-party application with the Brussels investigating judge. This limitation of jurisdiction had been deduced from the transitional mechanism of the 5 August 2003 Act.
The Government explained that the aim of the new system had been to ensure the proper
administration of justice. They submitted that the risk of an excessive workload on the courts which
would have resulted from an explosion in the number of cases based on universal jurisdiction
without any connection with Belgium, as well as the practical difficulties in taking evidence. It also
transpires from the preparatory work of the 5 August 2003 Act that the reform had been intended to
remedy diplomatic tensions elicited by the recognition of the said absolute universal jurisdiction and
the blatant political abuse to which it had led.
The Court considered that the reasons, concerning the proper administration of justice, that had
prompted Parliament to examine the bill, as well as the link with the immunities issue which the
proceedings had brought to light under international law, could be seen as compelling grounds of
general interest.
The Court then noted that in 2001, at the time of the applicants’ civil-party application, Belgian law
had recognised an absolute form of universal criminal jurisdiction. Subsequently, the legislature
gradually introduced criteria requiring a connection with Belgium and a filtering system for assessing
whether a prosecution should be brought. When the 5 August 2003 had come into force on 7 August
2003, the proceedings which the applicants had initially brought in 2001 had no longer satisfied the
new criteria governing the jurisdiction of the Belgian courts as defined for the future. The case could
therefore not be retained on that basis.
Moreover, having regard to the decision of the Court of Cassation to the effect that the jurisdiction
of the Belgian courts could only be retained if an investigative act had already been carried out
before the entry into force of the Act, the action brought by the applicants had necessarily been
doomed to failure if such an act had not been carried out, as indeed the Indictments Division and the
Court of Cassation had later found.
Consequently, the Court held that the decision by the Belgian courts, following the entry into force
of the 5 August 2003 Act, to decline jurisdiction to hear and determine the civil-party application
lodged in 2001 by the applicants had not been disproportionate to the legitimate aims pursued.
There had therefore been no violation of Article 6 § 1 of the Convention.
