Belgium invoked universal jurisdiction against suspected Iraqi Al-Qaeda member for international crimes committed in Baghdad

18.05.2023

Adhil Adhil

International Justice and Human Rights Researcher

Global Human Rights Defence 

Introduction

On 5th May 2023, the Belgium police arrested an Iraqi refugee on the allegations of being a member of Al-Qaeda cell, that was responsible for deadly car bombing campaigns in Baghdad between 2009-2010. [1] The bombing campaign carried out in the green zone of Baghdad, resulted in killing of 376 people and injuring more than 2,300 people. [2] The Belgium police conducted the raids in the suspect address in the town of Hasselt, based on the orders of the domestic judge. The Iraqi refugee identified by initials of O.Y.T, born in 1979 and has been living as a refugee in Belgium since 2015, and investigation against him was initiated back in 2015. [3] 

The Iraqi suspect is charged with “several murders with terrorist intent, participation in the activities of a terrorist group, war crimes and crimes against humanity", and is presently under the detention of Belgian authorities. [4] The arrest and detention of an Iraqi refugee suspected of atrocity crimes in Baghdad, has been the latest case in the chain of universal jurisdiction cases undertaken by various European countries to bring some form of accountability for international crimes perpetrated in the conflict regions of Syria and Iraq. [5]  However, unlike Germany's court exercise of universal jurisdiction against former Syrian intelligence officers (State actor), the Belgium authorities instead invoked universal jurisdiction to prosecute former Al-Qaeda member (non-state actor) on the grounds of terrorism, war crimes and crimes against humanity. The overlap between terrorism charges and war crime raise many important theoretical and practical questions regarding Belgium’s exercise of universal jurisdiction.

Belgium’s Universal Jurisdiction Law 

Belgium has been infamous for exercising universal jurisdiction against the individuals responsible for perpetrating international crimes. In 1993, Belgium introduced universal jurisdiction, allowing prosecutions to bring criminal charges against persons suspected of international crimes, regardless, whether the person is present or not in the territory [6] Eventually, the Belgium exercise of universal jurisdiction has resulted in ICJ judgments. Firstly, Belgium issued an arrest warrant against Abdulaye Yerodia Ndombasi, a foreign minister in Congo on allegations of war crimes and crimes against humanity. The ICJ found Belgium’s issuance of arrest warrant under universal jurisdiction in absentia is illegal under international law and violated principles of sovereign equality and diplomatic immunity. [7] This vast scope of Belgium universal jurisdiction led to a number of universal jurisdiction cases filed particularly against U.S President George, Israel Prime Minister Ariel Sharon and Chinese President Jiang Zemin. [8] This has led to severe backlash from powerful countries that has led to Belgium to amend the universal jurisdiction law, and limit the application only to the accused person, if the accused person is Belgian national, or accused person’s primary residence in Belgium; or victim is Belgian national or has lived at least three years at the time of crimes were committed. [9]

Secondly, following this amendment, Belgian authorities still pursued the universal jurisdiction cases, particularly against the former President of Chad, Mr. Hissene Habre, who was accused of acts of torture and crime against humanity during his presidency in Chad, and subsequently fled to Senegal. However, ICJ ruled in favor of Belgian authorities and concluded that Senegal has an international obligation to either prosecute or extradite Hissene Habre, for the acts of torture and crime against humanity perpetrated against the civilians in Chad. [10]

The Legal Questions and Challenges before Belgium Authorities in Exercising Universal Jurisdiction over Al-Qaeda Member

Belgium’s exercise of universal jurisdiction against the Iraqi national for international crimes committed in foreign territory is not a novel scenario, but it raises multiple legal questions and challenges, which would only be resolved during the trial proceedings. 

Firstly, Belgium police have charged an Iraqi national under both terrorist offenses, war crimes, and crimes against humanity. There is potential legal conflict between the application of both terrorist offense and war crime against the same individual for the same conduct of car bombing carried out in Baghdad 2009-2010. Though, the Belgium criminal code defines and punishes terrorist offenses, Article 141 bis of the Criminal Code, excludes terrorist offenses from the ambit of activities conducted by armed forces during periods of armed conflict, governed by international humanitarian law. [11] Since, the application of war crimes can be only applied in the context of either international or non-international armed conflict, the Belgian authorities would not be able to simultaneously apply both war crime and terrorist offenses on the same conduct of car bombing, because of exclusion exists in Article 141 of the Belgian criminal code. Recently in 2019, the Belgian court acquitted multiple suspects belonging to Kurdistan Workers Party (PKK) from the terrorism charges, on the legal reasoning, that PKK is not a terrorist organization, rather the conflict between PKK and Turkey can be classified as an ‘internal armed conflict’, therefore, the terrorist charges would be excluded by virtue of Article 141 of Belgian criminal code.[12]

Secondly, there is an ongoing ambiguity in classifying Al-Qaeda as non-state armed forces within international humanitarian law. The chapeau elements of war crime require the existence of international or internal armed conflict, and there is a looming legal question whether there exists a non-international armed conflict between Iraqi State and Al-Qaeda group. In the Tadic jurisdiction case, the ICTY concluded the twin requirements of (i) Intensity of violence, and (ii) organization of non-state groups to qualify a situation as non-international armed conflict. [13] Though, Al-Qaeda’s acts of violence in Iraq may qualify the first requirement i.e Intensity of violence, there is a lot of debate and ambiguity, as to whether Al-Qaeda possess sufficient organizational factors to be designated as ‘non-state armed group’ within non-international armed conflict. Belgian prosecution would have to establish that Al-Qaeda had sufficiently possessed internal regulation among members, strict military hierarchy, ability to conduct large scale military operations, territorial control and capability to negotiate on behalf of their members in political negotiation with the State, in order to qualify Tadic requirement of organizational factor, in order to apply war crimes against Iraqi national. [14]

In conclusion, Belgian prosecution would face legal challenges in substantiating the application of terrorism and war crime offenses against the arrested Iraqi suspect for the involvement in car bombings in Baghdad; and it would be more difficult, at least theoretically, in exercising universal jurisdiction against non-state actors as opposed State actors for perpetration of international crimes. Nevertheless, the Belgium government decision to extend universal jurisdiction against members of non-state armed forces, opens a new chapter in extending the criminal accountability to irregular and non-state armed forces, who are also responsible for committing international crimes during an armed conflict.

Sources and further readings: 

Staff Correspondent, Belgium detains Iraqi accused of al-Qaeda 'war crimes, DW (5th May, 2023), https://www.dw.com/en/belgium-detains-iraqi-accused-of-al-qaeda-war-crimes/a-65525090 

Staff Correspondent, Belgium arrests Iraqi suspected of Al-Qaeda ‘war crimes’ in Baghdad, ARAB NEWS, (May 05, 2023), https://www.arabnews.com/node/2298121/middle-east

Emma Bubola & Alissa J. Rubin, Iraqi Man Accused of War Crimes Is Arrested in Belgium, NEW YORK TIMES (May 5, 2023), https://www.nytimes.com/2023/05/05/world/europe/belgium-iraq-terrorism-suspect-arrested.html

Human Rights Watch, Germany: Conviction for State Torture in Syria  Former Syrian Intelligence Officer Found Guilty, HRW (January 13, 2022) https://www.hrw.org/news/2022/01/13/germany-conviction-state-torture-syria

Open Society Justice Initiative & Trial, Universal Jurisdiction Law and Practice in Belgium, Briefing Paper (May 2022), https://trialinternational.org/wp-content/uploads/2022/05/UJ-Belgium-EN-1.pdf

Arrest Warrant of 11 April 2000, Congo, The Democratic Republic of the v Belgium, Judgment, Merits, Preliminary Objections, ICJ GL No 121, [2002] ICJ Rep 3, [2002] ICJ Rep 75, ICGJ 22 (ICJ 2002), https://www.icj-cij.org/sites/default/files/case-related/121/121-20020214-JUD-01-00-EN.pdf

Human Rights Watch, Universal Jurisdiction in Europe: The State of the Art, HRW (June 27, 2006), https://www.hrw.org/report/2006/06/27/universal-jurisdiction-europe/state-art

Questions relating to the Obligation to Prosecute or Extradite, Belgium v Senegal, Judgment, ICJ GL No 144, ICGJ 437 (ICJ 2012), 20th July 2012, https://www.icj-cij.org/public/files/case-related/144/144-20120720-JUD-01-00-EN.pdf

Maarten van der Heijden, Mr Thomas Van Poecke, Belgium, Prosecution of Terrorist Crimes in the context of Armed Conflict, ICRC (2019) https://casebook.icrc.org/case-study/belgium-prosecution-terrorist-crimes-context-armed-conflict

Prosecutor v Tadić, Prosecutor v Dusko Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case No IT-94-1-AR72, OXIO 62, (1996) 35 ILM 32, 2nd October 1995, https://www.icty.org/x/cases/tadic/acdec/en/51002.htm

Prosecutor v. Boskoski and Tarculovski (Trial Judgment), IT-04-82-T, International Criminal Tribunal for the former Yugoslavia (ICTY), 10 July 2008, https://www.refworld.org/cases,ICTY,48ac30e22.html