1 See Hugh Bellot, , A Permanent International Criminal Court (International Law Association, Buenos Aires Conference 1922).Google Scholar

2 The Nuremberg Judgments largely followed this view by deciding that these crimes committed before September 1939 were not connected to war and therefore did not constitute crimes against humanity under the definition in its charter. See further Yoram Dinstein, International Criminal Law 20(2-3) ISRAEL LAW REVIEW 211(1985).

3 Charter of the International Military Tribunal annexed to the 1945 London Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, 39 AJIL Suppl 257-258 (1945) [Nuremberg Charter]. See Lyal S. Sunga, Individual responsibility in international law for serious human rights violations 44 (1991). For pre-Nuremberg references to the 'law of humanity’ or the ‘principles of humanity', see SUNGA, at 41; Bellot, supra note 1, at 3-4 andDinstein, supra note 2, at 206-221. The Eichmann judgment reiterated that all states possess universal jurisdiction over crimes against humanity. See Dinstein, supra note 2, at 213-214.

4 See SUNGA, supra note 4, at 44.

5 See Robinson, Jacob, The International Military Tribunal and the Holocaust 7(1) ISRAEL LAW REVIEW 4–5 (1972).CrossRefGoogle Scholar

6 The Nuremberg Tribunal declared that the definition of these crimes was declaratory of international law at the time of the Tribunal's creation. See In re Goering and others (1946) and In re Alststötter and Others (Justice Trial)(1947) as quoted in Attorney-General of the Government of Israel v. Adolf Eichmann 36 I.L.R. 11 (1968).

7 In the original English and French version this was different but the text was amended to bring it in line with the Russian version. The semicolon versus the comma debate has been overestimated in the literature and should be seen in its context of the Nuremberg Charter not as a general decision to limit crimes against humanity to crimes that are linked to an aggressive war or war crimes. Comp SUNGA, supra note 3, at 44-45, Dinstein, supra note 2, at 210-211 and Robinson, supra note 5, at 4-5.

8 The term genocide was developed by Raphael Lemkin. See R. Lemkin, Axis rule in occupied europe 79 (carnegie endowment for international peace, washington D.C., 1944). See also Dinstein, supra note 2, at 212-213.

9 Nazis and Nazi Collaborators (Punishment) Law (1950), Vol. 4 Laws of the State of Israel 154-158 (5710-1949/50) [Hereinafter: Nazi Punishment Act]. The law was based on the Nuremberg Charter, the Allied Control Council Law N° 10 (the Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity) and the 1948 Genocide Convention. See Lador-Lederer, J., Jewry's Nationals 16(1) ISRAEL LAW REVIEW 98 (1981).Google Scholar

10 See Article l(a) Nazi Punishment Act. See also Lador-Lederer, supra note 10, at 98-99.

11 See Eichmann v. Attorney General as quoted by Dinstein, supra note 3, at 213.

12 See Statute of the International Tribunal for the Former Yugoslavia (25 May 1993), I.L.M. 1993, p. 1192 and Statute of the International Tribunal for Rwanda (8 Nov. 1994), I.L.M. 1993, p. 1598.

13 See e.g. IRIN (21 Jan. 2003), Armed movements accept idea of criminal tribunal; IRIN (20 Jan. 2003), MLC asks rights group to investigate allegations of cannibalism; IRIN (16 Jan. 2003), Refugees International launches ‘Forgotten People’ report series; IRIN (16 Jan. 2003), Government to bring atrocities to international court; IRIN (29 Jan. 2003), Kinshasa opens inquiry into alleged massacres, cannibalism; IRIN (28 Jan. 2003), Pygmies demand a tribunal for crimes against them in Ituri.

14 See e.g. Roy S. Lee, The Rome Conference and Its Contributions to International Law in The international criminal court. the making of the rome statute. issues, negotiations, results 1-39 (Roy S. Lee ed., 1999); M. Cherif Bassiouni, Establishing an International Criminal Court: historical survey 149 Military law review 49-63 (1995); M. Cherif Bassiouni, Historical Survey: 1919-1998 in Icc ratification and national implementing legislation 1-44 (Association Internationale de Droit Penal ed., 1999).

15 See Rome Statute for an International Criminal Court (17 July 1998), I.L.M. 1998, p. 999. [Hereinafter: Rome Statute]. On 11 April 2002, nine countries simultaneously deposited their instrument of ratification of the Rome Statute bringing the number of ratifications to over the 60 ratifications (66) as required for the entry into force by Article 126 of the Rome Statute.

16 See e.g. Amnesty International, supra note 1.

17 The Supreme Court of Israel in the Eichmann trial stated: The criminal branch of international law […] is indisputably in a primordial — and, if you wish, ‘primitive’ — stage of development […]. It is true that international law does not lay down explicit and gradual penal sanction; that no international criminal court is yet in existence, nor is there an international penal machinery. But these difficulties — which only mirror the limited degree of evolution reached by international criminal law at this stage — are surmounted by it, for the time being, by the authority that it gave to the States of the world to punish violations of its provisions. That they do by implementing these provisions, either directly or through national-internal legislation in which they are adopted and transformed into local law. Eichmann v. Attorney General as quoted by Dinstein, supra note 3, at 227-228

18 The Eichmann trial was never questioned on its legitimacy or its outcome but it has been questioned whether justice was best served by a trial in an Israeli court. See, e.g. Yosal rogat, the eichmann trial and the rule of law 32-40 (1961). Hannah arendt, eichmann in jerusalem: A Report on the banality of evil (1964).

19 The Law of 16 June 1993 concerning the Punishment of Grave Breaches of the International Geneva Conventions of 12 August 1949 and of Protocols I and II of 8 June 1977 Additional Thereto (published in the Belgian Official Journal on 5 August 1993).

20 The Law of 10 February 1999 was published in the Belgian Official Journal on 23 March 1999. This law was translated and published with an introductory note in Volume 38 of I.L.M. See Stefaan Smis& Van der Borght, Kim, Introductory Note to the Act Concerning the Punishment of Grave Breaches of International Humanitarian Law (10 February 1999), 38 I.L.M. 918–920 (1999).Google Scholar The note can also be consulted on the web site of the American Society of International Law at <http://www.asil.org/ilm/smis.htm>.

21 On 8 June 2001 the Brussels’ Criminal Jury Court (Cour d'Assises) convicted the so-called ‘Butare four’ Vincent Ntezimana, Alphonse Higaniro, Consolata Mukangango and Julienne Mukabutera for crimes committed in association with the Rwandan genocide. Appeal to the Court of Cassation by three of the four convicted was rejected on 9 January 2002. It should be noted that a claim being brought is not an indication of its meritoriousness or even its admissibility.

22 Dissenting Opinion of Judge Oda, Arrest Warrant Case, p. 5.

23 In the Pinochet Case, Lord Philips of Worth Matravers described the context of the state of international as follows:‘[…] this is an area where international law is on the move and the move has been effected by express consensus recorded in or reflected by a considerable number of international instruments. Since the Second World War states have recognised that not all criminal conduct can be left to be dealt with as a domestic matter by the laws and the courts of the territories in which such conduct occurs. There are some categories of crime of such gravity that they shock the consciousness of mankind and cannot be tolerated by the international community. Any individual who commits such a crime offends against international law. The nature of these crises is such that they are likely to involve the concerted conduct of many and liable to involve the complicity of the officials of the state in which they occur, if not the state itself. In these circumstances it is desirable that jurisdiction should exist to prosecute individuals for such conduct outside the territory in which such conduct occurs.’ He concludes that universal jurisdiction for international crimes is an open question in international law and that international treaties on the matter specifically exclude immunities for heads of state or other state officials, inferring that such immunity exist in international customary law. See United Kingdom House of Lords: Regina v. Bartle and the Commissioner of Police for the Metropolis and Others ex parte Pinochet (24 March 1999), 38 I.L.M. 660 (1999) [hereinafter: Lord Philips]. See also Dinstein, supra note 3, at 227-228 and quotation in note 19.

24 See Arrest Warrant Case para. 51-55.

25 See Lord Philips, supra note 23, at 656; Arrest Warrant Case Joint separate opinion of Judges Higgins, Kooijmans and Buergenthal, para. 70-85. Comp. International Court of Justice, Certain Criminal Proceedings in France (Republic of the Congo v. France), Order of 17 June 2003, Request for the Indication of a Provisional Measure Dissenting Opinion of Judge ad hoc de Cara observing that on the African continent ‘Le chef de l'Etat [… ] est l'incarnation de la nation'.

26 See United Kingdom House of Lords: Regina v. Bartle and the Commissioner of Police for the Metropolis and Others ex parte Pinochet (24 March 1999), 38 I.L.M. 591-595 (1999): Lord Browne-Wilkinson, at 591-595; Lord Goff of Chieveley, at 597-608; Lord Hope of Craighead, at 621-627; Lord Hutton, at 627-641; Lord Saville of Newdigate, at 641-643.

27 See Arrest Warrant Case Dissenting Opinion of Judge Oda, at 5. Comp. Article 4 of the Crime of Genocide (Prevention and Punishment) Law (1950), Vol. 4 Laws of the State of Israel 101-102 (5710-1949/50): A person guilty of an offence under this Law shall be punishable whether he is a legally responsible ruler, a member of a legislative body, a public oficial or a private individual.

28 See Arrest Warrant Case dispositif.

29 See Arrest Warrant Case.

30 None of these claims have thus far led to indictments, they were all instituted through the procedure of the partie civil not by a Belgian prosecutor. The fact that a claim is lodged is not an indication of its meritoriousness. See Louis Michel (Belgian Minister of Foreign Affairs), Open Letter to My Israeli Friends (26/02/2003).

31 See Arrest Warrant Case para. 15.

32 Ibid.

33 Contra Arrest Warrant Case Dissenting Opinion Judge ad hoc Van den Wyngaert, para. 34 et seq.

34 Arrest Warrant Case para. 60-61.

35 A law that allows discretion to act in conformity with international law but does not prevent a judge or administration from remaining within the boundaries of international law is deemed to be in compliance with international legal obligations as long as the discretion is not abused beyond the boundaries of international law.

36 Arrest Warrant Case, para. 51.

37 See Karine Lalieux and Fauzaya Talhaoui, Rapport fait au nom de la Commission de la justice de la Chambre des représentants de Belgique — Projet de loi modifiant la loi du 16 june1993 relative à la répression des violations graves du droit international humanitaire (28 March 2003). Available on the website of the Belgian Senate (first footnote).[hereinafter Chamber Report]

38 This is not explicitly stated in the law but it is the rule by default.

39 See Article 7(1).

40 Even though anyone may submit a claim, this claim will not lead to a criminal investigation or indictment unless the Federal Prosecutor makes such a decision.

41 Ibid.

42 See Chamber Report.

43 See Article 7(2).

44 See Article 7(3) and 7(4).

45 See Article 7(3) para. 2.

46 See Article 7(3) and 7(4).

47 More precisely, this decision was taken by the political parties that won the elections of 18 May 2003 and will presumably form the next Belgian Federal government.

48 See Radio news at one of the Flemish Radio and Television (VRT-22 June 2003).

49 See Press Conference of the inbumbent Prime Minister of Belgium, Guy Verhofstadt (22 June 2003); Interview with incumbent Minister of Foreign Affairs Lousi Michel, Flemish Radio and Television (VRT-22 June 2003).

50 See Radio news at one of the Flemish Radio and Television (VRT-22 June 2003); La Belgique revise sa Compétence universelle, Le Soir (online, 22 June 2003).

51 See Louis Michel: “Les affaires étrangères ou rien”, La Libre Belgique (online, 19 June 2003); La Belgique revise sa Compétence universelle, Le Soir (online, 22 June 2003).

52 See Radio news at one of the Flemish Radio and Television (VRT — 22 June 2003); La Belgique revise sa Competence universelle, Le Soir en ligne (22 June 2003); Compétence universelle: ce qui va changer, Radio-télévision beige de la Communaute franchise (online, 22 June 2003).