Belgium: Act of 1999 Concerning the Punishment of Grave Breaches of International Humanitarian Law

The Act of 16 June 1993 concerning the punishment of grave breaches of the Geneva Conventions of 12 August 1949 and their Additional Protocols I and II of 18 June 1977 (Official Journal of 05.08.1993, at 17751-17755)

As modified by the Act of 10 February 1999 concerning the punishment of grave breaches of international humanitarian law (Official Journal of 23.03.1999, at 9286-9287)

CHAPTER I        Grave breaches

Article 1.

§ 1. The crime of genocide defined below, committed in peace time or in time of war, shall constitute a crime under international law and be punishable in accordance with the provisions of the present Act. In accordance with the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948 - without prejudice to the criminal provisions applicable to other breaches committed out of negligence - genocide means any of the following acts, committed with the intent to destroy in whole or in part, a national, ethnic, religious or racial group, as such:

1    killing members of the group;

2    causing serious bodily or mental harm to members of the group;

3    deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

4    imposing measures intended to prevent births within the group;

5    forcibly transferring children of the group to another group.

§ 2. The crime against humanity defined below, committed in peace time or in time of war, shall constitute a crime under international law and be punishable in accordance with the provisions of the present Act. In accordance with the Statute of the International Criminal Court, a crime against humanity means any of the following acts, committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

1    murder;

2    extermination;

3    enslavement;

4    deportation or forcible transfer or popular;

5    imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;

6    torture;

7    rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;

8    persecution against any identifiable group or collectivity or political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in the Article.

§ 3. The grave breaches listed below which cause injury or damage, by act or omission, to persons or objects protected by the Conventions signed at Geneva on 12 August 1949 and approved by the Act of 3 September 1952, and by Protocols I and II additional to those Conventions adopted at Geneva on 8 June 1977 and approved by the Act of 16 April 1986, shall - without prejudice to the criminal provisions applicable to other breaches of the Conventions referred to in the present Act and without prejudice to criminal provisions applicable to breaches committed out of negligence - constitute crimes under international law and be punishable in accordance with the provisions of the present Act:

1    willful killing;

2    torture or other inhuman treatment, including biological experiments;

3    willfully causing great suffering or serious damage to physical integrity or health;

4    compelling a prisoner of war, a civilian person protected by the Convention relative to the Protection of Civilian Persons in Time of War or a person protected in that same respect by Protocols I and II additional to the international Geneva Conventions of 12 August 1949 to serve in the forces of a hostile power or adverse party;

5    depriving a prisoner of war, a civilian person protected by the Convention relative to the Protection of Civilian Persons in Time of War or a person protected in that same respect by Protocols I and II additional to the international Geneva Conventions of 12 August 1949 of the right to a regular and impartial trial in accordance with the contents of those provisions;

6    the unlawful deportation, transfer or movement, or unlawful detention of a civilian person protected by the Convention relative to the Protection of Civilian Persons in Time of War or of a person protected in that same respect by Protocols I and II additional to the international Geneva Conventions of 12 August 1949;

7    hostage-taking;

8    extensive destruction and appropriation of property not justified by military necessity as permitted by international law and carried out unlawfully and wantonly;

9    acts and omissions not justified in law which are likely to endanger the physical or mental health and integrity of persons protected by one of the Conventions relative to the protection of wounded, sick and shipwrecked persons, in particular any medical procedure which is not indicated by the state of health of such persons or not consistent with generally accepted medical standards;

10   other than where justified under the conditions provided for in subparagraph 9, acts which consist in carrying out on persons referred to in subparagraph 9, even with their consent, physical mutilations, medical or scientific experiments or the removal of tissue or organs for transplantation, except in the case of donations of blood for transfusion or of skin for grafting, provided that such donations are voluntary, consented to and intended for therapeutic purposes;

11   making the civilian population or individual civilians the object of attack;

12   launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause loss of human life, injury to civilians or damage to civilian objects which would be excessive in relation to the concrete and direct military advantage anticipated, without prejudice to the criminal nature of the attack whose harmful effects, even where proportionate to the military advantage anticipated, would be inconsistent with the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience;

13   launching an attack against works or installations containing dangerous forces in the knowledge that such attack will cause loss of human life, injury to civilians or damage to civilian objects which would be excessive in relation to the concrete and direct military advantage anticipated, without prejudice to the criminal nature of the attack whose harmful effects, even where proportionate to the military advantage anticipated, would be inconsistent with the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience;

14   making non-defended localities or demilitarized zones the object of attack;

15   making a person the object of attack in the knowledge that he/she is hors de combat;

16   the perfidious use of the distinctive emblem of the red cross;

17   the transfer by the occupying power of parts of its own civilian population into the territory it occupies, in the case of an international armed conflict, or by the occupying authority in the case of a non-international armed conflict;

18   unjustifiable delay in the repatriation of prisoners of war or civilians;

19   indulging in practices of apartheid or other inhuman or degrading practices based on racial discrimination and resulting in outrages upon personal dignity;

20   directing attacks against clearly recognized historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples and to which special protection has been given by special arrangement, where there is no evidence of the adverse party having violated the prohibition of using such objects in support of the military effort, and where such objects are not located in the immediate proximity of military objectives.

The acts listed in subparagraphs 11, 12, 13, 14, 15, and 16 shall be regarded as grave breaches within the meaning of this Article where they bring about death or cause serious injury to the physical integrity or health of one or more persons.

Article. 2.

The criminal offenses enumerated in Article 1, first and second paragraph, and in Article 1, third paragraph, 1, 2 and 11 to 15, shall be punishable by reclusion for life.

The criminal offenses enumerated in Article 1, third paragraph, 3 and 10, shall be punishable by penal reclusion for twenty to thirty years. They shall be punishable by penal reclusion for life where they result in the death of one or more persons.

The criminal offense referred to in Article 1, third paragraph, 8, shall be punishable by penal reclusion for fifteen to twenty years. The same criminal offense, as well as the criminal offense referred to in Article 1, third paragraph, 16, shall be punishable by penal reclusion for twenty to thirty years where they result in either an incurable illness, the total loss of the use of an organ, or a serious mutilation. They shall be punishable by penal reclusion for life where they result in the death of one or more persons.

The criminal offense enumerated in Article 1, third paragraph, 4 to 7 and 17, shall be punishable by penal reclusion for ten to fifteen years. In the cases of aggravating circumstances such as those provided for in the preceding paragraph, they shall be punishable, depending on the case, by penalties provided for in that paragraph.

The criminal offense enumerated in Article 1, third paragraph, 18 to 20 shall be punishable by penal reclusion for ten to fifteen years, subject to the application of more stringent penalties imposed for serious injury to personal dignity.

The criminal offense referred to in Article 1, third paragraph, 9, shall be punishable by penal reclusion for ten to fifteen years. It shall be punishable by penal reclusion for fifteen to twenty years where it has serious consequences for public health.

Article. 3.

Anyone who manufactures, holds or transports an instrument, device or object, or erects a construction or converts an existing construction in the knowledge that the instrument, device, object, construction or conversion is intended to commit one of the breaches provided for in Article 1 or to facilitate the commission thereof, shall be punished by the penalty provided for with respect to the breach that he/she has made possible or facilitated.

Article. 4.

The following shall be punishable by the penalty provided for completed breaches:

-     an order, even where it is not carried out, to commit one of the breaches listed in Article 1,

-     a proposal or offer to commit such a breach and the acceptance of such proposal or offer,

-     incitement to commit such a breach, even where it is not carried out,

-     participation, within the meaning of Articles 66 and 67 of the Penal Code, in such a breach, even where it is not carried out,

-     failure to act to the extent available to them by persons who had knowledge of the orders given to commit such a breach or of acts initiating the commission thereof and who were able to prevent or put an end to such a breach,

-     any attempt, within the meaning of Articles 51 to 53 of the Penal Code, to commit such a breach.

Article. 5.

§ 1. No political, military or national interest or necessity, even on grounds of reprisals, can justify the breaches provided for in Articles 1, 3 and 4, without prejudice to the exceptions referred to in subparagraphs 9, 12 and 13 of paragraph 3 of Article 1.

§ 2. The fact that the defendant acted on the order of his/her government or a superior shall not absolve him/her from responsibility where, in the prevailing circumstances, the order could clearly result in the commission of a crime of genocide or of a crime against humanity, as defined in the present Act, or a grave breach of the Geneva Conventions of 12 August 1949 and their Additional protocol I of 8 June 1977.

§ 3. The immunity attributed to the official capacity of a person, does not prevent the application of the present Act.

Article. 6.

Without prejudice to Articles 4 and 8 of the present Act, all the provisions contained in Book I of the Penal Code shall, with the exception of Article 70, be applicable to the breaches provided for in the present Act.

CHAPTER II       Competence, applicable procedure and the execution of sentences

Article. 7.

The Belgian courts shall be competent to deal with breaches provided for in the present Act, irrespective of where such breaches have been committed.

In respect of breaches committed abroad by a Belgian national against a foreigner, no filing of complaint by the foreigner or his family or official notice by the authority of the country in which the breach was committed shall be required.

Article. 8.

Article 21 of the Introductory Part of the Code of Penal Procedure and Article 91 of the Penal Code, relative to the statutory limitation of public prosecutions and penalties, shall not be applicable to the breaches listed in Article 1 of the present Act.

Article. 9.

§ 1. Subject to Articles 99 to 108 of the Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949 and Article 75 of Additional Protocol I of 8 June 1977, the breaches provided for in the present Act shall, when Belgium is in a state of war, fall under the competence of military courts.

§ 2. Where a breach falling under the competence of an ordinary court is related to one which, pursuant to paragraph 1 above, falls under the competence of a military court, both breaches shall be tried by the military court.

§ 3. Where a breach provided for in the present Act falls under the competence of a military court, public prosecution shall be instituted through a summons issued by the Public Prosecutor's Office for the accused to appear before the trial court or through a complaint filed by any person claiming to have suffered injury as a result of the breach and bringing a suit for damages before the president of the judicial commission at the Conseil de Guerre [Court Martial] under the conditions provided for in Article 66 of the Code of Criminal Investigation.

In the latter case, the decision not to prosecute may be taken only by the Court Martial composed solely of a civilian member assisted by a clerk, or by the Military Court composed solely of its president and two of its military members with the rank of major, assisted by a clerk, without prejudice to the application of Articles 111 to 113, 140 and 147 of the Military Code of Penal Procedure. Such a decision shall be given, when the submissions of the public prosecutor's office have been heard, only under conditions such as those provided for in Article 128 of the Code of Criminal Investigation or where public prosecution is not admissible; it shall also order the party bringing the action for damages to pay the costs incurred by the State and the accused.

§ 4. The procedure for referring a case to corps disciplinary authorities as provided for in Article 24 § 1 of the Military Code of Penal Procedure shall at no time be applicable to breaches provided for in the present Act.