23 AVRIL 2003. - An Act to amend the Act of 16 June 1993 on the Suppression of Serious Violations of International Humanitarian Law and section 144ter of the Judicial Code (1)

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
Article 1^er. This Act regulates a matter referred to in Article 77 of the Constitution.
Art. 2. Article 1^er the Act of 16 June 1993 on the Suppression of Serious Violations of International Humanitarian Law, as amended by the Act of 10 February 1999, is replaced by the following provision:
“Art. 1^er. Constitutes a crime of international law and is punishable in accordance with the provisions of this Act, the crime of genocide, as defined below, whether committed in peacetime or in wartime. In accordance with the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948, and without prejudice to the criminal provisions applicable to offences committed by negligence, the crime of genocide is defined as one of the following acts, committed with the intention of destroying, in whole or in part, a Nazi, ethnic, racial or religious group as such:
1st murder of members of the group;
2° serious harm to the physical or mental integrity of members of the group;
3° intentional submission of the group to conditions of existence to result in its total or partial physical destruction;
4° measures to prevent births within the group;
5° forced transfer of children from the group to another group.
Art. 1^erbis. Constitutes a crime of international law and is repressed in accordance with the provisions of this Law, the crime against humanity, as defined below, whether committed in times of peace or in times of war. In accordance with the Statute of the International Criminal Court, the crime against humanity is one of the following acts committed in the context of a widespread or systematic attack against a civilian population and in the knowledge of this attack:
1st murder;
2° extermination;
3° reduction in slavery;
4° deportation or forced transfer of population;
5° imprisonment or other form of serious deprivation of physical liberty in violation of the fundamental provisions of international law;
6° torture,
7° rape, sexual slavery, forced prostitution, forced pregnancy, forced sterilization and any other form of sexual violence of comparable gravity;
8° persecution of any identifiable group or community on political, racial, national, ethnic, cultural, religious or gender-based grounds or on other criteria universally recognized as inadmissible under international law, in conjunction with any act referred to in Articles 1^er, 1^erbis and 1^erter;
9° enforced disappearances of persons;
10° apartheid crime;
11° other inhuman acts of a similar character intentionally causing great suffering or serious harm to physical integrity or physical or mental health.
Art. 1^erter. § 1^er. Constituent crimes of international law and are punishable in accordance with the provisions of this Law, the war crimes covered by the Geneva Conventions of 12 August 1949 and the Additional Protocols I and II to these Conventions, adopted in Geneva on 8 June 1977, by the laws and customs applicable to armed conflicts, as defined in Article 2 of the Geneva Conventions of 12 August 1949, in Article 1^er Additional Protocols I and II to these Conventions, adopted at Geneva on 8 June 1977, as well as Article 8, § 2, (f), of the Statute of the International Criminal Court, and listed below, where these crimes affect, by action or omission, the protection of persons and property guaranteed by these Conventions, Protocols, Laws and Customs, respectively, without prejudice to the criminal provisions applicable to offences committed by negligence:
1° intentional homicide;
2° torture or other inhuman treatment, including biological experiences;
3° intentionally causing great suffering or causing serious harm to physical integrity or health;
3°bis rape, sexual slavery, forced prostitution, forced pregnancy, forced sterilization or any other form of sexual violence that constitutes a grave breach of the Geneva Conventions or a serious violation of article 3 common to those Conventions;
3°ter other violations of human dignity, including humiliating and degrading treatment;
4° compel a prisoner of war, a civil person protected by the Convention on the Protection of Civilian Persons in Time of War or a person protected in that regard by Protocols I and II to the Geneva Conventions of 12 August 1949 to serve in the armed forces or armed groups of the enemy power or the opposing party;
4°bis makes it possible to conscription or enlist children under the age of fifteen in armed forces or armed groups, or to involve them actively in hostilities;
5° depriving a prisoner of war, a civil person protected by the Convention on the Protection of Civilian Persons in Time of War or a person protected in that regard, by Protocols I and II to the Geneva Conventions of 12 August 1949, of his right to be tried regularly and impartially in accordance with the requirements of those provisions;
6° the unlawful deportation, transfer or displacement, unlawful detention of a civil person protected under the Convention on the Protection of Civilian Persons in Time of War or a person protected in those same respects by Protocols I and II to the Geneva Conventions of 12 August 1949;
6°bis the deliberate starvation of civilians as a method of war, depriving them of goods indispensable to their survival, including intentionally preventing the dispatch of relief under the Geneva Conventions;
7° the hostage taking;
7°bis the fact of destroying or seizing the property of the enemy, in the event of an international armed conflict, or of an opponent, in the event of an armed conflict not of an international character, except in cases where such destruction or seizures would be imperially controlled by military necessity;
8° the destruction and appropriation of property, not justified by military necessity as admired by the law of people and carried out on a large scale unlawful and arbitrary;
8°bis the launch of deliberate attacks on civilian objects, that is, goods that are not military objectives;
8. To launch deliberate attacks against buildings, equipment, units and means of transport, and personnel using, in accordance with international law, the distinctive signs provided for in international humanitarian law;
8°quater the use of the presence of a civilian or other person protected by international humanitarian law to prevent certain military points, zones or forces from being targeted by military operations;
8° ceasing to launch deliberate attacks on personnel, facilities, equipment, units or vehicles employed in a humanitarian or peacekeeping mission in accordance with the Charter of the United Nations, provided that they are entitled to the protection that international law of armed conflict guarantees civilians and civilian objects;
9° acts and omissions, not legally justified, that are likely to compromise the health and physical or mental integrity of persons protected by international humanitarian law, including any medical act that would not be justified by the state of health of such persons or would not be in accordance with generally recognized medical art;
10° unless they are justified under the conditions set out in 9°, the acts of practicing on persons subject to 9°, even with their consent, physical mutilation, medical or scientific experiments or the removal of tissues or organs for transplants, unless they are donations of blood for transfusions or skin donations intended for transplants, to the extent that these voluntary donations are intended for purposes
11° the submission to a deliberate attack of the civilian population or civilians who do not take direct part in hostilities;
11°bis the launch of a deliberate attack on places where the sick and the wounded are gathered so far as these are not military objectives;
12° to launch a deliberate attack knowing that it will cause loss of life, injury to civilians or damage to civilian objects or extensive, lasting and serious damage to the natural environment, which would be excessive in relation to the concrete and direct military benefit expected, without prejudice to the crime of the attack whose harmful effects, even proportionate to the expected military advantage, would be incompatible with the principles of the attack
13° the launch of an attack on works or installations containing dangerous forces, knowing that this attack will result in loss of life, injury to civilians or damage to civilian objects, which would be excessive in relation to the concrete and direct military benefit expected, without prejudice to the crime of the attack whose damages even proportionate to the expected military advantage would be incompatible with the principles of the law of the people, as established by them
14° to submit to an attack or to bombard, by any means, demilitarized zones or cities, villages, dwellings or buildings not defended that are not military objectives;
14°bis the looting of a city or locality, even assault;
15° to submit a person to an attack by knowing her out of combat provided that this attack results in death or serious injury;
15°bis killing or injuring by treachery individuals belonging to the nation or the enemy army or a combatant opponent;
15°ter declaring that he will not be made of a quarter;
16° using perfidly the distinguishing sign of the red cross or red crescent or other protective signs recognized by international humanitarian law, provided that this causes death or serious injury;
16°bis the unduly use of the parliamentary flag, the military flag or insignia and the uniform of the enemy or the United Nations, provided that this results in the loss of human lives or serious injuries;
17° the direct or indirect transfer to an occupied territory of a part of the civilian population of the occupying Power, in the case of an international armed conflict, or the occupying authority in the case of a non-international armed conflict;
18° delaying the repatriation of prisoners of war or civilians without justification;
19° to engage in the practices of apartheid or other inhuman or degrading practices based on racial discrimination and which constitute contempt for personal dignity;
20° the directing of attacks on historical monuments, works of art or places of clearly recognized worship that constitute the cultural or spiritual heritage of the peoples and to which special protection has been granted under a particular arrangement while there is no evidence of violation by the opposing party of the prohibition of the use of these assets in support of the military effort, and that these assets are not located in the immediate vicinity of military objectives;
21° to launch deliberate attacks on buildings dedicated to religion, teaching, art, science or charity, historical monuments, hospitals, provided that these buildings are not military objectives;
22° using poison or poisoned weapons;
23° the use of asphyxiating, toxic or assimilated gases and any similar liquid, material or equipment;
24° the use of bullets that easily dilute or flatten in the human body, such as balls whose hard envelope does not cover the entire center or is pierced with holes;
25° to declare the rights and actions of persons belonging to the opposing party extinguished, suspended or not admissible in court;
26° the use of weapons, projectiles, materials and methods of war, such as to cause unnecessary ills or suffering or to strike without discrimination in violation of international law of armed conflict, provided that such weapons, projectiles, materials and methods of war are subject to a general prohibition and are included in an annex to the Statute of the International Criminal Court.
§ 2. Constituent crimes of international law and are punishable in accordance with the provisions of this Law, the serious violations of article 3 common of the Geneva Conventions of 12 August 1949, in the event of armed conflict defined by this article 3 common, and listed below, where such violations affect, by action or omission, the protection of persons guaranteed by these Conventions, without prejudice to the criminal provisions applicable to offences committed by negligence:
1° infringement of life and bodily integrity, including murder in all its forms, mutilation, cruel treatment and torture;
2° violations of the dignity of the person, including humiliating and degrading treatment;
3° the hostages;
4° the sentences handed down and the executions carried out without a prior judgment, rendered by a regularly constituted court, with judicial guarantees generally recognized as indispensable.
§ 3. Constituent crimes of international law and are punishable in accordance with the provisions of this Law, the serious violations defined in Article 15 of the Second Protocol relating to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, adopted at The Hague on 26 March 1999, committed in the event of armed conflict, as defined in Article 18, §§ 1^er and 2, of the 1954 Hague Convention and Article 22 of the Second Protocol referred to below, where such offences infringe, by action or omission, the protection of property guaranteed by these Conventions and Protocol, without prejudice to the criminal provisions applicable to offences committed by negligence:
1° to make a cultural property under enhanced protection the object of an attack;
2° use a cultural property under enhanced protection or its immediate surroundings in support of a military action;
3° to destroy or appropriate on a large scale cultural property protected by the Convention and the Second Protocol. »
Art. 3. Section 2 of the Act, as amended by the Act of 10 February 1999, is replaced by the following provision:
“Art. 2. The offences listed in articles 1^er and 1^erbis are punished by life imprisonment.
The offences listed in 1°, 2°, 8°ter, 8°quinquies, 11° to 14°, 15°, 15°bis, 15°ter of paragraph 1^er of Article 1^erter is punished by life imprisonment.
The offences listed in 3°, 3°bis, 6°bis, 8°quater, 10°, 22°, 23°, 24° and 26° of the same paragraph of the same article are punishable by imprisonment from twenty to thirty years. They are punished by life imprisonment if they have resulted in the death of one or more persons.
The offences listed in the 7°bis, 8°, 8°bis and 14°bis of the same paragraph of the same article are punishable by imprisonment from fifteen to twenty years. The same offence and the offence referred to in the 16th and 16th grades of the same paragraph of the same article shall be punishable by the imprisonment of twenty to thirty years if the consequences were either an incurable illness or a permanent incapacity for personal work, or the loss of the absolute use of an organ or a serious mutilation. They are punished by life imprisonment if they have resulted in the death of one or more persons.
The offences listed in 4° to 6°, 7° and 17° of the same paragraph of the same article are punishable by imprisonment from 10 to 15 years. In cases of aggravating circumstances referred to in the preceding paragraph, they shall, as the case may be, be punished by the penalties provided for in that paragraph.
The offences listed in 3°ter, 18° to 21° of the same paragraph of the same article shall be punished by imprisonment for 10 to 15 years, subject to the application of the stricter criminal provisions punishing serious violations of the dignity of the person.
The offence provided for in the 9th paragraph of the same article shall be punished by imprisonment for 10 to 15 years. It is punishable by imprisonment from fifteen to twenty years when it has resulted in serious consequences for public health.
The offence listed in the 25th paragraph of the same article is punishable by imprisonment from 10 to 15 years.
The offence listed in paragraph 2 of Article 1^erter is punished by life imprisonment.
The offences listed in 2° and 4° of the same paragraph of the same article shall be punished by imprisonment for 10 to 15 years, subject to the application of the stricter criminal provisions punishing serious violations of the dignity of the person.
The offence listed in the 3rd paragraph of the same article shall be punishable by imprisonment from 10 to 15 years. The same offence is punishable by imprisonment from twenty to thirty years if it has resulted in either a seemingly incurable disease, or a permanent incapacity for personal work, or loss of the absolute use of an organ or serious mutilation. It is punishable by life imprisonment if it resulted in the death of one or more persons.
The offences listed in 1° to 3° of paragraph 3 of Article 1^erter is punishable by imprisonment from fifteen to twenty years. »
Art. 4. Article 5, § 3, of the Act, as amended by the Act of 10 February 1999, is replaced by the following provision:
“§3. International immunity attached to the official quality of a person prevents the application of this Act only within the limits established by international law. »
Art. 5. Section 7 of the Act is replaced by the following provision:
“Art. 7. § 1^er. Subject to a divestiture in one of the cases provided for in the following paragraphs, Belgian courts are competent to hear offences under this Act, regardless of where they have been committed and even if the alleged perpetrator is not in Belgium.
However, public action can only be initiated upon requisition of the federal prosecutor when:
1° the offence was not committed in the territory of the Kingdom;
2° the alleged author is not Belgian;
3° the alleged perpetrator is not in the territory of the Kingdom and
4° the victim is not Belgian or has not resided in Belgium for at least three years.
Following a complaint pursuant to paragraph 2, the federal prosecutor requires the investigating judge to investigate the complaint unless:
1° The complaint is manifestly unfounded or
2° the facts in the complaint do not correspond to a qualification of this Act; or
3° an admissible public action cannot result from this complaint, or
4th of the concrete circumstances of the case, it is clear that, in the interest of a good administration of justice and in accordance with Belgium's international obligations, this case should be brought before international courts, either before the jurisdiction of the place where the facts have been committed, or before the jurisdiction of the State of which the author is a national or that of the place where he may be found, and provided that this jurisdiction is fair, independent, impartial.
Any decision to refuse is notified to the complainant within one month. The complainant party may lodge an appeal against the decision within fifteen days of the notification to the board of indictments by a statement made to the court of appeal's office and registered in an open register. The indictment board shall rule within fifteen days of the filing of the statement. It shall, in public hearing, hear whether it so decides at the request of one of the parties, the federal prosecutor and the parties to the proceedings in their submissions.
In case of refusal based on paragraph 3, item 4, the Minister of Justice shall inform the authorities referred to in that decision of the decision and the facts concerned.
It is only admissible to exercise civil action before the repressive jurisdiction of the head of an offence under this Act, who may claim to be personally injured by the offence, subject to public action.
§ 2. Pursuant to Article 14 of the Rome Statute of 17 July 1998, the Minister of Justice may bring to the attention of the International Criminal Court the facts before the judicial authorities, by deliberate decision in the Council of Ministers. This information may not relate to acts committed in Belgian territory, acts committed by a Belgian or acts committed against a Belgian, except where these facts are related or identical to facts before the Court and for which a positive decision of admissibility has already been made on the basis of article 18 of the Statute.
Once the prosecutor of the Court has made the notification under Article 18, § 1^er, of the Statute, with regard to the facts which the Minister of Justice has brought to the attention of the Court, the Court of Cassation, upon requisition of the Attorney General, pronounces the divestiture of the Belgian court before the same facts.
When the International Criminal Court, at the request of the Minister of Justice, informs, after deferral of the Belgian jurisdiction, that the prosecutor of the Court has decided not to establish an indictment, that the Court has not confirmed it, that it has declared itself incompetent or has declared the case inadmissible, Belgian courts are again competent. In this case, public action may only be initiated upon requisition of the Public Prosecutor's Office, the constitution of a civil party or confirmation by the author of the civil party prior to the denunciation or only upon requisition of the Federal Prosecutor in the case referred to in paragraph 1^erParagraph 2.
§ 3. Except as provided in paragraph 2, the Minister of Justice may, by deliberate decision in the Council of Ministers, bring the alleged facts to the attention of the State in whose territory the offence was committed and, unless the facts were committed in the territory of the Kingdom, the State of nationality of the alleged perpetrator or the State in whose territory the alleged perpetrator is located.
When the jurisdiction of one of these States decides to exercise its jurisdiction, the Court of Cassation, upon requisition of the Attorney General, pronounces the divestiture of the Belgian jurisdiction seized by the same fact, after having ascertained that there is no mistake on the person, unless the procedure followed by the jurisdiction of that State clearly does not respect the right of the parties to a fair trial.
§ 4. Except as provided in paragraph 2 and provided that the victim is not Belgian or that the facts have not been committed in the territory of the Kingdom, and where the alleged perpetrator is a national of a State whose legislation criminalizes serious violations of humanitarian law as listed in Articles 1^er, 1^erbis and 1^erter and guarantees to the parties the right to a fair trial, the Minister of Justice may, after a deliberate decision in the Council of Ministers, bring the alleged facts to the attention of that State.
Once the facts have been brought to the attention of the third State, the Court of Cassation, upon requisition of the Attorney General, pronounces the divestiture of the Belgian jurisdiction seized on the same fact, after having ascertained that there is no mistake on the person.
If the facts referred to in the previous paragraph are pending before the promulgation of this Act, the decision referred to in paragraph 1 shall be taken by the board of indictments issued within fifteen days. The Federal Prosecutor will report on the basis of the criteria listed in § 1^er3, 1 to 4°. The Indictment Chamber shall hear, in a public hearing, whether it so decides at the request of one of the parties, the comments of the Federal Prosecutor and the parties to the proceedings. »
Art. 6. § 1^er. In Article 3 of the Act of 16 June 1993, as amended by the Act of 10 February 1999, the words "in Article 1^er are replaced by the words "at Articles 1^er, 1^erbis and 1^erter".
§ 2. In Article 4, first dash, of the Act of 16 June 1993, amended by the Act of 10 February 1999, the words "Article 1^er are replaced by the words "Articles 1^er, 1^erbis and 1^erter".
§ 3. Article 5, § 1^erof the Act of 16 June 1993, as amended by the Act of 10 February 1999,^er are replaced by the words "articles 1^er, 1^erbis, 1^erter and the words "paragraph 3 of Article 1" are replaced by the words "of Article 1^erter, § 1^er "
§ 4. In Article 5, paragraph 2, of the Act of 16 June 1993, as amended by the Act of 10 February 1999, the words "of a crime of genocide or of a crime against humanity, as defined by this Act, or of a serious offence under the Geneva Conventions of 12 August 1949 and their first Additional Protocol of 8 June 1977" are replaced by the words "of one of the offences provided for in Articles 1^er, 1^erbis and 1^erter".
§ 5. In section 8 of the Act of 16 June 1993, as amended by the Act of 10 February 1999, the words "in section 1" are replaced by the words "in sections 1^er, 1^erbis and 1^erter".
Art. 7. Article 144ter, § 1^er, 1°, 4th dash, of the Judicial Code inserted, by the law of June 21, 2001, the words "1bis, 1ter" are inserted between the words "Articles 1^er and "and 2".
Art. 8. § 1^er. Without prejudice to paragraph 2, this Act comes into force on the day of its publication to the Belgian Monitor.
§ 2. Paragraph 3 of Article 1ter , new, inserted in the Act of 16 June 1993, as amended by the Act of 10 February 1999, by Article 2 of this Act and the last paragraph of Article 2, new, inserted in the same Act by Article 3 of this Act, enter into force on the day of the entry into force for Belgium of the Second Protocol relating to the Hague Convention of 1954 for the Protection of Cultural Property in the case of the Hague, 26 March 1999.
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 23 April 2003.
ALBERT
By the King:
Minister of Justice,
Mr. VERWILGHEN
Seal of the state seal:
Minister of Justice,
Mr. VERWILGHEN
____
Note
(1) Session 2001-2002 and 2002-2003.
Senate.
Parliamentary documents. - Bill 2-1256 - No. 1. - Amendments, 2-1256 - No. 2. - Opinion of the Council of State, 2-1256 - No. 3. - Amendments, 2-1256 - No. 4. - Report, 2-1256 - Number 5. - Text adopted by the commission, 2-1256 - No. 6. - Amendments filed after approval of the report, 2-1256 - No. 7. - Report, 2-1256 - No. 8. - Text adopted by the Committee after reference by the plenary session, 2-1256 - No. 9.
Annales parliamentarians. - Discussion and adoption. Session of January 30, 2003.
House of Representatives.
Parliamentary documents. - Project transmitted by the Senate, 50-2265 No. 1. - Amendments, 50-2265 - No. 2. - Report, 50-2265 - No. 3. - Text adopted by the commission, 50-2265 - No. 4. - Amendments submitted after tabling of the report, 50-2265 - No. 5. - Amendments submitted after deposit of the report, 50-2265 - No. 6. - Erratum, 50-2265 - No. 7. - Supplementary report, 50-2265 - No. 8. - Text adopted by the commission, 50-2265 - No. 9. - Text adopted in plenary and transmitted to the Senate, 50-2265 - No. 10. - Erratum, 50-2265 - No. 11.
Annales parliamentarians. - Discussion and adoption. Session of 1^er April 2003.
Senate.
Parliamentary documents. - Text amended by the House of Representatives, 2-1256 - No. 10. - Amendments, 2-1256 - No. 11. - Report, 2-1256 - No. 12. - Opinion of the Council of State, 2-1256 - No. 13. - Amendments reassigned after approval of the report, 2-1256 N° 14. - Text adopted in plenary and subject to Royal Assent, 2-1256 - No. 15.
Annales parliamentarians. - Discussion and adoption. Sessions of April 4 and 5, 2003.