Barbie
cases, 78 ILR, pp. 78, 125, 136 and
Demjanjuk
v.
Petrovsky
776 F.2d 571 (1985); 79 ILR, p. 534. See also
Keesing’s Record of World Events
,
p. 36189 regarding the
Demjanjuk
case in Israel.
672
i n t e r nat i o na l l aw
war crimes, crimes against the Jewish people and crimes against human-
ity. The District Court declared that far from limiting states’ jurisdiction
with regard to such crimes, international law was actually in need of the
legislative and judicial organs of every state giving effect to its criminal
interdictions and bringing the criminals to trial. The fact that the crimes
were committed prior to the establishment of the state of Israel did not
prevent the correct application of its powers pursuant to universal juris-
diction under international law. Israel’s municipal law merely reflected
the offences existing under international law.
It is a matter for domestic law whether the presence of the accused
is required for the exercise of the jurisdiction of the particular domestic
court. Different states adopt different approaches. The Belgian Court of
Cassation took the view in its decision of 12 February 2003 in
HSA et al.
v.
SA et al.
that the presence of the accused was not necessary.
121
But this
was in the context of the Belgian Statute of 1993, as amended in 1999,
which provided for a wide jurisdiction in the case of genocide, crimes
against humanity and war crimes. This Statute was amended on 23 April
2003 to provide that the alleged serious violation of international law in
question shall be one committed against a person who at the time of the
commission of the acts is a Belgian national or legally resident in Belgium
for at least three years and that any prosecution, including a preliminary
investigation phase, may only be undertaken at the request of the Federal
Prosecutor. In addition, the Federal Prosecutor may decide not to proceed
where it appears that in the interests of the proper administration of
justice and in compliance with Belgium’s international obligations, the
case would be better placed before an international court or the court
of the place where the acts were committed or the courts of the state of
nationality of the alleged offender or the courts of the place where he may
be found.
122
The Statute was further amended on 5 August 2003, requiring
a foreigner wishing to submit an application to be resident in Belgium
for a minimum of three years.
123
It appears that Belgium has in effect
ceased to permit prosecutions under the universal jurisdiction model in
the absence of the accused.
124
This is consistent with the approach of
the Institut de Droit International which has stated that ‘the exercise of
121
Relating to the indictment of defendants Ariel Sharon, Amos Yaron and others concerning
events in the Shabra and Shatilla camps in Lebanon in 1982, No. P. 02.1139. F/1.
122
See article 16(2), 42 ILM, 2003, pp. 1258 ff.
123
Moniteur Belge
, 7 August 2003, pp. 40506–15.
124
See e.g. Inazumi,
Universal Jurisdiction
, p. 97. See also S. Ratner, ‘Belgium’s War Crimes
Statute: A Postmortem’, 97 AJIL, 2003, p. 888.
j u r i s d i c t i o n
673
universal jurisdiction requires the presence of the alleged offender in the
territory of the prosecuting state or on board a vessel flying its flag or an
aircraft which is registered under its laws or other lawful forms of control
over the alleged offender’.
125
The Supreme Court of Spain decided on 25 February 2003 in the
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