Although not always explicitly stated in criminal law, it appears that a victim’s nationality, residence or domicile must be acquired or established before the offence is suffered to be able to lodge a complaint in the State to which the victim appears to be linked. This guide makes great use of this hypothesis in the cases contained within. Therefore, it is important to first consider the concept of “victim”, then assess how the extension of passive personality to refugees and habitual residents is largely ineffective if these attributions must be established at the time of the unlawful event.
The concept of victim
In France, in a ruling dated 31 January 2001, the Cour de Cassation (the highest Court in the French judiciary) held that the principle of passive personality required a “ direct victim ” of French nationality and that the French nationality of indirect victims (such as the family of the deceased direct victim) does not permit the establishment of extraterritorial jurisdiction. 1 The case involved the assassination of the President of the Republic of Niger, a crime committed outside France. The president held Nigerian citizenship, his widow and children were French citizens residing in France and therefore sought compensation before the French courts. Although the “indirect victims” compared their plight to that of a direct victim with French nationality, and they cited the discrimination to which they were subject, the Court of Cassation ruled that “the provisions of Articles 6 and 14 of the European Convention on Fundamental Freedoms and Human Rights cannot be interpreted as being likely to challenge a French criminal court’s rules and laws on international jurisdiction.”= This decision was upheld by a ruling of the Court of Cassation on 21 January 2009 in a case concerning the 1975 disappearance of the President of the Cambodian National Assembly, Ung Boun Ohr .
This decision was confirmed in a more recent ruling of November 8, 2016 2 . A Moroccan citizen had been tortured by law enforcement officials in his country. He lodged a complaint in Paris for these acts, as well as his wife, a French national. The Criminal Division of the Court of Cassation overturned the previous decision of the trial judges : the wife was not a victim within the meaning of Article 113-7 of the Criminal Code. Only the status of direct victim of French nationality at the time of the commission of an offence committed abroad confers jurisdiction to the French courts.
Thus, under no circumstances would victims of corporate violations who flee their country to legally reside and obtain citizenship in France be permitted to lodge a complaint on the basis of passive personality, as indirect victims of harm sustained by family members that remain in their country of origin (unless the latter also hold the nationality of the prosecuting State).
Extending the principle of passive personality to refugees
Belgium alone specifically grants passive personality jurisdiction for offences committed against refugees who habitually reside in the State. 3 However, the restrictive conditions attached to passive personality jurisdiction inherently prevent all recognised refugees in Belgium from using this basis to lodge complaints in Belgium against aggressors in the country they left. This is not only because individuals logically receive refugee status only after having suffered a violation, not at the time of the violation, but moreover because once individuals are granted refugee status, they are strongly discouraged from returning to their country of origin. In returning to their country of origin, they could lose their refugee status and be dangerously re-exposed to a great risk of rights violations.
In drawing parallels between refugees and citizens with regards to passive personality, Belgium intended to confirm the primacy of its existing international obligation under Article 16.2 of the Geneva Convention of 28 July 1951 relating to the status of refugees, which states that “A refugee shall enjoy in the Contracting State in which he has his habitual residence the same treatment as a national in matters pertaining to access to the courts […]” 4 This novel approach is, however, affected by several pragmatic considerations. Where the passive personality regime for nationals is strictly applied to refugees, the requirement to be a refugee at the time of the violation ensures that no refugee candidate will have a “strategic” reason to target Belgium as a host State providing a forum for effective legal redress for the human rights violations the exile sought to escape. Fearing an effect on Belgium’s appeal for asylum applications, the Belgian Parliament clearly stated a desire to prevent “asylum shopping”. One way to curb this potential risk while improving refugees’ access to justice would be to ensure that all EU Member States enact legislation granting passive personality to persons who are refugees at the time prosecution begins.
The controversial dismissal of the complaint against Total by four Burmese in Belgium
The issue of extending passive personality to refugees was hotly debated in the context of the complaint four Burmese refugees lodged in Belgium against X, Total SA, T. Desmarest and H. Madéo. The Law of 16 June 1993 concerning the punishment of serious violations of international humanitarian law (the law of ’universal jurisdiction’ which was amended several times), under which the complaint was validly lodged on 25 April 2002, was repealed by the entry into force of the Law of 5 August 2003 which aimed to put an end to the supposedly improper use of the universal jurisdiction law. While providing for the immediate implementation of the new law, the legislature found it useful to adopt an interim measure to preserve, within the limits of international law, the jurisdiction of Belgian courts in certain cases (forty complaints had been lodged under the old law) where the examining court had established a link with Belgium. 5 This referred in particular to the plaintiff’s Belgian nationality ties at the time of the prosecution’s commencement.
In accordance with established procedure, the Court of Cassation was prepared to dismiss the complaint against Total given that, inter alia, none of the plaintiffs held Belgian nationality. The plaintiffs, however, petitioned the Court of Cassation to hold a preliminary hearing in the Constitutional Court to determine the constitutionality of the transitional legal arrangement. The plaintiffs argued that by ratifying the Geneva Convention of 28 July 1951, Belgium committed itself, under Article 16.2 of the Convention, to grant equal access to the courts for nationals and refugees habitually residing on its territory. The plaintiffs held that dismissing the complaint from a recognised refugee with habitual residence in Belgium clearly, effectively and discriminatorily denied them a “right of access to justice” which was nonetheless maintained for citizens. They noted that refugees no longer claim protection from their home country (by taking refuge in Belgium, they sever all ties with the officials of their home country). Taking this argument into account, the Court of Cassation in its 5 May 2004 ruling agreed to pose the plaintiffs’ question to the Constitutional Court. 6
On 13 April 2005, the Constitutional Court agreed that the difference in treatment of which the defendants complained was discriminatory in nature. 7 It its opinion, the Constitutional Court held that the Belgian courts’ dismissal of the complaint, when one of the plaintiffs was a recognised refugee in Belgium at the time the prosecution began is inconsistent with Article 16 of the Geneva Convention Relating to the Status of Refugees. The Constitutional Court added that according to recommendations from the United Nations High Commissioner on Human Rights released 2 August 2004, Belgium should “guarantee the rights victims acquire to a meaningful remedy, without any discrimination, to the extent that the mandatory rules relating to general international law on diplomatic immunity of the State do not apply. 8 Among its primary considerations, the Committee expressed concern about the effects immediately applying the Act of 5 August 2003 would have on complaints lodged under the Act of 16 June 1993, with regards to compliance with Articles 2, 5, 16 and 26 of the International Covenant on Civil and Political Rights.
In its 29 June 2005 ruling, the Court of Cassation decided nonetheless to dismiss the complaint against X, Total SA, Desmarest and Madéo from Belgian courts. 9 The court ruled that it could not compensate for the legislature’s shortcomings and as a result, could not transpose to refugees the transitional legal arrangement for complaints lodged by Belgians, even by analogy. The court added that the legality of prosecutions in this case would be questionable if not dismissed by the court. The court concluded that Articles 6 and 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms do not compensate for a lack of legal basis, given that “these provisions do not prohibit the legislature from using nationality as a criterion of personal jurisdiction with respect to offences committed outside of the territory.” Consequently, the Court of Cassation terminated proceedings against Total, Desmarest and Madéo and the legislature adapted the controversial transitional legal arrangement to conform to Belgium’s international obligations as confirmed by the Constitutional Court. 10
Following a number of procedural hurdles, the Total case was finally put to rest in October 2008, without the merits of the allegations ever being addressed. 11
The traditional criteria for jurisdiction, territoriality and personality, are not fully sufficient for punishing human rights violations by multinationals. States where crimes are committed are often inactive. The principle of active personality provides little or no relief when:
- the State in which jurisdiction is seized does not recognise corporate criminal liability (or if the liability of legal persons is limited) and
- the parent company is not a resident or national of an EU Member State. Beyond the legal hurdles, it is important to understand that a State in which parent companies are based may be reluctant to exercise extraterritorial jurisdiction due to “conflicts of interest” (particularly financial interests).
In its current state, passive personality only rarely offers new opportunities for victims to prosecute. It is thus useful to explore the universal jurisdiction laws Member States have adopted and to analyze the extent to which they address the shortcomings outlined above. The Total case is an excellent illustration of the phenomenon. Only the complaint filed in Belgium on the principle of universal jurisdiction allowed the company to be held criminally liable. The principle of the exception in place in France at the time the complaint was lodged, however, created difficulty in prosecuting Total there.