| |
[p.3]
THE COURT,
composed as above,
after deliberation,
delivers the following Judgment:[p 6]
1. On 17 October 2000 the Democratic Republic of the Congo (hereinafter
referred to as "the Congo") filed in the Registry of the Court an
Application instituting proceedings against the Kingdom of Belgium
(hereinafter referred to as "Belgium") in respect of a dispute concerning an
"international arrest warrant issued on 11 April 2000 by a Belgian
investigating judge . . . against the Minister for Foreign Affairs in office
of the Democratic Republic of the Congo, Mr. Abdulaye Yerodia Ndombasi".
In that Application the Congo contended that Belgium had violated the
"principle that a State may not exercise its authority on the territory of
another State", the "principle of sovereign equality among all Members of
the United Nations, as laid down in Article 2, paragraph 1, of the Charter
of the United Nations", as well as "the diplomatic immunity of the Minister
for Foreign Affairs of a sovereign State, as recognized by the jurisprudence
of the Court and following from Article 41, paragraph 2, of the Vienna
Convention of 18 April 1961 on Diplomatic Relations".
In order to found the Court's jurisdiction the Congo invoked in the
aforementioned Application the fact that "Belgium had accepted the
jurisdiction of the Court and, in so far as may be required, the
[aforementioned] Application signified acceptance of that jurisdiction by
the Democratic Republic of the Congo".
2. Pursuant to Article 40, paragraph 2, of the Statute, the Application was
forthwith communicated to the Government of Belgium by the Registrar; and,
in accordance with paragraph 3 of that Article, all States entitled to
appear before the Court were notified of the Application.
3. Since the Court included upon the Bench no judge of the nationality of
either of the Parties, each Party proceeded to exercise the right conferred
by Article 31, paragraph 3, of the Statute to choose a judge ad hoc to sit
in the case; the Congo chose Mr. Sayeman Bula-Bula, and Belgium Ms Christine
Van den Wyngaert.
4. On 17 October 2000, the day on which the Application was filed, the
Government of the Congo also filed in the Registry of the Court a request
for the indication of a provisional measure based on Article 41 of the
Statute of the Court. At the hearings on that request, Belgium, for its
part, asked that the case be removed from the List.
By Order of 8 December 2000 the Court, on the one hand, rejected Belgium's
request that the case be removed from the List and, on the other, held that
the circumstances, as they then presented themselves to the Court, were not
such as to require the exercise of its power under Article 41 of the Statute
to indicate provisional measures. In the same Order, the Court also held
that "it [was] desirable that the issues before the Court should be
determined as soon as possible" and that "it [was] therefore appropriate to
ensure that a decision on the Congo's Application be reached with all
expedition".
5. By Order of 13 December 2000, the President of the Court, taking account
of the agreement of the Parties as expressed at a meeting held with their
Agents on 8 December 2000, fixed time-limits for the filing of a Memorial by
the Congo and of a Counter-Memorial by Belgium, addressing both issues of
jurisdiction and admissibility and the merits. By Orders of 14 March 2001
and 12 April 2001, these time-limits, taking account of the reasons given by
the Congo and the agreement of the Parties, were successively extended. The
Memorial of the Congo was filed on 16 May 2001 within the time-limit thus
finally prescribed.
6. By Order of 27 June 2001, the Court, on the one hand, rejected a request
[p 7] by Belgium for authorization, in derogation from the previous Orders
of the President of the Court, to submit preliminary objections involving
suspension of the proceedings on the merits and, on the other, extended the
time-limit prescribed in the Order of 12 April 2001 for the filing by
Belgium of a Counter-Memorial addressing both questions of jurisdiction and
admissibility and the merits. The Counter-Memorial of Belgium was filed on
28 September 2001 within the time-limit thus extended.
7. Pursuant to Article 53, paragraph 2, of the Rules, the Court, after
ascertaining the views of the Parties, decided that copies of the pleadings
and documents annexed would be made available to the public at the opening
of the oral proceedings.
8. Public hearings were held from 15 to 19 October 2001, at which the Court
heard the oral arguments and replies of:
For the Congo: H.E. Mr. Jacques Masangu-a-Mwanza,
H.E. Mr. Ngele Masudi,
Maitre Kosisaka Kombe,
Mr. Francois Rigaux,
Ms Monique Chemillier-Gendreau,
Mr. Pierre d'Argent.
For Belgium: Mr. Jan Devadder,
Mr. Daniel Bethlehem,
Mr. Eric David.
9. At the hearings, Members of the Court put questions to Belgium, to which
replies were given orally or in writing, in accordance with Article 61,
paragraph 4, of the Rules of Court. The Congo provided its written comments
on the reply that was given in writing to one of these questions, pursuant
to Article 72 of the Rules of Court.
*
10. In its Application, the Congo formulated the decision requested in the
following terms:
"The Court is requested to declare that the Kingdom of Belgium shall annul
the international arrest warrant issued on 11 April 2000 by a Belgian
investigating judge, Mr. Vandermeersch, of the Brussels tribunal de premiere
instance against the Minister for Foreign Affairs in office of the
Democratic Republic of the Congo, Mr. Abdulaye Yerodia Ndombasi, seeking his
provisional detention pending a request for extradition to Belgium for
alleged crimes constituting 'serious violations of international
humanitarian law', that warrant having been circulated by the judge to all
States, including the Democratic Republic of the Congo, which received it on
12 July 2000."
11. In the course of the written proceedings, the following submissions were
presented by the Parties:
On behalf of the Government of the Congo,
in the Memorial:
"In light of the facts and arguments set out above, the Government of the
Democratic Republic of the Congo requests the Court to adjudge and declare
that: [p 8]
1. by issuing and internationally circulating the arrest warrant of 11 April
2000 against Mr. Abdulaye Yerodia Ndombasi, Belgium committed a violation in
regard to the DRC of the rule of customary international law concerning the
absolute inviolability and immunity from criminal process of incumbent
foreign ministers;
2. a formal finding by the Court of the unlawfulness of that act constitutes
an appropriate form of satisfaction, providing reparation for the consequent
moral injury to the DRC;
3. the violation of international law underlying the issue and international
circulation of the arrest warrant of 11 April 2000 precludes any State,
including Belgium, from executing it;
4. Belgium shall be required to recall and cancel the arrest warrant of 11
April 2000 and to inform the foreign authorities to whom the warrant was
circulated that, following the Court's Judgment, Belgium renounces its
request for their co-operation in executing the unlawful warrant."
On behalf of the Government of Belgium,
in the Counter-Memorial:
"For the reasons stated in Part II of this Counter-Memorial, Belgium
requests the Court, as a preliminary matter, to adjudge and declare that the
Court lacks jurisdiction in this case and/or that the application by the
Democratic Republic of the Congo against Belgium is inadmissible.
If, contrary to the preceding submission, the Court concludes that it does
have jurisdiction in this case and that the application by the Democratic
Republic of the Congo is admissible, Belgium requests the Court to reject
the submissions of the Democratic Republic of the Congo on the merits of the
case and to dismiss the application."
12. At the oral proceedings, the following submissions were presented by the
Parties:
On behalf of the Government of the Congo,
"In light of the facts and arguments set out during the written and oral
proceedings, the Government of the Democratic Republic of the Congo requests
the Court to adjudge and declare that:
1. by issuing and internationally circulating the arrest warrant of 11 April
2000 against Mr. Abdulaye Yerodia Ndombasi, Belgium committed a violation in
regard to the Democratic Republic of the Congo of the rule of customary
international law concerning the absolute inviolability and immunity from
criminal process of incumbent foreign ministers; in so doing, it violated
the principle of sovereign equality among States;
2. a formal finding by the Court of the unlawfulness of that act constitutes
an appropriate form of satisfaction, providing reparation for the consequent
moral injury to the Democratic Republic of the Congo;
3. the violations of international law underlying the issue and
international circulation of the arrest warrant of 11 April 2000 preclude
any State, including Belgium, from executing it;
4. Belgium shall be required to recall and cancel the arrest warrant of 11
April 2000 and to inform the foreign authorities to whom the war-[p 9]rant
was circulated that Belgium renounces its request for their co-operation in
executing the unlawful warrant."
On behalf of the Government of Belgium,
"For the reasons stated in the Counter-Memorial of Belgium and in its oral
submissions, Belgium requests the Court, as a preliminary matter, to adjudge
and declare that the Court lacks jurisdiction in this case and/or that the
Application by the Democratic Republic of the Congo against Belgium is
inadmissible.
If, contrary to the submissions of Belgium with regard to the Court's
jurisdiction and the admissibility of the Application, the Court concludes
that it does have jurisdiction in this case and that the Application by the
Democratic Republic of the Congo is admissible, Belgium requests the Court
to reject the submissions of the Democratic Republic of the Congo on the
merits of the case and to dismiss the Application."
***
13. On 11 April 2000 an investigating judge of the Brussels tribunal de
premiere instance issued "an international arrest warrant in absentia"
against Mr. Abdulaye Yerodia Ndombasi, charging him, as perpetrator or
co-perpetrator, with offences constituting grave breaches of the Geneva
Conventions of 1949 and of the Additional Protocols thereto, and with crimes
against humanity.
At the time when the arrest warrant was issued Mr. Yerodia was the Minister
for Foreign Affairs of the Congo.
14. The arrest warrant was transmitted to the Congo on 7 June 2000, being
received by the Congolese authorities on 12 July 2000. According to Belgium,
the warrant was at the same time transmitted to the International Criminal
Police Organization (Interpol), an organization whose function is to enhance
and facilitate cross-border criminal police co-operation worldwide; through
the latter, it was circulated internationally.
15. In the arrest warrant, Mr. Yerodia is accused of having made various
speeches inciting racial hatred during the month of August 1998. The crimes
with which Mr. Yerodia was charged were punishable in Belgium under 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", as amended by the Law of 19 February
1999 "concerning the Punishment of Serious Violations of International
Humanitarian Law" (hereinafter referred to as the "Belgian Law").
Article 7 of the Belgian Law provides that "The Belgian courts shall have
jurisdiction in respect of the offences provided for in the present Law,
wheresoever they may have been committed". In the present case, according to
Belgium, the complaints that initiated the proceedings as a result of which
the arrest warrant was issued emanated from 12 individuals all resident in
Belgium, five of whom were of Belgian nationality. It is not contested by
Belgium, however, that the alleged acts to which [p 10] the arrest warrant
relates were committed outside Belgian territory, that Mr. Yerodia was not a
Belgian national at the time of those acts, and that Mr. Yerodia was not in
Belgian territory at the time that the arrest warrant was issued and
circulated. That no Belgian nationals were victims of the violence that was
said to have resulted from Mr. Yerodia's alleged offences was also
uncontested.
Article 5, paragraph 3, of the Belgian Law further provides that "immunity
attaching to the official capacity of a person shall not prevent the
application of the present Law".
16. At the hearings, Belgium further claimed that it offered "to entrust the
case to the competent authorities [of the Congo] for enquiry and possible
prosecution", and referred to a certain number of steps which it claimed to
have taken in this regard from September 2000, that is, before the filing of
the Application instituting proceedings. The Congo for its part stated the
following: "We have scant information concerning the form [of these Belgian
proposals]." It added that "these proposals . . . appear to have been made
very belatedly, namely after an arrest warrant against Mr. Yerodia had been
issued."
17. On 17 October 2000, the Congo filed in the Registry an Application
instituting the present proceedings (see paragraph 1 above), in which the
Court was requested "to declare that the Kingdom of Belgium shall annul the
international arrest warrant issued on 11 April 2000". The Congo relied in
its Application on two separate legal grounds. First, it claimed that "the
universal jurisdiction that the Belgian State attributes to itself under
Article 7 of the Law in question" constituted a
"violation of the principle that a State may not exercise its authority on
the territory of another State and of the principle of sovereign equality
among all Members of the United Nations, as laid down in Article 2,
paragraph 1, of the Charter of the United Nations".
Secondly, it claimed that "the non-recognition, on the basis of Article 5 .
. . of the Belgian Law, of the immunity of a Minister for Foreign Affairs in
office" constituted a "violation of the diplomatic immunity of the Minister
for Foreign Affairs of a sovereign State, as recognized by the jurisprudence
of the Court and following from Article 41, paragraph 2, of the Vienna
Convention of 18 April 1961 on Diplomatic Relations".
18. On the same day that it filed its Application instituting proceedings,
the Congo submitted a request to the Court for the indication of a
provisional measure under Article 41 of the Statute of the Court. During the
hearings devoted to consideration of that request, the Court was informed
that in November 2000 a ministerial reshuffle had taken place in the Congo,
following which Mr. Yerodia had ceased to hold office as Minister for
Foreign Affairs and had been entrusted with the portfolio of Minister of
Education. Belgium accordingly claimed that the Congo's Application had
become moot and asked the Court, as has already been [p 11] recalled, to
remove the case from the List. By Order of 8 December 2000, the Court
rejected both Belgium's submissions to that effect and also the Congo's
request for the indication of provisional measures (see paragraph 4 above).
19. From mid-April 2001, with the formation of a new Government in the
Congo, Mr. Yerodia ceased to hold the post of Minister of Education. He no
longer holds any ministerial office today.
20. On 12 September 2001, the Belgian National Central Bureau of Interpol
requested the Interpol General Secretariat to issue a Red Notice in respect
of Mr. Yerodia. Such notices concern individuals whose arrest is requested
with a view to extradition. On 19 October 2001, at the public sittings held
to hear the oral arguments of the Parties in the case, Belgium informed the
Court that Interpol had responded on 27 September 2001 with a request for
additional information, and that no Red Notice had yet been circulated.
21. Although the Application of the Congo originally advanced two separate
legal grounds (see paragraph 17 above), the submissions of the Congo in its
Memorial and the final submissions which it presented at the end of the oral
proceedings refer only to a violation "in regard to the . . . Congo of the
rule of customary international law concerning the absolute inviolability
and immunity from criminal process of incumbent foreign ministers" (see
paragraphs 11 and 12 above).
***
22. In their written pleadings, and in oral argument, the Parties addressed
issues of jurisdiction and admissibility as well as the merits (see
paragraphs 5 and 6 above). In this connection, Belgium raised certain
objections which the Court will begin by addressing.
**
23. The first objection presented by Belgium reads as follows:
"That, in the light of the fact that Mr. Yerodia Ndombasi is no longer
either Minister for Foreign Affairs of the [Congo] or a minister occupying
any other position in the . . . Government [of the Congo], there is no
longer a 'legal dispute' between the Parties within the meaning of this term
in the Optional Clause Declarations of the Parties and that the Court
accordingly lacks jurisdiction in this case."
24. Belgium does not deny that such a legal dispute existed between the
Parties at the time when the Congo filed its Application instituting
proceedings, and that the Court was properly seised by that Application.
However, it contends that the question is not whether a legal dispute [p 12]
existed at that time, but whether a legal dispute exists at the present
time. Belgium refers in this respect inter alia to the Northern Cameroons
case, in which the Court found that it "may pronounce judgment only in
connection with concrete cases where there exists at the time of the
adjudication an actual controversy involving a conflict of legal interests
between the parties" (I.C.J. Reports 1963, pp. 33-34), as well as to the
Nuclear Tests cases (Australia v. France) and (New Zealand v. France), in
which the Court stated the following: "The Court, as a court of law, is
called upon to resolve existing disputes between States . . . The dispute
brought before it must therefore continue to exist at the time when the
Court makes its decision" (I.C.J. Reports 1974, pp. 270-271, para. 55; p.
476, para. 58). Belgium argues that the position of Mr. Yerodia as Minister
for Foreign Affairs was central to the Congo's Application instituting
proceedings, and emphasizes that there has now been a change of
circumstances at the very heart of the case, in view of the fact that Mr.
Yerodia was relieved of his position as Minister for Foreign Affairs in
November 2000 and that, since 15 April 2001, he has occupied no position in
the Government of the Congo (see paragraphs 18 and 19 above). According to
Belgium, while there may still be a difference of opinion between the
Parties on the scope and content of international law governing the
immunities of a Minister for Foreign Affairs, that difference of opinion has
now become a matter of abstract, rather than of practical, concern. The
result, in Belgium's view, is that the case has become an attempt by the
Congo to "[seek] an advisory opinion from the Court", and no longer a
"concrete case" involving an "actual controversy" between the Parties, and
that the Court accordingly lacks jurisdiction in the case.
25. The Congo rejects this objection of Belgium. It contends that there is
indeed a legal dispute between the Parties, in that the Congo claims that
the arrest warrant was issued in violation of the immunity of its Minister
for Foreign Affairs, that that warrant was unlawful ab initio, and that this
legal defect persists despite the subsequent changes in the position
occupied by the individual concerned, while Belgium maintains that the issue
and circulation of the arrest warrant were not contrary to international
law. The Congo adds that the termination of Mr. Yerodia's official duties in
no way operated to efface the wrongful act and the injury that flowed from
it, for which the Congo continues to seek redress.
*
26. The Court recalls that, according to its settled jurisprudence, its
jurisdiction must be determined at the time that the act instituting
proceedings was filed. Thus, if the Court has jurisdiction on the date the
case is referred to it, it continues to do so regardless of subsequent
events. Such events might lead to a finding that an application has
subsequently [p 13] become moot and to a decision not to proceed to judgment
on the merits, but they cannot deprive the Court of jurisdiction (see
Nottebohm, Preliminary Objection, Judgment, I.C.J. Reports 1953, p. 122;
Right of Passage over Indian Territory, Preliminary Objections, Judgment,
I.C.J. Reports 1957, p. 142; Questions of Interpretation and Application of
the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie
(Libyan Arab Jamahiriya v. United Kingdom), Preliminary Objections,
Judgment, I.C.J. Reports 1998, pp. 23-24, para. 38; and Questions of
Interpretation and Application of the 1971 Montreal Convention arising from
the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of
America), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 129,
para. 37).
27. Article 36, paragraph 2, of the Statute of the Court provides:
"The States parties to the present Statute may at any time declare that they
recognize as compulsory ipso facto and without special agreement, in
relation to any other State accepting the same obligation, the jurisdiction
of the Court in all legal disputes concerning:
(a) the interpretation of a treaty;
(b) any question of international law;
(c) the existence of any fact which, if established, would constitute a
breach of an international obligation;
(d) the nature or extent of the reparation to be made for the breach of an
international obligation."
On 17 October 2000, the date that the Congo's Application instituting these
proceedings was filed, each of the Parties was bound by a declaration of
acceptance of compulsory jurisdiction, filed in accordance with the above
provision: Belgium by a declaration of 17 June 1958 and the Congo by a
declaration of 8 February 1989. Those declarations contained no reservation
applicable to the present case.
Moreover, it is not contested by the Parties that at the material time there
was a legal dispute between them concerning the international lawfulness of
the arrest warrant of 11 April 2000 and the consequences to be drawn if the
warrant was unlawful. Such a dispute was clearly a legal dispute within the
meaning of the Court's jurisprudence, namely "a disagreement on a point of
law or fact, a conflict of legal views or of interests between two persons"
in which "the claim of one party is positively opposed by the other"
(Questions of Interpretation and Application of the 1971 Montreal Convention
arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v.
United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 1998, p.
17, para. 22; and Questions of Interpretation and Application of the 1971
Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan
Arab Jamahiriya v. United States of America), Preliminary Objections,
Judgment, I.C.J. Reports 1998, pp. 122-123, para. 21).
28. The Court accordingly concludes that at the time that it was seised [p
14] of the case it had jurisdiction to deal with it, and that it still has
such jurisdiction. Belgium's first objection must therefore be rejected.
**
29. The second objection presented by Belgium is the following:
"That in the light of the fact that Mr. Yerodia Ndombasi is no longer either
Minister for Foreign Affairs of the [Congo] or a minister occupying any
other position in the. . . Government [of the Congo], the case is now
without object and the Court should accordingly decline to proceed to
judgment on the merits of the case."
30. Belgium also relies in support of this objection on the Northern
Cameroons case, in which the Court considered that it would not be a proper
discharge of its duties to proceed further in a case in which any judgment
that the Court might pronounce would be "without object" (I.C.J. Reports
1963, p. 38), and on the Nuclear Tests cases, in which the Court saw "no
reason to allow the continuance of proceedings which it knows are bound to
be fruitless" (I.C.J. Reports 1974, p. 271, para. 58; p. 477, para. 61).
Belgium maintains that the declarations requested by the Congo in its first
and second submissions would clearly fall within the principles enunciated
by the Court in those cases, since a judgment of the Court on the merits in
this case could only be directed towards the clarification of the law in
this area for the future, or be designed to reinforce the position of one or
other Party. It relies in support of this argument on the fact that the
Congo does not allege any material injury and is not seeking compensatory
damages. It adds that the issue and transmission of the arrest warrant were
not predicated on the ministerial status of the person concerned, that he is
no longer a minister, and that the case is accordingly now devoid of object.
31. The Congo contests this argument of Belgium, and emphasizes that the aim
of the Congo -- to have the disputed arrest warrant annulled and to obtain
redress for the moral injury suffered -- remains unachieved at the point in
time when the Court is called upon to decide the dispute. According to the
Congo, in order for the case to have become devoid of object during the
proceedings, the cause of the violation of the right would have had to
disappear, and the redress sought would have to have been obtained.
*
32. The Court has already affirmed on a number of occasions that events
occurring subsequent to the filing of an application may render the
application without object such that the Court is not called upon to give a
decision thereon (see Questions of Interpretation and Application of the
1971 Mon-[p 15]treal Convention arising from the Aerial Incident at
Lockerbie (Libyan Arab Jamahiriyav. United Kingdom), Preliminary Objections,
Judgment, I.C.J. Reports 1998, p. 26, para. 46; and Questions of
Interpretation and Application of the 1971 Montreal Convention arising from
the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of
America), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 131,
para. 45).
However, it considers that this is not such a case. The change which has
occurred in the situation of Mr. Yerodia has not in fact put an end to the
dispute between the Parties and has not deprived the Application of its
object. The Congo argues that the arrest warrant issued by the Belgian
judicial authorities against Mr. Yerodia was and remains unlawful. It asks
the Court to hold that the warrant is unlawful, thus providing redress for
the moral injury which the warrant allegedly caused to it. The Congo also
continues to seek the cancellation of the warrant. For its part, Belgium
contends that it did not act in violation of international law and it
disputes the Congo's submissions. In the view of the Court, it follows from
the foregoing that the Application of the Congo is not now without object
and that accordingly the case is not moot. Belgium's second objection must
accordingly be rejected.
**
33.The third Belgian objection is put as follows:
"That the case as it now stands is materially different to that set out in
the [Congo] 's Application instituting proceedings and that the Court
accordingly lacks jurisdiction in the case and/or that the application is
inadmissible."
34. According to Belgium, it would be contrary to legal security and the
sound administration of justice for an applicant State to continue
proceedings in circumstances in which the factual dimension on which the
Application was based has changed fundamentally, since the respondent State
would in those circumstances be uncertain, until the very last moment, of
the substance of the claims against it. Belgium argues that the prejudice
suffered by the respondent State in this situation is analogous to the
situation in which an applicant State formulates new claims during the
course of the proceedings. It refers to the jurisprudence of the Court
holding inadmissible new claims formulated during the course of the
proceedings which, had they been entertained, would have transformed the
subject of the dispute originally brought before it under the terms of the
Application (see Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of
the Court, Judgment, I.C.J. Reports 1998, pp. 447-448, para. 29). In the
circumstances, Belgium contends that, if the Congo wishes to maintain its
claims, it should be required to initiate proceedings afresh or, at the very
least, apply to the Court for permission to amend its initial Application.[p
16]
35. In response, the Congo denies that there has been a substantial
amendment of the terms of its Application, and insists that it has presented
no new claim, whether of substance or of form, that would have transformed
the subject-matter of the dispute. The Congo maintains that it has done
nothing through the various stages in the proceedings but "condense and
refine" its claims, as do most States that appear before the Court, and that
it is simply making use of the right of parties to amend their submissions
until the end of the oral proceedings.
*
36. The Court notes that, in accordance with settled jurisprudence, it
"cannot, in principle, allow a dispute brought before it by application to
be transformed by amendments in the submissions into another dispute which
is different in character" (Societe Commerciale de Belgique, Judgment, 1939,
P.C.I.J., Series A/B, No. 78, p. 173; cf. Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v. United States of America),
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 427, para.
80; see also Certain Phosphate Lands in Nauru (Nauru v. Australia),
Preliminary Objections, Judgment, I.C.J. Reports 1992, pp. 264-267, in
particular paras. 69 and 70). However, the Court considers that in the
present case the facts underlying the Application have not changed in a way
that produced such a transformation in the dispute brought before it. The
question submitted to the Court for decision remains whether the issue and
circulation of the arrest warrant by the Belgian judicial authorities
against a person who was at that time the Minister for Foreign Affairs of
the Congo were contrary to international law. The Congo's final submissions
arise "directly out of the question which is the subject-matter of that
Application" (Fisheries Jurisdiction (Federal Republic of Germany v.
Iceland), Merits, Judgment, I.C.J. Reports 1974, p. 203, para. 72; see also
Temple of Preah Vihear, Merits, Judgment, I.C.J. Reports 1962, p. 36).
In these circumstances, the Court considers that Belgium cannot validly
maintain that the dispute brought before the Court was transformed in a way
that affected its ability to prepare its defence, or that the requirements
of the sound administration of justice were infringed. Belgium's third
objection must accordingly be rejected.
**
37. The fourth Belgian objection reads as follows:
"That, in the light of the new circumstances concerning Mr. Yerodia
Ndombasi, the case has assumed the character of an action of diplomatic
protection but one in which the individual being pro-[p 17]tected has failed
to exhaust local remedies, and that the Court accordingly lacks jurisdiction
in the case and/or that the application is inadmissible."
38. In this respect, Belgium accepts that, when the case was first
instituted, the Congo had a direct legal interest in the matter, and was
asserting a claim in its own name in respect of the alleged violation by
Belgium of the immunity of the Congo's Foreign Minister. However, according
to Belgium, the case was radically transformed after the Application was
filed, namely on 15 April 2001, when Mr. Yerodia ceased to be a member of
the Congolese Government. Belgium maintains that two of the requests made of
the Court in the Congo's final submissions in practice now concern the legal
effect of an arrest warrant issued against a private citizen of the Congo,
and that these issues fall within the realm of an action of diplomatic
protection. It adds that the individual concerned has not exhausted all
available remedies under Belgian law, a necessary condition before the Congo
can espouse the cause of one of its nationals in international proceedings.
39. The Congo, on the other hand, denies that this is an action for
diplomatic protection. It maintains that it is bringing these proceedings in
the name of the Congolese State, on account of the violation of the immunity
of its Minister for Foreign Affairs. The Congo further denies the
availability of remedies under Belgian law. It points out in this regard
that it is only when the Crown Prosecutor has become seised of the case file
and makes submissions to the Chambre du conseil that the accused can defend
himself before the Chambre and seek to have the charge dismissed.
*
40. The Court notes that the Congo has never sought to invoke before it Mr.
Yerodia's personal rights. It considers that, despite the change in
professional situation of Mr. Yerodia, the character of the dispute
submitted to the Court by means of the Application has not changed: the
dispute still concerns the lawfulness of the arrest warrant issued on 11
April 2000 against a person who was at the time Minister for Foreign Affairs
of the Congo, and the question whether the rights of the Congo have or have
not been violated by that warrant. As the Congo is not acting in the context
of protection of one of its nationals, Belgium cannot rely upon the rules
relating to the exhaustion of local remedies.
In any event, the Court recalls that an objection based on non-exhaustion of
local remedies relates to the admissibility of the application (see
Interhandel, Preliminary Objections, Judgment, I.C.J. Reports 1959, p. 26;
Elettronica Sicula S.p.A. (ELSI), Judgment, I.C.J. Reports 1989, p. 42,
para. 49). Under settled jurisprudence, the critical date for determining
the admissibility of an application is the date on which it is filed [p 18]
(see Questions of Interpretation and Application of the 1971 Montreal
Convention arising from the Aerial Incident at Lockerbie (Libyan Arab
Jamahiriya v. United Kingdom), Preliminary Objections, Judgment, I.C.J.
Reports 1998, pp. 25-26, paras. 43-44; and Questions of Interpretation and
Application of the 1971 Montreal Convention arising from the Aerial Incident
at Lockerbie (Libyan Arab Jamahiriya v. United States of America),
Preliminary Objections, Judgment, I.C.J. Reports 1998, pp. 130-131, paras.
42-43). Belgium accepts that, on the date on which the Congo filed the
Application instituting proceedings, the Congo had a direct legal interest
in the matter, and was asserting a claim in its own name. Belgium's fourth
objection must accordingly be rejected.
**
41. As a subsidiary argument, Belgium further contends that "in the event
that the Court decides that it does have jurisdiction in this case and that
the application is admissible, . . . the non ultra petita rule operates to
limit the jurisdiction of the Court to those issues that are the subject of
the [Congo] 's final submissions". Belgium points out that, while the Congo
initially advanced a twofold argument, based, on the one hand, on the
Belgian judge's lack of jurisdiction, and, on the other, on the immunity
from jurisdiction enjoyed by its Minister for Foreign Affairs, the Congo no
longer claims in its final submissions that Belgium wrongly conferred upon
itself universal jurisdiction in absentia. According to Belgium, the Congo
now confines itself to arguing that the arrest warrant of 11 April 2000 was
unlawful because it violated the immunity from jurisdiction of its Minister
for Foreign Affairs, and that the Court consequently cannot rule on the
issue of universal jurisdiction in any decision it renders on the merits of
the case.
42. The Congo, for its part, states that its interest in bringing these
proceedings is to obtain a finding by the Court that it has been the victim
of an internationally wrongful act, the question whether this case involves
the "exercise of an excessive universal jurisdiction" being in this
connection only a secondary consideration. The Congo asserts that any
consideration by the Court of the issues of international law raised by
universal jurisdiction would be undertaken not at the request of the Congo
but, rather, by virtue of the defence strategy adopted by Belgium, which
appears to maintain that the exercise of such jurisdiction can "represent a
valid counterweight to the observance of immunities".
*
43. The Court would recall the well-established principle that "it is the
duty of the Court not only to reply to the questions as stated in the final
submissions of the parties, but also to abstain from deciding points not
included in those submissions" (Asylum, Judgment, I.C.J. Reports 1950, [p
19] p. 402). While the Court is thus not entitled to decide upon questions
not asked of it, the non ultra petita rule nonetheless cannot preclude the
Court from addressing certain legal points in its reasoning. Thus in the
present case the Court may not rule, in the operative part of its Judgment,
on the question whether the disputed arrest warrant, issued by the Belgian
investigating judge in exercise of his purported universal jurisdiction,
complied in that regard with the rules and principles of international law
governing the jurisdiction of national courts. This does not mean, however,
that the Court may not deal with certain aspects of that question in the
reasoning of its Judgment, should it deem this necessary or desirable.
**
44. The Court concludes from the foregoing that it has jurisdiction to
entertain the Congo's Application, that the Application is not without
object and that accordingly the case is not moot, and that the Application
is admissible. Thus, the Court now turns to the merits of the case.
***
45. As indicated above (see paragraphs 41 to 43 above), in its Application
instituting these proceedings, the Congo originally challenged the legality
of the arrest warrant of 11 April 2000 on two separate grounds: on the one
hand, Belgium's claim to exercise a universal jurisdiction and, on the
other, the alleged violation of the immunities of the Minister for Foreign
Affairs of the Congo then in office. However, in its submissions in its
Memorial, and in its final submissions at the close of the oral proceedings,
the Congo invokes only the latter ground.
46. As a matter of logic, the second ground should be addressed only once
there has been a determination in respect of the first, since it is only
where a State has jurisdiction under international law in relation to a
particular matter that there can be any question of immunities in regard to
the exercise of that jurisdiction. However, in the present case, and in view
of the final form of the Congo's submissions, the Court will address first
the question whether, assuming that it had jurisdiction under international
law to issue and circulate the arrest warrant of 11 April 2000, Belgium in
so doing violated the immunities of the then Minister for Foreign Affairs of
the Congo.
**
47. The Congo maintains that, during his or her term of office, a Minister
for Foreign Affairs of a sovereign State is entitled to inviolability [p 20]
and to immunity from criminal process being "absolute or complete", that is
to say, they are subject to no exception. Accordingly, the Congo contends
that no criminal prosecution may be brought against a Minister for Foreign
Affairs in a foreign court as long as he or she remains in office, and that
any finding of criminal responsibility by a domestic court in a foreign
country, or any act of investigation undertaken with a view to bringing him
or her to court, would contravene the principle of immunity from
jurisdiction. According to the Congo, the basis of such criminal immunity is
purely functional, and immunity is accorded under customary international
law simply in order to enable the foreign State representative enjoying such
immunity to perform his or her functions freely and without let or
hindrance. The Congo adds that the immunity thus accorded to Ministers for
Foreign Affairs when in office covers all their acts, including any
committed before they took office, and that it is irrelevant whether the
acts done whilst in office may be characterized or not as "official acts".
48. The Congo states further that it does not deny the existence of a
principle of international criminal law, deriving from the decisions of the
Nuremberg and Tokyo international military tribunals, that the accused's
official capacity at the time of the acts cannot, before any court, whether
domestic or international, constitute a "ground of exemption from his
criminal responsibility or a ground for mitigation of sentence". The Congo
then stresses that the fact that an immunity might bar prosecution before a
specific court or over a specific period does not mean that the same
prosecution cannot be brought, if appropriate, before another court which is
not bound by that immunity, or at another time when the immunity need no
longer be taken into account. It concludes that immunity does not mean
impunity.
49. Belgium maintains for its part that, while Ministers for Foreign Affairs
in office generally enjoy an immunity from jurisdiction before the courts of
a foreign State, such immunity applies only to acts carried out in the
course of their official functions, and cannot protect such persons in
respect of private acts or when they are acting otherwise than in the
performance of their official functions.
50. Belgium further states that, in the circumstances of the present case,
Mr. Yerodia enjoyed no immunity at the time when he is alleged to have
committed the acts of which he is accused, and that there is no evidence
that he was then acting in any official capacity. It observes that the
arrest warrant was issued against Mr. Yerodia personally.
*
51. The Court would observe at the outset that in international law it is
firmly established that, as also diplomatic and consular agents, certain [p
21] holders of high-ranking office in a State, such as the Head of State,
Head of Government and Minister for Foreign Affairs, enjoy immunities from
jurisdiction in other States, both civil and criminal. For the purposes of
the present case, it is only the immunity from criminal jurisdiction and the
inviolability of an incumbent Minister for Foreign Affairs that fall for the
Court to consider.
52. A certain number of treaty instruments were cited by the Parties in this
regard. These included, first, the Vienna Convention on Diplomatic Relations
of 18 April 1961, which states in its preamble that the purpose of
diplomatic privileges and immunities is "to ensure the efficient performance
of the functions of diplomatic missions as representing States". It provides
in Article 32 that only the sending State may waive such immunity. On these
points, the Vienna Convention on Diplomatic Relations, to which both the
Congo and Belgium are parties, reflects customary international law. The
same applies to the corresponding provisions of the Vienna Convention on
Consular Relations of 24 April 1963, to which the Congo and Belgium are also
parties.
The Congo and Belgium further cite the New York Convention on Special
Missions of 8 December 1969, to which they are not, however, parties. They
recall that under Article 21, paragraph 2, of that Convention:
"The Head of the Government, the Minister for Foreign Affairs and other
persons of high rank, when they take part in a special mission of the
sending State, shall enjoy in the receiving State or in a third State, in
addition to what is granted by the present Convention, the facilities,
privileges and immunities accorded by international law."
These conventions provide useful guidance on certain aspects of the question
of immunities. They do not, however, contain any provision specifically
defining the immunities enjoyed by Ministers for Foreign Affairs. It is
consequently on the basis of customary international law that the Court must
decide the questions relating to the immunities of such Ministers raised in
the present case.
53. In customary international law, the immunities accorded to Ministers for
Foreign Affairs are not granted for their personal benefit, but to ensure
the effective performance of their functions on behalf of their respective
States. In order to determine the extent of these immunities, the Court must
therefore first consider the nature of the functions exercised by a Minister
for Foreign Affairs. He or she is in charge of his or her Government's
diplomatic activities and generally acts as its representative in
international negotiations and intergovernmental meetings. Ambassadors and
other diplomatic agents carry out their duties under his or her authority.
His or her acts may bind the State represented, and there is a presumption
that a Minister for Foreign Affairs, simply by virtue of that office, has
full powers to act on behalf of the State (see, [p 22] e.g., Art. 7, para. 2
(a), of the 1969 Vienna Convention on the Law of Treaties). In the
performance of these functions, he or she is frequently required to travel
internationally, and thus must be in a position freely to do so whenever the
need should arise. He or she must also be in constant communication with the
Government, and with its diplomatic missions around the world, and be
capable at any time of communicating with representatives of other States.
The Court further observes that a Minister for Foreign Affairs, responsible
for the conduct of his or her State's relations with all other States,
occupies a position such that, like the Head of State or the Head of
Government, he or she is recognized under international law as
representative of the State solely by virtue of his or her office. He or she
does not have to present letters of credence: to the contrary, it is
generally the Minister who determines the authority to be conferred upon
diplomatic agents and countersigns their letters of credence. Finally, it is
to the Minister for Foreign Affairs that charges d'affaires are accredited.
54. The Court accordingly concludes that the functions of a Minister for
Foreign Affairs are such that, throughout the duration of his or her office,
he or she when abroad enjoys full immunity from criminal jurisdiction and
inviolability. That immunity and that inviolability protect the individual
concerned against any act of authority of another State which would hinder
him or her in the performance of his or her duties.
55. In this respect, no distinction can be drawn between acts performed by a
Minister for Foreign Affairs in an "official" capacity, and those claimed to
have been performed in a "private capacity", or, for that matter, between
acts performed before the person concerned assumed office as Minister for
Foreign Affairs and acts committed during the period of office. Thus, if a
Minister for Foreign Affairs is arrested in another State on a criminal
charge, he or she is clearly thereby prevented from exercising the functions
of his or her office. The consequences of such impediment to the exercise of
those official functions are equally serious, regardless of whether the
Minister for Foreign Affairs was, at the time of arrest, present in the
territory of the arresting State on an "official" visit or a "private"
visit, regardless of whether the arrest relates to acts allegedly performed
before the person became the Minister for Foreign Affairs or to acts
performed while in office, and regardless of whether the arrest relates to
alleged acts performed in an "official" capacity or a "private" capacity.
Furthermore, even the mere risk that, by travelling to or transiting another
State a Minister for Foreign Affairs might be exposing himself or herself to
legal proceedings could deter the Minister from travelling internationally
when required to do so for the purposes of the performance of his or her
official functions.
**
56. The Court will now address Belgium's argument that immunities accorded
to incumbent Ministers for Foreign Affairs can in no case protect them where
they are suspected of having committed war crimes or crimes against
humanity. In support of this position, Belgium refers in its
Counter-Memorial to various legal instruments creating international
criminal tribunals, to examples from national legislation, and to the
jurisprudence of national and international courts.
Belgium begins by pointing out that certain provisions of the instruments
creating international criminal tribunals state expressly that the official
capacity of a person shall not be a bar to the exercise by such tribunals of
their jurisdiction.
Belgium also places emphasis on certain decisions of national courts, and in
particular on the judgments rendered on 24 March 1999 by the House of Lords
in the United Kingdom and on 13 March 2001 by the Court of Cassation in
France in the Pinochet and Qaddafi cases respectively, in which it contends
that an exception to the immunity rule was accepted in the case of serious
crimes under international law. Thus, according to Belgium, the Pinochet
decision recognizes an exception to the immunity rule when Lord Millett
stated that "international law cannot be supposed to have established a
crime having the character of a jus cogens and at the same time to have
provided an immunity which is co-extensive with the obligation it seeks to
impose", or when Lord Phillips of Worth Matravers said that "no established
rule of international law requires state immunity rationae materiae to be
accorded in respect of prosecution for an international crime". As to the
French Court of Cassation, Belgium contends that, in holding that, "under
international law as it currently stands, the crime alleged [acts of
terrorism], irrespective of its gravity, does not come within the exceptions
to the principle of immunity from jurisdiction for incumbent foreign Heads
of State", the Court explicitly recognized the existence of such exceptions.
57. The Congo, for its part, states that, under international law as it
currently stands, there is no basis for asserting that there is any
exception to the principle of absolute immunity from criminal process of an
incumbent Minister for Foreign Affairs where he or she is accused of having
committed crimes under international law.
In support of this contention, the Congo refers to State practice, giving
particular consideration in this regard to the Pinochet and Qaddafi cases,
and concluding that such practice does not correspond to that which Belgium
claims but, on the contrary, confirms the absolute nature of the immunity
from criminal process of Heads of State and Ministers for Foreign Affairs.
Thus, in the Pinochet case, the Congo cites Lord Browne-Wilkinson's
statement that "this immunity enjoyed by a head of state in power and an
ambassador in post is a complete immunity attached to the person of the head
of state or ambassador and rendering him immune from all actions or
prosecutions . . . " . According to the Congo, the [p 24] French Court of
Cassation adopted the same position in its Qaddafi judgment, in affirming
that "international custom bars the prosecution of incumbent Heads of State,
in the absence of any contrary international provision binding on the
parties concerned, before the criminal courts of a foreign State".
As regards the instruments creating international criminal tribunals and the
latter's jurisprudence, these, in the Congo's view, concern only those
tribunals, and no inference can be drawn from them in regard to criminal
proceedings before national courts against persons enjoying immunity under
international law.
*
58. The Court has carefully examined State practice, including national
legislation and those few decisions of national higher courts, such as the
House of Lords or the French Court of Cassation. It has been unable to
deduce from this practice that there exists under customary international
law any form of exception to the rule according immunity from criminal
jurisdiction and inviolability to incumbent Ministers for Foreign Affairs,
where they are suspected of having committed war crimes or crimes against
humanity.
The Court has also examined the rules concerning the immunity or criminal
responsibility of persons having an official capacity contained in the legal
instruments creating international criminal tribunals, and which are
specifically applicable to the latter (see Charter of the International
Military Tribunal of Nuremberg, Art. 7; Charter of the International
Military Tribunal of Tokyo, Art. 6; Statute of the International Criminal
Tribunal for the former Yugoslavia, Art. 7, para. 2; Statute of the
International Criminal Tribunal for Rwanda, Art. 6, para. 2; Statute of the
International Criminal Court, Art. 27). It finds that these rules likewise
do not enable it to conclude that any such an exception exists in customary
international law in regard to national courts.
Finally, none of the decisions of the Nuremberg and Tokyo international
military tribunals, or of the International Criminal Tribunal for the former
Yugoslavia, cited by Belgium deal with the question of the immunities of
incumbent Ministers for Foreign Affairs before national courts where they
are accused of having committed war crimes or crimes against humanity. The
Court accordingly notes that those decisions are in no way at variance with
the findings it has reached above.
In view of the foregoing, the Court accordingly cannot accept Belgium's
argument in this regard.
59. It should further be noted that the rules governing the jurisdiction of
national courts must be carefully distinguished from those governing
jurisdictional immunities: jurisdiction does not imply absence of immunity,
while absence of immunity does not imply jurisdiction. Thus, [p 25]although
various international conventions on the prevention and punishment of
certain serious crimes impose on States obligations of prosecution or
extradition, thereby requiring them to extend their criminal jurisdiction,
such extension of jurisdiction in no way affects immunities under customary
international law, including those of Ministers for Foreign Affairs. These
remain opposable before the courts of a foreign State, even where those
courts exercise such a jurisdiction under these conventions.
60. The Court emphasizes, however, that the immunity from jurisdiction
enjoyed by incumbent Ministers for Foreign Affairs does not mean that they
enjoy impunity in respect of any crimes they might have committed,
irrespective of their gravity. Immunity from criminal jurisdiction and
individual criminal responsibility are quite separate concepts. While
jurisdictional immunity is procedural in nature, criminal responsibility is
a question of substantive law. Jurisdictional immunity may well bar
prosecution for a certain period or for certain offences; it cannot
exonerate the person to whom it applies from all criminal responsibility.
61. Accordingly, the immunities enjoyed under international law by an
incumbent or former Minister for Foreign Affairs do not represent a bar to
criminal prosecution in certain circumstances.
First, such persons enjoy no criminal immunity under international law in
their own countries, and may thus be tried by those countries' courts in
accordance with the relevant rules of domestic law.
Secondly, they will cease to enjoy immunity from foreign jurisdiction if the
State which they represent or have represented decides to waive that
immunity.
Thirdly, after a person ceases to hold the office of Minister for Foreign
Affairs, he or she will no longer enjoy all of the immunities accorded by
international law in other States. Provided that it has jurisdiction under
international law, a court of one State may try a former Minister for
Foreign Affairs of another State in respect of acts committed prior or
subsequent to his or her period of office, as well as in respect of acts
committed during that period of office in a private capacity.
Fourthly, an incumbent or former Minister for Foreign Affairs may be subject
to criminal proceedings before certain international criminal courts, where
they have jurisdiction. Examples include the International Criminal Tribunal
for the former Yugoslavia, and the International Criminal Tribunal for
Rwanda, established pursuant to Security Council resolutions under Chapter
VII of the United Nations Charter, and the future International Criminal
Court created by the 1998 Rome Convention. The latter's Statute expressly
provides, in Article 27, paragraph 2, that "immunities or special procedural
rules which may attach to the [p 26] official capacity of a person, whether
under national or international law, shall not bar the Court from exercising
its jurisdiction over such a person".
***
62. Given the conclusions it has reached above concerning the nature and
scope of the rules governing the immunity from criminal jurisdiction enjoyed
by incumbent Ministers for Foreign Affairs, the Court must now consider
whether in the present case the issue of the arrest warrant of 11 April 2000
and its international circulation violated those rules. The Court recalls in
this regard that the Congo requests it, in its first final submission, to
adjudge and declare that:
"By issuing and internationally circulating the arrest warrant of 11 April
2000 against Mr. Abdulaye Yerodia Ndombasi, Belgium committed a violation in
regard to the Democratic Republic of the Congo of the rule of customary
international law concerning the absolute inviolability and immunity from
criminal process of incumbent foreign ministers; in so doing, it violated
the principle of sovereign equality among States."
63. In support of this submission, the Congo maintains that the arrest
warrant of 11 April 2000 as such represents a "coercive legal act" which
violates the Congo's immunity and sovereign rights, inasmuch as it seeks to
"subject to an organ of domestic criminal jurisdiction a member of a foreign
government who is in principle beyond its reach" and is fully enforceable
without special formality in Belgium.
The Congo considers that the mere issuance of the warrant thus constituted a
coercive measure taken against the person of Mr. Yerodia, even if it was not
executed.
64. As regards the international circulation of the said arrest warrant,
this, in the Congo's view, not only involved further violations of the rules
referred to above, but also aggravated the moral injury which it suffered as
a result of the opprobrium "thus cast upon one of the most prominent members
of its Government". The Congo further argues that such circulation was a
fundamental infringement of its sovereign rights in that it significantly
restricted the full and free exercise, by its Minister for Foreign Affairs,
of the international negotiation and representation functions entrusted to
him by the Congo's former President. In the Congo's view, Belgium "[thus]
manifests an intention to have the individual concerned arrested at the
place where he is to be found, with a view to procuring his extradition".
The Congo emphasizes moreover that it is necessary to avoid any confusion
between the arguments concerning the legal effect of the arrest warrant
abroad and the question of any responsibility of the foreign authorities
giving effect to it. It points out in this regard that no State has acted on
the arrest warrant, and that accordingly
[p 27] "no further consideration need be given to the specific
responsibility which a State executing it might incur, or to the way in
which that responsibility should be related" to that of the Belgian State.
The Congo observes that, in such circumstances, "there [would be] a direct
causal relationship between the arrest warrant issued in Belgium and any act
of enforcement carried out elsewhere".
65. Belgium rejects the Congo's argument on the ground that "the character
of the arrest warrant of 11 April 2000 is such that it has neither infringed
the sovereignty of, nor created any obligation for, the [Congo]".
With regard to the legal effects under Belgian law of the arrest warrant of
11 April 2000, Belgium contends that the clear purpose of the warrant was to
procure that, if found in Belgium, Mr. Yerodia would be detained by the
relevant Belgian authorities with a view to his prosecution for war crimes
and crimes against humanity. According to Belgium, the Belgian investigating
judge did, however, draw an explicit distinction in the warrant between, on
the one hand, immunity from jurisdiction and, on the other hand, immunity
from enforcement as regards representatives of foreign States who visit
Belgium on the basis of an official invitation, making it clear that such
persons would be immune from enforcement of an arrest warrant in Belgium.
Belgium further contends that, in its effect, the disputed arrest warrant is
national in character, since it requires the arrest of Mr. Yerodia if he is
found in Belgium but it does not have this effect outside Belgium.
66. In respect of the legal effects of the arrest warrant outside Belgium,
Belgium maintains that the warrant does not create any obligation for the
authorities of any other State to arrest Mr. Yerodia in the absence of some
further step by Belgium completing or validating the arrest warrant (such as
a request for the provisional detention of Mr. Yerodia), or the issuing of
an arrest warrant by the appropriate authorities in the State concerned
following a request to do so, or the issuing of an Interpol Red Notice.
Accordingly, outside Belgium, while the purpose of the warrant was
admittedly "to establish a legal basis for the arrest of Mr. Yerodia. . .
and his subsequent extradition to Belgium", the warrant had no legal effect
unless it was validated or completed by some prior act "requiring the arrest
of Mr. Yerodia by the relevant authorities in a third State". Belgium
further argues that "if a State had executed the arrest warrant, it might
infringe Mr. [Yerodia's] criminal immunity", but that "the Party directly
responsible for that infringement would have been that State and not
Belgium".
***
67. The Court will first recall that the "international arrest warrant in
absentia", issued on 11 April 2000 by an investigating judge of the Brussels
Tribunal de premiere instance, is directed against Mr. Yerodia, [p 28]
stating that he is "currently Minister for Foreign Affairs of the Democratic
Republic of the Congo, having his business address at the Ministry of
Foreign Affairs in Kinshasa". The warrant states that Mr. Yerodia is charged
with being "the perpetrator or co-perpetrator" of:
" -- Crimes under international law constituting grave breaches causing harm
by act or omission to persons and property protected by the Conventions
signed at Geneva on 12 August 1949 and by Additional Protocols I and II to
those Conventions (Article 1, paragraph 3, of the Law of 16 June 1993, as
amended by the Law of 10 February 1999 concerning the punishment of serious
violations of international humanitarian law)
-- Crimes against humanity (Article 1, paragraph 2, of the Law of 16 June
1993, as amended by the Law of 10 February 1999 concerning the punishment of
serious violations of international humanitarian law)."
The warrant refers to "various speeches inciting racial hatred" and to
"particularly virulent remarks" allegedly made by Mr. Yerodia during "public
addresses reported by the media" on 4 August and 27 August 1998. It adds:
"These speeches allegedly had the effect of inciting the population to
attack Tutsi residents of Kinshasa: there were dragnet searches, manhunts
(the Tutsi enemy) and lynchings.
The speeches inciting racial hatred thus are said to have resulted in
several hundred deaths, the internment of Tutsis, summary executions,
arbitrary arrests and unfair trials."
68. The warrant further states that "the position of Minister for Foreign
Affairs currently held by the accused does not entail immunity from
jurisdiction and enforcement". The investigating judge does, however,
observe in the warrant that "the rule concerning the absence of immunity
under humanitarian law would appear . . . to require some qualification in
respect of immunity from enforcement" and explains as follows:
"Pursuant to the general principle of fairness in judicial proceedings,
immunity from enforcement must, in our view, be accorded to all State
representatives welcomed as such onto the territory of Belgium (on 'official
visits'). Welcoming such foreign dignitaries as official representatives of
sovereign States involves not only relations between individuals but also
relations between States. This implies that such welcome includes an
undertaking by the host State and its various components to refrain from
taking any coercive measures against its guest and the invitation cannot
become a pretext for ensnaring the individual concerned in what would then
have to be labelled a trap. In the contrary case, failure to respect this [p
29] undertaking could give rise to the host State's international
responsibility."
69. The arrest warrant concludes with the following order:
"We instruct and order all bailiffs and agents of public authority who may
be so required to execute this arrest warrant and to conduct the accused to
the detention centre in Forest;
We order the warden of the prison to receive the accused and to keep him
(her) in custody in the detention centre pursuant to this arrest warrant;
We require all those exercising public authority to whom this warrant shall
be shown to lend all assistance in executing it."
70. The Court notes that the issuance, as such, of the disputed arrest
warrant represents an act by the Belgian judicial authorities intended to
enable the arrest on Belgian territory of an incumbent Minister for Foreign
Affairs on charges of war crimes and crimes against humanity. The fact that
the warrant is enforceable is clearly apparent from the order given to "all
bailiffs and agents of public authority . . . to execute this arrest
warrant" (see paragraph 69 above) and from the assertion in the warrant that
"the position of Minister for Foreign Affairs currently held by the accused
does not entail immunity from jurisdiction and enforcement". The Court notes
that the warrant did admittedly make an exception for the case of an
official visit by Mr. Yerodia to Belgium, and that Mr. Yerodia never
suffered arrest in Belgium. The Court is bound, however, to find that, given
the nature and purpose of the warrant, its mere issue violated the immunity
which Mr. Yerodia enjoyed as the Congo's incumbent Minister for Foreign
Affairs. The Court accordingly concludes that the issue of the warrant
constituted a violation of an obligation of Belgium towards the Congo, in
that it failed to respect the immunity of that Minister and, more
particularly, infringed the immunity from criminal jurisdiction and the
inviolability then enjoyed by him under international law.
71. The Court also notes that Belgium admits that the purpose of the
international circulation of the disputed arrest warrant was "to establish a
legal basis for the arrest of Mr. Yerodia . . . abroad and his subsequent
extradition to Belgium". The Respondent maintains, however, that the
enforcement of the warrant in third States was "dependent on some further
preliminary steps having been taken" and that, given the "inchoate" quality
of the warrant as regards third States, there was no "infringe[ment of] the
sovereignty of the [Congo]". It further points out that no Interpol Red
Notice was requested until 12 September 2001, when Mr. Yerodia no longer
held ministerial office.
The Court cannot subscribe to this view. As in the case of the warrant's
issue, its international circulation from June 2000 by the Belgian
authorities, given its nature and purpose, effectively infringed Mr. Yero-[p
30]dia's immunity as the Congo's incumbent Minister for Foreign Affairs and
was furthermore liable to affect the Congo's conduct of its international
relations. Since Mr. Yerodia was called upon in that capacity to undertake
travel in the performance of his duties, the mere international circulation
of the warrant, even in the absence of "further steps" by Belgium, could
have resulted, in particular, in his arrest while abroad. The Court observes
in this respect that Belgium itself cites information to the effect that Mr.
Yerodia, "on applying for a visa to go to two countries, [apparently]
learned that he ran the risk of being arrested as a result of the arrest
warrant issued against him by Belgium", adding that "this, moreover, is what
the [Congo] . . . hints when it writes that the arrest warrant 'sometimes
forced Minister Yerodia to travel by roundabout routes'". Accordingly, the
Court concludes that the circulation of the warrant, whether or not it
significantly interfered with Mr. Yerodia's diplomatic activity, constituted
a violation of an obligation of Belgium towards the Congo, in that it failed
to respect the immunity of the incumbent Minister for Foreign Affairs of the
Congo and, more particularly, infringed the immunity from criminal
jurisdiction and the inviolability then enjoyed by him under international
law.
***
72. The Court will now address the issue of the remedies sought by the Congo
on account of Belgium's violation of the above-mentioned rules of
international law. In its second, third and fourth submissions, the Congo
requests the Court to adjudge and declare that:
"A formal finding by the Court of the unlawfulness of [the issue and
international circulation of the arrest warrant] constitutes an appropriate
form of satisfaction, providing reparation for the consequent moral injury
to the Democratic Republic of the Congo;
The violations of international law underlying the issue and international
circulation of the arrest warrant of 11 April 2000 preclude any State,
including Belgium, from executing it;
Belgium shall be required to recall and cancel the arrest warrant of 11
April 2000 and to inform the foreign authorities to whom the warrant was
circulated that Belgium renounces its request for their co-operation in
executing the unlawful warrant."
73. In support of those submissions, the Congo asserts that the termination
of the official duties of Mr. Yerodia in no way operated to efface the
wrongful act and the injury flowing from it, which continue to exist. It
argues that the warrant is unlawful ab initio, that "it is fundamentally
flawed" and that it cannot therefore have any legal effect today. It points
[p 31] out that the purpose of its request is reparation for the injury
caused, requiring the restoration of the situation which would in all
probability have existed if the said act had not been committed. It states
that, inasmuch as the wrongful act consisted in an internal legal
instrument, only the "withdrawal" and "cancellation" of the latter can
provide appropriate reparation.
The Congo further emphasizes that in no way is it asking the Court itself to
withdraw or cancel the warrant, nor to determine the means whereby Belgium
is to comply with its decision. It explains that the withdrawal and
cancellation of the warrant, by the means that Belgium deems most suitable,
"are not means of enforcement of the judgment of the Court but the requested
measure of legal reparation/restitution itself". The Congo maintains that
the Court is consequently only being requested to declare that Belgium, by
way of reparation for the injury to the rights of the Congo, be required to
withdraw and cancel this warrant by the means of its choice.
74. Belgium for its part maintains that a finding by the Court that the
immunity enjoyed by Mr. Yerodia as Minister for Foreign Affairs had been
violated would in no way entail an obligation to cancel the arrest warrant.
It points out that the arrest warrant is still operative and that "there is
no suggestion that it presently infringes the immunity of the Congo's
Minister for Foreign Affairs". Belgium considers that what the Congo is in
reality asking of the Court in its third and fourth final submissions is
that the Court should direct Belgium as to the method by which it should
give effect to a judgment of the Court finding that the warrant had
infringed the immunity of the Congo's Minister for Foreign Affairs.
*
75. The Court has already concluded (see paragraphs 70 and 71) that the
issue and circulation of the arrest warrant of 11 April 2000 by the Belgian
authorities failed to respect the immunity of the incumbent Minister for
Foreign Affairs of the Congo and, more particularly, infringed the immunity
from criminal jurisdiction and the inviolability then enjoyed by Mr. Yerodia
under international law. Those acts engaged Belgium's international
responsibility. The Court considers that the findings so reached by it
constitute a form of satisfaction which will make good the moral injury
complained of by the Congo.
76. However, as the Permanent Court of International Justice stated in its
Judgment of 13 September 1928 in the case concerning the Factory at Chorzow:
"the essential principle contained in the actual notion of an illegal act --
a principle which seems to be established by international practice and in
particular by the decisions of arbitral tribunals -- is that reparation
must, as far as possible, wipe out all the cones-[p32]quences of the illegal
act and reestablish the situation which would, in all probability, have
existed if that act had not been committed" (P.C.I.J., Series A, No. 17, p.
47).
In the present case, "the situation which would, in all probability, have
existed if [the illegal act] had not been committed" cannot be
re-established merely by a finding by the Court that the arrest warrant was
unlawful under international law. The warrant is still extant, and remains
unlawful, notwithstanding the fact that Mr. Yerodia has ceased to be
Minister for Foreign Affairs. The Court accordingly considers that Belgium
must, by means of its own choosing, cancel the warrant in question and so
inform the authorities to whom it was circulated.
77. The Court sees no need for any further remedy: in particular, the Court
cannot, in a judgment ruling on a dispute between the Congo and Belgium,
indicate what that judgment's implications might be for third States, and
the Court cannot therefore accept the Congo's submissions on this point.
***
78. For these reasons,
THE COURT,
(1)(A) By fifteen votes to one,
Rejects the objections of the Kingdom of Belgium relating to jurisdiction,
mootness and admissibility;
IN FAVOUR: President Guillaume; Vice-President Shi; Judges Ranjeva,
Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren,
Kooijmans, Rezek, Al-Khasawneh, Buergenthal; Judges ad hoc Bula-Bula, Van
den Wyngaert;
AGAINST: Judge Oda;
(B) By fifteen votes to one,
Finds that it has jurisdiction to entertain the Application filed by the
Democratic Republic of the Congo on 17 October 2000;
IN FAVOUR: President Guillaume; Vice-President Shi; Judges Ranjeva,
Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren,
Kooijmans, Rezek, Al-Khasawneh, Buergenthal; Judges ad hoc Bula-Bula, Van
den Wyngaert;
AGAINST: Judge Oda;
(C) By fifteen votes to one,
Finds that the Application of the Democratic Republic of the Congo is not
without object and that accordingly the case is not moot;
IN FAVOUR: President Guillaume; Vice-President Shi; Judges Ranjeva,
Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, [p
33] Kooijmans, Rezek, Al-Khasawneh, Buergenthal; Judges ad hoc Bula-Bula,
Van den Wyngaert;
AGAINST: Judge Oda;
(D) By fifteen votes to one,
Finds that the Application of the Democratic Republic of the Congo is
admissible;
IN FAVOUR: President Guillaume; Vice-President Shi; Judges Ranjeva,
Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren,
Kooijmans, Rezek, Al-Khasawneh, Buergenthal; Judges ad hoc Bula-Bula, Van
den Wyngaert;
AGAINST: Judge Oda;
(2) By thirteen votes to three,
Finds that the issue against Mr. Abdulaye Yerodia Ndombasi of the arrest
warrant of 11 April 2000, and its international circulation, constituted
violations of a legal obligation of the Kingdom of Belgium towards the
Democratic Republic of the Congo, in that they failed to respect the
immunity from criminal jurisdiction and the inviolability which the
incumbent Minister for Foreign Affairs of the Democratic Republic of the
Congo enjoyed under international law;
IN FAVOUR: President Guillaume; Vice-President Shi; Judges Ranjeva,
Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren,
Kooijmans, Rezek, Buergenthal; Judge ad hoc Bula-Bula;
AGAINST: Judges Oda, Al-Khasawneh; Judge ad hoc Van den Wyngaert;
(3) By ten votes to six,
Finds that the Kingdom of Belgium must, by means of its own choosing, cancel
the arrest warrant of 11 April 2000 and so inform the authorities to whom
that warrant was circulated;
IN FAVOUR: President Guillaume; Vice-President Shi; Judges Ranjeva,
Herczegh, Fleischhauer, Koroma, Vereshchetin, Parra-Aranguren, Rezek; Judge
ad hoc Bula-Bula;
AGAINST: Judges Oda, Higgins, Kooijmans, Al-Khasawneh, Buergenthal; Judge ad
hoc Van den Wyngaert.
Done in French and in English, the French text being authoritative, at the
Peace Palace, The Hague, this fourteenth day of February, two thousand and
two, in three copies, one of which will be placed in the archives of the
Court and the others transmitted to the Government of the Demo-[p 34]cratic
Republic of the Congo and the Government of the Kingdom of Belgium,
respectively.
(Signed) Gilbert GUILLAUME,
President.
(Signed) Philippe COUVREUR,
Registrar.
President GUILLAUME appends a separate opinion to the Judgment of the Court;
Judge ODA appends a dissenting opinion to the Judgment of the Court; Judge
RANJEVA appends a declaration to the Judgment of the Court; Judge KOROMA
appends a separate opinion to the Judgment of the Court; Judges HIGGINS,
KOOIJMANS and BUERGENTHAL append a joint separate opinion to the Judgment of
the Court; Judge REZEK appends a separate opinion to the Judgment of the
Court; Judge AL-KHASAWNEH appends a dissenting opinion to the Judgment of
the Court; Judge ad hoc BULA-BULA appends a separate opinion to the Judgment
of the Court; Judge ad hoc VAN DEN WYNGAERT appends a dissenting opinion to
the Judgment of the Court.
(Initialled) G.G.
(Initialled) Ph.C.
[p 35]
SEPARATE OPINION OF PRESIDENT GUILLAUME
[English Original Text]
1. I fully subscribe to the Judgment rendered by the Court. I believe it
useful however to set out my position on one question which the Judgment
has not addressed: whether the Belgian judge had jurisdiction to issue an
international arrest warrant against Mr. Yerodia Ndombasi on 11 April 2000.
This question was raised in the Democratic Republic of the Congo's
Application instituting proceedings. The Congo maintained that the arrest
warrant violated not only Mr. Yerodia's immunity as Minister for Foreign
Affairs but also "the principle that a Stat; may not exercise its authority
on the territory of another State". It accordingly concluded that the
universal jurisdiction which the Belgian State had conferred upon itself
pursuant to Article 7 of the Law of 16 June 1993, as amended on 10 February
1999, was in breach of international law and that the same was therefore
true of the disputed arrest warrant.
The Congo did not elaborate on this line of argument during the oral
proceedings and did not include it in its final submissions. Thus, the Court
could not rule on this point in the operative part of its Judgment. It
could, however, have addressed certain aspects of the question of universal
jurisdiction in the reasoning for its decision (see Judgment, para. 43).
That would have been a logical approach; a court's jurisdiction is a
question which it must decide before considering the immunity of those
before it. In other words, there can only be immunity from jurisdiction
where there is jurisdiction. Moreover, this is an important and
controversial issue, clarification of which would have been in the interest
of all States, including Belgium in particular. I believe it worthwhile to
provide such clarification here.
2. The Belgian Law of 16 June 1993, as amended by the Law of 10 February
1999, aims at punishing serious violations of international humanitarian
law. It covers certain violations of the Geneva Conventions of 12 August
1949 and of Protocols I and II of 8 June 1977 additional to those
Conventions. It also extends to crimes against humanity, which it defines in
the terms used in the Rome Convention of 17 July 1998. Article 7 of the Law
adds that "[t]he Belgian courts shall have jurisdiction in respect of the
offences provided for in the present Law, wheresoever they may have been
committed".[p 36]
3. The disputed arrest warrant accuses Mr. Yerodia of grave breaches of the
Geneva Conventions and of crimes against humanity. It states that under
Article 7 of the Law of 16 June 1993, as amended, perpetrators of those
offences "fall under the jurisdiction of the Belgian courts, regard-less of
their nationality or that of the victims". It adds that "the Belgian courts
have jurisdiction even if the accused (Belgian or foreign) is not found in
Belgium". It states that "[i]n the matter of humanitarian law, the
lawmaker's intention was thus to derogate from the principle of the
ter-ritorial character of criminal law, in keeping with the provisions of
the four Geneva Conventions and of Protocol I". It notes that
"the Convention of 10 December 1984 against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment [is] to be viewed in the same way,
recognizing the legilimacy of extra-territorial jurisdiction in the area
and enshrining the principle of aut dedere aut judicare".
It concludes on these bases that the Belgian courts have jurisdiction.
4. In order to assess the validity of this reasoning, the fundamental
principles of international law governing States' exercise of their criminal
jurisdiction should first be reviewed.
The primary aim of the criminal law is to enable punishment in each country
of offences committed in the national territory. That territory is where
evidence of the offence can most often be gathered. That is where the
offence generally produces its effects. Finally, that is where the
punishment imposed can most naturally serve as an example. Thus, the
Permanent Court of International Justice observed as far back as 1927 that
"in all systems of law the principle of the territorial character of
criminal law is fundamental"FN1.
---------------------------------------------------------------------------------------------------------------------
FN1"Lotus",
Judgment No. 9, 1927. P.C.I. J.. Series A. No. V), p. 20.
---------------------------------------------------------------------------------------------------------------------
The question has, however, always remained open whether States other than
the territorial State have concurrent jurisdiction to prosecute offenders. A
wide debate on this subject began as early as the foundation in Europe of
the major modern States. Some writers, like Covarruvias and Grotius, pointed
out that the presence on the territory of a State of a foreign criminal
peacefully enjoying the fruits of his crimes was intolerable. They
therefore maintained that it should be possible to prosecute perpetrators of
certain particularly serious crimes not only in the State on whose territory
the crime was committed but also in the country where they sought refuge. In
their view, that country was under an obligation to arrest, followed by
extradition or prosecution, in accordance with the maxim aut dedere aut
judicareFN2.
---------------------------------------------------------------------------------------------------------------------
FN2
Covarruvias, Praeticarum quaestionum, Chap. II, No. 7; Grotius, De jure
belli uc pads. Book II, Chap. XXI. para. 4; see also Book 1, Chap. V.
---------------------------------------------------------------------------------------------------------------------
Beginning in the eighteenth century however, this school of thought [p 37]
favouring universal punishment was challenged by another body of opinion,
one opposed to such punishment and exemplified notably by Montesquieu,
Voltaire and Jean-Jacques RousseauFN3. Their views found expression in terms
of criminal law in the works of Beccaria, who stated in 1764 that "judges
are not the avengers of humankind in general ... A crime is punishable only
in the country where it was committed."FN4
---------------------------------------------------------------------------------------------------------------------
FN3 Montesquieu, L'esprit des lois. Book 26, Chaps. 16 and 21: Voltaire.
Dictionnaire philosophique, heading "Crimes et délits de temps et de liou" :
Rousseau, Du contrat social. Book II, Chap. 12, and Book III, Chap. 18.
FN4Beccaria, Traité des délits et des peines, para. 21.
--------------------------------------------------------------------------------------------------------------------
Enlightenment philosophy inspired the lawmakers of the Revolution and
nineteenth-century law. Some went so far as to push the underlying logic to
its conclusion, and in 1831 Martens could assert that "the lawmaker's power
[extends] over all persons and property present in the State" and that "the
law does not extend over other States and their subjects"FN5. A century
later, Max Huber echoed that assertion when he stated in 1928, in the Award
in the Island of Palmas case, that a State has "exclusive competence in
regard to its own territory"FN6.
---------------------------------------------------------------------------------------------------------------------
FN5
G. F. de Martens. Précis du droit des gens modernes de l Europe fondé sur
les traités et l'usage, 1831. Vol. I, paras. 85 and 86 (see also para. 100)
FN6United Nations. Reports of International Arbitral Awards ( RIAA). Vol.
II, Award of 4 April 1928, p. 838.
---------------------------------------------------------------------------------------------------------------------
In practice, the principle of territorial sovereignty did not permit of any
exception in respect of coercive action, but that was not the case in regard
to legislative and judicial jurisdiction. In particular, classic
international law does not exclude a State's power in some cases to
exercise its judicial jurisdiction over offences committed abroad. But as
the Permanent Court stated, once again in the "Lotus" case, the exercise of
that jurisdiction is not without its limitsFN7. Under the law as classically
formulated, a State normally has jurisdiction over an offence committed
abroad only if the offender, or at the very least the victim, has the
nationality of that State or if the crime threatens its internal or external
security. Ordinarily, States are without jurisdiction over crimes committed
abroad as between foreigners.
---------------------------------------------------------------------------------------------------------------------
FN7"Lotus".
Judgment No. 9. 1927, P.C.I.J., Series A. No. '0. p. 19.
---------------------------------------------------------------------------------------------------------------------
5. Traditionally, customary international law did, however, recognize one
case of universal jurisdiction, that of piracy. In more recent times,
Article 19 of the Geneva Convention on the High Seas of 29 April 1958 and
Article 105 of the Montego Bay Convention of 10 December 1982 have provided:
"On the high seas, or in any other place outside the jurisdiction of any
State, every State may seize a pirate ship or aircraft . . . and arrest the
persons and seize the property on board. The courts of the State which
carried out the seizure may decide upon the penalties to be imposed." [p 38]
Thus, under these conventions, universal jurisdiction is accepted in cases
of piracy because piracy is carried out on the high seas, outside all State
territory. However, even on the high seas, classic international law is
highly restrictive, for it recognizes universal jurisdiction only in cases
of piracy and not of other comparable crimes which might also be committed
outside the jurisdiction of coastal States, such as trafficking in slavesFN8
or in narcotic drugs or psychotropic substancesFN9.
---------------------------------------------------------------------------------------------------------------------
FN8See the Geneva Slavery Convention of 25 September 1926 and the United
Nations Supplementary Convention of 7 September 1956 (French texts in de
Martens, Nouveau recueil général des traités, 3rd Series, Vol. XIX, p. 303,
and Colliard and Manin, Droit international et histoire diplomatique, Vol.
1, p. 220).
FN9Article 17 of the United Nations Convention against Illicit Traffic in
Narcotic Drugs and Psychotropic Substances, signed at Vienna on 20 December
1988, deals with illicit traffic on the seas. It reserves the jurisdiction
of the flag State (French text in Revue générale de droit international
public, 1989/3, p. 720).
---------------------------------------------------------------------------------------------------------------------
6. The drawbacks of this approach became clear at the beginning of the
twentieth century in respect of currency counterfeiting, and the Convention
of 20 April 1929, prepared within the League of Nations, marked a certain
development in this regard. That Convention enabled States to extend their
criminal legislation to counterfeiting crimes involving foreign currency. It
added that "[f]oreigners who have committed abroad" any offence referred to
in the Convention "and who are in the territory of a country whose internal
legislation recognises as a general rule the principle of the prosecution of
offences committed abroad, should be punishable in the same way as if the
offence had been committed in the territory of that country". But it made
that obligation subject to various conditionsFN10.
---------------------------------------------------------------------------------------------------------------------
FN10
League of Nations, Treaty Series (LNTS), Vol. 112, p. 371.
---------------------------------------------------------------------------------------------------------------------
A similar approach was taken by the Single Convention on Narcotic Drugs of
30 March 1961 FN11 and by the United Nations Convention on Psychotropic
Substances of 21 February 1971FN12, both of which make certain provisions
subject to "the constitutional limitations of a Party, its legal system and
domestic law". There is no provision governing the jurisdiction of national
courts in any of these conventions, or for that matter in the Geneva
Conventions of 1949.
---------------------------------------------------------------------------------------------------------------------
FN11
United Nations, Treaty Series CUNTS), Vol. 520, p. 151.
FN12 UNTS, Vol. 1019, p. 175. UNTS, Vol. 860, p. 105.
---------------------------------------------------------------------------------------------------------------------
7. A further step was taken in this direction beginning in 1970 in
connection with the fight against international terrorism. To that end,
States established a novel mechanism: compulsory, albeit subsidiary,
universal jurisdiction.
This fundamental innovation was effected by the Hague Convention for the
Suppression of Unlawful Seizure of Aircraft of 16 December 1970FN13. The
Convention places an obligation on the State in whose territory the
perpetrator of the crime takes refuge to extradite or [p 39] prosecute him.
But this would have been insufficient if the Convention had not at the same
time placed the States parties under an obligation to establish their
jurisdiction for that purpose. Thus, Article 4, paragraph 2, of the
Convention provides:
"Each Contracting State shall . . . take such measures as may be necessary
to establish its jurisdiction over the offence in the case where the alleged
offender is present in its territory and it does not extradite him pursuant
to [the Convention].'"
This provision marked a turning point, of which the Hague Conference was
moreover consciousFN14. From then on, the obligation to prosecute was no
longer conditional on the existence of jurisdiction, but rather
jurisdiction itself had to be established in order to make prosecution
possible.
---------------------------------------------------------------------------------------------------------------------
FN14
The Diplomatic Conference at The Hague supplemented the ICAO Legal Committee
draft on this point by providing for a new jurisdiction. That solution was
adopted on Spain's proposal by a vote of 34 to 17, with 12 abstentions (see
Annuaire français de droit international, 1970, p. 49).
---------------------------------------------------------------------------------------------------------------------
8. The system as thus adopted was repeated with some minor variations in a
large number of conventions: the Montreal Convention for the Suppression of
Unlawful Acts against the Safety of Civil Aviation of 23 September 1971; the
New York Convention on the Prevention and Punishment of Crimes against
Internationally Protected Persons, including Diplomatic Agents, of 14
December 1973; the New York Convention against the Taking of Hostages of 17
December 1979; the Vienna Convention on the Physical Protection of Nuclear
Materials of 3 March 1980; the New York Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984; the
Montreal Protocol of 24 February 1988 concerning acts of violence at
airports; the Rome Convention for the Suppression of Unlawful Acts against
the Safety of Maritime Navigation of 10 March 1988; the Protocol of the same
date concerning the safety of platforms located on the continental shelf ;
the Vienna Convention against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances of 20 December 1988; the New York Conven-tion for
the Suppression of Terrorist Bombings of 15 December 1997; and finally the
New York Convention for the Suppression of the Financing of Terrorism of 9
December 1999.
9. Thus, a system corresponding to the doctrines espoused long ago by
Grotius was set up by treaty. Whenever the perpetrator of any of the
offences covered by these conventions is found in ;he territory of a State,
that State is under an obligation to arrest him, and then extradite or
prosecute. It must have first conferred jurisdiction on its courts to try
him if he is not extradited. Thus, universal punishment of the offences in
question is assured, as the perpetrators are deniec refuge in all States.
By contrast, none of these texts has contemplated establishing jurisdic-[p
40]tion over offences committed abroad by foreigners against foreigners when
the perpetrator is not present in the territory of the State in question.
Universal jurisdiction in absentia is unknown to international conventional
law.
10. Thus, in the absence of conventional provisions, Belgium, both in its
written Memorial and in oral argument, relies essentially on this point on
international customary law.
11. In this connection, Belgium cites the development of international
criminal courts. But this development was precisely in order to provide a
remedy for the deficiencies of national courts, and the rules governing the
jurisdiction of international courts as laid down by treaty or by the
Security Council of course have no effect upon the jurisdiction of national
courts.
12. Hence, Belgium essentially seeks to justify its position by relying on
the practice of States and their opinio juris. However, the national
legislation and jurisprudence cited in the case fie do not support the
Belgian argument, and I will give some topical examples of this.
In France, Article 689-1 of the Code of Criminal Procedure provides:
"Pursuant to the international conventions referred to in the following
articlesFN15, any person, if present in France, may be prosecuted and tried
by the French courts if that person has committed outside the territory of
the Republic one of the offences specified in those articles."
------------------------------------------------------------------------------------------------------------
FN15
Namely the international conventions mentioned in paragraphs 7 and 8 of the
present opinion to which France is party.
------------------------------------------------------------------------------------------------------------
Two Laws, of 2 January 1995 and 22 May 1996, concerning certain crimes
committed in the former Yugoslavia and in Rwanda extended the jurisdiction
of the French courts to such crimes where, again, the presumed author of
the offence is found in French territoryFN16. Moreover, the French Court of
Cassation has interpreted Article 689-1 restrictively, holding that, "in the
absence of any direct effect o" the four Geneva Conventions in regard to
search and prosecution of the perpetrators of grave breaches, Article 689 of
the Code of Criminal Procedure cannot be applied" in relation to the
perpetrators of grave breaches of those Conventions found on French
territoryFN17.
---------------------------------------------------------------------------------------------------------------------
FN16
For the application of this latter Law, see Court of Cassation, Criminal
Chamber, 6 January 1998, Munyeshyaka.
FN17 Court of Cassation, Criminal Chamber, 26 March 1996. No. 132, Javor.
---------------------------------------------------------------------------------------------------------------------
In Germany, the Criminal Code (Strafgesetzbuch) contains in Section 6,
paragraphs 1 and 9, and in Section 7, paragraph 1, provisions permitting the
prosecution in certain circumstances of crimes committed abroad. And indeed
in a case of genocide (Tadic) the German Federal Supreme Court
(Bundesgerichtshof) recalled that: "German criminal law is applicable
pursuant to section 6, paragraph 1, to an act of genocide committed abroad
independently of the law of the territorial State (principle of so-called [p
41] universal jurisdiction)". The Court added, however, that "a condition
precedent is that international law does not prohibit such action"; it is
only, moreover, where there exists in the case in question a "link"
legitimizing prosecution in Germany "that it is possible to apply German
criminal law to the conduct of a foreigner abroad. In the absence of such a
link with the forum State, prosecution would violate the principle of
non-interference, under which every State is required to respect the
sovereignty of other States."FN18 In that case, the Federal Court held that
there was such a link by reason of the fact that the accused had been
voluntarily residing for some months in Germany, that he had established his
centre of interests there and that he had been arrested on German territory.
---------------------------------------------------------------------------------------------------------------------
FN18
Bundesgerichtshof, 13 February 1994, 1 BGs 100.94, in Neue Zeitschrift für
Strafrecht, 1994, pp. 232-233. The original German text reads as follows:
"4 a) Nach § 6 Nr. 1 StGB gilt deutsches Strafrecht für ein im Ausland
begangenes Verbrechen des Völkermordes (§ 220a StGB), und zwar unabhängig
vom Recht des Tatorts (sog. Weltrechtsprinzip). Vorraussetzung ist
allerdings — über den Wortlaut der Vorschrift hinaus —, daß ein
völkerrechtliches Verbot nicht entgegensteht und außerdem ein
legitimierender Anknüpfungspunkt im Eiazelfall einen unmittelbaren Bezug der
Strafverfolgung zum Inland herstellt; nur dar n ist die Anwendung
innerstaatlicher (deutscher) Strafgewalt auf die Auslandstat eines
Ausländers gerechtfertigt. Fehlt ein derartiger Inlandsbezug, so verstößt
die Strafverfolgung gegen das sog. Nichteinmischungsprinzip, das die Achtung
der Souveänität fremder Staaten gebietet (BGHSt 27, 30 und 34. 334; Oehler
JR 1977, 424; Holzhausen NStZ 1992. 268)."
Similarly, Düsseldorf Oberlandesgericht, 26 September 1997.
Bundesgerichtshof, 30 April 1999, Jorgic; Düsseldorf Oberlandesgericht, 29
November 1995. Bundesgerichtshof, 21 February 2001, Sokolvic.
---------------------------------------------------------------------------------------------------------------------
The Netherlands Supreme Court (Hoge Raad) was faced with comparable
problems in the Bouterse case. It noted that the Dutch legislation adopted
to implement the Hague and Montreal Canventions of 1970 and 1971 only gave
the Dutch courts jurisdiction in respect of offences committed abroad if
"the accused was found in the Netherlands". It concluded from this that the
same applied in the case of the 1984 Convention against Torture, even though
no such specific provision had been included in the legislation implementing
that Convention. It accordingly held that prosecution in the Netherlands for
acts of torture committed abroad was possible only
"if one of the conditions of connection provided for in that Convention for
the establishment of jurisdiction was satisfied, for example if the accused
or the victim wis Dutch or fell to be regarded as such, or if the accused
was on Dutch territory at the time of his arrestFN19"
--------------------------------------------------------------------------------------------------
FN19 Hoge Raad, 18 September 2001, Bouterse. para. 8.5. The original Dutch
text reads as follows:
"indien daartoe een in dat Verdrag genoemd aankopingspunt voor de vestiging
van rechtsmacht aanwezig is, bijvoorbeeld omdat de vermc edelijke dader dan
wel het slachtoffer Nederlander is of daarmee gelijkgesteld moet worden, of
omdat de ver-moedelijke dader zieh ten tijde van zijn aanhouding in
Nederland bevindt".
------------------------------------------------------------------------------------------------------------
[p 42]
Numbers of other examples could be given, and the only country whose
legislation and jurisprudence appear clearly to go the other way is the
State of Israel, which in this field obviously constitutes a very special
case.
To conclude, I cannot do better than quote what Lord Slynn of Hadley had to
say on this point in the first Pinochet case:
"It does not seem . . . that it has been shown that there is any State
practice or general consensus let alone a widely supported convention that
all crimes against international law should be justiciable in National
Courts on the basis of the universality of jurisdiction . . . That
international law crimes should be tried before international tribunals or
in the perpetrator's own state is one thing; that they should be impleaded
without regard to a long established customary international law rule in the
Courts of other spates is another . . . The fact even that an act is
recognised as a crime under international law does not mean that the Courts
of all States have jurisdiction to try it. . . There is no universality of
jurisdiction far crimes against international law . . ."FN20
------------------------------------------------------------------------------------------------------------
FN20
House of Lords, 25 November 1998, R. v. Bartie; ex parte Pinochet.
------------------------------------------------------------------------------------------------------------
In other words, international law knows only one true case of universal
jurisdiction: piracy. Further, a number of international conventions
provide for the establishment of subsidiary universal jurisdiction for
purposes of the trial of certain offenders arrested on national territory
and not extradited to a foreign country. Universal jurisdiction in absentia
as applied in the present case is unknown to internacional law.
13. Having found that neither treaty law nor international customary law
provide a State with the possibility of conferring universal jurisdiction
on its courts where the author of the offence is not present on its
territory, Belgium contends lastly that, even in the absence of any treaty
or custom to this effect, it enjoyed total freedom of action. To this end it
cites from the Judgment of the Permanent Court of International Justice in
the "Lotus" case:
"Far from laying down a general prohibition to the effect that States may
not extend the application of their laws and the jurisdiction of their
courts to persons, property and acts outside their territory,
[international law] leaves them in this respect a wide measure of discretion
which is only limited in certain cases by prohibitive rules . . ."FN21
------------------------------------------------------------------------------------------------------------
FN21
FN21”Lotus". Judgment No. 9. 1927. PC.I.J., Series A, No. 10. p. 19.
------------------------------------------------------------------------------------------------------------
[p 43]
Hence, so Belgium claimed, in the absence of any prohibitive rule it was
entitled to confer upon itself a universal jurisdiction in absentia.
14. This argument is hardly persuasive. Indeed the Permanent Court itself,
having laid down the general principle cited by Belgium, then asked itself
"whether the foregoing considerations really apply as regards criminal
jurisdiction”FN22. It held that either this might be the case, or
alterna-tively, that: "the exclusively territorial character of law relating
to this domain constitutes a principle which, except as otherwise expressly
provided, would, ipso facto, prevent States from extending the criminal
jurisdiction of their courts beyond their frontiers"FN23. In the particular
case before it, the Permanent Court took the view that it was unnecessary to
decide the point. Given that the case involved the collision of a French
vessel with a Turkish vessel, the Court confined ii self to noting that the
effects of the offence in question had made themselves felt on Turkish
territory, and that consequently a criminal prosecution might '"be
justified from the point of view of this so-called territorial
principle”FN24.
---------------------------------------------------------------------------------------------------------------------
FN22"Lotus",
Judgment No. 9, 1927, P.C.I.J, Series A, No. 10, p. 20.
FN23 Ibid.
FN24 Ibid. p. 23.
---------------------------------------------------------------------------------------------------------------------
15. The absence of a decision by the Permanent Court on the point was
understandable in 1927, given the sparse treaty law at that time. The
situation is different today, it seems to me — totally different. The
adoption of the United Nations Charter proclaiming the sovereign equality
of States, and the appearance on the international scene of new States, born
of decolonization, have strengthened the territorial principle.
International criminal law has itself undergone considerable development
and constitutes today an impressive legal corpus. It recognizes in many
situations the possibility, or indeed the obligation, for a State other
than that on whose territory the offence was committed to confer
jurisdiction on its courts to prosecute the authors of certain crimes where
they are present on its territory. International criminal courts have been
created. But at no time has it been envisaged that jurisdiction should be
conferred upon the courts of every State in the world to prosecute such
crimes, whoever their authors and victims and irrespective of the place
where the offender is to be found. To do this would, moreover, risk creating
total judicial chaos. It would also be to encourage the arbitrary for the
benefit of the powerful, purportedly acting as agent for an ill-defined
"international community". Contrary to what is advocated by certain
publicists, such a development would represent not an advance in the law but
a step backward.
16. States primarily exercise their criminal jurisdiction on their own
territory. In classic international law, they normally have jurisdiction in
respect of an offence committed abroad only if the offender, or at least [p
44] the victim, is of their nationality, or if the crime threatens their
internal or external security. Additionally, they may exercise jurisdiction
in cases of piracy and in the situations of subsidiary universal
jurisdiction provided for by various conventions if the offender is present
on their territory. But apart from these cases, international law does not
accept universal jurisdiction; still less does it accept universal
jurisdiction in absentia.
17. Passing now to the specific case before us I would observe that Mr.
Yerodia Ndombasi is accused of two types of offence, namely serious war
crimes, punishable under the Geneva Conventions, and crimes against
humanity.
As regards the first count, I note that, under Article 49 of the First
Geneva Convention, Article 50 of the Second Convention, Article 129 of the
Third Convention and Article 146 of the Fourth Convention:
"Each High Contracting Party shall be under the obligation to search for
persons alleged to have committed, or to have ordered to be committed,
[certain] grave breaches [of the Convention], and shall bring such persons,
regardless of their nationality, before its own courts. It may also, if it
prefers, and in accordance with the provisions of its own legislation, hand
such persons over for trial to another High Contracting Party concerned ..."
This provision requires each contracting party to search out alleged
offenders and bring them before its courts (unless it prefers to hand them
over to another party). However, the Geneva Conventions do not contain any
provision on jurisdiction comparable, for example, to Article 4 of the Hague
Convention already cited. What is more, they do not create any obligation of
search, arrest o~ prosecution in cases where the offenders are not present
on the territory of the State concerned. They accordingly cannot in any
event found a universal jurisdiction in absentia. Thus Belgium could not
confer such jurisdiction on its courts on the basis of these Conventions,
and the proceedings instituted in this case against Mr. Yerodia Ndombasi on
account of war crimes were brought by a judge who was not competent to do so
in the eyes of international law.
The same applies as regards the proceedings for crimes against humanity. No
international convention, apart from the Rome Convention of 17 July 1998,
which is not in force, deals with tie prosecution of such crimes. Thus the
Belgian judge, no doubt aware of this problem, felt him-self entitled in his
warrant to cite the Convention against Torture of 10 December 1984. But it
is not permissible in criminal proceedings to reason by analogy, as the
Permanent Court of International Justice indeed pointed out in its Advisory
Opinion of 4 December 1935 concerning the Consistency of Certain Danzig
Legislative Decrees with the Con-[p 45]stitution of the Free CityFN25.
There too, proceedings were instituted by a judge not competent in the eyes
of international law.
---------------------------------------------------------------------------------------------------------------------
FN25
Consistency of Certain Danzig Legislative Decrees with he Constitution of
the Free City. Advisory Opinion. 1935. P.C.I.J., Series AIB. No. 65. pp. 41
et seq.
---------------------------------------------------------------------------------------------------------------------
If the Court had addressed these questions, it seems to me that it ought
therefore to have found that the Belgian judge was wrong in holding himself
competent to prosecute Mr. Yerodia Ndombasi by relying on a universal
jurisdiction incompatible with international law.
(Signed) Gilbert GUILLAUME.
[p 46]
DISSENTING OPINION OF JUDGE ODA
Introduction
1. I voted against all provisions of the operative part of the Judgment. My
objections are not directed individually at the various provisions since I
am unable to support any aspect of the position the Court has taken in
dealing with the presentation of this case by the Congo.
It is my firm belief that the Court should have declared ex officio that it
lacked jurisdiction to entertain the Congo's Application of 17 October 2000
for the reason that there was, at that date, no legal dispute between the
Congo and Belgium falling within the purview of Article 36, paragraph 2, of
the Statute, a belief already expressed in my declaration appended to the
Court's Order of 8 December 2000 concerning the request for the indication
of provisional measures. I reiterate my view that the Court should have
dismissed the Application submitted by the Congo on 17 October 2000 for lack
of jurisdiction.
My opinion was that the case should have been removed from the General List
at the provisional measures stage. In the Order of 8 December 2000,
however, I voted in favour of the holding that the case should not be
removed from the General List but did so reluctantly "only from a sense of
judicial solidarity" (Arrest Warrant of 11 April 2000 (Democratic Republic
of the Congo v. Belgium), Provisional Measures, Order of 8 December 2000,
I.C.J. Reports 2000, p. 205, para. 6, declaration of Judge Oda). I now
regret that vote.[p 47]
2. It strikes me as unfortunate that the Court, after finding that "it has
jurisdiction to entertain the Application" and that "the Application ... is
admissible" (Judgment, para. 78 (1) (B) and (D)), quickly comes to certain
conclusions concerning "the immunity from criminal jurisdiction and the
inviolability which the incumbent Minister for Foreign Affairs of [the
Congo] enjoyed under international law" in connection with "the issue
against [Mr. Yerodia] of the arrest warrant of 11 April 2000" and "its
international circulation" (Judgment, para. 78 (2)).
I. No Legal Dispute in Terms of Article 36, Paragraph 2, of the Statute
3. To begin with, the Congo's Application provides no basis on which to
infer that the Congo ever thought that a dispute existed between it and
Belgium regarding the arrest warrant issued by a Belgian investigating judge
on 11 April 2000 against Mr. Yerodia, the Minister for Foreign Affairs of
the Congo. The word "dispute" appears in the Application only at its very
end, under the heading "V. Admissibility of the Present Application", in
which the Congo stated that:
"As to the existence of a dispute on that question [namely, the question
that the Court is called upon to decide], this is established ab initio by
the very fact that it is the non-conformity with international law of the
Law of the Belgian State on which the investigating judge founds his warrant
which is the subject of the legal grounds which [the Congo] has submitted to
the Court." (Emphasis added.)
Without giving any further explanation as to the alleged dispute, the Congo
simply asserted that Belgium's 1993 Law, as amended in 1999, concerning the
Punishment of Serious Violations of International Humanitarian Law
contravened international law.
4. The Congo's mere belief that the Belgian law violated international law
is not evidence, let alone proof, that a dispute existed between it and
Belgium. It shows at most that the Congo held a different legal view, one
opposed to the action taken by Belgium. It is clear that the Congo did not
think that it was referring a dispute to the Court. The Congo, furthermore,
never thought of this as a legal dispute, the existence of which is a
requirement for unilateral applications to the Court under Article 36,
paragraph 2, of the Court's Statute. The Congo's mere opposition to the
Belgian Law and certain acts taken by Belgium pursuant to it cannot be
regarded as a dispute or a legal dispute between the Congo and Belgium. In
fact, there existed no such legal dispute in this case.
I find it strange that the Court does not take up this point in the
Judgment; instead the Court simply states in the first paragraph of its
decision that "the Congo . . . filed in the Registry of the Court an
Application [p 48] instituting proceedings against . . . Belgium ... in
respect of a dispute concerning an 'international arrest warrant . . ."'
(Judgment, para. 1, emphasis added) and speaks of "a legal dispute between
[the Congo and Belgium] concerning the international lawfulness of the
arrest warrant of 11 April 2000 and the consequences to be drawn if the
arrest warrant was unlawful" (Judgment, para. 27, emphasis added). To
repeat, the Congo did refer in its Application to a dispute but only in
reference to the admissibility of the case, not "[i]n order to found the
Court's jurisdiction", as the Court mistakenly asserts in paragraph 1 of the
Judgment.
5. While Article 40 of the Court's Statute does not require from an
applicant State a statement of "the legal grounds upon which the
jurisdiction of the Court is said to be based", Article 38, paragraph 2, of
the Rules of Court does and the Congo failed to specify those grounds in its
Application. Furthermore, the Congo did not indicate "the subject of the
dispute", which is required under Article 40 of the Statute.
In its Application the Congo refers only to "Legal Grounds" (Section I) and
"Statement of the Grounds on which the Claim is Based" (Section IV). In
those sections of the Application, the Congo, without referring to the basis
of jurisdiction or the subject of dispute, simply mentions "[v]iolation of
the principle that a State may not exercise [its authority] on the territory
of another State and of the principle of sovereign equality" and
"[v]iolation of the diplomatic immunity of the Minister for Foreign Affairs
of a sovereign State".
6. The Congo's claim is, first, that the 1993 Belgian Law, as amended in
1999, is in breach of those two aforementioned principles and, secondly,
that Belgium's prosecution of Mr. Yerodia, Foreign Minister of the Congo,
violates the diplomatic immunity granted under international law to
Ministers for Foreign Affairs. The Congo did not cite any damage or injury
which the Congo or Mr. Yerodia himself has suffered or will suffer except
for some moral injury; that is, at most, Mr. Yerodia might have thought it
wise to forgo travel to foreign countries for fear of being arrested by
those States pursuant to the arrest warrant issued by the Belgian
investigating judge (that fear being ungrounded). Thus, as already noted,
the Congo did not ask the Court to settle a legal dispute with Belgium but
rather to render a legal opinion on the lawfulness of the 1993 Belgian Law
as amended in 1999 and actions taken under it.
7. I fear that the Court's conclusions finding that this case involves a
legal dispute between the Congo and Belgium within the meaning of Article
36, paragraph 2, of the Statute (such questions being the only ones which
can be submitted to the Court) and upholding its jurisdiction in the present
case will eventually lead to an excessive number of cases of this nature
being referred to the Court even when no real injury has occurred, simply
because one State believes that another State has acted contrary to
international law. I am also afraid that many States will then [p 49]
withdraw their recognition of the Court's compulsory jurisdiction in order
to avoid falling victim to this distortion of the rules governing the
submission of cases. (See Arrest Warrant of 11 April 2000 (Democratic
Republic of the Congo v. Belgium), Provisional Measures, Order of 8 December
2000, I. C.J. Reports 2000, p. 204, declaration of Judge Oda.)
This "loose" interpretation of the compulsory jurisdiction of the Court will
frustrate the expectations of a number of law-abiding nations. I would
emphasize that the Court's jurisdiction is, in principle, based on the
consent of the sovereign States seeking judicial settlement by the Court.
II. The Congo's Changing of the Subject-Matter
8. In reaffirming my conviction that the Congo's Application unilaterally
submitted to the Court was not a proper subject of contentious proceedings
before the Court, I would like to take up a few other points which I find to
be crucial to understanding the essence of this inappropriate, unjustified
and, if I may say so, wrongly decided case. It is to be noted, firstly, that
between filing its Application of 17 October 2000 and submitting its
Memorial on 15 May 2001, the Congo restated the issues, changing the
underlying subject-matter in the process.
The Congo contended in the Application: (i) that the 1993 Belgian Law, as
amended in 1999, violated the "principle that a State may not exercise [its
authority] on the territory of another State" and the "principle of
sovereign equality" and (ii) that Belgium's exercise of criminal
jurisdiction over Mr. Yerodia, then Minister for Foreign Affairs of the
Congo, violated the "diplomatic immunity of the Minister for Foreign Affairs
of a sovereign State". The alleged violations of those first two principles
concern the question of "universal jurisdiction", which remains a matter of
controversy within the international legal community, while the last claim
relates only to a question of the "diplomatic immunity" enjoyed by the
incumbent Minister for Foreign Affairs.
9. The Congo changed its claim in its Memorial, submitted seven months
later, stating that
"by issuing and internationally circulating the arrest warrant of 11 April
2000 against [Mr. Yerodia], Belgium committed a violation in regard to the
DRC of the rule of customary international law concerning the absolute
inviolability and immunity from criminal process of incumbent foreign
ministers" (Memorial of the Democratic Republic of the Congo of 15 May 2001,
p. 64). [Translation by the Registry.]
Charging and arresting a suspect are clearly acts falling within the
exercise of a State's criminal jurisdiction. The questions originally
raised —[p 50] namely, whether a State has extraterritorial jurisdiction
over crimes constituting serious violations of humanitarian law wherever
committed and by whomever (in other words, the question of universal
jurisdiction) and whether a Foreign Minister is exempt from such
jurisdiction (in other words, the question of diplomatic immunity) — were
transmuted into questions of the "issue and international circulation" of an
arrest warrant against a Foreign Minister and the immunities of incumbent
Foreign Ministers.
This is clearly a change in subject-matter, one not encompassed in "the
right to argue further the grounds of its Application", which the Congo
reserved in its Application of 17 October 2000.
10. It remains a mystery to me why Belgium did not raise preliminary
objections concerning the Court's jurisdiction at the outset of this case.
Instead, it admitted in its Counter-Memorial that there had been a dispute
between the two States, one susceptible to judicial settlement by the Court,
at the time the proceedings were instituted and that the Court was then
seised of the case, as the Court itself finds (Judgment, paras. 27-28). Did
Belgium view this as a case involving a unilateral application and the
Respondent's subsequent recognition of the Court's jurisdiction, instances
of which are to be found in the Court's past?
Belgium seems to have taken the position that once Mr. Yerodia had ceased to
be Foreign Minister, a dispute existed concerning him in his capacity as a
former Foreign Minister and contended that the Court lacked jurisdiction
under those circumstances. Thus, Belgium also appears to have replaced the
issues as they existed on the date of the Congo's Application with those
arising at a later date. It would appear that Belgium did not challenge the
Court's jurisdiction in the original case but rather was concerned only with
the admissibility of the Application or the mootness of the case once Mr.
Yerodia had been relieved of his duties as Foreign Minister (see Belgium's
four preliminary objections raised in its Counter-Memorial, referred to in
the Judgment, paras. 23, 29, 33 and 37).
In this respect, I share the view of the Court (reserving, of course, my
position that a dispute did not exist) that the alleged dispute was the one
existing in October 2000 (Judgment, para. 38) and, although I voted against
paragraph 78 (1) (A) of the Judgment for the reasons set out in paragraph 1
of my opinion, I concur with the Court in rejecting Belgium's objections
relating to "jurisdiction, mootness and admissibility" in regard to the
alleged dispute which Belgium believed existed after Mr. Yerodia left
office.
Certainly, the question whether a former Foreign Minister is entitled to the
same privileges and immunities as an incumbent Foreign Minister may well be
a legal issue but it is not a proper subject of the present case brought by
the Congo in October 2000.[p 51]
III. Does the Present Case Involve Any Legal Issues on Which the Congo and
Belgium Held Conflicting Views?
11. Putting aside for now my view that that there was no legal dispute
between the Congo and Belgium susceptible to judicial settlement by the
Court under its Statute and that the Congo seems simply to have asked the
Court to render an opinion, I shall note my incomprehension of the Congo's
intention and purpose in bringing this request to the Court in October 2000
when Mr. Yerodia held the office of Foreign Minister.
In its Application of October 2000, the Congo raised the question whether
the 1993 Belgian Law, as amended in 1999, providing for the punishment of
serious violations of humanitarian law was itself contrary to the principle
of sovereign equality under international law (see Application of the
Democratic Republic of the Congo of 17 October 2000, Part III: Statement of
the Facts, A). Yet it appears that the Congo abandoned this point in its
Memorial of May 2001, as the Court admits (Judgment, para. 45), and never
took it up during the oral proceedings.
12. It is one of the fundamental principles of international law that a
State cannot exercise its jurisdiction outside its territory. However, the
past few decades have seen a gradual widening in the scope of the
jurisdiction to prescribe law. From the base established by the Permanent
Court's decision in 1927 in the "Lotus" case, the scope of extraterritorial
criminal jurisdiction has been expanded over the past few decades to cover
the crimes of piracy, hijacking, etc. Universal jurisdiction is
increasingly recognized in cases of terrorism and genocide. Belgium is
known for taking the lead in this field and its 1993 Law (which would make
Mr. Yerodia liable to punishment for any crimes against humanitarian law he
committed outside of Belgium) may well be at the forefront of a trend. There
is some national case law and some treaty-made law evi-dencing such a trend.
Legal scholars the world over have written prolifically on this issue. Some
of the opinions appended to this Judgment also give guidance in this
respect. I believe, however, that the Court has shown wisdom in refraining
from taking a definitive stance in this respect as the law is not
sufficiently developed and, in fact, the Court is not requested in the
present case to take a decision on this point.
13. It is clear that a State cannot arrest an individual outside its
territory and forcibly bring him before its courts for trial. In this
connection, it is necessary to examine the effect of an arrest warrant
issued by a State authority against an individual who is subject to that
State's jurisdiction to prescribe law.
The arrest warrant is an official document issued by the State's judiciary
empowering the police authorities to take forcible action to place [p 52]
the individual under arrest. Without more, however, the warrant is not
directly binding on foreign authorities, who are not part of the law
enforcement mechanism of the issuing State. The individual may be arrested
abroad (that is, outside the issuing State) only by the authorities of the
State where he or she is present, since jurisdiction over that territory
lies exclusively with that State. Those authorities will arrest the
individual being sought by the issuing State only if the requested State is
committed to do so pursuant to international arrangements with the issuing
State. Interpol is merely an organization which transmits the arrest request
from one State to another; it has no enforcement powers of its own.
It bears stressing that the issuance of an arrest warrant by one State and
the international circulation of the warrant through Interpol have no legal
impact unless the arrest request is validated by the receiving State. The
Congo appears to have failed to grasp that the mere issuance and
international circulation of an arrest warrant have little significance.
There is even some doubt whether the Court itself properly understood this,
particularly as regards a warrant's legal effect. The crucial point in this
regard is not the issuance or international circulation of an arrest warrant
but the response of the State receiving it.
14. Diplomatic immunity is the immunity which an individual holding
diplomatic status enjoys from the exercise of jurisdiction by States other
than his own. The issue whether Mr. Yerodia, as Foreign Minister of the
Congo, should have been immune in 2000 from Belgium's exercise of criminal
jurisdiction pursuant to the 1993 Law as amended in ¡999 is twofold. The
first question is whether in principle a Foreign Minister, the post which
Mr. Yerodia held in 2000, is entitled to the same immunity as diplomatic
agents. Neither the 1961 Vienna Convention on Diplomatic Relations nor any
other convention spells out the privileges of Foreign Ministers and the
answer may not be clear under customary international law. The Judgment
addresses this question merely by giving a hornbook-like explanation in
paragraphs 51 to 55. I have no further comment on this.
The more important aspect is the second one: can diplomatic immunity also
be claimed in respect of serious breaches of humanitarian law — over which
many advocate the existence of universal jurisdiction and which are the
subject-matter of Belgium's 1993 Law as amended in 1999 — and, furthermore,
is a Foreign Minister entitled to greater immunity in this respect than
ordinary diplomatic agents? These issues are too new to admit of any
definite answer.
The Court, after quoting several recent incidents in European countries,
seems to conclude that Ministers for Foreign Affairs enjoy absolute immunity
(Judgment, paras. 56-61). It may reasonably be asked whether [p 53] it was
necessary, or advisable, for the Court to commit itself on this issue, which
remains a highly hypothetical question as Belgium has not exercised its
criminal jurisdiction over Mr. Yerodia pursuant to the 1993 Belgian Law, as
amended in 1999, and no third State has yet acted in pursuance of Belgium's
assertion of universal jurisdiction.
IV. Concluding Remarks
15. I find little sense in the Court's finding in paragraph (3) of the
operative part of the Judgment, which in the Court's logic appears to be the
consequence of the finding set out in paragraph (2) (Judgment, para. 78).
Given that the Court concludes that the violation of interna-tional law
occurred in 2000 and the Court would appear to believe that there is nothing
in 2002 to prevent Belgium from issuing a new arrest warrant against Mr.
Yerodia, this time as a former Foreign Minister and not the incumbent
Foreign Minister, there is no practical significance in ordering Belgium to
cancel the arrest warrant of April 2000. If the Court believes that this is
an issue of the sovereign dignity of the Congo and that that dignity was
violated in 2000, thereby causing injury at that time to the Congo, the harm
done cannot be remedied by the cancellation of the arrest warrant; the only
remedy would be an apology by Belgium. But I do not believe that Belgium
caused any injury to the Congo because no action was ever taken against Mr.
Yerodia pursuant to the warrant. Furthermore, Belgium was under no
obligation to provide the Congo with any assurances that the incumbent
Foreign Minister's immunity from criminal jurisdiction would be respected
under the 1993 Law, as amended in 1999, but that is not the issue here.
16. In conclusion, I find the present case to be not only unripe for
adjudication at this time but also fundamentally inappropriate for the
Court's consideration. There is not even agreement between the Congo and
Belgium concerning the issues in dispute in the present case. The
potentially significant questions (the validity of universal jurisdiction,
the general scope of diplomatic immunity) were transmuted into a simple
question of the issuance and international circulation of an arrest warrant
as they relate to diplomatic immunity. It is indeed unfortunate that the
Court chose to treat this matter as a contentious case suitable for judicial
resolution.
(Signed) Shigeru Oda.
[p 54]
DECLARATION OF JUDGE RANJEVA
[Translation]
1. I fully subscribe to the Judgment's conclusion that the issue and
international circulation of the arrest warrant of 11 April 2000
constituted violations of an international obligation owed by Belgium to
the Congo in that they failed to respect the immunity from criminal
jurisdiction of the Congo's Minister for Foreign Affairs. I also approve of
the Court's position in refraining, in the light of the Congo's submissions
as finally stated, from raising and dealing with the is me whether the
legality of the warrant was subject to challenge on account of universal
jurisdiction as it was exercised by Belgium.
2. Logical considerations should have led the Court to address the question
of universal jurisdiction, a topical issue on which a decision in the
present case would have necessarily set a precedent. The Congo's withdrawal
of its original first submission (see paragraphs 17 and 21 of the Judgment)
was not sufficient per se to justify the Court's position. The first claim
as originally formulated could reasonably have been deemed a false
submission and construed as a ground advanced to serve as the basis for the
main relief sought: a declaration that the arrest war-rant was unlawful as
constituting a violation of immunities from criminal jurisdiction. As a
result of the amendment of the Congo's claim, the question of universal
jurisdiction was transformed from a ground of claim into a defence for
Belgium. Procedurally, however, the Court must rule on the submissions and
the grounds of the claims, and do so regardless of the intrinsic interest
presented by questions raised in the course of the proceedings. Given the
submissions concerning the unlawfulness of the warrant, it became
unnecessary, to my great regret, to address the second aspect of
unlawfulness. One thing is certain: there is no basis for concluding from
the text of the Judgment that the Court was indifferent to the question of
universal jurisdiction. That remains an open legal issue.
3. The silence maintained by the Judgment on the question of universal
jurisdiction places me in an awkward position. Expressing an opinion [p 55]
on the subject would be an unusual exercise, because it would involve
reasoning in the realm of hypothesis, whereas the problem is a real one, not
only in the present case but also in the light of developments in
international criminal law aimed at preventing and punishing heinous crimes
violating human rights and dignity under international law. This
declaration will accordingly address Belgium's interpretation of universal
jurisdiction.
4. Acting pursuant to the Belgian Law of 16 June 1993, as amended on 10
February 1999, concerning the punishment of serious violations of
international humanitarian law, an investigating judge of the Brussels
Tribunal de premiere instance issued an international arrest warrant against
Mr. Yerodia Ndombasi, the then Minister for Foreign Affairs of the Congo.
Mr. Yerodia was accused of serious violations of humanitarian law and of
crimes against humanity. Under Article 7 of that Law, perpetrators of such
offences are "subject to the jurisdiction of the Belgian courts,
irrespective of their nationality or that of the victims" (arrest warrant,
para. 3.4). The interest presented by this decision lies in the fact that
the case is truly one of first impression.
5. The Belgian legislation establishing universal jurisdiction in absentia
for serious violations of international humanitarian law adopted the
broadest possible interpretation of such jurisdiction. The ordinary courts
of Belgium have been given jurisdiction over war crimes, crimes against
humanity and genocide committed by non-Belgians outside Belgium, and the
warrant issued against Mr. Yerodia is the firs: instance in which this
radical approach has been applied. There would appear to be no other
legislation which permits the exercise of criminal jurisdiction in the
absence of a territorial or personal connecting factor, active or passive.
The innovative nature of the Belgian statute lies in the possibility it
affords for exercising universal jurisdiction in the absence of any
connection between Belgium and the subject-matter of the offence, the
alleged offender or the relevant territory. In the wake of the tragic events
in Yugoslavia and Rwanda, several States have invoked universal
jurisdiction to prosecute persons suspected of crimes under humanitarian
law; unlike Mr. Yerodia, however, the individuals in question had first been
the subject of some form of proceedings or had been arrested; in other
words, there was already a territorial connection.
6. Under international law, the same requirement of a connection ratione
loci again applies to the exercise of universal jurisdiction. Maritime
piracy affords the sole traditional example where universal jurisdiction
exists under customary law. Article 19 of the Geneva Convention of 29 April
1958 and Article 105 of the Montego Bay Convention of 10 December 1982FN1
provide:
---------------------------------------------------------------------------------------------------------------------
FN1
United Nations Convention on the Law of the Sea.
---------------------------------------------------------------------------------------------------------------------
[p 56]
"On the high seas, or in any other place outside the jurisdiction of any
State, every State may seize a pirate ship or aircraft, or a ship or
aircraft taken by piracy and under the control of pirates, and arrest the
persons and seize the property on board. The courts of the State which
carried out the seizure may decide upon the penalties to be imposed ..."
Universal jurisdiction under those circumstances may be explained by the
lack of any predetermined sovereignty over the high seas and by the regime
of their freedom; thus, normally, the jurisdiction of the flag State serves
as the mechanism which ensures respect for the law. But since piracy by
definition involves the pirate's denial and evasion of the jurisdiction of
any State system, the exercise of universal jurisdiction enables the legal
order to be re-established. Thus, in this particular situation the
conferring of universal jurisdiction on national courts to try pirates and
acts of piracy is explained by the harm done to the international system of
State jurisdiction. The inherent seriousness of the offence itself has,
however, not been deemed sufficient per se to establish universal
jurisdiction. Universal jurisdiction has not been established over any
other offence committed on the high seas (see, for example: the Conventions
of 18 May 1904 and 4 May 1910 (for the suppression of the white slave
traffic); the Convention of 30 September 1921 (for the suppression of the
traffic in women and children); the Conventions of 28 June 1930 (concerning
forced labour) and of 25 June 1957 (abolishing forced labour)).
7. There has been a movement in treaty-basec criminal law over the last few
decades towards recognition of the obligation to punish and towards a new
system of State jurisdiction in criminal matters. While the 1949 Geneva
humanitarian law conventions do give rise to international legal
obligations, they contain no prevision concerning the jurisdiction of
national courts to enforce those obligations by judicial means. The same is
true of the 1948 Genocide Convention. It was not until an international
regime was established to combat terrorist attacks on aircraft that
provisions were adopted implying the exercise of universal jurisdiction: the
Hague Convention of 16 December 1970 enshrined the principle aut judicare
aut dedeie in Article 4, paragraph 2, as follows: "Each Contracting State
shall . . . take such measures as may be necessary to establish its
jurisdiction over the offence in the case where the alleged offender is
present in its territory and it does not extradite him . . ."2 It is to be
noted that application of the principle aut judicare aut dedere is
conditional or the alleged offender having first been arrested. This
provision dating from 1970 served as a model for the extension in various
subsequent conventions of the criminal jurisdiction of national courts
through the exercise of universal [p 57] jurisdiction. These legal
developments did not result in the recognition of jurisdiction in absentia.
---------------------------------------------------------------------------------------------------------------------
FN2
Convention for the Suppression of Unlawful Seizure of Aircraft.
---------------------------------------------------------------------------------------------------------------------
8. In support of its argument, Belgium invokes not only an international
legal obligation to punish serious violations of humanitarian law but also a
generally recognized discretion to enact legislation in this area. It is not
worth commenting further on the lack of merit in the first limb of this
argument, which mistakenly confuses the obligation to punish with the manner
in which it is fulfilled: namely a claim that national criminal courts have
jurisdiction in absentia notwithstanding the lack of any provision
conferring such jurisdiction. Thus Belgium's assertion that "[a]s has
already been addressed, pursuant to Belgian law, Belgium has the right to
investigate grave breaches of international humanitarian law even when the
presumptive perpetrator is not found on Belgian territory" (Counter-Memorial
of Belgium, p. 89, para. 3.3.28) begs the question. The examples cited in
support of this proposition are not persuasive: of the 125 States having
national legislation concerning punishment of war crimes and crimes against
humanity, only five provide that the presence of the accused in their
territory is not required for initiating prosecution (see Counter-Memorial
of Belgium, pp. 98-99, para. 3.3.57).
9. Belgium relies on the decision in the "Lotus" case to justify the scope
of national legislative powers:
"It does not, however, follow that international law prohibits a State from
exercising jurisdiction in its own territory, in respect of any case which
relates to acts which have taken place abroad, and in which it cannot rely
on some permissive rule of international law . . . Far from laying down a
general prohibition ;o the effect that States may not extend the application
of their laws and the jurisdiction of their courts to persons, property and
acts outside their territory, it leaves them in this respect a wide measure
of discretion which is only limited in certain cases by prohibitive rules;
as regards other cases, every State remains free to adopt the principles
which it regards as best and most suitable." (P. C.I. J., Series A, No. 10,
p. 19.)
That same Judgment states further on:
"[A]ll that can be required of a State is that it should not overstep the
limits which international law places upon its jurisdiction; . . . The
territoriality of criminal law, therefore, is not an absolute principle of
international law and by no means coincides with territorial sovereignty."
(Ibid., pp. 19-20.)
Doubtless, evolving opinion and political conditions in the contemporary
world can be seen as favouring the retreat from the territory-based
conception of jurisdiction and the emergence of a more functional approach
in the service of higher common ends. Acknowledging such a trend cannot
however justify the sacrifice of cardinal principles of law in the name of a
particular kind of modernity. Territoriality as the basis of entitle-[p 58]
ment to jurisdiction remains a given, the core of contemporary positive
international law. Scholarly acceptance of the principle laid down in the
"Lotus" case in the context of combating international crimes has not yet
found expression in a consequential development of the positive law relating
to criminal jurisdiction.
10. Finally, Belgium places particular reliance on the following passage
from the "Lotus" Judgment in support of its interpretation of universal
jurisdiction in absentia:
"Though it is true that in all systems of law the principle of the
territorial character of criminal law is fundamental, it is equally true
that all or nearly all these systems of law extend their action to offences
committed outside the territory of he State which adopts them, and they do
so in ways which vary from State to State." (P.C.I.J., Series A. No. 10, p.
20).
It cannot reasonably be inferred that this proposition establishes
universal jurisdiction in absentia. To the contrary, the Permanent Court
manifested great caution; it limited its realm of investigation to the case
before it and sought close similarities with analogous situations. Any
attempt to read into this the bases of universal jurisdiction ia absentia is
mere conjecture: the facts of the case were confined to the issue of the
Turkish criminal courts' jurisdiction as a result of the arrest in Turkish
territorial waters of Lieutenant Demons, the second-in-command of a vessel
flying the French flag.
11. In sum, the issue of universal jurisdiction in absentia arises from the
problem created by the possibility of extraterritorial criminal
jurisdiction in the absence of any connection between the State claiming
such jurisdiction and the territory in which the alleged offences took place
— of any effective authority of that State over the suspected offenders.
This problem stems from the nature of an instrument of criminal process: it
is not a mere abstraction; it is enforceable, and, as such, requires a
minimum material basis under international law. It follows that an explicit
prohibition on the exercise, as construed by Belgium, of universal
jurisdiction does not represent a sufficient basis.
12. In conclusion, notwithstanding the deep-seated sense of obligation to
give effect to the requirement to prevent and punish crimes under
international humanitarian law in order to promote peace and international
security, and without there being any overriding consequential need to
condemn the Belgian Law of 16 June 1993, as amended on 10 February 1999, it
would have been difficult under contemporary positive law not to uphold the
Democratic Republic of the Congo's original first submission.
(Signed) Raymond Ranjeva.
[p 59]
SEPARATE OPINION OF JUDGE KOROMA
1. The Court in paragraph 46 of the Judgment acknowledged that, as a matter
of legal logic, the question of the alleged violation of the immunities of
the Minister for Foreign Affairs of the Democratic Republic of the Congo
should be addressed only once there has been a determination in respect of
the legality of the purported exercise of universal jurisdiction by Belgium.
However, in the context of the present case and given the main legal issues
in contention, the Court chose another technique, another method, of
exercising its discretion in arranging the order in which it will respond
when more than one issue has been submitted for determination. This
technique is not only consistent with the jurisprudence of the Court, but
the Court is also entitled to such an approach, given the position taken by
the Parties.
2. The Congo, in its final submissions, invoked only the grounds relating
to the alleged violation of the immunity of its Foreign Minister, while it
had earlier stated that any consideration by the Court of the issues of
international law raised by universal jurisdiction would be undertaken not
at its request but, rather, by virtue of the defence strategy adopted by
Belgium. Belgium, for its part, had, at the outset, maintained that the
exercise of universal jurisdiction is a valid counterweight to the
observance of immunities, and that it is not that universal jurisdiction is
an exception to immunity but rather that immunity is excluded when there is
a grave breach of international criminal law. Belgium, nevertheless, asked
the Court to limit its jurisdiction to those issues that are the subject of
the Congo's final submissions, in particular not to pronounce on the scope
and content of the law relating to universal jurisdiction.
3. Thus, since both Parties are in agreement that the subject-matter of the
dispute is whether the arrest warrant issued against the Minister for
Foreign Affairs of the Congo violates international law, and the Court is
asked to pronounce on the question of universal jurisdiction only in so far
as it relates to the question of the immunity of a Foreign Minister in
office, both Parties had therefore relinquished the issue of universal
juris-[p 60]diction; this entitled the Court to apply its well-established
principle that it has a "duty . . . not only to reply to the questions as
stated in the final submissions of the parties, but also to abstain from
deciding points not included in those submissions" (Asylum, Judgment, I.C.J.
Reports 1950, p. 402). In other words, according to the jurisprudence of the
Court, it rules on the petitum, or the subject-matter of the dispute as
defined by the claims of the Parties in their submissions; the Court is not
bound by the grounds and arguments advanced by the Parties in support of
their claims, nor is it obliged to address all such claims, as long as it
provides a complete answer to the submissions. And that position is also in
accordance with the submissions of the Parties.
4. This approach is all the more justified in the present case, which has
generated much public interest and where two important legal principles
would appear to be in competition, when in fact no such competition exists.
The Court came to the conclusion, and rightly in my view, that the issue in
contention is not one pitting the principle of universal jurisdiction
against the immunity of a Foreign Minister. Rather, the dispute before it is
whether the issue and international circulation of the arrest warrant by
Belgium against the incumbent Minister for Foreign Affairs of the Congo
violated the immunity of the Foreign Minister, and hence the obligation owed
by Belgium to the Congo. The Court is asked to pronounce on the issue of
universal jurisdiction only in so far as it relates to the question of the
immunity of the Foreign Minister. This, in spite of appearances to the
contrary, is the real issue which the Court is called upon to determine and
not which of those legal principles is pre-eminent, or should be regarded as
such.
5. Although immunity is predicated upon jurisdiction — whether national or
international — it must be emphasized that the concepts are not the same.
Jurisdiction relates to the power of a State to affect the rights of a
person or persons by legislative, executive or judicial means, whereas
immunity represents the independence and the exemption from the jurisdiction
or competence of the courts and tribunals of a foreign State and is an
essential characteristic of a State. Accordingly, jurisdiction and immunity
must be in conformity with international law. It is not, however, that
immunity represents freedom from legal liability as such, but rather that it
represents exemption from legal process. The Court was therefore justified
that in this case, in its legal enquiry, it took as its point of departure
one of the issues directly relevant to the case for determination, namely
whether international law permits an exemption from immunity of an incumbent
Foreign Minister and whether the arrest warrant issued against the Foreign
Minister violates international law, and came to the conclusion that
international law does not permit such exemption from immunity. [p 61]
6. In making its determination, as it pointed out in the Judgment, the Court
took into due consideration the pertinent conventions, judicial decisions of
both national and international tribunals, resolutions of international
organizations and academic institutes before reaching the conclusion that
the issue and circulation of the warrant is contrary to international
customary law and violated the immunity of the Minister for Foreign Affairs.
The paramount legal justification for this, in my opinion, is that immunity
of the Foreign Minister is not only of functional necessity but
increasingly these days the Foreign Minister represents the State, even
though his or her position is not assimilable to that of Head of State.
While it would have been interesting if the Court had done so, the Court did
not consider it necessary to undertake a disquisition of the law in order
to reach its decision. In acknowledging that the Court refrained from
carrying out such an undertaking, in reaching its conclusion, perhaps not
wanting to tie its hands when not compelled to do so, the Judgment cannot be
said to be juridically constraining or not to have responded to the
submissions. The Court's Judgment by its nature may not be as expressive or
exhaustive of all the underlying legal principles pertaining to a case, so
long as it provides a reasoned and complete answer to the submissions.
7. In the present case, the approach taken by the Court can also be viewed
as justified and apposite on practical and other grounds. The Minister for
Foreign Affairs of the Congo was sued in Belgium, on the basis of Belgian
law. According to that law, immunity does not represent a bar to
prosecution, even for a Minister for Foreign Affairs in office, when certain
grave breaches of international humanitarian law are alleged to have been
committed. The immunity claimed by the Foreign Minister is from Belgian
national jurisdiction based on Belgian law. The Judgment implies that while
Belgium can initiate criminal proceedings in its jurisdiction against
anyone, an incumbent Minister for Foreign Affairs of a foreign State is
immune from Belgian jurisdiction. International law imposes a limit on
Belgium's jurisdiction where the Foreign Minister in office of a foreign
State is concerned.
8. On the other hand, in my view, the issue and circulation of the arrest
warrant show how seriously Belgium views its international obligation to
combat international crimes. Belgium is entitled to invoke its criminal
jurisdiction against anyone, save a Foreign Minister in office. It is
unfortunate that the wrong case would appear to have been chosen in
attempting to carry out what Belgium considers its international
obligation.
9. Against this background, the Judgment cannot be seen either as a
rejection of the principle of universal jurisdiction, the scope of which has
continued to evolve, or as an invalidation of that principle. In my
considered opinion, today, together with piracy, universal jurisdiction is
available for certain crimes, such as war crimes and crimes against [p 62]
humanity, including the slave trade and genocide. The Court did not rule on
universal jurisdiction, because it was not indispensable to do so to reach
its conclusion, nor was such submission before it. This, to some extent,
provides the explanation for the position taken by the Court.
10. With regard to the Court's findings on remedies, the Court's ruling that
Belgium must, by means of its own choosing, cancel the arrest warrant and
so inform the authorities to whom that warrant was circulated is a legal and
an appropriate response in the context of the present case. For, in the
first place, it was the issue and circulation of the arrest warrant that
triggered and constituted the violation not only of the Foreign Minister's
immunity but also of the obligation owed by the Kingdom to the Republic. The
instruction to Belgium to cancel the warrant should cure both violations,
while at the same time repairing the moral injury suffered by the Congo and
restoring the situation to the status quo ante before the warrant was issued
and circulated (Factory at Chorzow, Merits, Judgment No. 13, 1928, P.C.I.J.,
Series A, No. 17, p. 47).
11. In the light of the foregoing, any attempt to qualify the Judgment as
formalistic, or to assert that the Court avoided the real issue of the
commission of heinous crimes is without foundation. The Court cannot take,
and in the present case has not taken, a neutral position on the issue of
heinous crimes. Rather, the Court's ruling should be seen as responding to
the question asked of it. The ruling ensures that legal concepts are
consistent with international law and legal tenets, and accord with legal
truth.
(Signed) Abdul G. Koroma.
[p 63]
JOINT SEPARATE OPINION OF JUDGES HIGGINS, KOOIJMANS AND BUERGENTHAL
1. We generally agree with what the Court has to say on the issues of
jurisdiction and admissibility and also with the conclusions it reaches.
There are, however, reservations that we find it necessary to make, both on
what the Court has said and what it has chosen not to say when it deals with
the merits. Moreover, we consider that the Court erred in ordering Belgium
to cancel the outstanding arrest warrant.
**
2. In its Judgment the Court says nothing on the question of whether — quite
apart from the status of Mr. Yerodia at the relevant time — the Belgian
magistracy was entitled under international law to issue an arrest warrant
for someone not at that time within its territory and pass it to Interpol.
It has, in effect, acceded to the common wish of the Parties that [p 64] the
Court should not pronounce upon the key issue of jurisdiction that divided
them, but should rather pass immediately to the question of immunity as it
applied to the facts of this case.
3. In our opinion it was not only desirable, but indeed necessary, that the
Court should have stated its position on this issue of jurisdiction. The
reasons are various. "Immunity" is the common shorthand phrase for "immunity
from jurisdiction". If there is no jurisdiction en principe, then the
question of an immunity from a jurisdiction which would otherwise exist
simply does not arise. The Court, in passing over the question of
jurisdiction, has given the impression that "immunity" is a free-standing
topic of international law. It is not. "Immunity" and "jurisdiction" are
inextricably linked. Whether there is "immunity" in any given instance will
depend not only upon the status of Mr. Yerodia but also upon what type of
jurisdiction, and on what basis, the Belgian authorities were seeking to
assert it.
4. While the notion of "immunity" depends, conceptually, upon a preexisting
jurisdiction, there is a distinct corpus of law that applies to each. What
can be cited to support an argument about the one is not always relevant to
an understanding of the other. In by-passing the issue of jurisdiction the
Court has encouraged a regrettable current tendency (which the oral and
written pleadings in this case have not wholly avoided) to conflate the two
issues.
5. Only if it is fully appreciated that there are two distinct norms of
international law in play (albeit that the one — immunity — can arise only
if the other —jurisdiction — exists) can the larger picture be seen. One of
the challenges of present-day international law is to provide for stability
of international relations and effective international intercourse while at
the same time guaranteeing respect for human rights. The difficult task
that international law today faces is to provide that stability in
international relations by a means other than the impunity of those
responsible for major human rights violations. This challenge is reflected
in the present dispute and the Court should surely be engaged in this task,
even as it fulfils its function of resolving a dispute that has arisen
before it. But through choosing to look at half the story — immunity — it is
not in a position to do so.
6. As Mr. Yerodia was a non-national of Belgium and the alleged offences
described in the arrest warrant occurred outside of the territory over which
Belgium has jurisdiction, the victims being non-Belgians, the arrest warrant
was necessarily predicated on a universal jurisdiction. Indeed, both it and
the enabling legislation of 1993 and 1999 expressly say so. Moreover, Mr.
Yerodia himself was outside of Belgium at the time the warrant was issued.
7. In its Application instituting proceedings (p. 7), the Democratic
Republic of the Congo complained that Article 7 of the Belgian Law: [p 65]
"establishes the universal applicability of the Law and the universal
jurisdiction of the Belgian courts in respect of 'serious violations of
international humanitarian law', without even making such applicability and
jurisdiction conditional on the presence of the accused on Belgian
territory.
It is clearly this unlimited jurisdiction which the Belgian State confers
upon itself which explains the issue of the arrest warrant against Mr.
Yerodia Ndombasi, against whom it is patently evident that no basis of
territorial or in personam jurisdiction, nor any jurisdiction based on the
protection of the security or dignity of the Kingdom of Belgium, could have
been invoked. "
In its Memorial, the Congo denied that
"international law recognized such an enlarged criminal jurisdiction as that
which Belgium purported to exercise, namely in respect of incidents of
international humanitarian law when the accused was not within the
prosecuting State's territory" (Memorial of Congo, para. 87). [Translation
by the Registry.]
In its oral submissions the Congo once again stated that it was not opposed
to the principle of universal jurisdiction per se. But the assertion of a
universal jurisdiction over perpetrators of crimes was not an obligation
under international law, only an option. The exercise of universal
jurisdiction required, in the Congo's view, that the sovereignty of the
other State be not infringed and an absence of any breach of an obligation
founded in international law (CR 2001/6, p. 33). Further, according to the
Congo, States who are not under any obligation to prosecute if the
perpetrator is not present on their territory, nonetheless are free to do so
in so far as this exercise of jurisdiction does not infringe the sovereignty
of another State and is not in breach of international law (ibid.). The
Congo stated that it had no intention of discussing the existence of the
principle of universal jurisdiction, nor of placing obstacles in the way of
any emerging custom regarding universal jurisdiction (ibid., p. 30). As the
oral proceedings drew to a close, the Congo acknowledged that the Court
might have to pronounce on certain aspects of universal jurisdiction, but it
did not request the Court to do so, as the question did not interest it
directly (CR 2001/10, p. 11). It was interested to have a ruling from the
Court on Belgium's obligations to the Congo in the light of Mr. Yerodia's
immunity at the relevant time. The final submissions as contained in the
Application were amended so as to remove any request for the Court to make a
determination on the issue of universal jurisdiction.
8. Belgium in its Counter-Memorial insisted that there was a general
obligation on States under customary international law to prosecute
perpetrators of crimes. It conceded, however, that where such persons were
non-nationals, outside of its territory, there was no obligation but rather
an available option (Counter-Memorial of Belgium, para. 3.3.25). No [p 66]
territorial presence was required for the exercise of jurisdiction where the
offence violated the fundamental interests of the international community
(Counter-Memorial of Belgium, paras. 3.3.44-3.3.52). In Belgium's view an
investigation or prosecution mounted against a person outside its territory
did not violate any rule of international law, and was accepted both in
international practice and in the internal practice of States, being a
necessary means of fighting impunity (Counter-Memorial of Belgium, paras.
3.3.28-3.3.74).
9. These submissions were reprised in oral argument, while noting that the
Congo "no longer contested] the exercise of universal jurisdiction by
default" (CR 2001/9, pp. 8-13). Belgium, too, was eventually content that
the Court should pronounce simply on the immunity issue.
10. That the Congo should have gradually come to the view that its interests
were best served by reliance on its arguments on immunity, was
understandable. So was Belgium's satisfaction that the Court was being asked
to pronounce on immunity and not on whether the issue and cir-culations of
an international arrest warrant required the presence of the accused on its
territory. Whether the Court should accommodate this consensus is another
matter.
11. Certainly it is not required to do so by virtue of the ultra petita
rule. In the Counter-Memorial Belgium quotes the locus classicus for the non
ultra petita rule, the Asylum (Interpretation) case:
"it is the duty of the Court not only to reply to the questions as stated in
the final submissions of the parties, but also to abstain from deciding
points not included in those submissions" (Request for Interpretation of the
Judgment of 20 November 1950 in the Asylum Case, Judgment, I.C.J. Reports
1950, p. 402; Counter-Memorial of Belgium, para. 2.75; emphasis added).
It also quotes Rosenne who said: "It does not confer jurisdiction on the
Court or detract jurisdiction from it. It limits the extent to which the
Court may go in its decision." (Counter-Memorial of Belgium, para. 2.77.)
12. Close reading of these quotations shows that Belgium is wrong it if
wishes to convey to the Court that the non ultra petita rule would bar it
from addressing matters not included in the submissions. It only precludes
the Court from deciding upon such matters in the operative part of the
Judgment since that is the place where the submissions are dealt with. But
it certainly does not prevent the Court from considering in its reasoning
issues which it deems relevant for its conclusions. As Sir Gerald
Fitzmaurice said: [p 67]
"unless certain distinctions are drawn, there is a danger that [the non
ultra petita rule] might hamper the tribunal in coming to a correct
decision, and might even cause it to arrive at a legally incorrect one, by
compelling it to neglect juridically relevant factors" (The Law and
Procedure of the International Court of Justice, 1986, Vol. II, pp.
529-530). '
13. Thus the ultra petita rule can operate to preclude a finding of the
Court, in the dispositif, on a question not asked in the final submissions
by a party. But the Court should not, because one or more of the parties
finds it more comfortable for its position, forfeit necessary steps on the
way to the finding it does make in the dispositif. The Court has
acknowledged this in paragraph 43 of the present Judgment. But having
reserved the right to deal with aspects of universal jurisdiction in its
reasoning, "should it deem this necessary or desirable", the Court says
nothing more on the matter.
14. This may be contrasted with the approach of the Court in the Advisory
Opinion request put to it in Certain Expenses of the United Nations (Article
17, Paragraph 2, of the Charter) (I.C.J. Reports 1962, pp. 156-157). (The
Court was constrained by the request put to it, rather than by the final
submissions of the Applicant, but the point of principle remains the same.)
The Court was asked by the General Assembly whether the expenditures
incurred in connection with UNEF and ONUC constituted "expenses of the
organization" for purposes of Article 17, paragraph 2, of the Charter.
15. France had in fact proposed an amendment to this request, whereby the
Court would have been asked to consider whether the expenditures in question
were made in conformity with the provisions of the Charter, before
proceeding to the question asked. This proposal was rejected. The Court
stated
"The rejection of the French amendment does not constitute a directive to
the Court to exclude from its consideration the question whether certain
expenditures were 'decided on in conformity with the Charter', if the Court
finds such consideration appropriate. It is not to be assumed that the
General Assembly would thus seek to fetter or hamper the Court in the
discharge of its judicial functions; the Court must have full liberty to
consider all relevant data available to it in forming an opinion on a
question posed to it for an advisory opinion." (Ibid., p. 157.)
The Court further stated that it
"has been asked to answer a specific question related to certain identified
expenditures which have actually been made, but the Court would not
adequately discharge the obligation incumbent on it unless it examined in
some detail various problems raised by the question which the General
Assembly has asked" (ibid., p. 158). [p 68]
16. For all the reasons expounded above, the Court should have "found it
appropriate" to deal with the question of whether the issue and
international circulation of a warrant based on universal jurisdiction in
the absence of Mr. Yerodia's presence on Belgian territory was unlawful.
This should have been done before making a finding on immunity from
jurisdiction, and the Court should indeed have "examined in some detail
various problems raised" by the request as formulated by the Congo in its
final submissions.
17. In agreeing to pronounce upon the question of immunity without
addressing the question of a jurisdiction from which there could be
immunity, the Court has allowed itself to be manoeuvred into answering a
hypothetical question. During the course of the oral pleadings Belgium drew
attention to the fact that Mr. Yerodia had ceased to hold any ministerial
office in the Government of the Democratic Republic of the Congo. In
Belgium's view, this meant that the Court should declare the request to
pronounce upon immunity to be inadmissible. In Belgium's view the case had
become one "about legal principle and the speculative consequences for the
immunities of Foreign Ministers from the possible action of a Belgian judge"
(CR 2001/8, p. 26, para. 43). The dispute was "a difference of opinion of an
abstract nature" (CR 2001/8, p. 36, para. 71). The Court should not "enter
into a debate which it may well come to see as essentially an academic
exercise" (CR 2001/9, p. 7, para. 4 [translation by the Registry]).
18. In its Judgment the Court rightly rejects those contentions (see
Judgment, paras. 30-32). But nothing is more academic, or abstract, or
speculative, than pronouncing on an immunity from a jurisdiction that may,
or may not, exist. It is regrettable that the Court has not followed the
logic of its own findings in the Certain Expenses case, and in this Judgment
addressed in the necessary depth the question of whether the Belgian
authorities could legitimately have invoked universal jurisdiction in
issuing and circulating the arrest warrant for the charges contained
therein, and for a person outside the territorial jurisdiction at the moment
of the issue of the warrant. Only if the answer to these is in the
affirmative does the question arise: "Nevertheless, was Mr. Yerodia immune
from such exercise of jurisdiction, and by reference to what moment of time
is that question to be answered?"
***
19. We therefore turn to the question whether States are entitled to
exercise jurisdiction over persons having no connection with the forum State
when the accused is not present in the State's territory. The necessary
point of departure must be the sources of international law identified in
Article 38, paragraph 1 (c), of the Statute of the Court, together with
obligations imposed upon all United Nations Members by Security Council
resolutions, or by such General Assembly resolutions as meet the [p 69]
criteria enunciated by the Court in the case concerning Legality of the
Threat or Use of Nuclear Weapons, Advisory Opinion (I.C.J. Reports 1996, p.
226, para. 70).
20. Our analysis may begin with national legislation, to see if it
evidences a State practice. Save for the Belgian legislation of 10 February
1999, national legislation, whether in fulfilment of international treaty
obligations to make certain international crimes offences also in national
law, or otherwise, does not suggest a universal jurisdiction over these
offences. Various examples typify the more qualified practice. The
Australian War Crimes Act of 1945, as amended in 1988, provides for the
prosecution in Australia of crimes committed between 1 September 1939 and 8
May 1945 by persons who were Australian citizens or residents at the times
of being charged with the offences (Arts. 9 and 11). The United Kingdom War
Crimes Act of 1991 enables proceedings to be brought for murder,
manslaughter or culpable homicide, committed between 1 September 1935 and 5
June 1945, in a place that was part of Germany or under German occupation,
and in circumstances where the accused was at the time, or has become, a
British citizen or resident of the United Kingdom. The statutory
jurisdiction provided for by France, Germany and (in even broader terms) the
Netherlands, refer for their jurisdictional basis to the jurisdictional
provisions in those international treaties to which the legislation was
intended to give effect. It should be noted, however, that the German
Government on 16 January 2002 has submitted a legislative proposal to the
German Parliament, section 1 of which provides:
"This Code governs all the punishable acts listed herein violating public
international law, [and] in the case of felonies listed herein [this Code
governs] even if the act was committed abroad and does not show any link to
[Germany]."
The Criminal Code of Canada 1985 allows the execution of jurisdiction when
at the time of the act or omission the accused was a Canadian citizen or
"employed by Canada in a civilian or military capacity"; or the "victim is a
Canadian citizen or a citizen of a State that is allied with Canada in an
armed conflict", or when "at the time of the act or omission Canada could,
in conformity with international law, exercise jurisdiction over the person
on the basis of the person's presence in Canada" (Art. 7).
21. All of these illustrate the trend to provide for the trial and
punishment under international law of certain crimes that have been
committed extraterritorially. But none of them, nor the many others that
have been studied by the Court, represent a classical assertion of a
universal juris-diction over particular offences committed elsewhere by
persons having no relationship or connection with the forum State.
22. The case law under these provisions has largely been cautious so [p 70]
far as reliance on universal jurisdiction is concerned. In the Pinochet case
in the English courts, the jurisdictional basis was clearly treaty based,
with the double criminality rule required for extradition being met by
English legislation in September 1988, after which date torture committed
abroad was a crime in the United Kingdom as it already was in Spain. In
Australia the Federal Court referred to a group of crimes over which
international law granted universal jurisdiction, even though national
enabling legislation would also be needed (Nulyarimma, 1999: genocide). The
High Court confirmed the authority of the legislature to confer jurisdiction
on the courts to exercise a universal jurisdiction over war crimes
(Polyukhovich, 1991). In Austria (whose Penal Code emphasizes the
double-criminality requirement), the Supreme Court found that it had
jurisdiction over persons charged with genocide, given that there was not a
functioning legal system in the State where the crimes had been committed
nor a functioning international criminal tribunal at that point in time
(Cvjetkovic, 1994). In France it has been held by a juge destruction that
the Genocide Convention does not provide for universal jurisdiction (in re
Javor, reversed in the Cour d'Appel on other grounds. The Cour de Cassation
ruling equally does not suggest universal jurisdiction). The Munyeshyaka
finding by the Cour d'Appel (1998) relies for a finding — at first sight
inconsistent — upon cross-reference into the Statute of the International
Tribunal for Rwanda as the jurisdictional basis. In the Qaddafi case the
Cour d'Appel relied on passive personality and not on universal jurisdiction
(in the Cour de Cassation it was immunity that assumed central importance).
23. In the Bouterse case the Amsterdam Court of Appeal concluded that
torture was a crime against humanity, and as such an "extraterritorial
jurisdiction" could be exercised over a non-national. However, in the Hoge
Raad, the Dutch Supreme Court attached conditions to this exer-cise of
extraterritorial jurisdiction (nationality, or presence within the
Netherlands at the moment of arrest) on the basis of national legislation.
24. By contrast, a universal jurisdiction has been asserted by the Bavarian
Higher Regional Court in respect of a prosecution for genocide (the accused
in this case being arrested in Germany). And the case law of the United
States has been somewhat more ready to invoke "universal jurisdiction",
though considerations of passive personality have also been of key
importance (Yunis, 1988; Bin Laden, 2000).
25. An even more ambiguous answer is to be derived from a study of the
provisions of certain important treaties of the last 30 years, and the
obligations imposed by the parties themselves.
26. In some of the literature on the subject it is asserted that the great
international treaties on crimes and offences evidence universality as a
ground for the exercise of jurisdiction recognized in international law.
(See the interesting recent article of Luis Benavides, "The Universal
Juris-[p 71]diction Principle: Nature and Scope", Anuario Mexicano de
Derecho Internacional, Vol. 1, p. 58 (2001).) This is doubtful.
27. Article VI of the Convention on the Prevention and Punishment of the
Crime of Genocide, 9 December 1948, provides:
"Persons charged with genocide or any of the other acts enumerated in
Article III shall be tried by a competent tribunal of the State in the
territory of which the act was committed, or by such international penal
tribunal as may have jurisdiction with respect to those Contracting Parties
which shall have accepted its jurisdiction."
This is an obligation to assert territorial jurisdiction, though the travaux
preparatories do reveal an understanding that this obligation was not
intended to affect the right of a State to exercise criminal jurisdiction on
its own nationals for acts committed outside the State (A/C.6/SR.134, p. 5).
Article VI also provides a potential grant of non-territorial competence to
a possible future international tribunal — even this not being automatic
under the Genocide Convention but being restricted to those Contracting
Parties which would accept its jurisdiction. In recent years it has been
suggested in the literature that Article VI does not prevent a State from
exercising universal jurisdiction in a genocide case. (And see, more
generally, Restatement (Third) of the Foreign Relations Law of the United
States (1987), §404.)
28. Article 49 of the First Geneva Convention, Article 50 of the Second
Geneva Convention, Article 129 of the Third Geneva Convention and Article
146 of the Fourth Geneva Convention, all of 12 August 1949, provide:
"Each High Contracting Party shall be under the obligation to search for
persons alleged to have committed, or to have ordered to be committed, . . .
grave breaches, and shall bring such persons, regardless of their
nationality, before its own courts. It may also, if it prefers, and in
accordance with the provisions of its own legislation, hand such persons
over for trial to another High Contracting Party concerned, provided such
High Contracting Party has made out a prima facie case."
29. Article 85, paragraph 1, of the First Additional Protocol to the 1949
Geneva Convention incorporates this provision by reference.
30. The stated purpose of the provision was that the offences would not be
left unpunished (the extradition provisions playing their role in this
objective). It may immediately be noted that this is an early form of the
aut dedere aut prosequi to be seen in later conventions. But the obligation
to prosecute is primary, making it even stronger.
31. No territorial or nationality linkage is envisaged, suggesting a true [p
72] universality principle (see also Henzelin, Le principe de l'universalité
en droit pénal international : droit et obligation pour les Etats de
poursuivre et juger selon le principe de l'universalité, 2000, pp. 354-356).
But a different interpretation is given in the authoritative Pictet
Commentary: Geneva Convention for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field, 1952, which contends that
this obligation was understood as being an obligation upon States parties to
search for offenders who may be on their territory. Is it a true example of
universality, if the obligation to search is restricted to the own
territory? Does the obligation to search imply a permission to prosecute in
absentia, if the search had no result?
32. As no case has touched upon this point, the jurisdictional matter
remains to be judicially tested. In fact, there has been a remarkably modest
corpus of national case law emanating from the jurisdictional possibilities
provided in the Geneva Conventions or in Additional Protocol I.
33. The Single Convention on Narcotics and Drugs, 1961, provides in Article
36, paragraph 2, that:
"(a) (iv) Serious offences heretofore referred to committed either by
nationals or by foreigners shall be prosecuted by the Party in whose
territory the offence was committed, or by the Party in whose territory the
offender is found if extradition is not acceptable in conformity with the
law of the Party to which application is made, and if such offender has not
already been prosecuted and judgment given."
34. Diverse views were expressed as to whether the State where the offence
was committed should have first right to prosecute the offender
(E/CN.7/AC.3/9, 11 September 1958, p. 17, fn. 43; cf. E/CN.7/AC.3/9 and
Add.l, E/CONF.34/l/Add.l, 6 January 1961, p. 32). Nevertheless, the
principle of "primary universal repression" found its way into the text,
notwithstanding the strong objections of States such as the United States,
New Zealand and India that their national laws only envisaged the
prosecution of persons for offences occurring within their national borders.
(The development of the concept of "impact jurisdiction" or "effects
jurisdiction" has in more recent years allowed continued reliance on
territoriality while stretching far the jurisdictional arm.) The compromise
reached was to make the provisions of Article 36, paragraph 2 (iv), "subject
to the constitutional limitations of a Party, its legal system and domestic
law". But the possibility of a universal jurisdiction was not denounced as
contrary to international law.
35. The Hague Convention for the Suppression of Unlawful Seizure of
Aircraft, 16 December 1970, making preambular reference to the "urgent need"
to make such acts "punishable as an offence and to provide for appropriate
measures with respect to prosecution and extradition of [p 73] offenders",
provided in Article 4 (1) for an obligation to take such measures as may be
necessary to establish jurisdiction over these offences and other acts of
violence against passengers or crew:
"(a) when the offence is committed on board an aircraft registered in that
State;
(b) when the aircraft on board which the offence is committed lands in its
territory with the alleged offender still on board;
(c) when the offence is committed on board an aircraft leased without crew
to a lessee who has his principal place of business or, if the lessee has
no such place of business, his permanent residence, in that State".
Article 4 (2) provided for a comparable obligation to establish
jurisdiction where the alleged offender was present in the territory and if
he was not extradited pursuant to Article 8 by the territory. Thus here too
was a treaty provision for aut dedere aut prosequi, of which the limb was in
turn based on the principle of "primary universal repression". The
jurisdictional bases provided for in Article 4 (1) (b) and 4 (2), requiring
no territorial connection beyond the landing of the aircraft or the presence
of the accused, were adopted only after prolonged discussion. The travaux
preparatories show States for whom mere presence was an insufficient ground
for jurisdiction beginning reluctantly to support this particular type of
formula because of the gravity of the offence. Thus the representative of
the United Kingdom stated that his country "would see great difficulty in
assuming jurisdiction merely on the ground that an aircraft carrying a
hijacker had landed in United Kingdom territory". Further,
"normally his country did not accept the principle that the mere presence of
an alleged offender within the jurisdiction of a State entitled that State
to try him. In view, however, of the gravity of the offence ... he was
prepared to support . . . [the proposal on mandatory jurisdiction on the
part of the State where a hijacker is found]." (Hague Conference, p. 75,
para. 18.)
36. It is also to be noted that Article 4, paragraphs 1 and 2, provides for
the mandatory exercise of jurisdiction in the absence of extradition; but
does not preclude criminal jurisdiction exercised on alternative grounds of
jurisdiction in accordance with national law (though those possibilities are
not made compulsory under the Convention).
37. Comparable jurisdictional provisions are to be found in Articles 5 and 8
of the International Convention against the Taking of Hostages of 17
December 1979. The obligation enunciated in Article 8 whereby a State party
shall "without exception whatsoever and whether or not the offence was
committed in its territory" submit the case for prosecution if [p 74] it
does not extradite the alleged offender, was again regarded as necessary by
the majority, given the nature of the crimes (Summary Record, Ad Hoc
Committee on the Drafting of an International Convention against the Taking
of Hostages (A/AC.188/SR.5, 7, 8, 11, 14, 15, 16, 17, 23, 24 and 35)). The
United Kingdom cautioned against moving to universal criminal jurisdiction
(ibid., A/AC.188/SR.24, para. 27) while others (Poland, A/AC.188/SR.23,
para. 18; Mexico, A/AC.188/SR.16, para. 11) felt the introduction of the
principle of universal jurisdiction to be essential. The USSR observed that
no State could exercise jurisdiction over crimes committed in another State
by nationals of that State without contravening Article 2, paragraph 7, of
the Charter. The Convention provisions were in its view to apply only to
hostage taking that was a manifestation of international terrorism — another
example of initial and understandable positions on jurisdiction being
modified in the face of the exceptional gravity of the offence.
38. The Convention against Torture, of 10 December 1984, establishes in
Article 5 an obligation to establish jurisdiction
"(a) When the offences are committed in any territory under its jurisdiction
or on board a ship or aircraft registered in that State;
(b) When the alleged offender is a national of that State;
(c) When the victim is a national of that State if that State considers it
appropriate."
If the person alleged to have committed the offence is found in the
territory of a State party and is not extradited, submission of the case to
the prosecuting authorities shall follow (Art. 7). Other grounds of criminal
jurisdiction exercised in accordance with the relevant national law are not
excluded (Art. 5, para. 3), making clear that Article 5, paragraphs 1 and 2,
must not be interpreted a contrario. (See J. H. Burgers and H. Danelius, The
United Nations Convention against Torture, 1988, p. 133.)
39. The passage of time changes perceptions. The jurisdictional ground that
in 1961 had been referred to as the principle of "primary universal
repression" came now to be widely referred to by delegates as "universal
jurisdiction" — moreover, a universal jurisdiction thought appropriate,
since torture, like piracy, could be considered an "offence against the law
of nations" (United States: E/CN.4/1367, 1980). Australia, France, the
Netherlands and the United Kingdom eventually dropped their objection that
"universal jurisdiction" over torture would create problems under their
domestic legal systems. (See E/CN.4/1984/72.)
40. This short historical survey may be summarized as follows.
41. The parties to these treaties agreed both to grounds of jurisdiction [p
75] and as to the obligation to take the measures necessary to establish
such jurisdiction. The specified grounds relied on links of nationality of
the offender, or the ship or aircraft concerned, or of the victim. See, for
example, Article 4 (1), Hague Convention; Article 3(1), Tokyo Convention;
Article 5. Hostages Convention; Article 5, Torture Convention. These may
properly be described as treaty-based broad extraterritorial jurisdiction.
But in addition to these were the parallel provisions whereby a State party
in whose jurisdiction the alleged perpetrator of such offences is found
shall prosecute him or extradite him. By the loose use of language the
latter has come to be referred to as "universal jurisdiction", though this
is really an obligatory territorial jurisdiction over persons, albeit in
relation to acts committed elsewhere.
***
42. Whether this obligation (whether described as the duty to establish
universal jurisdiction, or, more accurately, the jurisdiction to establish a
territorial jurisdiction over persons for extraterritorial events) is an
obligation only of treaty law, inter partes, or whether it is now, at least
as regards the offences articulated in the treaties, an obligation of
customary international law was pleaded by the Parties in this case but not
addressed in any great detail.
43. Nor was the question of whether any such general obligation applies to
crimes against humanity, given that those too are regarded everywhere as
comparably heinous crimes. Accordingly, we offer no view on these aspects.
44. However, we note that the inaccurately termed "universal jurisdiction
principle" in these treaties is a principle of obligation, while the
question in this case is whether Belgium had the right to issue and
circulate the arrest warrant if it so chose.
If a dispassionate analysis of State practice and Court decisions suggests
that no such jurisdiction is presently being exercised, the writings of
eminent jurists are much more mixed. The large literature contains vigorous
exchanges of views (which have been duly studied by the Court) suggesting
profound differences of opinion. But these writings, important and
stimulating as they may be, cannot of themselves and without reference to
the other sources of international law, evidence the existence of a
jurisdictional norm. The assertion that certain treaties and court
decisions rely on universal jurisdiction, which in fact they do not, does
not evidence an international practice recognized as custom. And the policy
arguments advanced in some of the writings can certainly suggest why a
practice or a court decision should be regarded as desirable, or indeed [p
76] lawful; but contrary arguments are advanced, too, and in any event these
also cannot serve to substantiate an international practice where virtually
none exists.
45. That there is no established practice in which States exercise
universal jurisdiction, properly so called, is undeniable. As we have seen,
virtually all national legislation envisages links of some sort to the
forum State; and no case law exists in which pure universal jurisdiction has
formed the basis of jurisdiction. This does not necessarily indicate,
however, that such an exercise would be unlawful. In the first place,
national legislation reflects the circumstances in which a State provides in
its own law the ability to exercise jurisdiction. But a State is not
required to legislate up to the full scope of the jurisdiction allowed by
international law. The war crimes legislation of Australia and the United
Kingdom afford examples of countries making more confined choices for the
exercise of jurisdiction. Further, many countries have no national
legislation for the exercise of well recognized forms of extraterritorial
jurisdiction, sometimes notwithstanding treaty obligations to enable
themselves so to act. National legislation may be illuminating as to the
issue of universal jurisdiction, but not conclusive as to its legality.
Moreover, while none of the national case law to which we have referred
happens to be based on the exercise of a universal jurisdiction properly so
called, there is equally nothing in this case law which evidences an opinio
juris on the illegality of such a jurisdiction. In short, national
legislation and case law — that is, State practice — is neutral as to
exercise of universal jurisdiction.
46. There are, moreover, certain indications that a universal criminal
jurisdiction for certain international crimes is clearly not regarded as
unlawful. The duty to prosecute under those treaties which contain the aut
dedere aut prosequi provisions opens the door to a jurisdiction based on the
heinous nature of the crime rather than on links of territoriality or
nationality (whether as perpetrator or victim). The 1949 Geneva Conventions
lend support to this possibility, and are widely regarded as today
reflecting customary international law. (See, for example, Cherif Bassiouni,
International Criminal Law, Vol. Ill: Enforcement, 2nd ed., 1999, p. 228;
Theodor Meron, "International Criminalization of Internal Atrocities", 89
AJIL (1995), p. 576.)
47. The contemporary trends, reflecting international relations as they
stand at the beginning of the new century, are striking. The movement is
towards bases of jurisdiction other than territoriality. "Effects" or
"impact" jurisdiction is embraced both by the United States and, with
certain qualifications, by the European Union. Passive personality
jurisdiction, for so long regarded as controversial, is now reflected not
only in [p 77] the legislation of various countries (the United States, Ch.
113A, 1986 Omnibus Diplomatic and Antiterrorism Act; France, Art. 689, Code
of Criminal Procedure, 1975), and today meets with relatively little
opposition, at least so far as a particular category of offences is
concerned.
48. In civil matters we already see the beginnings of a very broad form of
extraterritorial jurisdiction. Under the Alien Tort Claims Act, the United
States, basing itself on a law of 1789, has asserted a jurisdiction both
over human rights violations and over major violations of interna-tional
law, perpetrated by non-nationals overseas. Such jurisdiction, with the
possibility of ordering payment of damages, has been exercised with respect
to torture committed in a variety of countries (Paraguay, Chile, Argentina,
Guatemala), and with respect to other major human rights violations in yet
other countries. While this unilateral exercise of the function of guardian
of international values has been much commented on, it has not attracted the
approbation of States generally.
49. Belgium — and also many writers on this subject — find support for the
exercise of a universal criminal jurisdiction in absentia in the "Lotus"
case. Although the case was clearly decided on the basis of jurisdiction
over damage to a vessel of the Turkish navy and to Turkish nationals, it is
the famous dictum of the Permanent Court which has attracted particular
attention. The Court stated that:
"[T]he first and foremost restriction imposed by international law upon a
State is that — failing the existence of a permissive rule to the contrary —
it may not exercise its power in any form in the territory of another
State. In this sense jurisdiction is certainly territo-rial; it cannot be
exercised by a State outside its territory except by virtue of a permissive
rule derived from international custom or convention.
It does not, however, follow that international law prohibits a State from
exercising jurisdiction in its own territory, in respect of any case which
relates to acts which have taken place abroad, and in which it cannot rely
on some permissive rule of international law. Such a view would only be
tenable if international law contained a general prohibition to States to
extend the application of their laws and the jurisdiction of their courts to
persons, property and acts outside their territory, and if, as an exception
to this general prohibition, it allowed States to do so in certain specific
cases. But this is certainly not the case under international law as it
stands at present. Far from laying down a general prohibition to the effect
that States may not extend the application of their laws and the
jurisdiction of their courts to persons, property and acts outside their
territory, it leaves them in this respect a wide measure of discretion which
is only [p 78]limited in certain cases by prohibitive rules; as regards
other cases, every State remains free to adopt the principles which it
regards as best and most suitable." (P.C.I.J., Series A, No. 10, pp. 18-19.)
The Permanent Court acknowledged that consideration had to be given as to
whether these principles would apply equally in the field of criminal
jurisdiction, or whether closer connections might there be required. The
Court noted the importance of the territorial character of criminal law but
also the fact that all or nearly all systems of law extend their action to
offences committed outside the territory of the State which adopts them, and
they do so in ways which vary from State to State. After examining the issue
the Court finally concluded that for an exercise of extraterritorial
criminal jurisdiction (other than within the territory of another State) it
was equally necessary to "prove the existence of a principle of
international law restricting the discretion of States as regards criminal
legislation".
50. The application of this celebrated dictum would have clear attendant
dangers in some fields of international law. (See, on this point, Judge
Shahabuddeen's dissenting opinion in the case concerning Legality of the
Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, pp.
394-396.) Nevertheless, it represents a continuing potential in the context
of jurisdiction over international crimes.
51. That being said, the dictum represents the high water mark of
laissez-faire in international relations, and an era that has been
significantly overtaken by other tendencies. The underlying idea of
universal jurisdiction properly so-called (as in the case of piracy, and
possibly in the Geneva Conventions of 1949), as well as the aut dedere aut
prosequi variation, is a common endeavour in the face of atrocities. The
series of multilateral treaties with their special jurisdictional provisions
reflect a determination by the international community that those engaged in
war crimes, hijacking, hostage taking, torture should not go unpunished.
Although crimes against humanity are not yet the object of a distinct
convention, a comparable international indignation at such acts is not to be
doubted. And those States and academic writers who claim the right to act
unilaterally to assert a universal criminal jurisdiction over persons
committing such acts, invoke the concept of acting as "agents for the
international community". This vertical notion of the authority of action is
significantly different from the horizontal system of international law
envisaged in the "Lotus" case.
At the same time, the international consensus that the perpetrators of
international crimes should not go unpunished is being advanced by a
flexible strategy, in which newly established international criminal
tribunals, treaty obligations and national courts all have their part to
play. We reject the suggestion that the battle against impunity is "made
over" to international treaties and tribunals, with national courts having
no com-[p 79]petence in such matters. Great care has been taken when
formulating the relevant treaty provisions not to exclude other grounds of
jurisdiction that may be exercised on a voluntary basis. (See Article 4 (3),
Hague Convention for the Suppression of Unlawful Seizure of Aircraft, 1970;
Article 5 (3), International Convention against Taking of Hostages, 1979;
Article 5 (3), Convention against Torture; Article 9, Statute of the
International Criminal Tribunal for the former Yugoslavia; and Article 19,
Rome Statute of the International Criminal Court.)
52. We may thus agree with the authors of Oppenheim's International Law (9th
ed., p. 998), that:
"While no general rule of positive international law can as yet be asserted
which gives to states the right to punish foreign nationals for crimes
against humanity in the same way as they are, for instance, entitled to
punish acts of piracy, there are clear indications pointing to the gradual
evolution of a significant principle of international law to that effect."
***
53. This brings us once more to the particular point that divides the
Parties in this case: is it a precondition of the assertion of universal
jurisdiction that the accused be within the territory?
54. Considerable confusion surrounds this topic, not helped by the fact that
legislators, courts and writers alike frequently fail to specify the precise
temporal moment at which any such requirement is said to be in play. Is the
presence of the accused within the jurisdiction said to be required at the
time the offence was committed? At the time the arrest warrant is issued? Or
at the time of the trial itself? An examination of national legislation,
cases and writings reveals a wide variety of temporal linkages to the
assertion of jurisdiction. This incoherent practice cannot be said to
evidence a precondition to any exercise of universal criminal jurisdiction.
The fact that in the past the only clear example of an agreed exercise of
universal jurisdiction was in respect of piracy, outside of any territorial
jurisdiction, is not determinative. The only prohibitive rule (repeated by
the Permanent Court in the "Lotus" case) is that criminal jurisdiction
should not be exercised, without permission, within the territory of
another State. The Belgian arrest warrant envisaged the arrest of Mr.
Yerodia in Belgium, or the possibility of his arrest in third States at the
discretion of the States concerned. This would in principle seem to violate
no existing prohibiting rule of international law.
55. In criminal law, in particular, it is said that evidence-gathering
requires territorial presence. But this point goes to any
extraterritoriality, including those that are well established and not just
to universal jurisdiction
.
56. Some jurisdictions provide for trial in absentia; others do not. If it
[p 80] is said that a person must be within the jurisdiction at the time of
the trial itself, that may be a prudent guarantee for the right of fair
trial but has little to do with bases of jurisdiction recognized under
international law.
57. On what basis is it claimed, alternatively, that an arrest warrant may
not be issued for non-nationals in respect of offences occurring outside the
jurisdiction? The textual provisions themselves of the 1949 Geneva
Convention and the First Additional Protocol give no support to this view.
The great treaties on aerial offences, hijacking, narcotics and torture are
built around the concept of aut dedere aut prosequi. Definitionally, this
envisages presence on the territory. There cannot be an obligation to
extradite someone you choose not to try unless that person is within your
reach. National legislation, enacted to give effect to these treaties, quite
naturally also may make mention of the necessity of the presence of the
accused. These sensible realities are critical for the obligatory exercise
of aut dedere aut prosequi jurisdiction, but cannot be interpreted a
contrario so as to exclude a voluntary exercise of a universal jurisdiction.
58. If the underlying purpose of designating certain acts as international
crimes is to authorize a wide jurisdiction to be asserted over persons
committing them, there is no rule of international law (and certainly not
the aut dedere principle) which makes illegal co-operative overt acts
designed to secure their presence within a State wishing to exercise
jurisdiction.
***
59. If, as we believe to be the case, a State may choose to exercise a
universal criminal jurisdiction in absentia, it must also ensure that
certain safeguards are in place. They are absolutely essential to prevent
abuse and to ensure that the rejection of impunity does not jeopardize
stable relations between States.
No exercise of criminal jurisdiction may occur which fails to respect the
inviolability or infringes the immunities of the person concerned. We return
below to certain aspects of this facet, but will say at this juncture that
commencing an investigation on the basis of which an arrest warrant may
later be issued does not of itself violate those principles. The function
served by the international law of immunities does not require that States
fail to keep themselves informed.
A State contemplating bringing criminal charges based on universal
jurisdiction must first offer to the national State of the prospective
accused person the opportunity itself to act upon the charges concerned. The
Court makes reference to these elements in the context of this case at
paragraph 16 of its Judgment.
Further, such charges may only be laid by a prosecutor or juge d'instruction
who acts in full independence, without links to or control [p 81] by the
government of that State. Moreover, the desired equilibrium between the
battle against impunity and the promotion of good inter-State relations will
only be maintained if there are some special circumstances that do require
the exercise of an international criminal jurisdiction and if this has been
brought to the attention of the prosecutor or juge d'instruction. For
example, persons related to the victims of the case will have requested the
commencement of legal proceedings.
***
60. It is equally necessary that universal criminal jurisdiction be
exercised only over those crimes regarded as the most heinous by the
international community.
61. Piracy is the classical example. This jurisdiction was, of course,
exercised on the high seas and not as an enforcement jurisdiction within the
territory of a non-agreeing State. But this historical fact does not mean
that universal jurisdiction only exists with regard to crimes committed on
the high seas or in other places outside national territorial jurisdiction.
Of decisive importance is that this jurisdiction was regarded as lawful
because the international community regarded piracy as damaging to the
interests of all. War crimes and crimes against humanity are no less harmful
to the interests of all because they do not usually occur on the high seas.
War crimes (already since 1949 perhaps a treaty-based provision for
universal jurisdiction) may be added to the list. The specification of
their content is largely based upon the 1949 Conventions and those parts of
the 1977 Additional Protocols that reflect general international law.
Recent years have also seen the phenomenon of an alignment of national
jurisdictional legislation on war crimes, specifying those crimes under the
statutes of the ICTY, ICTR and the intended ICC.
62. The substantive content of the concept of crimes against humanity, and
its status as crimes warranting the exercise of universal jurisdiction, is
undergoing change. Article 6 (c) of the Charter of the International
Military Tribunal of 8 August 1945 envisaged them as a category linked with
those crimes over which the Tribunal had jurisdiction (war crimes, crimes
against the peace). In 1950 the International Law Commission defined them as
murder, extermination, enslavement, deportation or other inhuman acts
perpetrated on the citizen population, or persecutions on political, racial
or religious grounds if in exercise of, or connection with, any crime
against peace or a war crime (Yearbook of the International Law Commission,
1950, Principle VI (c), pp. 374-377). Later definitions of crimes against
humanity both widened the subject-matter, to include such offences as
torture and rape, and de-coupled the link to other earlier established
crimes. Crimes against humanity are now regarded as a distinct category.
Thus the 1996 Draft Code of Crimes [p 82] against the Peace and Security of
Mankind, adopted by the International Law Commission at its 48th session,
provides that crimes against humanity
"means any of the following acts, when committed in a systematic manner or
on a large scale and instigated or directed by a Government or any
organization or group:
(a) Murder;
(b) Extermination;
(c) Torture;
(d) Enslavement;
(e) Persecution on political, racial, religious or ethnic grounds;
(f) Institutionalized discrimination on racial, ethnic or religious grounds
involving the violation of fundamental human rights and freedoms and
resulting in seriously disadvantaging a part of the population;
(g) Arbitrary deportation or forcible transfer of population;
(h) Arbitrary imprisonment;
(i) Forced disappearance of persons;
(j) Rape, enforced prostitution and other forms of sexual abuse;
(k) Other inhumane acts which severely damage physical or mental integrity,
health or human dignity, such as mutilation and severe bodily harm".
63. The Belgian legislation of 1999 asserts a universal jurisdiction over
acts broadly defined as "grave breaches of international humanitarian law",
and the list is a compendium of war crimes and the Draft Codes of Offences
listing of crimes against humanity, with genocide being added. Genocide is
also included as a listed "crime against humanity" in the 1968 Convention on
the Non-Applicability of Statutes of Limitation to War Crimes and Crimes
against Humanity, as well as being included in the ICTY, ICTR and ICC
Statutes.
64. The arrest warrant issued against Mr. Yerodia accuses him both of war
crimes and of crimes against humanity. As regards the latter, charges of
incitement to racial hatred, which are said to have led to murders and
lynchings, were specified. Fitting of this charge within the generally
understood substantive context of crimes against humanity is not without its
problems. "Racial hatred" would need to be assimilated to "persecution on
racial grounds", or, on the particular facts, to mass murder and
extermination. Incitement to perform any of these acts is not in terms
listed in the usual definitions of crimes against humanity, nor is it
explicitly mentioned in the Statutes of the ICTY or the ICTR, nor in the
Rome [p 83] Statute for the ICC. However, Article 7 (1) of the ICTY and
Article 6 (1) of the ICTR do stipulate that
"any person who planned, instigated, ordered, committed or otherwise aided
or abetted in the planning, preparation or execution of a crime referred to
[in the relevant articles: crimes against humanity being among them] shall
be individually responsible for the crime".
In the Akayesu Judgment (96-4-T) a Chamber of the ICTR has held that
liability for a crime against humanity includes liability through
incitement to commit the crime concerned (paras. 481-482). The matter is
dealt with in a comparable way in Article 25 (3) of the Rome Statute.
65. It would seem (without in any way pronouncing upon whether Mr. Yerodia
did or did not perform the acts with which he is charged in the warrant)
that the acts alleged do fall within the concept of "crimes against
humanity" and would be within that small category in respect of which an
exercise of universal jurisdiction is not precluded under international
law.
***
66. A related point can usefully be dealt with at this juncture. Belgium
contended that, regardless of how international law stood on the matter of
universal jurisdiction, it had in fact exercised no such jurisdiction. Thus,
according to Belgium, there was neither a violation of any immunities that
Mr. Yerodia might have, nor any infringement of the sovereignty of the
Congo. To this end, Belgium, in its Counter-Memorial, observed that immunity
from enforcement of the warrant was carefully provided for "representatives
of foreign States who visit Belgium on the basis of any official invitation.
In such circumstances, the warrant makes clear that the person concerned
would be immune from enforcement in Belgium" (Counter-Memorial of Belgium,
para. 1.12). Belgium further observed that the arrest warrant
"has no legal effect at all either in or as regards the DRC. Although the
warrant was circulated internationally for information by Interpol in June
2000, it was not the subject of a Red Notice. Even had it been, the legal
effect of Red Notices is such that, for the DRC, it would not have amounted
to a request for provisional arrest, let alone a formal request for
extradition." (Counter-Memorial of Belgium, para. 3.1.12.) [Translation by
the Registry.]
67. It was explained to the Court that a primary purpose in issuing an
international warrant was to learn the whereabouts of a person. Mr.
Yerodia's whereabouts were known at all times. [p 84]
68. We have not found persuasive the answers offered by Belgium to a
question put to it by Judge Koroma, as to what the purpose of the warrant
was, if it was indeed so carefully formulated as to render it unenforceable.
69. We do not feel it can be said that, given these explanations by
Belgium, there was no exercise of jurisdiction as such that could attract
immunity or infringe the Congo's sovereignty. If a State issues an arrest
warrant against the national of another State, that other State is entitled
to treat it as such — certainly unless the issuing State draws to the
attention of the national State the clauses and provisions said to vacate
the warrant of all efficacy. Belgium has conceded that the purpose of the
international circulation of the warrant was "to establish a legal basis for
the arrest of Mr. Yerodia . . . abroad and his subsequent extradition to
Belgium". An international arrest warrant, even though a Red Notice has not
yet been linked, is analogous to the locking-on of radar to an aircraft: it
is already a statement of willingness and ability to act and as such may be
perceived as a threat so to do at a moment of Belgium's choosing. Even if
the action of a third State is required, the ground has been prepared.
***
70. We now turn to the findings of the Court on the impact of the issue of
circulation of the warrant on the inviolability and immunity of Mr. Yerodia.
71. As to the matter of immunity, although we agree in general with what has
been said in the Court's Judgment with regard to the specific issue put
before it, we nevertheless feel that the approach chosen by the Court has to
a certain extent transformed the character of the case before it. By
focusing exclusively on the immunity issue, while at the same time bypassing
the question of jurisdiction, the impression is created that immunity has
value per se, whereas in reality it is an exception to a normative rule
which would otherwise apply. It reflects, therefore, an interest which in
certain circumstances prevails over an otherwise predominant interest, it is
an exception to a jurisdiction which normally can be exercised and it can
only be invoked when the latter exists. It represents an interest of its own
that must always be balanced, however, against the interest of that norm to
which it is an exception.
72. An example is the evolution the concept of State immunity in civil law
matters has undergone over time. The original concept of absolute immunity,
based on status (par in par em non habet imperium) has been replaced by that
of restrictive immunity; within the latter a distinction was made between
acta jure imperii and acta jure gestionis but immunity is granted only for
the former. The meaning of these two notions is not carved in stone,
however; it is subject to a continuously changing inter-[p 85]pretation
which varies with time reflecting the changing priorities of society.
73. A comparable development can be observed in the field of international
criminal law. As we said in paragraph 49, a gradual movement towards bases
of jurisdiction other than territoriality can be discerned. This slow but
steady shifting to a more extensive application of extraterritorial
jurisdiction by States reflects the emergence of values which enjoy an
ever-increasing recognition in international society. One such value is the
importance of the punishment of the perpetrators of international crimes.
In this respect it is necessary to point out once again that this
development not only has led to the establishment of new international
tribunals and treaty systems in which new competences are attributed to
national courts but also to the recognition of other, non-territorially
based grounds of national jurisdiction (see paragraph 51 above).
74. The increasing recognition of the importance of ensuring that the
perpetrators of serious international crimes do not go unpunished has had
its impact on the immunities which high State dignitaries enjoyed under
traditional customary law. Now it is generally recognized that in the case
of such crimes, which are often committed by high officials who make use of
the power invested in the State, immunity is never substantive and thus
cannot exculpate the offender from personal criminal responsibility. It has
also given rise to a tendency, in the case of international crimes, to
grant procedural immunity from jurisdiction only for as long as the
suspected State official is in office.
75. These trends reflect a balancing of interests. On the one scale, we find
the interest of the community of mankind to prevent and stop impunity for
perpetrators of grave crimes against its members; on the other, there is the
interest of the community of States to allow them to act freely on the
inter-State level without unwarranted interference. A balance therefore must
be struck between two sets of functions which are both valued by the
international community. Reflecting these concerns, what is regarded as a
permissible jurisdiction and what is regarded as the law on immunity are in
constant evolution. The weights on the two scales are not set for all
perpetuity. Moreover, a trend is discernible that in a world which
increasingly rejects impunity for the most repugnant offences, the
attribution of responsibility and accountability is becoming firmer, the
possibility for the assertion of jurisdiction wider and the availability of
immunity as a shield more limited. The law of privileges and immunities,
however, retains its importance since immunities are granted to high State
officials to guarantee the proper functioning of the network of mutual
inter-State relations, which is of paramount importance for a well-ordered
and harmonious international system. [p 86]
76. Such is the backdrop of the case submitted to the Court. Belgium claims
that under international law it is permitted to initiate criminal
proceedings against a State official who is under suspicion of having
committed crimes which are generally condemned by the international
community; and it contends that because of the nature of these crimes the
individual in question is no longer shielded by personal immunity. The Congo
does not deny that a Foreign Minister is responsible in international law
for all of his acts. It asserts instead that he has absolute personal
immunity from criminal jurisdiction as long as he is in office and that his
status must be assimilated in this respect to that of a Head of State
(Memorial of Congo, p. 30).
77. Each of the Parties, therefore, gives particular emphasis in its
argument to one set of interests referred to above: Belgium to that of the
prevention of impunity, the Congo to that of the prevention of unwarranted
outside interference as the result of an excessive curtailment of
immunities and an excessive extension of jurisdiction.
78. In the Judgment, the Court diminishes somewhat the significance of
Belgium's arguments. After having emphasized — and we could not agree more —
that the immunity from jurisdiction enjoyed by incumbent Ministers for
Foreign Affairs does not mean that they enjoy impunity in respect of any
crimes they might have committed (para. 60), the Court goes on to say that
these immunities do not represent a bar to criminal prosecution in certain
circumstances (para. 61). We feel less than sanguine about examples given
by the Court of such circumstances. The chance that a Minister for Foreign
Affairs will be tried in his own country in accordance with the relevant
rules of domestic law or that his immunity will be waived by his own State
is not high as long as there has been no change of power, whereas the
existence of a competent international criminal court to initiate criminal
proceedings is rare; moreover, it is quite risky to expect too much of a
future international criminal court in this respect. The only credible
alternative therefore seems to be the possibility of starting proceedings in
a foreign court after the suspected person ceases to hold the office of
Foreign Minister. This alternative, however, can also be easily forestalled
by an uncooperative government that keeps the Minister in office for an as
yet indeterminate period.
79. We wish to point out, however, that the frequently expressed conviction
of the international community that perpetrators of grave and inhuman
international crimes should not go unpunished does not ipso facto mean that
immunities are unavailable whenever impunity would be the outcome. The
nature of such crimes and the circumstances under which they are committed,
usually by making use of the State apparatus, makes it less than easy to
find a convincing argument for shielding the alleged perpetrator by granting
him or her immunity from criminal pro-cess. But immunities serve other
purposes which have their own intrinsic value and to which we referred in
paragraph 77 above. International law [p 87] seeks the accommodation of this
value with the fight against impunity, and not the triumph of one norm over
the other. A State may exercise the criminal jurisdiction which it has under
international law, but in doing so it is subject to other legal obligations,
whether they pertain to the non-exercise of power in the territory of
another State or to the required respect for the law of diplomatic relations
or, as in the present case, to the procedural immunities of State officiais.
In view of the worldwide aversion to these crimes, such immunities have to
be recognized with restraint, in particular when there is reason to believe
that crimes have been committed which have been universally condemned in
international conventions. It is, therefore, necessary to analyse carefully
the immunities which under customary international law are due to high State
officials and, in particular, to Ministers for Foreign Affairs.
80. Under traditional customary law the Head of State was seen as
personifying the sovereign State. The immunity to which he was entitled was
therefore predicated on status, just like the State he or she symbolized.
Whereas State practice in this regard is extremely scarce, the immu-nities
to which other high State officials (like Heads of Government and Ministers
for Foreign Affairs) are entitled have generally been considered in the
literature as merely functional. (Cf. Arthur Watts, "The Legal Position in
International Law of Heads of States, Heads of Governments and Foreign
Ministers", Recueil des cours de l'Académie de droit international de La
Haye, 1994, Vol. 247, pp. 102-103.)
81. We have found no basis for the argument that Ministers for Foreign
Affairs are entitled to the same immunities as Heads of State. In this
respect, it should be pointed out that paragraph 3.2 of the International
Law Commission's Draft Articles on Jurisdictional Immunities of States and
their Property of 1991, which contained a saving clause for the privileges
and immunities of Heads of State, failed to include a similar provision for
those of Ministers for Foreign Affairs (or Heads of Government). In its
commentary, the ILC stated that mentioning the privileges and immunities of
Ministers for Foreign Affairs would raise the issues of the basis and the
extent of their jurisdictional immunity. In the opinion of the ILC these
immunities were clearly not identical to those of Heads of State.
82. The Institut de droit international took a similar position in 2001 with
regard to Foreign Ministers. Its resolution on the Immunity of Heads of
State, based on a thorough report on all relevant State practice, states
expressly that these "shall enjoy, in criminal matters, immunity from
jurisdiction before the courts of a foreign State for any crime he or she
may have committed, regardless of its gravity". But the Institut, which in
this resolution did assimilate the position of Head of Government to that
of Head of State, carefully avoided doing the same with regard to the
Foreign Minister. [p 88]
83. We agree, therefore, with the Court that the purpose of the immunities
attaching to Ministers for Foreign Affairs under customary international
law is to ensure the free performance of their functions on behalf of their
respective States (Judgment, para. 53). During their term of office, they
must therefore be able to travel freely whenever the need to do so arises.
There is broad agreement in the literature that a Minister for Foreign
Affairs is entitled to full immunity during official visits in the exercise
of his function. This was also recognized by the Belgian investi-gating
judge in the arrest warrant of 11 April 2000. The Foreign Minister must also
be immune whenever and wherever engaged in the functions required by his
office and when in transit therefor.
84. Whether he is also entitled to immunities during private travels and
what is the scope of any such immunities, is far less clear. Certainly, he
or she may not be subjected to measures which would prevent effective
performance of the functions of a Foreign Minister. Detention or arrest
would constitute such a measure and must therefore be considered an
infringement of the inviolability and immunity from criminal process to
which a Foreign Minister is entitled. The arrest warrant of 11 April 2000
was directly enforceable in Belgium and would have obliged the police
authorities to arrest Mr. Yerodia had he visited that country for
non-official reasons. The very issuance of the warrant therefore must be
considered to constitute an infringement on the inviolability to which Mr.
Yerodia was entitled as long as he held the office of Minister for Foreign
Affairs of the Congo.
85. Nonetheless, that immunity prevails only as long as the Minister is in
office and continues to shield him or her after that time only for
"official" acts. It is now increasingly claimed in the literature (see for
example, Andrea Bianchi, "Denying State Immunity to Violators of Human
Rights", 46 Austrian Journal of Public and International Law (1994), pp.
227-228) that serious international crimes cannot be regarded as official
acts because they are neither normal State functions nor functions that a
State alone (in contrast to an individual) can perform (Goff, J. (as he then
was) and Lord Wilberforce articulated this test in the case of 1° Congreso
del Partido (1978) QB 500 at 528 and (1983) AC 244 at 268, respectively).
This view is underscored by the increasing realization that State-related
motives are not the proper test for determining what con-stitutes public
State acts. The same view is gradually also finding expression in State
practice, as evidenced in judicial decisions and opinions. (For an early
example, see the judgment of the Israel Supreme Court in the Eichmann case;
Supreme Court, 29 May 1962, 36 International Law Reports, p. 312.) See also
the speeches of Lords Hutton and Phillips of Worth Matravers in R. v. Bar
tie and the Commissioner of Police for the Metropolis and Others, ex parte
Pinochet ("Pinochet III"); and of Lords Steyn and Nicholls of Birkenhead in
"Pinochet I", as well as the
[p 89] judgment of the Court of Appeal of Amsterdam in the Bouterse case
(Gerechtshof Amsterdam, 20 November 2000, para. 4.2.)
***
86. We have voted against paragraph (3) of the dispositif for several
reasons.
87. In paragraph (3) of the dispositif, the Court "[f]inds that the Kingdom
of Belgium must, by means of its own choosing, cancel the arrest warrant of
11 April 2000 and so inform the authorities to whom that warrant was
circulated". In making this finding, the Court relies on the proposition
enunciated in the Factory at Chorzow case pursuant to which "reparation
must, as far as possible, wipe out all the consequences of the illegal act
and re-establish the situation which would . . . have existed if that act
had not been committed" (P.C.I.J., Series A. No. 17, p. 47). Having
previously found that the issuance and circulation of the warrant by Belgium
was illegal under international law, the Court concludes that it must be
withdrawn because "the warrant is still extant, and remains unlawful,
notwithstanding the fact that Mr. Yerodia has ceased to be Minister for
Foreign Affairs".
88. We have been puzzled by the Court's reliance on the Factory at Chorzow
case to support its finding in paragraph (3) of the dispositif. It would
seem that the Court regards its order for the cancellation of the warrant as
a form of restitutio in integrum. Even in the very different cir-cumstances
which faced the Permanent Court in the Factory at Chorzow case, restitutio
in the event proved impossible. Nor do we believe that restoration of the
status quo ante is possible here, given that Mr. Yerodia is no longer
Minister for Foreign Affairs.
89. Moreover — and this is more important — the Judgment suggests that what
is at issue here is a continuing illegality, considering that a call for the
withdrawal of an instrument is generally perceived as relating to the
cessation of a continuing international wrong (International Law Commission,
Commentary on Article 30 of the Articles of State Responsibility, A/56/10
(2001), p. 216). However, the Court's finding in the instant case that the
issuance and circulation of the warrant was illegal, a conclusion which we
share, was based on the fact that these acts took place at a time when Mr.
Yerodia was Minister for Foreign Affairs. As soon as he ceased to be
Minister for Foreign Affairs, the illegal consequences attaching to the
warrant also ceased. The mere fact that the warrant continues to identify
Mr. Yerodia as Minister for Foreign Affairs changes nothing in this regard
as a matter of international law, although it may well be that a misnamed
arrest warrant, which is all it now is, may be deemed to be defective as a
matter of Belgian domestic law; but that [p 90] is not and cannot be of
concern to this Court. Accordingly, we consider that the Court erred in its
finding on this point.
(Signed) Rosalyn Higgins.
(Signed) Pieter Kooijmans.
(Signed) Thomas Buergenthal.
[p 91]
SEPARATE OPINION OF JUDGE REZEK
[Translation ]
1. I am convinced that I am in the process of writing a dissenting opinion,
even though it must be classified as a separate opinion because I voted in
favour of the entire operative part of the Judgment. Like the majority of
Members of the Court, I fully concur with the operative part, because I find
the treatment of the question of immunity to be in conformity with the law
as it now stands. I do, however, regret that no majority could be found to
address the crucial aspect of the problem before the Court.
2. No immunity is absolute, in any legal order. An immunity must necessarily
exist within a particular context, and no subject of law can enjoy immunity
in the abstract. Thus, an immunity might be available before one national
court but not before another. Similarly, an immunity might be effective in
respect of domestic courts but not of an international one. Within a given
legal order, an immunity might be relied upon in relation to criminal
proceedings but not to civi proceedings, or vis-à-vis an ordinary court but
not a special tribunal.
3. The question of jurisdiction thus inevitably precedes that of immunity.
Moreover, the two issues were debated at length by the Parties both in their
written pleadings and in oral argument. The fact that the Congo confined
itself in its final submissions to asking the Court to render a decision
based on its former Minister's immunity vis-à-vis the Belgian domestic court
does not justify the Court's disregard of an inescapable premise underlying
consideration of the issue o" immunity. Here, the point is not to follow the
order in which the issues were submitted to the Court for consideration but
rather to respect the order which a strictly logical approach requires.
Otherwise, we are impelled towards a situation where the Court is deciding
whether or not there would be immunity in the event that the Belgian courts
were to have jurisdiction . . .
4. By ruling first on the jurisdictional issue, the Court would have had the
opportunity to point out that domestic criminal jurisdiction based [p 92]
solely on the principle of universal justice is necessarily subsidiary in
nature and that there are good reasons for that. First, it is accepted that
no forum is as qualified as that of the locus delicti to see a criminal
trial through to its conclusion in the proper manner, if for no other
reasons than that the evidence lies closer to hand and that that forum has
greater knowledge of the accused and the victims, as well as a clearer
appreciation of the full circumstances surrounding the offence. It is for
political rather than practical reasons that a number of domestic systems
rank, immediately after the principle of territoriality, a basis of criminal
jurisdiction of a different kind, one which applies irrespective of the
locus delicti: the principle of the defence of certain legal interests to
which the State attaches particular value: the life and physical integrity
of the sovereign, the national heritage, good governance.
5. With the exception of these two basic principles, complementarity is
becoming the rule: in most countries, criminal proceedings are possible on
the basis of the principles of active or passive nationality where crimes
have been committed abroad by or against nationals of the forum State, but
on condition that those crimes have not been tried elsewhere, in a State
where criminal jurisdiction would more naturally lie, and provided that the
accused is present on the territory of the forum State, of which either he
himself or his victims are nationals.
6. In no way does international law as it now stands allow for activist
intervention, whereby a State seeks out on another State's territory, by
means of an extradition request or an international arrest warrant, an
individual accused of crimes under public international law but having no
factual connection with the forum State. It required considerable
presumption to suggest that Belgium was "obliged" to initiate criminal
proceedings in the present case. Something which is not permitted cannot, a
fortiori, be required. Even disregarding the question of the accused's
immunity, the Respondent has been unable to point to a single other State
which has in similar circumstances gone ahead with a public prosecution. No
"nascent customary law" derives from the isolated action of one State; there
is no embryonic customary rule in the making, notwithstanding that the
Court, in addressing the issue of jurisdiction, acceded to the Respondent's
request not to impose any restraint on the formative process of the law.
7. Article 146 of the Fourth Geneva Convention of 1949, on the protection
of civilian persons in time of war, an article which also appears in the
other three 1949 Conventions, is, of all the norms of current treaty law,
the one which could best support the Respondent's position founding the
exercise of criminal jurisdiction solely on the basis of the principle of
universal jurisdiction. That provision obliges States to search for and
either hand over or try individuals accused of the crimes defined by the
relevant Convention. However, quite apart from the fact that the present
case does not come within the scope, as strictly defined, of the 1949
Con-[p 93]ventions, we must also bear in mind, as Ms Chemillier-Gendreau
recalled in order to clarify the provision's meaning, the point made by one
of the most distinguished specialists in international criminal law (and in
the criminal aspects of international law), Professor Claude Lombois:
"Wherever that condition is not put into words, it must be taken to be
implied: how could a State search for a criminal in a territory other than
its own? How could it hand him over if he were not present in its territory?
Both searching and handing over presuppose coercive acts, linked to the
prerogatives of sovereign authority, the spatial limits of which are defined
by the territory."FN1
------------------------------------------------------------------------------------------------------------
FN1
CR 2001/6, p. 31.
------------------------------------------------------------------------------------------------------------
8. It is essential that all States ask themselves, be ore attempting to
steer public international law in a direction conflicting with certain
principles which still govern contemporary international relations, what the
consequences would be should other States, and possibly a large number of
other States, adopt such a practice. Thus it was apt for the Parties to
discuss before the Court what the reaction of some European countries would
be if a judge in the Congo had accused their leaders of crimes purportedly
committed in Africa by them or on their ordersFN2.
---------------------------------------------------------------------------------------------------------------------
FN2
CR 2001/6, p. 28 (Ms Chemillier-Gendreau) ; CR 2001/9. pp. 12-13 (Mr. Eric
David).
---------------------------------------------------------------------------------------------------------------------
9. An even more pertinent scenario could serve as counterpoint to the
present case. There are many judges in the southern hemisphere, no less
qualified than Mr. Vandermeersch, and, like him, imbued with good faith and
a deep attachment to human rights and peoples' rights, who would not
hesitate for one instant to launch criminal proceedings against various
leaders in the northern hemisphere in relation to recent military episodes,
all of which have occurred north of the equator. Their knowledge of the
facts is no less complete, or less impartial, than the knowledge which the
court in Brussels thinks it possesses about events in Kinshasa. Why do these
judges show restraint? Because they are aware that international law does
not permit the assertion of criminal jurisdiction in such circumstances.
Because they know that their national Governments, in light of this legal
reality, would never support such action at international level. If the
application of the principle of universal jurisdiction does not presuppose
that the accused be present on the territory of the forum State,
co-ordination becomes totally impossible, leading to the collapse of the
international system of co-operation for the prosecution of crimeFN3. It is
important that the domestic treatment of issues of this kind, and hence the
conduct of the authorities of each State, should accord with the notion of a
decentralized international community, founded on the principle of the
equality of its members and necessarily requiring the [p 94] co-ordination
of their efforts. Any policy adopted in the name of human rights but not in
keeping with that discipline threatens to harm rather than serve that cause.
---------------------------------------------------------------------------------------------------------------------
FN3
As regards the current status of the principle of universe 1 jurisdiction,
note that the States which negotiated the Rome Treaty avoided extending this
principle to the jurisdiction of the future International Criminal Court.
---------------------------------------------------------------------------------------------------------------------
10. In my view, if the Court had first considérée the question of
jurisdiction, it would have been relieved of any need to rule on the
question of immunity. I do in any event adhere to the conclusions of the
majority of my colleagues on this point. I find that under the facts and
circumstances of the present case the Belgian domestic court lacks
jurisdiction to conduct criminal proceedings, in the absence of any basis
of jurisdiction other than the principle of universal jurisdiction and
failing, in support of that principle, the presence on Belgian territory of
the accused, whom it would be unlawful to force to appear. But I believe
that, even on the assumption that the Belgian judicial authorities did have
jurisdiction, the immunity enjoyed by the Congo's Minister for Foreign
Affairs would have barred both the initiation of criminal proceedings and
the circulation of the international arrest warrant by the judge, with
support from the Belgian Government.
(Signed; Francisco Rezek. [p 95]
DISSENTING OPINION OF JUDGE AL-KHASAWNEH
1. As a general proposition it may be said without too much fear of
contradiction that the effective conduct of diplomacy — the importance of
which for the maintenance of peaceful relations among States needs hardly to
be demonstrated — requires that those engaged in such conduct be given
appropriate immunities from — inter alia — criminal proceedings before the
courts of other States. The nature and extent of such immunities has been
clarified in the case of diplomatic representatives in the 1961 Vienna
Convention, as well as in extensive jurisprudence since the adoption of that
Convention. By contrast, and this is not without irony, the nature and
extent of immunities enjoyed by Foreign Ministers is far from clear, so much
so that the ILC Special Rapporteur on Jurisdictional Immunities of States
and Their Property expressed the opinion that the immunities of Foreign
Ministers are granted on the basis of comity rather than on the basis of
established rules of international law. To be sure the Convention on Special
Missions — the status of which as a reflection of customary law is however
not without controversy — covers the immunities of Foreign Ministers who are
on official mission, but reserves the extent of those immunities under the
unhelpful formula:
"The Head of the Government, the Minister for Foreign Affairs and other
persons of high rank, when they take part in a special mission of the
sending State, shall enjoy in the receiving State or in a third State, in
addition to what is granted by the present Conven-tion, the facilities,
privileges and immunities accorded by international law." (Art. 21, para.
2.) [p 96]
Nor is the situation made any clearer by the total absence of precedents
with regard to the immunities of Foreign Ministers from criminal process.
What is sure however is that the position of Foreign Ministers cannot be
assimilated to diplomatic representatives for in the case of the latter the
host State has a discretion regarding their accreditation and can also
declare a representative persona non grata, which in itself constitutes some
sanction for wrongful conduct and more importantly opens the way — assuming
good faith of course — for subsequent prosecution in his/her home State. A
Minister for Foreign Affairs accused of criminal conduct — and for that
matter criminal conduct that infringes the interests of the community of
States as a whole in terms of the gravity of the crimes he is alleged to
have committed, and the importance of the interests that the community seeks
to protect and who is furthermore not prosecuted in his home State — is
hardly under the same conditions as a diplomatic representative granted
immunity from criminal process.
2. If the immunities of a Minister for Foreign Affairs cannot be assimilated
to a diplomatic representative, can those immunities be established by
assimilating him to a Head of a State? Whilst a Foreign Minister is
undoubtedly an important personage of the State and represents it in the
conduct of its foreign relations, he does not, in any sense, personify the
State. As Sir Arthur Watts correctly puts it:
"heads of governments and foreign ministers, although senior and important
figures, do not symbolize or personify their States in the way that Heads of
States do. Accordingly, they do not enjoy in international law any
entitlement to special treatment by virtue of qualities of sovereignty or
majesty attaching to them personally." (A. Watts, "The Legal Position in
International Law of Heads of States, Heads of Governments and Foreign
Ministers", Recueil des cours de l'Académie de droit international de La
Haye, 1994, Vol. 247, pp. 102-103).
3. Moreover, it should not be forgotten that immunity is by definition an
exception from the general rule that man is responsible legally and morally
for his actions. As an exception, it has to be narrowly defined.
4. A Minister for Foreign Affairs is entitled to immunity from enforcement
when on official mission for the unhindered conduct of diplomacy would
suffer if the case was otherwise, but the opening of criminal
investigations against him can hardly be said by any objective criteria to
con-stitute interference with the conduct of diplomacy. A faint-hearted or
ultra-sensitive Minister may restrict his private travels or feel discomfort
but this is a subjective element that must be discarded. The warrant [p 97]
issued against Mr. Yerodia goes further than a mere opening of
investigation and may arguably be seen as an enforcement measure but it
contained express language to the effect that it was not to be enforced if
Mr. Yerodia was on Belgian territory on an official mission. In fact press
reports — not cited in the Memorials or the oral pleadings — suggest that he
had paid a visit to Belgium after the issuance of the warrant and no steps
were taken to enforce it. Significantly also the circulation of the
international arrest warrant was not accompanied by a Red Notice requiring
third States to take steps to enforce it (which only took place after Mr.
Yerodia had left office) and had those States acted they would be doing so
at their own risk. A breach of an obligation presupposes the existence of an
obligation and in the absence of any evidence to suggest a Foreign Minister
is entitled to absolute immunity, I cannot see why the Kingdom of Belgium,
when we have regard to the terms of the warrant and the lack of an Interpol
Red Notice was in breach of its obligations owed to the Democratic Republic
of Congo.
5. A more fundamental question is whether high State officials are entitled
to benefit from immunity even when they are accused of having committed
exceptionally grave crimes recognized as such by the international
community. In other words, should immunity become de facto impunity for
criminal conduct as long as it was in pursuance of State policy? The
Judgment sought to circumvent this morally embarrassing issue by recourse to
an existing but artificially drawn distinction between immunity as a
substantive defence on the one hand and immunity as a procedural defence on
the other. The artificiality of this distinction can be gleaned from the ILC
commentary to Article 7 of the Draft Code of Crimes against the Peace and
Security of Mankind, which states: "The absence of any procedural immunity
with respect to prosecution or punishment in appropriate judicial
proceedings" — and it should not be forgotten that the draft was intended
to apply to national or international courts — "is an essential corollary of
the absence of any substantive immunity or defence. It would be paradoxical
to prevent an individual from invoking his official position to avoid
responsibility for a crime only to permit him to invoke this same
consideration to avoid the consequences of this responsibility."
6. Having drawn this distinction, the Judgment then went on to postulate
four cases where, in an attempt at proving that immunity and impunity are
not synonymous, a Minister, and by analogy a high-ranking official, would be
held personally accountable:
(a) for prosecution in his/her home State;
(b) for prosecution in other States if his/her immunity had been waived; [p
98]
(c) after he/she leaves office except for official acts committed while in
office;
(d) for prosecution before an international court.
This paragraph (Judgment, para. 61) is more notable for the things it does
not say than for the things it does: as far as prosecution at home and
waiver are concerned, clearly the problem arises when they do not take
place. With regard to former high-ranking officials the question of impunity
remains with regard to official acts, the fact that most grave crimes are
definitionally State acts makes this more than a theoretical lacuna. Lastly
with regard to existing international courts their jurisdiction ratione
materiae is limited to the two cases of the former Yugoslavia and Rwanda and
the future international court's jurisdiction is limited ratione temporis by
non-retroactivity as well as by the fact that primary responsibility for
prosecution remains with States. The Judgment cannot dispose of the problem
of impunity by referral to a prospective interna-tional criminal court or
existing ones.
7. The effective combating of grave crimes has arguably assumed a jus cogens
character reflecting recognition by the international community of the vital
community interests and values it seeks to protect and enhance. Therefore
when this hierarchically higher norm comes into conflict with the rules on
immunity, it should prevail. Even if we are to speak in terms of
reconciliation of the two sets of rules, this would suggest to me a much
more restrictive interpretation of the immunities of high-ranking officials
than the Judgment portrays. Incidentally, such a restrictive approach would
be much more in consonance with the now firmly established move towards a
restrictive concept of State immunity, a move that has removed the bar
regarding the submission of States to jurisdiction of other States often
expressed in the maxim par in parem non habet imperium. It is difficult to
see why States would accept that their conduct with regard to important
areas of their development be open to foreign judicial proceedings but not
the criminal conduct of their officials.
8. In conclusion, this Judgment is predicated on two faulty premises:
(a) that a Foreign Minister enjoys absolute immunity from both jurisdiction
and enforcement of foreign States as opposed to only functional immunity
from enforcement when on official mission, a proposition which is neither
supported by precedent, opinio juris, legal logic or the writings of
publicists;
(b) that as international law stands today, there are no exceptions to the
immunity of high-ranking State officials even when they are accused of grave
crimes. While, admittedly, the readiness of States and municipal courts to
admit of exceptions is still at a very nebulous stage of development, the
situation is much more fluid than the [p 99] Judgment suggests. I believe
that the move towards greater personal accountability represents a higher
norm than the rules on immunity and should prevail over the latter. In
consequence, I am unable to join the majority view.
(Signed) Awn Al-Khasawneh.
[p 100]
SEPARATE OPINION OF JUDGE BULA-BULA
[Translation ]
1. Given that the landmark Judgment of 14 February 2002 declares the law and
settles the dispute between the Democratic Republic of the Congo
(hereinafter "the Congo") and the Kingdom of Belgium (hereinafter
"Belgium"); that this judicial decision is without precedent in the field
and codifies and develops contemporary international law; and that the Court
has thus imposed the force of law upon the law of force within the
"international community" which it has been at pains to establish over the
years: I fully and unreservedly support the entire operative part of the
Judgment.
2. I would nonetheless like to emphasize here other grounds of fact and law
which seem to me to supplement and strengthen this collective decision. My
opinion is also justified by the particular duty incumbent upon me in my
capacity as judge ad hoc. An "opinion" does not necessarily obey rigid
rules. Doubtless it must not address questions which bear no relation to any
part of the Judgment. Subject to this, the traditional practice would seem
to be characterized by its freedom. Not only does the length of opinions
sometimes exceed that of the Judgment itselfFN1, but also [p 101] they can
be written with a variety of aims in viewFN2. Thus it is open to me, without
carrying matters to excess, to develop my argument to a reasonable extent.
On the one hand, it seems to me that Tie summary version of the facts
presented by the opposing Parties reveals only the visible face of the
iceberg. It permits a superficial reading of a case forming part of a far
wider dispute. On the other, it was in part the immediate circumstances as
thus presented to it which led the Court not to examine in depth the
fundamental issue of the independence of the Congo, Belgium's former and
sole colony, vis-à-vis the latter. The reference to sovereign equality,
successively belaboured both at the provisional measures phase and then at
the merits stage by two of Congo's counsel, both members of the Government,
is a call to examine the matter in depth. It is repeated in the final
submissions. And it surely underlies the choice of judges ad hoc, first by
the Respondent, then by the Applicant!
---------------------------------------------------------------------------------------------------------------------
FN1 Compare the Judgment of 5 February 1970 in the case concerning the
Barcelona Traction,Light and Power Company, Limited (49 pages) with the
opinions of Judges Ammoun (48 pages). Tanaka (47 pages), Fitzmaurice (50
pages) and Jessup (61 pages); the Advisory Opinion of 21 June 1971 in the
South West Africa case (43 pages) with the opinion of Judge Fitzmaurice (103
pages); the Judgment of 27 June 1986 in the case concerning Military und
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States
of America) (137 pages). with the opinion of Judge Schwebel (269 pages); the
Judgment of 16 June 1992 in the case concerning Certain Phosphate Lands in
Nauru (Nauru v. Australia) (30 pages) with the opinion of Judge Shahabuddeen
(31 pages); the Judgment of 3 June 1993 in the case concerning Maritime
Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway)
(41 pages) with the opinion of Judge Shahabuddeen (81 pages): the Judgment
of 24 February 1982 in the case concerning the Continental Shelf
(Tunisia/Libyan Arab Jamahiriya)( 77 pages) with the opinion of Judge Oda (
21 pages); the Judgment of 12 December 1996 in the case concerning Oil
Platforms (Islamic Republic of Iran v. UnitedStates of America) (19 pages)
with the opinion of Judge Shahabuddeen (20 pages).
FN2 See on this point, Charles Rousseau. Droit international public. Vol. V.
"Les rapports conflictuels", 1983, p. 463.
---------------------------------------------------------------------------------------------------------------------
3. In doctrine, judges ad hoc have the particular duty of contributing to an
objective and impartial establishment of the facts and of presenting the
conception of the law held by each party to the disputeFN3. In Judge
Lauterpacht's view, an ad hoc judge has an obligation to
---------------------------------------------------------------------------------------------------------------------
FN3Nguyen
Quoc Dinh, Patrick Daillier and Alain Pellet, Droit international public,
1999, p. 855. para. 541 : E:. McWhinney. Les Nations Unies et la formation
du droit. 1986,
p. 150.
---------------------------------------------------------------------------------------------------------------------
"endeavour to ensure that, so far as is reasonable, every relevant argument
in favour of the party that has appointed him has been fully appreciated in
the course of collegial consideration and, ultimately, is reflected —
though not necessarily accepted — in any separate or dissenting opinion that
he may write"FN4.
------------------------------------------------------------------------------------------------------------
FN4Judge Lauterpacht, separate opinion appended to the Order of 17 December
1997 in
the case concerning Application of the Convention on the Prevention und
Punishment of
the Crime of Genocide (Croatia v. Yugoslavia). I.C.J. Reports 1997, p. 278.
------------------------------------------------------------------------------------------------------------
4. Fulfilment of such an obligation does not in any sense assimilate a judge
ad hoc to a representative of a StateFN5. Further, his is in no sense a
national representation but a "national presence"'FN6, which is, moreover, a
permanent one for the permanent members of the Security Council. J. G.
Merrills takes the view that the institution of judge ad hoc "provides an
important link between the parties and the Court". In these circumstances,
"the institution of the ad hoc judge reflecting, as it does, 'the incidence
of metajuridical considerations in the functioning of international
adjudication' is perhaps still too useful to be dispensed with"FN7.
---------------------------------------------------------------------------------------------------------------------
FN5
See the communication of E. Lauterpacht, "The Role of ad hoc Judges", in
Increasing
the Effectiveness of the International Court of Justice. 1997. p. 374.
FN6 See the commentary of Krzystof Skubiszewski, ibid.. p. .378.
FN7 J. G. Merrills. International Dispute Settlement ,3 rd ed.. 1998. p.
139.
---------------------------------------------------------------------------------------------------------------------
5. Naturally I am in agreement, in my capacity as judge ad hoc, with [p 102]
"at least the basic stance of the appointing State (jurisdiction,
admissibility, fundamentals of the merits)"FN8. Otherwise, how could I have
accepted the proposed appointment? My consent of course means that "there is
a certain understanding ... for the case that has been put in front of
him"FN9. Moreover, it seemed to me helpful, as judge ad hoc, to give an
opinion in both of the phases undergone by this caseFN10, thus, in my view,
making the reasoning more readily understandable.
---------------------------------------------------------------------------------------------------------------------
FN8See
the commentary of Krzystof Skubiszewski, Increasing
FN9 See the contribution of Hugh W. A. Thirlway, ibid., p. 393.
FN10 According to A. Pellet, ibid., "judges ad hoc are very appreciated if
they express their opinions during the various phases of the case", p. 395.
---------------------------------------------------------------------------------------------------------------------
6. Covering a great deal of ground, and out of regard for the Court and its
working methods, I will confine myself to recalling very concisely, from
Belgian, Congolese, transnational and international sources, certain factual
data, of both indirect and direct relevance, which make up the background to
the case concerning the Arrest Warrant of 11 April 2000. Through these brief
references, I seek both to exorcize the past and to foster between the
Applicant and the Respondent, States intimately linked by history, effective
implementation of the principle of sovereign equality between States.
7. Addressing the Congolese people at Kinshasa on 30 June 1991, forty-first
anniversary of the country's independence, the Belgian Prime Minister
declared:
"You are an important part of our past. Special, particularly strong links
unite our two countries. Links based on a relationship marked by pain, by
promise, by prudence . . What unites us — you know it, we know it — is
reflected in the external mirror constituted by our good or our bad
conscience, the boundary between good and evil, between good intentions and
blunders ... I wish to say to the Congolese people, wheresoever they may be
on this vast territory, that we are aware of their pain and of the suffering
they have endured."
Rarely have such views been publicly expressed by the head of the
government of a former colonial power four decades after decolonization.
Wrongly or rightly, it is perhaps in the circumstances of a very particular
act of decolonization, whose consequences are still with us today,
including in the present case, that the justification for these views is to
be sought.
8. Rereading the account of the decolonization of the CongoFN11 [p 103]
prepared by one of the 40 or so political reconciliation conferencesFN12, we
learn the following:
---------------------------------------------------------------------------------------------------------------------
FN11
The tragic events which marked the decolonization of the Congo led the
United Nations to involve the Court. See S. Rosenne, "La Cour nternationale
de Justice en 1961", Revue générale de droit international public, 3rd
series. Vol. XXXIII, October-December 1962, No. 4. p. 703.
FN12 Known as the "Sovereign National Conference", the forum was held from
November 1991 to December 1992. It was organized by the then Government,
under pressure from its principal partners, including Belgium, and financed
by them.
---------------------------------------------------------------------------------------------------------------------
"Following his victory in the legislative elections, Patrice Emery Lumumba,
after consulting the main parties and political personalities at that time,
formed a Government.
On 23 June 1960, he obtained the confidence of Parliament, even before the
latter's election of Kasavubu as Head of State, thanks to the Lumumba
Party's majority.
Less than a week on from 30 June 1960, on 4 July, the army and police
mutinied. Following the provocative statement by General Janssens to the
military — 'after independence equals before independence' — the
disturbances worsened. Katanga proclaimed its secession on 11 July 1960 and
South Kasai its autonomy on 8 August 1960. Territorial and military
administration collapsed and financial resourced dried up. The people's
sovereignty was under threat.
Despite the co-operation agreements signed between the Kingdom of Belgium
and the young Republic on 29 June 1960, the crisis was aggravated by the
untimely intervention of Belgian troops. Faced with this situation, on 15
July the Head of State Kasavubu, guarantor of territorial integrity, and
the Prime Minister and Minister of Defence, Lumumba, jointly signed a
telegram appealing for troops from the United Nations in New York ... as a
result of Belgian diplomatic manoeuvres, the United Nations hesitated to
intervene . . ."FN13
------------------------------------------------------------------------------------------------------------
FN13
Sovereign National Conference, Report of the Commission on Murders and
Viola-tions of Human Rights, pp. 18-19.
------------------------------------------------------------------------------------------------------------
9. Rightly or wrongly, the report also cites Belgium for its responsibility
in the removal from office of Prime Minister Lumumba:
"After our country had achieved independence . . . President Kasavubu and
Prime Minister Lumumba worked harmoniously together. They had even toured
Elisabethville together. I believe that the Belgians were against this
harmony. So they provoked this divisive tension ... I telephoned Lumumba to
tell him about it. He then contacted President Kasavubu. I thought they had
taken precautions against those manœuvres. I was surprised to hear on the
radio around 5 September 1960 of the dismissal of Lumumba and on the same
day of that of Kasavubu by Lumumba."FN14
------------------------------------------------------------------------------------------------------------
FN14
Ibid., statement of Mr. Cleophas Kamitatu, then Provincial President of
Leopoldville (Kinshasa).
------------------------------------------------------------------------------------------------------------
10. According to the report: "The Belgian ambassador in Leopoldville [p 104]
was behind the creation of the autonomous State of South Kasai. By 8 August
1960, it was a fait accompli."FN15. In regard to the murder of Prime
Minister Lumumba and his companions, the report inter alia states: "On 16
January 1961 there was a meeting it Ndjili airport. Those present included
Messrs. Nendaka, Damien Kandolo, Ferdinand Kazadi, Lahaye and the Sabena
representatives." A witness, Mr. Gabriel Kitenge, stated the following:
---------------------------------------------------------------------------------------------------------------------
FN15
Op cit. footnote 13 supra, p. 26.
---------------------------------------------------------------------------------------------------------------------
"When the aircraft arrived, he recognized only one of the three packages,
Mr. Lumumba, who was covered in bruises and trying to cling to a wall. All
three were unloaded alive at Elisabethville. Soon afterwards they were taken
to the villa Brouwez a few kilometres from the airport, where they had a
talk with Messrs. Godefroid Munongo and Jean-Baptiste Kibwe, who were
together with some white soldiers . . .
They were executed in the bush a kilometre from the villa. Under the command
of a white officer, the black soldiers shot Okito first and finished off
with Lumumba.
Those present were: Messrs. Munongo, Kitenge, Sapwe, Muke, four Belgians ...
On the orders of a senior Belgian police officer, the three prisoners were
shot one after the other and thrown into a common grave which had already
been dug." FN16
------------------------------------------------------------------------------------------------------------
FN16
Ibid.. p. 40.
------------------------------------------------------------------------------------------------------------
11. The conference report concluded with a proposal for "the opening of
proceedings". It stated:
"The murders of Lumumba, Mpolo and Okito, although not falling within the
categories currently defined by the United Nations, should be assimilated to
crimes against humanity, for these were acts of persecution and murder for
political reasons."
This proposal may thus stimulate reflection on the part of writers who note
uncertainties in the notion of crime against humanityFN17. The conference
established responsibility on the part of a number of persons both natural
and legal, domestic and foreign. Of whom, for purposes of this case it
suffices to note the following:
---------------------------------------------------------------------------------------------------------------------
FN17
See G. Abi Saab, "International Criminal Tribunals and the Development of
International Humanitarian and Human Rights Law". Liber Aticorum Judge
Mohammed Bedjaoui, 1999, p. 651. See also E. Roucounas, "Time Limitat ons
for Claims and Actions under International Law", ibid., pp. 223-240.
---------------------------------------------------------------------------------------------------------------------
"The Government of the Kingdom of Belgium as protecting power for having
failed to ensure bilateral security for an independence deliberately rushed
through by it in a perfunctory manner. The ambiguous nature of the Basic Law
is self-evicent. Despite the agreement of 29 June 1960, Belgium did not
provide the lawful authorities [p 105] established by it in the Congo with
the military and technical assistance which would have enabled the worst to
be avoided.
………………………………………………………………………………………………
The support of the Belgian Government for the secession of Katanga through
its official recognition as an independent State, with the opening of a
Consulate-General, represents an offence against the rights of the Congolese
people. Following the intervention of the Belgian Minister for African
Affairs, Mr. Harold Aspremont, President Tshombe, on 16 January 1961,
accepted transfer of the packages."FN18
------------------------------------------------------------------------------------------------------------------------------------------------------------------
FN18
Sovereign National Conference, Report of the Commission on Murders and
Violations of Human Rights, pp. 55-56. " Ibid.
------------------------------------------------------------------------------------------------------------------------------------------------------------------
Reacting, as it were, in advance to the respondert State, the conference
decided to:
"Alert international opinion so that the very persons who teach us respect
for human rights and the rights of the citizen contained in the United
Nations Declaration may not in future repeat the same mistakes, which do not
sit well with world ooinion."FN19
------------------------------------------------------------------------------------------------------------
FN19
Ibid.
------------------------------------------------------------------------------------------------------------
12. Six years earlier, the transnational group known as "The Permanent
Court of the Peoples [tribunal permanent des peuples]", called upon to
deliver a ruling on the case of Zaire (Congo) stated:
"When the right of a people freely to pursue its economic, social and
cultural development is treated with contempt by a State represented by
collaborationist oligarchies, hostages or agents of foreign powers,
installed or maintained in place by its will, that State cannot constitute a
cover for the extinction of a people's right to self-determination."FN20
------------------------------------------------------------------------------------------------------------
FN20
See Judgment of Permanent Court of the Peoples, Rotterdam, 20 September
1982,p. 29.
------------------------------------------------------------------------------------------------------------
Thus that "court" held:
"In such a case, we are faced with a phenomenon essentially similar to the
colonial situation opposing an enslaved people to a foreign power, with the
government authorities playing the role of overseer, seemingly differing
little in their functions from the former colonial agents (viceroys,
governors, préfets, etc.) or local satraps in the service of the
métropole."FN21
------------------------------------------------------------------------------------------------------------
FN21
Ibid.
------------------------------------------------------------------------------------------------------------
The jury further stated:
"The violation of the right of the Zairian people perpetrated by an
alienated State raises the problem of the responsibility of other [p 106]
governments, and in particular of those who defend the interests for whose
benefit the Zairian people are deprived of their sovereignty."FN22
------------------------------------------------------------------------------------------------------------
FN22
Op. cit. footnote 20 supra, p. 30.
------------------------------------------------------------------------------------------------------------
The jury thus established, inter alia, "the responsibility ... of
Belgium"FN23. The operative part of the judgment finds that a number of the
charges "constitute crimes against the Zairian people"FN24. Examining inter
alia the legal force of the decisions of this "coirt of public opinion",
some writers have concluded that "such a condemnation is a first step
towards reparation"FN25.
---------------------------------------------------------------------------------------------------------------------
FN23
Ibid., p. 32.
FN24 Ibid., p. 34
FN25 B. H. Weston. R. A. Falk and A. d'Amato, International Law and World
Order, 2nd ed.. p. 1286.
---------------------------------------------------------------------------------------------------------------------
13. More recently, the United Nations Commission responsible for
investigating the illegal exploitation of the natural resources of the Congo
cited, among others, Belgian companies in occupied territories. Could it not
be that the purported "neutrality" of the local Belgian authorities in the
face of the armed aggressionFN26 suffered by the Congo since 2 August 1998
is being undermined by the participation of private groups or Belgian
parastatal entities in the looting of the natural resources of the Congo, as
established by a United Nations investigationFN27? All the more so in that
the investigation has established a lirk between that illegal exploitation
and the continuation of the warFN28.
---------------------------------------------------------------------------------------------------------------------
FN26
Within the meaning of Article 51 of the United Nations Charter, as further
defined by Article 3 of resolution 3314 of 14 December 1974 and confirmed as
a rule of customary law by the Judgment of the Court of 27 June 1986 in
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States of America), para. 195.
FN27 See Report of the Panel of Experts on the Illegal Exploitation of
Natural Resources and Other Forms of Wealth of the Democratic Republic of
the Congo. Those cited include the following Belgian companies: Cogem,
Muka-Enterprise and Transintra for cassiterite; Chimie Pharmacie, Cogea,
Tradement, Finiming Ltd., Cicle International, SpecialtyMetal, for coltan;
Soger, Sogem, Cogecom, Tradement, MDW, for cassiterite and coltan.Source:
http ://www.un.org/News/dh/latest/drcongo.htm.
FN28 See ibid., paras. 109 et seq. "Links between the exploitat on of
natural resources and the continuation of the conflict."
---------------------------------------------------------------------------------------------------------------------
14. The immediate circumstances which gave rise to the issue of the warrant
were amply debated by the Parties. It would be pointless to go over them
again. Nonetheless, there are pertinent questions raised by this case. Why
is it that virtually all of those charged before the Belgian courts,
including Mr. Abdulaye Yerodia Ndombasi, belong essentially to a political
tendency that was ousted in 1960 and, thanks to a variety of circumstances,
regained power in 1997? Why does the respondent State not exercise its
territorial jurisdiction by prosecuting Belgian companies established on its
territory suspected of illegal activities in areas of foreign occupation
within the Congo?
15. These are some of the facts emerging from a rapid survey covering more
than four decades whereby the respective conducts of the Parties to the
dispute before us may be judged. They should be compared with Bel-[p
107]gium's closing speech. Even as the respondent State brings its
peroration to a glowing close with an invocation of the democracy and human
rights which purportedly guided its conductFN29, at the same time it reopens
one of the most shameful pages in the history of decolonization. In the
1960s, it appeared to grant the Congo its independence while, with the right
hand, it was at the same time virtually ensuring the destabilization of that
sovereignty and of the new-born Congolese democracy. The author Joseph
Ki-Zerbo was able to write that, in the Congo, "independence was thrown like
a bone to the natives in order the better to exploit their divisions, . . .
the model for poisoned grants of independence"FN30.
---------------------------------------------------------------------------------------------------------------------
FN29
See Belgium's oral argument, CR 2001/11, pp. 17-18, paras. 8, 9 and 11.
FN30 Joseph Ki-Zerbo, Preface to Ahamadou A. Dicko's Journal d'une défaite.
Autour duréférendum du 28 Septembre 1958 en Afrique noire, 1992, p. X1V.
---------------------------------------------------------------------------------------------------------------------
16. One of the points hotly debated by the Parties is Mr. Ndombasi's current
loss of any governmental post. The Respondent relied on this fact in order
to secure dismissal of the case by the Court, while the Applicant contended
that it has no effect on the proceedings.
17. In my view, the argument deriving from the loss (and not the absence) of
any current governmental function on Mr. Ndombasi's part is morally
indecent. But the Court does not decide disputes on the basis of
international morality, so dear to Nicolas PolitsFN31. Legally, however,
this argument should rebound against the Respondent, who has raised a mere
corner of the veil over the cause of this situation, while exploiting its
effects — and only those effects — to the full. It is juridically improper
to seek to ground one's principal argument on a serious violation of
international law (exercise of a right of censorship over the composition
of the Congolese Government amounts to interference in the internal affairs
of another State), which aggravates the original infringement of the
criminal immunities and inviolability of the person of the Minister for
Foreign Affairs. The Applicant's written pleadings and oral arguments
(during both the "provisional" and the merits phase) denounced this fact and
were not effectively rebutted by the Respondent. The Court was witness to
this dismissal of a representative of the Congolese State, which occurred
not only after the matter had been referred to the Court (17 October 2000),
but, what is more, the demotion took place the day the hearings opened in
the provisional phase (20 November 2000), and Mr. Ndombasi left the
Government altogether not long afterwards (14 April 2001). Since that time
his reappointment, although constantly announced in the press, has been
resisted, apparently because of unlawful pressure exerted by the Respondent.
---------------------------------------------------------------------------------------------------------------------
FN31
Nicolas Politis, La morale internationale, 1943, p. 179.
---------------------------------------------------------------------------------------------------------------------
18. It is the duty of the Court, as guarantor of the integrity of
international lawFN32, to sanction this doubly unlawful conduct on the part
of the Respondent, denounced by the Applicant in its final submissions.
---------------------------------------------------------------------------------------------------------------------
FN32
Corfu Channel. I.C.J. Reports 1949. p. 35.
---------------------------------------------------------------------------------------------------------------------
[p 108]
19. There are two possible ways in which the notion of "organ responsible
for the integrity of international law" is generally understood. For some,
it involves a "duty to preserve the integrity cf law as a discipline —
distinct from considerations of politics, morality, expediency and so
on"FN33. In my view, it ought also to mean that the Court is under an
obligation to ensure respect for international law in its totality. As
regards the specific nature of the task of a judicial organ by comparison
with that of a political organ, such as the Security Council, there is
already plentiful case law on this point.
---------------------------------------------------------------------------------------------------------------------
FN33
See H. Mendelson, "Formation of International Law and the Observational
Standpoint", in connection with "The Formation of Rules of Customary
(General) International Law", International Law Association, Report of the
Sixty-Third Conference, Warsaw, August 21st to August 27th 1988, p. 944.
---------------------------------------------------------------------------------------------------------------------
20. I also share Manfred Lachs's view that "the Court is the guardian of
legality for the international community as a whole"FN34.
---------------------------------------------------------------------------------------------------------------------
FN34
See M. Lachs, separate opinion appended to the Order of 14 April 1992 in the
case concerning Questions of Interpretation and Application of the 1971
Montreal Convention arising from the Aerial Incident at Lockerbie ( Libyan
Arab Jamahiriya v. United Kingdom), I.C.J. Reports 1992. p. 26.
---------------------------------------------------------------------------------------------------------------------
21. It is difficult to see how the Court can focus its gaze so particularly
on Mr. Ndombasi's current loss of government office while closing its eyes
to the obvious reasons for that situation in the light of events which have
been sufficiently argued before it right from the start of the provisional
measures phase up to the closing of the merits phase. This is particularly
so in that the violation of the immunities in question is simply evidence of
a general disregard for the principle of sovereign equality of a State
decolonized by Belgium. On this point the Court made no mis-take. More than
once in its reasoning, in the politest of terms, it criticized the
Respondent's unlawful conduct.
22. Quite aside from the attention devoted by the Court to the argument
concerning the loss of official duties, made so much of by the author of
fundamentally unlawful conduct, there is the matter of the non-existent
legal effect which the Respondent seeks to infer from Mr. Ndombasi's new
situation. From the moment the immunities of the Minister for Foreign
Affairs were breached, the violation of international law was complete. And
the Congo began to insist — and continued to do so until the close of
argument — that the Court should find that its rights have been violated,
and that it be granted repartition accordingly. The Congo has never
believed, and has never asserted, that one of its citizens has been the
victim of a Belgian wrongful act. The Applicant has always been convinced,
and has always declared, that Belgium was acting against it as a sovereign
entity wishing to organize itself freely, including in the conduct of its
foreign relations by a Minister of its choosing. But it has suffered, and
continues to suffer, de facto interference resulting from the issue,
maintenance and circulation of the warrant, and from Belgium's attempts to
give greater effect to that warrant. [p 109]
23. The relevance of Mr. Ndombasi's loss of governmental responsibilities
lies in the glaring light it throws on Belgium's flagrant meddling in the
Congo's internal affairs. Further evidence of this can be found in the
identity of certain Congolese complainants, members of a Congolese
opposition political partyFN35, whose names the Respondent obstinately
refused to reveal to the Court for so-called "security" reasons. Whichever
way you look at it, this case clearly demonstrates t re Respondent's
interference in the Applicant's internal affairs. And, ultimately, the
serious disregard for the sovereign equality of States underlying the
violation of the immunities of the Minister for Foreign Affairs. The loss of
government office is of no relevance in relation to Mr. Ndombasi's personal
odyssey; he, strangely, unlike other accused Conge lese high officials, and
other foreign authorities, had this unprecedented warrant issued against him
as Minister for Foreign Affairs, charged with maintaining permanent contact
with the Congo's principal foreign partner.
---------------------------------------------------------------------------------------------------------------------
FN35
According to the Applicant, these are representatives of an opposition party
operating in Brussels! (See verbatim record of the public hearing of 22
November 2000, CR 2000/34, p. 20.) The Respondent, on the other hand, cites
"security reasons" to the Court (despite the fact that the Court can sit in
closed session) in order not to disclose the identity of the complainants of
Congolese nationality (see verbatim record of the public hearing of 21
November 2000, CR 2000/33, p. 23).
---------------------------------------------------------------------------------------------------------------------
24. So long as there shall exist the authentic, independent State of the
Congo, born of decolonization — not to be confused with the fictional State
entity calling itself "The Congo Free State", borne to the baptismal font by
the powers at BerlinFN36 — that debt will continue to exist. This is not a
debt due to one specific incumbent Government — a Government bound,
moreover, to pass on one day like every Government. What is at stake here is
a debt owed to the Congolese people, freely organized in a sovereign State
calling for its dignity to be respected.
---------------------------------------------------------------------------------------------------------------------
FN36
The 14 colonial powers meeting at Berlin (14 November 1884-26 February 1885)
accorded their endorsement to the colonial project of King Leopold II called
"Congo Free State".
---------------------------------------------------------------------------------------------------------------------
25. But dignity has no price. It is one of those intangible assets, on which
it is impossible to put a price in money terms. When a person, whether legal
or natural, gives up his dignity, he bses the essence of his natural or
legal personality. The dignity of the Congolese people, victim of the
neocolonial chaos imposed upon it on the morrow of decolonization, of which
the current tragic events largely represent the continued expression, is a
dignity of this kind.
26. The loss of office by one of its authorities could not put an end to the
unlawfulness of the Belgian warrant, any more than it could transform it
into a lawful act. To appreciate that the unlawfulness cannot be
extinguished as a result of Mr. A. Yerodia Ndombasi's loss of govern-ment
office, I give two examples. When a representative of a foreign State [p
110] is killed by the police in a particular countryFN37, that diplomat
ceases by the very fact of his death to hold office. Can it be claimed that
the unlawfulness of the act was extinguished by the death of the
representative of the foreign State? It seems to me that the unlawfulness
persists. Let us take another case. Suppose the diplomat was merely
seriously wounded. After being evacuated to his sending country, he is
declared unfit for diplomatic service. Can it be said that the unlawful act
has disappeared, since the victim of the assault no longer represents his
country abroad? I think not.
---------------------------------------------------------------------------------------------------------------------
FN37
This happened in Lomé (Togo) in October/November 19Ç-5, where a German
diplomat was killed by policemen at a roadblock in the early evening. The
incident caused a serious deterioration in relations between Germany and
Togo.
---------------------------------------------------------------------------------------------------------------------
27. The question of the lack of object of the Congolese claim could have
arisen if Belgium had adopted a diametrically opposite attitude, by showing
respect for the Congo's independence. It should have admitted its violation
of international law and then cancelled the warrant and hastened to request
the foreign countries to which it had circulated the instrument to discharge
it. It would then have informed the Congo of these various measures, which
would have been tarn amount to an expression of regret and an apology.
Nothing of the sort occurred. The Congo's claim thus retained its object in
full.
28. The Congo admits that "these requests differ to some extent from those
formulated in its Application instituting proceedings", given Mr. Ndombasi's
new situation. But it adds that, "since they are based on the same facts as
those referred to in the Application, this cannot pose any problem"FN38. The
Court has correctly confirmed its established practice of according the
Parties the freedom to refine their claim between the date of filing of the
Application instituting proceedings and the presentation of the final
submissions at the close of oral argument. Thus there is no basis for
criticism here, since these subsequent changes are based on the same facts
as those already cited in the initial claim.
---------------------------------------------------------------------------------------------------------------------
FN38
Memorial of the Democratic Republic of the Congo, p. 6 para. 8.
---------------------------------------------------------------------------------------------------------------------
29. Moreover, in accordance with the Court's settled jurisprudence, the
admissibility of the Congo's Application is to be assessed on "the only
relevant date", which is the date of its filing in the Registry of the
CourtFN39. It is irrelevant whether the Respondent might subsequently have
acted so as to empty the Application of its substance. The claim was already
filed as such on 17 October 2000. Furthermore, as its substance is based on
the violation of the Congo's sovereignty by the issue of the warrant, which
requires reparation, that substance remains intact.
---------------------------------------------------------------------------------------------------------------------
FN39
See the case concerning Questions of Interpretation and Application of the
1971 Montreal Convention arising from the Aerial Incident at Lockerbie
(Libyan Arab Jamahiriya v. United States of America ), I.C.J. Reports 1998.
p. 130, para. 43.
---------------------------------------------------------------------------------------------------------------------
30. The Respondent's attempt to transform the international judicial [p 111]
proceedings instituted and pursued by the Congo in its own right, following
the violation of the criminal immunities and inviolability of one of its
highest representatives, into the mere exercise of diplomatic protection of
one of its nationals deserves a polite dismissal calling for no further
comment on my part.
31. Did the Congo's final submissions preclude the Court from ruling on the
question of so-called universal jurisdiction'.
32. It is true that the Congo's "final submissions" make no mention whatever
of this question. They seek to have the Court enforce the "rule of
international customary law concerning the absolute inviolability and
immunity from criminal process of incumbent foreign ministers; in so doing
[the Respondent] violated the principle of sovereign equality among
States"FN40.
---------------------------------------------------------------------------------------------------------------------
FN40
See CR 2001/10, p. 26; emphasis added.
---------------------------------------------------------------------------------------------------------------------
33. The issue here is one of judicial procedure. Did the Applicant's
spectacular change of position on this point require the Court not to rule
on so-called universal jurisdiction in the operative part of its Judgment?
Most definitely. It would have been criticized for ruling ultra petita. That
is not the same as taking no collective position on the point. In any event,
in so far as the Judgment's reasoning failed to address this question, the
opinions would do so.
34. Moreover, of the 64 pages of the Congo's Memorial, 15 are devoted to
this questionFN41. At the oral proceedings, the Congo stated, through its
counsel, Professor Rigaux, that "tha: [was] an area of no interest to [it]",
even though it had raised it in its original ApplicationFN42. But,
battle-weary, or for reasons of litigation strategy, it allowed that the
Court might examine the
---------------------------------------------------------------------------------------------------------------------
FN41 Memorial of the Democratic Republic of the Congo, pp. 47-61.
FN42 See CR 2001/10, p. 11.
---------------------------------------------------------------------------------------------------------------------
"issues of international law raised by universal jurisdiction, but it will
not do so at the request of the Applicant: it will, in a sense, have the
issue forced upon it as a result of the defence strategy adopted by the
Respondent, since the Respondent appears to contend not only that it is
lawful to exercise such jurisdiction but that it is moreover obligatory to
do so, and therefore that the exercise of such jurisdiction can represent a
valid counterweight to the observance of immunities".
And counsel concludes:
"I accordingly believe that the Court will in any event be obliged to
adjudicate on certain aspects of universal jurisdiction, but I would stress
that this is not at the request of the Applicant, which is not directly
interested in the issue."FN43
------------------------------------------------------------------------------------------------------------
FN43
Ibid.; emphasis added.
------------------------------------------------------------------------------------------------------------
[p 112]
And Counsel then refers to its forthcoming submissions. For her part,
Professor Chemillier-Gendreau, another of the Congo's counsel, stated that:
"the extension of such jurisdiction to a case where the person concerned is
not within the territory has at present no confirmed legal basis, which is
very different from saying, as Professor David would have us say, that we no
longer challenge universal jurisdiction in absentia".
Congo's counsel continued:
"In the light of this case, Belgium would like the Court, by finding in
favour of a universal jurisdiction which possesses those broader bounds, to
intervene in the lawmaking process and thereby endorse the validity of its
policy."
She concluded:
"For our part, we contend that the point to which the Court should confine
its ruling in regard to universal jurisdiction is, as Professor Rigaux has
just said, its use where it infringes an immunity from jurisdiction of an
incumbent Minister for Foreign Affairs. And we then request the Court to
declare that its use in these circumstances, as embodied in Belgium's
action, is contrary to international law." FN44
------------------------------------------------------------------------------------------------------------
FN44
See CR 2001/10, p. 17; emphasis added.
------------------------------------------------------------------------------------------------------------
35. For its part, Belgium basically founded its defence strategy on
so-called universal jurisdiction, upon which its controversial statute and
disputed warrant are purportedly based. But, since the Congo ignored the
issue of such purported jurisdiction in its final submissions, Belgium
accordingly argued that the Court's jurisdiction was thus limited, pursuant
to the non ultra petita rule, solely to those points in dispute appearing in
the final submissions. The Respondent cited the Court's jurisprudenceFN45:
"It is the duty of the Court not only to reply to the questions as stated in
the final submissions of the parties, but also to abstain from deciding
points not included in those submissions.''FN46
---------------------------------------------------------------------------------------------------------------------
FN45
Case concerning Corfu Channel, Assessment of Amount of Compensation,
Judgment, I. C.J. Reports 1949. p. 249: case concerning Request for
Interpretation of the Judgment of 20 November 1950 in the Asylum Case,
Judgment, I.C.J. Reports 1950, p. 402.
FN46 Request for Interpretation of the Judgment of 20 November 1950 in the
Asylum Case. Judgment, IC.J. Reports 1950, p. 402; Counter-Memoria of
Belgium, paras. 0.25, 2.74, 2.79, 2.81. 10.2.
---------------------------------------------------------------------------------------------------------------------
36. In its oral argument, the Respondent also stated that it was
"reluctant, not because it has doubts as to the legality of its position or
the soundness of its arguments, but rather it would have preferred the
accusations against Mr. Yerodia Ndombasi to be dealt with by [p 113] the
competent authorities in the Democratic Republic of the Congo"FN47
------------------------------------------------------------------------------------------------------------
FN47
CR 2001/8, p. 8.
-----------------------------------------------------------------------------------------------------------.
It also asserted that "the principles of universal jurisdiction and the
absence of immunity in the case of allegations of serious breaches of
international humanitarian law are well-founded in the law . . ."FN48.
---------------------------------------------------------------------------------------------------------------------
FN48
CR 2001/8, p. 31, para. 54.
---------------------------------------------------------------------------------------------------------------------
37. In my view, this is a major point of dispute between the Parties which
the Court could decide were it not for the non ultra petita rule. On pain of
acting ultra vires, the Court could not rule ultra petita. It has been
correctly said that "while the Court is judge of its jurisdiction, it is not
its master"FN49. The examination of points not included in the Congo's
submissions would have exposed the Court to criticism on this score. In its
final submissions, which were silent on the point, the Congo did not,
however, show itself hostile to the Court's taking a stance on the point in
its reasoning.
---------------------------------------------------------------------------------------------------------------------
FN49
Charles Rousseau, "Les rapports conflictuels". Droit international public.
Vol. V. 1983, p. 326.
---------------------------------------------------------------------------------------------------------------------
38. For its part, Belgium did not wish the Court to rule on the substance
of its claims as above, which it did, however, consider established in law:
"In the realm of law as process, the question is, if it ultimately turns on
the discretion of the Court, whether it would be desirable for the Court to
proceed to a judgment on the merits of this case. Belgium, with the very
greatest of respect for the role of the Court in developing international
law, contends that it would not. In Belgium's contention, in the absence of
a compelling reason to do so — and a compelling reason to do so would be a
subsisting concrete dispute between two States which requires resolution —
for the Court to proceed to a judgment on the merits of these issues would
risk rigidity in the law just at the point at which States, principally
responsible for the development of the law, are groping towards solutions
of their own. In Belgium's contention, this is not the point at which
rigidity in the law, whether expansive or restrictive, is desirable."FN50
------------------------------------------------------------------------------------------------------------
FN50
CR 2001/8, p. 31, para. 54; emphasis added.
------------------------------------------------------------------------------------------------------------
39. It goes without saying that it is not for a litigant to tell the Court
how to do its job. The Respondent's concern regarding the rigidifying
effects of an international judicial decision are unfounded. Particularly in
international customary law, it is established that international
jurisprudence does not have the effect of freezing the law for all time. To
a certain extent, the same is true of treaty law, which is itself developed
by States. Finally, to say that States have the prime responsibility for
developing the law is to recognize implicitly the responsibility of other
organs [p 114] or entities, including the Court, for performing other tasks.
Legal scholars are virtually unanimous in acknowledging this.
*
40. In short, how should so-called universal jurisdiction have been treated,
given the discretion shown in the Congo's final submissions on this subject
and the lack of urgency demonstrated by Belgium for a ruling by the Court on
the matter? The Congo's extreme caution was not justified, since it was
seeking to have the dispute completely resolved. The resistance on Belgium's
part was unfounded too. The Respondent, which was claiming to act under
international law, had the opportunity to secure a positive sanction for a
practice which it considered lawful. In my view, the Court's primary
responsibility was to decide whether or not, as the Applicant claimed, the
customary rules concerning the personal immunities and inviolability from
criminal process of the Minister for Foreign Affairs of the Congo, Mr.
Yerodia Ndombasi, had been violated by the Respondent. And since it was in
the name of a so-ct lied universal jurisdiction, in my opinion
ill-conceived and misapplied, that this infringement took place, the
operative part of the Judgment nonetheless implicitly condemns Belgium's
claim. But ought not the Court, as guarantor of the integrity of
international law, to have ruled in its reasoning equally clearly on the
validity ratione loci and ratione personae of such manifestly unlawful
claims on Belgium's part? Should the reasoning of the Judgment not have
contained a relevant passage on one of the currently most controversial
questions in international law? Would the Court have been criticized for
stating the law on this point? The fact remains, however, that the Court, in
accord with the Parties, made its choice of "essential reasons"FN51 in order
to settle the dispute. It has taken the opportunity to codify and develop
the law of immunities. The vexed question of so-called universal
jurisdiction, as presented in this case, has also been settled.
---------------------------------------------------------------------------------------------------------------------
FN51
See Tanaka. separate opinion appended to the Judgment of 24 July 1964 in the
case concerning Barcelona Traction, Light and Power Company, Limited,
Preliminary Objections, I.C.J. Reports 1964. p. 65.
---------------------------------------------------------------------------------------------------------------------
41. There is not the slightest doubt that in customary international law
Ministers for Foreign Affairs enjoy immunities and inviolability of their
person in respect of criminal process before national courts. These are
restrictions imposed by international law on the operation of domestic law.
To be more specific, all national law ceases to prevail in the presence of a
higher organ of a foreign State. No sovereign entity can legally exercise
authority over any other equally sovereign government as so represented.
That is the current state of positive international law, which a worldwide
survey would certainly confirm.
42. The Respondent has done its utmost to create confusion in the mind of
the layman. It has been unable to do so in the minds of jurists. [p 115]
Belgium went to great lengths in seeking to equate immunity with impunity.
No lawyer would be so misled as to believe that any proof was required of
proposition that the personal criminal responsibility of the perpetrator of
an alleged offence remains intact, notwithstanding the immunities protecting
him. Nor should we lose sight of the basics of criminal law, to the point of
forgetting the principle of the presumption of the accused's innocence! It
might even have been thought that the issue of a Minister's immunities was a
legal commonplace, had "certain recent developments"FN52 not been cited.
Wrongly. Those who defend before this Court States' rights to make law are
seeking to transform the proponents of a certain school of doctrine into
legislators, having refused that status to the Court.
---------------------------------------------------------------------------------------------------------------------
FN52
Counter-Memorial of Belgium, p. 109. para. 3.4.1.
---------------------------------------------------------------------------------------------------------------------
43. There is no doubt that the immunities and their corollary, the
inviolability of the person of the Minister in question, have a functional
character. They are based on the importance of a high representative of
another State being able freely to discharge his duties, without let or
hindrance and under conditions of equality. It is for this reason that the
prerogatives of the host State in regard, inter alia, to the maintenance of
law and order, defence and justice must be exercised in such a way as to
make it easier for the Minister for Foreign Affairs of another State to do
his job. As certain writers have stated: "the immunity representatives of
foreign States enjoy is a function of the nature of their office"FN53.
---------------------------------------------------------------------------------------------------------------------
FN53
Louis Henkin, Richard Crawford Pugh, Oscar Schachter and Hans Smit.
International Law, 1993, p. 1188.
---------------------------------------------------------------------------------------------------------------------
44. American doctrine recalls that:
"According to the Restatement, immunity extended to:
(a) the State itself;
(b) its head of State;
(c) its government or any governmental agency;
(d) its head of government;
(e) its foreign minister;
(f) any other public minister, official, or agent of the State with respect
to acts performed in his official capacity if the effect of exercising
jurisdiction would be to enforce a rule of law against the State."FN54
------------------------------------------------------------------------------------------------------------
FN54
Ibid., p. 1191.
------------------------------------------------------------------------------------------------------------
45. Although the Congo was not able to demonstrate sufficiently, either in
its written pleadings or in oral argument the extent of the hindrance
caused by Belgium to the free exercise of his duties by the Congo's Minister
for Foreign Affairs, I can now give some examples. Following the issue of
the warrant, the Congolese Minister for Foreign Affairs was unable to attend
ministerial meetings of the ACP States with the European Union in Brussels,
since his criminal immunities and inviolability [p 116] were not guaranteed.
Nor was he able to participate in a meeting held in Paris to evaluate the
Francophone Summit. In October 2000, Mr. Ndombasi was unable to undertake an
official visit to Tokyo (Japan), as the Japanese authorities stated that
they were unable to give an assurance that his criminal immunities and
inviolability world be guaranteed.
46. In addition to the official visits that he was unable to make, the
Minister was obliged, depending on the itinerary, to travel separately from
his Head of State arriving late at their common destination. This resulted
in increased travel costs, lost baggage, and late arrivals at international
meetings, such as the Maputo Summit following a visit to China. It is
self-evident that, as a result of the official visits that he missed or
carried out under such difficult circumstances, the Minister for Foreign
Affairs was unable to perform his duties normally, whether alongside the
Head of State or otherwise. Finally, a combination of various factors,
particularly his undesirable character in the eyes of certain Belgian
authorities, led to his dismissal on 20 November 2000, the date of the
opening of the hearings in the provisional measures phase of his case.
47. The Respondent contends that there is an exception to the rule of the
immunity and criminal inviolability of the person of the Minister for
Foreign Affairs in the case of "crimes under international law". It has not
proved that contention. This is no more than an element of its defence
strategy. At times, it sought to circumvent the official status enjoyed at
the relevant time by Mr. Ndombasi by arguing that it was concerned with him
solely in his capacity as a private individual; at others, it apparently
attempted to invent an exception which simply does not exist in customary
international law.
48. The existence of a firmly established rule, obligatorily followed by the
majority of some 190 States from Africa, Asia, America, Europe and Oceania,
whereby an incumbent Minister for Foreign Affairs enjoys absolute immunity
and inviolability from criminal process is not open to question. The
doctrine confirms thisFN55.
---------------------------------------------------------------------------------------------------------------------
FN55
See inter alia Jean Salmon, Manuel de droit diplomatique. 1994, p. 539: the
Minister tor Foreign Affairs enjoys "privileges and immunities analogous to
those of the Head of Government"; Joe Verhoeven, Droit international public.
2000, p. 123: "there is a tendency, at least in the doctrine, to grant the
Head of Government and indeed the Minister for Foreign Affairs, the
protection accorded to the Head of State".
---------------------------------------------------------------------------------------------------------------------
49. Nonetheless, some dissenting voices, apparently moved by certain moral
concerns, claim that these appointed State representatives should be
stripped of such absolute legal protection where they have committed certain
international offences. In many regions of Tie world, such provisions can
only be welcome in countries traditionally victims of crimes against
humanity. From its inception, the Permanent Court of International Justice,
our predecessor, recognized that,
[p 117]
"in the fulfilment of its task of itself ascertaining what the
international law is, [the Court] has not confined itself to a
consideration of the arguments put forward, but has included in its
researches all precedents . . . and facts to which it had access and which
might pos-sibly have revealed the existence of one of the principles of
international law contemplated in the special agreement"FN56.
------------------------------------------------------------------------------------------------------------
FN56"Lotus",
Judgment No. 9, 1927, P.C.I.J.. Series A, No. 10, p. 31.
------------------------------------------------------------------------------------------------------------
50. It is in the area of customary law that the Belgian claims and their
counterparts, the Congolese denials, lie. The Belgian Government possibly
anticipated that, as with the Truman Proclamation of 1945 on the
continental shelf, its new claim, formulated at a time when humanitarian
ideas are undergoing a revival of interest, would be followed (massively) by
other States. It gives the impression of having overestimated its
importance on the world chessboard. No matter. The main charge which can be
levied against the Respondent is of abusing the humanitarian argument for
the purposes of political domination. As in the nineteenth cen-turyFN57! To
the point of devising an exception to the rules of international law
governing immunities which simply does not exist in international law.
---------------------------------------------------------------------------------------------------------------------
FN57
The Preamble to the General Act of Berlin of 26 Februaiy 1885 provides
reassurance as to the object and purpose of the Treaty: "the moral and
material well-being of the indigenous populations".
---------------------------------------------------------------------------------------------------------------------
51. In short, the Belgian claim was bound, from its inception, to represent
violation of existing law. Despite the publicity enjoyed by the warrant of
11 April 2000, no other State has followed Belgium's example. No member of
the international community has offered Belgium assistance in executing the
warrant. In fact, on the contrary, several States, particularly African
States, have ignored it. The unfortunate Belgian precedent has thus remained
an isolated one. While Belgium is entitled to contribute to the formation
of general international law, it cannot, on its own, create that law. Thus
it does not have international practice behind it. By contrast, the State
which is the victim of this action, the Congo, has resolutely opposed the
application of the Belgian measure. On the ground that it is unlawful.
52. Moreover, the Belgian Government has shown, by its conduct, that it is
unsure of the lawfulness of its disputed act. Its correspondence with the
Applicant while the proceedings were in progress demonstrates thisFN58. The
Respondent claims that it is contemplating an amendment to its controversial
statute so as to respect the immunities of high representatives of foreign
States. From all the many inconsistencies and equivocations fundamentally
characterizing a practice both unilateral and solitary — if we exclude the
Yugoslav initiative of 21 September 2000, which has strangely gone
unremarked by Belgium — no customary norm has [p 118] emerged. Just as the
Respondent's own opinio juris is apparently far from established.
---------------------------------------------------------------------------------------------------------------------
FN58
See the Belgian communication of 14 February 2001, to which the Congo
replied on 22 June 2001.
---------------------------------------------------------------------------------------------------------------------
53. In reality, the Respondent has sought to rely on a small number of
opinions of publicists in order to claim that a new derogative customary
norm has come into being. It has provided no evidence of its existence. We
know that doctrine represents a means for determining the rules of law. It
must be founded on a general practice corresponding to the opinio juris sive
necessitas. Nothing of the kind exists today. In my view, the Court could
readily find that the Respondent's claims were unfounded. Is it possible
that the implementation of international humanitarian law might be subject
to a co-efficient of relative normativity — to paraphrase P. Weil? If not,
how can there be any legal justification for suspending proceedings against
an organ of a Middle Eastern State whilst obstinately persisting with
proceedings against the former Congolese Minister for Foreign Affairs?
54. Referring to the relationship between crimes and immunities, or the
extent to which the nature of the former impedes the exercise of the latter,
Pierre-Marie Dupuy writes, in light of the House of Lords ruling in the
Pinochet case:
"We should exercise caution in confirming the emergence of a new customary
rule as embodied in the House of Lords ruling, which is based on
considerations that are not entirely consistent and cannot, of itself,
result in the consolidation of such custom."FN59
------------------------------------------------------------------------------------------------------------
FN59
Pierre-Marie Dupuy, "Crimes et immunités, ou dans quelle mesure la nature
des premiers empêche l'exercice des secondes", Revue générale de droit
international public, Vol. 103, No. 2, 1999, p. 293; emphasis added.
------------------------------------------------------------------------------------------------------------
Dupuy then recalled that
"custom emerges from the legal opinion of States as demonstrated by their
practice, which is, however, far from unified, and in any event shows that
States are still reluctant to accept any reductions in the immunities of
their high officials"FN60.
------------------------------------------------------------------------------------------------------------
FN60
Ibid.
------------------------------------------------------------------------------------------------------------
There is no conduct "generally" adopted "by tie practice of States". As this
Court has held,
"[the] presence [of customary norms] in the opinio juris of States can be
tested by induction based on the analysis of a sufficiently extensive and
convincing practice, and not by deduction from preconceived ideas'FN61.
------------------------------------------------------------------------------------------------------------
FN61
Delimitation of the Maritime Boundary in the Gulf of Maine Area, Judgment,
I.C.J. Reports 1984, p. 299; emphasis added.
------------------------------------------------------------------------------------------------------------
These are few decisions — or at least any significant number — of courts [p
119] and tribunals worldwide which have taken the Belgian view. Quite the
contrary. Just recently, the Court delivered an Opinion in the case
concerning the Difference Relating to Immunity from Legal Process of a
Special Rapporteur of the Commission on Human Rights, stating: "the
Malaysian courts had the obligation to deal with the question of immunity
from legal process as a preliminary issue to be expeditiously decided"FN62.
---------------------------------------------------------------------------------------------------------------------
FN62
Difference Relating to Immunity from Legal Process of a Special Rapporteur
of the Commission on Human Rights, Advisory Opinion, I.C.J. Reports 1999
(I), p. 90, para. 67 (2) (b) ; emphasis added.
---------------------------------------------------------------------------------------------------------------------
55. Previously, it had noted that
"The High Court of Kuala Lumpur did not pass upon . . . immunity in limine
litis, but held that it had jurisdiction to hear the case before it on the
merits, including making a determination of whether Mr. Cumaraswamy was
entitled to any immunity."FN63
------------------------------------------------------------------------------------------------------------
FN63
Ibid., p. 72, para. 17.
------------------------------------------------------------------------------------------------------------
A similar obligation applies also, and above all, to States in their mutual
relations. Thus, by way of analogy, and a fortiori — since we are dealing
here with primary subjects of international law and with their highest
ranking representatives, namely Ministers for Foreign Affairs — this rule as
restated by the Court must be applied in the present case.
56. The successive changes in Mr. Ndombasi's status have no serious
implications for the case, except to underline further the violation of the
Congo's sovereignty by Belgium on account of its continued interference (see
above).
57. Moreover, as the focus of this case is the violation of the immunities
of the Minister for Foreign Affairs at the time of the issue and
notification of the warrant, the previous and subsequent status of Mr.
Ndombasi in no way affect the Congolese complaint. Given that the unlawful
proceedings were instituted at a time when he had the status of a
specialized organ responsible for the foreign relations of a State and, in
consequence, was protected by absolute immunity and personal inviolability
from criminal process, the violation of international law to the detriment
of the Congo continues to exist; in transgressing the rule of customary
international law governing inter-State relations, Belgium has incurred a
debt not to an individual but a State, the Congo, whose organ responsible
for international relations has been subjected to a rash, vexatious and
unlawful measure, which calls for reparation. Yet, in response to these
well-founded claims of the Applicant, the Respondent claims not to have
violated the sovereign rights of its victim. On the contrary, Belgium claims
to be exercising a right conferred on it by international law or fulfilling
an obligation imposed on it by international law. That is why it
[p 120] refuses to cancel the warrant and thus make reparation for the
injury suffered. Mr. Ndombasi's personal odyssey in no sense marks the end
of the inter-State dispute.
58. It is significant that the Respondent implicitly acknowledges the
weakness of its defence in the following terms:
"Even were the Court to uphold, contrary to Belgium's submissions, the
immunity of Mr. Yerodia Ndombasi qua Minister for Foreign Affairs of the
DRC in the circumstances in issue, it would not follow that he would have
been immune, even when in office, as regards conduct of a private nature . .
,"FN64
------------------------------------------------------------------------------------------------------------
FN64
Counter-Memorial, p. 116, para. 3.4.15.
------------------------------------------------------------------------------------------------------------
59. Unless one were to contend that Belgium's offence became time-barred
after two years. There is in principle no such rule in international law,
even less so in the African conception of the law. In Africa, a dispute does
not disappear. It is transmitted, like a debt, from generation to
gen-eration. The same applies to the subject-matter of the dispute, which
cannot be effaced as long as there is no acknowledgment of the offence
committed or reparation for the injury suffered by the victim. The
Respondent's unfounded denials prompt me to present a hypothetical case.
60. Let us take the example of an individual carrying out the duties of an
Adviser on African Affairs to the President or Prime Minister of a certain
State. In that capacity, the individual orders the suppression of a popular
uprising or a student demonstration in i "friendly country"FN65, resulting
in deaths. Subsequently, that Adviser is appointed Minister for Foreign
Affairs or Secretary of State of the country in question.
---------------------------------------------------------------------------------------------------------------------
FN65
Jean-Pierre Cot, A l'épreuve du pouvoir. Le tiers-mondisme. Pour quoi
faire?, 1984,p. 85. The author notes that, when he was Minister for
Cc-operation, he issued ordersthat French military advisers should not be
involved in the suppression of the studentdemonstration of June 1981 in
Kinshasa.
---------------------------------------------------------------------------------------------------------------------
61. A third State then issues a warrant against the Minister or Secretary
of State on the grounds that he had given orders as Adviser which, when
implemented, led to wide-scale and systematic violations of human rights.
The question is whether such a warrant does or does not affect the criminal
immunities and personal inviolability of the Minister or Secretary of State.
In my opinion, the reply has to be in the affirmative. It is the organ of
the State, responsible for representing that State internationally, which is
the victim of that measure at that point in time.
62. Following a change in administration or government, the Minister for
Foreign Affairs or Secretary of State loses his post (which is different [p
121] from the case of Mr. Ndombasi, where external pressures were exerted).
The State which issued the warrant continues proceedings. Does this measure
continue to affect the Adviser on African Affairs, the Minister for Foreign
Affairs or the Secretary of State, or does it affect the individual now
freed of all governmental responsibility? I consider that it is the date of
the issue of the warrant which establishes the precise moment of the
internationally wrongful act and the status at that time of the person
against whom the warrant is issued, naming him and violating his moral
integrity. It is the Minister for Foreign Affairs or the Secretary of State
on the day and at the time of the issue of the warrant who was impugned.
This is not an investigative measure directed against a private individual,
which the former Secretary of State or Minister for Foreign Affairs has
become, nor is it a measure directed at the time against the Adviser on
African Affairs. Nothing can change the facts, which, like the sphinx,
remain unaffected.
63. The principle of jurisdiction which some call "universal" cannot be
seriously contested in terms of the relevant provisions of the Geneva
Conventions. However, I do have certain reservations about the somewhat
unfortunate terminology used in international law. For, in my opinion, the
correct summa divisio should consist of (1) territorial jurisdiction, (2)
personal jurisdiction and (3) jurisdiction in the public interest.
64. I would not describe the authority exercised by a State as "universal
jurisdiction", whether exercised with respect to its nationals abroad, which
comes under the head of its personal jurisdiction, or with respect to
foreign nationals on the high seas having committed acts of maritime piracy,
which falls under the head of jurisdiction in the public interest, or with
respect to any person in its territory having offended against its ordre
public, which thus falls within the scope of its territorial jurisdiction.
The same applies to the jurisdiction which States accord to themselves
regarding the punishment of certain violations of treaty provisions. It is
readily conceivable that a worldwide entity, not yet in existence, or the
United Nations itself and its principal judicial organ, being of a
quasi-universal nature, might lay claim to universal legal jurisdiction. As
we know, under the specific treaties to which the;' are parties, the
members of the quasi-universal community have the power to punish certain
offences committed outside their territory in well-defined circumstances.
Yet, in material terms, such legal power is not universal. Perhaps under the
unfortunate influence of the views of criminal law specialistsFN66, certain
internationalists refer to it as the exercise of universal jurisdiction.
This expression does not seem appropriate in the present international [p
122] orderFN67. At a time when a large number of States are seeking to
promote an international criminal forum with worldwide jurisdiction, would
the promotion of "universal" jurisdiction not be a backward step in legal
terms?
---------------------------------------------------------------------------------------------------------------------
FN66 References to "universal jurisdiction" are relatively raie in the works
of criminal jurists themselves. See. for example, André Huet and René
Koering-Joulin. Droit pénal international, 1994.
FN67 It is from international criminal law, an embryonic discipline with
sparse, fragmentary rules, that what is inappropriately termed universal
jurisciction derives. But it cannot escape the marks of its original mould.
Hence the somewhat nebulous character of an ancient legal power, limited to
a handful of historical curiosities such as the repression of the slave
trade, timidly extended in the mid-twentieth century to include the
punishment of violations of international humanitarian law. It is from the
latter that the specialized doctrine and jurisprudence (International
Criminal Tribunal for the former Yugoslavia) are seeking to make it
autonomous. For the "universal jurisciction" claimed by Belgium concerns
coercive implementation of the humanitarian rules of Geneva. It is beyond
dispute that positive international law authorizes States to penalize
offences committed outside their territory when certain conditions relating
to the appurtenance to their territorial sovereignty have been met. Nor is
there any doubt that this aenal jurisdiction should be strictly interpreted,
in conformity with the requirements of criminal law.
---------------------------------------------------------------------------------------------------------------------
65. As thus understood, the principle of "universal jurisdiction" is laid
down, in particular, in Article 49 of the First Geneva Convention of 12
August 1949FN68. But its conception, and especially its application by the
Respondent in the present case, do not accord with the law as it currently
stands.
----------------------------------------------------------------------------------------------------------------
FN68
Article 49 states:
"Each high contracting party shall be obliged to search for persons presumed
to have committed or ordered to have committed one or other of these
offences, and must bring them before their own courts, irrespective of their
nationality."
---------------------------------------------------------------------------------------------------------------------
66. According to the authorized interpretation of the above Article, the
system is based on three essential obligations incumbent on each high
contracting party, namely: "to promulgate special legislation; to search for
any individual accused of violating the Conveition; to try such indi-vidual
or, if the contracting party prefers, to hand over the individual for trial
to another interested State"FN69.
--------------------------------------------------------------------------------------------------------------------
FN69 Jean Pictet (ed.), Commentary on the Geneva Convention for the
Amelioration of the Condition of the Wounded and Sick in Armed Forces in the
Field. 1952, p. 407; emphasis added.
---------------------------------------------------------------------------------------------------------------------
67. The Respondent is to be thanked for having, in principle, satisfied the
first obligation, subject to reservations as to he scope of its special
legislation. Its apparent concern to search for any individual accused of
having violated the relevant conventional provisions is also praiseworthy.
68. The congratulations due to the Respondent as regards the principles
nevertheless leave room for legitimate complaints on grounds of the scope of
its legislation and its implementing measures. The warrant would appear to
come under the latter category.[p 123]
I. Special Legislation
69. Neither of the two States (Switzerland and Yugoslavia) cited in the
above-mentioned Commentary have adopted legislation with such universal
geographical reach as the Belgian warranl. The passages in the Commentary
merely reflect a concern to punish offences. The Commentary even warns that
"no reference is made to the responsibility which could be incurred by
individuals who have not intervened to prevent an offence or to halt it".
Given "the Convention's silence, it must be accepted that it is for national
legislation to settle the matter"FN70.
---------------------------------------------------------------------------------------------------------------------
FN70
Jean Pictet (ed.), Commentary on the Geneva Convention for the Amelioration
of the Condition of the Wounded and Sick in Armed Forces in the Field. 1952,
p. 409; emphasis added.
---------------------------------------------------------------------------------------------------------------------
2. Searching for and Prosecut.ng the Perpetrators
70. Not only does the Commentary emphasize the punishment of the accused
irrespective of their nationality, it also endorses the territorial link,
which, under classical international law as thus codified at Geneva, is in
fact the norm:
"As soon as one of the contracting parties is aware of the fact that an
individual present on its territory has committed such an offence, its duty
is to ensure that the individual is arrested and prosecuted quickly."FN71
------------------------------------------------------------------------------------------------------------
FN71
Ibid., p. 411 ; emphasis added.
------------------------------------------------------------------------------------------------------------
Thus, it is not only at the request of a Stale that the necessary police
investigations can be undertaken, but the;' may also be carried out
unprompted. Beyond the confines of national territory, where in principle
the exercise of State authority, whether legislative, executive or judicial,
must end, the Commentary — quite naturally in my view — refers to the
mechanism of judicial co-operation, that is to say extradition, where
"adequate charges are brought against the accused"FN72. Not only is there no
extradition treaty between the Parties concerned regarding this matter, but
the Congo also subscribes to the legal principle that it cannot extradite
its own nationals. It adds — an argument decisive of the matter — that it
is unable to prosecute Mr. Ndombasi for lack of any charges against him,
there being nothing it accuses him of.
---------------------------------------------------------------------------------------------------------------------
FN72
Ibid.
---------------------------------------------------------------------------------------------------------------------
71. The exercise of "universal" jurisdiction thus presupposes the existence
of "adequate charges", under the terms of the humanitarian conventionsFN73.
Are there any in this case? The Applicant has rejected [p 124] themFN74.
Presidents of the Congolese Bar asserted before local media, the day after
notification of the warrant on 12 July 2000, that "the case-file was empty".
In its warrant, the Respondent failed to specify adequate charges, apart
from an unproven assertion that the accused "actively and directly"
participated in committing serious offences under international
humanitarian law.
---------------------------------------------------------------------------------------------------------------------
FN73 See, for example, Article 129 (2) of the Third Geneva Convention of 12
August 1949.
FN74 Memorial of the Democratic Republic of the Congo, p. 38, para. 57,
"the Belgian authorities failed to place his [Mr. Yerodia's] statements,
notably those made on 28 August 1998. in any historical or cultural context.
They improperly interpreted them . . . but the causal connection between
those words and certain unspeakable acts of violence ... is far from having
been clearly established."
For its part the Counter-Memorial of the Kingdom of Belgium reiterates (p.
11, para. 1.10) the facts as stated in the warrant of 11 April 2000, after
announcing: "it is not necessary to go into these facts at this point,
although relevant aspects will be addressed briefly in Part III below".
---------------------------------------------------------------------------------------------------------------------
72. What, moreover is the objective criterion which would authorize a State
to exercise universal jurisdiction by default in various situations where no
jurisdiction has normally been exercised? Is it that these are core crimes!
There are said to be a number of them. Hence the legitimacy of the
territorial criterion, which allocates jurisdiction as between the States
concerned. Otherwise the political criterion of expediency would hold sway.
It is accordingly understandable that the consequences of the tragic events
in the Congo in August 1998 provided a pretext for the war-rant of 11 April
2000, whereas the extermination of over two and a half million Congolese
since that date by Rwandan, Ugandan and Burundian aggressors has so far gone
unpunished.
73. The Respondent has done everything it can, in accordance with its
egregious approach, to criminalize the Applicant's conduct. To the bitter
end it has done its utmost to try and prick the conscience of the judges.
Not only has it chosen the wrong forum — this Court not being one dealing
with matters of substance relating to possible individual criminal
responsibility — it has failed, moreover, to provide proof of such
responsibility. It should be remembered that actori incurnbit probatio, but
also that allegans probat.
74. Should the former model colony of the Belgian Congo, without any proof,
prosecute one of the Congolese leaders, who, like his fellow countrymen,
rose up against the foreign invaders and their Congolese henchmen? The idea
that a State could have the legal power to try offences committed abroad, by
foreigners against foreigners, while the suspect himself is on foreign
territory, runs counter to the very notion of international law.
75. Article 129, paragraph 2, of the Third Geneva Convention, setting out
the principle aut dedere out judicare with respect to criminal penalties,
lays down the requirement of "adequate charges". In no wise has it
contemplated a so-called jurisdiction by default (in absentia). Thus the [p
125] Commentary on this provision expressly contemplates a situation where
the accused "is present on the territory" (of the State party).
76. In vain would one look, in recent practice, for a legislative text or
domestic jurisprudence as far-going as this. In its War Crimes Act 1945, as
amended in 1988, Australia states that "only an Australian citizen or
resident can be charged under the 1988 Act" (Section 11 of the above Act).
In Polyukhovich v. Commonwealth of Australia, the Australian High Court had
recognized that the Australian courts had the power to exercise "a
jurisdiction recognized by international law as universal jurisdiction"
vis-à-vis war crimesFN75.
---------------------------------------------------------------------------------------------------------------------
FN75
Polyukhovich v. Commonwealth of Australia (1991) 172 CLR 501, p. 562;
emphasisadded.
---------------------------------------------------------------------------------------------------------------------
77. A territorial connection is also required by the Austrian Criminal Code
in relation to the prosecution of international crimes such as genocide
(see its application in the Dusko Cvjetkovic case of 13 July 1994). A
personal or territorial connection is also required by Article 7 of the
Canadian Criminal Code, as revised in 1985. It was applied in R v. Finta.
France, too. requires this connection: "where [the individual] is present in
France"FN76. It would be tiresome to list all the many examples.
---------------------------------------------------------------------------------------------------------------------
FN76
Article 689-1 of the Code of Criminal Procedure.
---------------------------------------------------------------------------------------------------------------------
78. If I may resort to reasoning by analogy, it is noteworthy that, in the
case concerning Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America), Merits, the Court held,
specifically with respect to human rights, that:
"where human rights are protected by international conventions, that
protection takes the form of such arrangements for monitoring or ensuring
respect for human rights as are provided for in the conventions
themselves"FN77.
------------------------------------------------------------------------------------------------------------
FN77
I.C.J. Reports 1986. p. 134, para. 267.
------------------------------------------------------------------------------------------------------------
At the time of their adoption, the Geneva Conventions clearly circumscribed
the rights and obligations of States on this point. The authors of those
instruments certainly in no way contemplated the excessively wide
interpretation adopted by Belgium. Moreover, there has been scant evidence
in the subsequent practice of any customary development of treaty law in
this direction. It could have been codified in the Rome Convention of 17
July 1998, but was not. Thus, one year after the adoption of that
Convention, Belgium has introduced a radical innovation of its own. Such
concern for humanity!
79. In providing, in Article 7 of the Law of 16 June 1993, as amended on 10
February 1999, that "Belgian courts have jurisdiction to try the offences
provided for in the present Law, irrespective of where such offences have
been committed", Belgium adopted legislation that was totally unprecedented.
It set itself up, if not as the prosecutor for the [p 126] human race in the
trans-temporal and trans-spatial sense attributed to this term by R.J.
Dupuy, then at least as arbiter of transnational justice, in accordance with
the doctrine of "law without frontiers". This approach could even be said to
transcend international law itself, since the latter deals essentially with
relations between structures with defined borders, namely States. Yet even a
cursory assessment shows that the Respondent is violating international law.
It is not entitled, as the law currently stands, disdainfully to transcend
it. Thus, Heads of States in office Laurent Gbagbo (Cote d'lvoire) on 26
June 2001, Saddam Hussein on 29 June 2001, Fidel Castro (Cuba) on 4 October
2001. Denis Sassou Nguesso (Congo-Brazzaville) on 4 October 2001, Yasser
Arafat on 27 November 2001, a Prime Minister, Ariel Sharon (Israel) on 1
July 2001, an incumbent Minister for Foreign Affairs, Abdulaye Yerodia
Ndombasi on 11 April 2000, are the subject of complaints or prosecutions
before the Belgian courts for various "international crimes". The list is
still far from exhaustive, the name of President Paul Biya (Cameroon) having
been added in December 2001. Joe VerhoevenFN78 rightly feared that the
result would be chaos, by definition the opposite of an order already
precarious in the international arena. The Court must necessarily be called
upon to intervene.
---------------------------------------------------------------------------------------------------------------------
FN78
Joe Verhoeven, "M. Pinochet, la coutume internationale et la compétence
universelle". Journal des tribunaux, 1999, p. 315. and. by the same author,
"Vers un ordre répressif universel? Quelques observations", Annuaire
français de droit international, 1999, p. 55. Also, "what would happen if a
plaintiff prosecuted Mr. Chirac in the French courts for having served in
the Algerian War, when massacres were carried out by the French army?" a
senior Israeli official is said to have asked following the complaint filed
by Mr. Sharon, the Israeli Prime Minister. (The Washington Post, 30 April
2001, Washington Post Foreign Service, Karl Vick. p. 101 : "Death Toll in
Congo War May Approach 3 Million".)
---------------------------------------------------------------------------------------------------------------------
80. It should be strongly emphasized that Mr. A. Yerodia Ndombasi would
appear to be the only person to have been served with an "international
arrest warrant". Most singular. It should also be emphasized that the
proceedings against Mr. Ariel Sharon, closely watched all over the world,
have apparently been quietly put on hold while Belgium seeks an honourable
way out for him through a form of a legal technicality; that since then the
highest political authorities in the land have been queuing up at the
universities (ULB) to give lectures abruptly denouncing the absurdities of
this law, and that, since the close of the oral argument in November 2001,
one of Belgium's counsel has altered his teaching in favour of a sine qua
non territorial connection. Such is the showing of the Belgian Law when put
to the test of international Realpolitik. The chances are that the
proceedings instituted following a complaint by "unrepentant subjects of
law" against Mr. A. Sharon will be a dead letter.
81. Belgium has neither any obligation — as discussed above — nor any
entitlement under international law to pose as prosecutor for all [p 127]
mankind, in other words, to claim the right to redeem human suffering across
national borders and over generations. The State practice referred to above
also applies to my comments here. In no sense, however, is this to argue the
case for impunity, whether geographical or temporal, including in wars of
colonial conquest and neo-colonial reconquest in Africa, America, Asia,
Europe and Oceania.
82. As victims of the violenceFN79 of the aggressors and the series of grave
breaches of international humanitarian law, such as the occupation of the
Inga Dam and the severing of power and water supplies, particularly in
Kinshasa, a city of over 5 million people, resulting in numerous deaths, the
Congolese people have consistently called for the withdrawal of the regular
occupying forces from Uganda, Rwanda and Burundi. They have also called for
the setting up of an international criminal tribunal on the Congo. This
tribunal would try all persons, whether perpetrators, co-perpetrators or
accomplices, whether African or non-African, having committed war crimes
and crimes against humanity, such as the extermination of over
two-and-a-half million CongoleseFN80 in the regions under foreign
occupation since 2 August 1998. It would seem that those victims are (as
yet) of no concern to Belgium, sadly notorious — rightly or wrongly — for
its colonialFN81 and neo-colonialFN82 past in the field of human rights in
the Congo, where a situation of grave, systematic and massive human rights
violations persists which requires a response from international opinion. To
echo the very fitting words of the French Ambassador to Kinshasa: "on such
an issue, there must be no beating about the bush. Endless semantics are not
an option when an entire people is dying." For "it is war . . . the
occupying armies are on Congolese soil despite the injunctions of the
international community"FN83.
---------------------------------------------------------------------------------------------------------------------
FN79 See S. Oda. declaration appended to the Order of 9 April 1998 in the
case concerning the Vienna Convention on Consular Relations, Provisional
Measures. I.C.J. Reports 1998. p. 260. para. 2, and the Order of 3 March
1999 in LaGrand {Germany v. United States of America). Provisional Measures.
I.C.J. Reports 1999 (I), p. 18, para. 2. on the need to take account of the
rights of the victims of violent attacks (an aspect often neglected).
FN80 Source: International Rescue Committee (USA),
<http://intranet.theirc.org/docs/ mortll_report_small.pdf.>
FN81 Adam Horschild. Le fantôme du Roi Leopold. Un holocauste oublié. 1998.
pp. 264274; Daniel Vangroenweghe. Du sang sur les lianes. Leopold II et son
Congo. 1986, pp. 18-123; Barbara Emerson. Leopold II. Le Royaume et
l'Empire, 1980, pp. 248-251.
FN82 See CR 2000/34, p. 16. on the scathing argument of the Congo and Noam
Chomsky, Autopsie des terrorismes, 2001, pp. 12-13.
"The European Powers conquered a large part of the world with extreme
brutality. With very few exceptions, these Powers were not attacked by their
victims in return . . .. nor was Belgium attacked by the Congo . . .'"
FN83 See the speech by Mr. Gildas Le Lidec, French Ambassador in Kinshasa,
on 14 July 2001, on the occasion of the French national holiday. Le
Palmarès. No. 2181, of 16 July 2001. p. 8.
---------------------------------------------------------------------------------------------------------------------
[p 128]
83. The views of a few legal writers will suffice to indicate the scale of
the dispute on this issue. According to P.-M. Dupuy, "still seldom
recognized in customary law, universal jurisdiction can thus only be
optional"FN84. The author cites in his support the fact that the French
Court of Cassation "has confirmed the refusal by the Appeal Court to see the
1949 Geneva Conventions as providing any legal basis for invoking such
jurisdiction"FN85. He concludes that "the Rome Convention does not . . .
institute true universal jurisdiction, based as it is on the jurisdiction
of the State of nationality of the perpetrator and/or that of the State
where the offence was committed"FN86. As for Francois Rigaux, he prefers not
to commit himself "on a controversial, topical theme"FN87. Mario Bettati,
on the other hand, considers that "universal jurisdiction . . . provides
grounds for any State to prosecute crimes which are all the more serious
because they sometimes involve both crimes against the laws of war and
crimes against humanity"FN88. No proof is provided for this assertion. By
contrast, Nguyen Quoc Dinh, Patrick Dailler and Alain Pellet refer to it as
"a disputed principle"FN89. Olivier T. Covey only accepts it if the author
of the offence "is later found on national territory"FN90. The advocates of
universal jurisdiction recognize it provided the accused "is present on its
territory"FN91. Jean Combacau and Serge Sur, however, point out that "States
remain faithful to territorial and personal criteria and refrain from any
recourse to universal or in rem jurisdiction"FN92. And Philippe Weckel,
while observing the reference to universal jurisdiction in the Preamble to
the Treaty of Rome of 28 July 1998, nevertheless notes the ubiquitous
presence of the "judicial sovereignty of States"; for, as Belgian practice
has already shown, "universal jurisdiction . . . would ultimately seem to be
exercised unilaterally"FN93.
---------------------------------------------------------------------------------------------------------------------
FN84
Pierre-Marie Dupuy, be. cit., p. 293; emphasis added.
FN85 Ibid., p. 294.
FN86 Ibid.
FN87 François Rigaux, "Le concept de territorialité: un fantasme en quête de
réalité", in Liber Amicorum Judge Mohammed Bedjaoui, 1999, p. 211.
FN88 Mario Bettati. Le droit d'ingérence. Mutation de l'ordre international,
1996, p. 269.
FN89 Nguyen Quoc Dinh, Patrick Dailler and Alain Pellet, Droit international
public, 1999, p. 689.
FN90 Olivier T. Covey, "La compétence des Etats", Droit international. Bilan
et perspec-tives. 1991, p. 336.
FN91 Brigitte Stern, "A propos de la compétence universelle", in Liber
Amicorum Judge Mohammed Bedjaoui. p. 748.
FN92 Jean Combacau and Serge Sur, Droit international public 1993, p. 351.
FN93 P. Weckel, "La Cour pénale internationale". Revue générale de droit
international publie, Vol. 102, No. 4, 1998, pp. 986, 989. According to one
criminal expert from the Congo, Nyabirungu Mwene Songa, Droit pénal general,
Kinshasa, 1995, pp. 77 and 79. the "so-called system of universal
jurisdiction gives the court of the place of arrest the power of trial"
(emphasis added).
---------------------------------------------------------------------------------------------------------------------
84. The warrant of 11 April 2000 produced legal effects both internally in
Belgium and internationally. [p 129]
85. To begin with the internal aspect. Juridically, it seems clear that
serving a warrant on a Minister for Foreign Affairs constitutes an unlawful
act, as it breaches both his inviolability and his immunity from criminal
jurisdiction. Formally, it is by nature an act of coercion. Materially, its
terms make no secret of the fate which awaits the Foreign Minister. The
agents of the Belgian authorities are required physically to apprehend a
Minister for Foreign Affairs of another sovereign State! In terms of its
purpose, the warrant seeks to extinguish the freedom to come and go as well
as to destroy the inherent dignity of an organ of an independent country.
Organically, the investigating judge who acted against the Minister
concerned is not to be confused with an agent of State protocol. Regarding
the warrant, the Court rightly states:
"its mere issue violated . . . immunity . . . The Court accordingly
concludes that the issue of the warrant constituted a violation of an
obligation of Belgium towards the Congo, in that it failed to respect the
immunity of that Minister . . . under international law." (Judg-ment, para.
70.)
86. These are the objective elements showing that this unprecedented warrant
produced legal effects. The fact that it was not physically implemented is
another matter. It could have been implemented. That the Respondent may
flout the rules of elementary courtesy between supposedly civilized States
with respect to another State is one thing in law. The warrant quite simply
discredited the Congolese organs of State, treating them in an altogether
discourteous and unlawful manner. And that is not all.
87. At international level, our main focus of attention here, since we are
dealing with a flagrant breach of customary international law on immunities,
I need only refer to my analysis at the provisional measures stage.
Moreover, the reasoning of the Judgment does indeed appear to underline the
legal harm thus sufferedFN94.
---------------------------------------------------------------------------------------------------------------------
FN94
Judgment, paras. 70 and 71.
---------------------------------------------------------------------------------------------------------------------
88. As I indicated at the preliminary measures stage, the disputed warrant
caused prejudice to Congolese diplomacy. While the head of the diplomatic
corps was nevertheless able to travel unimpeded in the southern hemisphere
in order to attend diplomatic meetings aimed at bringing an end to the armed
conflict in the Congo, he was, on the other hand, unable so to travel in
other regions much more important for settlement of the conflict. Even if
the Congolese State was represented there, it was at a lower level. The
result was that the substance of the peace talks at foreign ministerial
level was adversely affected by virtue of the rule of diplomatic precedence.
Ultimately, the Congo's international sovereignty prerogatives suffered
prejudiceFN95.
---------------------------------------------------------------------------------------------------------------------
FN95
See also S. Bula-Bula, dissenting opinion appended to the Order of 8
December 2000, Arrest Warrant of 11 April 2000 (Democratic Republic of the
Congo v. Belgium), Provisional Measures, I.C.J. Reports 2000. p. 222. para.
16
---------------------------------------------------------------------------------------------------------------------
[p 130]
.
89. In particular, the regular and continuous operation of the country's
foreign service was disrupted by this politico-legal interference, the head
of the diplomatic corps having been subjected to "arbitrary quarantine".
The serving of the warrant also violated the political independence of the
Congo. As indicated above, it obliged a weak State, further weakened by
armed aggression, to change the composition of its Government — against its
wishes according to counsel for the Congo, a member of that country's
GovernmentFN96— to please the Respondent. Belgium has not disputed this
statement.
---------------------------------------------------------------------------------------------------------------------
FN96
See oral argument of 22 November 2000, CR 2000/34. p. 10.
---------------------------------------------------------------------------------------------------------------------
90. There is no doubt at all that Belgium's conduct has discredited the
Congo. Its effect, as a result of a decision taken in an apparently summary
manner, has been to put further pressure on a State already under attack at
a time when the Central African States, meeting in Libreville (Gabon) on 24
September 1998, "condemned the aggression against the DR of the Congo and
the interference described above in the internal affairs of that
country"FN97. The criminal proceedings thus instituted against an organ of a
victim of aggression constitute accusations that degrade it in the eyes of
the "international community". They had a deleterious effect on the moral
rights to honour and dignity of the Congolese people, as represented by
their StateFN98.
---------------------------------------------------------------------------------------------------------------------
FN97
See Le Phare. No. 818 of 28 September 1988. p. 3.
FN98 See also S. Bula-Bula. dissenting opinion appended to the Order of 8
December 2000, Arrest Warrant of 11 April 2000 (Democratic Republic of the
Congo v. Belgium), Provisional Measures. I.C.J. Reports 2000, pp. 222-223.
para. 17.
---------------------------------------------------------------------------------------------------------------------
91. The fact that, by issuing, circulating and maintaining the arrest
warrant of 11 April 2000, the Respondent committed an internationally
wrongful act has been demonstrated above. Belgium breached its
international obligations under general international law.
92. At this point, the following view expressed by Paul Guggenheim seems
particularly instructive:
"Contrary to widely held opinion, it is not only when it is actually
implemented that domestic law may violate international law. The very fact
of the enactment — or non-enactment — of a general norm capable of being
applied directly and thereby causing injury, is an international wrong. The
enactment of a norm contrary to international law is thus a sanctionable
matter . . ."FN99
------------------------------------------------------------------------------------------------------------
FN99
P. Guggenheim, Traité de droit international public. Vol. I. pp. 7-8, quoted
by Krys-tyna Marek, "Les rapports entre le droit international et le droit
interne à la lumière de la jurisprudence de la Cour permanente de Justice
internationale". Revue générale de droit international public. Vol. XXXIII.
1962. p. 276; emphasis added.
------------------------------------------------------------------------------------------------------------
This is an argument applicable a fortiori to the warrant, a mere act —
indeed, in the view of Congo's counsel, a wrongful act — of application.
93. On closer examination, the Belgian warrant does not, in interna-[p
131]tional law, constitute a legal act. As noted by Congo's counsel, it is
an internationally wrongful act. The proposition that: "[i]n the eyes of
international law and of the Court which is its organ, domestic laws are
merely facts, manifestations of the will and the activity of States, just as
judicial decisions or administrative measures are''FN100, is extremely
apposite here.
---------------------------------------------------------------------------------------------------------------------
FN100
Case concerning Certain German Interests in Polish Upper Silesia, Merits,
Judgment No. 7, 1926, P.C.I.J., Series A, No. 7, p. 19.
---------------------------------------------------------------------------------------------------------------------
94. The argument seeking to distinguish the instrumentum on the one hand and
the negotium on the other is thus invalid. Wrongfulness does not cease to
exist because the organ of State has changed. For, through that organ, it
is, of course, the State which is the target. This is even clearer in the
case at issue, in which various members of the Government were on the list
drawn up by the Belgian judge, the Head of State included! Moreover, an
unlawful warrant is not, ipso facto, void in law. This is precisely the case
here. Generally speaking, in international law, there are national measures
(human rights, law of the sea, etc.) enacted perfectly legally, which are
nevertheless unlawful. They engage the responsibility of their authors. But
the fact that it is adjudged unlawful by an international organ does not of
itself annul the national measure. It is for the State transgressing
international law to extinguish its unlawful act.
95. The Respondent violated international law on immunities on 11 April 2000
by issuing the warrant. It subsequently confirmed its unlawful conduct by
circulating the warrant internationally. The unlawful act was communicated
to the Applicant on 12 July 2000. After the violation, which was complete
on 11 April 2000, the Respondent claims to have sought, on 15 September
2000, to transmit the case file to the Applicant by diplomatic channels.
Not only did it provide no proof of this tardy act of repentance, which,
moreover, is contested by Congo's counsel; the attempt to whitewash the
wrongful act, rightly repudiated by the Applicant, is devoid of all effect.
96. Worse, there is a major factor which demonstrates Belgium's resolutely
wrongful conduct in the course of the proceedings. What other word could be
used to describe the Respondent's request for a Red Notice on 12 September
2001? Notwithstanding the international judicial proceedings brought against
it, Belgium persists in seeking to implement its unilateral wrongful act by
means of a Red Notice. In so doing, not only has the Respondent provided
eloquent proof of lack of good faith in relation to the conduct of the
international legal proceedings; but is it not also guilty of "an
encroachment on the functions of the Court"FN101 ?
---------------------------------------------------------------------------------------------------------------------
FN101
I am here drawing on the views of Judge Tarazi, dissenting opinion appended
to the Judgment of 24 May 1980, case concerning United States Diplomatic and
Consular Staff in Tehran, I.C.J. Reports 1980. p. 64.
---------------------------------------------------------------------------------------------------------------------
*
[p 132]
97. While powerful States — a relative notion in terms of time and geography
— sometimes tend to invoke international law to justify their conduct a
posteriori, weak States — an equally relative concept in the same terms —
often tend to ensure that their conduct complies with international law,
since this is the only power they have.
98. Without regard for the criminal immunities and inviolability of the
Minister for Foreign Affairs of the Congo, the Kingdom of Belgium issued an
arrest warrant against this distinguished organ of a sovereign State on the
basis of allegations that "international crimes" had been committed during
the armed attack on the Congo of 2 August 1998.
99. Not only has the Congo demonstrated vis-à-vis the "international
community" its status as a subject of international law capable of
appearing before the Court, but this victim of aggression has conducted
itself as a State of law, in other words, an entity which respects
international law.
100. The Congolese people, through the medium of their State, have thus been
able to express their international personality. They have also affirmed
that they are free. In this respect, has the Respondent mistaken which
generation and era it is dealing with? When in 1989 the ruling Government in
Kinshasa considered bringing the Belgo-Congolese dispute before the Court,
its initiative went no further than acceptance of the Court's compulsory
jurisdiction. There followed the Rabat Agreement of June 1989, which
defused the quarrel between sovereigns States. That is no longer the case
today.
101. Whilst R. Aron maintained in 1984 that "the example of Congo suggests
that, in the masses, tribal awareness still prevails over national awareness
. . ."FN102, at the same time, Paul Reuter and Jean Combacau had no
hesitation in drawing the following parallel between the nation-building
process in "the most centralized European States of today" and in the Congo:
"this is the situation of a large and populous African State such as Zaire,
where a Zairian nation is daily being forged at the expense of the ethnic
communities, whose fate might otherwise have been different" FN103.We, for
our part, have taken the view that "for unacknowledged reasons, the
collective Zairian will to live, forged by years of sometimes open,
sometimes silent resistance to one of the most savage political regimes the
twentieth century has seen, is underestimated"FN104.
---------------------------------------------------------------------------------------------------------------------
FN102 Raymond Aron, Paix et guerre entre les nations, 1984, p. 389.
FN103 Paul Reuter and Jean Combacau, Institutions et relations
internationales, 1988, p. 24.
FN104 Sayeman Bula-Bula, "La doctrine d'ingérence humanitaire revisitée",
Revue africaine de droit international et comparé (London), Vol. 9, No. 3,
September 1997, p. 626, footnote 109.
---------------------------------------------------------------------------------------------------------------------
102. Like a two-headed Janus, the Judgment constitutes, on the one hand, an
act of repudiation of the unhealthy relations, supposedly of friendship and
co-operation, between a dominating and a dominated [p 133] State immediately
following a botched process of decolonization; on the other hand, it is an
act which may well serve as the basis of mutually beneficial healthy
relations of friendship and lasting co-operation between sovereign partners
linked by history. Sooner or later such relations will develop. The sooner
the better. It is to be hoped that the Parties, and especially the
Respondent, grasp the fundamental significance of this decision. The Court's
contribution to the peaceful settlement of the dispute will have been most
beneficial. Provided the Respondent adopts a new mindset and jettisons its
outmoded conceptions maintained by the weight of history and unequal power
relations. Thus, on the eve of the formation of a government inspired by
Belgium, academic advisers from that country warned it that:
"Unless it ensures that it can play a decisive role in revitalizing the
national economy, unless it claims such a role for itself and succeeds in
playing it, Belgium risks relinquishing its leadership in Zaire and losing
its principal asset, as well as its most effective vehicle for the
expression of foreign policy. It is first and foremost Zaire that enables us
to play a role on the international stage and frequently to sit at the table
of the powerful." FN105
------------------------------------------------------------------------------------------------------------
FN105
See Société nationale d'investissement et administration générale de la
coopération au développement, Zaïre, secteur des parastataux. réactivation
de l'économie. Contribu-tion d'entreprise du portefeuille de l'Etat, report
by M. Moll, J.-P. Couvreur and M. Norro. professors at the Université
catholique de Louvain, 29 April 1994, p. 231.
------------------------------------------------------------------------------------------------------------
103. The African States particularly, which increasingly appear as
"ordinary" parties before the Court, have their own reasons for entrusting
their disputes to that body of eminent, independent and uprightFN106
jurists. Here I am particularly thinking of complaints like the one against
Congo brought before a national judge, should the Respondent pursue its
policy of double standards. Especially as the large number of African, Latin
American and Asian leaders brought before Belgian justice might — wrongly —
suggest that the presumed violations of international humanitarian law, in
particular crimes against peace, crimes against humanity and war crimes, are
a monopoly of Africa, Latin America and Asia.
---------------------------------------------------------------------------------------------------------------------
FN106
See Article 2 of the Statute of the International Court of Justice.
---------------------------------------------------------------------------------------------------------------------
104. This is where "universal" jurisdiction shows its true colours as a
"variable geometry" jurisdiction, selectively exercised against some States
to the exclusion of others. It requires no great knowledge to be aware that,
at global level, it is not just the handful of prominent personalities
charged before the Brussels judge who are the subject of public rumours of
serious human rights violations.
105. It is clear that the Court's task is to settle disputes between States
[p 134] submitted to it by parties. It is not its task to teach the law. Yet
the settlement of disputes can provide valuable lessons. Indeed, at the end
of the oral argument, one of Belgium's counsel revised his script. One of
the merits of the Judgment is that it has contributed to the teaching of
international law. The fears we expressed when preliminary measures were
requestedFN107 have not become groundless. The Court has drafted a new
chapter on the international law of immunities as it pertains to Ministers
for Foreign AffairsFN108. As such, there is no doubt that it is a useful
addi-tion to the handbooks on public international law. Intervening at a
time when the doctrinal debate is at its height, as witness the proceedings
of the Institut de droit international at its Vancouver session in August
2001, the Judgment casts a great deal of light on this issue.
---------------------------------------------------------------------------------------------------------------------
FN107
See Sayeman Bula-Bula, dissenting opinion appended to the Order of 8
December 2000 delivered in the case concerning the Arrest Warrant of 11
April 2000 (Democratic Republic of the Congo v. Belgium), Provisional
Measures, I.C.J. Reports 2000, p. 219, para. 4.
FN108 According to Dominique Carreau, Droit international. Vol. I, 2001, p.
653, theCourt performs a "major role" in "the development of contemporary
international law".
---------------------------------------------------------------------------------------------------------------------
106. The question of the "legal relationship between universal jurisdiction
and . . . immunities"FN109, which I was concerned to raise, has also
implicitly been settled in favour of immunitiesFN110. And without prejudice
to the established nature of the legal principle concerned, with the
exception of the power to punish certain violations of conventional
provisions recognized as between States parties.
---------------------------------------------------------------------------------------------------------------------
FN109
Sayeman Bula-Bula, dissenting opinion appended to the Order of 8 December
2000 delivered in the case concerning the Arrest Warrant of 11 April 2000
(Democratic Repub-lic of the Congo v. Belgium), Provisional Measures, I.C.J.
Reports 2000, p. 220, para. 7.
FN110 Judgment, paras. 70 and 71.
---------------------------------------------------------------------------------------------------------------------
107. The Court has established the existence in customary international law
of the rules relating to the criminal immunity and inviolability of
Ministers for Foreign Affairs. It has applied them to this case because Mr.
A. Yerodia Ndombasi was Minister for Foreign Affairs at the time of the
events concerned. Given that the international dispute concerned conflicting
claims between the immunities in question and so-called universal
jurisdiction, it follows that the Court, by virtue of its decision, has
implicitly rejected the claim to such jurisdiction in the present caseFN111.
It has thus ruled that so-called universal jurisdiction, even if it were
established in international law, would in any event be inoperative as
regards the criminal immunities and inviolability of the Minister for
Foreign Affairs, whatever the alleged crimes. The Applicant has not
requested a declaratory judgment. The Court has been asked to settle a
concrete dispute by stating the law and effectively applying it to the
dispute. But a general, abstract, impersonal discussion of this disputed [p
135] jurisdiction, having not been requested by the Applicant, was not
requiredFN112, even though, in my view, it would have been desirable for the
Congo to have maintained this claim also in its final written and oral
submissions. Since the Applicant asked the Court to state the law and settle
the dispute, should it not have sought to dispose of every possible ground,
whether "universal", humanitarian or other? One thing is certain, the
argument seeking to qualify immunities was rejected in the Judgment's
operative part. Any other argument founded on other grounds of
"trans-frontierism" is also virtually excluded in the reasoning. Faced with
the "sound judicial economy"FN113observed by our institution, it was for the
opinions to "illuminate the reasoning of the Judgment in counterpoint", so
that "the decision's full substance could be extracted and the whole import
of its contribution to the jurisprudence could be apprehended"FN114.
---------------------------------------------------------------------------------------------------------------------
FN111See the cases concerning the North Sea Continental Shelf, I.C.J.
Reports 1969, pp. 6 et seq.
FN112 There are some who trace "universal jurisdiction" back to the Middle
Ages. In this respect, one should perhaps be wary of taking as universal
what is probably merely regional. Hence, according to E. Ogueri II "the
rules of conduct which, for example, governed relations between Ghana and
Nigeria in West Africa, or between nations in other parts of Africa and
Asia, were regarded as 'universally recognized customary laws'" prior to
colonization. See E. Ogueri II, Intervention, International Law Association
Report. Warsaw Session, 1988, p. 969.
FN113 See Manfred Lachs, separate opinion appended to the Judgment of 24 May
1980 in the case concerning United States Diplomatic and Consular Staff in
Tehran, I.C.J. Reports 1980, p. 47.
FN114 Mohammed Bedjaoui, "La 'fabrication' des arrêts de la Cour
international de Justice". Le droit international au service de la paix, de
la justice et du développement, Mélanges Michel Virally, 1991, p. 105.
---------------------------------------------------------------------------------------------------------------------
108. In conclusion, it is clear that the Congo also seems to have acted in
accordance with the "functional duality" referred to by Georges Scelle. It
brought international legal proceedings not only on its own behalf and for
itself, but also for the benefit of the "international community". It has
given the Court the opportunity to reaffirm and strengthen the legal
mechanism of immunities, which facilitates legal relations between States
worldwide, irrespective of the arguments raised against it.
109. There is every likelihood that the Judgment, small in size, yet large
in legal substance, will be favourably received by the "international
community", if, of course, this is taken to mean all States, international
organizations and other international public entities. Irrespective of the
divergence of interests, the disparity in the level of development and the
diversity of cultures, what has been reaffirmed here is a denominator common
to all.
110. The decision should also serve as a rebuke to the opinion
manipulators, who should be denied the de facto power to exploit "the
misfortunes of others" for unstated endsFN115.
---------------------------------------------------------------------------------------------------------------------
FN115
See Bernard Kouchner. Le malheur des autres, 1991 (241 pages).
---------------------------------------------------------------------------------------------------------------------
[p 136]
111. Lastly, it should call for greater modesty from the new fundamentalist
crusaders on behalf of humanitarianism, "skilled at presenting problems in a
false light in order to justify damaging solutions"FN116, including a
certain trend of legal militancyFN117.
---------------------------------------------------------------------------------------------------------------------
FN116
See Aimé Césaire, Discours sur le colonialisme, 1995, p. 8.
FN117 On legal militancy, see J. Combacau and Serge Sur, Droit international
public, 1993. p. 46; Nguyen Quoc Dinh, Patrick Dallier and Alain Pellet,
Droit international public, 1992, p. 79. The authors discern a western
current of militancy, supposedly represented by Georg Schwarzenberger and
Rosalyn Higgins of the United Kingdom and My res S. McDougal, Richard Falk
and M. Reisman of the United States; an Eastern current, without indicating
any authors, and an Ancient World current with Mohammed Bedjaoui. Georges
Abi-Saab and Taslim Olawale Elias in the vanguard. In reality, there is
always an ideological start, and hence militancy, in the work of any author.
To quote just a few. J. Combacau and S. Sur, in op. cit., Avertissement,
while stressing their "legal positivism", nonetheless display their liberal
tendency. Thus, at a time when the number of ratifications required by the
Convention on the Law of the Sea had been reached, they still speculate:
"always supposing it ever enters into force" (pp. 452-453); see also the
assertion that this Convention has inverted "on purely formal bases the real
balance between interests and power" (p. 446) or the assertion that this
text is not "like the Geneva Conventions of 1958, a convention of
codification but one of progressive development . . ." (p. 452). See also
Nguyen Quoc Dinh et al., op. cit., p. 1093, who refer to "the possible entry
into force of the Convention".
---------------------------------------------------------------------------------------------------------------------
(Signed) Sayeman Bula-Bula.
[p 137]
DISSENTING OPINION OF JUDGE VAN DEN WYNGAERT
[English Original Text ]
Table of contents
|
|
Paragraphs |
|
|
|
|
I.
Introductory Observations
|
1-7 |
|
|
|
|
II.
Immunities
|
8-39 |
|
|
|
|
1.
There is no rule of customary international
law granting immunity to incumbent Foreign Ministers
|
11-23 |
|
|
|
|
2.
Incumbent Foreign Ministers are not immune
from the jurisdiction of other States when charged with war crimes
and crimes against humanity
|
24-38 |
|
|
|
|
(a)
The distinction between
immunity as a procedural defence and immunity as a substantive
defence is not relevant for the purposes of this dispute
|
29-33 |
|
(b)
The Court's proposition
that immunity does not necessarily lead to impunity is wrong
|
34-38 |
|
|
|
|
3. Conclusion
|
39 |
|
|
|
|
III.
Universal Jurisdiction
|
40-67 |
|
|
|
|
1. Universal jurisdiction
for war crimes and crimes against humanity is compatible with the
"Lotus"
test
|
48-62 |
|
|
|
|
(a)
International law does not
prohibit universal jurisdiction for war crimes and crimes against
humanity |
52-58 |
|
|
|
|
(b)
International law permits
universal jurisdiction for war crimes and crimes against humanity
|
59-62 |
|
[p 138] |
|
|
2.
Universal jurisdiction is not contrary to the complementarity
principle in the Statute for an International Criminal Court
|
63-66 |
|
|
|
|
3.
Conclusion |
67 |
|
|
|
|
IV.
Existence
or
an
Internationally Wrongful Act
|
68-80 |
|
|
|
|
1.
The
issuance
of the
disputed arrest warrant in Belgium was not in violation of
international law |
72-75 |
|
|
|
|
2.
The
international
circulation
of the disputed arrest warrant was not in violation of international
law |
76-79 |
|
|
|
|
3.
Conclusion |
80 |
|
|
|
|
V.
Remedies |
81-84 |
|
|
|
|
VI.
Final
Observations
|
85-87 |
[p 139]
I. Introductory Observations
1. I have voted against paragraphs (2) and (3) of the dispositif of this
Judgment. International law grants no immunity from criminal process to
incumbent Foreign Ministers suspected of war crimes and crimes against
humanity. There is no evidence for the proposition that a State is under an
obligation to grant immunity from criminal process to an incumbent Foreign
Minister under customary international law. By issuing and circulating the
warrant, Belgium may have acted contrary to international comity. It has
not, however, acted in violation of an international legal obligation
(Judgment, para. 78 (2)).
Surely, the warrant based on charges of war crimes and crimes against
humanity cannot infringe rules on immunity today, given the fact that Mr.
Yerodia has now ceased to be a Foreign Minister and has become an ordinary
citizen. Therefore, the Court is wrong when it finds, in the last part of
its dispositif, that Belgium must cancel the arrest warrant and so inform
the authorities to which the warrant was circulated (Judgment, para. 78
(3)).
I will develop the reasons for this dissenting view below. Before doing so,
I wish to make some general introductory observations.
2. The case was about an arrest warrant based on acts allegedly committed
by Mr. Yerodia in 1998 when he was not yet a Minister. These acts included
various speeches inciting racial hatred, particularly virulent remarks,
allegedly having the effect of inciting the population to attack Tutsi
residents in Kinshasa, dragnet searches, manhunts and lynchings. Following
complaints of a number of victims who had fled to Belgium, a criminal
investigation was initiated in 1998, which eventually, in April 2000, led to
the arrest warrant against Mr. Yerodia, who had meanwhile become a Minister
for Foreign Affairs in the Congo. This warrant was not enforced when Mr.
Yerodia visited Belgium on an official visit in June 2000, and Belgium,
although it circulated the warrant internationally via an Interpol Green
Notice, did not request Mr. Yero-dia's extradition as long as he was in
office. The request for an Interpol Red Notice was only made in 2001, after
Mr. Yerodia had ceased to be a Minister.
3. Belgium has, at present, very broad legislation that allows victims of
alleged war crimes and crimes against humanity to institute criminal
proceedings in its courts. This triggers negative reactions in some
circles, while inviting acclaim in others. Belgium's conduct (by its
Parliament, judiciary and executive powers) may show a lack of international
courtesy. Even if this were true, it does not follow that Belgium actually
violated (customary or conventional) international law. Political wisdom
may command a change in Belgian legislation, as has been proposed in [p 140]
various circlesFN1. Judicial wisdom may lead to a more restrictive
application of the present statute, and may result from proceedings that
are pending before the Belgian courtsFN2. This does not mean that Belgium
has acted in violation of international law by applying it in the case of
Mr. Yerodia. I see no evidence for the existence of such a norm, not in
conventional or in customary international law for the reasons set out
belowFN3.
---------------------------------------------------------------------------------------------------------------------
FN1
The Belgian Foreign Minister, the Belgian Minister of Justice, and the
Chairman of the Foreign Affairs Commission House of Representatives have
made public statements in which they called for a revision of the Belgian
Act of 1993/1999. The Government referred the matter to the Parliament,
where a bill was introduced in December 2001 (Proposition de loi modifiant,
sur le plan de la procédure, la loi du 16 juin 1993 relative à la répression
des violations graves du droit international humanitaire, doc. pari. Chambre
2001-2002, No. 1568/001, available at
http://www.lachambre.be/documents_parlementaires.html).
FN2 A. Winants. Le Ministère public et le droit pénal international.
Discours prononcé ¿i l'occasion de l'audience solennelle de rentrée de la
Cour d'appel de Bruxelles du 3 septembre 2001, p. 45.
FN3 Infra, paras. 11 et seq.
---------------------------------------------------------------------------------------------------------------------
4. The Judgment is shorter than expected because the Court, which was
invited by the Parties to narrow the dispute, did not decide the question
of (universal) jurisdiction, and has only decided the question of immunity
from jurisdiction, even though, logically the question of jurisdiction
would have preceded that of immunityFN4. In addition, the Judgment is very
brief in its reasoning and analysis of the arguments of the Parties. Some of
these arguments were not addressed, others in a very succinct manner,
certainly in comparison with recent judgments of nationalFN5 and
international courtsFN6 on issues that are comparable to those that were
before the International Court of Justice.
---------------------------------------------------------------------------------------------------------------------
FN4
See further infra, para. 41.
FN5 Prominent examples are the Pinochet cases in Spain and the United
Kingdom (Audiencia Nacional. Auto de la Sala de lo Penal de la Audiencia
Nacional confirmando la jurisdicción de España para conocer de los crímenes
de genocidio y terrorismo cometidos durante la dictadura chilena, 5 November
1998, http://www.derechos.org/nizkor/chile/ juicio/audi.html ; R. v. Bow
Street Metropolitan Stipendiary Magistrale and Others, ex parte Pinochet
ligarte, 24 March 1999, [1999] 2 All ER 97, HL, p. 97), the Qaddafi case in
France (Cour de cassation, 13 March 2001,
http://courdecassation.fr/agenda/arrets/ arrets/00-87215.htm) and the
Bouterse case in the Netherlands (Hof Amsterdam, No. R 97/163/12 Sv and R
97/176/12 Sv, 20 November 2000: Höge Raad, Strafkamer, Zaaknr. 00749/01 CW
2323, 18 September 2001, http://www.rechtspraak.nl).
FN6 ECHR (European Commission of Human Rights), Al-Adsani v. United Kingdom,
21 November 2001, http://www.echr.coe.int.
---------------------------------------------------------------------------------------------------------------------
5. This case was to be a test case, probably the first opportunity for the
International Court of Justice to address a number of questions that have [p
141] not been considered since the famous "Lotus" case of the Permanent
Court of International Justice in 1927FN7.
---------------------------------------------------------------------------------------------------------------------
FN7 "Lotus",
Judgment No. 9, 1927, P.C.I.J., Series A. No. 10.
---------------------------------------------------------------------------------------------------------------------
In technical terms, the dispute was about an arrest warrant against an
incumbent Foreign Minister. The warrant was, however, based on charges of
war crimes and crimes against humanity, which the Court even fails to
mention in the dispositif. In a more principled way, the case was about how
far States can or must go when implementing modern international criminal
law. It was about the question what international law requires or allows
States to do as "agents" of the international community when they are
confronted with complaints of victims of such crimes, given the fact that
international criminal courts will not be able to judge all international
crimes. It was about balancing two divergent interests in modern
international (criminal) law: the need of international accountability for
such crimes as torture, terrorism, war crimes and crimes against humanity
and the principle of sovereign equality of States, which presupposes a
system of immunities.
6. The Court has not addressed the dispute from this perspective and has
instead focused on the very narrow question of immunities of incumbent
Foreign Ministers. In failing to address the dispute from a more principled
perspective, the International Court of Justice has missed an excellent
opportunity to contribute to the development of modern international
criminal law.
Yet international criminal law is becoming a very important branch of
international law. This is manifested in conventions, in judicial decisions
of national courts, international criminal tribunals and of international
human rights courts, in the writings of scholars and in the activities of
civil society. There is a wealth of authority on concepts such as universal
jurisdiction, immunity from jurisdiction and international accountability
for war crimes and crimes against humanityFN8. It is surprising that the
International Court of Justice does not use the term international criminal
law and does not acknowledge the existence of these authorities.
---------------------------------------------------------------------------------------------------------------------
FN8
See further infra, footnote 98.
---------------------------------------------------------------------------------------------------------------------
7. Although, as a matter of logic, the question of jurisdiction comes
firstFN9, I will follow the chronology of the reasoning of the Judgment and
deal with immunities first.
---------------------------------------------------------------------------------------------------------------------
FN9
Infra, para. 41.
---------------------------------------------------------------------------------------------------------------------
[p 142]
II. Immunities
8. The Court starts by observing that, in the absence of a general text
defining the immunities of Ministers for Foreign Affairs, it is on the basis
of customary international law that it must decide the questions relating to
the immunities of Ministers for Foreign Affairs raised by the present case
(Judgment, para. 52 in fine). It immediately continues by stating that "In
customary international law, the immunities accorded to Ministers for
Foreign Affairs are not granted for their personal benefit, but to ensure
the effective performance of their functions on behalf of their respective
States" (Judgment, para. 53). The Court then compares the functions of
Foreign Ministers with those of Ambassadors and other diplomatic agents on
the one hand, and those of Heads of State and Heads of Governments on the
other, whereupon it reaches the following conclusion (Judgment, para. 54):
"The Court accordingly concludes that the functions of a Minister for
Foreign Affairs are such that, throughout the duration of his or her office,
he or she when abroad enjoys full immunity from criminal jurisdiction and
inviolability. That immunity and that inviolability protect the individual
concerned against any act of authority of another State which would hinder
him or her in the performance of his or her duties."
9. On the other hand, the Court, looking at State practice in the field of
war crimes and crimes against humanity (Judgment, para. 58), decides that:
"It has been unable to deduce from this practice that there exists under
customary international law any form of exception to the rule according
immunity from criminal jurisdiction and inviolability to incumbent Ministers
for Foreign Affairs, where they are suspected of having committed war crimes
or crimes against humanity."
10. I disagree with the reasoning of the Court, which can be summarized as
follows: (a) there is a rule of customary international law granting "full"
immunity to incumbent Foreign Ministers (Judgment, para. 54), and (b) there
is no rule of customary international law departing from this rule in the
case of war crimes and crimes against humanity (Judgment, para. 58). Both
propositions are wrong.
First, there is no rule of customary international law protecting incumbent
Foreign Ministers against criminal prosecution. International comity and
political wisdom may command restraint, but there is no obligation under
positive international law on States to refrain from exercising jurisdiction
in the case of incumbent Foreign Ministers suspected of war crimes and
crimes against humanity. [p 143]
Secondly, international law does not prohibit, but instead encourages States
to investigate allegations of war crimes and crimes against humanity, even
if the alleged perpetrator holds an official position in another State.
Consequently, Belgium has not violated an obligation under international
law by issuing and internationally circulating the arrest warrant against
Mr. Yerodia. I will explain the reasons for this conclusion in the following
two paragraphs.
/. There Is No Rule of Customary International Law Granting Immunity to
Incumbent Foreign Ministers
11. I disagree with the proposition that incumbent Foreign Ministers enjoy
immunities on the basis of customary international law for the simple reason
that there is no evidence in support of this proposition. Before reaching
this conclusion, the Court should have examined whether there is a rule of
customary international law to this effect. It is not sufficient to compare
the rationale for the protection from suit in the case of diplomats. Heads
of State and Foreign Ministers to draw the conclusion that there is a rule
of customary international law protecting Foreign Ministers: identifying a
common raison d'etre for a protective rule is one thing, elevating this
protective rule to the status of customary international law is quite
another thing. The Court should have first examined whether the conditions
for the formation of a rule of customary law were fulfilled in the case of
incumbent Foreign Ministers. In a surprisingly short decision, the Court
immediately reaches the conclusion that such a rule exists. A more rigorous
approach would have been highly desirable.
12. In the brevity of its reasoning, the Court disregards its own case law
on the subject on the formation of customary international law. In order to
constitute a rule of customary international law, there must be evidence of
State practice (usus) and opinio juris to the effect that this rule exists.
In one of the leading precedents on the formation of customary
international law, the Continental Shelf case, the Court stated the
following:
"Not only must the acts concerned amount to a settled practice, but they
must also be such, or be carried out in such a way, as to be evidence of a
belief that this practice is rendered obligatory by the existence of a rule
of law requiring it. The need for such a belief, i.e., the existence of a
subjective element, is implicit in the very notion of the opinio juris sive
necessitatis. The States concerned must therefore feel that they are
conforming to what amounts to a legal obligation.
[p 144]
The frequency, or even habitual character of the acts is not in itself
enough. There are many international acts, e.g., in the field of ceremony
and protocol, which are performed almost invariably, but which are motivated
only by considerations of courtesy, convenience or tradition, and not by any
sense of legal duty."FN10
------------------------------------------------------------------------------------------------------------
FN10
North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, p. 44, para. 77.
------------------------------------------------------------------------------------------------------------
In the Nicaragua case, the Court held that:
"Bound as it is by Article 38 of its Statute to apply, inter alia,
international custom 'as evidence of a general practice accepted as law',
the Court may not disregard the essential role played by general practice .
. . The Court must satisfy itself that the existence of the rule in the
opinio juris of States is confirmed by practice."FN11
------------------------------------------------------------------------------------------------------------
FN11"
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States of America), Merits. Judgment, I.C.J. Reports 1986, pp. 97-98.
para. 184.
------------------------------------------------------------------------------------------------------------
13. In the present case, there is no settled practice (usus) about the
postulated "full" immunity of Foreign Ministers to which the International
Court of Justice refers in paragraph 54 of its present Judgment. There may
be limited State practice about immunities for currentFN12 or former Heads
of StateFN13 in national courts, but there is no such practice about Foreign
Ministers. On the contrary, the practice rather seems to be that there are
hardly any examples of Foreign Ministers being granted immunity in foreign
jurisdictionsFN14. Why this is so is a matter of speculation. The question,
however, is what to infer from this "negative practice". Is this the
expression of an opinio juris to the effect that international law
prohibits criminal proceedings or, concomitantly, that Belgium [p 145] is
under an international obligation to refrain from instituting such
proceedings against an incumbent Foreign Minister?
---------------------------------------------------------------------------------------------------------------------
FN12
Cour de cassation (Fr.), 13 March 2001 (Qaddafi).
FN13 R. v. Bow Street Metropolitan Stipendiary Magistrate and Others, ex
parte Pinochet Ugarte. 25 November 1998. [1998] 4 All ER 897.
FN14 Only one case has been brought to the attention of the Court: Chong
Boon Kim v. Kim Yong Shik and David Kim. Circuit Court (First Circuit, State
of Hawaii), 9 September 1963, 58 AJIL. 1964, pp. 186-187. This case was
about an incumbent Foreign Minister against whom process was served while he
was on an official visit in the United States (see paragraph 1 of the
"Suggestion of Interest Submitted on Behalf of the United States", ibid.).
Another case where immunity was recognized, not of a Minister but of a
prince, was in the case of Kilrov v. Windsor (Prince Charles, Prince of
Wales), US District Court for the ND of Ohio. 7 December 1978. International
Law Reports. Vol. 81, 1990. pp. 605607. In that case, the judge observes:
"The Attorney-General . . . has determined that the Prince of Wales is
immune from suit in this matter and has filed a 'suggestion of immunity'
with the Court . . . [T]he doctrine, being based on foreign policy
considerations and the Executive's desire to maintain amiable relations with
foreign States, applies with even more force to live persons representing a
foreign nation on an official visit." (Emphasis added.)
---------------------------------------------------------------------------------------------------------------------
A "negative practice" of States, consisting in their abstaining from
instituting criminal proceedings, cannot, in itself, be seen as evidence of
an opinio juris. Abstinence may be explained by many other reasons,
including courtesy, political considerations, practical concerns and lack of
extraterritorial criminal jurisdictionFN15. Only if this abstention was
based on a conscious decision of the States in question can this practice
generate customary international law. An important precedent is the 1927
"Lotus" case, where the French Government argued that there was a rule of
customary international law to the effect that Turkey was not entitled to
institute criminal proceedings with regard to offences committed by
foreigners abroadFN16. The Permanent Court of International Justice rejected
this argument and held:
---------------------------------------------------------------------------------------------------------------------
FN15 In some States, for example, the United States, victims of
extraterritorial human rights abuses can bring civil actions before the
Courts. See, for example, the Karadzic case (Kadic v. Karadzic, 70 F. 3d 232
(2d Cir. 1995)). There are many examples of civil suits against incumbent or
former Heads of State, which often arose from criminal offences. Prominent
examples are the Aristeguieta case (Jimenez v. Arisieguieta, ILR, 1962. p.
353), the Aristide case (Lajontant v. Aristide, 844 F. Supp. 128 (EDNY
1994), noted in 88 AJIL, 1994, pp. 528-532), the Marcos cases (Estate of
Silme G Domingo v. Ferdinand Marcos, No. C82-1055V, 77 AJIL, 1983, p. 305:
Republic of the Philippines v. Marcos and Others (1986), ILR, 81. p. 581 and
Republic of the Philippines v. Marcos and Others, 1987, 1988. ILR, 81, pp.
609 and 642) and the Duvalier case (Jean-Juste v. Duvalier. No. 86-0459 Civ
(US District Court. SD Fla.), 82 AJIL, 1988. p. 596), all mentioned and
discussed by Watts (A. Watts. "The Legal Position in International Law of
Heads of States, Heads of Governments and Foreign Ministers", Recueil des
cours de l'Académie de droit international de La Haye, 1994, Vol. 247, pp.
54 et seq.). See also the American 1996 Antiterrorism and Effective Death
Penalty Act which amended the Foreign Sovereign Immunities Act (FSIA).
including a new exception to State immunity in case of torture for civil
claims. See J. F. Murphy, "Civil Liability for the Commission of
International Crimes as an Alternative to Criminal Prosecution", 12 Harvard
Human Rights Journal, 1999. pp. 1 -56.
FN16 See also infra, para. 48.
---------------------------------------------------------------------------------------------------------------------
"Even if the rarity of the judicial decisions to be found among the reported
cases were sufficient to prove in point of fact the circumstance alleged by
the Agent for the French Government, it would merely show that States had
often, in practice, abstained from instituting criminal proceedings, and
not that they recognized themselves as being obliged to do so; for only if
such abstention were based on their being conscious of having a duty to
abstain would it be possible to speak of an international custom."FN17
------------------------------------------------------------------------------------------------------------
FN17"Lotus",
supra, footnote 7, p. 28. For a commentary, see I. C. McGibbon, "Custom-ary
International Law and Acquiescence", BYBIL, 1957. p. 129.
------------------------------------------------------------------------------------------------------------
[p 146]
14. In the present case, the Judgment of the International Court of Justice
proceeds from a mere analogy with immunities for diplomatic agents and Heads
of State. Yet, as Sir Arthur Watts observes in his lectures published in
the Recueil des cows de l'Académie de droit international on the legal
position in international law of Heads of States, Heads of Governments and
Foreign Ministers: "analogy is not always a reliable basis on which to build
rules of law"FN18. Professor Joe Verhoeven, in his report on the same
subject for the Instituí de droit international likewise makes the point
that courts and legal writers, while comparing the different categories,
usually refrain from making "a straightforward analogy"FN19.
---------------------------------------------------------------------------------------------------------------------
FN18
A. Watts. "The Legal Position in International Law of Heads of States, Heads
of Governments and Foreign Ministers", Recueil des cours de l'Académie de
droit international de La Haye, 1994, Vol. 247, p. 40.
FN19 J. Verhoeven, L'immunité de juridiction et d'exécution des chefs d'Etat
et ancienschefs d'Etat. Report of the 13th Commission of the Institut de
droit international, p. 46,para. 18. [Translation by the Registry]
---------------------------------------------------------------------------------------------------------------------
15. There are fundamental differences between the circumstances of
diplomatic agents, Heads of State and Foreign Ministers. The circumstances
of diplomatic agents are comparable, but not the same as those of Foreign
Ministers. Under the 1961 Vienna Convention on Diplomatic RelationsFN20,
diplomatic agents enjoy immunity from the criminal jurisdiction of the
receiving State. However, diplomats reside and exercise their functions on
the territory of the receiving States whereas Ministers normally reside in
the State where they exercise their functions. Receiving States may decide
whether or not to accredit foreign diplomats and may always declare them
persona non grata. Consequently, they have a "say" in what persons they
accept as a representative of the other StateFN21. They do not have the same
opportunity vis-á-vis Cabinet Ministers, who are appointed by their
Governments as part of their sovereign prerogatives.
---------------------------------------------------------------------------------------------------------------------
FN20
Convention on Diplomatie Relations, Vienna. 18 April 1961. United Nations,
TreatySeries i UNTS). Vol. 500, p. 95.
FN21 See, for example, the Danish hesitations concerning the accreditation
of a newambassador for Israel in 2001, after a new government had come to
power in that State:The Copenhagen Post. 29 July 2001, The Copenhagen Post,
31 July 2001, The CopenhagenPost. 24 August 2001, and "Prosecution of New
Ambassador?", The Copenhagen Post, 7 November 2001 (all available on the
Internet: http://cphpost.periskop.dk).
---------------------------------------------------------------------------------------------------------------------
16. Likewise, there may be an analogy between Heads of State, who probably
enjoy immunity under customary international lawFN22, and Foreign
Ministers. But the two cannot be assimilated for the only reason that their
functions may be compared. Both represent the State, but Foreign Ministers
do not "impersonate" the State in the same way as Heads of [p 147] State,
who are the State's alter ego. State practice concerning immunities of
(incumbent and former) Heads of StateFN23 does not, per se, apply to Foreign
Ministers. There is no State practice evidencing an opinio juris on this
point.
---------------------------------------------------------------------------------------------------------------------
FN22
In civil and administrative proceedings this immunity is. however, not
absolute. SeeA. Watts, op. cit., pp. 36 and 54. See also supra, footnote 15.
FN23 See supra, footnotes 12 and 13.
---------------------------------------------------------------------------------------------------------------------
17. Whereas the International Law Commission (ILC), in its mission to codify
and progressively develop international law, has managed to codify customary
international law in the case of diplomatic and consular agentsFN24, it has
not achieved the same result regarding Heads of State or Foreign Ministers.
It is noteworthy that the International Law Commission's Special Rapporteur
on Jurisdictional Immunities of States and their Property, in his 1989
report, expressed the view that privileges and immunities enjoyed by Foreign
Ministers are granted on the basis of comity rather than on the basis of
established rules of international lawFN25. This, according to Sir Arthur
Watts, may explain why doubts as to the extent of jurisdictional immunities
of Heads of Government and Foreign Ministers under customary international
law have survived in the final version of the International Law Commission's
1991 Draft Articles on Jurisdictional Immunities of States and their
PropertyFN26, which in Article 3. paragraph 2, only refer to Heads of State,
not to Foreign Ministers.
---------------------------------------------------------------------------------------------------------------------
FN24
Convention on Diplomatic Relations, Vienna. 18 April 1961, UNTS, Vol. 500,
p. 95, and Convention on Consular Relations. Vienna, 24 April 1963, UNTS,
Vol. 596. p. 262.
FN25 Yearbook of the International Law Commission (YlLC), 1989. Vol. II (2),
Part 2, para. 446.
FN26 A. Watts, op. cit., p. 107.
---------------------------------------------------------------------------------------------------------------------
In the field of the criminal law regarding international core crimes such as
war crimes and crimes against humanity, the International Law Commission
clearly adopts a restrictive view on immunities, which is reflected in
Article 7 of the 1996 Draft Code of Offences against the Peace and Security
of Mankind. These Articles are intended to apply, not only to international
criminal courts, but also to national authorities exercising jurisdiction
(Article 8 of the Draft Code) or co-operating mutually by extraditing or
prosecuting alleged perpetrators of international crimes (Article 9 of the
Draft Code). I will further develop this when addressing the problem of
immunities for incumbent Foreign Ministers charged with war crimes and
crimes against humanityFN27.
---------------------------------------------------------------------------------------------------------------------
FN27
See infra, paras. 24 et seq. and particularly para. 32.
---------------------------------------------------------------------------------------------------------------------
18. The only text of conventional international law, which may be of
relevance to answer this question of the protection of Foreign Ministers, [p
148] is the 1969 Convention on Special MissionsFN28. Article 21 of this
Convention clearly distinguishes between Heads of State (para. 1) and
Foreign Ministers (para. 2):
---------------------------------------------------------------------------------------------------------------------
FN28
United Nations Convention on Special Missions, New York, 16 December 1969,
Annex to UNGA res. 25.30 (XXIV) of 8 December 1969.
---------------------------------------------------------------------------------------------------------------------
"1. The Head of the sending State, when he leads a special mission, shall
enjoy in the receiving State or in a third State the facilities, privileges
and immunities accorded by international law . . .
2. The Head of the Government, the Minister for Foreign Affairs and other
persons of high rank, when they take part in a special mission of the
sending State, shall enjoy in the receiving State or in a third State, in
addition to what is granted by the present Conven-tion, the facilities,
privileges and immunities accorded by international law."
Legal opinion is divided on the question to what extent this Convention may
be considered a codification of customary international lawFN29. This
Convention has not been ratified by the Parties to the dispute. It links the
"facilities, privileges and immunities" of Foreign Ministers' offi-cial
visits (when they take part in a special mission of the sending State).
There may be some political wisdom in the proposition that a Foreign
Minister should be accorded the same privileges and immunities as a Head of
State, but this may be a matter of courtesy, and does not necessarily lead
to the conclusion that there is a rule of customary international law to
this effect. It certainly does not follow from the text of the Special
Missions Convention. Applying this to the dispute between the Democratic
Republic of the Congo and Belgium, the only conclusion that follows from the
Special Missions Convention, were it to be applicable between the two
States concerned, is that an arrest warrant against an incumbent Foreign
Minister cannot be enforced when he is on an official visit (immunity from
execution)FN30.
---------------------------------------------------------------------------------------------------------------------
FN29
J. Salmon observes that the limited number of ratifications of the
Convention can be explained because of the fact that the Convention sets all
special missions on the same footing, according the same privileges and
immunities to Heads of State on a official visit and to the members of an
administrative commission which comes negotiating over technical issues.
See J. Salmon, Manuel de droit diplomatique, 1994. p. 546.
FN30 See also infra, para. 75 (inviolability).
---------------------------------------------------------------------------------------------------------------------
19. Another international convention that mentions Foreign Ministers is the
1973 Convention on the Prevention and Punishment of Crimes against
Internationally Protected PersonsFN31. This Convention indeed [p 149]
defines "internationally protected persons" so as to include Heads of State,
Heads of Government and Foreign Ministers and other representatives of the
State, and may hereby create the impression that the different categories
mentioned can be assimilated (Art. 1). This assimilation, however, is not
relevant for the purposes of the present dispute. The 1973 Convention is not
about immunities from criminal proceedings in another State, but about the
protection of the high foreign officials it enumerates when they are victims
of certain acts of terrorism such as murder, kidnapping or other attacks on
their person or liberty (Art. 2). It is not about procedural protections for
these persons when they are themselves accused of being perpetrators of war
crimes and crimes against humanity.
---------------------------------------------------------------------------------------------------------------------
FN31
Convention on the Prevention and Punishment of Crimes against
Internationally Protected Persons, New York, 14 December 1973, 78 (JNTS. p.
277.
---------------------------------------------------------------------------------------------------------------------
20. There is hardly any support in legal doctrine for the International
Court of Justice's postulated analogy between Foreign Ministers and Heads of
State on the subject of immunities. Oppenheim and Lauterpacht write:
"members of a Government have not the exceptional position of Heads of
States . . ,"FN32. This view is shared by A. CavaglieriFN33, P. CahierFN34,
J. SalmonFN35, B. S. MurtyFN36 and J. S. de Erice y O'SheaFN37.
---------------------------------------------------------------------------------------------------------------------
FN32
L. Oppenheim and H. Lauterpacht (eds.). International Law, a Treatise, Vol.
I, 1955, p. 358. See also the Ninth (1992) Edition (Jennings and Watts,
eds.) at p. 1046.
FN33 A. Cavaglieri. Corso di Diritto Internazionale, 2nd ed., pp. 321-322.
FN34 P. Cahier, Le droit diplomatique contemporain, 1962, pp. 359-360.
FN35 J. Salmon. Manuel de droit diplomatique. 1994, p. 539.
FN36 B. S. Murty, The International Law of Diplomacy: The Diplomatic
Instrument and World Public Order, 1989, pp. 333-334.
FN37 J. S. de Erice y O'Shea. Derecho Diplomatico, 1954, pp. 377-378.
---------------------------------------------------------------------------------------------------------------------
Sir Arthur Watts is adamant in observing that principle "suggests that a
head of government or foreign minister who visits another State for official
purposes is immune from legal process while there"FN38. Commenting further
on the question of "private visits", he writes:
---------------------------------------------------------------------------------------------------------------------
FN38A.Watts,
op.cit., p.106 (emphasis added.). See also p.54:
"So far as concerns criminal proceedings, a Head of State's immunity is
generally accepted as being absolute, as it is for ambassadors, and as
provided in Article 31(1) of the Convention on Special Missions for Heads of
States coming within its scope." (Emphasis added.)
---------------------------------------------------------------------------------------------------------------------
"Although it may well be that a Head of State, when on a private visit to
another State, still enjoys certain privileges and immunities, it is much
less likely that the same is true of heads of governments and foreign
ministers. Although they may be accorded certain spe-cial treatment by the
host State, this is more likely to be a matter of [p 150] courtesy and
respect for the seniority of the visitor, than a reflection of any belief
that such a treatment is required by international law."FN39
------------------------------------------------------------------------------------------------------------
FN39
A. Watts, op. cit., p. 109.
------------------------------------------------------------------------------------------------------------
21. More recently, the Institut de droit international, at its 2001
Vancouver session, addressed the question of the immunity of Heads of State
and Heads of Government. The draft resolution explicitly assimilated Heads
of Government and Foreign Ministers with Heads of State in Article 14,
entitled "Le Chef de gouvernement et le ministre des Affaires étrangères".
This draft Article does not appear in the final version of the Institut de
droit international resolution. The final resolution only mentions Heads of
Government, not Foreign Ministers. The least one can conclude from this
difference between the draft resolution and the final text is that the
distinguished members of the Institut considered but did not decide to place
Foreign Ministers on the same footing as Heads of StateFN40.
--------------------------------------------------------------------------------------------------------------------
FN40
See the Report of J. Verhoeven, supra, footnote 19 (draft resolutions) and
the finalresolutions adopted at the Vancouver meeting on 26 August 2001
(publication in theYearbook of the Institute forthcoming). See further H.
Fox, "The Resolution of the Insti-tute of International Law on the
Immunities of Heads of State and Government", 51ICLQ, 2002, pp. 119-125.
---------------------------------------------------------------------------------------------------------------------
The reasons behind the final version of the resolution are not clear. It may
or may not reflect the Institut de droit international's view that there is
no customary international law rule that assimilates Heads of State and
Foreign Ministers. Whatever may be the Institut de droit interna-tional's
reasons, it was a wise decision. Proceeding to assimilations of the kind
proposed in the draft resolution would dramatically increase the number of
persons that enjoy international immunity from jurisdiction. There would be
a potential for abuse. Male fide Governments could appoint suspects of
serious human rights violations to cabinet posts in order to shelter them
from prosecution in third States.
22. Victims of such violations bringing legal action against such persons
in third States would face the obstacle of immunity from jurisdiction.
Today, they may, by virtue of the application of the principle contained in
Article 21 of the 1969 Special Missions ConventionFN41, face the obstacle of
immunity from execution while the Minister is on an official visit, but they
would not be barred from bringing an action altogether. Taking immunities
further than this may even lead to conflict with inter-[p 151]national
human rights rules as appears from the recent Al-Adsani case of the European
Court of Human RightsFN42.
---------------------------------------------------------------------------------------------------------------------
FN41
Supra, para. 18.
FN42 ECHR. Al-Adsani v. United Kingdom, 21 November 2001,
http://www.echr.coe.int. In that case, the Applicant, a Kuwaiti/British
national, claimed to have been the victim of serious human rights violations
(torture) in Kuwait by agents of the Government of Kuwait. In the United
Kingdom, he complained about the fact that he had been denied access to
court in Britain because the courts refused to entertain his complaint on
the basis of the 1978 State Immunity Act. Previous cases before the ECHR had
usually arisen from human rights violations committed on the territory of
the respondent State and related to acts of torture allegedly committed by
the authorities of the respondent State itself, not by the authorities of
third States. Therefore, the question of international immunities did not
arise. In the Al-Adsani case, the alleged human rights violation was
committed abroad, by authorities of another State and so the question of
immunity did arise. The ECHR (with a 9/8 majority), has rejected Mr.
Al-Adsani's application and held that there has been no violation of Article
6. paragraph 1, of the Convention (right of access to court). However, the
decision was reached with a narrow majority (9/8 and 8 dissenting opinions)
and was itself very narrow: it only decided the question of immunities in a
civil proceeding, leaving the question as to the application of immunities
in a criminal proceeding unanswered. Dissenting judges, Judges Rozakis and
Caflisch joined by Judges Wildhaber, Costa, Cabral Barreto and Vajic and
also Loucaides read the decision of the majority as implying that the court
would have found a violation had the proceedings in the United Kingdom been
criminal proceedings against an individual for an alleged act of torture
(paragraph 60 of the judgment, as interpreted by the dissenting judges in
paragraph 4 of their opinion).
---------------------------------------------------------------------------------------------------------------------
23. I conclude that the International Court of Justice, by deciding that
incumbent Foreign Ministers enjoy full immunity from foreign criminal
jurisdiction (Judgment, para. 54), has reached a conclusion which has no
basis in positive international law. Before reaching this conclusion, the
Court should have satisfied itself of the existence of usus and opinio
juris. There is neither State practice nor opinio juris establishing an
international custom to this effect. There is no treaty on the subject and
there is no legal opinion in favour of this proposition. The Court's
conclusion is reached without regard to the general tendency toward the
restriction of immunity of the State officials (including even Heads of
State), not only in the field of private and commercial law where the par in
parem principle has become more and more restricted and deprived of its
mys-tiqueFN43, but also in the field of criminal law, when there are
allegations of serious international crimesFN44. Belgium may have acted
contrary to international comity, but has not infringed international law.
The Judgment is therefore based on flawed reasoning.
---------------------------------------------------------------------------------------------------------------------
FN43
Supra, footnote 22.
FN44 Infra, paras. 24 et seq.
---------------------------------------------------------------------------------------------------------------------
[p 152]
2. Incumbent Foreign Ministers Are Not Immune from the Jurisdiction of Other
States When Charged with War Crimes and Crimes against Humanity
24. On the subject of war crimes and crimes against humanity, the Court
reaches the following decision: it holds that it is unable to decide that
there exists under customary international law any form of exception to the
rule according immunity from criminal process and inviolability to incumbent
Ministers for Foreign Affairs, where they are suspected of having committed
war crimes or crimes against humanity (Judgment, para. 58, first
subparagraph).
It goes on by observing that there is nothing in the rules concerning the
immunity or the criminal responsibility of persons having an official
capacity contained in the legal instruments creating international criminal
tribunals that enables it to find that such an exception exists under
customary international law before national criminal tribunals (Judgment,
para. 58, second subparagraph).
This immunity, it concludes, "remain[s] opposable before the courts of a
foreign State, even where those courts exercise such a jurisdiction under
these conventions" (Judgment, para. 59 in fine).
25. I strongly disagree with these propositions. To start with, as set out
above, the Court starts from a flawed premise, assuming that incumbent
Foreign Ministers enjoy full immunity from jurisdiction under customary
international law. This premise taints the rest of the reasoning. It leads
to another flaw in the reasoning: in order to "counterbalance" the
postulated customary international law rule of "full immunity", there needs
to be evidence of another customary international law rule that would negate
the first rule. It would need to be established that the principle of
international accountability has also reached the status of customary
international law. The Court finds no evidence for the existence of such a
rule in the limited sources it considersFN45 and concludes that there is a
violation of the first rule, the rule of immunity.
---------------------------------------------------------------------------------------------------------------------
FN45
In paragraph 58 of the Judgment, the Court only refers to instruments that
are relevant for international criminal tribunals (the statutes of the
Nuremberg and the Tokyo tribunals, statutes of the ad hoc criminal tribunals
and the Rome Statute for an International Criminal Court). But there are
also other instruments that are of relevance, and that refer to the
jurisdiction of national tribunals. A prominent example is Control Council
Law No. 10. Punishment of Persons Guilty of War Crimes. Crimes against Peace
and against Humanity, Official Gazette of the Control Council for Germany,
No. 3, Berlin. 31 January 1946. See also Article 7 of the 1996 ILC Draft
Code of Offences against the Peace and Security of Mankind.
---------------------------------------------------------------------------------------------------------------------
26. Immunity from criminal process, the International Court of Justice
emphasizes, does not mean the impunity of a Foreign Minister for crimes that
he may have committed, however serious they may be. It goes [p 153] on by
making two points showing its adherence to this principle: (a)
jurisdictional immunity, being procedural in nature, is not the same as
criminal responsibility, which is a question of substantive law and the
person to whom jurisdictional immunity applies is not exonerated from all
criminal responsibility (Judgment, para. 60); (b) immunities enjoyed by an
incumbent Foreign Minister under international law do not represent a bar to
criminal prosecution in four sets of circumstances, which the Court further
examines (Judgment, para. 61).
This is a highly unsatisfactory rebuttal of the arguments in favour of
international accountability for war crimes and crimes against humanity,
which moreover disregards the higher order of the norms that belong to the
latter category. I will address both points in subsections (a) and (b) of
this section, below. Before doing so, I wish to make a general comment on
the approach of the Court.
27. Apart from being wrong in law, the Court is wrong for another reason.
The more fundamental problem lies in its general approach, that disregards
the whole recent movement in modern international criminal law towards
recognition of the principle of individual accountability for international
core crimes. The Court does not completely ignore this, but it takes an
extremely minimalist approach by adopting a very narrow interpretation of
the "no immunity clauses" in international instruments.
Yet, there are many codifications of this principle in various sources of
law, including the Nuremberg PrinciplesFN46 and Article IV of the Genocide
ConventionFN47. In addition, there are several United Nations resolu-[p
154]tionsFN48 and reportsFN49 on the subject of international
accountability for war crimes and crimes against humanity.
---------------------------------------------------------------------------------------------------------------------
FN46
Nuremberg Principles, Geneva, 29 July 1950. Official Records of the
GeneralAssembly, Fifth Session, Supplement No. 12, United Nations doc.
A/1316 (1950).
FN47 Convention on the Prevention and Suppression of the Crime of Genocide.
Paris.9 December 1948. UNTS, Vol. 78, p. 277. See also Art. 7 of the
Nuremberg Charter(Charter of the International Military Tribunal, London, 8
August 1945. UNTS, Vol. 82,p. 279); Art. 6 of the Tokyo Charter (Charter of
the Military Tribunal for the Far East.Tokyo, 19 January 1946. TIAS. No.
1589); Art. II (4) of the Control Council Law No. 10(Control Council Law No.
10. Punishment of Persons Guilty of War Crimes, Crimes against Peace and
against Humanity, Berlin, 20 December 1945, Official Gazette of the Control
Council for Germany, No. 3. Berlin, 31 January 1946); Art. 7. para. 2. of
the ICTY Statute (Statute of the International Tribunal for the Former
Yugoslavia. New York, 25 May 1993. ILM, 1993. p. 1192); Art. 6. para. 2. of
the 1CTR Statute (Statute of the International Tribunal for Rwanda, New
York, 8 November 1994, ILM, 1994,p. 1598); Art. 7 of the 1996 ILC Draft Code
of Offences against the Peace and Security of Mankind (Draft Code of Crimes
against the Peace and Security of Mankind. Geneva,5 July 1996, YILC 1996,
Vol. II (2)); and Art. 27 of the Rome Statute for an International Criminal
Court (Statute of the International Criminal Court, Rome, 17 July 1998,
ILM.1998, p. 999).
FN48 See, for example, Sub-Commission on Human Rights, res. 2000/24. Role of
Universal or Extraterritorial Competence in Preventive Action against
Impunity, 18 August 2000, E/CN.4/SUB.2/RES/2000/24: Commission on Human
Rights, res. 2000/68. Impunitv, 26 April 2000. E/CN.4/RES/2000/68;
Commission on Human Rights, res. 2000/70, Impunity, 25 April 2001.
E/CN.4/RES/2000/70 (taking note of Sub-Commission res. 2000/24).
FN49 Sub-Commission on Prevention of Discrimination and Protection of
Minorities, The Administration of Justice and the Human Rights of Detainees,
Question of the Impunity of Perpetrators of Human Rights Violations ( Civil
and Political), Revised final report prepared hv Mr. Joinet pursuant to
Sub-Commission decision 19961119, 2 October 1997, E/CN.4/Sub.2/1997/20/Rev.l
; Commission on Human Rights, Civil and Political Rights, Including the
Questions of: Independence of the Judiciary. Administration of Justice,
Impunity, the Right to Restitution, Compensation and Rehabilitation for
Victims of Gross Violations of Human Rights and Fundamental Freedoms, Final
report of the Special Rapporteur, Mr. M. Cherif Bassiouni, submitted in
accordance with Commission res. ¡999133, E/CN.4/2000/62.
---------------------------------------------------------------------------------------------------------------------
In legal doctrine, there is a plethora of recent scholarly writings on the
subjectFN50. Major scholarly organizations, including the International Law
AssociationFN51 and the Institut de droit international have adopted
resolutionsFN52 and newly established think tanks, such as the drafters of
the "Princeton principles"FN53 and of the "Cairo principles"FN54 have made
state-ments on the issue. Advocacy organizations, such as Amnesty
InternationalFN55, Avocats sans FrontièresFN56, Human Rights Watch, The
International Federation of Human Rights Leagues (FIDH) and the Interna-[p
155]tional Commission of JuristsFN57, have taken clear positions on the
subject of international accountabilityFN58. This may be seen as the opinion
of civil society, an opinion that cannot be completely discounted in the
formation of customary international law today. In several cases, civil
society organizations have set in motion a process that ripened into
international conventionsFN59. Well-known examples are the 1968 Convention
on the Non-Applicability of Statutory Limitations to War Crimes and Crimes
against HumanityFN60, which can be traced back to efforts of the
International Association of Penal Law, the 1984 Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment, probably
triggered by Amnesty International's Campaign against Torture, the 1997
Treaty banning landminesFN61, to which the International Campaign to Ban
Landmines gave a considerable impetusFN62 and the 1998 Statute for the
International Criminal Court, which was promoted by a coalition of
non-governmental organizations.
---------------------------------------------------------------------------------------------------------------------
FN50
See infra, footnote 98.
FN51 International Law Association (Committee on International Human Rights
Law and Practice). Final Report on the Exercise of Universal Jurisdiction in
Respect of Gross Human Rights Offences, 2000.
FN52 See also the Institut de droit international's Resolution of Santiago
de Compostela. 13 September 1989, commented by G. Sperduti. "Protection of
Human Rights and the Principle of Non-intervention in the Domestic Concerns
of States. Rapport provisoire". Yearbook of the Institute of International
Law, Session of Santiago de Compostela. 1989, Vol. 63, Part I, pp. 309-351.
FN53 Princeton Project on Universal Jurisdiction, The Princeton Principles
on Universal Jurisdiction, 23 July 2001. with a foreword by Mary Robinson.
United Nations High Commissioner for Human Rights,
http://www.princeton.edu/~lapa/univeJur.pdf. SeeM. C. Bassiouni, "Universal
Jurisdiction for International Crimes: Historical Perspectives and
Contemporary Practice". Virginia Journal of International Law, 2001. Vol.
42.pp. 1-100.
FN54 Africa Legal Aid (AFLA), Preliminary Draft of the Cairo Guiding
Principles on Uni-versal Jurisdiction in Respect of Gross Human Rights
Offences: An Apr icon Perspective, Cairo, 31 July 2001,
http://www.afla.unimaas.nl/en/act/univjurisd/preliminaryprinciples.htm.
FN55 Amnesty International. Universal Jurisdiction. The Duty of States to
Enact and Implement Legislation, September 2001, AI Index IOR 53/200J.
FN56 Avocats sans frontières, "Débat sur la loi relative à la répression des
violationsgraves de droit international humanitaire", discussion paper of 14
October 2001, available on http://www.asf.be.
FN57 K. Roth, "The Case for Universal Jurisdiction". Foreign Affairs,
September/October 2001. responding to an article written by an ex-Minister
of Foreign Affairs in the same review (Henry Kissinger. "The Pitfalls of
Universal Jurisdiction", Foreign Affairs, July/August 2001).
FN58 See the joint Press Report of Human Rights Watch, the International
Federation of Human Rights Leagues and the International Commission of
Jurists. "Rights Group Supports Belgium's Universal Jurisdiction Law", 16
November 2000. available athttp://www.hrw.Org/press/2000/l 1
/world-court.htm or http://www.icj.org/press/press01/english/belgiuml 1
.htm. See also the efforts of the International Committee of the Red Cross
in promoting the adoption of international instruments on international
humanitarian law and its support of national implementation efforts
(http://www.icrc.org/eng/advisory_service_ihl: http
://www.icrc.org/eng/ihl).
FN59 M. C. Bassiouni. "Universal Jurisdiction for International Crimes:
Historical Per-spectives and Contemporary Practice", Virginia Journal of
International Law. 2001, Vol. 42. p. 92.
FN60 Convention on the Non-Applicability of Statutory Limitations to War
Crimes and Crimes against Humanity. New York, 26 November 1968, ILM, 1969.
p. 68.
FN61 Convention on the Prohibition of the Use, Stockpiling, Production and
Transfer of Anti-personnel Mines and on Their Destruction, Oslo, 18
September 1997. ILM, 1997, p. 1507.
FN62 The International Campaign to Ban Landmines (ICBL) is a coalition of
non-govern-mental organizations, with Handicap International. Human Rights
Watch, Medico Inter-national, Mines Advisory Group. Physicians for Human
Rights and Vietnam Veterans ofAmerica Foundation as founding members.
---------------------------------------------------------------------------------------------------------------------
28. The Court fails to acknowledge this development, and does not discuss
the relevant sources. Instead, it adopts a formalistic reasoning, examining
whether there is, under customary international law, an international
crimes exception to the — wrongly postulated — rule of immunity for
incumbent Ministers under customary international law (Judgment, para. 58).
By adopting this approach, the Court implicitly establishes a hierarchy
between the rules on immunity (protecting incumbent [p 156] Foreign
Ministers) and the rules on international accountability (calling for the
investigation of charges against incumbent Foreign Ministers charged with
war crimes and crimes against humanity).
By elevating the former rules to the level of customary international law in
the first part of its reasoning, and finding that the latter have failed to
reach the same status in the second part of its reasoning, the Court does
not need to give further consideration to the status of the principle of
international accountability under international law. As a result, the Court
does not further examine the status of the principle of international
accountability. Other courts, for example the House of Lords in the Pinochet
caseFN63 and the European Court of Human Rights in the Al-Adsani caseFN64,
have given more thought and consideration to the balancing of the relative
normative status of international jus cogens crimes and immunities.
---------------------------------------------------------------------------------------------------------------------
FN63
R. v. Bow Street Metropolitan Stipendiary Magistrate and Others, ex parte
Pinochet Ugarte, 24 March 1999, [1999] 2 All ER 97, HL.
FN64 Al-Adsani case: ECHR, Al-Adsani v. United Kingdom, 21 November 2001,
http ://www.echr.coe.int.
---------------------------------------------------------------------------------------------------------------------
Questions concerning international accountability for war crimes and crimes
against humanity and that were not addressed by the International Court of
Justice include the following. Can international accountability for such
crimes be considered to be a general principle of law in the sense of
Article 38 of the Court's Statute? Should the Court, in reaching its
conclusion that there is no international crimes exception to immunities
under international law, not have given more consideration to the factor
that war crimes and crimes against humanity have, by many, been considered
to be customary international law crimesFN65? Should it not have considered
the proposition of writers who suggest that war crimes and crimes against
humanity are jus cogens crimesFN66, which, if it were correct, would only
enhance the contrast between the status of the rules punishing these crimes
and the rules protecting suspects on the [p 157] ground of immunities for
incumbent Foreign Ministers, which are probably not part of jus cogensFN67.
---------------------------------------------------------------------------------------------------------------------
FN65
See: American Law Institute. Restatement of the Law Third. The Foreign
Relations Law of the United States, Vol. 1. para. 404, Comment; M. C.
Bassiouni, Crimes against Humanity in International Criminal Law, 1999; T.
Meron, Human Rights and Humani-tarian Norms as Customary Law, 1989; T.
Meron, "International Criminalization of Internal Atrocities", 89 AJIL,
1995, p. 558; A. H. .1. Swart, De berechting van internationale misdrijven,
1996, p. 7; ICTY, Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction, 2 October 1995, Tadie, paras. 96-127 and 134 (common Article
3).
FN66 M. C. Bassiouni. "International Crimes: Jus Cogens and Obligatio Erga
Omne.C 59Law and Contemporary Problems, 1996. Issue 4, pp. 63-74; M. C.
Bassiouni. Crimesagainst Humanity in International Criminal Law, 1999, pp.
210-217; C. J. R. Dugard, Opinion in: Re Bouterse, para. 4.5.5, to be
consulted at: http://www.icj.org/objectives/
opinion.htm; K. C. Randall, "Universal Jurisdiction under International
Law", 66 Texas Law Review, 1988, pp. 829-832; ICTY, Judgment, 10 December
1998. Furundzija, para. 153 (torture).
FN67 See the conclusion of Professor .1. Verhoeven in his Vancouver report
for the Institut de droit international, supra, footnote 19. p. 70.
---------------------------------------------------------------------------------------------------------------------
Having made these general introductory observations, I will now turn to the
two specific propositions of the International Court of Justice referred to
above, i.e., the distinction between substantive and procedural defences and
the idea that immunities are not a bar to prosecutionFN68.
---------------------------------------------------------------------------------------------------------------------
FN68
See also supra, para. 26.
---------------------------------------------------------------------------------------------------------------------
(a) The distinction between immunity as a procedural defence and immunity
as a substantive defence is not relevant for the purposes of this dispute
29. The distinction between jurisdictional immunity and criminal
responsibility of course exists in all legal systems in the world, but is
not an argument in support of the proposition that incumbent Foreign
Ministers cannot be subject to the jurisdiction of other States when they
are suspected of war crimes and crimes against humanity. There are a host of
sources, including the 1948 Genocide ConventionFN69, the 1996 International
Law Commission's Draft Code of Crimes against the Peace and Security of
MankindFN70, the Statutes of the ad hoc international criminal tribunalsFN71
and the Rome Statute for an International Criminal CourtFN72. All these
sources confirm the proposition contained in the Principle 3 of the
Nuremberg principlesFN73 which states:
-------------------------------------------------------------------------------------------------------------------
FN69
Convention on the Prevention and Suppression of the Crime of Genocide.
Paris. 9 December 1948, UN TS. Vol. 78. p. 277.
FN70 Draft Code of Crimes against the Peace and Security of Mankind, Report
of theInternational Law Commission, 1996, United Nations doc. A/51/10, p.
59.
FN71 Statute of the International Tribunal for the former Yugoslavia, New
York, 25 May 1993. ILM, 1993. p. 1192: Statute of the International tribunal
for Rwanda. 8 November 1994. ILM, 1994, p. 1598.
FN72 Rome Statute of the International Criminal Court. Rome. 17 July 1998.
ILM. 1998, p. 999.
FN73 Supra, footnote 46.
---------------------------------------------------------------------------------------------------------------------
'The fact that a person who committed an act which constitutes a crime under
international law acted as Head of State or responsible Government official
does not relieve him from responsibility under international law."
30. The Congo argued that these sources only address substantive immunities,
not procedural immunities and that therefore they offer no exception to the
principle that incumbent Foreign Ministers are immune from the jurisdiction
of other States. Although some authorities seem to
[p 158] support this viewFN74, most authorities do not mention the
distinction at all and even reject it.
---------------------------------------------------------------------------------------------------------------------
FN74
See. for example. Principle 5 of The Princeton Principles on Universal
Jurisdiction. The Commentary states that "There is an extremely important
distinction, however, between 'substantive' and 'procedural' immunity", but
goes on by saying that "None of these statutes [Nuremberg, ICTY, ICTR]
addresses the issue of procedural immunity", pp. 48-51 (supra, footnote 53).
---------------------------------------------------------------------------------------------------------------------
31. Principle 3 of the Nuremberg principles (and the subsequent
codifications of this principle), in addition to addressing the issue of
(procedural or substantive) immunities, deals with the attribution of
criminal acts to individuals. International crimes are indeed not committed
by abstract entities, but by individuals who, in many cases, may act on
behalf of the StateFN75. Sir Arthur Watts very pertinently writes:
---------------------------------------------------------------------------------------------------------------------
FN75
See the Judgment of the International Military Tribunal for the Trial of
German Major War Criminals, Nuremberg Trial Proceedings, Vol. 22, p. 466,
"Crimes against international law are committed by men, not by abstract
entities, and only by punishing individuals who commit such crimes can the
provisions of international law be enforced."
---------------------------------------------------------------------------------------------------------------------
"States are artificial legal persons: they can only act through the
institutions and agencies of the State, which means, ultimately, through its
officials and other individuals acting on behalf of the State. For
international conduct which is so serious as to be tainted with criminality
to be regarded as attributable only to the impersonal State and not to the
individuals who ordered or perpetrated it is both unrealistic and offensive
to common notions of justice."FN76
------------------------------------------------------------------------------------------------------------
FN76
A. Watts, "The Legal Position in International Law of Heads of States, Heads
of Governments and Foreign Ministers", Recueil des cours de l'Académie de
droit interna-tional de La Haye. 19947 vol. 247, p. 82.
------------------------------------------------------------------------------------------------------------
At the heart of Principle 3 is the debate about individual versus State
responsibility, not the discussion about the procedural or substantive
nature of the protection for government officials. This can only mean that,
where international crimes such as war crimes and crimes against humanity
are concerned, immunity cannot block investigations or prosecutions to such
crimes, regardless of whether such proceedings are brought before national
or before international courts.
32. Article 7 of the International Law Commission's 1996 Draft Code of
Crimes against the Peace and Security of MankindFN77, which is intended to
apply to both national and international criminal courts, only confirms
this interpretation. In its Commentary to this Article, the International
Law Commission states:
---------------------------------------------------------------------------------------------------------------------
FN77
See also supra, para. 17.
---------------------------------------------------------------------------------------------------------------------
"The absence of any procedural immunity with respect to [p 159]prosecution
or punishment in appropriate judicial proceedings is an essential corollary
of the absence of any substantive immunity or defence. It would be
paradoxical to prevent an individual from invoking his official position to
avoid responsibility for a crime only to permit him to invoke this same
consideration to avoid the consequences of this responsibility."FN78
------------------------------------------------------------------------------------------------------------
FN78
Draft Code of Crimes against the Peace and Security of Mankind, Report of
the International Law Commission, 1996, United Nations doc. A/51/10, p. 41.
------------------------------------------------------------------------------------------------------------
33. In adopting the view that the non-impunity clauses in the relevant
international instruments only address substantive, not procedural
immunities, the International Court of Justice has adopted a purely
doctrinal proposition, which is not based on customary or conventional
interna-tional law or on national practice and which is not supported by a
substantial part of legal doctrine. It is particularly unfortunate that the
International Court of Justice adopts this position without giving reasons.
(b) The Court's proposition that immunity does not necessarily lead to
impunity is wrong
34. I now turn to the Court's proposition that immunities protecting an
incumbent Foreign Minister under international law are not a bar to criminal
prosecution in certain circumstances, which the Court enumerates. The Court
mentions four cases where an incumbent or former Min-ister for Foreign
Affairs can, despite his immunities under customary international law, be
prosecuted: (1) he can be prosecuted in his own country; (2) he can be
prosecuted in other States if the State whom he represents waives immunity;
(3) he can be prosecuted after he ceases being a Minister for Foreign
Affairs; and (4) he can be prosecuted before an international court
(Judgment, para. 61).
In theory, the Court may be right: immunity and impunity are not synonymous
and the two concepts should therefore not be conflated. In practice,
however, immunity leads to de facto impunity. All four cases mentioned by
the Court are highly hypothetical.
35. Prosecution in the first two cases presupposes a willingness of the
State which appointed the person as a Foreign Minister to investigate and
prosecute allegations against him domestically or to lift immunity in order
to allow another State to do the same.
This, however, is the core of the problem of impunity: where national
authorities are not willing or able to investigate or prosecute, the crime
[p 160] goes unpunished. And this is precisely what happened in the case of
Mr. Yerodia. The Congo accused Belgium of exercising universal juris-diction
in absentia against an incumbent Foreign Minister, but it had itself omitted
to exercise its jurisdiction in presentía in the case of Mr. Yerodia, thus
infringing the Geneva Conventions and not complying with a host of United
Nations resolutions to this effectFN79.
---------------------------------------------------------------------------------------------------------------------
FN79
Supra, footnotes 48 and 49.
---------------------------------------------------------------------------------------------------------------------
The Congo was ill placed when accusing Belgium of exercising universal
jurisdiction in the case of Mr. Yerodia. If the Congo had acted
appropriately, by investigating charges of war crimes and crimes against
humanity allegedly committed by Mr. Yerodia in the Congo, there would have
been no need for Belgium to proceed with the case. Belgium repeatedly
declared, and again emphasized in its opening and closing statementsFN80
before the Court, that it had tried to transfer the dossier to the Congo, in
order to have the case investigated and prosecuted by the authorities of the
Congo. Nowhere does the Congo mention thai it has investigated the
allegations of war crimes and crimes against humanity against Mr. Yerodia.
Counsel for the Congo even perceived this Belgian initiative as an improper
pressure on the CongoFN81, as if it were adding insult to injury.
---------------------------------------------------------------------------------------------------------------------
FN80
CR 2001/8, para. 5; CR 2001/11, paras. 3 and 11.
FN81 CR 2001/10, p. 7.
---------------------------------------------------------------------------------------------------------------------
The Congo did not come to the Court with clean handsFN82. In blaming Belgium
for investigating and prosecuting allegations of international crimes that
it was obliged to investigate and prosecute itself, the Congo acts in bad
faith. It pretends to be offended and morally injured by Belgium by
suggesting that Belgium's exercise of "excessive universal jurisdiction"
(Judgment, para. 42) was incompatible with its dignity. However, as Sir
Hersch Lauterpacht observed in 1951, "the dignity of a foreign state may
suffer more from an appeal to immunity than from a [p 161] denial of
it"FN83. The International Court of Justice should at least have made it
explicit that the Congo should have taken up the matter itself.
-------------------------------------------------------------------------------------------------------------------
FN82
G. Fitzmaurice, "The General Principles of International Law Considered from
the Standpoint of the Rule of Law". Recueil des cours de l'Académie de droit
international de La Haye, 1957, Vol. 92, p. 119 writes:
"'He who comes to equity for relief must come with clean hands.' Thus a
State which is guilty of illegal conduct may be deprived of the necessary
locus standi in judicio for complaining of corresponding illegalities on the
part of other States, especially if these were consequential on or were
embarked upon in order to counter its own illegality — in short were
provoked by it."
See also S. M. Sehwebel, "Clean Hands in the Court", in E. Brown Weiss et
al. (eds.). The World Bank, International Financial Institutions, and the
Development of International Law, 1999, pp. 74-78, and Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States
of America), Merits, Judgment, I.C.J. Reports 1986, dissenting opinion of
Judge Sehwebel, pp. 382-384 and 392-394.
FN83 H. Lauterpacht. "The Problem of Jurisdictional Immunities of Foreign
States". 28 B YBIL, 1951, p. 232.
---------------------------------------------------------------------------------------------------------------------
36. The third case mentioned by the Court in support of its proposition
that immunity does not necessarily lead to impunity is where the person has
ceased to be a Foreign Minister (Judgment, para. 61, "Thirdly"). In that
case, he or she will no longer enjoy all of the immunities accorded by
international law in other States. The Court adds that the lifting of full
immunity, in this case, is only for "acts committed prior or subsequent to
his or her period of office". For acts committed during that period of
office, immunity is only lifted "for acts committed during that period of
office in a private capacity". Whether war crimes and crimes against
humanity fall into this category the Court does not sayFN84.
---------------------------------------------------------------------------------------------------------------------
FN84
See also paragraph 55 of the Judgment, where the Court says that, from the
perspective of his "full immunity", no distinction can be drawn between acts
performed by a
Minister for Foreign Affairs in an "official capacity" and those claimed to
have been
performed in a "private capacity".
---------------------------------------------------------------------------------------------------------------------
It is highly regrettable that the International Court of Justice has not,
like the House of Lords in the Pinochet case, qualified this statementFN85.
It could and indeed should have added that war crimes and crimes against
humanity can never fall into this category. Some crimes under interna-tional
law (e.g., certain acts of genocide and of aggression) can, for practical
purposes, only be committed with the means and mechanisms of a State and as
part of a State policy. They cannot, from that perspective, be anything
other than "official" acts. Immunity should never apply to crimes under
international law, neither before international courts nor national courts.
I am in full agreement with the statement of Lord Steyn in the first
Pinochet case, where he observed that:
---------------------------------------------------------------------------------------------------------------------
FN85
See supra, footnotes 12 and 13.
---------------------------------------------------------------------------------------------------------------------
"It follows that when Hitler ordered the 'final solution' his act must be
regarded as an official act deriving from the exercise of his functions as
Head of State. That is where the reasoning of the Divisional Court
inexorably leads."FN86
------------------------------------------------------------------------------------------------------------
FN86
R. v. Bow Street Metropolitan Stipendiary Magistrate and Others, ex parte
Pinochet Ugarte, 25 November 1998, [1998] 4 All ER 897, p. 945.
------------------------------------------------------------------------------------------------------------
The International Court of Justice should have made it clearer that its [p
162] Judgment can never lead to this conclusion and that such acts can never
be covered by immunity.
37. The fourth case of "non-impunity" envisaged by the Court is that
incumbent or former Foreign Ministers can be prosecuted before "certain
international criminal courts, where they have jurisdiction" (Judgment,
para. 61, "Fourthly").
The Court grossly overestimates the role an international criminal court can
play in cases where the State on whose territory the crimes were committed
or whose national is suspected of the crime are not willing to prosecute.
The current ad hoc international criminal tribunals would only have
jurisdiction over incumbent Foreign Ministers accused of war crimes and
crimes against humanity in so far as the charges would emerge from a
situation for which they are competent, i.e., the conflict in the former
Yugoslavia and the conflict in Rwanda.
The jurisdiction of an International Criminal Court, set up by the Rome
Statute, is moreover conditioned by the principle of complementarity:
primary responsibility for adjudicating war crimes and crimes against
humanity lies with the States. The International Criminal Court will only be
able to act if States which have jurisdiction are unwilling or unable
genuinely to carry out investigation or prosecution (Art. 17 ).
And even where such willingness exists, the International Criminal Court,
like the ad hoc international tribunals, will not be able to deal with all
crimes that come under its jurisdiction. The International Criminal Court
will not have the capacity for that, and there will always be a need for
States to investigate and prosecute core crimesFN87. These States include,
but are not limited to, national and territorial States. Especially in the
case of sham trials, there will still be a need for third States to
investigate and prosecuteFN88.
---------------------------------------------------------------------------------------------------------------------
FN87
See for example the trial of four Rwandan citizens by a Criminal Court in
Brussels: Cour d'assises de l'arrondissement administratif de
Bruxelles-capitale, arrêt du
8 juin 2001, not published.
FN88 See also infra, para. 65.
---------------------------------------------------------------------------------------------------------------------
Not all international crimes will be justiciable before the permanent
International Criminal Court. It will only be competent to try cases
arising from criminal behaviour occurring after the entry into force of the
Rome Statute. In addition, there is uncertainty as to whether certain acts
of international terrorism or certain gross human rights violations in
non-international armed conflicts would come under the jurisdiction of the
Court. Professor Tomuschat has rightly observed that it would be a "fatal
mistake" to assert that, in the absence of an international criminal [p 163]
court having jurisdiction, Heads of State and Foreign Ministers suspected
of such crimes would only be justiciable in their own States, and nowhere
elseFN89.
---------------------------------------------------------------------------------------------------------------------
FN89
C. Tomuschat, Intervention at the Institut de droit international's meeting
in Vancouver, August 2001, commenting on the draft resolution on Immunities
from Jurisdiction and Execution of Heads of State and of Government in
International Law, and giving the example of Iraqi dictator Saddam Hussein:
Report of the 13th Commission of the Institut de droit international,
Vancouver, 2001, p. 94; see further supra, footnote 19 and corresponding
text.
---------------------------------------------------------------------------------------------------------------------
38. My conclusion on this point is the following: the Court's arguments in
support of its proposition that immunity does not, in fact, amount to
impunity, are very unconvincing.
3. Conclusion
39. My general conclusion on the question of immunityFN90 is as follows:
the immunity of an incumbent Minister for Foreign Affairs, if any, is not
based on customary international law but at most on international comity. It
certainly is not "full" or absolute and does not apply to war crimes and
crimes against humanity.
---------------------------------------------------------------------------------------------------------------------
FN90
On the subject of inviolability, see infra, para. 75.
---------------------------------------------------------------------------------------------------------------------
III. Universal Jurisdiction
40. Initially, when the Congo introduced its request for the indication of a
provisional measure in 2000, the dispute addressed two questions: (a)
universal jurisdiction for war crimes and crimes against humanity; and (b)
immunities for incumbent Foreign Ministers charged with such crimes (see
Judgment, paras. 1 and 42). In the proceedings on the merits in 2001, the
Congo reduced its case to the second point only (see Judgment, paras.
10-12), with no objection from Belgium, which even asked the Court not to
judge ultra petita (Judgment, para. 41). The Court could, for that reason,
not have made a ruling on the question of universal jurisdiction in
general.
41. For their own reasons, the Parties thus invited the International Court
of Justice to short-cut its decision and to address the question of the
immunity from jurisdiction only. The Court, conceding that, as a matter of
logic, the second ground should be addressed only once there has been a
determination in respect of the first, nevertheless decided to address the
second question only. It addressed this question assuming, for the purposes
of its reasoning, that Belgium had jurisdiction under international law to
issue and circulate the arrest warrant (Judgment, para. 46 in fine). [p 164]
42. While the Parties did not request a general ruling, they nevertheless
developed extensive arguments on the subject of (universal) jurisdiction.
The International Court of Justice, though it was not asked to rule on this
point in its dispositif could and should nevertheless have addressed this
question as part of its reasoning. It confines itself to observing
"jurisdiction does not imply absence of immunity, while absence of immunity
does not imply jurisdiction" (Judgment, para. 59, first sentence). It goes
on by observing that various international conventions impose an obligation
on States either to extradite or to prosecute, "requiring them to extend
their criminal jurisdiction", but immediately adds that "such extension of
jurisdiction in no way affects immunities under customary international law,
including those of Ministers for Foreign Affairs" (Judgment, para. 59,
second sentence).
Adopting this narrow perspective, the Court does, again, not need to look at
instruments giving effect to the principle of international accountability
for war crimes and crimes against humanity. Yet most of the arguments of
either Party to this dispute were based on these instruments. By not
touching the subject of (universal) jurisdiction at all, the Court did not
reply to these arguments and leaves the questions unanswered. I wish to
briefly address them here.
43. The Congo accused Belgium of the "exercise of an excessive universal
jurisdiction" (Judgment, para. 42; emphasis added) because, apart from
infringing the rules on international immunities, Belgium's legislation on
universal jurisdiction can be applied regardless of the presence of the
offender on Belgian territory. This flows from Article 7 of the Belgian Act
concerning the Punishment of Grave Breaches of International Humanitarian
Law (hereinafter 1993/1999 Act)FN91. The Congo found that this was excessive
because Belgium in fact exercised its jurisdiction in [p 165] absentia by
issuing the arrest warrant of 11 September 2000 in the absence of Mr.
Yerodia.
---------------------------------------------------------------------------------------------------------------------
FN91
Loi du 16 juin 1993 relative à la répression des violations graves du droit
international humanitaire. Moniteur belge, 5 August 1993, as amended by Loi
du 10 février 1999, Moniteur belge, 23 March 1999; an English translation
has been published in ILM, 1999, pp. 921-925. See generally: A. Andries, C.
Van den Wyngaeit, E. David, and J. Verhaegen, "Commentaire de la loi du 16
juin 1993 relative à la répression des infractions graves du droit
international humanitaire", Rev. dr. pén., 1994, pp. 1114-1184; E. David,
"La loi belge sur les crimes de guerre", 28 RBDI, 1995. pp. 668-684; P.
d'Argent, "La loi du 10 février 1999 relative à la répression des violations
graves du droit international humanitaire", 118 Journal des tribunaux,
1999. pp. 549-555; L. Reydams. "Universal Jurisdiction over Atrocities in
Rwanda: Theory and Practice", European Journal of Crime, Criminal Law and
Criminal Justice. 1996. pp. 18-47; D. Vandermeersch, "La répression en droit
belge des crimes de droit international". 68 RIDP. 1997, pp. 1093-1135; D.
Vandermeersch, "Les poursuites et le jugement des infractions de droit
international humanitaire en droit belge", in D. H. Bosly et ai. Actualité
du droit international humanitaire. 2001, pp. 123-180; J. Verhoeven, "Vers
un ordre répressif universel? Quelques observations". Annuaire français de
droit international, 1999, pp. 55-71.
---------------------------------------------------------------------------------------------------------------------
To this accusation, Belgium answered it was entitled to assert jurisdiction
in the present case because international law does not prohibit and even
permits States to exercise extraterritorial jurisdiction for war crimes and
crimes against humanity.
44. There is no generally accepted definition of universal jurisdiction in
conventional or customary international law. States that have incorporated
the principle in their domestic legislation have done so in very different
waysFN92. Although there are many examples of States exercising
extraterritorial jurisdiction for international crimes such as war crimes
and crimes against humanity and torture, it may often be on other
jurisdictional grounds such as the nationality of the victim. A prominent
example was the Eiehmann case which was in fact based not on universal
jurisdiction but on passive personalityFN93. In the Spanish Pinochet case,
an important connecting factor was the Spanish nationality of some of the
victimsFN94. Likewise, in the case against Mr. Yerodia, some of the
complainants were of Belgian nationalityFN95, even if there were,
apparently, no Belgian nationals that were victimsFN96 of the violence that
allegedly resulted [p 166] from the hate speeches of which Mr. Yerodia was
suspected (Judgment, para. 15)FN97.
---------------------------------------------------------------------------------------------------------------------
FN92
For a survey of the implementation of the principle of universal
jurisdiction for international crimes in different countries, see, inter
alia: Amnesty International, Universal Jurisdiction. The Duty of States to
Enact and Implement Legislation, September 2001, AI Index IOR 53/2001 ;
International Law Association (Committee on International Human Rights Law
and Practice), Final Report on the Exercise of Universal Jurisdiction in
Respect of Gross Human Rights Offences, Ann., 2000; Redress, Universal
Jurisdiction in Europe. Criminal Prosecutions in Europe since 1990 for War
Crimes, Crimes against Humanity, Torture and Genocide, 30 June 1999:
http://www.redress.org/inpract.html; see also "Crimes internationaux et
juridictions nationales" 1o be published by the Presses universitaires de
France (in print).
FN93 Attorney-General of the Government of Israel v. Eichmann. 36 ILR, 1961
p. 5. See also US v. Yunis (No. 2), District Court, DC, 12 February 1988, 82
ILR, 1990, p. 343; Court of Appeals, DC, 29 January 1991, ILM, 1991. Vol. 3,
p. 403.
FN94 Audiencia Nacional, Auto de la Sala de lo Penal de la Audiencia
Nacional confir-mando la jurisdicción de España para conocer de los crímenes
de genocidio y terrorismocometidos durante la dictadura chilena, 5 November
1998, http://www.derechos.org/
nizkor/chile/juicio/audi.html. See also M. Márquez Carrasco and J. A.
Fernandez, "Spanish National Court. Criminal Division (Plenary Session).
Case 19/97. 4 Nov. 1998, Case 1/98, 5 Nov. 1998", AJIL, 1999, pp. 690-696.
FN95 CR 2001/8, p. 16.
FN96 Some confusion arose over the difference between the notion of "victim"
and the notion of "complainant" (partie civile). Belgian law does not
provide an actio papillaris, but only allows victims and their relatives to
trigger criminal investigations through the procedure of a formal complaint
(constitution de partie civile). On the Belgian system, see C. Van den
Wyngaert, "Belgium", in C. Van den Wyngaert et al. (eds.), Criminal
Procedure Systems in the Member States of the European Community, 1993.
FN97 The notion "victim" is wider than the direct victim of the crime only,
and also includes indirect victims (e.g. the relatives of the assassinated
person in the case of murder). Moreover, for crimes such as those with
which Mr. Yerodia has been charged (incitement to war crimes and crimes
against humanity), death or injury of the (direct) victim is not a
constituent element of the crime. Not only those who were effectively killed
or injured after the alleged hate speeches are victims, but all persons
against whom the incitements were directed, including the victims of Belgian
nationality who brought the case before the Belgian investigating judge by
lodging a constitution de partie civile action. By focusing on the victims
of the violence in paragraph 15 of the Judgment, the International Court of
Justice seems to adopt a very narrow definition of the notion of victim.
---------------------------------------------------------------------------------------------------------------------
45. Much has been written in legal doctrine about universal jurisdiction.
Many views exist as to its legal meaningFN98 and its legal status under
international lawFN99. This is not the place to discuss them. What matters
for the present dispute is the way in which Belgium has codified universal
jurisdiction in its domestic legislation and whether it is, as applied in
the case of Mr. Yerodia, compatible with international law.
---------------------------------------------------------------------------------------------------------------------
FN98
For a very thorough recent analysis of the various positions, diachronically
and syn-chronically, see M. Henzelin, Le principe de l'universalité en droit
penal international. Droit et obligation pour les Etats de poursuivre et
juger selon le principe de l'universalité, 2000. Other recent publications
are M. C. Bassiouni, "Universal Jurisdiction for International Crimes:
Historical Perspectives and Contemporary Practice", Virginia Journal of
International Law. 2001, Vol. 42, pp. 1-100: L. Benavides, "The Universal
Jurisdiction Principle", 1 Anuario Mexicano de Derecho Internacional. 2001,
pp. 20-96; J. I. Charney, "International Criminal Law and the Role of
Domestic Couits", 25 AJIL, 2001, pp. 120124; G. de La Pradelle, "La
competence universelle", in H. Ascensio et al. (eds.). Droit international
penal, 2000, pp. 905-918; A. Hays Butler, "Universal Jurisdiction: A Review
of the Literature", Criminal Law Forum, 2000, pp. 353-373; R. van Elst,
"Implementing Universal Jurisdiction over Grave Breaches of the Geneva
Conventions", LJIL, 2000, pp. 815-854. See also the proceedings of the
symposium on Universal Jurisdiction: Myths, Realities, and Prospects, 35 New
England Law Review, 2001, No. 2.
FN99 For example, some writers hold the view that an independent theory of
universal jurisdiction exists with respect to jus cogens international
crimes. See. for example, M. C. Bassiouni, "Universal Jurisdiction for
International Crimes: Historical Perspectives and Contemporary Practice".
Virginia Journal of International Law, 2001, Vol. 42, p. 28.
---------------------------------------------------------------------------------------------------------------------
Article 7 of the 1993/1999 Belgian Act, which is at the centre of the
dispute, states the following: "The Belgian courts shall be competent to
deal with breaches provided for in the present Act, irrespective of where
such breaches have been committed . . ."FN100
---------------------------------------------------------------------------------------------------------------------
FN100
See footnote 91 for further references.
---------------------------------------------------------------------------------------------------------------------
46. Despite uncertainties that may exist concerning the definition of
universal jurisdiction, one thing is very clear: the ratio legis of
universal jurisdiction is based on the international reprobation for certain
very serious crimes such as war crimes and crimes against humanity. Its
raison d'etre is to avoid impunity, to prevent suspects of such crimes
finding a [p 167] safe haven in third countries. Scholarly organizations
that participated in the debate have emphasized this, for example in the
Princeton principles101, the Cairo principles102 and the Kamminga report on
behalf of the International Law Association103.
---------------------------------------------------------------------------------------------------------------------
FN101
Supra, footnote 53.
FN102 Supra, footnote 54.
FN103 Supra, footnote 51.
---------------------------------------------------------------------------------------------------------------------
47. It may not have been the International Court of Justice's task to define
universal jurisdiction in abstract terms. What it should, however, have
considered is the following question: was Belgium under international law
entitled to assert extraterritorial jurisdiction against Mr. Yero-dia (apart
from the question of immunity) in the present case? The Court did not
consider this question at all.
1. Universal Jurisdiction for War Crimes and Crimes against Humanity Is
Compatible with the "Lotus" Test
48. The leading case on the question of extraterritorial jurisdiction is the
1927 "Lotus" case. In that case, the Permanent Court of International
Justice was asked to decide a dispute between France and Turkey, which arose
from a criminal proceeding in Turkey against a French national. This person,
the captain of a French ship, was accused of involuntary manslaughter
causing Turkish casualties after a collision between his ship and a Turkish
ship on the high seas. Like in the present dispute, the question was whether
the respondent State, Turkey, was entitled to conduct criminal proceedings
against a foreign national for crimes committed outside Turkey. France
argued that Turkey was not entitled to prosecute the French national before
its domestic courts because there was no permission, and indeed a
prohibition, under customary international law for a State to assume
extraterritorial jurisdiction. Turkey argued that it was entitled to
exercise jurisdiction under international law.
49. The Permanent Court of International Justice decided that there was no
rule of conventional or customary international law prohibiting Turkey from
asserting jurisdiction over facts committed outside Turkey. It started by
saying that, as a matter of principle, jurisdiction is territorial and that
a State cannot exercise jurisdiction outside its territory without a
permission derived from international custom or from a convention. It
however immediately added a qualification to this principle in a famous
dictum that students of international law know very well:
"It does not, however, follow that international law prohibits a State from
exercising jurisdiction in its own territory, in respect of any case which
relates to acts which have taken place abroad, and in which it cannot rely
on some permissive rule of international law . . .[p 168]
Far from laying down a general prohibition to the effect that States may not
extend the application of their laws and the jurisdiction of their courts to
persons, property and acts outside their territory, it leaves them in this
respect a wide measure of discretion which is only limited in certain cases
by prohibitive rules; as regards other cases, every State remains free to
adopt the principles which it regards as best and most suitable."FN104
------------------------------------------------------------------------------------------------------------
FN104 "Lotus",
Judgment No. 9, 1927, P.C.I.J., Series A, No 10. p. 19.
------------------------------------------------------------------------------------------------------------
A distinction must be made between prescriptive jurisdiction and enforcement
jurisdiction. The above-mentioned dictum concerns prescriptive
jurisdiction: it is about what a State may do on its own territory when
investigating and prosecuting crimes committed abroad, not about what a
State may do on the territory of other States when prosecuting such crimes.
Obviously, a State has no enforcement jurisdiction outside its territory: a
State may, failing permission to the contrary, not exercise its power on the
territory of another State. This is "the first and foremost restriction
imposed by international law upon a State" FN105. In other words, the
permissive rule only applies to prescriptive jurisdiction, not to
enforcement jurisdiction: failing a prohibition, State A may, on its own
territory, prosecute offences committed in State B (permissive rule) ;
failing a permission, State A may not act on the territory of State B.
---------------------------------------------------------------------------------------------------------------------
FN105
Ibid. p. 18.
---------------------------------------------------------------------------------------------------------------------
50. Does the arrest warrant of 11 April 2000 come under the first species of
jurisdiction, under the second, or under both? In other words: has Belgium,
by asserting jurisdiction in the form of the issuing and circulation of an
arrest warrant on charges of war crimes and crimes against humanity against
a foreign national for crimes committed abroad, engaged in prescriptive
jurisdiction, in enforcement jurisdiction, or in both?
Given the fact that the warrant has never been enforced, the dispute is in
the first place about prescriptive jurisdiction. However, the title of the
warrant {"international arrest warrant") gave rise to questions about
enforcement jurisdiction also.
I believe that Belgium, by issuing and circulating the warrant, violated
neither the rules on prescriptive jurisdiction nor the rules on enforcement
jurisdiction. My views on enforcement jurisdiction will be part of my
reasoning in Section IV, where I will consider whether there was an
internationally wrongful act in the present caseFN106. In the present
Section, I will deal with prescriptive jurisdiction. I will measure the
statutory provision that is at the centre of the dispute, Article 7 of the
1993/1999 Belgian Act, against the yardstick of the "Lotus" test on
prescriptive jurisdiction.
---------------------------------------------------------------------------------------------------------------------
FN106
See infra, paras. 68 et seq.
---------------------------------------------------------------------------------------------------------------------
[p 169]
51. It follows from the "Lotus" case that a State has the right to provide
extraterritorial jurisdiction on its territory unless there is a
prohibition under international law. I believe that there is no prohibition
under international law to enact legislation allowing it to investigate and
prosecute war crimes and crimes against humanity committed abroad.
It has often been argued, not without reason, that the "Lotus" test is too
liberal and that, given the growing complexity of contemporary
international intercourse, a more restrictive approach should be adopted
todayFN107. In the Nuclear Weapons case, there were two groups of States
each giving a different interpretation of "Lotus" on this pointFN108 and
President Bedjaoui, in his declaration, expressed hesitations about
"Lotus"FN109. Even under the more restrictive view, Belgian legislation
stands. There is ample evidence in support of the proposition that
international law clearly permits States to provide extraterritorial
jurisdiction for such crimes.
---------------------------------------------------------------------------------------------------------------------
FN107
Cf. American Law Institute, Restatement (Third) Foreign Relations Law of the
United States, 1987, pp. 235-236; I. Cameron, The Protective Principle of
International Criminal Jurisdiction, 1994, p. 319; F. A. Mann, "The Doctrine
of International Jurisdiction Revisited after Twenty Years", Recueil des
cours de l'Académie de droit international de La Haye, 1964, Vol. 111, p.
35; R. Higgins, Problems and Process. International Law and How We Use It,
1994, p. 77. See also Council of Europe, Extraterritorial Jurisdiction in
Criminal Matters, 1990, pp. 20 et seq.
FN108 Legality of the Threat or Use of Nuclear Weapons. Advisory Opinion,
I.C.J. Reports 1996, pp. 238-239, para. 21.
FN109 I.C.J. Reports 1996, p. 270, para. 12.
---------------------------------------------------------------------------------------------------------------------
I will give reasons for both propositions in the next paragraphs. I believe
that (a) international law does not prohibit universal jurisdiction for war
crimes and crimes against humanity, (b) clearly permits it.
(a) International law does not prohibit universal jurisdiction for war
crimes and crimes against humanity
52. The Congo argued that the very concept of universal jurisdiction
presupposes the presence of the defendant on the territory of the
prosecuting State. Universal jurisdiction in absentia, it submitted, was
contrary to international law. This proposition needs to be assessed in the
light of conventional and customary international law and of legal doctrine.
53. As a preliminary observation, I wish to make a linguistic comment. The
term "universal jurisdiction" does not necessarily mean that the suspect
should be present on the territory of the prosecuting State. [p 170]
Assuming the presence of the accused, as some authors do, does not
necessarily mean that it is a legal requirement. The term may be ambiguous,
but precisely for that reason one should refrain from jumping to
conclusions. The Latin maxims that are sometimes used, and that seem to
suggest that the offender must be present (judex deprehensionis — ubi te
invenero ibi te judicabo) have no legal value and do not necessarily
coincide with universal jurisdiction.
54. There is no rule of conventional international law to the effect that
universal jurisdiction in absentia is prohibited. The most important legal
basis, in the case of universal jurisdiction for war crimes is Article 146
of the IV Geneva Convention of 1949FN110, which lays down the principle aut
dedere aut judicareFN111. A textual interpretation of this Article does not
logically presuppose the presence of the offender, as the Congo tries to
show. The Congo's reasoning in this respect is interesting from a doctrinal
point of view, but does not logically follow from the text. For war crimes,
the 1949 Geneva Conventions, which are almost universally ratified and
could be considered to encompass more than mere treaty obligations due to
this very wide acceptance, do not require the presence of the suspect.
Reading into Article 146 of the IV Geneva Convention a limitation on a
State's right to exercise universal jurisdiction would fly in the face of a
ideological interpretation of the Geneva Conventions. The purpose of these
Conventions, obviously, is not to restrict the jurisdiction of States for
crimes under international law.
---------------------------------------------------------------------------------------------------------------------
FN110
Convention Relative to the Protection of Civilian Persons in Time of War,
Geneva, 12 August 1949, CATS, Vol. 75, p. 287. See also Art. 49, Convention
for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field, Geneva, 12 August 1949. UNTS, Vol. 75. p. 31 ; Art. 50.
Convention for the Amelioration of the Condition of Wounded, Sick and
Shipwrecked Members of Armed Forces at Sea, Geneva, 12 August 1949, UNTS,
Vol. 75. p. 85; Art. 129, Convention Relative to the Treatment of Prisoners
of War, Geneva. 12 August 1949. UNTS, Vol. 75, p. 135; Art. 85 (1), Protocol
Additional (I) to the Geneva Conventions of 12 August 1949, and relating to
the Protection of Victims of International Armed Conflicts. Geneva, 8 June
1977, United Nations, Official Records of the General Assembly, doc.
A/32/144. 15 August 1977.
FN111See further infra, para. 62.
---------------------------------------------------------------------------------------------------------------------
55. There is no customary international law to this effect either. The Congo
submits there is a State practice, evidencing an opinio juris asserting
that universal jurisdiction, per se, requires the presence of the offender
on the territory of the prosecuting State. Many national systems giving
effect to the obligation aut dedere aut judicare and/or the Rome Statute for
an International Criminal Court indeed require the presence of the [p 171]
offender. This appears from legislationFN112 and from a number of national
decisions including the Danish Saric caseFN113, the French Javor
caseFN114and the German Jorgic caseFN115. However, there are also examples
of national systems that do not require the presence of the offender on the
territory of the prosecuting StateFN116. Governments and national courts in
the same State may hold different opinions on the same question, which makes
it even more difficult to identify the opinio juris in that StateFN117.
---------------------------------------------------------------------------------------------------------------------
FN112
See, for example, the Swiss Penal Code, Art. 6bis, I ; the French Penal
Code, Art. 689-1 ; the Canadian Crimes against Humanity and War Crimes Act
(2000), Art. 8.
FN113 Public Prosecutor v. 7"., Supreme Court (Hojesteret), Judgment. 15
August 1995, Ugeskrift for Retsvaesen, 1995, p. 838, reported in Yearbook of
International Humanitarian Law, 1998, p. 431. and in R. Maison, "Les
premiers cas d application des dispositions pénales des Conventions de
Genève: commentaire des affaires danoise et française", EJ1L, 1995. p. 260.
FN114 Cour de cassation (fr.). 26 March 1996, Bull. Crim., 1996. pp.
379-382.
FN115 Bundesgerichtshof 30 April 1999, 3 StR 215/98, NStZ. 1999, p. 396. See
also the
critical note (Anmerkung) by Ambos, ibid., pp. 405-406, who doesn't share
the view of
the judges that a "legitimizing link" is required to allow Germany to
exercise its jurisdiction over crimes perpetrated outside its territory by foreignei s against
foreigners, even if
these amount to serious crimes under international law (in casu genocide).
In a recent
judgment concerning the application of the Geneva Conventions, the Court,
however,
decided that such a link was not required, since German jurisdiction was
grounded on a
binding norm of international law instituting a duty to prosecute, so there
could hardly be
a violation of the principle of non-intervention (Bundesgerichtshof, 21
February 2001,
3 StR 372/00. retrievable on http://www.hrr-strafrecht.de).
FN116 See, for example, the prosecutions instituted in Spain on the basis of
Article 23.4 of the Ley Orgánica del Poder Judicial (Law 6/1985 of 1 July
1985 on the Judicial Power) against Senator Pinochet and other South
American suspects whose extradition was requested. In New Zealand,
proceedings may be brought for international "core crimes" regardless of
whether or not the person accused was in New Zealand at the time a decision
was made to charge the person with an offence (Sec. 8 (I) (c) (iii) of the
International Crimes and International Criminal Court Act, 2000).
FN117 The German Government very recently reached agreement on a text for an
"International Crimes Code" ( Völkerstrafgesetzbuch) (see Bundesministerium
der Justiz, Mitteilung für die Presse 02/02, Berlin, 16 January 2002). The
new Code would allow German law enforcement agencies to prosecute cases
without any link to Germany and without the presence of the offender on the
national territory. However if there is no link to Germany, the law
enforcement agencies have discretion to defer prosecution in such a case
when an International Court or the Courts of a State basing its jurisdiction
on territoriality or personality were in fact prosecuting the suspect (see
Bundesministerium der Justiz, Entwurf eines Gesetzes zur Einführung des
Völkerstrajgesetzbuches, pp. 19 and 89, to be consulted on the Internet:
http://www.bmj.bund.de/images/1 I222.pdf).
---------------------------------------------------------------------------------------------------------------------
And even where national law requires the presence of the offender, this is
not necessarily the expression of an opinio juris to the effect that this is
a requirement under international law. National decisions should be read [p
172] with much caution. In the Bouterse case, for example, the Dutch Supreme
Court did not state that the requirement of the presence of the suspect was
a requirement under international law, but only under domestic law. It found
that, under Dutch law, there was no such jurisdiction to prosecute Mr.
Bouterse but did not say that exercising such jurisdiction would be
contrary to international law. In fact, the Supreme Court did not follow the
Advocate General's submission on this pointFN118.
---------------------------------------------------------------------------------------------------------------------
FN118
See supra, footnote 5. The Court of Appeal of Amsterdam had. in its judgment
of 20 November 2000, decided, inter alia, that Mr. Bouterse could be
prosecuted in absentia on charges of torture (facts committed in Suriname in
1982). This decision was reversed by the Dutch Supreme Court on 18 September
2001, inter alio on the point of the exercise of universal jurisdiction in
absentia. The submissions of the Dutch Advocate General are attached to the
judgment of the Supreme Court, Inc. cit.. paras. 113-137 and especially
para. 138.
---------------------------------------------------------------------------------------------------------------------
56. The "Lotus" case is not only an authority on jurisdiction, but also on
the formation of customary international law as was set out above. A
"negative practice" of States, consisting in their abstaining from
instituting criminal proceedings, cannot, in itself, be seen as evidence of
an opinio juris. Only if this abstinence was based on a conscious decision
of the States in question can this practice generate customary international
lawFN119. As in the case of immunities, such abstinence may be attributed to
other factors than the existence of an opinio juris. There may be good
political or practical reasons for a State not to assert jurisdiction in the
absence of the offender.
---------------------------------------------------------------------------------------------------------------------
FN119
See supra, para. 13.
---------------------------------------------------------------------------------------------------------------------
It may be politically inconvenient to have such a wide jurisdiction because
it is not conducive to international relations and national public opinion
may not approve of trials against foreigners for crimes committed abroad.
This does not, however, make such trials illegal under international law.
A practical consideration may be the difficulty in obtaining the evidence
in trials of extraterritorial crimes. Another practical reason may be that
States are afraid of overburdening their court system. This was stated by
the Court of Appeal in the United Kingdom in the Al-Adsani caseFN120 and
seems to have been an explicit reason for the Assemblée nationale in France
to refrain from introducing universal jurisdiction in absentia when adopting
universal jurisdiction over the crimes falling within the Statute of the
Yugoslavia TribunalFN121. The concern for a linkage with the national order
thus seems to be more of a pragmatic than of [p 173] a juridical nature. It
is not, therefore, necessarily the expression of an opinio juris to the
effect that this form of universal jurisdiction is contrary to international
law.
---------------------------------------------------------------------------------------------------------------------
FN120
ECHR, Al-Adsani v. United Kingdom, 21 November 2001, para. 18, and the
concurring opinions of Judges Pellonpaâ and Bratza, retrievable at:
http://www.echr.coe.int. See the discussion in Marks, "Torture and the
Jurisdictional Immunities of Foreign States". C.I.J. 1997, pp. 8-10.
FN121 See Journal officiel de VAssemblée nationale, 20 décembre 1994, 2e
séance, p. 9446.
---------------------------------------------------------------------------------------------------------------------
57. There is a massive literature of learned scholarly writings on the
subject of universal jurisdictionFN122. I confine myself to three studies,
which emanate from groups of scholars: the Princeton principlesFN123, the
Cairo principlesFN124 and the Kamminga report on behalf of the ILAFN125 and
look at one point: do the authors support the Congo's proposition that
universal jurisdiction in absentia is contrary to international law? The
answer is: noFN126.
---------------------------------------------------------------------------------------------------------------------
FN122
For recent sources see supra, footnote 98.
FN123 Supra, footnote 53.
FN124 Supra, footnote 54.
FN125 Supra, footnote 51.
FN126 Although the wording of Princeton Principle I (2) may appear somewhat
confusing, the authors definitely did not want to prevent a State from
initialing the criminal process, conducting an investigation, issuing an
indictment or requesting extradition when the accused is not present, as is
confirmed by Principle 1 (3). See the Commentary on the Princeton Principles
at p. 44.
---------------------------------------------------------------------------------------------------------------------
58. I conclude that there is no conventional or customary international law
or legal doctrine in support of the proposition that (universal)
jurisdiction for war crimes and crimes against humanity can only be
exercised if the defendant is present on the territory of the prosecuting
State.
(b) International law permits universal jurisdiction for war crimes and
crimes against humanity
59. International law clearly permits universal jurisdiction for war crimes
and crimes against humanity. For both crimes, permission under international
law exists. For crimes against humanity, there is no clear treaty provision
on the subject but it is accepted that, at least in the case of genocide.
States are entitled to assert extraterritorial jurisdictionFN127. In the
case of war crimes, however, there is specific conventional international
law in support of the proposition that States are entitled to assert [p 174]
jurisdiction over acts committed abroad: the relevant provision is Article
146 of the IV Geneva ConventionFN128, which lays down the principle aut
dedere aut judicare for war crimes committed against civiliansFN129.
---------------------------------------------------------------------------------------------------------------------
FN127
On the subject of genocide and the Genocide Convention of 1948, the
International Court of Justice held that "the rights and obligations
enshrined by the Convention are rights and obligations erga omnes" and "that
the obligation each State thus has to prevent and to punish the crime of
genocide is not territorially limited by the Convention" (Application of
the Convention on the Prevention anil Punishment of the Crime of Genocide (
Bosnia and Herzegovina v. Yugoslavia ), Preliminary Objections, Judgment,
I.C.J. Reports 1996 111), p. 616. para. 31 ).
FN128 See supra, footnote 110.
FN129 See International Committee of the Red Cross. National Enforcement of
Inter-
national Humanitarian Law: Universal Jurisdiction over War Crimes,
retrievable at:
http://www.icrc.org; R. van Eist, "Implementing Universal Jurisdiction over
Grave
Breaches of the Geneva Conventions". 13 LI IL, 2000, pp. 815-854.
---------------------------------------------------------------------------------------------------------------------
From the perspective of the drafting history of international criminal law
conventions, this is probably one of the first codifications of this
principle, which, in legal doctrine, goes back at least to Hugo Grotius but
has probably much older rootsFN130. However, it had not been codified in
conventional international law until 1949. There are older Conventions such
as the 1926 Slavery ConventionFN131 or the 1929 Convention on
CounterfeitingFN132, which require States to lay down rules on jurisdiction
but which do not provide an aut dedere aut judicare obligation. The 1949
Conventions are probably the first to lay down this principle in an article
that is meant to cover both jurisdiction and prosecution.
---------------------------------------------------------------------------------------------------------------------
FN130
G. Guillaume, "La compétence universelle. Formes anciennes et nouvelles", in
Mélanges offerts It Georges Levusscur, 1992, p. 27.
FN131 Slavery Convention. Geneva, 25 September 1926. League of Nations.
Treaty Series (LNTS), Vol. 60. p. 253.
FN132 International Convention for the Suppression of Counterfeiting
Currency, Geneva, 20 April 1929. LNTS, Vol. 112. p. 371.
---------------------------------------------------------------------------------------------------------------------
Subsequent Conventions have refined this way of drafting and have laid down
distinctive provisions on jurisdiction on the one hand and on prosecution
(aut dedere aut judicare) on the other. Examples are the 1970 Convention for
the Suppression of Unlawful Seizure of Aircraft (Articles 4 and 7
respectively)FN133 and the 1984 Convention against Torture (Articles 5 and
7 respectively)FN134.
---------------------------------------------------------------------------------------------------------------------
FN133
Convention for the Suppression of Unlawful Seizure of Aircraft, signed at
The Hague on 16 December 1970, ILM, 1971, p. 134.
FN134 Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment. New York, 10 December 1984, ILM, 1984, p. 1027.
with changes in ILM, 1985. p. 535.
---------------------------------------------------------------------------------------------------------------------
60. In order to assess the "permissibility" of universal jurisdiction for
international crimes, it is important to distinguish between jurisdiction
clauses and prosecution (aut dedere aut judicare) clauses in international
criminal law conventions.
61. The jurisdiction clauses in these Conventions usually oblige States [p
175] to provide extraterritorial jurisdiction, but do not exclude States
from exercising jurisdiction under their national laws. Even where they do
not provide universal jurisdiction, they do not exclude it either, nor do
they require States to refrain from providing this form of jurisdiction
under their domestic law. The standard formulation of this idea is that
"[fjhis Convention does not exclude any criminal jurisdiciion exercised in
accordance with national law". This formula can be found in a host of
Conventions, including the 1970 Convention for the Suppression of Unlawful
Seizure of Aircraft (Art. 4, para. 3) and the 1984 Convention against
Torture (Art. 5, para. 3).
62. The prosecution clauses (out dedere aut judieare), however, sometimes
link the prosecution obligation to extradition, in the sense that a State's
duty to prosecute a suspect only exists "if it does not extradite him".
Examples are Article 7 of the 1970 Convention for the Suppression of
Unlawful Seizure of Aircraft and Article 7 of the 1984 Convention against
Torture. This, however, does not mean that prosecution is only possible in
cases where extradition has been refused.
Surely, this formula cannot be read into Article 146 of the IV Geneva
Convention which according to some authors even prioritizes prosecution
over extradition: prima prosequi, secundo dedereFN135. Even if one adopts
the doctrinal viewpoint that the notion of universal jurisdiction assumes
the presence of the offender, there is nothing in Article 146 that warrants
the conclusion that this is an actual requirementFN136.
---------------------------------------------------------------------------------------------------------------------
FN135
The Geneva Conventions of 1949 are unique in that they provide a mechanism
which goes further than the "mil dedere, aut judieare" model and which can
be described as "aut judieare, aut dedere", or, even more poignantly, as
"prima prosecpii, secundo dedere". See. respectively. R. van Elst, he. tit.,
pp. 818-819; M. Henzelin, op. cit.. p. 353. para. 1112.
FN136 See M. Henzelin, op. cit., p. 354, para. 1113.
---------------------------------------------------------------------------------------------------------------------
2. Universal Jurisdiction Is Not Contrary to the Complementarity Principle
in the Statute for an International Criminal Court
63. Some argue that, in the light of the Rome Statute for an International
Criminal Court, it will be for the International Criminal Court, and not for
States acting on the basis of universal jurisdiction, to prosecute suspects
of war crimes and crimes against humanity. National statutes providing
universal jurisdiction, like the Belgian Statute, would be contrary to this
new philosophy and could paralyse the International Criminal Court. This was
also the proposition of the Congo in the present disputeFN137.
---------------------------------------------------------------------------------------------------------------------
FN137
See Memorial of the Congo, p. 59. "The obligation not to defeat the object
and purpose of the Statute of the International Criminal Court."
[Translation by the Registry.]
---------------------------------------------------------------------------------------------------------------------
[p 176]
64. This proposition is wrong. The Rome Statute does not prohibit universal
jurisdiction. It would be absurd to read the Rome Statute in such a way that
it limits the jurisdiction for core crimes to either the national State or
the territorial State or the International Criminal Court. The relevant
clauses are about the preconditions for the International Criminal Court to
exercise jurisdiction (Art. 17, Rome Statute — the complementarity
principle), and cannot be construed as containing a general limitation for
third States to investigate and prosecute core crimes. Surely, the Rome
Statute does not preclude third States (other than the territorial State and
the State of nationality) from exercising universal jurisdiction. The
preamble, which unequivocally states the objective of avoiding impunity,
does not allow this inference. In addition, the opinio juris, as it appears
from United Nations resolutionsFN138, focuses on impunity, individual
accountability and the responsibility of all States to punish core crimes.
---------------------------------------------------------------------------------------------------------------------
FN138
Sec supra, footnotes 48 and 49.
---------------------------------------------------------------------------------------------------------------------
65. An important practical element is that the International Criminal Court
will not be able to deal with all crimes; there will still be a need for
States to investigate and prosecute core crimes. These States include, but
are not limited to, national and territorial States. As observed previously,
there will still be a need for third States to investigate and prosecute,
especially in the case of sham trials. Also, the International Criminal
Court will not have jurisdiction over crimes committed before the entry into
force of its Statute (Art. 11, Rome Statute). In the absence of other
mechanisms for the prosecution of these crimes, such as national courts
exercising universal jurisdiction, this would leave an unacceptable source
of impunityFN139
---------------------------------------------------------------------------------------------------------------------
FN139
See also supra, para. 37.
---------------------------------------------------------------------------------------------------------------------.
66. The Rome Statute does not establish a new legal basis for third States
to introduce universal jurisdiction. It does not prohibit it but does not
authorize it either. This means that, as far as crimes in the Rome Statute
are concerned (war crimes, crimes against humanity, genocide and in the
future perhaps aggression and other crimes), pre-existing sources of
international law retain their importance.
3. Conclusion
67. Article 7 of Belgium's 1993/1999 Act, giving effect to the principle of
universal jurisdiction regarding war crimes and crimes against humanity, is
not contrary to international law. International law does not prohibit
States from asserting prescriptive jurisdiction of this kind. On the
contrary, international law permits and even encourages States to assert
this form of jurisdiction in order to ensure that suspects of war crimes [p
177] and crimes against humanity do not find safe havens. It is not in
conflict with the principle of complementarity in the Statute for an
International Criminal Court.
IV. Existence of an Internationally Wrongful Act
68. Having concluded that incumbent Ministers for Foreign Affairs are fully
immune from foreign criminal jurisdiction (Judgment, para. 54), even if
charged with war crimes and crimes against humanity (Judgment, para. 58),
the International Court of Justice examines whether the issuing and
circulating of the warrant of 11 April 2000 constituted a violation of those
rules. On the subject of the issuance and the circulation of the warrant
respectively, the Court concludes:
"that the issue of the warrant constituted a violation of an obligation of
Belgium towards the Congo, in that it failed to respect the immunity of
that Minister and, more particularly, infringed the immunity from criminal
jurisdiction and the inviolability then enjoyed by him under international
law" (Judgment, para. 70)
"that the circulation of the warrant, whether or not it significantly
interfered with Mr. Yerodia's diplomatic activity, constituted a violation
of an obligation of Belgium towards the Congo, in that it failed to respect
the immunity of the incumbent Minister for Foreign Affairs of the Congo and,
more particularly, infringed the immunity from criminal jurisdiction and the
inviolability then enjoyed by him under international law" (Judgment, para.
71).
69. As stated at the outset, I find it highly regrettable that neither of
these crucial sentences in the Court's reasoning mention the fact that the
arrest warrant was about war crimes and crimes against humanity. The
c/ispositif (para. 78 (2)) also fails to mention this fact.
70. I disagree with the conclusion that there was a violation of an
obligation of Belgium towards the Congo, because I reject its premise. Mr.
Yerodia was not immune from Belgian jurisdiction for war crimes and crimes
against humanity for the reasons set out above. As set out before, this may
be contrary to international courtesy, but there is no rule of customary or
conventional international law granting immunity to incumbent Foreign
Ministers who are suspected of war crimes and crimes against humanity.
71. Moreover, Mr. Yerodia was never actually arrested in Belgium, and there
is no evidence that he was hindered in the exercise of his functions in
third countries. Linking the foregoing with my observations on the question
of universal jurisdiction in the preceding section of my dis-[p 178]
senting opinion, I wish to distinguish between the two different "acts"
that, in the International Court of Justice's Judgment, constitute a
violation of customary international 1 aw: on the one hand, the issuing of
the disputed arrest warrant, on the other its circulation.
1. The Issuance of the Disputed Arrest Warrant in Belgium Was Not in
Violation of International Law
72. Mr. Yerodia was never arrested, either when he visited Belgium
officially in June 2000FN140 or thereafter. Had it applied the only relevant
provision of conventional international law to the dispute, Article 21,
paragraph 2, of the Special Missions Convention, the Court could not have
reached its decision. According to this article. Foreign Ministers
---------------------------------------------------------------------------------------------------------------------
FN140
Mr. Yerodia's visit to Belgium is not mentioned in the Judgment because the
Parties
were rather unclear on this point. Y'et. it seems that Mr. Yerodia
effectively visited Belgium on 17 June 2000. This was reported in the media (see the statement by
the Minister
for Foreign Affairs in De Standaard, 7 July 2000) and also in a question
that was put in
Parliament to the Minister of Justice. See oral question put by Mr. Tony Van
Parys to the Minister of Justice concerning "the political intervention by
Tie Government in the proceedings against the Congolese Minister for Foreign Affairs Mr. Yerodia"
(translation
by the Registry]. Chambre ties representants de la Belgique. compte rendu
integral avee
conipte rendu analytique. Commission de la Justice. 14 November 2000, CRIV
50 COM
294. p. 12. Despite the fact that this fact is not. as such, recorded in the
documents that
were before the International Court of Justice, I believe the Court could
have taken judicial notice of it.
---------------------------------------------------------------------------------------------------------------------
"when they take part in a special mission of the sending State, shall enjoy
in the receiving State or in third State, in addition to what is granted by
the present Convention, the facilities, privileges and immunities accorded
by international law"FN141
------------------------------------------------------------------------------------------------------------
FN141
Supra, para. 18.
------------------------------------------------------------------------------------------------------------.
In the present dispute, this could only lead to the conclusion that there
was no violation: the warrant was never executed, either in Belgium, or in
third countries.
73. Belgium accepted, as a matter of international courtesy, that the
warrant could not be executed against Mr. Yerodia were lie to have visited
Belgium officially. This was explicitly mentioned in the warrant: the
warrant was not enforceable and was in fact not served on him or executed
when Mr. Yerodia came to Belgium on an official visit in June 2001. Belgium
thus respected the principle, contained in Article 21 of the Special
Missions Convention, that is not a statement of customary international law
but only of international courtesyFN142.
---------------------------------------------------------------------------------------------------------------------
FN142
See the statement of the International Law Commission's Special Rapporteur,
referred to supra, para. 17.
---------------------------------------------------------------------------------------------------------------------
74. These are the only objective elements the Court should have looked [p
179] at. The subjective elements, i.e., whether the warrant had a
psychological effect on Mr. Yerodia or whether it was perceived as offensive
by the Congo (cf. the term injuria used by Maître Rigaux throughout his
pleadings in October 2001FN143 and the term capitis diminutio used by Maître
Verges during his pleadings in November 2000FN144) was irrelevant for the
dispute. The warrant only had a potential legal effect on Mr. Yerodia as a
private person in case he would have visited Belgium privately, quod non.
---------------------------------------------------------------------------------------------------------------------
FN143
CR 2001/5. p. 14.
FN144 CR 2000/32.
---------------------------------------------------------------------------------------------------------------------
75. In its dispositif (Judgment, para. 78 (2)). the Court finds that Belgium
failed to respect the immunity from criminal jurisdiction and inviolability
for incumbent Foreign Ministers. I have already explained why, in my
opinion, there has been no infringement of the rules on immunity from
criminal jurisdiction. I find it hard to see how, in addition (the Court
using the word "and"), Belgium could have infringed the inviolability of Mr.
Yerodia by the mere issuance of a warrant that was never enforced.
The Judgment does not explain what is meant by the word "inviolability",
and simply juxtaposes it to the word "immunity". This may give rise to
confusion. Does the Court put the mere issuance of an order on the same
footing as the actual enforcement of the order? Would this also mean that
the mere act of investigating criminal charges against a Foreign Minister
would be contrary to the principle of inviolability?
Surely, in the case of diplomatic agents, who enjoy absolute immunity and
inviolability under the 1961 Vienna Convention on Diplomatic Relations
FN145 allegations of criminal offences may be nvestigated as long as the
agent is not interrogated or served with an order to appear. This view is
clearly stated by Jean SalmonFN146. Jonathan Brown notes that, in the case
of a diplomat, the issuance of a charge or summons is probably contrary to
the diplomat's immunity, whereas its execution would be likely to infringe
the agent's inviolabilityFN147.
---------------------------------------------------------------------------------------------------------------------
FN145
Convention on Diplomatic Relations, Vienna, 18 April 1961, CATS, Vol. 500.
p. 95.
FN146 J. Salmon, Manuel de droit diplomatique, 1994, p. 304.
FN147 J. Brown, "Diplomatic Immunity: State Practice under the Vienna
Convention on
Diplomatic Relations". 37 ICLQ. 1988. p. 53.
---------------------------------------------------------------------------------------------------------------------
If the Court's dispositif were to be interpreted as to mean that mere
investigations of criminal charges against Foreign Ministers would infringe
their inviolability, the implication would be that Foreign Ministers enjoy
greater protection than diplomatic agents under the Vienna Convention. This
would clearly go beyond what is accepted under international law in the
case of diplomats. [p 180]
2. The International Circulation of the Disputed Arrest Warrant Was Not in
Violation of International Law
76. The question of the circulation of the warrant may be somewhat
different, because it might be argued that circulating a warrant
internationally brings it within the realm of enforcement jurisdiction,
which, under the "Lotus" test, is in principle prohibited. Under that test,
States can only act on the territory of other States if there is permission
to this effect in international law. This is the "first and foremost
restriction" that international law imposes on StatesFN148
---------------------------------------------------------------------------------------------------------------------
FN148
See supra, para. 49.
---------------------------------------------------------------------------------------------------------------------.
77. Even if one would accept, together with the Court, the premise there is
a rule under customary law protecting Foreign Ministers suspected of war
crimes and crimes against humanity from the criminal process of other
States, it still remains to be established that Belgium actually infringed
this rule by asserting enforcement jurisdiction. Much confusion arose from
the title that was given to the warrant, which was called "international
arrest warrant" on the document issued by the Belgian judge. However, this
is a very misleading term both under Belgian law and under international
law. International arrest warrants do not exist as a special category under
Belgian law. It is true that the title of the document was misleading, but
giving a document a misleading name does not actually mean that this
document also has the effect that it suggests it has.
78. The term international arrest warrant is misleading, in that it suggests
that arrest warrants can be enforced in third countries without the
validation of the local authorities. This is not the case: there is always a
need for a validation by the authorities of the State where the person,
mentioned in the warrant, is found. Accordingly, the Belgian arrest warrant
against Mr. Yerodia, even after being circulated in the Interpol system,
could not be automatically enforced in all Interpol member States. It may
have caused an inconvenience that was perceived as offensive by Mr. Yerodia
or by the Congolese authorities. It is not per se a limitation of the
Congolese Foreign Minister's right to travel and to exercise his functions.
I know of no State that automatically enforces arrest warrants issued in
other States, not even in regional frameworks such as the European Union.
Indeed, the discussions concerning the European arrest warrant were about
introducing something that does not exist at present: a rule by which member
States of the European Union would automatically [p 181] enforce each
other's arrest warrantsFN149. At present, warrants of the kind that the
Belgian judge issued in the case of Mr. Yerodia are not automatically
enforceable in Europe.
---------------------------------------------------------------------------------------------------------------------
FN149
See Ihe Proposal for a Council Framework Decision on the European Arrest
Warrant and the Surrender Procedures between the Member States, COM(2001
)522, available on the Internet:
http://europa.eu.int/eur-lex/en/com/pdf/2001/en_501PC0522.pdf'. An amended
version can be found in: Council of the European Union, Outcome of
Proceedings, 10 December 2001, 14867/1/01 REV 1 COPEN 79 CATS 50.
---------------------------------------------------------------------------------------------------------------------
In inter-State relations, the proper way for States to obtain the presence
of offenders who are not on their territory is through the process of
extradition. The discussion about the legal effect of the Belgian arrest
warrant in third States has to be seen from that perspective. When a judge
issues an arrest warrant against a suspect whom he believes to be abroad,
this warrant may lead to an extradition request. This is not automatic: it
is up to the Government whether or not to request extraditionFN150.
Extradition requests are often preceded by a request for provisional arrest
for the purposes of extradition. This is what the Interpol Red Notices are
about. Red Notices are issued by Interpol on the request of a State which
wishes to have the person named in the warrant provisionally arrested in a
third State for the purposes of extradition. Not all States, however, give
this effect to an Interpol Red NoticeFN151.
---------------------------------------------------------------------------------------------------------------------
FN150
Often. Governments refrain from requesting extradition for political
reasons, as was shown in the case of Mr. Ocalan. where Germany decidtd not
to proceed to request Mr. Ocalan's extradition from Italy. See Press
Reports: "Bonn stellt Auslieferungsersuchen für Öcalan zurück". Frankfurter
Allgemeine Zeitung, 21 November 1998. and "Die Bundesregierung verzichtet
endgültig auf die Auslieferung des Kurdenführers Ocalan". Frankfurter
Allgemeine Zeitung. 28 November 1998.
FN151 Interpol, General Secretariat, Rapport sur la valeur juridique des
notices rouges, ICPO-Interpol, General Assembly, 66th Session, New Delhi,
15-21 October 1997. AGN/ 66/RAP/8, No. 8 Red Notices, as amended pursuant to
resolution No. AGN/66/RES/7.
---------------------------------------------------------------------------------------------------------------------
Requests for the provisional arrest are, in turn, often preceded by an
international tracing request, which aims at localizing the person named in
the arrest warrant. This "communication" does not have the effect of a Red
Notice, and does not include a request for the provisional arrest of the
person named in the warrant. Some countries may refuse access to a person
whose name has been circulated in the Interpol system or against whom a Red
Notice has been requested. This is. however, a question of domestic law.
States may also prohibit the official visits of persons who are suspected of
international crimes refusing a visa, or by refusing accreditation if such
[p 182] persons are proposed for a diplomatic functionFN152, but this,
again, is a domestic matter for third States to consider, and not an
automatic consequence of a judge's arrest warrant.
---------------------------------------------------------------------------------------------------------------------
FN152
See the Danish hesitations concerning the accreditation of an Ambassador for
Israel, supra, footnote 21.
---------------------------------------------------------------------------------------------------------------------
79. In the case of Mr. Yerodia, Belgium communicated the warrant to Interpol
(end of June 2000), but did not request an Interpol Red Notice until
September 2001, which was when Mr. Yerodia had ceased to be a Minister. It
follows that Belgium never requested any country to arrest Mr. Yerodia
provisionally for the purposes of extradition while he was a Foreign
Minister. The Congo claims that Mr. Yerodia was, in fact, restricted in his
movements as a result of the Belgian arrest warrant. Yet, it fails to adduce
evidence to prove this point. It appears, on the contrary, that Mr. Yerodia
has made a number of foreign travels after the warrant had been circulated
in the Interpol system (2000), including an official visit to the United
Nations. During the hearings, it was said that, when attending this United
Nations Conference in New York, Mr. Yerodia chose the shortest way between
the airport and the United Nations building, because he feared being
arrestedFN153. This fear, which he may have had, was based on psychological,
not on legal giounds. Under the 1969 Special Missions Convention, he could
not be arrested in third countries when on an official visit. On his
official visits in third States, no coercive action was taken against him on
the basis of the Belgian warrant.
---------------------------------------------------------------------------------------------------------------------
FN153
CR 2001/10/20.
---------------------------------------------------------------------------------------------------------------------
3. Conclusion
80. The warrant could not be and was not executed in the country where it
was issued (Belgium) or in the countries to which it was circulated. The
warrant was not executed in Belgium when Mr. Yerodia visited Belgium
officially in June 2000. Belgium did not lodge an extradition request to
third countries or a request for the provisional arrest for the purposes of
extradition. The warrant was not an "international arrest warrant", despite
the language used by the Belgian judge. It could and did not have this
effect, neither in Belgium nor in third countries. The allegedly wrongful
act was a purely domestic act, with no actual extraterritorial effect.
V. Remedies
81. On the subject of remedies, the Congo asked the Court for two different
actions: (a) a declaratory judgment to the effect that the warrant [p 183]
and its circulation through Interpol was contrary to international law and
(b) a decision to the effect that Belgium should withdraw the warrant and
its circulation. The Court granted bolh requests: it decided (a) that the
issue and international circulation of the arrest warrant were in breach of
a legal obligation of Belgium towards the Congo (Judgment, para. 78 (2) of
the dispositif) and (b) that Belgium must, by means of its own choosing,
cancel the arrest warrant and so inform the authorities to whom the warrant
was issued (Judgment, para. 78 (3) of the dispositif).
82. I have, in Sections II (Immunities), III (Jurisdiction) and IV
(Existence of an Internationally Wrongful Act) of my dissenting opinion,
given the reasons why I voted against paragraph 78 (2) of the dispositif
relating to the illegality, under international law, of the arrest warrant:
I believe that Belgium was not, under positive international law, obliged to
grant immunity to Mr. Yerodia on suspicions of war crimes and crimes against
humanity and, moreover, I believe that Belgium was perfectly entitled to
assert extraterritorial jurisdiction against Mr. Yerodia for such crimes.
83. I still need to give reasons for my vote against paragraph 78 (3) of the
dispositif, calling for the cancellation and the de-circulation" of the
disputed arrest warrant. Even assuming, arguendo, that the arrest warrant
was illegal in the year 2000, it was no longer illegal at the moment when
the Court gave Judgment in this case. Belgium's alleged breach of an
international obligation did not have a continuing character: it may have
lasted as long as Mr. Yerodia was in office, but it did not continue in time
thereafterFN154. For that reason, I believe the International Court of
Justice cannot ask Belgium to cancel and "decirculate" an act that is not
illegal today.
-------------------------------------------------------------------------------------------------------------------
FN154
See Article 14 of the 2001 1LC Draft Articles on State Responsibility.
United Nations doc. A/CN.4/L.602/Rev.l, concerning the extension in time of
the breach of an international obligation, which states the following:
"1. The breach of an international obligation by an act of a State not
having a continuing character occurs at the moment when the act is
performed, even if its effects continue.
2. The breach of an international obligation by an act of a State having a
continuing character extends over the entire period during which the act
continues and remains not in conformity with the international obligation .
. ."
---------------------------------------------------------------------------------------------------------------------
84. In its Counter-Memorial and pleadings, Belgium formulated three
preliminary objections based on Mr. Yerodia's change of position. It argued
that, due to Mr. Yerodia's ceasing to be a Minister today, the Court (a) no
longer had jurisdiction to try the case, (b) that the case had become moot,
and (c) that the Congo's Application was inadmissible. The Court dismissed
all these preliminary objections. [p 184]
I voted with the Court on these three points. I agree with the Court that
Belgium was wrong on the points of jurisdiction and admissibility. There is
well-established case law to the effect that the Court's jurisdiction to
adjudicate a case and the admissibility of the Application must be
determined on the date on which the Application was filed (when Mr. Yerodia
was still a Minister), not on the date of the Judgment (when Mr. Yerodia had
ceased to be a Minister). This follows from several precedents, the most
important of which is the Lockerbie caseFN155. I therefore agree with
paragraph 78 (1) (B) and (D) of the Judgment.
---------------------------------------------------------------------------------------------------------------------
FN155Questions of Interpretation and Application of the 1971 Montreal
Convention arising from the Aerial Incident at Lockerbie (Libyan Arab
Jamahiriya v. United Kingdom). Preliminary Objections. I.C.J. Reports 1998, p. 23. para. 38 (jurisdiction) and
p. 26, para. 44
(admissibility). Sec further, S. Rosenne, The Law and Practi.e of the
International Court,
1920-1996, Vol. II, 1997, pp. 521-522.
---------------------------------------------------------------------------------------------------------------------
I was, however, more hesitant on the subject of mootness, where the Court
held that the Congo's Application was "not without object" (Judgment, para.
78 (1) (C)). It does not follow from Lockerbie that the question of
mootness must be assessed on the date of the filing of the
applica-tionFN156. An event subsequent to the filing of an application can
still render a case moot. The question therefore was whether, given the fact
that Mr. Yerodia is no longer a Foreign Minister today, there was still a
case for the respondent State to answer. I think there was, for the
fol-lowing reason: it is not because an allegedly illegal act has ceased to
continue in time that the illegality disappears. From that perspective, I
think the case was not moot. This, however, is only true for the Congo's
first claim (a declaratory judgment solemnly declaring the illegality of
Bel-gium's act). However, I think the case might have been moot regarding
the Congo's second claim, given the fact that Mr Yerodia is no longer a
Minister today.
---------------------------------------------------------------------------------------------------------------------
FN156
In the Questions of Interpretation and Application of the ¡971 Montreal
Convention arising from the Aerial Incident at Lockerbie (Libyan Arab
Jamahiriya v. United Kingdom) case the Court only decided on the points of
jurisdiction (ibid.. Preliminary Objections. Judgment, I.C.J. Reports ¡998.
p. 30, para. 53 (I)) and admissibility (ibid.. para. 53 (2)). not on
mootness (ibid., p. 31. para. 53 (3)). The ratio decidendi for paragraphs
53 (1) and (2) is that the relevant date for the assessinent of both
jurisdiction and admissibility is the date of the filing of the Application.
The Court did not make such a statement in relation to mootness.
---------------------------------------------------------------------------------------------------------------------
If there was an infringement of international law in the year 2000 (which I
do not think exists, for the reasons set out above), it has certainly
ceased to exist today. Belgium's alleged breach of an international
obligation, if such an obligation existed — which I doubt — was in any event
a breach of an obligation not of a continuing character. If the [p 185]
Court would take its own reasoning about immunities to its logical
conclusion (the temporal linkage between the protection of immunities and
the function of the Foreign Minister), then it should have reached the
conclusion that the Congo's third and fourth submissions should have been
rejected. This is why 1 have voted with the Court on paragraph 78 (1) (C)
concerning Belgium's preliminary objection regarding mootness, but against
the Court on paragraph 78 (3) of the dispositif.
I also believe, assuming again that there has been an infringement of an
international obligation by Belgium, that the declaratory part of the
Judgment should have sufficed as reparation for the moral injury suffered by
Congo. If there was an act constituting an infringement, which I do not
believe exists (a Belgian arrest warrant that was not contrary to customary
international law and that was moreover never enforced), it was trivial in
comparison with the Congo's failure to comply with its obligation under
Article 146 of the IV Geneva Convention (investigating and prosecuting
charges of war crimes and crimes against humanity committed on its
territory). The Congo did not come to the International Court with clean
handsFN157, and its Application should have been rejected. De minimis non
curat lexFN158.
---------------------------------------------------------------------------------------------------------------------
FN157
Sec supra, para. 35.
FN158 This expression is not synonymous with de minimis non curat praetor in
civil law systems. See Black's Law Dictionary.
---------------------------------------------------------------------------------------------------------------------
VI. Final Observations
85. For the reasons set out in this opinion, I think the International Court
of Justice has erred in finding that there is a rule of customary
international law protecting incumbent Foreign Ministers suspected of war
crimes and crimes against humanity from the criminal process in other
States. No such rule of customary international law exists. The Court has
not engaged in the balancing exercise that was crucial for the present
dispute. Adopting a minimist and formalistic approach, the Court has de
facto balanced in favour of the interests of States in conducting
international relations, not the international community's interest in
asserting international accountability of State officials suspected of war
crimes and crimes against humanity.
86. The Belgian 1993/1999 Act may go too far and it may be politically wise
to provide procedural restrictions for foreign dignitaries or to restrict
the exercise of universal jurisdiction. Proposals to this effect are under
study in Belgium. Belgium may be naive in trying to be a forerunner in [p
186] the suppression of international crimes and in substantiating the view
that, where the territorial State fails to take action, it is the
responsibility of third States to offer a forum to victims. It may be
politically wrong in its efforts to transpose the "sham trial" exception to
complementarity in the Rome Statute for an International Criminal Court
(Art. 17)FN159 into "aut dedere aut judicare" situations. However, the
question that was before the Court was not whether Belgium is naive or has
acted in a politically wise manner or whether international comity would
command a stricter application of universal jurisdiction or a greater
respect for for-eign dignitaries. The question was whether Belgium had
violated an obligation under international law to refrain from issuing and
circulating an arrest warrant on charges of war crimes and crimes against
humanity against an incumbent Foreign Minister.
---------------------------------------------------------------------------------------------------------------------
FN159
See supra, para. 37.
---------------------------------------------------------------------------------------------------------------------
87. An implicit consideration behind this Judgment may have been a concern
for abuse and chaos, arising from the risk of States asserting unbridled
universal jurisdiction and engaging in abusive prosecutions against
incumbent Foreign Ministers of other Stales and thus paralysing the
functioning of these States. The "monstrous cacophony" argumentFN160 was
very present in the Congo's Memorial and pleadings. The argument can be
summarized as follows: if a State would prosecute members of foreign
Governments without respecting their immunities, chaos will be the result;
likewise, if States exercise unbridled universal jurisdiction without any
point of linkage to the domestic legal order, there is a danger for
political tensions between States.
---------------------------------------------------------------------------------------------------------------------
FN160
J. Verhoeven, "M. Pinochet, la coutume internationale et la compétence
universelle". Journal des tribunaux. 1999, p. 315; J. Verhoeven, "Vers un
ordre répressif universel? Quelques observations", AFDI, 1999, p. 55.
---------------------------------------------------------------------------------------------------------------------
In the present dispute, there was no allegation of abuse of process on the
part of Belgium. Criminal proceedings against Mr. Yerodia were not frivolous
or abusive. The warrant was issued after two years of criminal
investigations and there were no allegations that the investigating judge
who issued it acted on false factual evidence. The accusation that Belgium
applied its War Crimes Statute in an offensive and discriminatory manner
against a Congolese Foreign Minister was manifestly ill founded. Belgium,
rightly or wrongly, wishes to act as an agent of the world community by
allowing complaints brought by foreign victims of serious human rights
abuses committed abroad. Since the infamous Dutroux case (a case of child
molestation attracting great media attention in the late 1990s), Belgium has
amended its laws in order to improve victims' procedural rights, without
discriminating between Belgian and foreign victims. In doing so, Belgium has
also opened its courts to victims bring-[p 187]ing charges based on war
crimes and crimes against humanity committed abroad. This new legislation
has been applied not only in the case against Mr. Yerodia but also in cases
against Mr. Pinochet, Mr. Sharon, Mr. Raf-zanjani, Mr. Hissen Habré, Mr.
Fidel Castro, etc. It would therefore be wrong to say that the War Crimes
Statute has been applied against a Congolese national in a discriminatory
way.
In the abstract, the chaos argument may be pertinent. This risk may exist,
and the Court could have legitimately warned against this risk in its
Judgment without necessarily reaching the conclusion that a rule of
customary international law exists to the effect of granting immunity to
Foreign Ministers. However, granting immunities to incumbent Foreign
Ministers may open the door to other sorts of abuse. It dramatically
increases the number of persons that enjoy international immunity from
jurisdiction. Recognizing immunities for other members of government is just
one step further: in present-day society, all Cabinet members represent
their countries in various meetings. If Foreign Ministers need immunities
to perform their functions, why not grant immunities to other Cabinet
members as well? The International Court of Justice does not state this, but
doesn't this flow from its reasoning leading to the conclusion that Foreign
Ministers are immune? The rationale for assimilating Foreign Ministers with
diplomatic agents and Heads of State, which is at the centre of the Court's
reasoning, also exists for other Ministers who represent the State
officially, for example, Ministers of Education who have to attend Unesco
conferences in New York or other Ministers receiving honorary doctorates
abroad. Male fide Governments may appoint persons to Cabinet posts in order
to shelter them from prosecu-tions on charges of international crimes.
Perhaps the International Court of Justice, in its effort to close one
Pandora's box for fear of chaos and abuse, has opened another one: that of
granting immunity and thus de facto impunity to an increasing number of
government officials.
(Signed) Christine Van den Wyngaert. |
|
