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1. Facts of the case.

Theoretical discussion on the punishing of criminal acts violating international law, very lively after the establishing of the ICC, Pinochet case in the UK and a number of other proceedings against heads of States and other officials, got a new impetus by the judgement of the ICJ in the case concerning a warrant of arrest issued by the Belgian judge in the proceeding dealt with the former Congolese foreign minister, Mr. Abdulaye Yerodia Ndombasi.

Mr.Ndombasi, at that time performing no official function, took part in a manifestation in Congo, during which he incited local population against their compatriots, members of another tribe. The manifestation resulted in riots, in which a number of innocent persons were killed.

On 16 June 1993 Belgium passed a law on the punishment of grave breaches of the Geneva Conventions of 1949, amended on 19 February 1999 by a law concerning serious violations of international humanitarian law.1 Both acts were based upon a concept of universal jurisdiction, giving Belgian courts jurisdiction over violations of international humanitarian law, notwithstanding the place were the acts were committed. On the basis of those statutes, Belgian judge issued an international warrant of arrest and let it circulate via Interpol. According to the warrant Mr.Ndombasi – at that time foreign minister of his country, should have been arrested when entering any third party to the Interpol, and delivered to Belgium for trial. Congo claimed that the warrant was illegal, and brought the case to the Hague Court. It requested the Court to declare that Belgium committed a violation of international law by issuing the said warrant, and to order a withdrawal of the warrant. The Kingdom of Belgium on its part demanded to declare that the Court lacked the jurisdiction in the case; if the Court decided to the contrary, the submission was that the claim by Congo should have been rejected and the application dismissed.

2. The Majority Judgement.

In the judgement of 14 February 20022 the Hague judges discussed a specific aspect of position of the Minister of foreign affairs in international law. They limited themselves to the issue of State or diplomatic immunity, simply leaving aside the question of a possible universal jurisdiction. The justification of such a solution was that the Government of Congo excluded that issue from the application, and the ICJ was not authorised to deal with it. The majority recognised the full range of the immunity in respect of criminal jurisdiction. According to the Court, even if the statutes of various international criminal courts subjected ministers of foreign affairs guilty of crimes under international law to the competence of respective judicial bodies, such practice could not be ascertained in the light of the domestic legislation or in the jurisprudence of domestic courts. It decided that travelling freely belongs to the most important tasks of every foreign minister, and the ministers should have such a possibility unrestricted. The immunity is of customary nature, and no international agreements providing for criminal responsibility of State officials can restrict it. However, there still exist certain possibilities to punish the persons who committed crimes against international law, even if no jurisdiction of any third State can be established.

Further the Court decided that the warrant of arrest issued by the Belgian authorities was enforceable, even though it contained a reservation that Mr.Ndombasi could not be arrested if staying on official visit in Belgium. It was therefore contrary to international law. Such a statement constituted a form of responsibility that should make good the moral injury suffered by the Congo. As the warrant remained in force, Belgium should cancel it and inform all subjects concerned about that cancellation.

The decision on the merits was passed by thirteen votes to three as to the violation of the immunity of the former foreign minister of the Congo by the issuing of the warrant; and by ten votes to six on the point that Belgium should cancel the warrant.

3. Individual Opinions of Particular Judges.

An important number of judges presented separate opinions to the judgement; two of them dissented with the majority.

President of the Court, G.Guillaume stated that although international law did not exclude the enforcing of criminal jurisdiction in an absolute way, it limited the extraterritorial jurisdiction to some situations only, and excluded in particular a universal jurisdiction. Belgium had no right to prosecute Mr.Ndombasi.

Judge R.Ranjeva concurring with the majority underlined that under present international law a certain tendency towards the acceptance of the universal jurisdiction by States could be observed, however it was limited to conventional law and it still could not be recognized as a rule of general customary law.

Also judge Rezek was of the opinion that the State practice analysed by him did not justify the criminal jurisdiction of any State in absentia.

According to judge Koroma, the issue of the nature and scope of immunity of foreign minister was of decisive importance in the case before the Court. Although Belgium would have been entitled to enforce criminal jurisdiction in respect of any person within her authority accused of certain most serious international crimes, including war crimes and crimes against humanity (i.a. genocide), such a competence was excluded in respect of the foreign minister of the third State who enjoyed immunity from criminal proceedings. On the other hand, Belgian law and the fact of having circulated the warrant of arrest proved that Belgium seriously approached to the necessity of prosecuting international criminals.

In their joint separate opinion, judges R.Higgins, P.Kooijmans and Th.Buergenthal expressed their regrets that the Court did not address the issue of universal jurisdiction in more detailed way, as the existence of jurisdiction is a precondition for the granting of the immunity to any person. They emphasized that although there were no evidence that the States should be entitled to the universal jurisdiction over persons not present in their territory, there was also no proof to the contrary. Many international treaties seemed to provide for such jurisdiction. If that supposition was correct, the Belgian warrant as such was not contrary to international law. On the other hand, even if they generally agreed with the majority judgement on the point of state immunity, they also stated that the scope of the immunity proposed was too large, and it should be restricted as to enable the responsibility of the high-ranking State officials for international legal crimes. In particular there was no need to cancel the warrant, as far as Mr.Ndombasi ceased to perform any official function.

According to judge Sh.Oda, who voted against all the aspects of the judgement, the Court lacked a competence to decide the case, as there was no legal dispute between the parties. Furthermore, he stated that the scope of universal jurisdiction of States expanded in recent years, and the Court should at least have discussed that issue in the judgement. The same statement concerned the possible scope of immunity of foreign ministers under international law, as compared with the diplomatic immunity, and whether the immunity could be invoked in respect of persons having committed serious crimes against international law.

Two other judges also criticized the decision of the Court. Judge El-Ksawneh disagreed with the majority because – in his opinion – the immunity granted to the minister of foreign affairs by the Court went too far, and in fact excluded his responsibility for criminal acts. The Minister did not represent the State, unlike the Head of State, and should be granted exclusively a functional immunity. He also stressed that the warrant did not contain any enforcement clause nor entitle any authority to arrest the minister while performing his official duties.

Belgian judge ad hoc Ch. Van den Wyngaert opposed to the judgement on the merits. In her opinion, the Court did not proved the existence of a rule granting the jurisdictional immunity to the foreign minister. The Court proved neither the State practice nor the opinion iuris on that point. Furthermore, there was a manifest trend in international law towards restricting the immunity in cases of serious crimes including crimes against humanity. Such immunity would have not been violated by the warrant, as it could be executed neither in the State of issuance nor in any State where it was circulated.

4. An Appraisal of the Judgement

4.1. Issues concerning a Universal Jurisdiction and Competence of Belgian Courts to Prosecute Criminals.

The Court did not addressed this question directly in the majority judgement, but it was referred to by the individual judges. Although formally correct – the ICJ could discuss exclusively submissions brought by the parties – such an approach is somehow surprising and disappointing. The concentration on the immunity issue suggests that the Court in principle accepted the jurisdiction of the Belgian judicial authorities to deal with the case, and applied the exception to that jurisdiction. In fact, we must state that the international legal practice does not support the view that every State is free to enforce criminal jurisdiction in cases of violations of fundamental human rights, and in particular of crimes against humanity.3 In the two leading cases in this respect, Israeli court in Eichmann and US court in Demjanjuk, the accused stayed at the courts’ disposal, so that there existed links between the judicial authorities and the criminals. Interestingly, the same requirement was confirmed by the Belgian court of appeals in the Sharon case, where the court decided that the prime minister of Israel A.Sharon could not be tried in Belgium for alleged crimes committed by Israeli armed forces in Palestine refugee camps in Lebanon in the 1980-s, while performing his official function. Even the famous decision of the World Court in the Lotus case stated that there was a link between Turkey and the accident which occurred on the high sea, as one of the ships which collided flew the Turkish flag; the freedom of action being therefore limited. The majority decision silent on the point of jurisdiction of the Belgian courts over Mr. Ndombasi could be seen as a step towards the confirming of the universal jurisdiction in cases of serious violations of international law, as suggested by the dissenting and in part also by concurring judges.

4.2. Issues concerning an Immunity of Foreign Minister.

In fact, the Court in two aspects addressed those issues. Firstly, Belgium raised a preliminary objection to the jurisdiction of the Court emphasising that the objections by the Congolese government are meaningless, as Mr.Ndombasi ceased to perform any official function. The Court rejected a submission. It stated that the existence of the immunity was important at the moment when the claim was brought before the Court. The fact that the person concerned was not the State official any more at the time of the proceeding was irrelevant. Secondly, the Court decided that under current international law no restriction could be imposed upon the immunity granted to foreign minister. Such an approach must be rejected. Firtsly, the immunity of high officials is of customary nature (although some argument in favour of its existence at least in some situations can be found in the Vienna Convention on Special Missions). It is unclear whether the scope of the immunity is the same in respect of the heads of States and foreign ministers. In its former practice, the Court usually carefully analysed the validity of customary norms, discussing both State practice and opinio iuris. In the present case such a discussion took no place, and the Court took the absolute immunity as granted. Secondly, the Court did not draw any distinction between the immunity ratione personae and ratione materiae. Such a distinction is generally known in the legal writing, and refers to all the acts performed by certain groups of persons and to certain categories of activities of State officials, respectively. The question was discussed i.a. by the House of Lords in thePinochet case, where it was suggested that the immunity of the Head of State should cover exclusively the acts committed in the official capacity of the State agent. We are of the opinion that the nature of the immunity of the foreign minister is different than that of the Head of State, and it should enable the minister to perform his official tasks rather than to represent the State as an international person. In this respect it corresponds with the diplomatic immunity. The scope of immunity conferred by the Court to Mr.Ndombasi was decisively too wide, in particular if the charges against him were extremely serious (an incitement to genocide). Thirdly, the Court did not consider the issue whether the former State officials should be protected by the immunity. It is clear that the purpose of the immunity is to enable the official to perform his functions in an undisturbed way, and not to guarantee an absolute freedom from punishment for all acts performed. All the international instruments dealing with international criminal jurisdiction provide for the responsibility of State officials for crimes committed, notwithstanding their position in the hierarchy of the State, starting with Art.7 of the Nuremberg Charter, then referring to Art.7(2) of the Statute of the Yugoslavia Tribunal, Art.6(2) of the Statute of the Rwanda Tribunal, and finally Art.27(1) of the ICC. If the acting officials can be made responsible, the same must be true in respect of the former ones. By the way, it seems obvious that under present development of international law, all States should be interested in punishing international criminals. From the point of view of State policy and prestige of State in international relations, persons who committed crimes against international law should not be conferred to perform any official functions.

5. Conclusions.

The decision of the majority of the Court is extremely traditional and conservative. In the time of continued discussions concerning an international criminal responsibility of individuals for violations of international law, at first glance it took the position protecting the rights of States, instead of promoting the recent developments of international law. It should be taken into account that the crimes allegedly committed by Mr.Ndombasi belonged beyond any doubt to the most serious violations of international law, including genocide classified generally as the crime against humanity. However, on the other hand, the Court unequivocally stated that the lack of universal jurisdiction in that case did not mean that of the perpetrator of the said crime should remain unpunished. On the contrary, the Court indicated four options in that respect, beginning with the punishing by the State of nationality, then referring to the waiver of the immunity, the cessation of official function (under a reservation that the State in question has jurisdiction in respect of the person concerned, in accordance with the principles of international law), finishing with the possible punishment by the international criminal court. The list presented by the Court seems to be exhaustive. As the commented case shows, the possibility and probability of bringing the perpetrator to the Court is mostly hypothetical and theoretical. If we evaluate the current international practice, in particular the cases of Pinochet, Ghaddafi, Fidel Castro etc.,4 it is hard to show optimism in that respect. In fact, the only optimistic decision of an international jurisdiction was the judgement of the European Court of Human Rights in Strasbourg in the Krenz et al. case,5 which upheld earlier judicial decisions of the German courts concerning the punishment of the former GDR officials for grave violations of human rights in the form of commanding of the shooting at the border between the two German States. We must refer again to the joint separate opinion by Judges Kooijmans, Higgins and Buergenthal. We agree with them that if we want to achieve an increasing respect for international law of human rights, and to eliminate crimes against humanity and mankind, we must recognise more effective methods of prosecuting of the perpetrators of the violations. Universal jurisdiction – in particular when the State of nationality is not willing to punish the offender, consequent application of the principle of aut dedere aut iudicare, building-up of the authority of international criminal court, all these factors should serve towards strengthening of the rule of law in international relations. The conclusion is rather de lege ferenda than de lege lata.

 

1Cf. P.d’Argent, La loi du 10 fevrier 1999 relative a la repression dees violations graves du droit international humanitaire, JT 118(1999), No.5935, p.549ff.
2Commented by: N.Schultz, Ist Lotus verblueht?, ZaoeRV 52(2002), p.703ff; W.Weiss, Voelkerstrafrecht zwischen Weltprinzip und Immunitaet, JZ 2002, No.14, p.696; A.Cassese, When May Senior State Officials Be Tried for Internaitonal Crimes? Some Comments on the Congo v. Belgium Case; S.Wirth, Immunity for Core Crimes? The ICJ’s Judgment in the Congo v. Belgium Case; M.Spinedi, State Responsibility v. Individual Responsibility for International Crimes: Tertium Non Datur?, EJIL 13(2002), No.4, p.853, 876 and 895, respectively.
3See an authoritative study by C.Bassiouni, Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice, VaJlIL 41(2001), p.81ff.
4See in particular G.Gornig, Immunitaet von Staatsoberhaeuptern, [in:] FS fuer D.Rauschning, Koeln-Berlin 2001, 457 ff; A.Watts, The Legal Position in International Law of Heads of States, Heads of Governments and Foreign Ministers, RCADI 247(1994), p.9ff.
5Judgement of 22 March 2001, RGDIP 105(2001), p.774ff.

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