Brussels, 07/03/2002 (Agence Europe) - In giving its ruling, on 14 February, on a case that brought the Democratic Republic of the Congo into opposition with the Kingdom of Belgium, following the arrest warrant issued by the Belgian courts against Abdulaye Yerodia Ndombasi, the International Court of Justice seems to confirm the current trend of international jurisdiction to make light of the recent developments aimed at preventing the most serious crimes from going unpunished at international level. After the European Court of Human Rights (see EUROPE of 12 December, p.17), it is the permanent international court that, in order to preserve common law, has demolished the emerging principle of universal jurisdiction.
In its ruling, the Court states, by thirteen votes to three, that Belgium ignored the immunity of penal jurisdiction and the inviolability enjoyed by the DRC Foreign Minister in office under international law and, by ten votes to six, that it must cancel this arrest warrant of 11 April 2000 against Mr Yerodia for war crimes and crimes against humanity. Commentators stressed that the Court has not given its opinion on the legality of the Belgian law on universal jurisdiction which allows criminal jurisdiction to cover any affair dealing with particularly odious crimes, even outside its territory and even if neither the victim nor the accused are of Belgian nationality. Furthermore, nothing prevents the Belgian justice today from launching a further arrest warrant against Mr Yerodia, who is no longer Foreign Minister. Nonetheless, the ruling does throw into the balance other proceedings initiated in Belgium against Ariel Sharon, Hissène Habré and Fidel Castro.
The Court notes that the functions of a Foreign Minister are such that, for the whole duration of his/her term of office, he/she benefits from total immunity from criminal prosecution and inviolability abroad. It adds that it is not possible to differentiate between the acts committed officially and those carried out personally, no more than between acts accomplished by the person involved before taking on his official duties and those accomplished while in office. The Court goes as far as to establish a hierarchy placing international common law above the positive law and principles that should enter into the field of jus cogens. It thus affirms that immunities resulting from international common law remain opposable before the courts of a foreign State, even when these courts have enlarged penal jurisdiction on the basis of international conventions for the prevention and repression of certain serious crimes.
Several individual opinions of the judges provide an interesting explanation to this ruling. Thus, the French President of the Court, Gilbert Guillaume, supported the ruling and goes even further by stating that, if the Court had had to give its position on application of the Belgian universal jurisdiction law, it would have had to note that the Belgian judge could not be competent for prosecuting Mr Yerodia. In support of this thesis, he stresses that "in traditional international law", except for piracy (Ed. an old exception coming under the international law of the sea) and hypotheses of universal jurisdiction provided for in various international conventions if the author of the infringement is on their territory, a State can only recognise crimes committed abroad if the author or possibly the victim has the nationality of that State or if the crime is a threat to that country's internal or external security. This opinion was not shared by Judge Abdul Koroma (Sierra Leone), who notes that, by issuing and diffusing the warrant, Belgium has shown the extent to which it took the obligation of fighting against crimes under international law seriously. Mr Koroma also considers that war crimes and crimes against humanity, especially the slave trade and acts of genocide, today come under universal jurisdiction. While the Court considers in its ruling that there is no impunity since immunity is limited to the duration of the term of office, Japanese Judge Shigeru Oda considers that the Court should not have concluded in such a general manner as Foreign Ministers enjoy absolute immunity. This opinion was shared by Judges Rosalyn Higgins (UK), Pieter Kooijmans (NL) and Thomas Buergenthal (USA), who also affirm that "if no rule expressly authorises the exercise of universal jurisdiction, then the absence of a prohibitive rule and the wide consensus regarding the need to sanction crimes considered by the international community as the most odious attest that the warrant placed on Mr Yerodia was not, in itself, violation of international law. Jordanian Judge Awn Shwkat Al-Khasawneh considers, for his part, that the immunity of Foreign Ministers should be limited to immunity of execution when they are on an official mission. He also states that the need to effectively combat serious crime should be more important than the rules on immunity. Finally, the ad hoc judge for Belgium, Ms Van den Wyngaert asks whether, by seeking to close up Pandora's box, because of the fear of chaos and abuse that could result from recognition of universal jurisdiction, the Court has opened up another, with the risk of conferring immunity, and hence de facto impunity, on a growing number of government representatives.