1. Jurisdiction
6 Concerning the first objection, whether there is still a 'legal dispute' between the parties, the ICJ recalled that its jurisdiction was to be determined at the time of the filing of the application, regardless of subsequent events. This might render the case moot, but did not deprive the Court of its jurisdiction. With its second objection, Belgium pretended that the case had become without object. The ICJ rejected this, arguing that the DRC held the warrant, which was still in force, to be unlawful and sought redress for the moral injury as well as cancellation of the warrant. Belgium's third objection was that Mr Yerodia's resignation changed the facts so fundamentally that the case as it stood had become materially different from the case at the time of the application. The ICJ turned down this objection with the argument that the initial question, namely whether the issue and circulation of the arrest warrant was contrary to international law, had not changed. With its fourth objection, Belgium asserted that the case had to be considered as an action of
diplomatic protection and that the local remedies had not been exhausted (
Local Remedies, Exhaustion of). The ICJ held that the critical date for assessing the admissibility of a case, and thus for the question whether a case is an action of diplomatic protection, was the date of the filing of the application. At that time, the DRC asserted a claim in its own name.
7 The ICJ further held that the non ultra petita rule barred it from ruling in the operative part of its judgment whether the exercise of universal jurisdiction by Belgium was in conformity with international law. However, it did not see itself bound to refrain from addressing the question of universal jurisdiction in its reasoning (Arrest Warrant Case [Judgment] 19).
2. Merits
8 The ICJ focused on the question whether Foreign Ministers are entitled to full immunity from criminal prosecution during their term of office, as submitted by the DRC. It first discussed the existence and extent of such immunities. The DRC maintained that such immunities, which it considered a rule of customary international law, were of a purely functional nature and served to enable Foreign Ministers to perform their functions freely. The immunity comprised all acts of an incumbent minister, including acts committed before taking office, and irrespective of whether they may be characterized as 'official acts' or not. However, immunity did not mean impunity. It would only bar prosecution before specific courts over a specific period. Belgium did not contest that Foreign Ministers enjoy immunity before the courts of a foreign State, but submitted that such immunity only applied to official acts and not to private acts. As Mr Yerodia had committed the alleged acts before his term of office, they could not be considered acts committed in an official capacity (Arrest Warrant Case [Judgment] 20).
9 The ICJ held that the immunity of incumbent Foreign Ministers is not defined by international treaties, although treaties such as the 1969 New York Convention on
Special Missions or the
Vienna Convention on Diplomatic Relations (1961) ('VCLT') provide guidance on certain aspects of immunity. Rather, Foreign Ministers are granted immunity under customary international law in order to ensure the effective performance of their functions. Their immunity thus has to be determined with regard to their functions. Foreign Ministers, the ICJ recalled, generally act as the representatives of their governments in international negotiations and intergovernmental meetings. This role entails frequent international travel whenever the need arises and the possibility to be in constant communication with the government. The court also noted the special weight which international law attaches to the acts of Foreign Ministers, who do not need to present letters of credence and who are presumed to have full powers to act on behalf of their State (
Art. 7 (2) (a) VCLT). In the ICJ's opinion, these functions made it necessary to grant incumbent Foreign Ministers full immunity from criminal jurisdiction and inviolability protecting them against any authoritative act of another State. The exercise of their functions would be too seriously impeded if the immunity was limited to official acts (as opposed to private ones), to acts committed during the period of office (as opposed to acts committed before assuming office), or to situations in which the person concerned was on an official visit (as opposed to a private visit) in the territory of the arresting State (
Arrest Warrant Case [Judgment] 21–2).
11 Without going into much detail, the ICJ argued that current State practice, including the Pinochet and Gaddafi cases as well as national legislation, did not indicate the existence under customary international law of any exceptions to the immunity of incumbent Foreign Ministers. It stressed that the non-applicability of such immunities before international criminal tribunals could not be extended to national courts. Also, the case law of these tribunals did not yield a precedence that would be relevant for the question of the immunity of incumbent Foreign Ministers before national courts. Accordingly, the Court rejected Belgium's argument (Arrest Warrant Case [Judgment] 24).
12 The ICJ noted that obligations of prosecution or
extradition imposed on States by certain international conventions did not affect immunities under customary international law. Nevertheless, the Court emphasized by way of an
obiter dictum that immunity as a procedural obstacle did not amount to impunity, as criminal responsibility is a question of substantive law. Thus, immunities enjoyed by Foreign Ministers did not bar criminal prosecution in four situations: (1) if they are prosecuted in their own State; (2) if their State waves their immunity; (3) if they cease to hold office, with regard to acts committed prior or subsequent to their term of office, or, during their term of office in a private capacity; and (4) before 'certain international criminal courts, where they have jurisdiction', such as the ad hoc tribunals for Yugoslavia and Rwanda (
International Criminal Tribunal for the Former Yugoslavia [ICTY];
International Criminal Tribunal for Rwanda [ICTR]); as well as the
International Criminal Court [ICC] (
Arrest Warrant Case [Judgment] 25).
13 As Mr Yerodia did not fall under any of these exceptions, the ICJ concluded by 13 votes to 3 that the mere issuance of an arrest warrant, as well as its international circulation, violated his immunity, in particular as Mr Yerodia was required to travel as part of his official duties. By 10 votes to 6, the Court decided that Belgium should cancel the arrest warrant and so inform the authorities to which it was circulated, even though Mr Yerodia was no longer Foreign Minister, because it was obliged to re-establish the situation which would have existed had it not committed the illegal act (Arrest Warrant Case [Judgment] 29–32).
3. Separate and Dissenting Opinions
14 The members of the ICJ appended to the judgment a total of four Separate Opinions, one Joint Separate Opinion authored by three judges, three Dissenting Opinions, and one Declaration, representing a wide range of views in particular on the issues of immunities and universal jurisdiction.
15 In contrast to the judgment, the individual Opinions broadly address the question of universal jurisdiction. The case submitted to the ICJ concerned the most extreme form of universal jurisdiction, that of universal jurisdiction in absentia. The question is thus whether a State may initiate criminal proceedings against a person who is not its national and not present on its territory, for acts committed on the territory of another State, against nationals of another State.
16 In their individual Opinions, President Guillaume, Judge Ranjeva, and Judge ad hoc Bula-Bula spoke out against the legality of the exercise of universal jurisdiction. President Guillaume recalled that the judgment in the
Lotus Case (
The 'Lotus' [France v Turkey] PCIJ Series A No 10, 19–20) left open the question whether the exercise of criminal jurisdiction for extraterritorial acts was conditioned upon the existence of a permissive rule to that effect (
Lotus, The). According to Guillaume, such a permissive rule clearly exists for
piracy. However, national case law (
Tadic Bundesgerichtshof [German Federal Supreme Court] [30 April 1999] AZ 3 StR 215/98;
Bouterse Hoge Raad [Supreme Court of the Netherlands] [18 September 2001] No 00749/01) and developments in treaty law over the past decades indicate that States accept the exercise of universal jurisdiction only in cases where the suspected person is present on the territory of the forum State (
Arrest Warrant Case [Separate Opinion President Guillaume] 35–45). He noted that the provisions on enforcement in the 1949 Geneva Conventions (I Art. 49; II Art. 50; III Art. 129; IV Art. 146) as well as the 1948 Genocide Convention do not establish extraterritorial jurisdiction for grave breaches of the Conventions, but presuppose that States have jurisdiction (
Arrest Warrant Case [Separate Opinion President Guillaume] 44;
Arrest Warrant Case [Declaration Judge Ranjeva] 56). The practice of international tribunals is considered irrelevant for national courts. As universal jurisdiction would only encourage powerful States to act as agents of an 'ill-defined "international community"', it needs to be rejected (
Arrest Warrant Case [Separate Opinion President Guillaume] 43).
17 Judge Rezek endorsed universal jurisdiction on a subsidiary basis if the suspect is present on the territory of the prosecuting State (Arrest Warrant case [Separate Opinion Judge Rezek] 91–2). He argued that from a policy perspective, universal jurisdiction in absentia would lead to serious coordination problems (Arrest Warrant case (Separate Opinion Judge Rezek) 94). Judge Koroma also held that universal jurisdiction is admissible for certain crimes, but does not take a stand on the presence requirement (Arrest Warrant Case [Separate Opinion Judge Koroma] 61–2).
18 By contrast, Judges Higgins, Kooijmans, and Buergenthal in their joint separate opinion and Judge ad hoc Van den Wyngaert in her dissenting opinion endorsed the exercise of universal jurisdiction in absentia. The latter points out that the requirement of a permissive rule set up in the Lotus judgment only concerns the exercise of enforcement jurisdiction, as opposed to legislative and adjudicatory jurisdiction. Neither conventional nor customary law contains a rule prohibiting the exercise of extraterritorial jurisdiction. The requirement of a sufficient link in national case law and legislation is often founded on purely practical considerations, and not on opinio iuris (Arrest Warrant Case [Dissenting Opinion of Judge ad hoc Van den Wyngaert] 168–76). Judges Higgins, Kooijmans, and Buergenthal hold that in ignoring the issue of jurisdiction, the ICJ answered a hypothetical question and established an unwarranted hierarchy between rules on immunity and universal jurisdiction instead of striking an appropriate balance between the interests of stability in international relations on the one hand, and respect for human rights on the other (Arrest Warrant Case [Joint Separate Opinion of Judges Higgins, Kooijmans, and Buergenthal] 64). Further, they submit that while State practice is inconclusive as to the legality of universal jurisdiction, developments in treaty law indicate that there is a tendency to grant States universal jurisdiction with respect to certain crimes because of their heinous nature and to entitle them to act as agents of the international community. Ratione materiae the judges mention war crimes and the incitation of racial hatred as a crime against humanity. No presence requirement can be derived from State practice, which is largely inconsequent on this issue, or from treaty law, as treaties stipulating an obligation aut dedere aut iudicare do not address universal jurisdiction properly so called, which entails a right, not a treaty-based obligation (Arrest Warrant Case [Joint Separate Opinion of Judges Higgins, Kooijmans, and Buergenthal] 75–6). Nevertheless, the exercise of universal jurisdiction should be conditioned by the existence of certain safeguards. Thus, States that want to exercise universal jurisdiction need to respect any applicable immunity; offer the national State of the person concerned the opportunity to act upon the charges; ensure that prosecutors and investigating judges are fully independent; and should not proceed unless special circumstances are present, such as a request by the victims of the case (Arrest Warrant case [Joint Separate Opinion of Judges Higgins, Kooijmans, and Buergenthal] 81–2).
19 Regarding the question of the immunity of incumbent Foreign Ministers, Judge ad hoc Van den Wyngaert criticized the ICJ's analogous, teleological reasoning. Due to a lack of relevant State practice, privileges and immunities are accorded to Foreign Ministers as a matter of
comity, not of customary law. No
opinio juris can be inferred from the reluctance of States to initiate criminal proceedings against incumbent Foreign Ministers. As Foreign Ministers do not impersonate their State, there is no basis for drawing analogies with the immunities of
Heads of State. Van den Wyngaert emphasizes that the International Law Commission's 1991 Draft Articles on Jurisdictional Immunities of States and their Property do not include Foreign Ministers in the savings clause on privileges and immunities of Heads of State, and that the 2001 Resolution of the
Institut de Droit international on the
Immunities from Jurisdiction and Execution of Heads of State and of Government in International Law does not extend these immunities to Foreign Ministers (
Arrest Warrant case [Dissenting Opinion of Judge ad hoc Van den Wyngaert] 143–51).
20 Some individual opinions addressed the ICJ's
obiter dictum concerning proceedings against former Foreign Ministers of other States, which the Court limited to the prosecution of acts committed in a private capacity. Judge Al-Khasawneh argued that
international criminal law is hierarchically superior to immunity, probably implying that the
ius cogens status of the prohibitions underlying crimes against international law (eg the prohibition of torture or
genocide; see also
Torture, Prohibition of) accords a peremptory character to the criminal law sanction by which the prohibition is enforced (
Arrest Warrant Case [Dissenting opinion of Judge Al-Khasawneh] 98). Judges Higgins, Kooijmans, and Buergenthal suggest that crimes against international law should not be considered official acts, as these acts are neither among the normal functions of a State nor functions that a State alone can perform (
Arrest Warrant Case [Joint Separate Opinion of Judges Higgins, Kooijmans, and Buergenthal] 88). Others note that such reasoning would not mean that international crimes should be considered private acts even with respect to State responsibility. Such a consequence would be unconvincing in case of acts committed by State officials abusing their position and the resources of the State (
Arrest Warrant Case [Dissenting Opinion of Judge Al-Khasawneh] 98;
Arrest Warrant Case [Dissenting Opinion of Judge ad hoc Van den Wyngaert] 161).
21 Another issue is whether every investigative measure amounts to an infringement of immunity of incumbent Foreign Ministers. Judge Al-Khasawneh argued that the mere opening of an investigation could hardly have this effect (Arrest Warrant Case (Dissenting Opinion of Judge Al-Khasawneh] 96). Judges Higgins, Kooijmans, and Buergenthal indicated that the level of protection might be reduced during private travels, although it would still exclude arrest and detention (Arrest Warrant case [Joint Separate Opinion of Judges Higgins, Kooijmans, and Buergenthal] 88). Similarly, Judge Oda opined that only the enforcement of the arrest warrant would have infringed Mr Yerodia's immunity (Arrest Warrant Case [Dissenting Opinion of Judge Oda] 51).
22 Regarding the issue of
reparations, Judges Higgins, Kooijmans, and Buergenthal criticized that the ICJ ordered Belgium as part of its obligation of
restitutio in integrum to cancel the arrest warrant and so inform the authorities to which it was circulated. This disregards the fact that the arrest warrant might have become legal by virtue of Mr Yerodia's resignation (
Arrest Warrant Case [Joint Separate Opinion of Judges Higgins, Kooijmans, and Buergenthal] 89–90).
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