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2 UNIVERSAL JURISDICTION UNREVISITED: THE INTERNATIONAL COURT OF JUSTICE DECISION IN CASE CONCERNING THE ARREST WARRANT OF 11 APRIL 2000 (DEMOCRATIC REPUBLIC OF THE CONGO V BELGIUM) M. Cherif Bassiouni* I. N ature of the C ase II. The Judgm ent III. A nalysis of the Judgm ent IV Framing the Issue in Order to Avoid the Issue V C onclusion Professor of Law, President, International Human Rights Law Institute, DePaul University College of Law; President, International Institute for Higher Studies in Criminal Sciences; President, International Association of Penal Law. The Palestine Yearbook of International Law, Vol. XI, 2002/2003, pp Koninklijke Brill NV

3 UNIVERSAL JURISDICTION UNREVISITED I. Nature of the Case On October 17, 2000, the Democratic Republic of the Congo ("DRC") instituted proceedings before the International Court of Justice ("ICJ") against the Kingdom of Belgium ("Belgium") in connection with a dispute arising between the two countries concerning an international arrest warrant issued on April 11, 2000 by a Belgian investigating magistrate, Mr. Vandermeersch, against the then incumbent Minister of Foreign Affairs of the DRC, Mr. Abdulaye Yerodia Ndombasi. 1 The warrant was issued pursuant to Belgium's law of June 16, 1993 (as amended by the law of February 1999), which gives that state universal jurisdiction to enforce violations of genocide, crimes against humanity and war crimes, irrespective of the existence of any contacts a defendant or a victim may have with Belgium. 2 The investigating judge charged Mr. Yerodia with inciting Hutus to commit against Tutsi residents in Kinshasa genocide, crimes against humanity and "grave breaches" of the four Geneva Conventions of August 12, 1949 and Additional Protocols I and II thereto of June 8, Mr. Yerodia allegedly made several racist and inflammatory speeches in August 1998 when he did not hold a public office to which an international immunity attached. However, at the time of the charges brought by Belgium, on April 15, 2001, he was the incumbent minister of foreign affairs, a position entitling him to diplomatic immunity under the Vienna Convention on Diplomatic Relations. 3 But, after the DRC's application was filed with the ICJ, he was no longer minister of foreign affairs, and at no time during the proceedings did he assume a position entitling him to any form of international immunity. The acts charged did not occur in Belgium and none of the victims were Belgian, though some resided in Belgium (after fleeing the DRC) when the arrest warrant was issued. None of the perpetrators of the acts charged and presumably incited by Mr. Yerodia were Belgian, nor were any of them residents of Belgium at the time of the warrant's issue; Mr. Yerodia himself was not present in Belgium when the arrest warrant was issued. I Case Concerning the Arrest Warrant of 11 April 2000 (Congo v. Belg.), 2002 I.C.J. 121 (Feb. 14), reprinted in 41 I.L.M. 536 (2002). 2 See M. Cherif Bassiouni, Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice, 42 VA. J. INT'L L. 81 (2001) [hereinafter Bassiouni, Universal Jurisdiction]. Vienna Convention on Diplomatic Relations, Apr. 18, 1961,23 U.S.T. 3227, 500 U.N.T.S. 95 [hereinafter Vienna Diplomatic Convention]. See also Optional Protocol to the Convention on Diplomatic Relations of 18 April 1961 concerning the Compulsory Settlement of Disputes, 23 U.S.T. 3374, 500 UNTS. 241.

4 Vol. XII THE PALESTINE YEARBOOK OF INTERNATIONAL LAW (2002/2003) The arrest warrant was issued in absentia, and Belgium submitted the warrant to INTERPOL, which then circulated it to all of its member states. The DRC argued that, in accordance with the principle of sovereign equality among all members of the United Nations, as provided for in Article 2, paragraph 1 of the Charter of the United Nations, and in accordance with the Vienna Convention on Diplomatic Relations, 4 Belgium had violated customary and conventional international law by issuing such an international arrest warrant against its minister of foreign affairs. It asked the ICJ to declare that Belgium had violated international law by the issuance of such a warrant and that it should be ordered to withdraw it. Belgium argued that the legal issue was moot since Mr. Yerodia was no longer minister of foreign affairs when the application was filed, and that the case as it stood before the Court was materially different from what it was at the time of the DRC's application. Belgium further argued that Mr. Yerodia did not exhaust his local remedies under Belgian law before submitting his application to the Court. The Court held oral arguments between October 15-19, 2001 and decided the case on February 14, This was the first case on a dispute over criminal jurisdiction submitted to the ICJ since the Lotus case 6 decided by the Permanent Court of International Justice ("PCIJ") in 1927, involving a conflict between territorial and passive personality jurisdiction in criminal matters. 7 The instant case presented a novel question of universal jurisdiction, which neither the PCIJ nor the ICJ had previously addressed. In its judgment, however, the ICJ skirted the underlying issue of universal jurisdiction and focused, instead, on the narrower procedural question of diplomatic immunity under international law. 4 Vienna Diplomatic Convention, supra note 3, art. 41(2). 5 Arrest Warrant of IIApril 2000, 2002 I.C.J S.S. Lotus (Fr. v. Turk.), 1927 PC.I.J (ser. A) No. 10, at 20 (Sept. 7). 7 See M. CHERIF BASSIOUNI, INTERNATIONAL EXTRADITION IN U.S. LAW AND PRACTICE ch. 6 (4th rev. ed., 2002); Christopher Blakesley, Extraterritorial Jurisdiction, in 2 INTERNATIONAL CRIMINAL LAW 43 (M. Cherif Bassiouni ed., 2d rev. ed. 1999).

5 UNIVERSAL JURISDICTION UNREVISITED II. The Judgment In its judgment the ICJ held, notwithstanding the Nuremberg 8 ("IMT") and Tokyo 9 ("IMTFE") charters and judgments, 10 and the statutes of the International Criminal Tribunal for the Former Yugoslavia ("ICTY"),Il the International Criminal Tribunal for Rwanda ("ICTR"), 12 and the International Criminal Court ("ICC"), 13 that customary international law creates no exception to the procedural immunity of persons having an official capacity under international law. Consequently, the ICJ concluded: 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 8 Charter of the International Military Tribunal, Aug. 8, 1945, 82 U.N.T.S. 284, 59 Stat [hereinafter Nuremberg Charter], annexed to Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 82 U.N.T.S. 279, 59 Stat Charter of the International Military Tribunal for the Far East, Jan. 19, 1946, T.I.A.S. No at 3, amended Apr. 26, 1946, art. 6., T.I.A.S. No at 11 [hereinafter IMTFE Amended Charter]. 10 The International Military Tribunal at Nuremberg, in TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL (1949) (the "Blue Series"); TRIALS OF WAR CRIMINALS BEFORE THE NUREMBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL No. 10 (1949) ("Green Series"). THE TOKYO WAR CRIMES TRIAL: THE COMPREHENSIVE INDEX AND GUIDE TO THE PROCEEDINGS OF THE INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR EAST IN FIVE VOLUMES (R. John Pritchard & Sonia Magbanua Zaide eds., 1981). 11 Statute of the International Criminal Tribunal for the Former Yugoslavia, art. 7(2), S.C. Res. 808, U.N. SCOR, 48th Sess., 3217th mtg., U.N. Doc. S/RES/808 (1993), annexed to Report of the Secretary-General Pursuant to Paragraph 2 of UN. Security Council Resolution 808 (1993), U.N. Doc. S/ & Add. 1 (1993) [hereinafter ICTY Statute]. See M. CHERIF BASSIOUNI & PETER MANIKAS, THE LAW OF THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA (1996). 12 Statute of the International Criminal Tribunal for Rwanda, art. 6(2), S.C. Res. 955, U.N. SCOR, 49th Sess., 3453d mtg., Annex, U.N. Doc. S/RES/955 (1994) [hereinafter ICTR Statute]. See VIRGINIA MORRIS & MICHAEL P. SCHARF, THE INTENATIONAL CRIMINAL TRIBUNAL FOR RWANDA (2 vols. 1998). 13 Rome Statute of the International Criminal Court, Jul. 17, 1998, art. 27, U.N. Doc. A/CONE183/9 [hereinafter ICC Statute], reprinted in 37 I.L.M. 999 (1998).

6 Vol. XII THE PALESTINE YEARBOOK OF INTERNATIONAL LAW (2002/2003) 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. 14 The ICJ further noted that national criminal jurisdiction must respect these immunities. Thus, by implication, one can conclude that the Court upheld the doctrine of temporal immunity with respect to national criminal jurisdictions but not so with respect to certain international criminal courts like the ICTY, the ICTR and the ICC. 15 Thus, the judgment held: 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, 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 ofjurisdiction 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 14 Arrest Warrant of ] ] April 2000, 2002 I.C.J. 121, Id. at 143.

7 UNIVERSAL JURISDICTION UNREVISITED 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 not 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 "[i]mmunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person." Id.

8 Vol. XII THE PALESTINE YEARBOOK OF INTERNATIONAL LAW (2002/2003) The Court then addressed the issue of Belgium's international circulation of the arrest warrant and found that such action violated international law under the facts of the case. It held that: 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. 17 The Court thus ruled that: 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. 18 The Judges' votes on these issues were as follows: [1] (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 17 Id. at Id. at 149.

9 UNIVERSAL JURISDICTION UNRE VISITED 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. 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 RANEVA 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. 19 The Court reached these findings after having found, by fifteen votes to one, that it had jurisdiction, that the application of the DRC was not without object (and the case accordingly not moot) and that the application was admissible, thus rejecting the objections that Belgium had raised on those questions. 19 Id. at

10 Vol. XII THE PALESTINE YEARBOOK OF INTERNATIONAL LAW (2002/2003) III. Analysis of the Judgment The Court's decision can be better characterized by what it implies than by what it specifically addresses. There are eleven conclusions that can be drawn: 1. Diplomatic and other forms of international immunities are binding upon states and prevent them from exercising their national criminal jurisdiction over such persons while incumbents, thus recognizing temporal diplomatic and head of state immunity. By implication, one would also have to conclude that this does not in any way affect substantive immunity, which international law does not recognize with respect to certain international crimes, even those protected by temporal immunity. 2. Temporal immunity, however, can be derogated by international tribunals, as provided in the statutes of the ICTY, 20 ICTR, 2 1 and LCC,22 thus implicitly recognizing that the Security Council can establish special judicial organs that can alter the customary rules of international law on immunity, and that states can also accomplish this by treaty. 3. Since the ICC statute does not provide for universal jurisdiction except when a "situation" is referred to it by the Security Council, 23 the ICJ avoided the contradiction, if not conflict, between international law norms that require prosecution for certain international crimes, like war crimes, and temporal diplomatic and other international immunities. 4. The Court did, however, address one of the consequences of Belgium's universal jurisdiction law of by ordering it to nullify the international effect of its arrest warrant. But it did so without addressing the predicate issue of universal jurisdiction. 5. The unarticulated premise of this case is a world order consideration, upon which an unbridled or unregulated application of universal jurisdiction would negatively impact. But surely the Court could have recognized the validity, if not the binding obligation, to enforce certain international crimes through universal jurisdiction and established guidelines or parameters for its application to avoid disruption of world order See ICTY Statute, supra note See ICTR Statute, supra note See ICC Statte, supra note Id. art. 13(b). 24 Act of 16 June1993 on the Punishment of Grave Breaches of the Geneva Conventions of 12 August 1949 and their Additional Protocols I and II of 18 June 1977, art. 7, MONITEUR BELGE, Aug. 5, 1993 (Belgium) [hereinafter Belgian 1993 Universal Jurisdiction Law]. 25 See, e.g., Princeton Principles on Universal Jurisdiction (Princeton University Program in Law and Public Affairs, 2001), reprinted in Bassiouni, Universal Jurisdiction, supra note 2, at 157.

11 UNIVERSAL JURISDICTION UNREVISITED 6. More significantly, however, the Court left open the right of Belgium or, for that matter, of any other country to seek to exercise universal jurisdiction for certain international crimes over persons who are charged with such crimes whenever the temporal immunity lapses or, in other words, when the incumbent no longer holds office. 7. The Court did not address the issue of who is specifically entitled to such temporal immunity under the Vienna Convention on Diplomatic Relations, 26 the Vienna Convention on Consular Relations, 27 and the customary international law immunity of heads of state. In this case, the Vienna Convention on Diplomatic Relations 28 was held to apply to an incumbent minister of foreign affairs. It can therefore be assumed that other government officials who do not fall within the meaning of the Vienna Convention on Diplomatic Relations are not immune from a state's exercise of universal jurisdiction. However, this leaves open the question of a head of government who exercises diplomatic functions and cabinet officers who are sent on diplomatic missions. Thus, even though the Court did not have to address that issue, it could have addressed it in dicta to avoid international uncertainty. 8. In its judgment, which is final and binding upon the parties, the Court found, by thirteen votes to three: [t]hat 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 The Court first rejected certain objections of Belgium concerning jurisdiction and admissibility based upon the fact that Mr. Yerodia was no longer the minister for foreign affairs or even a member of the government of the DRC at the time the Court was dealing with the case. Belgium argued that there no longer existed a "legal dispute" between the parties within the meaning of the declarations filed by them pursuant to Article 36 (2) of the ICJ Statute and that, therefore, the Court lacked jurisdiction. On this point, the Court recalled that its jurisdiction must be 26 See Vienna Diplomatic Convention, supra note Vienna Convention on Consular Relations, Apr. 24, 1963, 21 UST. 77, 596 U.N.T.S. 261 [hereinafter Vienna Consular Convention]. 28 See Vienna Diplomatic Convention, supra note As stated in the ICJ's Press Release 2002/04bis, available at [hereinafter ICJ Press Release].

12 Vol. XII THE PALESTINE YEARBOOK OF INTERNATIONAL LAW (2002/2003) determined at the time of the institution of the proceedings and that at that time, there was clearly "a legal dispute between... [the parties] concerning the international lawfulness of the arrest warrant of 11 April 2000 and the consequences to be drawn if the warrant was unlawful. ' 30 The Court accordingly rejected the first Belgian objection. The Court also rejected the second Belgian objection, namely that because of the abovementioned change in Mr. Yerodia's situation, the case was without object. The Court found that this change had not deprived the application of its object. It pointed out that the DRC argued that the arrest warrant was unlawful and asked the Court so to declare, while continuing to seek cancellation of the warrant; for its part, Belgium continued to dispute the DRC's submissions. The Court also rejected Belgium's third objection, that the DRC's claims were inadmissible because the facts underlying the application had changed in such a way as to produce a transformation of the dispute before the Court into another dispute. The DRC's final submissions, the Court observed, arose "directly out of the question which is the subject-matter of that Application.' ' 31 Belgium's fourth objection, that because of the change of Mr. Yerodia's situation, "the case has assumed the character of an action of diplomatic protection but one in which the individual being protected has failed to exhaust local remedies," 32 was also rejected by the Court. The Court noted that the DRC never invoked the individual rights of Mr. Yerodia and recalled that, in any event, the admissibility of the application must be determined as at the time of its filing. The Court eventually held, in response to a subsidiary argument of Belgium, that, while in accordance with a well-established principle the Court is "not entitled to decide upon questions not asked of it, [that] non ultra petita rule nonetheless cannot preclude the Court from addressing certain legal points in its reasoning.' ' 33 The Court observed that in the present case, it thus could not rule in the operative part of its judgment upon the question of whether the disputed arrest warrant, issued by the Belgian investigating judge in exercise of his asserted universal jurisdiction, complied in that regard with the rules and principles of international law governing the jurisdiction of national courts because that question was not contained in the final submissions of the parties. 10. On the merits, the Court held that in this case it was only the immunity from criminal jurisdiction and the inviolability of an incumbent minister for foreign affairs that had to be considered. Having referred to certain treaties cited by the parties in this regard, and having concluded that they do not define the immuni- 30 Id. 31 Id. 32 Id. 33 Arrest Warrant of ]] April 2000, 2002 I.C.J. 121, 138.

13 UNIVERSAL JURISDICTION UNREVISITED ties of ministers for foreign affairs, the Court found that it had to decide the questions relating to these immunities on the basis of customary international law. The Court stated 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. In order to determine the extent of these immunities, the Court first considered the nature of the functions exercised by a minister for foreign affairs. After an examination of the nature of those functions, the Court concluded that they are such that throughout the duration of office, a minister for foreign affairs, when abroad, enjoys full immunity from criminal jurisdiction and inviolability. That immunity and 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. 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 Court also addressed Belgium's arguments that ministers for foreign affairs do not enjoy such immunity when they are suspected of having committed war crimes or crimes against humanity. The Court pointed out that, after having carefully examined state practice, including national legislation and those few existing decisions of national higher courts, such as the House of Lords or the French Court of Cassation, it was 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 during the exercise of these functions. Thus, it concluded that temporal immunity existed in international law. 34 The Court further found that the rules governing the jurisdiction of national courts must be carefully distinguished from those governing international jurisdictional immunities. The immunities under customary international law, including those of ministers for foreign affairs, remain opposable before the courts of a foreign state, even where those courts exercise an extended criminal jurisdiction on the basis of various international conventions on the prevention and punishment of certain serious crimes. 34 See Bassiouni, Universal Jurisdiction, supra note 2, at 84. Such immunity is not available under Article 27 of the ICC Statute; see supra note 13. However, the ICC statute is part of a treaty, and states may thereby alter customary international law.

14 Vol. XII THE PALESTINE YEARBOOK OF INTERNATIONAL LAW (2002/2003) The Court emphasized, 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, regardless 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 of time or for certain offences; it cannot exonerate the person to whom it applies from all criminal responsibility. The Court then spelled out the circumstances in which the immunities enjoyed under international law by an incumbent or former minister for foreign affairs do not represent a bar to criminal prosecution. After examination of the terms of the arrest warrant of 11 April 2000, the Court stated that the issuance, as such, of the disputed arrest warrant represented 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. It found that, given the nature and purpose of the warrant, its mere issuance constituted a violation of an obligation of Belgium towards the DRC in that it failed to respect the immunity that Mr. Yerodia enjoyed as the DRC's incumbent minister for foreign affairs; more particularly, the issuance of said arrest warrant infringed the immunity from criminal jurisdiction and inviolability then enjoyed by him under international law. The Court also noted that Belgium admitted 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. ''35 It found that, as in the case of the warrant's issue, its international circulation since June 2000 by the Belgian authorities, given the nature and purpose of the warrant, constituted a violation of an obligation of Belgium towards the DRC, in that it failed to respect the immunity of the incumbent minister for foreign affairs of the DRC and, more particularly, infringed the immunity from criminal jurisdiction and the inviolability then enjoyed by him under international law. 11. Judge Van den Wyngaert, Belgium's designated ad hoc judge, dissented from the Court's decision on the merits. Her position, as reported below, is excerpted from the ICJ's official press release: 36 Judge Van den Wyngaert disagreed with the Court's conclusion that there is a rule of customary international law granting immunity to incumbent foreign ministers. She viewed Belgium as not having violated a legal obligation owed in this respect to the DRC. Even assuming, arguendo, that there was such a rule, there had been no violation in the present case as the warrant could not be, and was not, 35 Arrest Warrant of ]] April 2000, 2002 I.C.J. 121, ICJ Press Release, supra note 29.

15 UNIVERSAL JURISDICTION UNRE VISI TED executed, either in the country where it was issued (Belgium) or in the countries to which it was circulated. The warrant was not an "international arrest warrant" in a legal sense: it could and did not have this effect, either in Belgium or in third countries. Judge Van den Wyngaert found that these were the only objective elements to which the Court should have looked. The subjective elements, i.e., whether the warrant had a psychological effect on Mr. Yerodia or whether it was perceived as offensive by the DRC (cf the terms iniuria and capitis diminutio used by counsel for the DRC), were irrelevant to the dispute. On the subject of immunities, Judge Van den Wyngaert found no legal basis under international law for granting immunity to an incumbent minister for foreign affairs. There is no conventional international law on the subject; nor is there any customary international law on the subject. Before reaching the conclusion that ministers for foreign affairs enjoy full immunity from foreign jurisdiction under customary international law, the ICJ should have satisfied itself of the existence of state practice (usus) and opiniojuris establishing an international custom to this effect. A "negative" practice, consisting of states abstaining from instituting criminal proceedings, cannot, in itself, be seen as evidence for an opinio juris, 37 and abstinence may be attributed to many other factors, including practical and political considerations. Legal opinion does not support the Court's proposition that ministers for foreign affairs are immune from the jurisdiction of other states under customary international law. Moreover, the Court reached this conclusion without regard to the general tendency toward the restriction of immunity of state officials (including even heads of state), not only in the field of private and commercial law but also in the field of criminal law, particularly where there are allegations of war crimes and crimes against humanity. Belgium may have acted contrary to international comity but it did not infringe international law. Judge Van den Wyngaert therefore viewed the whole judgment as based upon flawed reasoning. On the subject of universal jurisdiction, on which the Court did not pronounce itself in the present judgment, Judge Van den Wyngaert viewed Belgium as being perfectly entitled to apply its legislation to the war crimes and crimes against humanity allegedly committed by Mr. Yerodia in the DRC. Belgium's Act of 16 June 1993 on the Punishment of Grave Breaches of the Geneva Conventions of 12 August 1949 and their Additional Protocols I and II of 18 June 1977 ("War Crimes Act"), giving effect to the principle of universal jurisdiction regarding war crimes and crimes against humanity, is not contrary to international law. 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 and crimes against humanity do not find safe havens. Universal jurisdiction is not contrary to the 37 S.S. Lotus, supra note 6, at 28.

16 VoL XII THE PALESTINE YEARBOOK OF INTERNATIONAL LAW (2002/2003) principle of complementarity in the Rome Statute of the ICC. The ICC will only be able to act if states that have jurisdiction are unwilling or genuinely unable to carry out investigation or prosecution (Art. 17). Furthermore, even where such willingness exists, the ICC, like the ad hoe international criminal tribunals, will not be able to deal with all the crimes that come under its jurisdiction; the ICC will not have the capacity to do so. Thus there will always be a need for states to investigate and prosecute core crimes. 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 prosecute. Judge Van den Wyngaert viewed this case as a test case, presenting the first opportunity for the ICJ to address a number of questions that have not been considered since the PCIJ decided the Lotus case in In technical terms, the dispute was about an arrest warrant against an incumbent foreign minister. The warrant was, however, based upon charges of war crimes and crimes against humanity, which the Court failed even to mention in the dispositif. In a more principled way, then, the case was about how far states can or must go when implementing modem international criminal law. It was about the question of 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 for international accountability for such crimes as torture, terrorism, war crimes and crimes against humanity and the principle of the sovereign equality of states, which presupposes a system of immunities. Judge Van den Wyngaert expressed regret that the Court did not address the dispute from this perspective and instead focused on the very narrow technical question of immunities for incumbent foreign ministers. In failing to address the dispute from a more principled perspective, Judge Van den Wyngaert regards the ICJ as having missed an excellent opportunity to contribute to the development of modern international criminal law. In legal doctrine, there is a plethora of recent scholarly writings on the subject. Major scholarly institutions and nongovernmental organizations have taken clear positions on the subject of international accountability. The latter may be seen as the opinion of civil society, an opinion that cannot be completely discounted in the formation of customary international law today. Judge Van den Wyngaert highly regrets that the Court failed to acknowledge this development and instead adopted 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. By adopting this approach, the Court implicitly established a hierarchy between the rules on immunity (protecting incumbent former ministers) and the rules on international accountability (calling for the investigation of charges

17 UNIVERSAL JURISDICTION UNREVISITED against incumbent foreign ministers suspected of 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 is relieved of giving further consideration to the legal status of the principle of international accountability under international law. Other courts, for example the House of Lords in the Pinochet 38 case and the European Court of Human Rights in the Al-Adsani 39 case, have given more thought and consideration to the balancing of the relative normative status of international ius cogens crimes and immunities. Judge Van den Wyngaert disagreed with the Court's proposition that immunity does not lead to impunity for incumbent foreign ministers. This may be true in theory but not in practice. It is, in theory, true that an incumbent or former foreign minister can always be prosecuted in his own country or in other states if the state whom he represents waves immunity, as the Court asserts. However, this is precisely the core of the problem of impunity: where national authorities are not willing or able to investigate or prosecute, the crime goes unpunished. This is precisely what happened in the present case. The DRC accused Belgium of exercising universal jurisdiction in absentia against an incumbent foreign minister, but it itself had failed to exercise its jurisdiction in presentia in the case of Mr. Yerodia, thus violating the 1949 Geneva Conventions relative to the protection of war victims as well as failing to comply with a host of United Nations resolutions to this effect. The DRC did not come to the Court with clean hands: it blamed Belgium for investigating and prosecuting allegations of international crimes that it itself was obliged to investigate and prosecute. In addition, Judge Van den Wyngaert found the judgment highly unsatisfactory in stating that immunity does not lead to impunity of former foreign ministers. According to the Court, the lifting of full immunity in this case is only for acts committed prior or subsequent to the period of office and for acts committed during the period of office in a private capacity. Whether war crimes and crimes against humanity fall into this category, the Court failed to say. Judge Van den Wyngaert found it extremely regrettable that the ICJ did not, like the House of Lords in the Pinochet case, qualify its statement. It could, and indeed should, have added that war crimes and crimes against humanity can never fall into this category. Some crimes under international 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 perspec- 38 Regina v. Bartle & Commissioner of Police for the Metropolis and Others, Ex Parte Pinochet Ugarte (Amnesty International et al. intervening) (No. 3), 2 All E.R. 97 (H.L. 1999). 39 Al-Adsani v. United Kingdom, Eur. Ct. H.R., App. No /97 (Nov. 21, 2001), available at <

18 Vol. XII THE PALESTINE YEARBOOK OF INTERNATIONAL LAW (2002/2003) tive, be anything other than "official" acts. Immunity should never apply to crimes under international law, whether before international courts or national courts. Victims of such violations bringing legal action against such persons in third states would face a hurdle in immunity from jurisdiction. Today, they may, by virtue of the application of the 1969 Convention on Special Missions, 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. Judge Van den Wyngaert regards that broadening immunities wider than this may lead to conflict with international human rights rules and particularly the right of access to court, as was raised in the recent Al-Adsani case in the European Court of Human Rights. According to Judge Van den Wyngaert, 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 states, thus paralyzing the functioning of such states. In the present dispute, however, there was no allegation of abuse of process on the part of Belgium. The 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 Act in an offensive and discriminatory manner against a foreign minister of the DRC was manifestly ill-founded. Belgium, rightly or wrongly, wishes to act as an agent of the world community by allowing complaints to be 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 bringing charges based upon 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. Rafzanjani, Mr. Hissen Habre, Mr. Fidel Castro, and others. It would therefore be wrong to say that the War Crimes Act has been applied against a national of the DRC in a discriminatory manner. In the abstract, the chaos argument may be pertinent. This risk may exist, and the Court could have legitimately warned against it 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. Judge Van den Wyngaert observes that granting immunity to incumbent foreign ministers may open the door to other sorts of abuse. It dramatically increases the number of persons who enjoy international immunity from jurisdiction. Recognizing immunity 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

19 UNIVERSAL JURISDICTION UNREVISITED immunity to perform their functions, why not grant immunity to other cabinet members as well? The ICJ does not state this proposition but it appears to flow from the reasoning leading to the conclusion that foreign ministers are immune from prosecution. The rationale for treating foreign ministers the same as diplomatic agents and heads of state, which lies at the center of the Court's reasoning, could potentially be extended to other ministers who represent the state officially, for example ministers of education who must attend UNESCO conferences in New York or other ministers receiving honorary doctorates abroad. Male fide governments could abuse such an extension by appointing persons to cabinet posts in order to shelter them from prosecutions on charges of international crimes. Judge Van den Wyngaert concludes from this analysis that the ICJ, in its effort to close one Pandora's box, fearing chaos and abuse, may have opened another: the granting of immunity, and thus defacto impunity, to an increasing number of government officials. 4 0 IV. Framing the Issue in Order to Avoid the Issue In every case, the framing of the legal issue predetermines its possible outcomes. Here, the ICJ framed the issue in a manner that allowed it to avoid the ultimate substantive issue of universal jurisdiction. There is no better way to demonstrate the legal technique of framing an issue than with the following illustration from the New Testament. Jesus of Nazareth was confronted by the Jewish Pharisees with the purposefully difficult question of how he would reconcile the judgment of stoning to death of an adulteress with his teachings. Jesus did not want the woman stoned, but how was he to achieve this result without challenging the validity of Jewish law, questioning the judgment rendered against her, or arguing the facts upon which her conviction was based? Thus, he framed the issue in such a way as to avoid these thorny questions and yet obtain his desired outcome. He posited his answer in the most masterful manner, whose compelling logic would inevitably produce the intended result: "Let he among you who is without sin cast the first stone. '4 1 Far be it from me to compare the ICJ's framing of the issues in the instant case in the way that Jesus Christ handled the situation described in the Bible. Nevertheless, that great lesson informs us that outcomes are determined by the manner in which issues are framed. Consequently, when the ICJ posited the substantive issue in this case in terms of whether diplomatic immunity applied temporarily to an incumbent minister of foreign affairs pursuant to the Vienna 40 See ICJ Press Release, supra note John 8: 3-7.

20 Vol. XII THE PALESTINE YEARBOOK OF INTERNATIONAL LAW (2002/2003) Convention on Diplomatic Relations, which, according to the Court, also reflects customary international law on this issue, 42 there was only one possible outcome: the procedural aspects of immunity under international law are as unambiguous as they are without exception, so long as the beneficiaries occupy the positions or functions covered by that immunity. 43 Consequently, the Belgian arrest warrant of April 11, 2000 was held invalid. 44 The ICJ did not ask, for example, whether the Belgian law on universal jurisdiction 45 was valid or invalid, whether its application without a nexus to the enforcing state was an overreach, whether the facts raised questions about the status of the person in question, or whether the facts warranted the conclusion that the international crimes committed were subject to arrest pursuant to an exercise of universal jurisdiction because they werejus cogens crimes. 46 None of these questions of law and fact had to be reached because of the artful manner in which the issue presented was framed by the Court. With some poetic license, it was: "Let he who benefits from diplomatic immunity go free so long as he enjoys such immunity." The Court nevertheless did not want this outcome to produce other effects beyond that narrow ruling. More particularly, it did not want temporal immunity to result in long-term impunity, let alone in a back-door substantive immunity forjus cogens crimes. 47 However, once having framed the issue of the case as it did, it could only address the limitations of its consequences by way of dicta, and so it did. The principle of nonapplicability of substantive immunity for jus cogens crimes was enunciated by the Court in dicta. 48 The Court's views on that matter are evident in references made in the judgment to the jurisprudence of Nuremberg, Tokyo and the ICTY, ICTR and ICC. 49 As to the ICTY, ICTR and 42 Arrest Warrant of]] April 2000, 2002 I.C.J. 121, 140 para Id. para. 53. Unfortunately, the ICJ decision here may have the unintended consequence of encouraging states to invent various cabinet positions, functional or fictitious, in order to shelter alleged human rights violators from being prosecuted in other states. 44 Id. at 146 para Belgian 1993 Universal Jurisdiction Law, supra note See M. CherifBassiouni, The Need for InternationalAccountability, in 3 INTERNATIONAL CRIMINAL LAW 11 (M. Cherif Bassiouni ed., 2d rev. ed. 1999) [hereinafter Bassiouni, The Need for Accountabilit]. 47 But see the International Law Commission's Draft Code of Crimes Against the Peace and Security of Mankind (1996), 51 UN GAOR Supp. (No. 10) at 14, U.N. Doc. A/CN.4/L.532, corr.l, corr.3 (1996) (commentary to article 7 noting that "[t]he absence of any procedural immunity... is an essential corollary of the absence of any substantive immunity or defence."). 48 Arrest Warrant of]] April 2000, 2002 I.C.J. 121, 143 paras Id. at 142, para. 58. See also M. CHERIF BASSIOUNi, THE STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A DOCUMENTARY HISTORY (1998); M. Cherif Bassiouni, International Criminal Court Ratification and National Implementing Legislation, 71 REV. INT'L DE DROIT PENAL (2000).

21 UNIVERSAL JURISDICTION UNREVISITED ICC statutes, the judgment underscored that the first two are the product of Security Council resolutions while the third is a treaty-based institution. 50 Thus, the Court affirmed, although it did not explicitly so hold, that these tribunals' statutes and those of its two predecessors, the IMT and IMTFE, embodied the customary international law principle of no impunity forjus cogens crimes. Paradoxically, the expansive nature of the Court's dicta was made possible by the de jure limited scope of ICJ judgments in accordance with Article 59 of the ICJ Statute. That provision limits the effects of judgments to the parties and to the facts submitted for adjudication by the parties. Thus, since dicta is neither binding upon the parties to a given dispute nor is it binding as a precedent, the Court frequently resorts to it for other reasons. The great merit of some dicta is that it can send subliminal legal messages to the international legal community without any binding legal consequences. These messages are expected to be received wisely by governmental lawyers who can then steer their advisees in higher governmental spheres from making decisions contrary to the contents of the legal message. If the message is not met with opposition by governmental lawyers and international law experts, a subliminal response is effectively given to the initial message that the legal norm referenced in the dicta will be deemed applicable infuturo. Thus, the Court can be bolder in future cases and can posit in explicit terms the legal proposition to which it had previously referred only in dicta. This incremental process is common in ICJ practice and reveals the elasticity of Article 59 of the ICJ Statute. 51 What concerns might have influenced the ICJ to have taken this route? Since unarticulated political considerations usually lie beneath the surface of most ICJ cases, the inquiry should start there; in this writer's opinion, they consists essentially of the following. The international community has clearly moved closer in the direction of curtailing impunity and enhancing accountability for international crimes, 52 a goal that the ICJ apparently shares, as expressed in its judgment. Yet how can this be achieved? Effective enforcement of international criminal accountability depends upon a state's willingness to exercise its national criminal jurisdiction on the basis of one of the thexories of jurisdiction that connects the enforcing state with the crime (territoriality), the perpetrator (active personality), or the victim (passive personality). 53 In the absence of any such applicable theory, states can rely upon 50 Arrest Warrant of]] April 2000, 2002 I.C.J. 121, 142 para In other words, ifjudgments only apply to the parties and to the facts of a given case, they can have no precedential effect. However, the reference to prior ICJ judgments creates defacto jurisprudential case law. 52 This is plainly seen in the establishment of the ICTY, the ICTR and the ICC. 53 See authorities cited supra note 7.