Arrest Warrant Case (Democratic Republic of the Congo v Belgium)
- Immunity from jurisdiction, states — Crimes against humanity — Diplomatic immunity — Jurisdiction of states, universality principle
A. Facts of the Case
1 On 11 April 2000, an investigating judge of the Brussels Tribunal of First Instance issued an arrest warrant against the incumbent Minister for Foreign Affairs of the Democratic Republic of Congo (‘DRC’ Congo, Democratic Republic of the), Abdulaye Yerodia Ndombasi. Allegedly, he had incited racial hatred in various speeches in the DRC in 1998, which had contributed to the massacre of several hundred persons. He was therefore charged with grave breaches of the Geneva Conventions I–IV (1949); Geneva Conventions Additional Protocol I (1977); Geneva Conventions Additional Protocol II (1977), and crimes against humanity. The arrest warrant was transmitted to the DRC and simultaneously internationally circulated through Interpol. At this time, Mr Yerodia was not on Belgian territory and none of the victims of the massacres were Belgian nationals. Belgian authorities initiated proceedings under the Belgian Law of 16 June 1993 Concerning the Punishment of Grave Breaches of the Geneva Conventions of 12 August 1949 and Additional Protocols I and II of 8 June 1977 (as amended in 1999), which provided for universal jurisdiction in respect of the crimes for which Mr Yerodia was sought (Criminal Jurisdiction of States under International Law). The law further provided that immunity attached to the official capacity of a person should not prevent the application of the law. Belgium alleged that it had proposed to the DRC in September 2000 to entrust the case to competent Congolese authorities.
B. History of Proceedings
2 On 17 October 2000, the DRC filed an application with the International Court of Justice (ICJ), requesting the ICJ to declare that Belgium should annul the arrest warrant. The claim was based on two different legal grounds: first, the DRC claimed that the principle that a State may not exercise its authority on the territory of another State and the principle of sovereign equality of States (Art. 2 (1) UN Charter) (see also States, Sovereign Equality) had been violated by Belgium’s arrogation of universal jurisdiction. Second, the DRC argued that the arrest warrant disregarded the immunity of the incumbent Congolese Foreign Minister under customary international law.
3 At the same time, the DRC requested the indication of interim (provisional) measures under Art. 48 ICJ Statute (Interim (Provisional) Measures of Protection), arguing that the impending arrest warrant effectively barred Mr Yerodia from exercising his duties as Foreign Minister (Arrest Warrant of 11 April 2000 Democratic Republic of the Congo v Belgium], [Request for the Indication of a Provisional Measure]). During the hearings on provisional measures in November 2000, it was revealed that Mr Yerodia had ceased to hold office as Foreign Minister. Claiming that this rendered the case moot, Belgium requested the Court to remove the case from the list. By Order of 8 December 2000, the ICJ rejected the request for provisional measures by the DRC, because Mr Yerodia had been transferred to a government post involving less frequent foreign travel (Arrest Warrant Case [Order] para. 72). However, as the arrest warrant continued to be in force (Arrest Warrant Case [Order] paras 56–7), the case had not become moot.
4 In its Memorial of 15 May 2001, the DRC prescinded its argument that the exercise of universal jurisdiction by Belgium had violated its sovereignty and based its submissions exclusively on the argument that Belgium had violated the rule of customary international law concerning incumbent Foreign Ministers’ absolute inviolability and immunity from criminal jurisdiction. It requested a formal finding by the ICJ to that effect, which would constitute an appropriate form of satisfaction. The DRC also requested the Court to declare that the violation of international law on which the arrest warrant was based precluded any State, including Belgium, from executing it, and to require Belgium to recall and cancel the arrest warrant, and inform foreign authorities thereof. Belgium advanced four objections to the jurisdiction of the ICJ and the admissibility of the case. It also invoked the non ultra petita rule with respect to the fact that the DRC had dropped the claim that Belgium had wrongly conferred upon itself universal jurisdiction. The DRC stated that it considered the legality of the exercise of universal jurisdiction by Belgium as a question of secondary importance.
C. The Judgment
5 In its judgment of 14 February 2002, the ICJ based its jurisdiction on the declarations of both parties pursuant to Art. 36 (2) ICJ Statute (International Courts and Tribunals, Jurisdiction and Admissibility of Inter-State Applications). At the outset, the Court rejected the four objections to jurisdiction and admissibility raised by Belgium, each by 15 votes to 1 (Arrest Warrant Case [Judgment] 12–18). All objections were based on the fact that Mr Yerodia had meanwhile ceased to hold office as Foreign Minister.
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).
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).
10 Second, the ICJ discussed Belgium’s argument that incumbent Foreign Ministers do not enjoy immunity from criminal prosecution in cases where they are suspected of war crimes or crimes against humanity. To corroborate its view, Belgium invoked certain provisions of the instruments creating international criminal tribunals, according to which the official capacity of a person shall not constitute a bar to prosecutions. Further, Belgium referred to certain decisions of domestic courts, in particular the Boery v Gaddafi (‘Gaddafi case’ Cour de cassation [French Highest Court of Ordinary Jurisdiction] [Paris 13 March 2001] (2001) 125 ILR 490) and Regina v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet (‘Pinochet case’ United Kingdom House of Lords [24 March 1999] (1999) 38 ILM 581; Pinochet Cases).
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).
1. Universal Jurisdiction
23 The ICJ did not seize the chance to clarify some questions regarding the criminal jurisdiction of States under international law which have arisen since the judgment of the Permanent Court of International Justice (PCIJ) in the Lotus Case, the last international judgment on the matter. Due to the ICJ’s silence on the issue and the wide range of diverging views expressed in the individual opinions, the legality of the exercise of universal jurisdiction remains unclear. It would be mere speculation to derive a certain tendency in favour of or against the legality of universal jurisdiction from the individual opinions, in particular as the judges primarily address the more specific question whether the exercise of universal jurisdiction requires the presence of the alleged perpetrator.
24 The frequent references to the Lotus judgment in the individual opinions indicate that much of the controversy concerning the admissibility of universal jurisdiction can be traced back to differences in the understanding of the present state and direction of the international legal order. Those in favour of universal jurisdiction in absentia stress the permissive side of the Lotus judgment, according to which States are free to act as they desire as long as they do not do so on the territory of another State. According to this view, the strictly horizontal structure of the international order established in the Lotus Case is about to be superseded by a vertical structure with the international community as the ultimate source of authority (Arrest Warrant Case [Joint Separate Opinion of Judges Higgins, Kooijmans, and Buergenthal] 78). Those opposed to universal jurisdiction in absentia emphasize the cautious remarks on criminal jurisdiction in the Lotus judgment, or point out that the international order is still dominated by sovereign States. Perhaps this is now even more true than at the time of the Lotus judgment, as suggested by the increase in the number of States due to decolonization and the end of the Cold War (1947–91).
2. Immunity of Incumbent Foreign Ministers
25 Remarkably, the ICJ derives the existence and extent of the immunities of Foreign Ministers from the rationale underlying the immunities of other State officials. If international law is understood as having the function of providing a comprehensive framework for the international community, or at least for the community of States, and not only as a fragmentary structure of sporadic islands of State consent, it is legitimate to strive towards coherence in international law by means of analogous and teleological reasoning.
3. Scope and Limits of Immunity
26 It is, however, questionable whether and to what extent the immunities of Foreign Ministers may prevent proceedings dealing with crimes against international law. In this regard, the ICJ’s emphasis on the lack of state practice concerning the prosecution of incumbent Foreign Ministers stands in methodological contrast to its previous purposive reasoning on the foundations of their immunity. Nevertheless, the obiter dictum which spells out the situations in which incumbent or former Foreign Ministers may be prosecuted for crimes against international law is open to different interpretations. For a meaningful reading of the obiter dictum, it is crucial to distinguish full (or personal, procedural) immunities from functional (or material, substantive) immunities. While full immunities are only accorded to certain top representatives such as heads of state, heads of government (Heads of Governments and Other Senior Officials), diplomatic agents, or, arguably, Foreign Ministers, functional immunities are granted to every State official for acts performed in an official capacity. As full immunities are aimed at enabling the smooth conduct of international affairs, they cease with the end of their holder’s term of office (Immunity, Diplomatic). Functional immunities, however, are based on the idea that official acts should be imputed to States, not to State officials. Therefore, they permanently exculpate individuals from civil or criminal responsibility for acts performed in official capacity (State Immunity). Thus, former Foreign Ministers may only enjoy functional immunities.
27 Of the four situations distinguished in the obiter dictum, the first two situations are largely uncontroversial because they require the action or the cooperation of the State of which the suspected person is a national. By contrast, the third and fourth situations have generated much debate. The third situation, which concerns the admissibility of prosecutions against former Foreign Ministers before the Courts of other States, lends itself to different interpretations. According to a first reading, official acts of former Foreign Ministers can never be prosecuted before the courts of other States, even if these acts amount to crimes against international law. This reading would often lead to de facto impunity as the first two situations are unlikely to lead to prosecutions unless there is a regime change in the State of which the suspected person is a national. The international criminal courts and tribunals referred to in the fourth situation possess only limited jurisdiction and capacity. This reading of the third situation therefore disregards the idea of individual accountability for crimes against international law, which implies that official capacity does not shield from criminal responsibility (‘Crimes against international law are committed by men, not by abstract entities’, International Military Tribunal for the Trial of German Major War Criminals, Nuremberg Trial Proceedings vol. 22, 466). The responsibility of lower-ranking officials, such as military officers, for crimes against international law has been firmly established in customary international law by an array of cases before domestic courts. There is no apparent reason why former Foreign Ministers should be exempted from this responsibility.
28 An alternative reading of this third situation which emphasizes the idea of individual criminal responsibility for crimes against international law suggests that such crimes should not be considered official acts. This is the reading proposed by Judges Higgins, Kooijmans and Buergenthal (Arrest Warrant Case [Joint Separate Opinion of Judges Higgins, Kooijmans, and Buergenthal] 88). This reading establishes two different concepts of official acts for different purposes: while international crimes committed in an official capacity should be considered official acts in the context and for the purposes of the law of State responsibility (Responsibility, State), they should be considered as falling entirely outside the scope of official acts to which functional immunities apply (Kress, 36–7). This reasoning, which resembles that of the House of Lords in the Pinochet case, would bring proceedings before domestic courts against former Foreign Ministers from other States for international crimes in harmony with the obiter dictum.
29 Similarly enigmatic is the fourth situation listed by the ICJ, according to which ‘certain international criminal courts’ may prosecute incumbent Foreign Ministers. While it is clear that the authority of the ad hoc tribunals established pursuant to Chapter VII UN Charter overrides the immunity of anyone before them, the court’s reference to the International Criminal Court (ICC) raises questions. States Parties to the ICC waived any immunity attaching to official capacity by virtue of Art. 27 (2) Rome Statute of the International Criminal Court (‘ICC Statute’). However, this waiver does not affect officials of non-States Parties, which may nonetheless be brought before the ICC if they commit crimes on the territory of a State Party (Art. 12 (2) (a), ICC Statute). Art. 98(1) ICC Statute suggests that States Parties might have to respect these immunities, but the ICC itself does not necessarily have to do so too. The obiter dictum seems to support the latter view.
30 The judgment is of lasting significance for the issues of universal jurisdiction and immunities in international law and has caused repercussions in law-making, jurisprudence, and scholarship. Even though the judgment does not offer any guidance for the further development of universal jurisdiction, the individual opinions have become frequent reference points.
31 In 2003, the Belgian Court of Cassation dismissed the case against Israeli Prime Minister Sharon because it violated the personal immunity granted under customary international law to incumbent Heads of Government (Sharon Cour de Cassation [Belgian Highest Court of Ordinary Jurisdiction] [12 February 2003] 42 ILM 596). Soon after, Belgium made two subsequent amendments to its law on crimes against humanity under pressure of the United States. Under the new law, the defendant or the victim need to be citizens or residents of Belgium, and the prosecutor may dismiss the case if it can be brought before a more appropriate national or international tribunal, provided that it has jurisdiction, is independent, impartial, and fair. Immunities under international law need to be respected but nevertheless, the case against former Chadian dictator Habré, for example, continues. Some of the victims are of Belgian nationality and Chad formally waived the immunity of its former Head of State. Considering that functional immunities do not bar prosecutions into crimes against international law, this would not have been necessary.
32 In the Certain Criminal Proceedings in France Case (Congo v France) ((Application to Intervene) 11 April 2003  ICJ Rep 3) the Republic of Congo claims that France infringed its sovereignty by exercising universal jurisdiction over acts committed on Congolese territory, that it violated the functional immunity of Congo’s Minister of the Interior by opening criminal investigations against him, and that it impinged upon the personal immunity of Congo’s Head of State by summoning him for interrogation as a witness. This case not only requests a decision on the admissibility of universal jurisdiction in absentia. It also necessitates further elaboration of the concepts of private and official acts which the ICJ employed in the third situation of the obiter dictum. Interestingly, the Republic of Congo does not claim personal immunity for its Minister of the Interior, but relies on the functional immunity attaching to his official acts. However, the case has not been further pursued by the parties since 2004.
33 In 2004, the Special Court for Sierra Leone (Mixed Criminal Tribunals [Sierra Leone, East Timor, Kosovo, Cambodia]) decided that the arrest warrant against Charles Taylor, which had been issued when he was still the Liberian Head of State, had not infringed his immunity (Prosecutor v Taylor [Appeals Chamber Decision on Immunity from Jurisdiction] [31 May 2004] SCSL-2003-01-I). The Special Court is based on a treaty between Sierra Leone and the United Nations and lacks Chapter VII powers, hence Liberia cannot be said to have waived Taylor’s immunity. Nevertheless, the Special Court held that it was to be considered one of those ‘certain international criminal courts’ referred to in the obiter dicta. Though much of the reasoning of the Special Court remains unclear, it seems to base its finding partly on the Security Council’s support, partly on its international character, which provides a safeguard against unilateral, horizontal enforcement, and partly on the existence of international criminal responsibility for State officials. Even though the decision might be subject to criticism, it has undoubtedly set an important precedent with regard to the limits of personal immunities.
34 In a 2005 resolution of the Institut de droit international, universal jurisdiction is described as an additional ground of jurisdiction based primarily on customary international law. Apart from acts of investigation and requests for extradition, the exercise of universal jurisdiction requires the presence of the alleged offender. Before commencing a trial, the forum State needs to ask States with jurisdiction under the territoriality or active personality principles but immunities are not addressed.
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- A Orakhelashvili ‘Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium)’ (2002) 96 AJIL 677–84.
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- Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Judgment)  ICJ Rep 3.
- Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Order)  ICJ Rep 182.
- Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Application Instituting Proceedings) .
- Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Request for the Indication of a Provisional Measure) .
- Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Memorial of 15 May 2001).
- Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 31.
- Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 85.
- Geneva Convention relative to the Protection of Civilian Persons in Time of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 287.
- Geneva Convention relative to the Treatment of Prisoners of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 135.
- Institut de Droit International ‘Immunities from Jurisdiction and Execution of Heads of State and of Government in International Law’ (2001) 69 AnnIDI 742.
- Institut de Droit International ‘Universal Criminal Jurisdiction with Respect to the Crime of Genocide, Crimes against Humanity and War Crimes’ (2005) 71 AnnIDI 296.
- Loi du 16 juin 1993 relative à la répression des infractions graves aux Conventions de Genève du 12 août 1949 et aux Protocoles I et II du 8 juin 1977 (done 16 June 1993) (5 August 1993) Moniteur belge 17751, as amended by Loi du 22 fevrier 1999 relative à la répression des violations graves du droit international humanitaire (done 22 February 1999) (23 March 1999) Moniteur belge 9286, and amended by Loi du 23 avril 2003 modifiant la loi du 16 juin 1993 relative à la répression des violations graves du droit international humanitaire et l’article 144 du Code judiciaire (done 23 April 2003) (7 May 2003) Moniteur belge 24846.
- Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3.
- Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 609.
- Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90 (Rome Statute).
- UN ILC ‘Draft Articles on Jurisdictional Immunities of States and their Property’ (1991) GAOR 46th Session Supp 10, 11.