International Court of Justice’s ruling on Belgian arrest warrant undermines international law

The ICJ is profoundly concerned by the majority decision of the International Court of Justice that a Foreign Minister remains for life immune for acts of State policy that amount to international crimes.

It is also perplexed by its artificial distinction between national courts and international tribunals, which has no basis in international law.

International humanitarian law and international human rights law have accorded national States jurisdiction over persons committing international crimes in order to combat impunity. Yesterday’s decision is one that might have been expected sixty years ago, but not in the light of present-day law.

The purpose of diplomatic immunities accorded to Heads of State and Foreign Affairs officials is to prevent them from being subjected to the national law of another State, because of the sovereign equality of States, and in order to be able to carry out their official functions. Such immunities cannot be used to shield such persons from being prosecuted for international crimes. As correctly decided by the House of Lords in the Pinochet case, official functions cannot include international crimes. As ruled by the International Military Tribunal at Nuremberg, “The authors of these acts [acts which are condemned as criminal by international law] cannot shelter themselves behind their official position in order to be freed from punishment.” This was recognized as a general principle of international law by the United Nations General Assembly in 1946.

Since then, many international treaties provide for the trial of persons suspected of international crimes by national tribunals which do not need to show any particular link with the suspect. This principle of “universal jurisdiction” is part of international customary law. In 1970, the International Court of Justice found that any State has a legal interest in the observance of fundamental values and referred to genocide and rules concerning the basic rights of the human person. The 1949 Geneva Conventions even establish the duty for each State to search for and prosecute persons alleged to have committed, or to have ordered to be committed, grave breaches of international humanitarian law, without providing any exception for public officials. The Statute of the International Criminal Court recalls that it is “the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes”.

By excluding the possibility of national courts to hear such cases, many offenders will not be brought to justice. If the relevant States do not adhere to the International Criminal Court or if a specific international tribunal is not created, impunity will be the result.

Note: For further information, please contact: Louise Doswald-Beck, +41(22) 9793815.

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