|I.||Substantive International Law - First Part|
|4.||SUBJECTS OF INTERNATIONAL LAW|
|4.2.1.||Jurisdiction of States|
Arrest Warrant of 11 April 2000
(Democratic Republic of the Congo v. Belgium)
Judgment of 14 February 2002
[p. 51-52 D. O. Oda] 13. It is clear that a State cannot arrest an individual outside its territory and forcibly bring him before its courts for trial. In this connection, it is necessary to examine the effect of an arrest warrant issued by a State authority against an individual who is subject to that States jurisdiction to prescribe law.
The arrest warrant is an official document issued by the States judiciary empowering the police authorities to take forcible action to place the individual under arrest. Without more, however, the warrant is not directly binding on foreign authorities, who are not part of the law enforcement mechanism of the issuing State. The individual may be arrested abroad (that is, outside the issuing State) only by the authorities of the State where he or she is present, since jurisdiction over that territory lies exclusively with that State. Those authorities will arrest the individual being sought by the issuing State only if the requested State is committed to do so pursuant to international arrangements with the issuing State. Interpol is merely an organization which transmits the arrest request from one State to another; it has no enforcement powers of its own.
It bears stressing that the issuance of an arrest warrant by one State and the international circulation of the warrant through Interpol have no legal impact unless the arrest request is validated by the receiving State. The Congo appears to have failed to grasp that the mere issuance and international circulation of an arrest warrant have little significance. There is even some doubt whether the Court itself properly understood this, particularly as regards a warrants legal effect. The crucial point in this regard is not the issuance or international circulation of an arrest warrant but the response of the State receiving it.
[p. 60 S.O. Koroma] 5. Although immunity is predicated upon jurisdiction - whether national or international - it must be emphasized that the concepts are not the same. Jurisdiction relates to the power of a State to affect the rights of a person or persons by legislative, executive or judicial means, whereas immunity represents the independence and the exemption from the jurisdiction or competence of the courts and tribunals of a foreign State and is an essential characteristic of a State. Accordingly, jurisdiction and immunity must be in conformity with international law. It is not, however, that immunity represents freedom from legal liability as such, but rather that it represents exemption from legal process. The Court was therefore justified that in this case, in its legal enquiry, it took as its point of departure one of the issues directly relevant to the case for determination, namely whether international law permits an exemption from immunity of an incumbent Foreign Minister and whether the arrest warrant issued against the Foreign Minister violates international law, and came to the conclusion that international law does not permit such exemption from immunity.
[pp. 61-62 S.O. Koroma] 8. ... in my view, the issue and circulation of the arrest warrant show how seriously Belgium views its international obligation to combat international crimes. Belgium is entitled to invoke its criminal jurisdiction against anyone, save a Foreign Minister in office. It is unfortunate that the wrong case would appear to have been chosen in attempting to carry out what Belgium considers its international obligation.
9. Against this background, the Judgment cannot be seen either as a rejection of the principle of universal jurisdiction, the scope of which has continued to evolve, or as an invalidation of that principle. In my considered opinion, today, together with piracy, universal jurisdiction is available for certain crimes, such as war crimes and crimes against humanity, including the slave trade and genocide. The Court did not rule on universal jurisdiction, because it was not indispensable to do so to reach its conclusion, nor was such submission before it. This, to some extent, provides the explanation for the position taken by the Court.
[p. 64 J.S.O. Higgins, Kooijmans, Buergenthal] 3. ... Immunity is the common shorthand phrase for immunity from jurisdiction. If there is no jurisdiction en principe, then the question of an immunity from a jurisdiction which would otherwise exist simply does not arise. The Court, in passing over the question of jurisdiction, has given the impression that immunity is a free-standing topic of international law. It is not. Immunity and jurisdiction are inextricably linked. Whether there is immunity in any given instance will depend not only upon the status of Mr. Yerodia but also upon what type of jurisdiction, and on what basis, the Belgian authorities were seeking to assert it.
4. While the notion of immunity depends, conceptually, upon a pre-existing jurisdiction, there is a distinct corpus of law that applies to each. What can be cited to support an argument about the one is not always relevant to an understanding of the other. In bypassing the issue of jurisdiction the Court has encouraged a regrettable current tendency (which the oral and written pleadings in this case have not wholly avoided) to conflate the two issues.
5. Only if it is fully appreciated that there are two distinct norms of international law in play (albeit that the one - immunity - can arise only if the other - jurisdiction - exists) can the larger picture be seen. One of the challenges of present-day international law is to provide for stability of international relations and effective international intercourse while at the same time guaranteeing respect for human rights. The difficult task that international law today faces is to provide that stability in international relations by a means other than the impunity of those responsible for major human rights violations. This challenge is reflected in the present dispute and the Court should surely be engaged in this task, even as it fulfils its function of resolving a dispute that has arisen before it. But through choosing to look at half the story - immunity - it is not in a position to do so.
[p. 84 J.S.O. Higgins, Kooijmans, Buergenthal] 69. We do not feel it can be said that, given these explanations by Belgium, there was no exercise of jurisdiction as such that could attract immunity or infringe the Congos sovereignty. If a State issues an arrest warrant against the national of another State, that other State is entitled to treat it as such - certainly unless the issuing State draws to the attention of the national State the clauses and provisions said to vacate the warrant of all efficacy. Belgium has conceded that the purpose of the international circulation of the warrant was to establish a legal basis for the arrest of Mr. Yerodia ... abroad and his subsequent extradition to Belgium. An international arrest warrant, even though a Red Notice has not yet been linked, is analogous to the locking-on of radar to an aircraft: it is already a statement of willingness and ability to act and as such may be perceived as a threat so to do at a moment of Belgiums choosing. Even if the action of a third State is required, the ground has been prepared.
[p. 91 S.O. Rezek] 2. No immunity is absolute, in any legal order. An immunity must necessarily exist within a particular context, and no subject of law can enjoy immunity in the abstract. Thus, an immunity might be available before one national court but not before another. Similarly, an immunity might be effective in respect of domestic courts but not of an international one. Within a given legal order, an immunity might be relied upon in relation to criminal proceedings but not to civil proceedings, or vis-à-vis an ordinary court but not a special tribunal.
3. The question of jurisdiction thus inevitably precedes that of immunity. Moreover, the two issues were debated at length by the Parties both in their written pleadings and in oral argument. The fact that the Congo confined itself in its final susbmissions to asking the Court to render a decision based on its former Ministers immunity vis-à-vis the Belgian domestic court does not justify the Courts disregard of an inescapable premise underlying consideration of the issue of immunity. Here, the point is not to follow the order in which the issues were submitted to the Court for consideration but rather to respect the order which a strictly logical approach requires. Otherwise, we are impelled towards a situation where the Court is deciding whether or not there would be immunity in the event that the Belgian courts were to have jurisdiction...
[pp. 168-169 D.O. Van den Wyngaert] 49. ... A distinction must be made between prescriptive jurisdiction and enforcement jurisdiction. The above-mentioned dictum concerns prescriptive jurisdiction: it is about what a State may do on its own territory when investigating and prosecuting crimes committed abroad, not about what a State may do on the territory of other States when prosecuting such crimes. Obviously, a State has no enforcement jurisdiction outside its territory: a State may, failing permission to the contrary, not exercise its power on the territory of another State. This is the first and foremost restriction imposed by international law upon a State1. In other words, the permissive rule only applies to prescriptive jurisdiction, not to enforcement jurisdiction: failing a prohibition, State A may, on its own territory, prosecute offences committed in State B (permissive rule); failing a permission, State A may not act on the territory of State B.
50. Does the arrest warrant of 11 April 2000 come under the first species of jurisdiction, under the second, or under both? In other words: has Belgium, by asserting jurisdiction in the form of the issuing and circulation of an arrest warrant on charges of war crimes and crimes against humanity against a foreign national for crimes committed abroad, engaged in prescriptive jurisdiction, in enforcement jurisdiction, or in both? Given the fact that the warrant has never been enforced, the dispute is in the first place about prescriptive jurisdiction. However, the title of the warrant (international arrest warrant) gave rise to questions about enforcement jurisdiction also.
I believe that Belgium, by issuing and circulating the warrant, violated neither the rules on prescriptive jurisdiction nor the rules on enforcement jurisdiction. My views on enforcement jurisdiction will be part of my reasoning in Section IV, where I will consider whether there was an internationally wrongful act in the present case2. In the present Section, I will deal with prescriptive jurisdiction. I will measure the statutory provision that is at the centre of the dispute, Article 7 of the 1993/1999 Belgian Act, against the yardstick of the Lotus test on prescriptive jurisdiction.
51. It follows from the Lotus case that a State has the right to provide extraterritorial jurisdiction on its territory unless there is a prohibition under international law. I believe that there is no prohibition under international law to enact legislation allowing it to investigate and prosecute war crimes and crimes against humanity committed abroad. It has often been argued, not without reason, that the Lotus test is too liberal and that, given the growing complexity of contemporary international intercourse, a more restrictive approach should be adopted today3. In the Nuclear Weapons case, there were two groups of States each giving a different interpretation of Lotus on this point4 and President Bedjaoui, in his declaration, expressed hesitations about Lotus5. Even under the more restrictive view, Belgian legislation stands. There is ample evidence in support of the proposition that international law clearly permits States to provide extraterritorial jurisdiction for such crimes.
[p. 182 D.O. Van den Wyngaert] 80. The warrant could not be and was not executed in the country where it was issued (Belgium) or in the countries to which it was circulated. The warrant was not executed in Belgium when Mr. Yerodia visited Belgium officially in June 2000. Belgium did not lodge an extradition request to third countries or a request for the provisional arrest for the purposes of extradition. The warrant was not an international arrest warrant, despite the language used by the Belgian judge. It could and did not have this effect, neither in Belgium nor in third countries. The allegedly wrongful act was a purely domestic act, with no actual extraterritorial effect.
|1||Ibid., p. 18.|
|2||See infra, paras. 68 et seq.|
|3||Cf. American Law Institute, Restatement (Third) Foreign Relations Law of the United States, (1987), pp. 235-236; I. Cameron, The Protective Principle of International Criminal Jurisdiction, Aldershot, Dartmouth, 1994, p. 319; F. A. Mann, The Doctrine of International Jurisdiction Revisited After Twenty Years, Recueil des Cours de lAcadémie de droit international Vol. 111, 1964, I, p. 35; R. Higgins, Problems and Process. International Law and How We Use It, Oxford, Clarendon Press, 1994, p. 77. See also Council of Europe, Extraterritorial jurisdiction in criminal matters, Strasbourg, 1990, pp. 20 et seq.|
|4||Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, pp. 238-239, para. 21..|
|5||I.C.J. Reports 1996, p. 270, para. 12.|