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World Court Digest

I. Substantive International Law - First Part
2. SOURCES OF INTERNATIONAL LAW
2.2. Customary International Law
2.2.1. Formation of Customary International Law

¤ Arrest Warrant of 11 April 2000
(Democratic Republic of the Congo v. Belgium)
Judgment of 14 February 2002

[p. 21-22] 53. 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 must therefore first consider the nature of the functions exercised by a Minister for Foreign Affairs. He or she is in charge of his or her Government’s diplomatic activities and generally acts as its representative in international negotiations and intergovernmental meetings. Ambassadors and other diplomatic agents carry out their duties under his or her authority. His or her acts may bind the State represented, and there is a presumption that a Minister for Foreign Affairs, simply by virtue of that office, has full powers to act on behalf of the State (see, e.g., Art. 7, para. 2 (a), of the 1969 Vienna Convention on the Law of Treaties). In the performance of these functions, he or she is frequently required to travel internationally, and thus must be in a position freely to do so whenever the need should arise. He or she must also be in constant communication with the Government, and with its diplomatic missions around the world, and be capable at any time of communicating with representatives of other States. The Court further observes that a Minister for Foreign Affairs, responsible for the conduct of his or her State’s relations with all other States, occupies a position such that, like the Head of State or the Head of Government, he or she is recognized under international law as representative of the State solely by virtue of his or her office. He or she does not have to present letters of credence: to the contrary, it is generally the Minister who determines the authority to be conferred upon diplomatic agents and countersigns their letters of credence. Finally, it is to the Minister for Foreign Affairs that chargés d’affaires are accredited.

54. The Court accordingly concludes that the functions of a Minister for Foreign Affairs are such that, throughout the duration of his or her office, he or she when abroad enjoys full immunity from criminal jurisdiction and inviolability. That immunity and that 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.

[pp. 144-145 D.O. Van den Wyngaert] 13. In the present case, there is no settled practice (usus) about the postulated “full” immunity of Foreign Ministers to which the International Court of Justice refers in paragraph 54 of its present Judgment. There may be limited State practice about immunities for current1 or former Heads of State2 in national courts, but there is no such practice about Foreign Ministers. On the contrary, the practice rather seems to be that there are hardly any examples of Foreign Ministers being granted immunity in foreign jurisdictions3. Why this is so is a matter of speculation. The question, however, is what to infer from this “negative practice”. Is this the expression of an opinio juris to the effect that international law prohibits criminal proceedings or, concomitantly, that Belgium is under an international obligation to refrain from instituting such proceedings against an incumbent Foreign Minister?
A “negative practice” of States, consisting in their abstaining from instituting criminal proceedings, cannot, in itself, be seen as evidence of an opinio juris. Abstinence may be explained by many other reasons, including courtesy, political considerations, practical concerns and lack of extraterritorial criminal jurisdiction4. Only if this abstention was based on a conscious decision of the States in question can this practice generate customary international law.

[pp. 153-156 D.O. Van den Wyngaert] 27. ... In legal doctrine, there is a plethora of recent scholarly writings on the subject5. Major scholarly organizations, including the International Law Association6 and the Institut de droit international have adopted resolutions7 and newly established think tanks, such as the drafters of the “Princeton principles”8 and of the “Cairo principles”9 have made statements on the issue. Advocacy organizations, such as Amnesty International10, Avocats sans Frontières11, Human Rights Watch, The International Federation of Human Rights Leagues (FIDH) and the International Commission of Jurists12, have taken clear positions on the subject of international accountability13. This may be seen as the opinion of civil society, an opinion that cannot be completely discounted in formation of customary international law today. In several cases, civil society organizations have set in motion a process that ripened into international conventions14. Well-known examples are the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity15, which can be traced back to efforts of the International Association of Penal law, the 1984 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, probably triggered by Amnesty International’s Campaign against Torture, the 1997 Treaty banning Landmines16, to which the International Campaign to Ban Landmines gave a considerable impetus17 and the 1998 Statute for the International Criminal Court, which was promoted by a coalition of non-governmental organizations.

28. The Court fails to acknowledge this development, and does not discuss the relevant sources. Instead, it adopts a 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 (Judgment, para. 58). By adopting this approach, the Court implicitly establishes a hierarchy between the rules on immunity (protecting incumbent former Ministers) and the rules on international accountability (calling for the investigation of charges against incumbent Foreign Ministers charged with war crimes and crimes against humanity).

1Cour de Cassation (Fr.), 13 Mar. 2001 (Qaddafi).
2R. v. Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte, 25 Nov. 1998, [1998] 4 All ER 897.
3Only one case has been brought to the attention of the Court: Chong Boon Kim v. Kim Yong Shik and David Kim, Circuit Court (First Circuit, State of Hawaii), 9 Sep. 1963, 58 AJIL 1964, pp. 186-187. This case was about an incumbent Foreign Minister against whom process was served while he was on an official visit in the United States (see para. 1 of the "Suggestion of Interest Submitted on behalf of the United States", ibid.). Another case where immunity was recognised, not of a Minister but of a prince, was in the case of Kilroy v. Windsor (Prince Charles, Prince of Wales), US District Court for the N.D. of Ohio, 7 Dec. 1978, International Law Reports, Vol. 81, 1990, pp. 605-607. In that case, the judge observes: "The Attorney-General ... has determined that the Prince of Wales is immune from suit in this matter and has filed a 'suggestion of immunity' with the Court ... [T]he doctrine, being based on foreign policy considerations and the Executive's desire to maintain amiable relations with foreign States, applies with even more force to live persons representing a foreign nation on an official visit." (Emphasis added.)
4In some States, for example, the United States, victims of extraterritorial human rights abuses can bring civil actions before the Courts. See, for example, the Karadzic case (Kadic v. Karadzic, 70 F. 3d 232 (2d Cir. 1995)). There are many examples of civil suits against incumbent or former Heads of State, which often arose from criminal offences. Prominent examples are the Aristeguieta case (Jimenez v. Aristeguieta, ILR 1962, p. 353), the Aristide case (Lafontant v. Aristide, 844 F. Supp. 128 (EDNY 1994), noted in 88 AJIL 1994, pp. 528-532), the Marcos cases (Estate of Silme G. Domingo v. Ferdinand Marcos, No. C82-1055V, AJIL 1983, p. 305: Republic of the Philippines v. Marcos and Others (1986), ILR 81, p. 581 and Republic of the Philippines v. Marcos and others, 1987, 1988, ILR 81, pp. 609 and 642) and the Duvalier case (Jean-Juste v. Duvalier, No. 86-0459 Civ (US District Court, SD Fla.), 82 AJIL 1988, p. 596), all mentioned and discussed by Watts (A. Watts, "The Legal Position in International Law of Heads of States, Heads of Governments and Foreign Ministers", Recueil des Cours de l'Acad�mie de droit international, 1994, III, pp. 54 et seq.). See also the American 1996 Antiterrorism and Effective Death Penalty Act which amended the Foreign Sovereign Immunities Act (FSIA), including a new exception to State immunity in case of torture for civil claims. See J. F. Murphy, "Civil liability for the Commission of International Crimes as an Alternative to Criminal Prosecution", 12 Harvard Human Rights Journal, 1999, pp. 1-56.
5Footnote omitted
6International Law Association (Committee on International Human Rights Law and Practice), Final Report on the Exercise of Universal Jurisdiction in respect of Gross Human Rights Offences, 2000.
7See also the Institut de droit international's Resolution of Santiago de Compostela, 13 Sep. 1989, commented by G. Sperduti, "Protection of human rights and the principle of non-intervention in the domestic concerns of States. Rapport provisoire", Yearbook of the Institute of International Law, Session of Santiago de Compostela, 1989, Vol. 63, Part I, pp. 309-351.
8Princeton Project on Universal Jurisdiction, The Princeton Principles on Universal Jurisdiction, 23 July 2001, with a foreword by Mary Robinson, United Nations High Commissioner for Human Rights, http://www.princeton.edu/~lapa/unive_jur.pdf. See M. C. Bassiouni, "Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice", Virginia Journal of International Law, 2001, Vol. 42, pp. 1-100. Sep. 2001, AI Index IOR 53/2001.
9Africa Legal Aid (AFLA), Preliminary Draft of the Cairo Guiding Principles on Universal Jurisdiction in Respect of Gross Human Rights Offenses: An African Perspective, Cairo, 31 July 2001, http://www.afla.unimaas.nl/ en/act/univjurisd/preliminaryprinciples.htm.
10Amnesty International, Universal Jurisdiction. The Duty of States to Enact and Implement Legislation, Sep. 2001, AI Index IOR 53/2001.
11Avocats sans frontières, “Débat sur la loi relative à la répression des violations graves de droit international humanitaire”, discussion paper of 14 Oct. 2001, available on http://www.asf.be.
12K. Roth, “The Case For Universal Jurisdiction”, Foreign Affairs, Sep./Oct. 2001, responding to an article written by an ex-Minister of Foreign Affairs in the same review (Henry Kissinger, “The Pitfalls of Universal Jurisdiction”, Foreign Affairs, July/Aug. 2001).
13See the joint Press Report of Human Rights Watch, the International Federation of Human Rights Leagues and the International Commission of Jurists, “Rights Group Supports Belgium’s Universal Jurisdiction Law”, 16 Nov. 2000, available at http://www.hrw.org/press/2000/11/world-court.htm or http://www.icj.org/press/press01/english/belgium11.htm See also the efforts of the International Committee of the Red Cross in promoting the adoption of international instruments on international humanitarian law and its support of national implementation efforts (http://www.icrc.org/eng/advisory_service_ihl ; http://www.icrc.org/eng/ihl).
14M. C. Bassiouni, “Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice”, Virginia Journal of International Law, 2001, Vol. 42, p. 92.
15Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, New York, 26 Nov. 1968, ILM 1969, p. 68.
16Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-personnel Mines and on their Destruction, Oslo, 18 Sep. 1997, ILM 1997, p. 1507.
17The International Campaign to Ban Landmines (ICBL) is a coalition of non-governmental organisations, with Handicap International, Human Rights Watch, Medico International, Mines Advisory Group, Physicians for Human Rights, and Vietnam Veterans of America Foundation as founding members.