Citation. I.C.J. 2002 I.C.J. 3.
Brief Fact Summary. Belgium’s (D) international arrest warrant against the Democratic Republic of Congo’s (D.R.C.) (P) foreign minister was contended by the D.R.C. (P) on the ground that the arrest contravened international law by purporting to exercise jurisdiction over another state’s foreign minister and an order of provisional measures of protection on the ground that the warrant effectively prevented the foreign minister from leaving the D.R.C. (P) was sought by the defendant
Synopsis of Rule of Law. Where a foreign minister is suspected of humanitarian violations, such a minister enjoys full immunity from criminal jurisdiction in another state’s court.
Issue. Where a foreign minister is suspected of humanitarian violations, does such a minister enjoy full immunity from criminal jurisdiction in another state’s court?
Held. (Judge not identified in casebook excerpt) Yes. Where a foreign minister is suspected of humanitarian violations and even war crimes, such a minister enjoys full immunity from criminal jurisdiction in another state’s court. Acting as the state’s representative in international meeting and negotiations, travelling internationally and overseeing the smooth running of the state’s diplomatic activities are duties which a foreign minister performs. The foreign minister also has the power to bind the state in the course of his duties and he must be in constant communication with his state and its diplomatic missions around the world as well as with representatives of other states. Hence, because of the office he holds and not because of his person, a minister is recognized under international law as a representative of the state.
Drawing from this submission, it can therefore be established that an acting Minister of Foreign Affairs enjoys full immunity from criminal jurisdiction and inviolability so that he or she may not be hindered in the discharge of his or her duties. The safety nest provided by this immunity is regardless of whether the purported crimes were committed in the minister’s “official or private” capacity and regardless of when the offense occurred. Hence on this premise, the argument of Belgium that immunities is not applicable to foreign ministers when they are accused of committing war crimes or crimes against humanity is nullified.
However and with much emphasis, immunity from jurisdiction which a serving minister enjoys does not imply that such minister take pleasure for the crimes he or she commits of have committed. As jurisdictional immunity is procedural, so too is criminal responsibility a matter of substantive law, so that jurisdictional immunity does not operate to exempt the minister who may under certain circumstances, be held accountable for his crimes.
The minister may thus be brought before the courts in his/her own state and may lose his/her immunity once his/her state waives it. The minister also do not enjoy such immunity after he vacates office and may subsequently be charged for acts committed prior to or subsequent to the time he/she was in office as well as in respect of acts committed during the time he/she was in office in a private capacity. The International criminal courts may also try the minister where they have the jurisdiction to do so.
Discussion. The tenability of the claim of universal jurisdiction by domestic courts was not decided in this case although some of the judges in a separate opinion expressed the belief that universal jurisdiction is allowed in the cases of those offenses considered the most heinous by the international community, so that the warrant for the arrest of the plaintiffs foreign minister did not as such contravene international law.
It therefore shows that there is no common ground amongst the judges on the issue of universal jurisdiction as exercised by domestic/local courts. In any event therefore, there is always a precedent when a domestic court exercises universal jurisdiction. For instance, Israel claimed universal jurisdiction when it kidnapped the former Nazi Adolf Eichmann from Argentina in 1961 and tried him in an Israeli court and executed him.