IN 2002, the Democratic Republic of Congo filed a complaint before the International Court of Justice (ICJ) regarding an arrest warrant issued against Yerodia Ndombasi,
JUDGMENT OF THE INTERNATIONAL COURT OF JUSTICE IN THE CASE OF THE ARREST WARRANT OF 11 APRIL 2000 (DEMOCRATIC REPUBLIC OF CONGO VS. BELGIUM)
SEPARATE OPINION OF JUDGE GILBERT GUILLAUME, PRESIDENT
1. I fully subscribe to the Judgment rendered by the Court. I believe it useful, however, to set out my position on one question which the Judgment has not addressed: whether the Belgian judge had jurisdiction to issue an international arrest warrant against Mr. Yerodia Ndombasi on 11 April 2000. This question was raised in the Democratic Republic of the Congo’s Application instituting proceedings. The Congo maintained that the arrest warrant violated not only Mr. Yerodia’s immunity as Minister for Foreign Affairs, but also “the principle that a State may not exercise its authority on the territory of another State.” It accordingly concluded that the universal jurisdiction which the Belgian State had conferred upon itself pursuant to article 7 of the Law of 16 June 1993, as amended on 10 February 1999, was in breach of international law and that the same was therefore true of the disputed arrest warrant.
The Congo did not elaborate on this line of argument during the oral proceedings and did not include it in its final submissions. Thus, the Court could not rule on this point in the operative part of its Judgment. It could, however, have addressed certain aspects of the question of universal jurisdiction in the reasoning for its decision (see Judgment, para. 43).
That would have been a logical approach; a court’s jurisdiction is a question which it must decide before considering the immunity of those before it. In other words, there can only be immunity from jurisdiction where there is jurisdiction. Moreover, this is an important and controversial issue, clarification of which would have been in the interest of all States, including Belgium in particular. I believe it worthwhile to provide such clarification here.
2. The Belgian Law of 16 June 1993, as amended by the Law of 10 February 1999, aims at punishing serious violations of international humanitarian law. It covers certain violations of the Geneva Conventions of 12 August 1949 and of Protocols 1 and II of 8 June 1977 additional to those Conventions. It also extends to crimes against humanity, which it defines in the terms used in the Rome Convention of 17 July 1998.
Article 7 of the Law adds that “the Belgian courts shall have jurisdiction in respect of the offences provided for in the present Law, wheresoever they may have been committed.”
3. The disputed arrest warrant accuses Mr. Yerodia of grave breaches of the Geneva Conventions and of crimes against humanity. It states that under article 7 of the Law of 16 June 1993, as amended, perpetrators of those offences “fall under the jurisdiction of the Belgian courts, regardless of their nationality or that of the victims.” It adds that “the Belgian courts have jurisdiction even if the accused (Belgian or foreign) is not found in Belgium.” It states that “in the matter of humanitarian law, the lawmaker’s intention was thus to derogate from the principle of the territorial character of criminal law, in keeping with the provisions of the four Geneva Conventions and of Protocol 1.” It notes that “the Convention of 10 December 1984 against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [is] to be viewed in the same way, recognising the legitimacy of extra-territorial jurisdiction in the area and enshrining the principle of aut dedere aut judicare.” It concludes on these bases that the Belgian courts have jurisdiction.
4. In order to assess the validity of this reasoning, the fundamental principles of international law governing States’ exercise of their criminal jurisdiction should first be reviewed. The primary aim of the criminal law is to enable punishment in each country of offences committed in the national territory. That is where evidence of the offence can most often be gathered. That is where the offence generally produces its effects. Finally, that is where the punishment imposed can most naturally serve as an example. Thus, the Permanent Court of International Justice observed as far back as 1927 that “in all systems of law the principle of the territorial character of criminal law is fundamental.”1
The question has, however, always remained open whether States other than the territorial State have concurrent jurisdiction to prosecute offenders. A wide debate on this subject began as early as the foundation in Europe of the major modern States. Some writers, like Covarruvias and Grotius, pointed out that the presence on the territory of a State of a foreign criminal peacefully enjoying the fruits of his crimes was intolerable. They therefore maintained that it should be possible to prosecute perpetrators of certain particularly serious crimes not only in the State on whose territory the crime was committed, but also in the country where they sought refuge. In their view, that country was under an obligation to arrest, followed by extradition or prosecution, in accordance with the maxim aut dedere aut judicare2.
Beginning in the eighteenth century however, this school of thought favouring universal punishment was challenged by another body of opinion, one opposed to such punishment and exemplified notably by Montesquieu, Voltaire and Jean-Jacques Rousseau3 . Their views found expression in terms of criminal law in the works of Beccaria, who stated in 1764 that “judges are not the avengers of humankind in general [. . .]. A crime is punishable only in the country where it was committed.”4
Enlightenment philosophy inspired the lawmakers of the Revolution and nineteenth-century law. Some went so far as to push the underlying logic to its conclusion, and in 1831 Martens could assert that “the law-maker’s power [extends] over all persons and property present in the State” and that “the law does not extend over other States and their subjects.”5 A century later, Max Huber echoed that assertion when he stated in 1928 in the Award in the Island of Palmus case that a State has “exclusive competence in regard to its own territory.”6
In practice, the principle of territorial sovereignty did not permit any exception in respect of coercive action, but that was not the case in regard to legislative and judicial jurisdiction. In particular, classic international law does not exclude a State’s power in some cases to exercise its judicial jurisdiction over offences committed abroad. But as the Permanent Court stated, once again in the “Lotus” case, the exercise of that jurisdiction is not without its limits7. Under the law as classically formulated, a State normally has jurisdiction over an offence committed abroad only if the offender, or at the very least the victim, has the nationality of that State or if the crime threatens its internal or external security. Ordinarily, States are without jurisdiction over crimes committed abroad as between foreigners.
Document about "Peace, Security and cooperation framework for the Democratic Republic of the Congo and the region" Done at Addis Ababa, on 24 February 2013
This is an exclusive report, in summary form, on the discussion forum organized within the framework of the MEDEF Summer School held at the École polytechnique of Palaiseau (Essonne) from 27-29...
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