Immunity v. Universal Jurisdiction: The Yerodia Ndombasi Decision of the International Court of Justice

• Author: Alberto Luis Zuppi
• Position: LL. B. University of Buenos Aires (1975)
• Pages: 309-339

Page 309

LL. B. University of Buenos Aires (1975), Dr. iur. Universitt des Saarlandes (1989), Robert and Pamela Martin Professor of Law, LSU, Paul M. Hebert Law Center (2003).

On 14 February 2002 the International Court of Justice (I.C.J.) delivered its decision in the dispute between the Democratic Republic of the Congo and the Kingdom of Belgium regarding a Minister of Foreign Affairs' immunity from arrest.¹ The controversy was originated by issuing and internationally circulating a Belgian arrest writ against the Congolese Minister for Foreign Affairs, Mr. Yerodia Ndombasi. He was accused of broadcasting speeches inciting racial hatred against Tutsi residents in the Congo. Those speeches resulted in fierce manhunts which led to widespread slaughtering of Tutsis. Although such behavior appeared to be a purely internal affair, it was considered to be a crime under Belgian domestic law in force at that time. ²

The Congolese claim before the international Tribunal essentially maintained that the Belgian warrant was issued in violation of a recognized international law ruling granting absolute immunity to a Minister for Foreign Affairs as accepted by The Hague Tribunal. Most interestingly, the I.C.J. decision touched tangentially upon the purest form of universal jurisdiction but resolved against its recognition as a Page 310 current international customary rule. Both conclusions have worried many human rights organizations³ and the concerns were further aggravated by the recent decision of the Brussels Chambre d' Appel. Specifically, the Brussels Court declared that Belgian jurisdiction may only be recognized regarding crimes perpetrated outside Belgium when the accused is in Belgian territory. On April 16, 2002 the Brussel's Chamber of Appeals annulled the prosecutions involved in the Yerodia case. The Chamber decision sustained that the related Belgian law was applicable only when the suspect physically were in Belgian territory. This decision was appealed by the civil parties into the Cour de Cassation,⁴ which on November 20, 2002 abrogated the former judgment, returning the case to the Brussel's Chamber of Appeals who will finally decide with a new judges composition.

This paper evaluates the I.C.J.'s conclusions, confronting them with current international law and analyzing the impact produced. In order to do this, I will first recall the underlying principles for the Belgian arrest warrant and assess the Congolese allegations on official immunity. Thereafter, I will examine the Court's opinion regarding immunity and its consideration of universal jurisdiction, comparing its conclusions with international case law and current literature. Although the decision was undoubtedly a setback for the more progressive position on this topic, and reversed some questions understood as already decided by the Pinochet case,⁵ the I.C.J. ruling needs to be understood within its true framework without magnifying its impact. While reading this paper, the reader should keep the following ideas in mind. In domestic law, we establish the rules of spatial application of criminal law by verifying its geographic implementation. A State usually exercises its criminal competence over crimes committed within its frontiers or, by applying the so called "personality principle," recognizes its jurisdiction because either the perpetrator or the victim is a citizen of that State (active or passive personality principle). A State may also apply its law in the case of a crime committed in another country, when the crime affects its vital interest (protective principle). Finally, every State has jurisdiction in the cases of some heinous crimes, wherever the crime was committed, Page 311 or whatever the nationality of its perpetrator or its victim. This principle of universal jurisdiction does not require any bond or tie between its perpetrator and the forum State.⁶

Secondly, when in this paper reference is made to immunity, I am speaking of jurisdictional immunity, or the impossibility of submitting a foreign sovereign to the courts of another State without the former State's acquiescence. Traditionally, the principle of immunity was established in The Schooner Exchange v. McFaddon case.⁷ There, Justice Marshall declared the absolute immunity of a foreign sovereign, installing a precedent in case law legal tradition which remained operative until the second half of the past century. The sovereign was immune and untouchable: par in parem non habet imperium. More than a century later, by the so called "Tate Letter," the U.S. Government accepted the "restrictive immunity" theory differentiating between acts iure imperii and iure gestionis, and recognized immunity only for the former.⁸

I The Belgian Arrest Warrant

On 11 April 2000 Judge Damien Vandermeersch issued international arrest warrant number 40/95/BR30.9937/99,⁹ accussing Yerodia Abdoulaye Ndombasi of crimes against the Belgian Law of 1993. The warrant was issued in a case which also investigated former Congolese President Laurent-Desir Kabila, former Minister of Information Didier Mumengi and former Communication Counselor Dominique Sakombi. The case was initially filed by fourteen civilians, five of them Belgian citizens but all with residence in Belgium. Eight of them additionally initiated a civil claim for damages because of their Tutsi ethnic identity. The case motivated the Kings Procurator to request a judicial investigation in accordance with Belgian criminal procedure. Such antecedents oblige us to disregard the Congolese comments that the case was purely the initiative of a Belgian judge.

It can be ascertained that Laurent-Desir Kabila led a coalition of Rwanda, Uganda and Burundi troops to overthrow president Mobutu in 1997. In the aftermath of these July 1998 events, Kabila ordered withdrawal of the coalition troops from the Congolese territory. His Page 312 order, however, was disregarded and a part of the Congolese army itself revolted in alliance with the coalition troops. In the conflict that followed, President Kabila and Yerodia Ndombasi made incendiary speeches against the Tutsis with the purpose of impelling the mob to impede the rebels occupying strategic places. The arrest warrant specifically recalls that between August 4th and 27th, 1998, Yerodia Abdoulaye Ndombasi, who was President Kabila's Private Secretary and Head of Cabinet, had broadcasted speeches inciting racial hatred, resulting in the Tutsi massacres.

The warrant asserted that Yerodia Ndombasi was fully aware of the consequences of his speeches and rather than discourage the killings, he willfully sought to provoke them through dragnet operations, arbitrary arrests and trials. The warrant further asserted that he neglectfully omitted any action to prevent these results. Yerodia Ndombasi was charged with being the perpetrator or co- perpetrator of:

Crimes under international law constituting grave breaches, causing harm by act or omission to persons and property protected by the Conventions signed at Geneva on 12 August 1949 and by Additional Protocols I and II to those Conventions (Article 1, paragraph 3, of the Law of 16 June 1993, as amended by the 10 February 1999 Law concerning the punishment of serious violations of international humanitarian law);

Crimes against humanity (Article 1, paragraph 2, of 16 June 1993 Law, as amended by the Law of 10 February 1999 concerning the punishment of serious violations of international humanitarian law).¹⁰

II The Belgian Law

The Belgian law justifying the arrest warrant was sanctioned on 16 June 1993. Originally titled as relating to the repression of grave breaches of the Geneva Conventions of 12 August 1949 and their Protocols I and II of 8 June 1977,¹¹ the law was issued in pursuit of the Conventions' common duty¹² obliging each State to:

Undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering Page 313 to be committed, any of the grave breaches of the present Convention defined in the following Article.¹³

As a consequence of debate provoked by Pinochet in Britain and the introduction of some claims in Belgium against the former Chilean head of State, the Law was modified on 10 February 1999. Its title was also changed to the more general "Law related to the punishment of grave breaches of international humanitarian law."¹⁴ The new text included, in addition to the offences already set forth in the former text by the Geneva Conventions, those crimes which constitute genocide under the U.N. Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948,¹⁵ and the description of crimes against humanity given in the Rome Statute of the International Criminal Court.¹⁶

Additionally, Article 5 provides that "[i]mmunity attaching to the official status of a person, shall not prevent the application of the present Law."¹⁷

This paragraph propelled the warrant against Yerodia Ndombasi, who was an incumbent and prominent member of the Congolese government both at the time his racist speeches were broadcast and also at the time the warrant was issued. Yerodia Ndomasi held a ministerial position until a few months after the claim before the I.C.J. was submitted.

Finally, we need to recall that an 18 July 2001 Law¹⁸ modified article 12bis of the 17 April 1878 Law that related to the Code of Criminal Procedure, Preliminary Part. The 18 July 2001 law recognizes Belgian jurisdiction in all cases where an international treaty extends the States Party's jurisdiction. Judge Vandermeersch held that such a general reference...