Case Concerning the Arrest Warrant of 11 April 2000 Immunity of Foreign Ministers As a result of the amendment of the pleadings, this immunity question was the only issue before the Court. The inquiry into this question began by reviewing the relevant treaties. No specific authorities were provided by the parties that spoke to the immunity accorded to foreign ministers. As a result, customary international law was referred to. The majority of the Court applied a functional analysis of what a foreign minister does in international relations, concluding that its functions require frequent international travel thus necessitating a freedom to do so. In addition, the position of a minister was likened to a head of state or a head of government since it acts as a representative of a state. Under this reasoning, the minister enjoys full immunity from criminal jurisdiction and inviolability during his or her time in office. Some mention of the ILC Draft Articles on State Responsibility was made by Judges Higgins, Buergenthal and Kooijmans, in their Joint Separate Opinion, where they noted the absence of any savings clause preserving the privileges and immunities of a Minister for Foreign Affairs. Immunity is enjoyed only by heads of states under Article 3(2) of the ILC Draft Articles. A similar omission exists in the work of the Institut de droit international in 2001, granting immunity only for heads of state. However, the judges agreed with the majority due to a concern of avoiding the disruption of international relations by not recognizing the immunity of current foreign ministers. The majority of the Court rejected any distinction between acts performed in an official capacity and those performed in a private capacity, or acts performed before or during the assumption of the position of foreign minister. The effect would be the same in that the minister would still be prevented from exercising the functions of his or her office, which would seriously undermine the operation of international diplomacy and state relations. Official acts are referred to in the literature as the line of distinction between being shielded from prosecution by immunity and being imputable.3 In addition, the official capacity distinction is expressed in the legal instruments establishing the various international criminal tribunals. Failing to uphold this distinction for the purpose of determining what acts are protected by immunity, did not reflect state practice, according to Judges Higgins, Kooijmans and Buergenthal, manifest in cases involving Eichmann,4 Pinochet,5 and the judgment of the Court of Appeal of Amsterdam in the Bouterse case.6 Moreover, it fails to recognize the exclusion of official acts as a basis for immunity under the Nuremberg Charter7 and the Statutes of the ICTY and the ICTR,8 as well as the future International Criminal Court.9 The question of whether there is an operative distinction between official acts, thus excusing jurisdiction, and acts of a private citizen did not receive much discussion in the majority's decision. The DRC argued that immunity for ministers encompassed all acts, including ones committed before one took office and despite any distinction between an official and private act. Belgium argued that if a foreign minister were afforded immunity, it would operate as a bar against individual responsibility for war crimes or crimes against humanity. It was claimed that acts incurring international criminal liability could not fall under acts under an official capacity normally given immunity under international law. Support for this proposition was party based on the decisions in the UK and French courts in Pinochet (R. v. Bow Street) and Gaddafi10 respectively. Although the majority of the Court considered these decisions, it held that they did not fully demonstrate state practice under customary law attesting that there are exceptions to immunity from criminal jurisdiction for incumbent ministers for foreign affairs. In addition, the extension of extra-territorial and, in some cases, universal jurisdiction over international crimes exists in many treaties, and does not affect the customary international law immunity of ministers for foreign affairs. However, the Court noted that there is a temporal limit to a foreign minister's immunity. Jurisdictional immunity would bar prosecution during the time that the person held the foreign minister post but criminal responsibility would subsist, making an alleged offender liable in four particular circumstances; prosecution in one's own country; under a state's waiver of immunity; after the conclusion of one's tenure as Minister, which would entail prosecution for events either before or after holding the ministerial post as well as acts of a private nature while minister; or where prosecution is being conducted by international criminal courts. This would be consistent with the UK House of Lords in the second Pinochet decision, where under UK law, former heads of states are not protected by immunity in respect of the crime of torture.11 These four scenarios were criticized as having no practical effect in the Opinion of Judges Higgins, Kooijmans and Buergenthal. Their opinion notes that it is less than likely that a former minister will be tried in his or her own country or that the immunity will be waived by his or her own state. Judge van den Wyngaert in his Dissenting Opinion goes further noting that the Congo's failure to exercise its jurisdiction, even at the urging of Belgium who had sent information to the DRC, was a violation of the Geneva Conventions and other UN resolutions. As a result, the only possible and credible alternative was to use foreign courts after the person ceases to hold the office of foreign minister.12 The temporal factor on the immunity question suggests that immunity is more a matter of procedure than of substance. The majority ruled that all government officials cannot operate with impunity and are subject to criminal liability following the conclusion of their public service. The procedural immunity, distinct from substantive immunity, even in the case of serious international crimes, subsists for as long as the suspected official is in office. This is a reflection of the 'balancing of interests' according to Judges Higgins, Kooijmans and Buergenthal, between attributing responsibility for heinous crimes and the need for maintaining immunities for high-level officials in order that inter-state relations function properly. National court jurisprudence indicates that procedural immunity still exists.13 Achieving this balance might avoid malicious actions by enemy states against other leaders, which can impede the peaceful outcome of inter-state disputes. However, this type of balancing is skewed according to Judge Van den Wyngaert, who ruled that the international crimes, such as the ones raised in this dispute, are of a jus cogens nature, while immunities of foreign ministers do not have this status. This balancing may have tipped due to the gross violations of international criminal law such as when the ICTY indicted Slobodan Milo_evic while he still was a sitting head of state. 3 See Bianchi, 'Denying State Immunity to Violations of Human Rights', (1994) 46 Austrian Journal of Public and International Law 229. 4 Attorney-General v. Adolf Eichmann, Supreme Court of Israel, 29 May 1962, 36 ILR 5. 5 R. v. Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte, 25 Nov. 1998, All. ER (1994) 4 at 945. 6 Gerechtshof Amsterdam, 20 November 2000, para. 4.2. 7 Art. 7. 8 Statute of the International Criminal Tribunal for Yugoslavia, (1993) 14 Hum Rts. LJ 211, Art. 7 Statute of the International Criminal Tribunal for Rwanda, (1994) 33 ILM 1598, Art. 6 9 Statute of the International Criminal Court, Art. 27(1). 10 Arret no. 1414, 13 Mar. 2001, Cass Crim. 1. 11 R. v. Bartle and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet, 24 March 1999, (1999) 38 ILM 581. 12 See separate opinion of Judges Higgins, Kooijmans and Buergenthal at p. 19. 13 See the French Cour de Cassation overruling of a lower court decision concerning Colonel Ghadaffi of Libya, an existing head of state, where his immunity for complicity in acts of terrorism of a French civilian plane over the desert was rejected.
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