Case Concerning the Arrest Warrant of 11 April 2000 Conclusions Overall, this case must be seen as one looking definitively at the question of sovereign immunity and how it applies to officials holding the portfolio of minister of foreign affairs. Since a functional analysis was employed, the impact of any state activity must be reviewed to determine whether inter-state relations and diplomacy are impaired. This might invite questions on whether a government official performs international functions representing the state. There is potential that legal certainty may be undermined and a slippery slope be formed in the face of atrocious international crimes and the need for individual accountability. Although, this case was seen in its wider context of international criminal law and human rights by many of the Judges of the Court, the implications of granting immunity based on one's position negate the emergence of new rules of international law departing from such immunity for international crimes of a heinous nature. The Opinion of Judges Higgins, Kooijmans and Buergenthal suggests that universal jurisdiction is nearing the status of customary law in light of the international consensus that perpetrators of international crimes should not have impunity. However, its application may still be fragmented in light of the various instances that it may be exercised. It is only for states to respond to the inconsistencies in treaties and national legislation in order to meet the requirements of customary international law. Positive steps by national legal systems such as mandating universal jurisdiction in their legislation might be a necessary step to establish opinio juris. Current developments may not assist in resolving the questions. Judge Guillaume noted that the principle of complementarity, enshrined in the Statute of the International Criminal Court, might come into conflict with universal jurisdiction since states may opt to prosecute an international crime committed in another country rather than under the auspices of the ICC prosecutor. An ICC proceeding would be based on the territoriality principle and the active personality principle, since the crime must occur in a state party or the person prosecuted must be a national of a party state. Whether deference to national courts that fail to apply universal jurisdiction may follow, it may defeat one of the fundamental purposes of the Court, which is to end the impunity of all perpetrators of international crimes. Conversely, the divergence between upholding procedural immunity amongst national courts and its exclusion under the ICC will also challenge the notion of complementarity. These are questions that could not be resolved by the Court, although a more definitive statement of the law is needed.
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