When May Senior State Officials Be Tried for International Crimes? Some Comments on The Congo v. Belgium Case Antonio Cassese * Download the Complete Survey (RTF Format) Abstract 1. Introduction 2. The Court's Spelling Out of the Law on the Personal Immunities Accruing to Foreign Ministers 3. The Court's Failure to Pronounce on Belgium's Assertion of Absolute Universal Jurisdiction 4. Is Absolute Universal Jurisdiction Admissible? 5. The Court's Failure to Distinguish between Immunities Ratione Materiae (or Functional Immunities) and Immunities Ratione Personae (or Personal Immunities) 6. The Distinction between the two Classes of Immunities and the Coming into Operation of the Rule Removing Functional Immunities for International Crimes 7. The Court's Ruling on the Immunity of Former Foreign Ministers from Criminal Jurisdiction A. The Questionable Resort to the Distinction between Private and Official Acts B. The Court's Failure to Refer to the Customary Rule Lifting Functional Immunities for State Officials Accused of International Crimes 8. The Court's Balancing of the Requirements of State Sovereignty with the Demands of International Justice Abstract The recent judgment of the ICJ has indubitably shed light on a rather obscure area of international law; that is, the legal regulation of the personal immunities of foreign ministers. However, one can express serious misgivings about some of the Court's conclusions. In particular, the Court, besides omitting to pronounce upon the admissibility of universal criminal jurisdiction, failed to distinguish between so-called functional immunities (inuring to foreign ministers and, more generally, to all state agents with respect to acts performed in their official capacity), and personal immunities. It follows that, in the opinion of the Court, foreign ministers (and other state officials), after leaving office, may be prosecuted and punished for international crimes perpetrated while in office only if such crimes are regarded as acts committed in their ` private capacity', a conclusion that is hardly consistent with the current pattern of international criminality and surely does not meet the demands of international criminal justice. * Member of the Board of Editors.
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