Aspects of jurisdiction in Public International Law : a case study

Abstract

"The difficult task that international law today faces is to provide that stability in international relations by a means other than the impunity of those responsible for major human rights violations." This was the challenge presented to the International Court of Justice in the Case concerning the Arrest Warrant of 11 April 2000, (Democratic Republic of the Congo vs. Belgium). On the human rights side, Belgium had issued an international arrest warrant against an incumbent Congolese Foreign Minister for alleged incitement to genocide. The arrest warrant was issued in force of Belgian legislation allowing the exercise of in absentia universal jurisdiction. On the other side, the Democratic Republic Of The Congo contended Belgium's exercise of in absentia universal jurisdiction and that under international law an incumbent Foreign Minister is immune from criminal prosecution by a foreign state. Therefore, at the outset the case promised to shed light on two relatively obscure areas of International law, namely the Principle of Universality and that of immunities accorded to Foreign Ministers. However, the International Court of Justice decided to condescend to the parties requests not to pronounce itself on Belgium's assertion of absolute universal jurisdiction. Had it chosen otherwise it would have found that international law does not permit in absentia universal jurisdiction. In respect to immunities the Court asserted that international law grants total immunity and inviolability to incumbent Foreign Ministers. The Court, however, did not take into consideration that there has evolved an international norm providing that perpetrators of gross human rights offences cannot set up the plea of functional immunity from criminal prosecution. The court was asked to strike a balance between the requirements of State sovereignty and the demands for international justice. By choosing not to consider certain issues it may have tipped the balance.