Non-Corrige Traduction
Uncorrected Translation
CR200116(translation) s
CR200116(traduction)
Tuesday16October2001
Mardi 16octobre2001 The PRESIDENT: Pleasebe seated. The Sittingis openan1givethe floorto the Agent of
! O06
the DemocraticRepublicofthe Congo. Ambassador,youhavethe floor.
1
Mr.MASANGU-a-MWANZA: Thank you,Mr. President. Mr.President, Members of the
Court,Registrar,allow me toake the floor once again to present thepersons whowill speak on t
behalfof theDemocratic Republic ofthe Congoonthis second dayofpleadings. Theyare:
1. Mr. Pierre d'Argent, who will conteis statementonirnmunities;
2. Mrs. Chemillier-Gendreau, howill speakonuniversaljurisdiction;
3. Professor FrançoisRigaux, who will deal with the changes in the claim of the Democratic
Republicof theCongoandthe preciseobjectof theclaim.
1shallthenretm to concludeourstatementsThank you,Mr. President.
ThePRESIDENT: Thank you,Ambassador.. 1nowgivethe floortoMr. Pierre d'Argentto
continuethe statementhebeganyesterday.
IV.THE ARGUMENTSOF BELGIUM
Mr.D'ARGENT: Thank you,Mr.President.Mr. President, Membersof the Court,it is my
great honour to take up the statement1began yesterdaymoming. Allow me to remind you of
where 1lefl off. Yesterdaymoming1dealt briefly withthe facts relating to thisdisputeand with
theissue ofimmunityfiomsuit,and1alsodescribedto you thepoints onwhichthe Parties agreein
orderto bringoutmoreclearlythoseonwhichtheydisagree.
ThePRESIDENT: May1askyouto tum upthemicrophone alittl...Yes. Thankyou.
Mr. D'ARGENT: As 1was saying,1describedto youthe pointson whichthe Partiesagree
inorder to bring out more clearlythose on which they disagree1aalso explainedthe legal
position of the Democratic Republic ofthe Congo on this issue ofnityfiom suit. Now 1
I. OO 7
come- this being the fourthpart ofmy state-ento a criticism ofthe argumentsput forward
byBelgiumin its Counter-Memorial.
These argumentsare ofdifferentkinds. In orderto simpli6 my presentation,1shall group
themunder two main headings: on the onehand,there are argumentsdirectly connected with the casebefore us,and with the arrestwarrant which was issued;on the otherthereare the arguments
concerningthe issue ofprincipleas to whether an exceptionexiststo the immunity ofincubent
foreigngovernrnentmemberswheretheyareaccusedof international crimesin a domesticcriminal
court.
A.Argumentsconnected withthe case
Belgium maintains that the disputed arrest warrant does not infringe the rights of the
DemocraticRepublic of the Congo and puts forwardthree alternativeargumentsin an attemptto
provethis assertion: first,we are told,the arrest warrant did nothave the effectof preventingthe
Congo fromfreely conductingits diplomatic relations,nor did it cause it any injury; second,we
are also told, the arrestrrant is without effect in the Congoleselegal order and, should it be
executedby a third State,Belgiumtells us, the violation of immunity woulbe cornmittedsolely
bythat Stateandnot by Belgium; third,the effect ofthe warrantin the Belgianlegalrderwould,
we are told, be suspendedby the investigating judgein the event of an officia1invitation being
addressedto Minister Yerodiaby theBelgian Govemment.
ProfessorRigauxandProfessor Chemiller-Gendreauhave already replietd o thesearguments
at length and demonstratedtheir flimsiness. The Memorial ofthe Democratic Republicof the
Congo,also, 1think, refbtesthem convincingly. Althoughthis makes it unnecessary todwell on
them,we do need,in orderto dispelanydoubtsinthisrespect,to remember thatthe disputedarrest
warrant is an infiingement of criminal immunityper se, since it is a coercive act of criminal
investigationopeningthe wayto proceedings. It is alsoworthrememberingthat theFrenchCourt
of Cassation,in the Khadaj Judgmentto which 1referred yesterday,took the view that the mere
openingof the investigation,which precedesthe issue of an arrest warrantand does not in itself
constituteanact of coercion,is contraryto themle of immunity from suit. Moreovert,he issue and
internationalcirculationof the arrestwarranteffectivelyand materiallyviolatedthe immunityof
O O8 the Minister for Foreign Affain of the Congo fiom criminal process and thus infnnged the
sovereignrights of that State. Over and above the question of the legal effect of the warrant
domestically- whichin factisperfectly clea- the merefearof it beingexecuted wassuchas to
restrict the foreign travel of the Minister indicted,thus prejudicing the proper conductof the internationalrelations ofhis State. The injurythus doneto the DemocraticRepublicof the Congo
isal1the more seriousand manifestin that the Belgianauthoritieswereawareof the international
war situationin Congo-Kinshasa. Becauseof that situation,it was doubtlessmorenecessarythan 1
in normal timesfor the Ministerfor Foreign Affairs ofthe DemocraticRepublic of theCongo to
1
enjoythe absolutefieedomof movement whichin principleis his due, and forhis foreignpartners
not to be discouragedor inhibitedfiom consideringhim as a legitimate interlocutorowingto the
existence andcirculationoftheinternationalarrestwarrant.
Moreover,letme repeat,it cannotsufficeforBelgiumto maintainthatthe arrestwarrantwas
devoid of effect, or that Belgiumwould not be responsiblefor its executionby a third State or
again that it would cease to have effect if an officia1invitation was addressed tothe Minister.
These last two arguments clearly do not deserve Mer lengthyreconsideration,and the Congo
requests the Court to be good enough to refer in this respect to the relevant passagesin the
Memorialwhichit filed; thosecontentions,it seemsto me, shouldsuffice in this respect. At al1
events,none ofthese argumentsput forwardby Belgium,al1of whichare unfounded,can conceal
the fact that the publicindictmentof theMinisterforForeign Affairsof the Congoby the disputed
anest warrantis an act gravelyprejudicialto the dignity of theDemocratic Republic of theCongo
and sufficesin itselfto infiingethe immunityfiom cnminalprocesswhich protects itsincumbent
representative. Theviolationof irnmunity materializesfiom the moment when a magistrate,even
an investigating magistrate,seeks to bring the conduct of the incumbent minister within his
criminaljurisdiction.
B.Argumentsofpnnciple
Mr. President, Members ofthe Court, 1 must nowtake up Belgium's assertion thati ,n the
case of international crimes, an exception exists to the immunity from criminal process of
incumbent membersof foreign govemments. The principle of the alleged first exception to
0 O9 immunityfiom suitis not disputedby Belgiumas such,but, 1wouldremindyou, its extent - that
alone- is at issue here. And it is chaptersfour and five of Belgium'sCounter-Memorialwhich
we shouldlook atin this respect. In reality, however,the entireconceptualstructureof Belgium's
argumentis embodiedin paragraph3.4.4ofthe Counter-Mernorial,atthe foot ofp. 119. Whatevercomes after this paragraph is really no more than embroidery,an endless repetitionof the same
basicidea. Whatdoesthisparagraph3.4.4state? Itreadsas follows:
"(a) Ministersfor ForeignAffairs inofficearein generalimmunefiom suit before the
Courts of aforeignState;
(b)by wayofexceptionto the generalrule, MinistersforForeignAffairsin officebear
persona1responsibiliv for acts they are allegedto have committed whichare so
seriousasto constituteinternationalcrimes"(emphasis added).
(A Mer "exception"is put forward,in regardto privateacts committedduringthe performance
of officialfunctions. 1alreadydealtwiththispointyesterdaymoming and showedthat approachto
be mistaken. 1shallnot thereforereturnto it.)
Let us concentrate,if you will, on the proposition1havejust read to you, which may seem
innocuous,"logical" even. It is in fact a profoundly mistakenproposition,for the simple reason
îhat it takes a principle ofpersona1crirninalresponsibili@to be an exceptionto a rule of irnrnuniv
fiom suit. Thereis a fundamentalconfusionof thoughthere: howcan a rule of persona1criminal
responsibility constitutean exceptionto a rule of immunityfiom suit when the immunityrule
relates to the jurisdiction of domestic criminal courts and the principle of persona1criminal
responsibility relatesto the culpabilityof the offender? As ProfessorRigauxhas alreadypointed
out, this confused thinking permeates Belgium's entire Counter-Memorial, which relies
systematicallyonvariousassertionsof the principleofpersonalcriminalresponsibilityasa ground
for establishing a so-calledproof of the existence of an alleged exception to the régime of
immunityfiom suit in the case of internationalcrimes. As 1saidyesterday, therule of persona1
criminal responsibility is not challengedby the DemocraticRepublic of the Congo. Nothing,
however, can be inferred fiom thisrule of persona1responsibilityin regard to the jurisdictionor
lack of jurisdiction of the judges empoweredto make a finding of such responsibility,except,
precisely,that the issue of thejudges'jurisdictionmustnot be confusedwith that ofthe offender's
culpability.
Yet anotherpieceof confusedthinkingis to be foundinthe BelgianCounter-Mernorial.Not
only, as1havejust said, is a principle of responsibility wrongltakento be an exceptionto a rule
barring jurisdiction, but also this question of jurisdiction is treated in exactly the same way
regardlessof whether a domesticor an internationalcriminalcourtis concemed. Thefact thatthe various statutes of internationalcriminaltribunalsprovide that the accused's capacity or official
positioncannotexempthim fromeithera prosecution or conviction istaken as a basis for asserting
1
thatimrnunityfiomsuit cannotexistbeforedomesticjurisdictionsinthecaseof a chargerelatingto
international crimes.Thisreasoningis, it seemsto me, clearlyfaulty.
In point of fact, the statutes of these international tribunals generallydraw a distinction
between official capacity as a ground for exemption fiom criminal responsibility and officia1
capacity,or imrnunity,as an obstacleto thejurisdictionofthe international tribunal.Thisis indeed
the casewith Article27 of the Statuteof the future InternationalCriminalCourt. Paragraph1 of
the Articledeals withthe principle ofpersona1crirninalresponsibility, aboutwhich 1have already
spokenat length. Paragraph2 ofthe Article relatesto the "immunitiesor special proceduralrules
whichmay attach to theofficialcapacityof a person,whetherundernationalor internationallaw",
and these immunities orspecialproceduralrules, the ArticleStates,"shall not bar the Court fiom
exercisingitsjurisdiction oversucha person". Thisparagraph2 of Article27 of the Statuteof the
InternationalCriminalCourtcallsfor a fewbriefcomxbents.First, it is obviousthat this provision
clearlyrelatesto thejurisdictionofthat Courtandto it alone. The sole objectoftheprovision isto
give the Courtjurisdiction- jurisdictionin respect ofal1persons prosecutableby it, whose legal
status may differ widely; they may be Heads of State, military commanders, members of
parliament, ministers, secretaries-general of international organizations,diplomats,oever. Since
the provision is directed solelyat ensuring the jurisdiction of the InternationalCriminal Court
alone, it would be rash to draw any inference whateverfiom it in regard to the jurisdiction of
domestic courts. Second, it matters little whether "the immunitiesor special procedural rules"
referred to in Article27, paragraph2, which cannot bar that Court'sjurisdiction, are those of
t O 3 1 national or internationallaw. Theprecise scope of this broadlyworded clause is perhaps not
absolutely clear. Doubtlesswe should see it as a reminderthat irnmunityfiom suit foundedon
C
international lawismeaninglessbeforeinternationalcourtssince,onthe onehand,the solepurpose
of this immunityis to exemptcertaindisputesfiom thejurisdictionof domesticcourts,and, onthe
other, the consentgivento thejurisdiction oftheinternational courtsufficesin any event to lift the
imrnunity. Perhapswe shouldalso take it to mean that any international procedural requirements
prior to the indictrnentof an offenderare also waived. And as far as the immunities and special procedures of domestic law are concerne4 the provision represents a bar,precluding the
representativeof the Statefi-ominvokingbefore theInternationalCriminalCourtany irnmunityor
special proceduralrule whichhis domesticlaw may allowhim in his own courts. In other words,
theprovisionnullifiesanygroundof exemptionwhichderivedfiomdomesticlaw.
Mr.President, Membersof the Court,1think 1could closemy argumentat this point. Once
it is understood that Belgium's positionis based entirely on a conceptual confusion between
jurisdiction andresponsibiliiy,betweenthejurisdiction ofomesticcourts and thejurisdiction of
international courts,the points that1havejust made shouldsufficein law. However, Belgium has
filedavoluminousandrepetitiveCounter-Mernorial,in whichit has repeatedlycriticizedthe DRC
fornot havingcitedor commenteduponcertain sourcesonwhich Belgiumfouncisits argument. 1
regrettherefore that1must keep the floor alittle longer,but it seems to menecessary,under the
circumstances, toreturn to some of the statements containedin, the Counter-Memorial. On
reflection,this exerciseis certainlynot an entirely nugatoryone, for it will enableme to illustrate
aspectsof theargument1havejust made.
In ordertojustie the interpretationit places on Article5, paragraph3, of the Law of 1999,
which providesthat "imrnunityattachingto the officia1capacity of aperson shall not prevent the
applicationof the presentLaw", Belgiumcites a largenumber of sources andreferences. Al1of
them cannot be commentedupon here. Nevertheless,it is worth saying a few words in general
terms about these different sources, employing,for ease of reference, the broad classifications
f 012
followed inBelgium'sCounter-Memorial.Thereare fourof these. Belgiumrefers to conventional
sources, national sources,sourcesaidto béfrom case law and sources fiom legal writings. We
shallstart,with your approval, with the conventional sources.
1.Undertheheadingof "conventionalsources" Belgium citesthe 1919Treatyof Versailles,
the Statutes of internationalcriminaljurisdictions, Law No. 10 of the Allied Control Councilin
Germany,the 1948Conventionon thePreventionandPunishmentof the Crime of Genocide, and
certainresolutionsofUnitedNationsbodies.
(i) As regards the Treaty of Versailles, Belgium's positiis extremelyweak. It admits,
moreover, that the 1919Peace Treaty only "implicitly" excluded the irnmunity of the
GermanKaiser. In any event,and as already pointed outby ProfessorRigauxyesterday morning,no lesson, even ofan implicitnature, canbe drawnfiom the Treaty of Versailles,sinceit did not
indictEmperorWilliamII duringthe GreatWar,but afterhe hadabdicated.
(ii) Next, as regards the Statutesof internationalcriminaljurisdictions, 1havejust pointed
out the confusion running through Belgiurn'sCounter-Memorial betweenthe rule of individual
criminal responsibility and the argument based on the unenforceabilitybefore an international
jurisdiction ofrules governing immunityor preferentialproceduralstatus derived fiom domestic
law,or fiom internationallaw. TheNurembergand Tokyo Tribunalsdidnot evenhaveto concern
themselves witha clairnto immunity derivingfiom internationallaw, sincethe individualswhom
theytried hadceasedto exercisetheir dutiesatthe timetheywereprosecuted. Onlythe Statutesof
the ad hoc criminaltribunals set up by the SecurityCouncil,and the Statute of the International
CriminalCourt,have dealtwiththe questionof immunityfiom suitof members ofa govemmentin
office,andexcludedit.
That, as 1have said,is only logicalsince1 repeat,immunityfiom suit,which is intendedto
protectan act of State,is meaninglessbefore an international court.nnyevent,the consentto the
jurisdiction ofsuchinternational court,whether bytreatyorthrough a mandatorySecurityCouncil
resolution,suffices to lift that immunity. That said, one is bound to note that the conceptual
confusion doubtless stems fiom a misunderstanding ofthe words used by JusticeJackson,
reproducedin the Counter-Memorial (para. 3.5.22),where herefersto "the obsoletedoctrinethat a
head of State is immunefiom legal liabiliw": that phrase- and the rest of the extract cited
demonstrates as much- refers to the principle of individualcriminal responsibilityand notto
some rule of immunity applicableto thejurisdictionof domesticcourts- notwithstanding theuse
ofthe words"immunefiom",which arethesourceof the confusion.
To counterthe DRC'sargumentsthatthese"precedents"arenot relevant inthe present case,
Belgium advancesseveralcontentions:
First, Belgium contends that these rules identified by international criminal courts are
customaryrules, and that domesticcourtsmay - indeedmust- also apply them(para.3.5.26).
However,we haveto look at what these purportedcustomaryrulesactuallyinvolve. It is clearthat
what is at issue is the principle which is not contested- of individualcriminalresponsibility,
and not a rule depriving governrnentmembers inoffice of immunityfrom suit before domesticcourts. First, because the practice with regard to governmentmembers in office is extremely
limited; secondly - and 1say it again - because immunityfiom suit is meaningless beforean
internationaljurisdiction, evea criminalone. Thus,inmy opinion,therecanbe nopractice giving
riseto a custominthis respect.
Second, Belgiumthen contendsthat
"if it wereto beestablishedthatno imrnunity couldbe invokedbeforeaninternational
criminalcourt,it would not be necessaryto say so. Thefactthat it was nevertheless
stated therefore has a meaning which goes beyond the narrow context of the
international criminal court to cover that of al1 criminal jurisdictions, both
internationaland national. This is a way to affirm that for certain abominationsno
immunitycancomeintoplay." (Counter-MemorialofBelgium, para.3.5.27.)
This is indeeda curious argument. Arewe to understandthat, when Statesagree to confer
jurisdictionon the internationalbodies whichthey create,they atthesametime agree toextendor
limit,according tothe situation,the jurisdictionof their own national organs? In reality,the true
position is precisely the oppositeof what the Counter-Memorialtells us: it is becauseimmunity
fiom suitorpreferential proceduralstatusis availablein domesticlawthat it isnecessaryto makeit
clear that, in internationallaw, such cannotbe the case. Further,Belgium loses sight of the fact
that a restatementof therule, in the statutesof internationalcriminaltribunals, wasintendedalso,
and aboveall, to givethe lieto the oldnotionthat organs ofthe Stateneverhad to accountfor acts
carriedout inthe nameofthe latter.
Third,Belgium Mer contendsthatthe factthatthe individualscitedhad ceasedto exercise
officia1functions is of no significance(Counter-Memorialof Belgium, para.3.5.28). In this
respect,it maintainedthat
"the argumentof imrnunitywasnot rejectedonthe basis ofthe international nature of
thesecourts,butsimplydue to thehorror of the crimes in question. If the horrorofthe
crimejustifies the exclusionof immunity,it matters littlewhetherthe questionarises
before an internationalcourtor a national court.Beforeboth, the samecause should
producethe sameeffects."
Onceagain,the argumentis a curiousone. Weare toldthatthe horrorof anact - whichis
beyonddispute onmoralgrounds - confersa title of domesticjurisdicti-n whichstrikesme as
a remarkablejudicial short-circuit. 1sit necessaryat this junctureto point out oncemorethat the
French Court of Cassationrecently refused to find in the gravity alone of the crime committed
groundsto justi@liftinga foreignHeadof State'simmunity fiomsuit? Fourth, this argument concerning thegravity of crimesis again employedtojustiQ the fact
thatthe Statuteofthe InternationalCriminalCourt rejects, initsmutualrelationswithpartiesto the
Statute, any argument derived fiom immunity. In reality,inasmuch as immunity or special
procedural status under domestic law is excluded fiom consideration,this is because, for the
internationaljurisdiction,these are simplyquestionsof fact; and,inasmuchas immunityfiom suit
derivingfiom internationallawis also excluded,it is because,1repeat,it is meaninglessbefore the
internationaltribunal, since, on the one hand, immunityis intendedto remove a matter fiom the
jurisdiction of adomestic court and, on the other, the jurisdiction ofthe international tribunalis
founded on the consent of the States party to its statute, which includes an agreement to lift
irnmunity.
I QI5 Fifthly, Belgiumadvancesyet a fifi argument. It contendsthat the complementarynature
of the International Criminal Court entitles nationalcourts to do whatever the International
Criminal Court itself can do, so that the rules of its Statutewith regard to immunitiesmay be
transposedasthey standto nationalcriminalcourts. Thus,Belgiumclaimsthat, ifthe International
Criminal Court alone had the power to prosecute govermnentmembers in office, its role would
becomeprincipalratherthancomplementary,giventhatthemostseriouscrimesunderinternational
law which the Court is charged with prosecuting are always committed by the higher organs of
State. Does this argument reallymerit any attention? 1 doubt it, and 1 Saythat without any
animosity towards Belgium's counsel. 1will content myself withrefbting Belgium's curious
notion of theInternationalCriminalCourt's complementarity - one whichit appearsto regard as
"quantifiable",or evenof merelystatisticalSignificance.In reality, complementarityquitesimply
meansthat the InternationalCriminalCourtis there in orderto supplementprosecutionby national
authorities,in other words to performthat which nationalcourts are unable to do, becauseof the
jurisdictional limits imposedby immunityfiom suit. The proceedings of the VeniceCommittee,
I
cited by Belgiumin this context (Counter-Memorialof Belgium,p. 140)also haveno bearing on
the questionwhichconcernsus here,becausethey relateto the problemof the compatibility ofthe
Statuteof the InternationalCriminalCourtwith certain constitutionalrules. Al1that observations
of the Venice Committee are concernedwith is the powerof a State havingratified the statuteof the ICC to try before its own courts its leader1,who has comrnittedcrimes falling within the
Court's jurisdiction.Theproceedings ofthe VeniceCommitteein fact refer to "a leader",andnot
to "des dirigeants" as Belgium mistakenly claims. This power to try its leader before its own
courts,even though ithasratifiedthe Statuteof the InternationalCriminalCourt,clearlycannotbe
regardedas incompatiblewiththe principle of the Statute'scomplementarity.
,‘ 016 (iii)Belgiumalsorelies onAlliedControlCouncilLawNo. 10. In passing, itmay be noted
that it is somewhat surprising to see this law classified arnong the sources of conventional
internationallaw, since it was a piece of German domesticlegislation promulgatedby the four
major powers in pursuance of their supremeauthonty, in accordance with the "Govemrnent in
commission"formula analysedin such precisionand detailby SirRobertJennings(BYBIL,1946,
p. 112). Be that as it may, Belgium once again omits to indicate that Law No. 10 concerned
individualswho had ceasedto hold officeand was concemedwith their trialby German domestic
courts,orby Alliedmilitarycourts actingasdomesticcourts.
(iv) The fourth conventional sourcecited by Belgium is the 1948Convention on the
Preventionand Punishrnentof the Crimeof Genocide. Belgiumcontendsthat ArticleIV of this
Convention contains a rule precluding the immunity ofgovemment members in office before
foreigncriminalcourts. ThisArticlereads as follows: "personscornrnittinggenocideorany ofthe
other actsenumeratedin Article IIIshallbepunished, whetherthey are constitutionallyresponsible
rulers, publicofficials or private individuals". Here again,the rule affirms more a principle of
individualcriminalresponsibility ratherthan an exception toimmunity fiom suit beforedomestic
courts. Moreover,itrnustbe readin conjunctionwith ArticleV ofthe Convention,whichconcerns
the obligationto takemeasures for prosecutionunderdomesticlaw, andparticularlyin conjunction
with ArticleVI, which imposesan obligation toprosecute the perpetrators of genocideonly upon
the Stateloci delicti,whilerefemng to the possiblejurisdiction of an internationalpenal tribunal.
Evenif ArticleIVwere considered relevantto theissueof immunityfiom suit,whichit isnot, such
immunitycould in realitybe liftedonly forthe benefit ofthe courts of the Statedesignatedin the
Convention as being obliged to prosecute the perpetratorsof genocide- and for that State
'~heEnglishtext of footnote13,whichmustbe readin lightof the principaltext citedin Annex34, achially
refersto"aleader",wronglytranslas "desdirigea".s alone -, namelythe Stateloci delicti. In any event,this discussioncan be haltedhereas no such
inference can be made in the instant case, since no accusationof genocide is contained in the
disputedwarrant.
(v) The fifthconventional sourcereferred to by Belgiumconsists of the few resolutions
adoptedby United Nationsorganswhichare citedin the Counter-Memorial.1thinkit necessaryto
point out, onceagain, the confusionbetween theaffirmationof a principle ofpersona1criminal
responsibility andirnmunityfiom suit,which concemsthejurisdiction of domesticcriminalcourts.
!. 017
It is still the sameconfusion. Moreover,can relianceseriouslybe placed on resolutionsby United
Nations organswhentheirlegalscope is not otherwisemadeclear?
2. Belgium alsorefersto "nationalsources excludingtheirnrnunityof alleged perpetratorsof
serious crimes of international humanitarianlaw". Chinese and Luxembourglaws are quoted
(Counter-Memorial, paras.3.5.56-3.5.57), but these are very general criminal provisions, fiom
which no useful guidancecan be drawn in the presentcase. They merelyreafnrm the rule that
culpability subsists regardless of the officia1apaci6 under cover of which the crime was
cornmitted. Also,the interpretationby the SwissFederal Departmentfor ForeignAffairs of the
compatibility of Article 6 of the European Conventionon Human Rights and the rules of
diplomatic law, as interestingor specifas it maybe, is in no way a "nationalsource"relevantto
the present case (Counter-Memorial,para.3.5.58). It is an act an executivebodywhoserole is
not to state the law; it is nothing but an opinion, that of a minisû-y of a State party to a
convention- the European Convention on Human Rights- and is not opposable to the
Democratic Republicof the Congo. The same is true of the rather vague statementsby the
NorwegianandPolish Govemments(Counter-Memorialp ,aras.3.5.59-3.5.60).
3.Belgiumtakesabsolutelyno accountinthe"jurisprudence" citedin supportof its position
of thedomesticor intemational character ofthe court in question,and it fails to distinguish,once
again, between the question of persona1criminalresponsibilityand that of irnmunityfiom suit,
-
refusingto notethatal1the actions cited werebroughtagainstleadersno longerin office. Belgium
sets great store by the Nuremberg Judgment. It specificallycriticizesthe Democratic Republicof
the Congo for having failed to address the assertion found therein to the effect that "[tlhe
perpetratorsof suchactscannotreferto their officia1capacityto escapethe normal procedureortoprotect themselvesfiompunishment". Onceagain,Belgiumdistortsthe senseof the text, whichit
regards asa statementofgeneral application,coveringboththe internationalproceedings before the
international tribunal hearingthat caseand futuredomesticproceedings. It is, however, clear that
under a reasonable, practical interpretatiof this passage,its scope must be limitedto the facts
before that international criminal tribunal, and that when the tribunal referred to "the normal
procedure",it meantto ruleonly as far as it itselfwas concemed. The passagefÎomthe Judgrnent
of the International Military Tribunal in Tokyo in the Oshima case, quoted by Belgium
(Counter-Memorial,para.3.5.66),clearlyconfirmsthis:
"Diplornaticprivilege does not irnportimmunity fiom legal liability,but only
exemptionfiom trialby courtsof the Stateto whichthe Arnbassadoris accredited. In
any event,this immunityhas no relation to crimes againstinternational law charged
before atribunal havingjurisdiction. TheTribunalrejectsthis specialdefence."
Pleaseallowme, at the riskof tryingthe Court's patience,to providea brief surnrnaryof whatthis
means:
- a diplomat'simmunityfkomjurisdictioniswithoutprejudiceto hispersona1criminalliability;
- the diplomatenjoysimrnunityfromsuitbeforethe courtsofthe receivingState;
- that immunity is lifted before courtshavingjurisdiction in the case, i.e., before those-
intemational courts like the International Military Tribun al not required to respect that
immunity,or,as far asthe diplomatis concemed,any otherdomesticcourtsof a State inwhich
he doesnot exercise his representativefunctions.
Belgium cites other national case law, concerning the act of State doctrine and the
applicationof the AlienTort Statute,which fiomthe conceptualpoint of view fiankly appearsfar
removedfiomthe subjectunderdiscussionand1shallnot addressthis anyMer.
In respect ofthe Pinochet case, which1spokeabout yesterday morning butwhich 1said 1
would corneback to, Belgium confinesitself to extensivequotationsfiom certainpassagesin the
Lords'opinions,al1of whichrelateto the immunityof formerHeads of State andto the question
whether torture canbe consideredanofficia1actcoveredby the immunityfiomjurisdictionwhich
subsistsfor those acts alone afier the terminationof office. These passagesare al1noteworthyin
that they establish that crimesnder internationallaw cannotbe consideredto be officia1acts and
they cannot thereforebe coveredby immunity fiomsuit, which continues after theterminationof office only for officia1acts.Once again,that howeveris not the pointat issue in this case, as 1
stressed yesterday morning. Belgium asserts, however, in succinct terms that "[elven if the
I
[quoted]judge's reasoningis confinedtothe caseof formerHeadsof State,it is also applicable, as
such, to the case of high foreign representativesin power" (para.3.5.82). Frankly, this is a
1
peremptoryassertionandit is surprising, especiallysince,as 1have alreadypointedout,it is denied
by the House of Lords itselfl Belgium fürther asserts that the passage fiom the opinion by
LordNicholls,the clear concise passage 1 quotedyesterdaymorning in supportof the Democratic
Republic of the Congo's position, is not relevant because the judge was, in Belgium's words,
"simply refer[ring] to the general rule" (Counter-Memorial,p. 157) and that LordNicholls also
stated:
"From this time on [as Belgiumnotes in its Counter-Memorial,the judge was
referringto the Nurembergjudgment],no head ofState couldhave been in any doubt
abouthis potentialpersona1liability ifhe participatedin acts regardedby international
law as crimes against humanity ... Acts of torture and hostage-taking, outlawed as
. they are by international law, cannot be attributedto the state to the exclusion of
persona1liability".
This passage, which Belgium quotes, in no way contradicts what Lord Nicholls soberly
afanned in respectof the irnrnuniîyof aHeadof Statein power. Thispassageconcems"potential
persona1liability",the persona1criminalresponsibilitywhichmight impliedlybe invokedafterthe
termination ofthe office. Lord Nicholls also affirmsthat the representative'spersona1criminal
responsibilitysubsists evenwhere the international responsibility of his State can be engagedfor
his criminal acts, for which he remains in al1events liable. This in no way gainsays the legal
position of the DemocraticRepublicof the Congo,which,as 1have already pointed out,does not
denythisprinciple of persona1responsibility.
1 shall now return to the Qaddafi Judgment by the French Cour de cassation on
13March 2001,which 1referredto yesterdaymorningand which 1 saidthat 1might corneback to
aswell. In respectof thatjudgment,Belgiumwould,in fact,seemto attachmore importanceto the
judgment of the Indictments Chamber, which has been quoted extensively eventhough it was
quashed,than to the judgment of the Courde cassation itself; this is surprising,to Saythe least.
Belgium considers the Cour de cassation judgment to be compatible in al1 respects with its
position,becausethat judgment is said to recognize exceptionsto the principleof imrnuniîyfromsuit of Heads of State in office and, accordingto Belgium,these exceptions are establishedby
customaryinternational law concemingwar crimes, thecrime of genocide and crimes against
humanity. Weare going round in circles ... In reality,the Democratic Republicof the Congo
maintainsthat Belgium,whichbearsthe burdenof proof,has failedto establishthatthereis sucha
customaryexception becauseit infersconsequences concerningthejurisdiction ofdomesticcourts
fiom textsdealingwithculpability. Furthemore, if anexceptionto immunityfiomthejurisdiction
of nationalcriminal courtswere truly a customaryprincipleofjus cogens, as Belgium repeatedly
insists, itshouldapplyequallyto al1crimesunderinternational law,includingterrorism- andthis
is preciselywhat theFrench Courde cassation rejected. Theexceptionrecognizedby the Cour de
cassation no doubt concerns theStatutesof the InternationalCriminalCourt and the international
criminaltribunals.
4. After "conventional sources", after "national sources" and after the "jurisprudence",
Belgiumalsocites "thewritingsofpublicists"in supportofitsposition. 1 do not thinkit necessary,
after what1said on the subjectyesterdaymoming,to dwellon this point. A briefword, however,
concemingthe International Law Commissiondeliberationcsitedby Belgium. Thosedeliberations
concern, yet again, the question of persona1criminal responsibiliw, as the articles in question
expressly state,and not the questionof immunityfiom suit, contrary to Belgium's assertion.In
particular,Articl7 ofthe Draft Code ofCrimesAgainstPeace and Securityof Mankind ,dopted
in 1996, makes absolutely no advance determination of the judicial authority- domestic or
international empoweredto establish liability,which cannotbe escapedsimplybecauseof the
importanceofthe officeheld.
Mr.President,Membersofthe Court. 1have alreadysaidmuch anddonot believeithelpful
to add furthercriticisms of Belgium'sCounter-Mernorial.Before 1conclude and summarizethe
DemocraticRepublic ofthe Congo's legal position, pleasa ellow me to looksomewhatbeyondthe
fiameworkof this disputeand brieflytoplaceitin a wider context. As ProfessorRigaux has already noted,the question of principle before the Court, as it
O 3 1
extendsbeyondthe issue ofrelationsbetween Belgium andthe Congo,is of generalinterestto the
D
entireinternational community.Immunityfromcriminalprocessof govemmentmembersin office
is a well-establishedrule of public international law. It is of vital necessityto intercourseamong
1
States, andamongthe internationalorganizationswhich theycreate,it beingcrucialfor nationsto
berepresentedby individualsin a positionto carryout filly andfieely theofficeswhichhavebeen
entrustedto themin the exerciseof completesovereignty. Inthis sense,immunityfiom suitmeets
a genuineneed of the internationalcommunity. There can be no doubtthat this need is felt even
more acutelyin this era of "globalization". Itis even less acceptablefor aate's international
representation to be adversely affected by criminal proceedings brought abroad against its
representativewhen the basis of the prosecutioncan onlybe mereallegations,as is the case here.
In this respect, the immunity fiom suit of foreign govemmentmembers in office is not only a
necessary rulebut also awise one,which shouldnot be lightly waived. Moreover, immunity fiom
suit is in no way incompatible withthe coherenceof the internationallegalr,or with the very
legitimateconcemto fightagainstoutrageousimpunity.Imrnunitydoesnotmean impunity, as has
already beenpointedout. This is particularlysowhenthe immunityis a functionaloneand forthe
mostpart treatieshave by now removedany statuteof limitationson the crimesunderinternational
lawwhichthatimrnunitytemporarily preventsthedomesticcourtsfiom trying.
V. CONCLUSION
Mr.President, Members of the Court, the Democratic Republicf theCongo's positionmay
thusbe sumrnarizedverysimplyas follows:
- the international arrest warrantissued on 11Apri12000 is an internationallywrongful act
committedby Belgium against the Democratic Republicof the Congo,in that it violated the
immunityfiom suitheld bythe sittingMinisterforForeignAffairs;
- no exceptionto the ruleof immunityfiomsuitcanberecognized in this case;
- finally,theinjurycausedto the Congo's sovereignghts bythis wrongfulact mustaccordingly
be repaired. Thatbringsmy oral statementto an end. 1thankthe Courtfor itskind attentionand askyou,
022
Mr. President,to cal1Professor Chemillier-Gendreato the Bar. Shewill speakto us on the issue
ofuniversaljurisdiction.
The PRESIDENT: Thank you very much. 1 now give the floor to
ProfessorChemillier-Gendreau.
Ms CHEMILLIER-GENDREAU: Mr. President,Members of the Court, the question of
universal jurisdiction pervades this caseAs a result of legislation whichBelgium adopted
conferring uponitselfmaximumuniversaljurisdiction,it now findsitselfthe focusof al1hopeson
the partofthe countless victimsofinternationalcrimes.
The main difficulty confiontingBelgium is to respond to hopes which emanatefiom the
world over and which can only grow in number. That is the price of a bold, but unilateraland
unusual,step. Thisgeneraldifficulty,whichis a matterofthat State'sjudicial policy,is in addition
to anotherseriesof difficulties,whichare legalinthe strictsenseoftheterm. Thoseare difficulties
which mightarise, first, fioany contradictionsbetweenthe Belgianlegislation andthe way itis
applied and, second, fiom the rules of internationallaw which Belgium's exercise of universal
jurisdiction might breach.
This, moreover, is the situation underlying the case concemingthe arrest warrant of
11April2000, but the DemocraticRepublic ofthe Congo'spoint of view onthis sensitivequestion
oftheroleto beplayedbynationalcourtsin prosecuting internationalcrimesis notthe one implied
by Belgium'srepresentativesin theirwrittenpleadings.
1would first liketo place the question ofuniversaljurisdiction inits generalcontextbefore
addressingthe specificquestion. TheApplicantin theseproceedings closelysharesthe concemto
put an endto irnpunityin order to puta stopto the crimesthemselves. This is becausethe crimes
are, for the Applicant, neither distantnor abstract. Theyhave ravagedthat country, ina war both
intemationaland civil in nature. But it must be noted thatthis conflict,teits uniqueness,is
nevertheless comparableto many others.Thisis not the occasionon whichto drawup a list ofthe
regionsofthe worldhaving experiencedwounds ofthismagnitude. The Court has occasionto dealf Q 2 3 with some ofthese cases. The full list islongand growinglonger ratherthan shorter. The actsof
violencearenotthe samein every place,buttheyarehorrificeverywhere.
*
To try and to punish. That is one of the remedies, as fiagile as it might be, capable of
checking the spiral of violence. But trilnd punishmentby whom, andin accordance withwhich
0
rules?
The pointsof lawraisedhere lie withina profound historicalmovement. Butthis is not the
peacefulmovementof a river flowingthroughflatlands. We are caughtin a storm raging inmany
parts of the world and strong appealare madetothe lawto help in calmingit.
At the very centreof this upheaval, thestatu of State sovereigntyis subjectto conflicting
tensions. The legal nom of sovereignequalityappearingin the UnitedNations Charter,which is
validonpaper,isweakenedbythe enormousactualinequalitieswhichit covers.
Political theorists are examiningthe situation.In France, GérardMairet in his book Le
principede souveraineté sees it as a concept thathas becomeinert, no longer ableto expressthe
commonfeelingof a people. In Italy, GiorgioAgamben, ina short essay entitled"Homo Sacer.
Lepouvoir souverainou lavienue", venturesaphilosophical view of thecrisisof sovereignty. He
points out how the enigma of the transformation of violence into law lies at the origin of
sovereignty. Thisenigma- never elucidatedbut long accepted - madeit possibleto achievethe
pacification ofsituationswithina given State context.
For reasons of great complexity,which it would not be opportune to delve into here,
sovereignty,of new States as well as older States,is to varying degrees delegatedvoluntarilyor
impairedinvoluntarily.
The alchemy wherebya major part of social violence was containedby the law no longer
works. The crisis of sovereignty,like a widening fissure,allows eruptions of violencewhich
become impossibleto stem. No continent hasbeen spared. But in States described as"newn-
i
becausethey werebom of decolonization- the sovereignty sodesiredby peoples long subjectto
domination hasin many regions found itself in crisis evenbefore it becarneconsolidated. There *
therisk of outbreaks of violenceon amassive scaleis clearlygreaterthanelsewhere.
f 024 Theveryextensiveliteraturein the areasof domesticand international public law,as well as
political science,reflects this majorming point atwhich the global communitycurrentlyfinds itself,but failsto show clearly howpeacecanbe assuredbetweendifferenthuman groups. Earlier
developments were thoughtto have produced an acceptablemodel. It is true that the model
resultedaboveal1frompolitical, conceptualandtechnological developments amongthe peoples of
the West. But those peoples, emergingat the end of the MiddleAges fiomimperial systems,in
which powerknew no bounds, at least as it was manifeste4 rejected the universalisttendencies
which marked the Renaissance in Europe and organized themselves on the basis of strong
temtorializationof power andtherefore oflaw. The doctrine of sovereignty wasbom and withit
classicinternational law, strongly orientowardsthe divisionof powersamongsovereign States.
It was naturalthat the logic of sovereigntywould extendto criminallaw and that that law would
thus becometemtorial. Doesthis meanthat the authority ofa domesticcourt wouldbe limitedto
ruling on actscornmittedon thetemtory of thatcourt's Stateand against peopleon that temtov?
Not exactly, for extratemtorialjurisdiction to prosecute nationalsno longer on that temtory, but
also possiblyto protect them, or to prosecuteforeignnationals abroadfor acts committedon the
territory, couldbe realizedwhencombinedwithextraditionproceedings.
This adjustmentto theprincipleof territorialitydatesback wellbefore the explosiveentryof
international crimesont0 the global scene. Itis obviously inadequateto deal with that. The new
situation,which was characteristic ofthe twentieth century andthe series of conflicts occurring
then and whichdoes not appearto be becomingany less acuteas the twenty-firstcenturybegins,
shows that the legal categoriesunder traditional law, which allow for unlimited impunity, are
inadequateorinappropriate.
The procedural possibilities inthis connectionare effectively limite4 and cnminals take
advantageofthatand areableto liveouttheirlivesundisturbed. Confiningjurisdictiontothelocus
delicti State in the case of crimescommiîtedby the Stateusuallymeans lettingthe guiltygo fiee.
Latin Americais rife with examples. Evenwhenrégimeswhichpromotedthe most seriouscrimes
are replaced with more clement political structures,the argument of national reconciliation
0 5
combineswith the extensive tieswhich the guiltymaintainwithin the societyto block domestic
trials. Notwithstandingthis situation,criminallaw has long remained absentfiom international
law. Little by little,it was however introducedinto that law throughtwo mechanisms: first,that
of internationaltribunals. In condernningone of the most painful and dishonourableperiods in
b
human history, Nuremberg and Tokyo gaverise to great hopes. But that justice, based on an
agreementarnongthe victors, long remained unique.HomiQingsituationsreoccurred invarious
regions of the world, while at the same time what are now called humanitarianconsiderations
beganto be raised.
The ground hasbeen prepared fornew advancesin internationalcriminallaw, and the last
decadeofthe twentiethcenturywitnessed the creationofthreeunprecedentedcourts. The firsttwo
(1amrefening to the InternationalCriminalTribunalsforthe former Yugoslaviaand for Rwanda)
were set up by resolutions ofthe Security Council. They thus derivedtheir authority overStates
fiom the fact that they were createdby the most powefil organ withinthe United Nations. The
international CriminalCourtwas born in a more traditionalway: pwsuant to a treaty binding on
Statesby virtue of their own consent. As wesee, the genesis ofthese courtsremains compatible
with the principleof sovereignty. It is throughthe derivedlaw oftheUnitedNationsin onecase,
and through treatylaw in the other, that States have assurned obligations inthe criminal area,
* obligationswhichmay,albeitcautiously,weakentheprincipleoftemtoriality and evengo so faras
to prevailover the imrnunitieswhichusually protect the highest representativeo sf each sovereign
entity.
Inthe schemeof thingsusheredin by the creationof internationaltribunals,al1sovereignties
are equally limitedandhave directly or indirectly given their consentto theirjurisdiction - albeit
that thisoffers only veryslenderhope for thevictimsof mass violence perpetrated elsewhere than
in the former Yugoslavia andRwanda. Itwill still take some time to set up the International
CriminalCourt and crimes committedprior to the entry into force of the treaty constituting that
Courtwillnot fa11withinitsjurisdiction.
It is because of this legitimatemistration that the victims and their counseland al1jurists
desirous ofprogress in the law have turned towards the possibilities openedup by the universal v
jurisdictionof national courts.026 Universaljurisdiction is not somethingcompletelynew. While traditionallyit has been
appliedtopiracy,ithasbeen extendedby agreement tovariousscourges,whichhauntsocietiesand
leavethemhelpless, suchas counterfeiting,dmgtraffickingandtenorism.
Inthe fieldof international crimes,it hashad its famousmoments,such as theEichmantrial
in Jerusalemin 1961. However,in lightof the circurnstancesin whichEichmanwaskidnappedin
Argentina,this caseillustratesthepractical limitsto the applicationof universalcompetence. The
factthatthe coercive act necessaryto capture theaccusedwas carriedout on foreignterritoryand
created an incident between the two countries,the fact that the State of Israel then chose to
apologizeto Argentinaandmakereparationforthe injurycaused, wouldtendto demonstraterather
the crucialnatureof theterritoriallink. Andwhile the Supreme Courtof Israelruledin favourof
the universaljurisdictionofl1Statesinrespectof crimesagainsthumanity,it wasableto do soon
the basisof the apprehensionof the accusedby an unlawfulact of forcerather thanby recourseto
legalproceedings. However,it is in HannahArendt'sbook, based onher experience ofthe trial
and,aboveall, inhercorrespondencewith Jaspers atthattime,thatonefindsdiscussedthe issuesat
stakesurroundingthe temtorial question. WhereasJaspers expressesdoubts as to thejurisdiction
of a tribunal to try offences committed in another tenitory, Arendt deploys a philosophy of
hurnanityand of the politicalcornmunitywhichis far lessstatist. Forher, universaljurisdictionis
merelya contingent instrumentforthe defenceofrights,whichistheultimategoal.
Irrespectiveofthe theoretical debate, universal competenci,troducedas a pnnciple in the
1949 Geneva Conventions concerninghuman rights in the event of armed conflicts, haslong
remaineda deadletter.
The renaissance of universaljurisdiction some years ago is due to reasons that 1 have
referredtoabove. Giventhat mass crimes havetakenon an internationaldimensionthroughthe
illicitadein arms,secretfundingandcriminalCO-operatiob netweencertaindictatorial regimes,it
was necessaryto deviseother meansto preventsuchcrimes. Stillfeelingits way, createdby the
process of globalization, universal jurisdictseeks to go beyondthe sovereigntyof a Stateto
reach the crirninalsharbouredby the State orwho are even sometimeslocated at the heart of the
State'spower. Thustheresponseto the abuseoftheprincipleof sovereigntywould beto transcend
it. But,can one constructthe newworldcriminallaw onsucha paradox,while worldsocietyis
i 027
not yet ableto demonstratethat itconstitutesa cornrnunityoflaw.
*
Weare enteringintomurkywaters.
As for international courts,their legitimacyis derivedeither fiom the body which created
b
them, or fiom agreementbetween States. However, whence cornesthe legitimacyof a national
court to prosecute foreignersfor acts comrnittedother thanon its nationaltemtory? Fromits own
law no doubt, but is that sufficient to found extra-territorial legitimacy, which is absolutely
indispensable? Surelynot. It is essentialthatdomestic legislationopeningthe way to universal
jurisdiction shouldbe compatiblewith the overalllogic of internationallawfromthe momentit is
introduced.
Thisisthe delicateissue whichlies at thevery sourceof the problemin the caseconcerning
theArrest Warrant of Il April2000. The DemocraticRepublicof the Congois not opposedto the
principle of universal jurisdiction. Belgium wronglyfears (as it Statesin paragraph2.74 of its
Counter-Memorial)that the Congo wants the Courtto rule against universal jurisdictionper se.
The Congois concerned hereonly with the sovereignequalityof States andthe mannerin which
this keyprinciple couldbeunderminedby the misplaceduseofuniversaljurisdiction.
The Democratic Republicofthe Congohasno disagreementwhatsoeverwithBelgiumabout
the fact that complementarity is necessarytoday between embryonic international criminal
jurisdictions and the limited effectiveness and universal jurisdiction of domestic courts.
Nevertheless,it still questions, asit did in its Mernorial,the compatibilityof Belgianlaw withthe
Statute of the InternationalCriminal Court (Articles 1 and 17). Belgium's Counter-Memorial
seems to confirm that where the Statute of the Court introduced complementaritybetween its
jurisdiction andthejurisdiction of national courts, Belgiumdetects insteadsubsidiarity,a form of
hierarchy whereby onlythose cases in which Belgium couldnot successfullybring proceedings
wouldbe lefito the InternationalCriminalCourt. Suchistheuniversaljurisdiction,whichBelgium
conferson itself,and suchis the universaljurisdictionwhichit has deployedagainst aMinister for -.
ForeignAffairsin officeof the Democratic Republicof the Congo. Thatis what is conteste4 and
notthe principleer se of suchjurisdiction. Mass violence constitutedby international crimes hasits origin in crumblingor depraved
028
sovereignty. Mustthe remedyaggravatethedisease? Shouldsomeadditional blow at sovereignty
be stmck? Thatisthe coreofthe theoretical problemraisedby this case. Forourpart,weconsider
thatsovereigntycan,andsometimesmust, belimitedbythe reachof internationallaw, whichneeds
to be developed as a matter of urgencyin that direction. This must not be done in a unilateral
mannerby one Stateatthe expenseof another.
The real test of the conceptof universaljurisdiction is the genuineuniversalizationof the
prosecution of crime. Further, that is precisely the meaning intended by those who draAed
Article146 of the Geneva Conventions. The idea was not that a single State should take
responsibility for prosecuting atryingal1international crimes.It was thatal1Statesshouldfulfil
their obligation toearch for, each on its own territory, the guiIV parties, so that there is no
temtory left wheretheycanescapejudgmentfortheir crimes.
That Statesshouldadvancein unisoninthis directionis thereforeessentialin orderto ensure
thatthe systemistmly effective. Equality and reciprocitare its cornerstones. Whatwould bethe
reaction of Belgium, ofFrance, or of any other powerful country, if a court in the Democratic
Republic ofthe Congohad accusedandprosecutedthe Head of Statein officeor the Ministerfor
ForeignAffairsin officeof Belgiumor ofFrance for crimesallegedlycommittedby themorunder
their orders or by their omission in Rwanda? Therecan be no proper discussionof this case
withoutposingthisquestion,whichisthe question ofthe sovereignequalityof States.
Before exarniningbriefly,and in moretechnicalterms, theproblematicaspectsof universal
competence, such as that whichBelgiumconferredupon itself andmade use of, 1 will summarise
the generalcomrnentsthat 1 havejust made bysayingthat Belgium,in rushingthroughthe stages
of a processwhichmayjust be beginning, has venturedrecklesslydown the radicallynewpath of
an internationalcriminal law without frontiers. Now, the logic of inter-State internationallaw,
whichstillproduceslegaleffects,has caughtup withit. II.OBLIGATIONSAND FREEDOMS
1 029
1comenow tothe need to set outwhat is commonground betweenthe Partiesand whatis
not. 1shallsurnrnarizethe answersofthe DemocraticRepublicof the Congoto thethree questions
t
whichmustbe askedin orderto resolveourdiscussion:
- Does contemporary internationallaw imposeon Statesan obligationof universaljurisdiction b
forthepurposeofprosecutinginternational crimes?
- Doesthis obligationalsoapplyifthe persons presumedguiltyarenot presentin thetemtory of
the prosecutingState?
- If it is not an obligationbut merely afieedom,under what conditionscan such a tieedom be
exercised?
Thereis no disagreement ofprinciplewith regardto the firstquestion. Yes, States dohave
an obligation of universal jurisdiction, which arisesin response to another obligation,that of
contributing to the suppression of international crimes. Naturally, however, there must be
identifiableroundsforthe latter obligation. .
Weshall nottakeup the Court's timeby re-openingthe questionof genocide,sinceit has no
bearingon'thiscase.
We shall merelySaythat Article 146of the Geneva Conventionsimposesa clear obligation
on al1Statesboth to enactappropriate legislationandto searchforpersonshavingcommittedgrave
breaches of the said Conventions. At this stage,1shall reserve formy next point the question
whether Article146 imposes an obligationto prosecutepersons not present in the territory of a
State.
We would add here that Article 5 of the 1984 ConventionAgainst Torture imposes an
obligationon States to establishtheir jurisdiction,albeit subjectto a number of conditionswhich
limitthe obligation.
Lastly,withregardto crimes against humanity,Belgiurncontendsthat a customarynom has
now been sufficientlycrystallizedfor it to besaidthat thereis an obligationforStatesto establish
-
their universal jurisdictionfor the purposes of prosecutingsuch crimes. Belgiurnrefers to the
documentscitedbeforethe Courtduringtheproceedingsonprovisional measures. TheDemocraticRepublicofthe Congo hasno intentionof discussing herethe existenceofa
f 030
custom whichis still emerging, justas it does not wish to appear to be placing obstaclesto the
emergenceof such a custom. Inits written pleadings,it has advanced two contentions only,
contentionswhich it maintains: the first is that, in respectof crimesagainst hurnanity,there is no
treatycreatingan obligationfor Statesto establishtheiruniversaljurisdictionfor thispurpose. The
second is that the factorscited by Belgium as constituting a customaryobligation donot extend
such anobligationto coversituationsin whichthe accusedpersons arenot present in theterritory
of the State. In paragraph3.3.13 of its Counter-Mernorial,Belgium reproduces a tmcated
quotation fi-om the pleadings of the Democratic Republicof the Congo, which allows it to
misrepresentthe position ofthe applicant State.
For the applicant State, thereis no evidence thatevery Statehas an obligation to punish
crimesagainsthumanity"evenwhen thoseaccused thereofare not presenton its tenitory". These
are the exact words usedin the Memorialof the DemocraticRepublic of theCongo, words which
need reiteratingsinceBelgium has omittedto do so. Thisbrings us to the secondquestion which
mustbe answered:
- When there is anobligationon States to exercise their universaljurisdiction, does such an
obligationextendto casesin whichthe suspectis notpresent in theterritoryof the State? Here
again, there is no disagreement between the Applicant State and the Respondent State.
Moreover,the Dernocratic Republic ofthe Congotakesnote of the factthat Belgiumdoesnot
claimthat it indictedthe Congo's Minister for ForeignAffairswhen hewas not presentin the
tenitory of Belgiumas a result of an obligation onBelgiumto do so. It is evident that the
obligationof States toextendtheir universaljurisdictionto encompassthepunishmentof some
international crimesdoes not go so far as to includesuch aneventuality. Neither legislation
nor practiceprovidesgroundsforsuchan extension.
Article146 of the Geneva Conventions, withoutbeing fully explicit, wouldappear to
confirmourview. It stipulatesthatthe StatesPartiesmustsearchfor, handoverorjudge theguilty
persons. ProfessorLombois reviewedthisprovisionin thefollowingcommentary:
"Whereverthat condition is not put into words Fe writes (the condition being
the presenceof thesuspectin thetenitoh)] it mustbe takento be implied: how could
a State searchfor a criminalin a territoryother than its own? How could it hand a criminalover if hewere not presentin its temtory? Both searchingand handingover
presuppose acts of restraint, linked to the prerogatives of sovereign authority, the
spatiallimitsof whichare constitutedbythetemtory."
It is thereforeindeedthe logicof international lawwhichpreventsthe obligationon a State t
to establish its universal jurisdiction for the punishment of international crimesfrom being
extended toencompassan obligation to exercise jurisdiction inl1cases, includingthose in which
the suspectisnot presentin itstemto~.
The Conventionon Torture (Art. 5, para. 2)explicitly Statesthat presenceis a necessity.
Moreover,the legislativeorjudicial practice ofStatesshowsthat in thegreatmajorityof casesthe
courts are not authorized to prosecute if the suspect'spresence in the temtory has not been
established. Whenthe Danish High Court,on 25Novernber 1994,had recoursetothe principleof
universaljurisdictionto prosecute andtry Refik Saric for war crimesin Bosnia,the accused had
takenrefugein Denmarkandthe condition ofpresencehadthus been met. As forFrenchlaw,the
conditionthat the perpetrators bepresentin French temtory triggeredwide-ranging debate atthe
timewhen Frenchcriminallegislationwas amendedto bring it into linewiththe provisions ofthe
Security Councilresolutions establishing theInternationalCriminalTribunals for ex-Yugoslavia
andforRwanda.
With the aim of making punishmenteffective, an amendrnent wastabled- and debated
withfervour --to broadenthejurisdictionofFrenchcourtsto coversituationswheretheperpetrator
was absent,thus allowingvictimsto have recourseto the French courts. In its Counter-Memorial,
Belgium paresdown those debates, citing onlyone of the argumentsput to the Charnberby the
French Minister,that relatingto thehreat of seeing theFrenchcourtsoverwhelmedas a resultof
the number ofcomplaints. Scrutinyof the verbatimrecords of the debatein the French National
Assembly revealsthat the Ministerdid not confinehimselfto that argument. He also referredto
thetemtonal logicwhichhas to date dominatedthe Frenchconceptofuniversaljurisdiction.
Suchterritoriallogic is found in Frenchcaselaw, whichdoes not deviatefiom the linethat
the perpetratorsof offencesmustbe presentin Francefor prosecutionto bepossible. c'
032 In ajudgment of 24 November 1994,in the Javor etautres case, the Paris Appeal Court
refused to establish its universal jurisdiction,since the conditionthat the perpetratorsbe present
hadnotbeen met. One ofthe grounds for the appealto the Court of Cassationwhichprolongedthat casewas
that any victim of an international crime shouldbe entitledto bring proceedings. The plaintiffs
contended thatit was for the courts hearing the caseto undertake the verifications necessaryin
orderto fmd out whetherthe accused wasor wasnot present in Frenchtemtory. In ajudgment of
26 March 1996,the Court ofCassation(CriminalChamber)refusedto bring a public prosecution
becausethe suspects had notbeen foundto be present in Frenchtemtoy. In the Boutersecase,
which Belgiurnappears to use to support its reasoning, the decision of the High Court of the
Netherlands of 18 September2001, which endedthe case, confirmed thatthe presence of the
accusedinDutchtemtory was alimiting conditionofuniversaljurisdiction.
Moreover,to seize on afew - very few(ten or so) - examplesof domesticlegislation,in
whichprosecutioninthe domesticcourtsisauthorizedunderdomesticlawevenif theperpetratoris
notpresent inthetemtory, is thatnot simplya diversiononBelgium'spart?
Belgiurnhas abandonedthe idea(Counter-Memonal,para.3.3.25) thatthere is an obligation
to exerciseuniversaljurisdiction extendingto situationsin whichthe perpetratoris not present in
thetemtory. It seeksto establishthatwhat remainsisthe fieedomto do so,andthat itavailed itself
of suchfieedom inapropermanner.
We will now rehun, and this is my lastpoint,to the necessity forsuchprosecutionto be in
conformitywithinternationallaw.
The DemocraticRepublicofthe Congo isnot seekingto debate outof contextthepurported
fieedom ofStates to extendtheir universal jurisdictionaswidely as possible.Belgiummaintains
that a universal social disorder must be met with universal punishrnent (Counter-Memorial,
para.3.3.53). And its representativeswritethatin sucha case"it isvain to try to farationeloci
limit in internationallaw for the punishment of crimes which are among those that offend the
conscience ofthe world". Thisimpulseis contagiousanditmayfirethe imagination.
Yet now Belgiurnitself is consideringa review of its legislation, and the cases currently
pending are to be submitted to the competentjudicial authorities forthem to decide whether a
temtorial link may be necessary- an issue on which the Belgian positionno longer seems so
assured. The fact is that we jurists on both sides and the States that we represent cannot,with the
world legalsystemas it is now, settle thisissue in a peremptorymanner. Statesdoubtless retaina
(I
fieedom, which they exercise in different ways according to their view oftheir responsibilities
regardingthe necessarypunishmentofinternational crimes. Iftheypush this fieedomtoits limits,
b
they may well run into difficulties. It is these that are at the heart of the third and lastpoint that
needstobe elucidatednow, andwhichis:
- the cm of the very real disputethat is submittedto the Courtfor decision. WhileStatesare
not obligedto extendtheir universaljurisdiction to situationsin which the perpetrator ofthe
offenceis absent,but retain the fieedomto do so, theymust usethat fieedomunder conditions
of strictqualityinterse - takingcarethat this doesnot violateany other sovereigntyor any
obligationarisingfiomthe applicationof internationallaw. Forthisis reallythewholepointof
the arguments of theParties seekingto establish the exactatureand scopeof the obligationto
assumeuniversaljurisdiction.
That this obligation exists in the case of certain crimesand when the guilty parties are
presenton the territoryofthe prosecutingStateis onething. Thefactthat this obligationdoesnot
extend,whetherby treatyor by custom,to the situation where the perpetratorof the offenceis not
present leavesroom for argument:the factthat no expresslywordedobligationto prosecute canbe
found wherethe offenderis absentmay open the way to a fieedomto prosecute whicheach State
mightuse as it pleased. Butthat also servesto showthat present internationallaw cannotgo so far
as to formulate an obligationto prosecutein such casesbecause its territorial foundationswould
bar it fiomdoing so.
Moreover, assumingthat each State does have fieedom in this area, account must also be
taken of the possible presence of another requirement of international law with which the
application of universaljurisdictionnabstentiawouldcomeinto conflict.
If universal jurisdictionin abstentiawere derivedfiom an obligation,we would be in the
'c.
presence of two conflicting noms: one requiring prosecution and, forexample, one preventing
prosecutionby reasonof immunity. An orderofprecedence wouldneedto be establishedbetween
them, andthisthe Court wouldhavetodoin orderto decidethedispute. Butthis would serveno purpose,sinceBelgiumagreeswiththe Democratic Republicof the
Congothat in the presentcase universaljurisdictionis a freedom,not an obligation. Butit is still
necessaryto check thatthe exerciseof that fieedom does not infiinge the sovereignty of another
State and is not a breach of an obligation foundedin international law. Otherwise there is no
alternativebut to findthatthe fieedomhas been exercisedwithoutdueconsideration.
That was the conclusion of the FrenchCourde cassationin the Khadaficase (Judgmentof
13March2001).
In that case, althoughthe crimeswere committed abroadand imputedto a foreigner,the
issue of the scope of the jurisdiction of the French courts causedno difficulty in so far as the
victirnswere French. But the judge7sjurisdictiondid not allow himto disregardthe rule that the
headsofforeign Statesareimmunefromsuit.
In the sameway, and althoughthe contextis very different,in the presentcase what should
have barred the arrest warrant issued withoutdue considerationby the Belgianjudge against the
incumbentMinisterfor Foreign Affairs ofthe ~emocraficRepublicof the Congo arenot the limits
on his jurisdictioner se, but the limitson hisjurisdiction,viewedin the context of international
law based on the territorial sovereigntyof States and in light of its conflict with a rule of
internationallaw to whichno exceptionwas applicable here. Thisis the rule that heads of State
and incumbent Ministers for Foreign Affaira sre immune fromsuit. It is true that it no longer has
the impregnablecharacterthat it onceenjoyedwhensovereigntywas an absoluteconcept. This is
to be welcomed,becausemany crimeshave been comrnittedin thename of sovereigntyandmany
criminals havebeenprotectedfortoo longby irnrnunitiesdivertedfiomtheirproperfunction.
Today international lawis constructingrestrictionson sovereignty,and thus exceptionsto
irnmunityfrom suit. Thisis not a cause forregret,for the protectionof individualsis the goalof
these developments. Itis to be hopedthat internationallaw willconsolidate on and extend its
endeavours in this regard. Doctrine can contribute to this, and States and international
organizationscan dotheirbesttoo.
However, Mr.President, Membersof the Court,the bestcanoftenbethe enemy ofthe good,
and for aState,in thenameof a humanitarianidealthat it assumesaloneas Atlasbore theworldon
his shoulders, to transfom its courts into agenciesof a justice without fiontiers and without regulation in defiance of the sovereignty of another State is something that the Democratic
Republicofthe Congo couldnotaccept. Thesearethetermsofthe veryrealdispute thatitasksthe
Courtto decideand inrespectofwhichit seeksredressfortheinjurythat ithas suffered.
Thankyou.
The PRESIDENT: Thank you Professor, and 1 now give the floor to
Professor Françoisigaux.
Mr. MGAUX: Thank you Mr.President. Mr.President, Membersof the Court, first 1
would like to revert briefly to the argumentson universaljurisdiction. You heard yesterdaythat
serious considerationis being given in Belgiumto approachingthe exercise ofthis jurisdiction
from a moral angleand making it subjectto criteria of ties with Belgiantemtory and Belgium.
And ProfessorChemillier-Gendreau hasjust stressed the importance of the possibility of the
accused being on national temtory, and even of the requirementthat he should be on national
territory. There is a procedural reasonfor this. How can'a case of this kind be investigated
properly, andwith due respect forthe rightsof the defence,in the absence ofthe accused? But
there seems to me a more fundamental reason. For a person accused of grave crimes under
internationallawto be abletolive peaceablywithin theterritory ofa Stateis a real affrontto ordre
publi c that State. A Statecannottoleratea situationwithinits territoryin whichan individual
can be the subject of grave accusationsof crimes under international lawand that Stateremain
powerlessas regardsthat accusation. Thereforethe conditionof presenceon the temtory appears
to me to be directly linked to a requirementof national ordrepublIt is not on behalfof a
O36
universal human cornmunitythat the State will prosecutethat individual; it is because of the
affrontto thattate's ordrepublithat wouldresult fromthe ability of an individualaccusedof
seriouscrimes to "live the life of R-leif 1may use a somewhat colloquial expressi-n on
*
thetenitory of a democraticState.
ii
The second observationrelates to another criterion ofconnection: the nationality of the
victim. And1fearthat here againthe Counter-Memorialconfusestwo concepts: complainantand
victim. We are told, inwords or in writing,that five of the complainants inthe case at present
before the Court areof Belgiannationality. Butit is not the nationality of the complainantsthat matters; whatmatters and must be taken into accountis the nationality of the victims. So that the
principle of passive personaliw can operate,it must be shownthat a national of the State which is
exercising itscriminal jurisdiction hashimself been a victim of the act, in person. Moreover, 1
would add that compliance withthe rules of Belgianlaw relating to the filing of a civil complaint
would have rendered the complaint inadmissibleunless the complainant could show that he
himself, inperson,was a victim ofthe offence. Werethat notthe case,the way wouldbe opento a
kind of class action whereby anyone, by virtue of his nationality, could cornplain of a serious
violation of international law committed abroad. And so you see how without these two
elements- the location but also the nationality of the victim, and 1 stress, of a person who is
shown to be a victim-the court has no jurisdiction, where its jurisdiction is subject to the
principlesof passivepersonality.
I wishto make a second observationregardingthe differencebetweenthe statusof a member
of a foreigngovernmentandthat of diplomaticagents.
There has been talk in the press of a complaint broughtin Denmark against the arnbassador
of a foreignPower, and inthe caseof diplomaticirnmunity twoobservationsneed to be made.
The fmt is that it is limitedin spatialterms. Diplomaticimmunityprotectsthe diplomatonly
in the State to which he is accredited, whereas the immuniw of a member of a government is
effectiveworldwide.
I 037 The second observation concems the possible reactionof the territorial State. One of two
things: either a State seeks the accreditation as ambassador of a person against whom senous
charges are outstanding relating to crimesunder international law, and the temtorial State must
obviously and can then refuse its agrémentto that diplomat. Or, secondly, if after agrément has
been given to the diplomat, he is found to have committed or is accused of having committed
serious crimes under internationallaw, 1think that the only attitude consonant with international
law is for the territorial State to request the State whichhas sent that diplomat to recall him,
although it would obviouslybe contraryto intemational law to take advantage of his presence on
thenationalterritoryto chargehim, bring proceedingsagainst himand, if appropriate,takehim into
custody . 1shouldnow like to remind the Court- sincemy essentialtask this morningwas to talk
about the dispositif which the Congo seeks- of the terms of the claim as presented in the
#
Applicationinstitutingproceedings,in orderto demonstrate clearlyto the Courtthat therehas been
no changeintheapplicantParîy'spositionin thisrespect:
S
"The Courtisrequestedto declarethat theKingdomof Belgiumshall annulthe
internationalrrestwarrant issuedon 11April2000 by a Belgian investigatingjudge,
Mr. Vandermeersch,ofthe BrusselstribunaldepremièreinstanceagainsttheMinister
for ForeignAffairsin officeofthe DemocraticRepublicof the Congo,Mr.Abdulaye
YerodiaNdombasi,seekinghisprovisionaldetentionpending a requestfor extradition
to Belgium for alleged crimes constituting 'senous violations of international
humanitarian law', thatwarrant having been circulated by the judge to al1States,
includingthe Democratic Republicofthe Congo,whichreceivedit on 12July2000."
Mr.President, Members of the Court, we standby that initialapplication. Theonlyway of
remedyingthe insultto the Congo,the iniuriaas 1termedit yesterday,is to expungethe wrongiùl
act. And in this respect1wouldremindthe Courtthatwe are in fact dealingherewith a matterof
honour. The Court willbe aware thatin the past, whenan insult wasofferedto the honour ofan
individual,the solution was to fight a duel,and duellingwas practised for a long time even in
civilizedcountries. Similarly,in the caseof States, wherethere was a seriousinsultto the honour
of a State,it would seem thatthe onlypossibleresponse- and evenVitoria saysas much - was
war. Well, in this regard, we arenow living in a morepacific world,by no means totally so,of
course,but sometimesso in certainrespects. In the sarneway that,in the domesticlegalorder,a
person Whois the victim of defamationor an insultto his honour is no longer ableto have his
Q 3 8
accuserdoneawaywith, as used tohappenin Rome- and it was preciselyto put anendto such
violence,to this type ofprivatevendetta,that lawsuits came into beingin Romanlaw - the Court
is askedto intervenetoday. It is preciselybecausetherehas been an insult, aseriousinsultto the
honourof the DemocraticRepublicof the Congo,that the Court is requestedto award reparation
forthe moralprejudicewhichthe Congohas suffered.
It is arguedin the Counter-Memorialthat theCourt would exceedits authorityin seekingto 2
decide- andthat we ourselves areaskingthe Courtto decide- what action shouldbe takenby 2
Belgium within its own legalorder. This is not at al1what we ask. Belgium may satisfj as it
wishes, withinits domesticorder,the requestwe havesubmittedto the Court. Andno doubt there
arevariouswaysfor it to do so; actsincompatiblewithinternationallaw might be invalidatedby meansof a retroactivelaw. A judicial authoritymight decidethat such acts must be invalidated,
and there mightbe legislation to imposethat obligationon thejudicial authorities,werethere any
problemswiththe separationof powers. The choiceof meansisthus entirelya matterforBelgium,
andinthisrespect 1wouldreferto two Judgrnentsof theCourt, quotedinthe Counter-Memorialon
pages204 et seq. In the Haya de la Torre case, the Courtstated that it was unable "to give any
practicaladviceas to the variouscourseswhichmightbe followed with a viewto tenninating the
asylum,since,by doing so, itwould departfiom itsjudicial function". Similarly,in theNorthern
Cameroons case,and1quotetheJudgment ofthe Courtagain,repeatingwhatit saidintheHaya de
la Torre case, "the Court...cannot concemitself with the choiceamong various practicalsteps
which aStatemaytake to comply with ajudgment". Wealso accept,as counselfor theApplicant
has said, that once a judgment has been given the use made of it by the successfulparty is a
politicalmatter,not ajudicial one. •
Consequently, whatwe askthe Courtto do is exactly whatthe Courtis ableto do inkeeping
with itsownjurisprudencein the matter; in otherwords,we arenot in any senseaskingthe Court
to decidewhat Belgium shoulddowithin itsownlegalorder. Whatwe do askisthat:
Q 3 9 (1) TheCourt shouldfindthe issueofthearrest warrantto be incompatiblewithinternationallaw;
(2) Asthe logical consequenceof the anest warrant being deemedincompatiblewithinternational
law,Belgiumshouldtakethe appropriateaction,thenormalconsequenceobviously beingthat
the arrestwarrant shouldbe revokedand rendered of noeffect for the future, but also thatit
shouldbe revoked ab initiosincequiteevidently a void actis void abinitiaIt suffersfiom a
fundamentaldefect and thus 1 believe'thatthedispositiwhich we respectfullyrequest from
the Courtis fully withinits powers, andthat the Courtwill not exceed themin requestingor
orderingBelgiumto remedythe injuryto the applicantParty.
Mr. President, Membersof the Court,thankyou foryour kind attentionin this latter partof
this moming. Mr.President, 1believethat youcan thereforenow let us al1go, unlessthe Agent
stillhas afewwordsto Say.
ThePRESIDENT: Thankyou, Professor. May 1 askthe Agentif he has anythingto add, or
doesthismarkthe endof thehearingforthismorning? Mr. MASANGU-a-MWANZA: No, Mr. President, 1have nothing further to Sayat this
point.1willtakethe floorwhenourBelgianfiiendsspeakatthe endofthenextround.
$
ThePRESIDENT: Thankyou verymuch. Thesestatementsconcludethe firstround of oral
-
+
argumentof the Democratic Republic ofthe Congo. The oral proceedingsin this casewillresume
tomorrow,at 3 p.m.,to hear the Kingdomof Belgium. In the meantime, at12.30p.m. today,the
Courtwill hold a brief public hearing in another case,duringwhich Messrs.Joe Verhoevenand
James L. Kateka, the Judges ad hoc chosen by the DemocraticRepublic of the Congo andthe
Republicof Ugandarespectively,will make the solernn declaration providedforinArticle20 of
the Statute of the Court, in the case concerningArmedActivitieson theTerritoryof the Congo
(DemocraticRepublicoftheCongo v. Uganda).
i 040 Withthat announcement,thesittinginthis caseisnowclosed. Thankyou.
TheCourtroseat 11.50a.m.
Traduction