ENFORCEMENT OF EXTRA-TERRITORIAL JURISDICTION AND DEFENSE OF IMMUNITY

ENFORCEMENT OF EXTRA-TERRITORIAL JURISDICTION AND DEFENSE OF IMMUNITY

Article 9 of United Nations Declaration on Human Right provided that: No one shall be subjected to arbitrary arrest, detention or exile. Individuals derive a form of immunity from this provision by international law. However, I intend to discuss the doctrine of immunity beyond the above provision, especially as it relates to government attorneys and representatives.

African Union  under the Chairmanship of President Robert Gabriel Mugabe,  held its 25th ordinary Session in Johannesbourg, South Africa with an Agenda of enhancing the economic, socio-political fortunes of member states. However, world attention shifted from these critical issues to International Criminal Court (ICC).

The ICC was established recently and heavily sponsored by the West. That the activities of this court regarding enforcement of extra-territorial jurisdiction has been causing stirs and ripples across the globe is no longer news. It has already left the world divided between those who support it and most African/third world countries who consider the court targeting them and so detest it. It may be an issue of perception since they are prosecuting war crimes most of which occur in the continent. But they cannot wish away the ICC, even if it a cruel necessity.

President Omar al-Bashir of Sudan, a retired military officer who fought a civil war that lasted about eight years is not the first leader to be so accused of war crimes and against humanity. President George Walker Bush (jr) was once accused  after the invasion of Iraq, Charles Taylor ofLiberia was also accused after their civil war and exile etc.  So when President al-Bashir was attending AU meeting in Johannesbourg an attempt was made to procure Arrest Warrant to arrest him.  A similar call was made by ICC while he was on AU mission in Nigeria. The Attorney-General called upon to obtain Arrest Warrant and detain him reportedly argued that he was not on a private visit. These attempts call for thorough examination of the state of international law on the issue. A case in point is Democratic Republic of Congo V. Belgium 2002 regarding arrest warrant issued for the arrest Congolese Foreign Minister.

Previous messagehttps://dub118.mail.live.com/ol/clear.gifThis warrant was issued by an investigating Brussels Judge on 11 April 2000 against the arrest of the current Foreign Minister of Democratic Republic of Congo, (DRC) Abdulaye Yerodia Ndombasi in 1998  who like, the South African Zulu King, Goodwill Zwelithini, was alleged to have incited racial hatred among Congolese that caused the death of hundred of  persons.

The charges before the court emanated from the breach of Geneva Convention 1- IV (1949); Geneva Convention Additional Protocol I &11 (1977). They were considered grave breaches against humanity.

Even though Belgians were not victims nor was Foreign Minister Ndombasi in their territory, Belgium law authorities commenced action under Belgium law of June1993. It must be noted that under those Geneva conventions the crimes were under Universal Jurisdiction, so Governments and Interpol were aware and on alert.

Under Belgium law it did not matter that Ndombasi was acting on official capacity when he committed the offence. Therefore, Belgium alleged that they had instructed Congolese authority to prosecute Minister Ndombasi in 2000. And they responded by filing an application at the International Court of Justice for the annulment of the warrant of arrest for two reasons supported by Article 2 UN Charter.

(a)DRC claimed mutual non-violation of state sovereignty,

(b)Principle of equality of sovereign states, and disputed Belgium’s claim of universal jurisdiction which violated those two principles against DRC.

(2) DRC further argued that the warrant of arrest disregarded the current Foreign Minister’s immunity under customary international law.

(3) DRC also argued for the application of Art 48 of ICJ statute which provides for interim (provisional) measures of protection) to alleviate Mr. Ndombasi predicament who had been crippled from performing his duty as Foreign Minister.

When this application came up for hearing in November 2000 the attention of the Court was called to the effect that Mr. Ndombasi was no longer DRC’s Foreign Minister consequently Belgium applied for the case to be delisted since it has been rendered moot when he ceased to be Minister. However on December 8, 2000 the court ruled against granting interim measure to the Minister who now have been  transferred to another government function not involving frequent Foreign travel. But the warrant was still in force and therefore the case was not rendered moot.

In her submission in May 2001 DRC rescinded her argument against Belgium’s universal jurisdiction but pressed on her argument that Belgium had violated her rights under customary international law as regards Foreign Minister Ndombasi’s inviolability and immunity from criminal jurisdiction. And so requested the ICJ to so hold.

DRC further submitted that the violation of customary international law on which the warrant of arrest was based prevented any state including Belgium from enforcing it. Therefore Belgium was urged to recall and cancel the warrant of arrest and thereafter notify international community.    

Belgium on its side raised 4 objections against the ICJ jurisdiction to entertain the case. It also went ahead to invoke the doctrine of non-ultra petita with regards to the dropping of DRC’s claim that Belgium had wrongly conferred on itself Universal Jurisdiction as being of less importance.

Jurisdiction: Delivering judgment on 14th February 2002 the ICJ said it assumed jurisdiction based on the declarations of both parties pursuant to Art 36(2) ICJ Statute. (International Courts and Tribunas Jurisdiction and Admissibility of Inter-State Applications). It therefore rejected the 4 grounds of objections raised by Belgium. And the Court noted that those objections were based on the fact that Mr Ndombasi had ceased to be Minister.  The court assumed jurisdiction at the time of filing the case regardless of subsequent events. Even though the case became moot, however it did not take away the jurisdiction of the court on whether the issue and circulation of warrant of arrest was contrary to international law.

The Court further ruled that the date for assessing the admissibility of a case and whether it revolves on diplomatic protection was the date of filing the application.

However, the Court admitted that the doctrine of Non Ultra petita barred it from considering whether Universal Jurisdiction was in conformity with international law. But the Court felt not bound by anyone to consider if anyway.

ICJ considered the critical question of whether Minister was entitled to full immunity from criminal prosecution under Customary International law during this tenure as a Minister as submitted by DRC.

Belgium objected to acts of the Minister before his assumption of office because immunity cannot be taken for impunity; only acts in official capacity should attract immunity.

The ICJ further held the immunity of DRC Foreign Minister was not defined by international treaties. However, by analogy it noted that the New York Convention on Special Mission 1969; Vienna Convention on Diplomatic Relations 1961 provided guide to some aspect of immunity. But noted that Foreign Ministers enjoy full immunity under Customary international law to enable them perform efficiently well, since they represent their government as attorneys/negotiators in international arena. It was the view of the ICJ that Foreign Ministers acts should enjoy full immunity from criminal prosecution beyond official functions; but it certainly did not include those acts committed before assuming office.

The ICJ considered Belgium’s argument that official toga should not be a barrier for arresting a Minister or government agent that has committed war crime or crimes against humanity which Omar al-Bashir is accused of. Statutes were used to corroborate this argument including decided cases such as: Boeru V. Gaddafi, French Highest Court of Ordinary Jurisdiction- Paris March 2000; Regina V. BOW Street Metropolitan Stipendiary Magistrate, ex-parte Pinochet UK, House of Lords, 24 March 1999.

The Court noted that nothing in the Statutes and cases quoted above indicated any exception under Customary International law to the immunity of Foreign Minister. However its non-applicability in international Courts  does not necessarily follow suit in local Courts. In addition the cases were not binding precedents on immunity suits before local Courts and so in the Court’s opinion Belgium lost the argument. The ICJ ruled that extradition treaties imposed on States signatory to them does not take away the full immunity granted to foreign Minister under Customary International Law.

It noted the procedural nature of immunity which it observed did not amount to impunity since criminal responsibility is a substantive law. There, the immunities enjoyed by Foreign Ministers did not bar Criminal prosecution in four situations:

(i) If they are prosecuted in their own States.      

(ii) If their States waive their immunity.

(iii) If they cease to hold office with regards to facts committed prior or subsequent to their term of office, or during their term of office in a private capacity.

(iv) Before certain international criminal courts where they have jurisdiction such as ad hoc tribunals for Yugoslavia and Rwanda (International Criminal Tribunal for the former Yugoslavia ICTY) (International Criminal Tribunal for Rwanda ICTR) and (International Criminal Court ICC) by 13 votes to 3.

The ICJ therefore ruled that since Mr. Ndombasi did not fall within the four exceptions listed above, the mere issuance of an arrest warrant together with its international circulation violated his immunity as a frequent traveler on official duties.

It was also decided by 10 votes to 6 that Belgium should cancel the warrant of arrest and notify international community that received the circulation, even as the Foreign Minister had ceased to be in that office before the judgment.

There were 4 separate dissenting opinions on Immunities and Universal jurisdiction (extraterritorial jurisdiction).  The deduction from the case is that Omar al-Bashir could not have been arrested anyway.

Iyke Ozemena

IKECHUKWU O. ODOEMELAM & CO

Corporate Attorneys/Consultants.

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