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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