(1) The full text of the judgement (including separate and dissenting opinions) is available on the International Court of justice website: www.icj-cji.org under the heading “decisions”.Google Scholar

(2) Mr. Yerodia is accused of having pronounced speeches inciting racial hatred in 198, when he had not yet taken office as Minister for Foreign Affairs.Google Scholar

(3) Article 7 of the Belgian law establishes that Belgian Courts shall have jurisdiction over alleged violation of the most serious violations of international humanitarian law regardless of where they are committed (1), regardless of the nationality or legal status of either the victim or the accused (2) and regardless of the presence of the accused on Belgian territory (3).Google Scholar

(4) See Separate Opinion of Judges Higgins, Kooijmans and Buergenthal (para.17).Google Scholar

(5) The question of universality of jurisdiction over the most serious crimes under international law (the so-called core crimes) and the question of the application of immunities are - in the present case as well as in similar ones -inextricably linked and the Court seems to have lost a very important occasion to pronounce on such a combine of crucial issues. See the Separate Opinion of President Guillaume (para.1); Separate Opinion of Judges Higgins, Kooijmans and Buergenthal (para. 2); Dissenting Opinion of Judge Van den Wyngaert (para.4); Individual Opinion of Judge Rezek (para. 3)Google Scholar

(6) “The consequences of such impediment to the exercise of those official functions are equally serious, regardless of whether the Minister for Foreign Affairs was, at the time of arrest, present in the territory of the arresting State on an ‘official’ or private’ visit, regardless of whether the arrest relates to acts allegedly performed before the person became the Minister for Foreign Affairs or to acts performed while in office, and regardless of whether the arrest relates to alleged acts performed in an ‘official’ capacity or a ‘private capacity.” (para.55).Google Scholar

(7) One must not underestimate that the extent to which heads of State enjoy immunities is not totally undisputed.Google Scholar

(8) North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Judgement (1969), para. 77, ICJ Reports 1969, p.44; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),Judgement (1986), paras.183-186 (available on the ICJ website). See on this point the Dissenting Opinion of Judge Van den Wyngaert (paras. 12-13.)Google Scholar

(9) As the ICJ itself has authoritatively affirmed in the past: “It is of course axiomatic that the material of customary international law is to be looked for primarily in the actual practice and opinio juris of States, even though multilateral conventions may have an important role to playing recording and defining rules derived from custom, or indeed in developing them”, Continental Shelf (Libyan Arab Jamahiriya v. Malta), para. 27, ICJ Reports 1985, pp.29-30.Google Scholar

(10) This is the only conventional text expressly conferring immunities to Foreign Ministers. The text is not applicable to the present case because it was not ratified by the parties.Google Scholar

(11) “Although it may well be that a head of State, when on a private visit to another State, still enjoys certain privileges and immunities, it is much less likely that the same holds true of heads of Government and foreign Ministers. Although they may be accorded special treatment by the Host State this is more likely to be a matter of courtesy and respect for the seniority of the visitors, than a reflection of any belief that such treatment is required by international law”, Sir Arthur Watts, The Legal Position in International Law of Heads of States, Heads of Governments and Foreign Ministers, Collected Courses of the Hague Academy of International Law, 1994 (III), Vol. 247, p.109.Google Scholar

(12) See the Dissenting Opinion of Judge Al-Khasawneh, passim. See also Sir Watts, supra, p.107.Google Scholar

(13) This opinion is expressed in may of the Separate and Dissenting opinions appended to the judgement, see Separate Opinion of Judges Higgins, Kooijmans and Buergenthal (pars.79-82); Dissenting Opinion of Judge Van den Wyngaert (paras.24-28); Dissenting Opinion of Judge Al-Khasawneh, passim.Google Scholar

(14) “Furthermore, most norms of international humanitarian law, in particular those prohibiting war crimes, crimes against humanity and genocide, are also peremptory norms of international law or jus cogens, i.e. of a non-derogable and overriding character”, Prosector v. Kupreksic (ICTY), 20 January 2001, para.52. See also Prosecutor v. Furundzija, 10 December 1998, paras. 153 ff.; Prosecutor v. Delalic, 20 February 2001, para.172; Prosecutor v. Krstic, 2 August 2001, para. 541.Google Scholar

(15) According to Lord Browne-Wilkinson the prohibition of torture “has evolved into a peremptory norm of jus cogens, that is a norm that enjoys a higher rank in the international hierarchy than treaty law and even ‘ordinary customary’ rules', Regina v. Bartle and the Commissioner of Police for the Metropolis and Other, Ex Parte Pinochet (On Appeal from a Divisional Court of the Queen's Bench Division); Regina v. Evans and Another and the Commissioner of Police for the Metropolis and Others, Ex Parte Pinochet (On Appeal from a Divisional Court of the Queen's Bench Division), 24 March 1999.Google Scholar

(16) Bassiouni, C., Crimes against Humanity in International Criminal Law, 1999, p.210 ff.; J. Dugard (appointed as expert by the Amsterdam Court of Appeal in the Bouterse case), Opinion: in Re Bouterse, para.4.5.6, available at www.icj.org/objectives/opinion.htm.Google Scholar

(17) “It would be senseless to argue, on the one hand, that on account of the jus cogens value of the prohibition against torture, treaties or customary rules providing for torture would be null and void ab initio, and then be unmindful of a State say, taking national measures authorising or condoning torture or absolving its perpetrators through an amnesty law (…)It would seem that other consequences include the fact that torture may not be covered by a statute of limitations”, Prosecutor v. Furundzija (ICTY), 10 December 1998, “, paras. 155 and 157.Google Scholar

(18) “Questions concerning international accountability for war crimes and crimes against humanity and that were not addressed by the International Court of Justice include the following. Can international accountability for such crimes be considered to be a general principle of law in the sense of Article 38 of the Court's Statute? Should the Court, in reaching its conclusion that –there is no international crimes exception to immunities under international law, not have given more consideration to the factor that war crimes and crimes against humanity have, by many, been considered to be customary international law crimes ? Should it not have considered the proposition of writers who suggest that war crimes and crimes against humanity are ius cogens crimes, which, if it were correct, would only enhance the contrast between the status of the rules punishing these crimes and the rules protecting suspects on the ground of immunities for incumbent Foreign Ministers, which are probably not part of ius cogens?”, Dissenting Opinion of Judge Van den Wyngaert (para. 28).Google Scholar

(19) As to State immunity from the jurisdiction of foreign States, A. Cassese holds that peremptory norms may impact on it, in that they may remove such immunity, A. Cassese, International Law, 2001, p. 145.Google Scholar

(20) Article 7 of Statute of the Nuremberg International Military tribunal provided that: “The official position of the defendants, whether as Heads of States or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment”. From the onwards, the irrelevance of official capacities has been regularly restated, both at the international and national level. It was enshrined in Article II (4) (a) of the 1945 Control Council Law No. 10, in Article IV of the 1948 Genocide Convention, in Principle III of the Nuremberg Principles adopted in 1950 by the United Nation General Assembly, in Article III of the 1973 Apartheid Convention and, more recently, Articles 7 (1) and 6 (2) of the Statutes of ICTY and ICTR and in article 27 (1) of the International Criminal Court Statute. For a comment see P. Gaeta, «The Irrelevance of Official Capacities and Immunities », forthcoming in Commentary to the ICC Statute, edited by A. Cassese A., P. Gaeta and J. Jones.Google Scholar

(21) Attorney General of the Government of Israel v. Adolf Eichmann (case N° 40/61), District Court of Jerusalem, in Int. Law Reports, vol.36, pp.18-276; see also the judgement of the Supreme Court of Israel (case N° 336/61, 1961), ibidem, pp.277-342.Google Scholar

(22) This is confirmed also by the fact Mr Yerodia was not holding a ministerial post at the time of the alleged facts.Google Scholar

(23) In this respect the Dissenting opinion of Judge Van den Wyngaert is not to be shared. She points out that there is no point in making such a distinction when a State official is charged with war crimes and crimes against humanity (paras. 29-33), because there's no possible claim of immunities in respect of these crimes. It seems more appropriate instead to precisely know the difference in order to better establish the respective limits to their application.Google Scholar

(24) There is a different rationale underlying functional and personal immunities. While immunities ratione materiae protect the par in parem non habet imperium principle, that is to say State sovereignty; immunities ratione personae preserve the effective performance of functions exercised by different state organs (diplomatic agents for instance), or in other word the ne impediatur legatio principle: once the functions are terminated there's nothing left to protect.Google Scholar

(25) According to the Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, international crimes may never be considered as official acts because they are not normal state functions nor acts that can be performed by a State alone (para. 85), but their reasoning as well does not sound convincing.Google Scholar

(26) It is also surprising that the Court made practically no reference to the rule contained in the Rome Statute on the establishment of the International Criminal Court (ICC), which is about to entry into force. According to Article 27 (2) of the ICC Statute, personal immunities cannot be invoked - as it is obvious to some extent since it is an international tribunal - before the ICC. In principle however, they could bar the execution of an arrest warrant issued by the Court because States parties could be requested to co-operate with Court and, in doing so, they could violate their legal obligations as to personal immunities. The issue is dealt with by article 98 (1) which establishes that a waiver of immunity is a necessary condition to the execution of arrests or transfers only in those cases where the requested State is internationally obligated toward a State that is not party to the Statute. To put it differently, among State parties to the ICC there is an implicit waiver of personal immunities in case a state is requested to arrest or transfer a serving State official to the Court (even if he's a serving head of State). Of course this holds true only as cooperation between State parties and the ICC is concerned and does not have any bearing on the status of customary international law. Nonetheless it is a significant treaty exception to the rule according personal immunities and it attests the growing trend towards a more and more restrictive approach to the application of immunities in case of charges of war crimes and crimes against humanity.Google Scholar

(27) In this sense see the Separate Opinion of Judges Higgins, Kooijmans and Buergenthal (para.75 ff.)Google Scholar