War Crimes

• Author: International Law Group

In April 2000, a Belgian investigating judge issued an "international arrest warrant in absentia" against Mr. Abdulaye Yerodia, the Minister for Foreign Affairs in office of the Democratic Republic of the Congo ("the Congo").

It charged Mr. Yerodia as having been a perpetrator or co-perpetrator of offenses constituting grave breaches of the Geneva Conventions of 1949 and of the Additional Protocols thereto, and with crimes against humanity. Interpol circulated the arrest warrant internationally.

The extraterritorial crimes with which Mr. Yerodia was charged were punishable in Belgium under the Law of 16 June 1993 "concerning the Punishment of Grave Breaches of the International Geneva Conventions of 12 August 1949 [6 U.S.T 3114, 3217, 3316, 3516] and of Protocols I and II of 8 June 1977 Additional Thereto," as amended by the Law of 19 February 1999 "concerning the Punishment of Serious Violations of International Humanitarian Law" (the "Belgian Law"). Five months later, the Congo began proceedings in the International Court of Justice to challenge the issuance and circulation of that warrant. Soon afterwards, the Minister left his post.

The pleadings alleged that Belgium (under the general rubric of "universal jurisdiction") was improperly trying to extend its authority to the territory of another sovereign state, that it had violated the principle of the sovereign equality among all Members of the United Nations set forth in Article 2, para. 1 of the Charter, and finally that it had infringed the diplomatic immunity of a Minister of a foreign state recognized in Article 41 of the Vienna Convention of 18 April 1961 on Diplomatic Relations, 23 U.S.T. 3227, T.I.A.S. 7502, 500 U.N.T.S. 95.

Since the Congo devoted its arguments solely to the immunity issue, the ICJ takes up that question. None of the conventions dealing with immunities specifically addresses those that Ministers for Foreign Affairs may enjoy, hence the Court has to decide the question as a matter of customary international law.

The law of nations accords immunities to Ministers of Foreign Affairs not for their personal benefit but to advance the effective performance of their official functions. After analyzing the functions of this office, the Court concludes that, while in office, a Minister for Foreign Affairs enjoys full immunity from criminal jurisdiction and inviolability against any attempt by a foreign nation to exercise power over the Minister that would hinder him in...