CAN ONE NATION ARREST THE FOREIGN MINISTER OF ANOTHER?
The World Court Says No

By MICHAEL C. DORF

Wednesday, Feb. 20, 2002

Last week, the International Court of Justice (ICJ), the principal judicial organ of the United Nations, issued an important ruling in the case of Democratic Republic of the Congo v. Belgium. While the decision was overshadowed by proceedings in a different Hague tribunal - the trial of Slobodan Milosevic in the International Criminal Tribunal for the former Yugoslavia - it is nevertheless quite significant from the standpoints of international human rights law and international relations.

The case arose when Belgium issued an arrest warrant for Abdulaye Yerodia Ndombasi - the then-Foreign Minister of the Congo. The Congo argued, and the ICJ ruled in last week's decision, that Belgium's warrant had violated international law.

It turns out that, for reasons I explain below, the decision will not have much practical impact on the fate of Mr. Ndombasi. However, its potential long-term implications for international diplomacy and so-called "universal jurisdiction" to prosecute human rights violations are far-reaching.

The Charge Against Ndombasi: War Crimes and Crimes Against Humanity

In August 1998, Ndombasi, who was then presidential secretary of the Congo, made public statements denouncing the invasion of his country by soldiers from neighboring Rwanda. Ndombasi referred to the Rwandan soldiers, nearly all of whom were members of the Tutsi tribe, as "vermin" and "microbes" that "must be methodically eradicated."

Given the history of tribal violence in Rwanda, Burundi, and the Congo, Ndombasi's statements were likely to inflame his countrymen, spurring them to violence. The statements did just that - causing the massacre of hundreds of Congolese citizens who happened to be Tutsi.

In April 2000, the Belgian government issued a warrant for Ndombasi's arrest on charges of war crimes and crimes against humanity arising out of his incitement of racial hatred. Belgium publicized the warrant, urging other nations to arrest Ndombasi should they find him within their jurisdiction.

Prosecutions By Any State For Human Rights Crimes Anywhere

What is Belgium's connection to Ndombasi's acts in the Congo? The Congo was once a Belgian colony. Indeed it was the personal property of Belgian King Leopold II. Belgian colonial rule was brutal. (Joseph Conrad's Heart of Darkness provides a flavor of just how brutal.) As Belgium played a substantial role in creating and fueling the tribal animosities that have plagued central Africa for over a century, one might think that Belgium bears some responsibility for the dire situation today.

However, Belgium did not seek Ndombasi's arrest out of a sense of obligation to its former colony - or at least not solely out of such a sense. Rather, Belgium sought to exercise universal jurisdiction, the asserted right of any nation-state to bring prosecutions in its domestic courts against persons charged with serious human rights violations anywhere in the world. Pursuant to that same universal jurisdiction, Belgian officials have instituted a criminal investigation against Israeli Prime Minister Ariel Sharon in connection with the 1982 massacre of Palestinian refugees by Lebanese Christian militias.

Nor is Belgium alone in asserting universal jurisdiction. Spain and Great Britain proceeded against former Chilean dictator Augusto Pinochet before he was eventually returned to Chile for health reasons. And recently, judges in several countries have begun investigations into Henry Kissinger's alleged role in human rights violations in Argentina and Chile in the 1970s.

The Ruling in Congo v. Belgium

After Belgium issued its arrest warrant for Ndombasi, the Congo sued Belgium in the ICJ, claiming that Belgium had violated a rule of international law that gives heads of state and foreign ministers immunity from arrest while they hold office. Of crucial importance, the Congo argued, was the fact that when the warrant was issued, Ndombasi was serving as Foreign Minister of the Congo.

The Congo argued that the possibility of criminal prosecution in any country in the world deters the extensive travel in which foreign ministers must engage to achieve the vital purposes of international diplomacy. Accordingly, the Congo claimed, international treaties and customary international law should be interpreted to give foreign ministers and heads of state immunity from prosecution while they serve in office.

The Congo's argument was similar, in some respects, to the argument made by President Clinton in the Paula Jones case. Clinton argued that a President should not have to defend a civil lawsuit while in office because it would interfere with his official duties.

The U.S. Supreme Court unanimously rejected Clinton's immunity claim in the 1997 decision in Clinton v. Jones. The Justices found no merit in Clinton's prediction that permitting the Jones case to proceed during his tenure in office would impose an "unacceptable burden on the President's time and energy." In retrospect, that judgment is subject to considerable doubt.

Ndombasi's immunity claim fared better in the ICJ than Clinton's immunity claim fared in the U.S. Supreme Court. The ICJ ruled in favor of the Congo, finding immunity. It reasoned "that the functions of a Minister for Foreign Affairs are such that, throughout the duration of his or her office, he or she when abroad enjoys full immunity from criminal jurisdiction."

Under the ICJ ruling, this immunity applies regardless of whether the acts charged were committed in a private or official capacity, and regardless of whether they occurred before or after the foreign minister assumed office. Moreover, so important is the smooth functioning of international diplomacy that the ICJ rejected the Belgian suggestion that there might be an exception in the case of war crimes or crimes against humanity.

Ambiguities in the ICJ Ruling

The scope of the immunity the ICJ recognized is ambiguous in two respects. First, it is unclear whether the ICJ's ruling applies to civil lawsuits. That could be significant - in part because the United States has a statute that authorizes such lawsuits.

To be more specific, America's Alien Tort Claims Act confers jurisdiction on federal courts to hear civil claims by aliens alleging human rights violations by other aliens on foreign soil. For example, in Kadic v. Karadzic, the U.S. Court of Appeals for the Second Circuit permitted a lawsuit by a group of Bosnian plaintiffs against the titular head of the self-proclaimed Bosnian Serb republic of Srpska. (Because Srpska was not a state recognized by the United States or the international community, the court rejected defendant's claim of head-of-state immunity under U.S. law.)

After Congo v. Belgium, do national courts have to dismiss cases like Kadic if the defendant is a foreign minister? The ICJ's ruling does not speak to the question, but the rationale of the opinion - facilitating the ability of foreign ministers to travel around the world - would suggest that foreign ministers enjoy immunity against civil, as well as criminal, cases.

It is also unclear whether the immunity applies to persons other than foreign ministers and heads of state. If the goal is the protection of the institution of international diplomacy, then why not extend immunity to ambassadors? How about embassy and consular staff? Language in the ICJ opinion focuses on the concentration of power in a foreign minister, but one can also see threats to the conduct of diplomacy from legal actions against lower-level officials.

Immunity, Not Impunity: Four Important Limits on Immunity

Should foreign ministers who have violated human rights think they can now trot the globe freely? The answer is no. The ICJ placed four significant limitations on its own ruling.

First, the immunity does not apply in a person's home country. If the home country permits criminal trials of the sitting foreign minister or head of state, international law is no obstacle.

Second, a state may waive the immunity, over the objection of an individual. The immunity exists to benefit states, not the persons who happen to represent states. Accordingly, it is the state, not the person, who can decide whether to assert or to waive it.

Third, a foreign minister's immunity only applies to trials by foreign states. Thus, where multilateral treaties and other instruments purport to supersede immunity from prosecution, the decision in Congo v. Belgium - which was based on the rules of customary international law - does not override their explicit language. That means that Congo v. Belgium poses no obstacle to the proceedings of the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, or the coming International Criminal Court

Fourth and most importantly, immunity from prosecution only applies while a person holds the office of foreign minister or head of state. Once he leaves office, he is fair game. As the ICJ explained, "the immunity from jurisdiction enjoyed by incumbent Ministers for Foreign Affairs does not mean that they enjoy impunity in respect of any crimes they might have committed."

Accordingly, because Ndombasi no longer serves as foreign minister of the Congo, the ICJ's ruling provides him no real protection. Belgium's current arrest warrant for Ndombasi must be revoked because it was invalid when issued. But nothing in the ICJ decision prevents Belgium from issuing a new arrest warrant for him immediately after revoking the first.

This feature of the ICJ opinion may make it seem irrelevant. Indeed, one might even think the ruling perverse. It disfavors those who hold time-limited positions within democratic regimes, as compared to those who serve lifetime or longtime dictators, who may enjoy lifetime or longtime immunity. And by making immunity turn on whether an alleged violator of human rights holds high office, the decision creates an incentive for such a person to hang onto power for as long as possible.

However, the ICJ was right not to give any serious attention to this last point. Tyrants and thugs almost invariably wish to hold onto power regardless of the rules of international law. Given the many limits on the immunity the ICJ recognized, the benefits to international diplomacy that come from Congo v. Belgium outweigh any competing costs to the principle of individual responsibility that is the hallmark of international human rights law.


Michael C. Dorf is Vice Dean and Professor of Law at Columbia University.

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