The International Federation for Human Rights (FIDH) noted, with surprise and regret, the decision rendered by the International Court of Justice on 14 February 2002. The decision found that juridictional immunity of a Minister of Foreign Affairs prevails over the individual criminal responsibility of perpetrators of grave violations of human rights, thus striking a blow to the rights of victims to take legal action.
The decision relates to an international arrest warrant issued in April 2000 by a Belgian judge against Abdulaye Yerodia Ndombasi, at the time Minister of Foreign Affairs for the Democratic Republic of Congo. It is alleged that Mr Yerodia held speeches inciting racial hatred, constituting serious violations of International Humanitarian Law. The proceedings are based on the doctrine of universal jurisdiction as defined by Belgian Law of 1993.
The ICJ considered that, according to Customary International Law; a Minister of Foreign Affairs enjoys immunity from criminal jurisdiction throughout the duration of his office and a total immunity from prosecution overseas. In this respect, the Court considered that there are no grounds to make a distinction between acts committed in an official capacity and those claimed to have been performed in a private capacity, nor between acts that were committed before or during the duration of office. According to the Court, that immunity extends to the most serious crimes including war crimes, crimes against humanity and genocide.
The decision is contrary to the recent evolution of International Criminal Law, defined particularly in the Statutes of the International Criminal Tribunals and the International Criminal Court. These Statutes do not recognise any jurisdictional immunity for the pepetrators of international crimes irrespective of their official nature.
This new obstacle undermines individual criminal responsibility for the most serious crimes and emphasises the urgency of the International Criminal Court’s establishment where there will be no prosecutorial immunity for perpetrators of international crimes, irrespective of the functions they perform.