IMMUNITY FROM JURISDICTION: RULING AND FORMER HEADS OF STATES (PART II)

Although the Court only referred to the ICJ’s Arrest Warrant case in one paragraph, it is obvious from the arguments put forward in
Taylor’s application that the importance of the distinction between national and international courts for the immunity issue was derived predominantly from that case. It is therefore of paramount importance, to recap the ICJ’s relevant considerations. When one also compares the case of Charles Taylor (former Liberian president) with that of the Arrest Warrant Case of Yerodia Ndombasi (Minister for Foreign Affairs of Democratic Republic of Congo) at the time of indictment by a Belgian court, it is always important to consider the following basic points. First, both were incumbent officials: Yerodia Ndomsi Minister for Foreign Affairs, Charles Ghanky Taylor Head of State. In the Arrest Warrant case, the ICJ found that “immunity for a Minister for Foreign Affairs from jurisdiction in other states is firmly established in international law”. 

            Second, both Yerodia and Taylor were indicted for war crimes and crimes against humanity. In Yerodias Arrest Warrant case Belgium had contended that “while in general Ministers for Foreign Affairs enjoy immunity, they do not when suspected of having committed war crimes and crimes against humanity”. However, from state practice (case law and national legislation) the court could not deduce such a rule, nor from the rules concerning the immunity or criminal responsibility of persons having an official capacity contained in the legal instruments creating international tribunals. The later rules apply to only specific international tribunals and could not lead to a conclusion that the same rules may be applicable in national courts. The decisions of these courts would not lead to a different conclusion either, because they do not deal with the question of the immunities of incumbent Ministers for Foreign Affairs before national courts where they are accused of having committed war crimes or crimes against humanity. At this point, the ICJ made the “critical distinction between the situations of Yerodia and Taylor. Yerodia was prosecuted by a national court (Belgian); Taylor by an international Court (the special Court)”.

         Having discarded Belgium’s argument, the ICJ was probably aware of the consequences of this finding (immunity for incumbent officials even though they are accused of international crimes), continued with a soothing remark: “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, irrespective of their gravity” (S. Nouwen). The court enumerated four situations in which immunity and impunity do not go together. Whilst these considerations were for Yerodi’s situation “obiter dicta”, Taylor’s case one of them became crucial as it provided the special Court with the key to distinguish the two cases. Although the Court only referred to the ICJ’s Arrest Warrant case in a single paragraph, “it is obvious from the arguments put forward in Taylor’s application that the importance of the distinction between national and international courts for the immunity issue was derived predominantly from that case”. The courts in both these cases avoided the question as to where in international law that immunity has been so firmly established and immediately turned to the extend of the immunities enjoyed by such a Minister. In Taylor’s case, the principle of immunity is even more firmly established in customary international law and is not questioned. “The immunities enjoyed by a Minister for Foreign Affairs attach a fortori to the Head of State, as the state’s representative par excellence” (A Watts). According to the ICJ:  “An incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts where they have jurisdiction”. Apparently, in the view of the Special Court for Sierra- Leone this circumstance was the decisive distinction between Yerodia’s and Taylor’s situation hence it could come to an opposite result as the ICJ. Whereas Yerodia had been entitled to immunity at the moment he was indicted, Charles Taylor was not.

  The second type of immunity is Personal immunity or immunity ration personae. This is immunity granted to certain persons in their official capacity whiles serving governments. It is the type of immunity granted because of the office they hold rather than the act committed. In the case of the Democratic Republic of Congo versus Belgium, the court observed at the outset that in international law it is firmly established that, as also diplomatic and consular agents, certain holders of high-ranking office in state, such as the Head of State, Head of Government and Foreign Affairs Minister, enjoys immunities from jurisdiction in other states, both civil and criminal. The court further ruled that for the purpose of this case, it is only the “immunity from criminal jurisdiction and the inviolability of an incumbent Minister for Foreign Affairs that fall for the court to consider”.

     A consideration of certain number of treaty instruments that were cited by the parties in that regard, including the Vienna Convention on Diplomatic Relations of 18 April 1961 and the New York Convention on Special Missions of December 1969 was also made by the court. These conventions provide useful guidance on certain aspects of the question of immunities, but from an elaborative perspective, do not contain any provision specifically defining the immunities enjoyed by Ministers for Foreign Affairs. It is consequently on the basis of customary international law that the international criminal courts should decide the questions relating to immunities to head of states in all such legal complexities.

An incumbent or former Minister for Foreign Affairs could therefore be subjected to criminal proceedings before certain international criminal courts, where they have jurisdiction. Apparently, in the view of the Special Court for Sierra-Leone such a circumstance was the decisive distinction between Yerodia (Former Prime of Congo) and Charles Taylor (Former President of Liberia) hence it could come to an opposite result as the ICJ. Whereas Yerodia had been entitled to immunity at the moment he was indicted, Taylor was not as the special courts for Sierra-Leone is an international court.

To BE CONTINUED

NB

This paper was also strongly supported with references from the following academic resources:

1 A. Watts, ‘The Legal Position in International law of Heads of States, Heads of Governments and Foreign Ministers.

2 Sarah M. Nouwen “The special Court for Sierra Leone and the immunity of Taylor: The Arrest Warrant Case.

3. Summary of Judgments in the arrest Warrant case of both former Congolese foreign affairs Minister and Former President Charles Taylor.