by Pieter H. F. Bekker and Owen C. Pell
The authors cite a recent ruling in a case at the International Court of Justice in the Hague bearing on diplomatic immunity. That sounds like an arcane subject with little applicability to practitioners of diplomacy. But maybe not…—Ed.
When the International Court of Justice (ICJ) ruled in February that Belgium could not seek to arrest a Congolese cabinet minister for alleged human rights violations committed in the Democratic Republic of the Congo, it pointedly avoided specifying who other than sitting foreign ministers are immune from prosecution by foreign nations. In leaving the charged issue of “universal jurisdiction” and the permitted scope of its exercise unsettled, the narrow decision may complicate diplomacy and the conduct of international business in numerous ways.
Initially, some of the world’s most controversial leaders (and those who do business with them) may have celebrated when early media reports cast the ruling as a case of immunity trumping human rights. But on closer reading, it is clear that the ICJ left Belgium’s law asserting universal jurisdiction over human rights violations standing, leaving government officials exposed to continued prosecution. Plaintiffs, prosecutors or judges in Belgium and other countries that assert universal jurisdiction are still apt to bring or maintain well-meaning, but ill-advised actions against foreign officials and businessmen.
The ruling does narrow the scope of who individual nations may prosecute for heinous violations of international law that occur outside their borders. Belgian law permits such prosecutions, even when they have no connection to Belgium. The Belgian law has made Brussels the global epicenter for court actions against foreign officials, including Yasser Arafat, Fidel Castro, Ariel Sharon, and others. Soon after the decision, Belgian officials said they would reconsider the case against Sharon arising out of the 1982 massacres of Palestinian refugees in Lebanon.
The ICJ ruled that because nations require foreign ministers to travel unimpeded to conduct international relations, these ministers enjoy full immunity from any act of authority by another nation. The ruling required Belgium to cancel its arrest warrant against the former Congolese foreign minister for speeches in the Congo that allegedly incited ethnic violence there.
Upon closer reading, however, it is apparent that the Court kept the decision extremely narrow by applying it only to sitting foreign ministers. Noting memorably that “immunity does not mean impunity,” it said a foreign minister may indeed be prosecuted by a foreign nation for grave breaches of international law committed prior or subsequent to the minister’s period of office, as well as for private acts committed during his or her tenure, provided proceedings are brought after the minister ceases to hold office. Thus, Belgium could simply reissue its arrest warrant now that the former Congolese foreign minister no longer holds office, thereby reducing the Congo’s ICJ case to an academic exercise.
By not specifying who other than sitting foreign ministers are immune from prosecution by foreign courts, other officials below the level of foreign minister continue to lack certainty under the law. In this respect, the ICJ lost an opportunity to clarify the legal position of government officials who travel abroad on official business without enjoying “diplomatic” immunity under the Vienna Conventions. Thus, it is unclear how the ICJ would treat a case involving an assistant secretary of state or other Department of State official who is not an accredited diplomat.
Laws similar to Belgium’s are being proposed elsewhere—recently in Germany—and U. S. law already allows non-U.S. nationals to sue companies and present or former government officials of foreign nations in federal court for damages based on alleged international law violations committed outside the United States. Although motivated by the best intentions, these laws raise the disquieting prospect of any one nation imposing its concept of international law on officials, business executives and other prominent or controversial citizens of other nations.
By leaving the pressing issue of universal jurisdiction unsettled, the ICJ ruling may encourage state practice to avoid its effects. Nations may try to “cloak” high-ranking officials and businessmen with immunity by declaring that their overseas travels are official state business. Would-be travelers influential in their homelands may seek temporary “credentials” like “deputy foreign minister” to stymie other nations from exercising jurisdiction over them as they travel. Some countries already bestow the honorary title “Minister of State” on former statesmen and now such honorifics may become more frequent.
The ramifications of the ICJ decision—both in what was and what wasn’t said— bears watching. For example, a New York federal judge recently ruled that Zimbabwean torture victims could proceed with a suit against Zimbabwe’s ruling party based on their delivery of the complaint to President Mugabe and his foreign minister while they were in New York two years ago. After the ICJ decision, the New York ruling should be reviewed, but the decision certainly provides another incentive for Mugabe to cling to power following his disputed reelection.
Ironically, high-ranking officials of non-democratic regimes (at least their foreign ministers) will reap the benefit from the ICJ decision, as their continuing hold on power enables them to retain the immunity that the ICJ ruled incumbency confers. Zimbabwe is a case in point. In democratic states, where the public can vote officeholders out, former officials have a higher exposure to prosecution or litigation.
With human rights probes pending overseas against a number of past U.S. leaders, including Henry Kissinger and Bill Clinton, current and former government officials would be wise to plan their foreign travel carefully—especially if the itinerary includes Brussels—and should account for how nations they may visit define and exercise jurisdiction over alleged violations of international law. For now, and even after the International Criminal Court comes into being on July 1, the use of national courts to redress alleged human rights violations—wherever they may occur—remains very much in place.
Pieter H.F. Bekker and Owen C. Pell are attorneys with White & Case LLP in New York. Their practice concentrates on litigation involving foreign sovereigns and public international law. Dr. Bekker is a former staff attorney at the International Court of Justice.