CYIL 2012

PETRA BAUMRUK CYIL 3 ȍ2012Ȏ The case against Ariel Sharon, former Israeli prime minister (and former minister of defence at the time of the alleged crimes), was brought in Belgium under the Belgian Act Concerning the Punishment of Grave Breaches of International Humanitarian Law as modified by the Act of 10 February 1999 (hereafter the Belgian Law) for genocide and crimes against humanity. The Belgian law was one of the most progressive laws of its kind in the world. The Belgian Law provided for jurisdiction over any individual, regardless of the victim’s or the perpetrator’s nationality or the location of the alleged act. Further, the Law explicitly stated the irrelevancy of “official capacity” in determining responsibility for crimes. However according to the Belgian law these persons could only be prosecuted for some categories of international crimes and only if they were on Belgian territory, which Ariel Sharon was not. 50 The Court of Cassation came to the conclusion that the Belgian law, lifting functional immunity for international crimes, did not bar Sharon’s immunity from prosecution. In other words, the accused was shielded by the international customary rule on personal immunities of heads of government (as well as heads of state and foreign ministers) and could therefore not be prosecuted as long as he held the office. 51 In the case of Fidel Castro before the Spanish court, charges were brought against him for genocide and torture. However the court rejected the charges because Castro benefited from personal immunity as an incumbent head of state. 52 All of the above mentioned cases demonstrate how the operation of functional immunity for heads of state and other high ranking state officials has been excluded in the case of serious breaches of international crimes. In contrast, personal immunity has been considered as an appropriate protection for heads of state and other high ranking state officials, as it ensures absolute immunity while these senior officials are in office (but ceases with the termination of their official functions). 2.3.2 The practice before International Courts and the International ad hoc Criminal Tribunals On 11 April 2000 a Belgian judge issued an international arrest warrant in absentia against the incumbent minister for foreign affairs of the Democratic Republic of Congo (hereafter DRC), Abdulaye Yerodia Ndombasi, charging him with grave breaches of the Geneva Convention of 1949 and of the Additional Protocols thereto, and crimes against humanity. 53 The warrant was at the same time transmitted to the International Criminal Police (Interpol), so the arrest warrant circulated internationally. The crimes with which Mr. Yerodia was charged were punishable in Belgium under “the 50 Antonio Cassese: “The Belgian Court of Cassation v. the International Court of Justice: the Sharon and others Case”, p. 438. 51 Antonio Cassese: “The Belgian Court of Cassation v. the International Court of Justice: the Sharon and others Case”, p. 443. 52 Spanish case concerning Fidel Castro, Spanish Court 1999 . See discussion on the case in Antonio Cassese: “When May Senior State Officials Be Tried for International Crimes? Some Comments on the Congo v. Belgium Case”. 53 Arrest Warrant case, para. 13.

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