CYIL 2012

183 INTERNATIONAL LAW ON IMMUNITIES ACCORDED TO HIGHǧRANKING STATE OFFICIALS Belgian law”. Article 7 of the Belgian law provided that “the Belgian courts shall have jurisdiction in respect of the offences provided for in the present law, wheresoever they may have been committed”. With this law, Belgium incorporated universal jurisdiction for certain international crimes into its national laws and thereby opened the possibility to prosecute such crimes regardless of where and by whom they were committed. Further, Article 5 (3) of the Belgian law provided that “immunity attaching to the official capacity of a person shall not prevent the application of the present law”. 54 In its application to the ICJ, the DRC first claimed that “the universal jurisdiction that the Belgian state attributes to itself under Article 7 of the law in question” constitutes a “violation of the principle that a state may not exercise its authority on the territory of another state and of the principle of sovereign equality among all Members of the United Nations, as laid down in Article 2, paragraph 1, of the Charter of the United Nations”. Secondly it claimed that Mr. Yerodia, as the incumbent minister for foreign affairs of a foreign state, enjoyed immunity before Belgian courts and that the warrant violated such immunity. It further claimed that “the non-recognition, on the basis of Article 5…of the Belgian Law, of the immunity of a minister for foreign affairs in office” constituted a “violation of the diplomatic immunity of the minister for foreign affairs of a sovereign state, as recognized by the jurisprudence of the court and following from Article 41, paragraph 2, of the Vienna Convention of 18 April 1961 on Diplomatic Relations”. 55 The ICJ accepted by thirteen votes to three that such immunity existed and concluded that the issue and circulation of the arrest warrant by the Belgian authorities failed to respect the immunity of the incumbent minister for foreign affairs of the DRC and, more particularly, infringed the immunity from criminal jurisdiction and the inviolability then enjoyed by Mr. Yerodia under international law. 56 The court ordered the Belgian authorities to cancel the arrest warrant, which the Belgian state complied with. The court’s findings therefore confirm the interpretation that incumbent ministers as heads of state and diplomatic agents should enjoy absolute inviolability within the territory of another state on the grounds of the customary international rule on personal immunities, when they are suspected of having committed war crimes or crimes against humanity. Further the court stipulated that the rules concerning the personal immunity or criminal responsibility of persons having an official capacity contained in the legal instruments creating international courts and tribunals do not enable national courts to make an exception from the customary rule on personal immunities, in the case where serious crimes have been committed. These exceptions on personal immunities only apply in regard to international courts and tribunals. 57 On 4 March 2004, the Pre-Trial Chamber of the International Criminal Court (hereafter ICC), decided to issue a warrant for the arrest of Omar Hassan Ahmad 54 Arrest Warrant case, para. 15. 55 Arrest Warrant case , para. 17. 56 Arrest Warrant case, para. 78. 57 Arrest Warrant case, para 58; Pétur D. Leifsson: “Nokkrar hugleiðingar um þróun varðandi alþjóðaglæpi. Allsherjarlögsögu og úrlendisrétt frá sjónarhóli þjóðaréttar”, p. 403-404.