ABSTRACT
In 1993, Belgium gave itself the jurisdiction to indict and arrest anywhere in the world and to try anyone suspected of having committed war crimes and crimes against humanity whenever and wherever these crimes may have been committed. Under this universal jurisdiction, the Belgian authorities issued an arrest warrant, in 2000, against Congo’s Foreign Minister, Abdulaye Ndobasi. The Congo took Belgium to the International Court of Justice in the Hague, claiming that the warrant violated the Minister’s immunity under international customary law. In February 2002, the Congo won and the court ordered Belgium to cancel the warrant.1 The court accepted that Foreign Ministers cannot be brought before the criminal courts of a foreign state while in office, irrespective of the seriousness of the allegations, as they are protected by the immunity of sovereignty. However, three Western judges added that the court should have ruled that crimes against humanity can engage universal jurisdiction, even if it was not applicable in the current case, and a fourth argued that Belgium had the power to issue the warrant. As the three put it, while there may be no general rule specifically authorising the right to exercise universal jurisdiction, the absence of a prohibitive rule and the growing international consensus on the need to punish crimes regarded as most heinous by the international community indicate that the warrant for the arrest of Mr Ndobasi did not violate international law.
