Belgium v. Congo
International Court of Justice case from 2002
- Facts: an international arrest warrant was issued for the arrest of a foreign minister of the Congo for crimes under international law.
- Issue: Do head of state immunities apply for international crimes?
- Holding: the ICJ said that immunity for current foreign ministers is absolute, even for international crimes – there is no exception to head of state immunity for all violations of international law (including jus cogens, customary international law, etc.)
How do you get around head of state immunity and hold the head of state accountable?
- International Criminal Court and other international criminal tribunals (this is different from a state trying to exercise jurisdiction)
- Waiver
- Prosecute the head of state in their own state
- Wait until the official is out of office
- The Special Court was created pursuant to an international treaty between Sierra Leone and the UN (it was authorized by the Security Council); it indicted Charles Taylor while he was the head of state of Liberia for crimes he committed in Sierra Leone
- Can the court try Taylor, since the tribunal was created by the UN, at the behest of the Security Council?
- If he was indicted while he was a head of state and this is found to be illegal, can they withdraw the earlier indictment and re-indict him now as a former head of state?
- This is the thing that Orentlicher argued in Sierra Leone; no ruling has yet been made
International Court of Justice case from 2002
- Facts: an international arrest warrant was issued for the arrest of a foreign minister of the Congo for crimes under international law.
- Issue: Do head of state immunities apply for international crimes?
- Holding: the ICJ said that immunity for current foreign ministers is absolute, even for international crimes – there is no exception to head of state immunity for all violations of international law (including jus cogens, customary international law, etc.)
- So procedural immunity (Immunity ratione personae; see above) applies to all acts performed by heads of state while they are in office.
How do you get around head of state immunity and hold the head of state accountable?
- International Criminal Court and other international criminal tribunals (this is different from a state trying to exercise jurisdiction)
- Waiver
- Prosecute the head of state in their own state
- Wait until the official is out of office
- Note: when a head of state commits a jus cogens violation while in office, substantive head of state immunities do not apply to the head of state once he has left office, and thus charges can be brought against him (example: Milosevic at ICTY)
- The Special Court was created pursuant to an international treaty between Sierra Leone and the UN (it was authorized by the Security Council); it indicted Charles Taylor while he was the head of state of Liberia for crimes he committed in Sierra Leone
- Can the court try Taylor, since the tribunal was created by the UN, at the behest of the Security Council?
- If he was indicted while he was a head of state and this is found to be illegal, can they withdraw the earlier indictment and re-indict him now as a former head of state?
- This is the thing that Orentlicher argued in Sierra Leone; no ruling has yet been made
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