Case: Arrest Warrant Case: Separate Opinion of Judge Higgins, Kooijmans and Buergenthal

 © Ruwanthika Gunaratne and Public International Law at https://ruwanthikagunaratne.wordpress.com, 2008 – present. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Ruwanthika Gunaratne and Public International Law with appropriate and specific direction to the original content.

 

Opinion in the Arrest Warrant Case

1. There is no established rule in international law recognizing or prohibiting States from asserting universal jurisdiction (✐  what is universal jurisdiction? click here).

a. There is no established practice in which States exercise universal jurisdiction…Virtually all national legislation envisages links of some sort to the forum State; and no case law exists in which pure universal jurisdiction has formed the basis of jurisdiction. This does not necessarily indicate, however, that such an exercise would be unlawful. While none of the national case law to which we have referred happens to be based on the exercise of a universal jurisdiction properly so called, there is equally nothing in this case law which evidences an opinion juris on the illegality of such a jurisdiction. In short, national legislation and case law – that is, State practice – is neutral as to exercise of universal jurisdiction.

b. There are, moreover, certain indications that a universal criminal jurisdiction for certain international crimes is clearly not regarded as unlawful. The duty to prosecute under those treaties which contain the aut dedere aut prosequi (obligation to extradite or prosecute)provisions opens the door to a jurisdiction based on the heinous nature of the crime rather than on links of territoriality or nationality (whether as perpetrator or victim).

[The judges noted that international conventions with the obligation to extradite or prosecute is not a form of universal jurisdiction; but, an obligatory territorial jurisdiction over the person in relation to acts committed extra territorially.]

c. In civil matters we already see the beginnings of a very broad form of extraterritorial jurisdiction. Under the Alien Tort Claims Act, the United States, basing itself on a law of 1789, has asserted a jurisdiction both over human rights violations and over major violations of international law, perpetrated by non-nationals overseas. Such jurisdiction, with the possibility of ordering payment of damages, has been exercised with respect to torture committed in a variety of countries (Paraguay, Chile, Argentina, Guatemala), and with respect to other major human rights violations in yet other countries. While this unilateral exercise of the function of guardian of international values has been much commented on, it has not attracted the approbation of States generally.

d. Belgium – and also many writers on this subject – find support for the exercise of a universal criminal jurisdiction in the “Lotus” case. [

NB: See  the Lotus Case (Summary)]

2. Is the presence of the accused in the territory of the prosecuting State a pre requisite to assert universal jurisdiction? The judges said that it was unable to find such a pre-requisite.

“The only prohibitive rule (repeated by the Permanent Court in the “Lotus” case) is that criminal jurisdiction should not be exercised, without permission, within the territory of another State. The Belgian arrest warrant envisaged the arrest of Mr. Yerodia in Belgium, or the possibility of his arrest in third States at the discretion of the States concerned. This would in principle seem to violate no existing prohibiting rule of international law.”

3. States must ensure certain safeguards are in place before exercising universal jurisdiction.

a.  A State cannot exercise universal jurisdiction if it violates inviolability and immunities enjoyed by a person under international law. However, this does not prevent a State from starting an investigation. The investigation, in itself, does not violate immunity and inviolability.

If there are no immunities involved:

b. The State must first offer to the national State of the prospective accused person the opportunity to prosecute the person concerned.

c. In asserting universal jurisdiction, the prosecutor or judge must act in full independence, without links to or control by the government of that State.

d. “…there are some special circumstances that require the exercise of an international criminal jurisdiction” and this has to be brought to the attention of the prosecutor or judge. For example, persons related to the victims of the case should request the prosecutor or judge to start the legal proceedings.

e. A State can exercise universal jurisdiction only over those crimes regarded as the most heinous by the international community.

4. The judges disagreed with the refusal of the court to consider whether Belgium did, in fact, have jurisdiction in this case. The Court instead discussed directly the immunity related aspects of the case (see above section on “Questions before the Court”).

By focusing exclusively on the immunity issue, while at the same time bypassing the question of jurisdiction, the impression is created that immunity has value per se, whereas in reality it is an exception to a normative rule which would otherwise apply. It reflects, therefore, an interest which in certain circumstances prevails over an otherwise predominant interest, it is an exception to a jurisdiction which normally can be exercised and it can only be invoked when the latter exists. It represents an interest of its own that must always be balanced, however, against the interest of that norm to which it is an exception.

5. The judges discussed the need to balance immunity with the necessity to prevent impunity.

These trends reflect a balancing of interests. On the one scale, we find the interest of the community of mankind to prevent and stop impunity for perpetrators of grave crimes against its members; on the other, there is the interest of the community of States to allow them to act freely on the inter-State level without unwarranted interference…Moreover, a trend is discernible that in a world which increasingly rejects impunity for the most repugnant offences, the attribution of responsibility and accountability is becoming firmer, the possibility for the assertion of jurisdiction wider and the availability of immunity as a shield more limited. The law of privileges and immunities, however, retains its importance since immunities are granted to high State officials to guarantee the proper functioning of the network of mutual inter-State relations, which is of paramount importance for a well-ordered and harmonious international system.

We wish to point out, however, that the frequently expressed conviction of the international community that perpetrators of grave and inhuman international crimes should not go unpunished does not ipso facto mean that immunities are unavailable whenever impunity would be the outcome. The nature of such crimes and the circumstances under which they are committed, usually by making use of the State apparatus, makes it less than easy to find a convincing argument for shielding the alleged perpetrator by granting him or her immunity from criminal process.

 A State may exercise the criminal jurisdiction which it has under international law, but in doing so it is subject to other legal obligations, whether they pertain to the non exercise of power in the territory of another State or to the required respect for the law of diplomatic relations or, as in the present case, to the procedural immunities of State officials. In view of the worldwide aversion to these crimes, such immunities have to be recognized with restraint, in particular when there is reason to believe that crimes have been committed which have been universally condemned in international conventions.

 It is now increasingly claimed in the literature… that serious international crimes cannot be regarded as official acts because they are neither normal State functions nor functions that a State alone (in contrast to an individual) can perform…This view is underscored by the increasing realization that State-related motives are not the proper test for determining what constitutes public state acts. The same view is gradually also finding expression in State practice, as evidenced in judicial decisions and opinions.

 © Ruwanthika Gunaratne and Public International Law at https://ruwanthikagunaratne.wordpress.com, 2008 – present. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Ruwanthika Gunaratne and Public International Law with appropriate and specific direction to the original content.

 

One comment

  1. GOOD WORK, YOU GUYS MADE MY PUBLIC INTERNATIONAL LAW LAST MINUTE STUDY A WHOLE LOT EASIER THAN I THOUGHT, YOU ARE SIMPLY THEE’ BEST!

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