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World: Experts Say ICJ Ruling Could End Belgian Cases Against Sharon, Others

  • Kathleen Moore

A former Congolese foreign minister has been celebrating a ruling last week from the International Court of Justice (ICJ), the UN's highest judicial authority. The court ruled that Belgium must cancel an arrest warrant it issued for Abdulaye Yerodia Ndombasi, as he had diplomatic immunity at the time of his alleged human rights violations. Other, more prominent politicians may also have cause to celebrate the ruling, among them Israel's Prime Minister Ariel Sharon. The decision could spell the end of efforts by Belgian prosecutors to bring Sharon to justice for his role in the 1982 massacres of Palestinians at refugee camps when he was Israeli defense minister.

Prague, 18 February 2002 (RFE/RL) -- Last week's ruling in the UN's International Court of Justice focused on a Belgian law that allows serious cases of human rights crimes to be heard in Belgian courts even if they were carried out abroad.

Two years ago, Belgium issued an arrest warrant against former Congolese Foreign Minister Abdulaye Yerodia Ndombasi for his alleged involvement in the killing of hundreds of ethnic Tutsis in Congo in 1998.

But the ICJ, the UN's highest judicial authority, ruled last week that Yerodia enjoyed diplomatic immunity at the time of the alleged crimes and that Belgium must cancel the warrant.

The judges say in the ruling that it does not mean top politicians have impunity from justice. They could still be tried in their home country, for instance, or by international tribunals like those set up for Rwanda and Yugoslavia. The ruling went against Belgium because it was trying to prosecute a foreign government minister.

Human rights groups reacted with dismay. Human Rights Watch said in a press release that "government ministers who commit serious crimes are not likely to be prosecuted at home, and this ruling means they will enjoy impunity abroad as well."

Although the ICJ stresses that last week's ruling is one case only, legal experts were quick to point out its possible implications for cases being brought against other prominent politicians in Belgian courts.

Perhaps the best-known of these is a lawsuit against Israeli Prime Minister Ariel Sharon on genocide and war crimes charges. A group of Palestinians has been trying to use the controversial law to bring Sharon to justice for his role in the 1982 massacres at refugee camps in Lebanon when he was Israeli defense minister.

The lawsuit provoked anger in Israel and earned the Belgian prime minister a hostile reception during a recent visit to Israel.

Belgian courts have still not ruled if Sharon can be tried under the law. A decision is expected early next month, but Foreign Ministry legal adviser Jan Devadder told Reuters he expects the case to be dropped.

Other current or former leaders have faced Belgian investigations under the same law, including Cuba's Fidel Castro, Palestinian leader Yasser Arafat, and Iraqi President Saddam Hussein.

Avril McDonald is an international lawyer based in The Hague. She says the ruling is a "huge disappointment."

"I think it will definitely have a huge political impact, beyond in a way what legally it should have. Countries, and not only Belgium, will look at this ruling and say, 'OK, that's the end now of universal jurisdiction or certainly it's a huge nail in the coffin of universal jurisdiction, of the actual ability of states to exercise it.'"

She says that though the ICJ has not explicitly told it so, Belgium will probably withdraw all its arrest warrants issued on the basis of the law and review the legislation.

A spokesman for the Belgian Foreign Affairs Ministry told RFE/RL that the law was "good by nature, but potentially embarrassing" on the diplomatic front.

The ICJ argued that international diplomacy would seize up if top government officials were unable to travel abroad for fear of being prosecuted. McDonald agrees with this -- up to a point.

"[Immunity] is one of the mechanisms that allows international law to operate, and if heads of state or cabinet officials are afraid that they might be prosecuted abroad, of course that would interfere with their political role. But you can look at it from the other point of view and say, do you want such people in political positions in the first place? To me, one of the nice things about universal jurisdiction is surely that it forces officials to think in fact about what they do in an official capacity and not be able to hide behind this veil of officialdom. Yes, it does interrupt diplomacy but I'm not sure that this is such a bad thing given the gravity of the crimes we're talking about here."

On 15 February, Israel's Foreign Ministry expressed satisfaction at the ICJ ruling. But it may be too soon for Sharon to crack open the champagne, says Wilder Tayler, legal and policy director at Human Rights Watch in London.

"I would be concerned if I was Sharon, because there was no arrest warrant issued or circulated on Sharon and the court did not discuss whether Belgium has the right to exercise universal jurisdiction in a case like that. So as far as I'm concerned, an investigation against Sharon can continue to be open and they can continue to gather evidence, interview witnesses, and collect other means of proof."

One of the dissenting judges in the ICJ ruling was Christine Van den Wyngaert. In an opinion attached to the ruling, she wrote that the ICJ, "in its effort to close one box of Pandora for fear of chaos and abuse, may have opened another one -- that of granting immunity and thus de facto impunity to an increasing number of government officials."

As one international legal expert asks, Does such immunity go beyond very senior politicians? How about middle-ranking torturers? Tayler says the court should have set criteria to establish who is covered by such immunity.

"To the extent that they don't set those criteria, [these criteria] will be set by states. And then states would argue that they have an enormous latitude to do that, when again most developments in international law suggest they do not. So that was, yes, one of the poor aspects of that ruling."

He says the ruling is valid for one specific situation only. But in practice, it will set a precedent.

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