By Jim Lobe
WASHINGTON, Feb 15 2002 (IPS)

Human rights groups are attacking a decision by the International Court of Justice (ICJ) as a major setback in the global fight against impunity.

The ICJ invalidated Thursday parts of a Belgian law that gave its courts jurisdiction to prosecute world leaders for genocide and war crimes.

The Hague-based ICJ, which threw out an international arrest warrant issued by Belgium against a former foreign minister of the Democratic Republic of Congo (DRC), ruled that Belgian courts could not deprive the accused, Yerodia Aboulaye Ndombasi, of his diplomatic immunity – even if he was being prosecuted for actions he committed out of office.

Yerodia was one of a growing list of world leaders, most prominently Israeli Prime Minister Ariel Sharon, Palestinian President Yasser Arafat, and Cuban President Fidel Castro, charged with committing war crimes or crimes against humanity under the Belgian law.

Legal analysts who had read the ICJ’s opinion agreed that Thursday’s ruling likely would cover those leaders and others, including the current presidents of Cote d’Ivoire, Congo- Brazzaville, Rwanda, and the Central African Republic. Israel’s foreign ministry officially welcomed the decision and called on Belgium to halt proceedings against Sharon.

Jan Devadder, legal adviser to the Belgian foreign ministry, said the ruling’s language was sweeping and predicted existing cases against senior foreign officials would soon be dropped. “The court has clearly ruled government leaders and heads of state enjoy total immunity from prosecution,” he said.

In his summary of the case, ICJ President Gilbert Guillaume said the court had “concluded that there existed no exception under international law to the rule establishing immunity from criminal process before foreign national courts.”

As precedent, Guillaume cited the 1999 decision by Britain’s House of Lords to permit former Chilean dictator Augusto Pinochet to return home rather than be extradited on an arrest warrant issued by a Spanish judge who was investigating the killings and disappearances of thousands of people under his rule.

Given the immunity that attached to Ndombasi as foreign minister, according to Guillaume, the investigating judge in Belgium could not “rely on a universal jurisdiction unrecognised by international law.”

International human rights groups reacted with dismay, arguing that the ruling underlined the urgent need for the International Criminal Court (ICC), which will be fully empowered to try cases of genocide, crimes against humanity, and war crimes – once it comes into being.

Fifty-two countries have ratified the “Rome Protocol” that authorises the ICC – eight short of the 60 required for it to take legal effect. Most observers believe the 60th country will likely deposit its ratification within the next four months.

“This is a disappointing decision because it effectively shields some state officials from prosecution for atrocities,” said Reed Brody, advocacy director for Human Rights Watch (HRW).

“Government ministers who commit crimes against humanity and war crimes are not likely to be prosecuted at home, and this ruling means they will enjoy impunity abroad as well,” he added.

The decision, said Brody, “highlights the need for the rapid establishment of the International Criminal Court, which will be able to investigate and prosecute those individuals, including state leaders, accused of crimes against humanity, genocide, and war crimes when national courts are willing or unable to do so, and which expressly rejects any substantive or jurisdictional immunities.”

Amnesty International also deplored the decision, saying it “goes against a growing trend in international law and significant efforts by national jurisdictions to end impunity, including by not giving immunity from prosecution to people suspected of crimes under international law.”

“No one should enjoy immunity from crimes under international law, which are so serious that the international community has accepted that it is the responsibility of all states to bring the perpetrators to justice,” it said.

The Belgian law, first passed in 1993 and expanded in 1999, was an effort to comply with international human rights conventions that provide universal jurisdiction for extremely severe human rights abuses, such as genocide. Under the law, Belgian courts may hear such cases whether or not the crimes had any connection whatsoever to Belgium, its citizens or territory.

So far, only one trial has been held under the 1993 law. In that case, which was completed early last year, a civilian jury found four Rwandans, including two nuns, complicit in the 1994 genocide in that central African nation.

Coming so soon after Pinochet was permitted to return to Chile, the trial attracted considerable media attention. The result was a torrent of new lawsuits brought in Belgian courts against various leaders.

So far, the Sharon case has received the most publicity. He was sued last year for his role in the 1982 massacre by Lebanese Falangist militia of hundreds of Palestinians in Sabra and Shatila refugee camps in Beirut.

Sharon, who was Israel’s defense minister at the time, had masterminded the invasion of Lebanon, which gave Israel’s army control over access to the camps. He was ultimately found to be “indirectly responsible” for the massacre by an Israeli commission and forced to resign his post.

The case has made both Israel and Belgium distinctly uncomfortable. Late last year, Belgium’s foreign minister denounced the law as “embarrassing” and called on the parliament to amend in a way that would at least provide immunity for serving officials of foreign governments.

Ndombasi’s case centred on his alleged role in inciting the massacre of several hundred Tutsis in eastern DRC in 1998 when he served as chief of staff to the late President Laurent Kabila.

A Belgian investigating judge had issued an international arrest warrant against him when Ndombasi was foreign minister in 2000. It sought his provisional detention, pending a request for extradition to Belgium for “serious violations of international humanitarian law.” Ndombasi served only briefly as foreign minister in 2000 and is currently the DRC’s minister of education.

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