Le blog du Prof. Sayeman BULA-BULA

Specialiste du droit international public

Senegalese Jurisdiction versus Belgian Universal Jurisdiction

SENEGALESE JURISDICTION VERSUS BELGIAN UNIVERSAL JURISDICTION
JUDGEMENT OF NOVEMBER 25, 2005 OF THE
COURT OF APPEALS OF DAKAR CONCERNING THE LACK
OF JURISDICTION IN THE EXTRADITION OF
Mr. HISSÈNE HABRÉ

by
Sayeman BULA-BULA

Professor of International Law ,
Former Regional Representative,
Africa Human Rights and Justice Protection Network (1990-1995)
Former Judge ad hoc. ICJ

  1. The International Judicial opinion, particularly the African one, followed with a sustained interest the case Hissène Habré’s extradition, former Head of State, submitted by the Kingdom of Belgium to the Republic of Senegal. It appreciated to its true value the advisory opinion by the Head of Senegalese State to Court of Appeals.
  2. Just after the Judgment of the Court of November 25, 2005 decided it lacks jurisdiction legal doctrine, particularly a large number of African lawyers have made statements on the issue Senegalese Professor El Hadji Mbodj have taken clear position on the case.
  3. 1 will develop the reasons for my thesis. Of course, the impunity must absolutely be banned everywhere in Africa and in the World. But diet struggle against the alleged war crimes and crimes against humanity must respect the municipal law and the international law as well. It should be strongly emphasized that so called universal jurisdiction shows its true colours as a « variable geometry » jurisdiction, selectively exercised against some States to exclusion of others. Prima facie, the Applicant pursues its policy of double standards.
  4. The general context appears well-know enough to linger on it. Former territory of the “French Equatorial Africa”, Tchad was decolonised in 1960. “But to talk about independence is of the domain of euphemism. Its story after this date proves it. It is the only country of the ex-French Speaking Africa where for fifteen years an armed struggle has been developing”[1]. This latter still subsists in a hidden way, carrying along its lot of violations of human rights.
  5. By its Law of 16, June, 1993 as amended by the Law of 10 February, 1999, aims at punishing serious violations of international humanitarian law, specially grave breaches of the International Geneva Conventions of 12 August 1949 and the Protocols I and 11 of 8 June 1977, additional, to these Conventions, the Applicant contends that « the Belgian Courts shall have jurisdiction in respect of the offences provided in the present Law wheresoever they may have been committed »[2].
  6. It will not be useful to come back to the attempts of the previous pursuits instituted against the Former Tchadian Head of State, who found asylum in Senegal[3].
  7. For the moment, Belgium, the Applicant State, solicits from Senegal, the Responded State, the extradition of Hissène Habré. It is about the subject of this application that the Head of State of Senegal, Mr Abdoulaye Wade, has asked the opinion of the Court of Appeals of Dakar.
  8. First of all, it is essential to consider the reasoning and the analysis of the Court before doing to makes some observations upon the dispositif of the Judgment.

1. THE REASONING OF THE DECISION

  1. At the outset, the Court notes that the written pleadings as well as the oral arguments of the parties, namely the alleged victims of crimes of war and crimes against humanity, Tchadian primitive nationality and presently Belgian on the hand, the counsel of Mr Hissène Habré, on the other hand, show that this « latter is pursued in Belgium »[4]. When he is in Senegal. Consequently, he became the object of an « international » arrest warrant  » for the acts allegedly he will have committed between 1978 and 1990, then President of the Republic of Tchad »[5]. Out of ten preambles, the Senegalese Judge will mention at least five times, either quality of the President of Republic, or that of the Head of State of Tchad.
  2. The Court also tried to determine its jurisdiction ration materiae, in limine litis, Because, he underlines, it is about « a question of public order that the judge must readily raise and whatever happens »[6]. The more international judge closely linked by the delimitation of the pending dispute operated by the parties involved any question of international law; the national jurisdiction is strictly limited by the law concerning the organisation and jurisdiction of Courts and tribunals.
  3. The Court makes in this manner the Statement of fact that « the Constitution of Senegal in its articles 101 and the outline law of 14 February 2002 on the High Court of Justice instituted a special procedure for all acts of criminal proceedings against the President of Republic[7].
  4. The Court mentions, for the second time, this quality even though Mr Hissène Habré has no longer been Head of State for 15 years. The mention is not devoid of legal significance. Following a logical order of ideas, the Senegalese Court results in the first finding,… » from now …, the Court of Appeals, ordinary jurisdiction…, would not be able to extend its jurisdiction to the criminal proceedings against a Head of State for acts allegedly committed in the exercise of his functions »[8].
  5. There is already in this paragraph a admission of lack of jurisdiction. Its is also clear that the judge has in mind the relevant date of the allegations made against the suspect and the allegations and the quality of the Head of State then enjoyed Mr Hissène Habré. It is understood from now on only why that one is abundantly pointed out expressly in the development of reason.
  6. The declaration of incompetency of the expressed principle , the Court has just drawn the judicial consequences which are necessary in the case: « …this exception must therefore apply necessarily to the application of extradition because the setting up of the advisory opinion is subordinated to the previous enforcement of the fundamental criminal proceedings acts, namely the appearance and the cross-examination of the questioning… opinion is subordinated to the previous accomplishment of the appearance »[9]. The judgment continues to identify Mr Habré as Head of State. What is it significant in this regard as a matter of international law?
  7. In case the doubt persists, the Court adds that the extradition coming from the criminal proceedings acts… must conform themselves, in all cases, in their judicial base, to the rule of public order of competence and of the organisation of the criminal tribunals, core of national sovereignty »[10]. Was this strengthening opinion necessary? It can be controversial. I find correct the affirmative answer. The peremptory locution recalls all States that it is essential to have a clear mind of an « international society » founded on the principle of the equality of its members. The epithet « national » appended to it seems to translate this inherent dignity to every particularly human group quite distinct from another one.
  8. It is the Senegalese nation free and independent that the judge brings out. As if to cut short all speculation on the source of inspiration of the lack of jurisdiction, the Court of Appeal comes out with two major points in its reasoning  » owing to the fact that Hissène Habré must have the benefit of this immunity of jurisdiction which, far from being a cause of disculpation of criminal responsibility, being procedural in nature , according to judgment in Yerodia Abdoulaye Ndombasi case of February 14, 2002 adopted by the International Court of the Justice in the dispute between the Kingdom of Belgium and the Democratic Republic of Congo[11].
  9. Who said that the ICJ did not base itself on the opinio juris of States establishing an international custom? The Senegalese judicial practice has brought a categorical denial. It participates without doubt in the consolidation of the customary international law. Mrs Christine Van Den Wyngaert makes the point that: «There may be limited State practice about immunities for current or former Heads of State in national courts …”[12] . International legal doctrine did not wait for the judgment of November 25, 2005 to support similar argument[13]. The Court of Dakar also held that: « That it is not besides useless to recall to mind that this privilege has the vocation to survive to the cessation of the functions of the President of Republic as his nationality may be and outside all convention of mutual assistance »[14].

18.  It is legitimate there to observe that the Senegalese Court having the international practice. The commentators who were wondering on this point will find in there a useful element for their thoughts. Nevertheless, is it to assert it better, is the immunity of jurisdiction everlasting? It is the without doubt before a foreign national Court

  1. This is another circumstance before a municipal court or before impartial partial and independent international court mutually agreed by the interested States. Without making allusion explicitly to the international custom, the Court of Dakar seems to lean upon it.
  2. There comes out from the argument developed above, the judge goes on, « the lack of jurisdiction of the Court to deal with the regularity of the criminal proceedings and of the validity of the warrant of arrest, applying itself to a Head of State »[15].
  3. No need to underline again that the Court sees in the suspect « a Head of State », fifteen years after his overthrow. But the facts of the case imputed to him aren’t they in this quality?
  4. It is not necessary to point out the distinction between acts of function and acts which would not be, that is unknown to the Court. As the judge knows nothing about distinction of authors between the personal immunities » and the « functional immunities ». The criminal proceedings have been was quite heard. The Public Prosecutor « was invited to prepare himself seems to suggest it, in his note of November 24, 2005 »[16]. It remained only that the Court of Appeals pronounces its decision.

II.THE DISPOSITIF OF THE DECISION

  1. According to the classical formula , the Court says:

“For the reasons,

Statuating publicly with regard to Hissène Habré in the matter of extradition and in the last instance.

  • It is lack of jurisdiction
  • The Public Prosecutor to take one’s case better[17]

Soberly well – written, the dispositif proceeds logically from original, convincing and the right reasoning developed above. Could some comments inspire otherwise that the judicial proceedings on the advisory opinion appears to have been a regular.

The parties involved were able to express themselves freely. But mostly, the Public Prosecutor itself acknowledged that it had to take case better during the deliberation of the Court. As about the decision taken in the last instance, it is, in principle, permissible to the Public Prosecutor to introduce an appeal to the Court of Cassation.

  1. What does that mean in law, the lack of jurisdiction? The opinion can believe that the Court of Appeals adopted its decision on the merit of the case Hissène Habré about the allegations concerning the violations of human rights, including the humanitarian international law.
  2. There is nothing of the kind. The judge asserted that in this case, he did not have the judicial power to emit an opinion on the point to know whether yes or no the suspect could or couldn’t be extraded according the third preambule; the Senegalese organic law of February 14, 2002 bearing on the High Court of justice, institutes  » a special proceedings for all act of pursuit against the President of Republic ».
  3. It is in this way that the Public Prosecutor and parties will have engaged themselves. Meanwhile, in the perspective of law, the cause is agreed. The statement made by the Court of Appeals of Dakar, on its incompetence can’t surprise any lawyer.
  4. The extra-judiciary developments that a case of both theoretical and practical interest can have don’t at all enter the setting of the present topic. From then on they can later on interpelate the law; it is not left out that the author of the present lines concentrates on the subject in due course.
  5. It is needless to say the Habré case is not ready yet to be concluded, but some fore remarks seem authorised.

III. FOREFINAL REMARKS

  1. Except ignorance from our part, it is the first time that an African municipal jurisdiction emits an explicit or implicit opinion on the immunity of a former or incumbent Head of State. There is a major and useful contribution of the African not, of course, about the highest jurisdiction of the Senegal, like the House Lords in the United Kingdom in the Pinochet case, or the French Court of cassation in the Kadhafi case. Nevertheless, the precedents which contribute to the customary international law exclusively don’t produce by the national highest jurisdictions.
  2. At all events, the Dakar Court of Appeals constitutes a high jurisdiction without being the highest one. The major interest of the decision of the Court of Appeals in this matter is the fact that it brings the useful indications on the limits of immunity of the former Head of State.

a) the scope ratione temporis of the immunity of jurisdiction.

  1. Whereupon, the national judge is very clear “that is not useless to call to mind this privilege with the vocation to survive at the cessation of the functions of the Head of State whatever his nationality and outside all judiciary convention of mutual assistance”[18]. According to the Court, it is only about a reminder.
  2. 32. It is not pointless from our part to refresh the mind of the scholars on the opinion of the International Court of the Justice in the case of the warrant of April 11, 2002 (DRC versus the Kingdom of Belgium Judgment of February 14, 2002). It is also by analogy with immunities for diplomatic agents and Heads of State that the case of the former Foreign Minister of the Congo was decided[19].
  3. The International Court of the Hague emphasized that « …after a person ceases to hold the office of Minister for Foreign Affairs, he or she, will no longer enjoy all of the immunities accorded by international law in other States. Provided that it has jurisdiction under international law, court of one State may try a former Minister for Foreign Affairs of another State in respect of acts committed prior or subsequent to his or her period of office, as well as in respect of acts committed during that period of office in a private capacity »[20].
  4. It was tried to know whether the authority in question “does no longer have the totality of immunities, which are partly acknowledged for him”?[21]
  5. Now in this case, the Court of Appeals of Dakar seems to ascertain the concept of perpetual immunities apparently known in certain internal laws[22]. The fears we expressed about the passage of the arrest warrant quoted does no longer exist in the decision of the Dakar Court.
    1. I don’t agree with the thesis of perpetual immunities which could identified itself to the institution of impunity ; it is simply in my opinion to deny to any foreign Court under the facts and circumstances of the present case to conduct criminal proceedings against the former high —ranking official on acts allegedly committed by him on his national territory. In my opinion, he would bring before the national, competent, independent and impartial court[23], or before the international conventionally established and satisfying to the above conditions. There will be appreciated the implicit allusion made by the judge of Dakar, to the sovereign equality of States, stone of the angle of the international law when he hammers  » whatever his nationality may be”[24]. On this basis reasoning to refer to “the core of contemporary positive international law”[25] must be appreciated.
    2. In the same token, it is essential to notice that in a five years period, the Applicant State, testified by two arrest warrants, displays itself only against African States, better said against certain African States, in accordance with its policy of double standards. As if the present international disorder which scoffs partially at the international law doesn’t come along with mass, serious and systematic violations of human rights by the Applicant State’s organs[26], its allied, the « auxiliaries » and  » the back up States » of these latter from the Balkans up to the frontiers of the sub-Indian continent through the African Great Lakes and the base of Guantanamo! Be it.
    3. There is a vexed question put forward by the counsels of the Applicant that the Court superbly ignored: the so-called universal jurisdiction. When it is noticed that Hague (2002) in the Dakar (2005), the present cases show there is netted practice about the immunity of incumbent and perhaps former high-ranking officials. Definitely, the so-called universal jurisdiction of the Applicant should pursue its policy of double standards. It’s a “variable geometry” jurisdiction selectively exercised against some States to the exclusion of others.

b) The nowhere to be found « universal jurisdiction ».

  1. The very much disputed Belgian Law of June 16, 1993, « concerning the Punishment of Grave Breaches of the International Geneva Conventions of August 12, 1949 and of Protocols I and II of June 8, 1977 Additional Thereto », as amended by the Law of February, 10, 1999, « concerning the Punishment of serious Violations of International Humanitarian Law », concerning. Article 7 of the Belgian Law provided « the Belgian Court shall have jurisdiction in respect of the offences provided for in the present Law, wheresoever they may have been Committed »[27]. It is to believe that the Kingdom constitutes a national territory devoid of grave, systematic and massive human rights violations. Why does the Applicant not exercise its territorial jurisdiction by prosecuting Belgian companies established on its territory suspected of illegal activities in areas of foreign occupations within the Congo[28].
  2. It is significant that the ten points of the preamble concerning the reasoning of the Judgment no longer repeat the expression « universal jurisdiction » Besides it is on behalf of this alleged title that the Applicant introduced before the Respondent its request of extradition.
  3. Amnesia! The unforgettable lecture given to the present Applicant, then Respondent in the case of the forequoted warrant, before the World Court, could have incited him to move unpretentious and cautiousness. If a Minister for Foreign Affairs, when his responsibility is stated, does no longer benefit from the totality of the immunities of the jurisdiction that the international law granted to him in other States[29]; a fortiori an former Head of State[30]! The remaining part of immunities in question was not circonscribed by the International Court of Justice.
  4. On the other hand, it seems that it was more so by the Court of Dakar. Because this latter decides « useless » to « call to mind this privilege has the vocation to survive the cessation of the function of the President of Republic whatever his nationality and outside all concrete convention of mutual assistance »[31].
  5. The formulation claims to be general and impersonal even if it aims at a concrete case submitted to the judge. By the edge of the language, it is possible to notice an irrevocable transfer of the one or the over party to which simultaneously the lesson on the sovereign equality[32] is administered brilliantly without saying it openly, the feeling of equality which deeply animates every decolonised State of Africa, of Latin America and of Asia, goes through the paragraph of decision.
  6. President G. Guillaume was right to support that « the adoption of the United Nations Charter proclaiming the sovereign equality of States and the appearance on the international scene of new States born of the decolonisation, have strengthened the territorial principle[33].
  7. 45. Rightly judicial competent organs to do so in the eyes of international Law. I agree with judge F. Rezek:  » First, it is accepted that no forum is as qualified as that of the locus delicti to see a criminal trial through to its conclusion in the proper manner, if for no other reasons than that the evidence lies closer to hand and that forum has greater knowledge of the accused and the victims, as well as a clearer appreciation of the full circumstances surrounding the offence »[34].
  8. The French doctrine has never wearied of confirming « it goes without saying that it belongs first to the States themselves, the prosecution of the ‘international crimes’ committed by their agents… »[35] Because in principle, this repression is applied by the State in the territory of which the infraction is committed. G Guillaume gives the reasons for that « it is on this territory that more often the proofs of the infraction are collected. It is there that latter generally bears its effects. It is there finally that the sentence pronounced serves as example »[36].
  9. Moreover, « the Geneva conventions to not create any obligation of search, arrest or persecution in case where the offenders are not present on the territory of State concerned »[37], observe the ICJ President . Consequently, it’s wrong to believe that the international law requires or allows States to do as agents of the international community… »[38] Under the influence of the ideas of Montesquieu, Voltaire and Jean -Jacques Rousseau, Beccaria underlined, as early as 1764: « Judges are not the avengers of the human kind in general … A crime is punishable only the country where it was committed »[39]. Unless is  » a real judicial Community between States … in case of infractions which harm the common interest of all States, today ‘s specialists in criminal law say[40] in hypothesis such as those,  » it is the Court of the place where the arrest took place is competent … « [41]. But the real legal Community between the Applicant and the Respondent does not come out early.
  10. Honestly, the academic opinions of certain counsels of the Applicant fail, yesterday in the flat country of Hugo de Groot, today between the Island of Gorée and the Palace of Justice of Dakar. It is to believe that the so-called universal jurisdiction is never wearied of finding through its way, the jurisdictional immunity of State officials, corollary of the sovereign equality of the latter. How come not to see in there a bitter and memorable setback from the part of counsels in need of certain universal power.
  11. Particularly as the practice of the Applicant at this respect becomes well accommodated with contradictions. It appears absessed to hunt down the weakwilled individuals but, simultaneously and paradoxically, to manage the strong willed persons throughout the world including one of its nationals snatched from the Rwandan jails.
  12. At the moment when Rwanda exercises its territorial jurisdiction against a Belgium suspected of co alleged complicity in the 1994 genocide, the « criminal paradise » of Brussels and under strong plausible pressures obtains the repatriation of its national. The Belgian nationality jurisdiction gets the upper hand on the Rwandan territorial jurisdiction! Nothing is lesser sure in internal as well as in international gestating criminal law.
  13. The facts blamed on Mr Guy Theunis would have taken place in Rwanda. The suspect was apprehended on the Rwandan territory. The judge who has instituted criminal proceedings is in Rwanda. Prima facie, this latter must investigate allegations of war crimes and crimes against humanity, allegedly committed by the Belgian national.
  14. Belgium could it not grant to its citizen the experienced counsels in order to prove that its national is white as snow? If the established Belgian government can have some legitimate reasons to doubt of the independence, of objectivity and of the impartiality of the Rwandan judge, why not to let its national be trailed before the TPIR supposed to possess these qualities?
  15. Difficult in these contradictory and solitary conditions to see the precedent of the Belgian law, modified more than once, like in 2003  » with a view to establishing a link with Belgium from the fact of the nationality or the residence of the author or of the victim »[42] supply the customary international law.
  16. Be that as it may « Belgium remains an exception to this respect »[43] because, the  » national jurisdictions abstain universally  » from exercising a universal jurisdictions » a fortiori at the encounter of the representatives of States and particularly that they benefit from the immunities of State…[44]
  17. It is therefore a case to be continued, as it is said in the reasoning before there last and the dispositif related to the lack of the jurisdiction adopted by the Senegalese Court of Appels. It doesn’t prevent that this reasoning comprises at least, doubts on « the regularities of criminal prosecution and of validity of the arrest warrant applying itself to a Head State[45].

c) The Belgian wrong full act.

  1. 56. Belgium issued an arrest warrant against the Former Head State of Tchad alleging grave breaches of Geneva Conventions of 1949 and the Additional Protocols thereto and crimes against humanity  » when he was President of Tchad », the Senegalese judge declares in limine litis. It also introduced before the court of Senegal, where Mr Hissène Habré has lived for fifteen years, request of extradition. The fact that the judgment continues to identify Mr Hissène Habré as Head of State is important. It decides the reference to High Court of Justice.    
  2. Anyway, the arrest warrant, as well as the application of extradition, constitutes the acts of authority according the jurisprudential construction of the International Court of Justice[46]. It was possible to notice that « no one would reduce these acts of authority to the acts of constraint on the person … position a little bit naive — of Belgium »[47].
  3. In this manner « an obstacle somewhat virtual to the functions is namely enough » for example « every official opening of a criminal proceeding[48]… » a decision of indictment in the setting of a criminal proceeding »[49]. But it is essential to underline that the comments of authors bears in an eminent organ of the State in exercise. It is not about a former Head of State.
  4. Be that as it may, the judge of Dakar seems well to lean on the fact that « this privilege with a vocation to survive to cessation of the functions of the President of the Republic whatever his nationality may be and outside all convention of mutual assistance »[50] alike means of law. In a certain measure find backing in the arrest of February 14, 2002[51].
  5. Let us suppose that, according to the opinion of the international Court of justice: « after a person ceases to hold the office… », « he …will no longer enjoy all of the immunities accorded by international law in other States[52].
  6. Mr Hissène Habré still keeps certain immunities of jurisdiction, the arrest warrant and the application in extradition issues by the Applicant would be lawlessness. Interpretation such as this does not seem excluded from the reading of the ninth preamble of the decision of November 25, 2005. Conversely, if the facts blamed on Mr. Hissène Habré would not be covered by the immunities in force abroad, the arrest warrant would he valid in law. It is the international competent organ to give precision in the portion « of the immunities of the jurisdiction which granted to him in the other States » which would-removed partially under international law[53]. According the Senegalese Court, the survival of the absolute immunities seems perpetual.
  7. If we observe the African practice since forty years, from the bloody coup d’état at in Togo (1963), which cost life to Sylvanus Olympio[54] to the bloodless coup d’état in Mauritania (2005), which constrained Ould Taya to exile; people don’t know the warrant emitted by an African State against an African fallen Head of State for the atrocities which he will have committed or ordered to perpetrate when he was still in power.
  8. On a great number of toppled down Heads of State, suspected of serious, massive and systematic violations of human rights the majority seems to have found asylum either in Africa[55], or in the Middle East[56] or in Europe[57] or again in America[58] without generally any application extradition were submitted to the asylum State.
  9. Some Heads of State were violently murdered the day after the overthrow[59]. A few number of others remained in their countries after the removal from office notwithstanding the disturbances worsened[60].
  10. To be rare, there wasn’t the inexisting of the judgement, in the conditions apparently non decried as unjust and inequitable. The African practice rather seems to be that there are hardly any cases of criminal prosecution and the judgment for former Heads of State or the high State officials in national courts. Only two cases have been brought to our attention. These cases were about two former Heads of State: Mr J.B. Bokassa (Central African Republic) and Mr Moussa Traoré (Mali). Mr Moussa Traoré was suspected of having committed serious crimes. The proceedings are brought before a national court. In the case concerning the arrest warrant of 11 April 2000, the ICJ decided that a former Minister for Foreign Affairs… « enjoy no criminal immunity under international law in their own countr[y], and may thus be tried by that court in accordance with the relevant rules of domestic law. In theory and practice, the Court is right. In conclusion these cases are not hypothetical. Malian authorities were willing to investigate and to prosecute, the crime gone punished. Nowhere does any State mention that it has investigated to the allegations of core crimes against Mr Moussa Traoré. Of course, this hypothetical initiative even has been perceived an insult, incompatible with Malian dignity. Mali has taken up the matter itself. Such was the case of the former Centrafrican Head of State Jean — Bedel Bokassa. But nevertheless he established a heavy and dark winter of terror between 1966 and 1979. For many Africans, the murderous regimes of Mobutu, Idi Amin Dada and Macias Nguema marked one long period of unqualified disaster .No one would know in any case to defend the impunity of whomsoever and wherever .
  11. Nevertheless, the Applicant is it able to maintain for its part that it is only country in the world where the eventual Tchadian victims were able to obtain the naturalization? Wouldn’t there be French, Canadians of Tchadian origin who could attempt to claim the individual rights before their new State Court? Why isn’t there analogous judicial agitation in France, in Canada, and so on? Belgium is it able to satisfy the conditions of an impartial criminal trial already talked of above in a case like this.
  12. It is true that on the subject the principle devoted to the Latin saying wants that aut dedere aut judicare. But with regard to the prepreliminary observations, to borrow the expression of an outstanding judge of the international Court of justice ,it would be necessary to resist the so great attempt to rule ultra petita, namely on the « criminal punishment  » in the sense of the four Geneva Convention or to the  » judiciary mutual cooperation » according to the terms of Protocol I additional to the Conventions though the qualification of the armed conflict in Tchad and the facts which took place there are fundamental. With that, the international lawyer would have due time much to say in the light of the international conventional law and of the modern custom law.
  13. Even though the author gave way to the almost prophetic words of judge Francisco Rezek: « There are many judges in the southern hemisphere, no less qualified than Mr Vandermeersch, and, like him, imbued with good faith and a deep attachment to human rights and peoples’ rights, who would not hesitate for one instant to launch criminal proceedings against various leaders in the northern hemisphere in relation to recent military episodes, all of which have occurred north of the equator. Their knowledge of the facts is no less complete, or less impartial, then knowledge which the Court in Brussels thinks it possesses… [W]hy do these judges show restraint? Because they are aware that international law does not permit the assertion of criminal jurisdiction in such circumstances. Because they know that their national Governments, in light of this legal reality would never support such action at international level »[61].

[1] Tenaille, Frank, Les 56 Afriques. Guide politique/de M à Z, Paris, Maspero, Petite Collection Maspero, 1979, p.136.

[2] See Arrest Warrant Case, Judgment of 14, February 2002, ICJ, Rec, 2002, p.9, par 15 ; David, Eric, Principes de droit des confits armés, 3ème édit, Bruxelles, Bruylant, 2002, pp.720 et ss, 810 et ss

[3] See the Judgment Number 135 of 4 July 2000, Dakar Court of Appeals, African Journal of International and Comparative Law, Vol. 12, n°4, December 2000, pp. 815-820.

[4] See the 1st considérant, Judgment of 25 November 2005.

[5] Ibid

[6] See the 2nd considérant, Ibid.

[7] See the 3rd considérant, Ibid.

[8] See the 4th considérant, Ibid.

[9] See the 5th considérant, Ibid.

[10] See the 6th considérant, Ibid

[11] See the 7th considérant, Ibid

[12] See Van Den Wyngaert, Christine, Dissenting Opinion, Arrest Warrant Case, Judgment of 14 February 2002, par. 13.

[13] See, Bula — Bula, S., Les immunités pénales et l’inviolabilité du ministre des Affaires étrangères en droit international. Principes. Caractères. Port& Exceptions. Limites. Sanctions. Préface de Mohammed Bedjaoui, Bruxelles, Bruylant, 2004, 189 pp.

[14] See the 8th considérant , Judgment of 25 November 2005

[15] See the 9th considérant, Ibid.

[16] See the 10th considérant, Ibid.

[17] See the points 1, 2 and 3 of the dispositive, Ibid.

[18] See 3rd considérant, the Judgment of 25 November 2005.

[19] Arrest Wan-ant Case Judgment of 14 February 2002, ICJ, Reports, par.51.

[20] Arrest Warrant Case Judgment of 14 February 2002, ICJ, Reports, p.25, par. 61. See also, Marco Sassoli , L’arrêt Yerodia :quelques remarques sur une affaire au point de collision entre les deux couches du droit international, Revue générale de droit international public, tome 106, n°4, 2002, p.800. : « ce passage implique toutefois clairement qu’un gouvernant continu à bénéficier d’une immunité pénale devant des tribunaux d’Etats tiers pour des actes de la fonction. »

[21] See Bula — Bula, S., Les immunités pénales… , op. cit, p.12222

[22] See Hauriou, A et Gicquel , J, avec la participation de Gélard . P., Droit constitutionnel et institutions politiques, Paris , Editions Montchrestien, 1980, p.1050.

[23] See Article 7, African Charter on Human and People Rights, adopted at Nairobi on 26 June 1981, in force on 21 October 1986.

[24] See the 8th considérant, Judgment of 25 November 2005

[25] See R. Ranjeva, Declaration, Case concerning the arrest warrant of I I April 2000 ( DRC v. Belgium) judgment of 14 February 2002, p.58.

[26] See oral pleadings of Monique —Chemillier — Gendreau , CR 2001/9, pp. 12 —13

[27] See Marc Henzelin, La compétence pénale universelle : une question non résolue par l’arrêt Yerodia , Revue générale de droit international public , tome 106, n°4 , 2002, p.851, note 93 : « …on peut aussi s’ étonner avec le Juge Bula– Bula…, que la justice belge soit si enthousiaste à poursuivre l’ancien ministre Yerodia alors que deux rapports d’experts mandatés par le Secrétaire général des Nations Unies montrent que de nombreuses sociétés belges participent au pillage des ressources de la R.D.C, ceci en violation de la IV ème convention de Genève et des conventions de La Haye de 1899 et les règlements annexés … ».

[28] See this point, S. Bula- Bula , dissenting opinion , arrest warrant case, ICJ , Reports 2002, p 106 ; Marc Henzelin, la compétence pénale universelle : une question non résolue par l’arrêt Yerodia , Revue générale de droit international public, tome 106, n°4, 2002,p.851, notes 93 : « on peut aussi s’étonner, avec le juge Bula – Bula…, que la justice belge soit si enthousiaste , à poursuivre l’ancien ministre Yérodia alors que deux rapports d’experts mandatés par le Secrétaire général des Nations Unies montrent que de nombreuses sociétés belges participent au pillage des ressources de la RDC, ceci en violation de la Même convention de Genève et de convention de La Haye de 1899 et 1907 et les Règlements annexés… ».

[29] See Warrant Case of I I April 2000, loc. cit , par.61

[30] See D. Ruzie. Droit international public, Memento, 17e édition, Paris, Dalloz, p.79 : « la question de l’immunité du ministre de l’Intérieur est soulevée dans l’affaire Congo/ France » pendante devant la C.I.J.

[31] See the 8th considérant, Judgment of 25 November 2005.

[32] See article 2. par. 1, United Nations Charter.

[33] See Guillaume, G. La compétence universelle. Du code Justinien à l’affaire Yerodia, La Cour internationale de Justice à l’aube du XXI siècle. Le regard d’un juge , Paris , Pedone, 2003, pp.235-236.

[34] See Francisco Rezek, separate opinion, arrest warrant case, loc. cit ., p, 92, par. 4.

[35] See P. Daillier et Pellet, A, Droll international public, 7e édit, Paris, LGDJ, 2002, p.685.

[36] G. Guillaume, La compétence universelle…, loc.cit, p.37.

[37] See G. Guillaume, lbid, p.44

[38] See Christine Van Den Wyngaert, Dissenting opinion, loc. cit , p.141.

[39] See G. Guillaume, La compétence universelle…, loc. cit, p.38

[40] See Pradel , J., Droit pénal général, 15e édition, Paris, Cujas, 2004, p.202.

[41] Ibid

[42] See D. Ruzid, Droit international public ,op.cit, p.79

[43] See P. Daillier et A. Pellet, Droit international public, op. cit, p.717.

[44] Ibid

[45] See the 9th considérant, Judgment of 25 November 2005.

[46] See Arrest Warrant Case of I I April 2000, loc. cit, par.54

[47] See Joe Verhoeven, Mandat d’arrêt international et statut du ministre, Actualité et droit international, wwwridi.org/adi, p.2.

[48] Ibid

[49] See J.P. Quéneudec, Un art& de principe : l’arrêt de la CIJ du 14 février 2002, Actualité et droit international, http : http://www.ridi.org/adi/articles /2002 novembre 2005.

[50] See 8th considérant Judgment of 25 November 2005.

[51] Case concerning the arrest warrant of I I April 2000 (DRC v. Belgium), loc. cit, p.25, par.61.

[52] Ibid.

[53] Ibid.

[54] Whatoever he was not a [lead of State, the Congolese first Prime minister was murdered on 17 January 1961.

[55] For example, Hailé Mariam Mengistu , Milton Obote, El Numeiry, Siad Barré, Goukouni Weddeye, Mobutu Sese Seko, Charles Taylor, Ange Patassé, Idriss El Senoussi…

[56] For example, Amin Dada, Ould Taya , Sekou Touré , Farouk…

[57] For example , Jean – Bedel Bokassa, Pascal Lissouba, Didier Ratsiraka, Nino Vieyra , Fulbert Youlou, Yakubu Gowon, A Ahidjo

[58] For example the king Kigeri.

[59] For example, Hailé Selassié , Samuel Doe et Fernando Macias Nguema a executed after a sketchy trial ». See C. Clapham, Africa and the International System. The Politics of State Survival, Cambridge, Cambridge University Press, 1996, p.190.

[60] For example , Jerry Rawlings, Joaquim Chissano, Sam Nujoma, Julius Nyerere , Pierre Buyoya, Benjamin Mkapa, Olegun Obasanjo, Luis Cabral, David Dacko, Fdlix Malloum, Massamba­ Débat, Joseph Kasa- Vubu, J.B. Bagaza, F.Declerk, Botha, A. Moi, Kamuzu Banda, etc.

[61] See, F. Rezek, Separate opinion , Arrest Warrant Case, loc. cit, p.93, par.9

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