Immunity for Core Crimes? The ICJ's Judgment in the Congo v. Belgium Case

Abstract

The ICJ, in its Judgment in The Congo v. Belgium (the so‐called Yerodia case), stated in a problematic obiter dictum that, before national courts, former Ministers for Foreign Affairs enjoy immunity even if they committed a serious international crime, unless they acted in their private capacity. It seems that this statement (for which the Court gives no reasons) does not properly reflect the current state of customary international law. Rather, modern state practice and opinion juris deny immunities for core crimes to all former and incumbent state officials with the sole exception of the highest state representatives such as Heads of State or Ministers for Foreign Affairs; and even these persons are protected only while in office (as has been demonstrated in the Pinochet case). It is submitted that this rule not only reflects positive law but at the same time strikes the proper balance between, on the one hand, the need to protect a state's ability to discharge its most important tasks (such as the maintenance of peace), and, on the other hand, the need to punish serious violations of human rights (once retired, even Heads of State can be held responsible).