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Published online by Cambridge University Press: 17 January 2008
In its decision in the Arrest Warrant case,2 the International Court of Justice studiedly refused to address systematically the legality and ambit of a purported exercise in absentia of universal criminal jurisdiction by one State over a government minister of another State. This, coupled with the dicta of certain judges with reservations as to the scope of universal jurisdiction3 and the (at best) lukewarm support for such jurisdiction displayed by certain other judges,4 might be taken as a discouragement to States to engage in similar exercises of jurisdiction. However, the contemporary trend in many developed States in favour of taking measures of extraterritorial enforcement jurisdiction to apprehend and punish the alleged perpetrators of serious international law crimes, coupled with the entry into force of the Statute of the International Criminal Court, indicates that more such attempts are quite likely to be made. Within a year of its decision in the Arrest Warrant case, the ICJ again found itself the forum for a similar dispute. On 9 December 2002 the Republic of the Congo (‘the Congo’) filed an Application instituting proceedings against France5 in circumstances notably resembling those that had prompted the Democratic Republic of the Congo (‘the DRC’) to act against Belgium. Again, the Applicant was an African State protesting against an alleged abuse of universal jurisdiction and failure to respect immunities on the part of its European former colonial ruler. Despite the prima facie similarity between the two cases, however, the chances that the eventual decision in the Certain Criminal Proceedings case will go beyond the Arrest Warrant case to elucidate the doctrine of universal jurisdiction are very slight. This note is confined to considering the circumstances behind the Congolese Application and Request for the Indication of a Provisional Measure, and the Court's response thereto in its Order of 17 June 2003.
1 Case Concerning Certain Criminal Proceedings in France (Republic of the Congo v France), Order on the Request for the Indication of a Provisional Measure, 17 June 2003. See ICJ Press Release 2003/20.Google Scholar
2 Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), Judgment, 14 Feb 2002. See ICJ Press Release 2002/4.Google Scholar
3 Notably President Guillaume and Judges Ranjeva and RezekGoogle Scholar
4 Notably Judges Higgins, , Kooijmans, , and Buergenthal, . The only judge to express unqualified support for full universal jurisdiction was Judge ad hoc Van den Wyngaert in her Dissenting Opinion.Google Scholar
5 The Congo proposed to found the Court's jurisdiction to hear the case on Art 38(5) of the Court's Statute, pursuant to which France consented to the jurisdiction of the Court in April 2003: see Order of 17 June 2003, paras 3 and 5–6.Google Scholar
6 Order of 11 July 2003. See ICJ Press Release 2003/21.Google Scholar
7 Order of 17 June 2003, para 10.Google Scholar
9 Ibid, para 11.
10 Art 689–1 is a general enabling provision. The conventions in question are then specified in the rest of Art 689; they include those prohibiting torture (Art 689–2), various forms of terrorism (Art 689–3), unauthorized transfer, appropriation, etc of nuclear material (Art 689–4), unlawful acts against the safety of maritime navigation (Art 689–5), hijacking and other unlawful acts against the safety of civil aviation (Art 689–6) and civil airports (Art 689–7), corruption in the European Union (Art 689–8), terrorist bombings (Art 689–9) and the financing of terrorism (Art 689–10).Google Scholar
11 UN Convention Against Torture and Other Cruel, Inhuman or Degrading Punishments or Treatment (1984) 23 ILM 1027 and 24 ILM 535.Google Scholar
12 Order of 17 June 2003, para 14.Google Scholar
13 Ibid, para 15.
14 Ibid, para 16.
15 Ibid, para 17.
16 Ibid, paras 4 and 24.
17 Ibid, paras 1 and 23. The Congo also referred in its oral pleadings to an alleged violation by France of the principle of non bis in idem, in that the proceedings in Meaux related to matters which were also the subject of criminal proceedings in Brazzaville, and to a vaguely defined principle of ‘subsidiarity’ which the Congo claimed was applicable in criminal proceedings with an international element. However, neither of these grounds was invoked by the Congo as conferring upon it ‘specific rights which might be threatened in such a way as to justify their protection by the indication of provisional measures’: ibid, para 25.
18 Ibid, paras 26–7.
19 Ibid, para 31.
20 Ibid, para 33.
21 Ibid, para 37.
22 Ibid, para 38.
23 Ibid, para 41.
24 Ibid, para 35.
25 Ibid, para 29.
26 Ibid, para 39.
27 Judges Koroma, and Vereshchetin, , Joint Separate Opinion, paras 4–5.Google Scholar
28 See Order of 17 June 2003, para 29.Google Scholar
29 Judges Koroma, and Vereshchetin, , Joint Separate Opinion, para 8.Google Scholar
30 For criticism, see, eg, Turns, D ‘Case Notes’ (2002) 3 Melbourne JIL 383;Google ScholarWirth, S ‘Immunity for Core Crimes? The ICJ's Judgment in The Congo v. Belgium Case’ (2002) 13 EJIL 877;CrossRefGoogle ScholarCassese, A ‘When May Senior State Officials Be Tried for International Crimes? Some Comments on The Congo v Belgium Case’ (2002) 13 EJIL 853.CrossRefGoogle Scholar
31 Arrest Warrant Case, above n 2, Judge Oda, Dissenting Opinion, para 7.Google Scholar
32 See above, text to nn 19–20.Google Scholar
