Universal Jurisdiction In Absentia
| Author | Alexander Poels |
| Published date | 01 March 2005 |
| Date | 01 March 2005 |
| DOI | http://doi.org/10.1177/016934410502300104 |
| Subject Matter | Part A: Article |
UNIVERSAL JURISDICTION
IN ABSENTIA
ALEXANDER POELS*
Abstract
Following the International Court of Justice’s judgement of 14 February 2002 in the Arrest
Warrant Case, the lawfulness of universal jurisdiction in absentia has been questioned anew.
The exercise of universal jurisdiction has acquired a strong legal basis in customary and
conventional international law, as it has in national legislations. However, although
recognised by numerous national legislations, the in absentia exercise of absolute universal
jurisdiction remains highly controversial in an international context, as are its human rights
safeguards and the question whether the issuance of an arrest warrant is a prerequisite for the
exercise of universal jurisdiction in absentia. Nonetheless, considerable are the benefits of the
acceptance of universal jurisdiction in absentia for international criminal justice and human
rights protection, especially in the fight against international criminal impunity.
1. INTRODUCTION
The International Court of Justice has delivered on 14 February 2002 a highly
controversial judgement in the case concerning the international arrest warrant in
absentia issued on 11 April 2000 by investigating judge Vandermeersch of the
Brussels Tribunal of First Instance against Mr. Abdulaye Yerodia Ndombasi, the
Minister of Foreign Affairs in office of the Democratic Republic of the Congo.
1
The
latter was being accused of having committed ‘grave breaches’ of the Geneva
Conventions of 1949 and of the Additional Protocols thereto, as well as crimes
against humanity, both charges being based on the alleged incitement of racial
hatred via various speeches during the month of August 1998, while he was still a
member of the Congolese Government.
2
Belgium, the defending party before the
International Court of Justice, submitted that the crimes for which Mr. Yerodia was
held responsible were punishable under its Law of 16 June 1993 as amended by the
Law of 10 February 1999 ‘concerning the punishment of grave breaches of the
international humanitarian law’, which contains not only a provision denying any
Netherlands Quarterly of Human Rights, Vol. 23/1, 65-84, 2005.
#Netherlands Institute of Human Rights (SIM), Printed in the Netherlands. 65
* LL.B. (Catholic University Louvain, Belgium, 2000); LL.M. (Catholic University Louvain, Belgium,
2003); LL.M. in International Environmental Law (Ha´sko´li I
´slands, Iceland, 2004). The author
would like to thank Professor Thormundsson (Ha´sko´liI
´slands) for his guidance and comments
with regard to this article.
1
International Court of Justice, Case concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of
the Congo v. Belgium), judgement of 14 February 2002, www.icj-cij.org (last visited on 11 December
2003) (hereafter ‘Arrest Warrant Case ICJ’).
2
Ibidem, paras 13 and 15.
66
immunity attached to an official position,
3
but also provides for the exercise by
Belgian courts of universal jurisdiction in absentia over crimes of genocide, war
crimes and crimes against humanity.
4
In its final submission to the International Court of Justice, the Democratic
Republic of the Congo upheld only its claim relating to the unlawfulness of the arrest
warrant; it claimed that the arrest warrant in casu violated the rule of customary
international law concerning the absolute inviolability and immunity from criminal
process of incumbent Ministers of Foreign Affairs.
5
Notwithstanding the Democratic
Republic of the Congo’s initial, but subsequently withdrawn, ground of challenge of
the legality of the international arrest warrant consisting of the violation by the
Belgian State of the principle that a State may not exercise its authority on the
territory of another State and the principle of sovereign equality among all Members
of the United Nations,
6
the International Court of Justice rather disappointingly
overlooked the opportunity to iterate a ruling on the widely debated issues of
universal jurisdiction in general, and universal jurisdiction in absentia in particular.
Increasingly frequently, legal questions are being raised concerning the
admissibility and pragmatic feasibility of universal jurisdiction in absentia; in some
recent court cases, inter alia in the Pinochet cases in the United Kingdom and in
Spain,
7
in the Tadiæ Case in Germany
8
and before the International Criminal
Tribunal for the Former Yugoslavia,
9
and in the judgements by the Brussels Court of
Appeals in the cases of Yerodia,
10
Sharon
11
and Gbagbo,
12
both national and
international courts have been confronted with the question of universal jurisdic-
tion in absentia and have been solicited to situate this legal concept within the
current quest by the international community for a progressive judicial instrumenta-
rium against criminal impunity for international crimes, the general demands of
international law and pragmatic attainability for the courts.
In this article, the concepts and recent developments of universal jurisdiction
(paragraph 2) and universal jurisdiction in absentia (paragraph 3) will be analysed,
both from a legal theoretical and from a practical standpoint, whereafter some
arguments in favour of the acceptance of universal jurisdiction in absentia will be
forwarded (paragraph 4), on the basis of the current trends in legal theory and
philosophy and the rapidly evolving needs of international criminal law.
Alexander Poels
3
Article 5(3), Wet van 10 februari 1999 tot wijziging van de Wet van 16 juni 1993 betreffende de
bestraffing van ernstige schendingen van het internationaal humanitair recht [Law of 10 February
1999 amending the Law of 16 June 1993 concerning the punishment of grave breaches of the
international humanitarian law], www.staatsblad.be (last visited on 11 December 2003).
4
Ibidem, Article 7.
5
Arrest Warrant Case ICJ, supra note 1, para. 12.
6
Ibidem, para. 45.
7
Woodhouse, D. (ed.), The Pinochet Case, A Legal and Constitutional Analysis, Hart Publishing, Oxford-
Portland, 2000.
8
McKay, F., ‘Universal jurisdiction in Europe: criminal prosecutions in Europe since 1990 for war
crimes, crimes against Humanity and genocide’, www.redress.org/unijeur.html (last visited on
11 December 2003).
9
International Criminal Tribunal for the Former Yugoslavia (Appeals Chamber), Prosecutor vs Dusko
Tadic, 2 October 1995.
10
Brussels Court of Appeals, 16 April 2002, www.cass.be (last visited on 11 December 2003).
11
Brussels Court of Appeals, 26 June 2002, www.cass.be (last visited on 11 December 2003).
12
Idem.
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