International Court of Justice spoils Belgium's Sharon case

By Herb Keinon, The Jerusalem Post, 15 February 2002

JERUSALEM (February 15)—The International Court of Justice dealt a death blow to the Belgian attempt to try Prime Minister Ariel Sharon for alleged war crimes yesterday, ruling serving ministers are protected from prosecution.

Jan Devadder, legal adviser to the Belgian Foreign Ministry, said The Hague-based court's landmark decision would likely prompt Belgium to drop its case against Sharon.

The Sharon case, in my opinion, is closed, Devadder said after the ruling by the UN's highest judicial body.

The court ruled Belgium has no right to issue an arrest warrant for former Congolese foreign minister Yerodia Aboulaye Ndombasi, accused of human rights abuses, because he is immune from prosecution.

The case is similar to the Sharon lawsuit being considered by Belgian courts. A Belgian court was scheduled to rule on March 6 whether it has the jurisdiction to try Sharon for alleged war crimes stemming from the Sabra and Shatilla massacres in 1982. Alan Baker, the Foreign Ministry's legal adviser, said he is pleased by the decision.

One of the central elements in our case in the Belgian courts was they have no jurisdiction to try the prime minister, Baker said. We hope the Belgian court will recognize this principle and act accordingly.

Baker said it would be highly unusual for the Belgian court to go against a International Court of Justice ruling.

The case against Ndombasi has been pending for years, and it was just coincidental the court issued its judgment now, Baker said. Baker said the court not only declared Ndombasi has immunity, but also ordered Belgium to cancel the arrest warrant against him, meaning the ruling is not just declaratory.

Baker said the decision will also impact on the cases pending in Belgium against more than 20 other world leaders, including Cuban President Fidel Castro and Palestinian Authority Chairman Yasser Arafat.

Court President Gilbert Guillaume said the court concluded that there existed no exception under international law to the rule establishing immunity from criminal process before foreign national courts. Guillaume said the court found the Belgian investigating judge was not entitled to hold himself competent in respect of the offenses in question relying on a universal jurisdiction not recognized by international law.

A controversial Belgian law gave Belgian courts universal jurisdiction, meaning they could try alleged crimes against humanity that took place on foreign soil and did not involve Belgian nationals. Ndombasi was accused in August 1988 of inciting hatred against ethnic Tutsis in speeches referring to vermin and extermination. Up to one million Tutsis and moderate Hutus were massacred in the 1994 genocide in Rwanda.

The arrest warrant, issued in April 2000, prompted the late Congolese president Laurent Kabila to shift Ndombasi to the Education Ministry. Ndombasi has been out of government since last April.

The ruling also attacked the Belgian law allowing foreign public figures to be tried for human rights crimes, wherever they were committed, while still in office.

[Belgian judges] will have to take into account today's judgment. The judgment is clear: immunity for all ministers for all crimes while still in office, Devadder said.

But Michael Verhaeghe, lawyer for the plaintiffs in the case against Sharon, said he believes the Sharon case can continue.

I believe there is the possibility of continuing the investigation into Sharon, because our case cannot be considered an obstacle to the exercise of public functions as defined by the ICJ, he said. New York-based Human Rights Watch said it is disappointed by the ruling, which effectively shields some state officials from prosecution for atrocities. Government ministers who commit crimes against humanity are not likely to be prosecuted at home, and this ruling means they will enjoy impunity abroad as well, said Reed Brody, the group's advocacy director.