The determination by the State of its residual sphere of freedom: "national

competence

It is up to each State to determine the sphere in which it accepts international limitations, the
rest falling within its "national competence" or its "reserved domain". This is due to the initial
character of State freedom.

a) The initial character of State freedom

Initially, before imposing any obligation on itself, the State derives from its sovereignty a
freedom not to bind itself on the international scene, limited only by its statutory obligations.
This freedom is consubstantial with the State and remains intact as long as the State has not
restricted it by self-limitation. At this stage, therefore, the behaviour of the State is still in-
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It is up to each State to limit its rights at a later stage. It is up to each State to limit this
freedom subsequently by allowing itself to be framed in rules that it has not produced alone
(international law), thus restricting what falls within its "national" (or reserved) domain. To this
extent, the State is initial and the international rules it obeys, with the exception of those
governing its status, are derived.
However, no field is by nature or by its object within this "national competence" of the State,
i.e., no matter is by definition internal, unsuitable for regulation by international law.
Conversely, no field is fundamentally destined to be governed by international rules. It is up
to each State to decide for itself whether it intends that a given matter should fall within the
exclusive competence of its domestic law or be regulated jointly within the framework of the
international order.
In practice, there are matters in respect of which States do not intend to leave others
unconditional freedom: this is the case of rules relating to purely interstate relations. Other
matters, on the other hand, appear to be so closely related to the intimacy of the State that
all wish to remove them from the jurisdiction of international law. This was the case, for
example, with regard to the choice of political, economic, social and cultural system. But, in
itself, there is nothing to prevent states from renouncing this freedom, and today many of
them participate in international organizations or treaties involving adherence to the
principles of pluralist democracy, the rule of law, and a free economy.
but no longer. Thus, the boundary between international law and state law results not so
much from the content of the matters they are called upon to govern (always fluctuating), as
from very heavy de facto constraints, which stem from the fact that all states possess the
same ability to limit or not their primitive freedom.
The state that reduces its liberties for the future does not act out of idealism, but because, in
a particular domain of social relations, it finds it in its interest that the conduct of others obey
rules laid down in common and not state rules over which, except for its own, it has no
power. The only way to obtain from other states that they renounce their exclusive and
discretionary powers is to reciprocally renounce their own. International law is the sum of
these renunciations, which makes it a contingent right, variable from one State to another,
and evolving over time. The result is a considerable consequence: the State benefits from a
presumption of freedom which can only be destroyed by proof to the contrary that an
international rule binds it.

b. The presumption of freedom

As we have seen, as a sovereign subject, the State cannot have rules of law imposed on it to
which it has not consented. Sovereignty is confused with its twofold freedom: (1) freedom to
decide whether to impose rules on itself in a given area, and (2) freedom to act within the
limits it has imposed on itself. Because this freedom is inherent to the State, because it exists
with it, the State remains free to act as long as it does not impose on itself a rule expressly
prohibiting it. This was affirmed by the Permanent Court of International Justice in its
judgment of 7 September 1927 in the Lotus case.
Due to a navigational error, a French ship had collided with a Turkish ship on the high seas,
causing significant damage. The Turkish authorities wanted to exercise their criminal
jurisdiction over the captain, a French officer, who in their view was responsible for this
navigational error. As the flag State, France claimed to have exclusive jurisdiction to try the
person concerned. It considered that Turkey, in order to exercise its jurisdiction, should have
a title expressly recognized by international law. According to Turkey, it was sufficient that
there was no rule prohibiting it from exercising its criminal jurisdiction for it to be able to do
so.
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The question posed to the Court was: when international law does not govern a State's
conduct, does this silence authorize it to act as it sees fit? The Court ruled that "the rules of
law binding on States derive from their will". It deduced that "limitations on the independence
of States cannot be presumed".
This means that there is a principle of freedom that can only be set aside by a proh- bitive
rule to the contrary. When international law is silent on the lawfulness of a State's conduct,
this silence authorizes it to act as it sees fit, in the name of a presumption of freedom that is
only overcome by proof of a prohibitive rule to the contrary. The State's freedom to act is
impaired only if there is a prohibitive rule. It is not necessary for it to have a title expressly
recognized by international law. To this extent, international law is not a law that confers
powers to act on States (the latter are initially capable). It only empowers non-state
international subjects, such as international organizations, which are only free to act in
accordance with and within the limits set out in the constitutive treaty.

2. The situation of the State in its residual sphere of freedom: the principle of non-
interference

In its residual sphere of freedom, each State is legally protected from the interference of third
parties by the principle of non-interference, which imposes a strict obligation of abstention.
This principle has been stated on numerous occasions, both by States (resolution 2625(XXV)
refers to the duty not to intervene in matters falling within the national jurisdiction of a State)
and by international organizations (art. 2§7 of the UN Charter). The customary value of the
principle was affirmed by the ICJ in 1986 in the case of US military and paramilitary activities
in Nicaragua.

a. Identification of Interference

(i) Interference in what: "internal affairs" - In the Military and Paramilitary Activities in
Nicaragua case, the International Court defines interference as the fact that a State or group
of States "intervenes directly or indirectly in the internal or external affairs of another State",
and specifies that the interference concerns "matters in respect of which the principle of
State sovereignty permits each State to decide freely".
Thus, Article 2§7 of the UN Charter, which prohibits interference in matters that are
"essentially within the domestic jurisdiction of any State" is misleading. This is not to say that
certain matters are by nature within the residual freedom of the State, but only that any
intervention in the sphere in which the State has not limited its original freedom, in a matter
which is therefore within its exclusive national competence, is an interference in that, in this
given field, the State (and only the State) has reserved to itself the possibility of acting in a
discretionary manner (where others may have agreed to submit to a constraint resulting from
international law). Interference is thus an intervention in the residual sphere of freedom of a
state (in its internal affairs) without its authorization. However, this intervention consists of
something quite specific: interference is broadly understood as interference in the sphere of
action of the State.
(ii) Interfering how? Interference must be distinguished from "intervention" which, broadly
understood, most often covers other infringements of the sovereignty of a State and, strictly
understood, involves the carrying out of material operations, especially on foreign territory.
Even when it does not involve the use of force, which is in any case prohibited, the
prohibition of intervention results from the principle of the exclusivity of operational territorial
jurisdiction. Interference takes on very different forms from intervention, which may be
immaterial. Thus, a simple taking of
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Thus, a simple statement of position (on the policy followed by the government, on a
decision, on guidelines, etc.) may constitute interference, but also, at a higher level, an
invitation to act in a given direction, possibly accompanied by pressure intended to compel
the recipient to do so.
In short, the combination of the two criteria shows that interference begins when a subject or
a group of subjects meddles in what does not concern them, that is to say, in what a State
does in a field where it has not submitted to any constraint resulting from international law
and has thus reserved for itself the possibility of acting discretionarily. What happens then
when a State or an organization interferes?

b. Legal effects of interference

Given the fact that interference may also run counter to other rules of international law than
the principle of non-interference, it is difficult to determine how the latter will play out.
Thus, a threat to use force, the use of force itself, or even a material intervention on the
territory of a State may be interfering conduct, and therefore unlawful on that account alone.
But they also fall respectively under the principle of non-use of force and the principle of non-
intervention (based on the exclusivity of operational territorial jurisdiction). And, it is in this
capacity above all that they will be judged. In the final analysis, the principle of non-
interference applies autonomously only to conduct that does not fall within the principle of
non-intervention; to conduct that is generally verbal, sometimes normative (a value
judgement, etc.) and which may or may not, depending on the case, involve pressure from
the author on the recipient. Most often, this pressure consists in the fact that the first State
subordinates its action to the fact that the second State complies with its wishes.
If interference takes the form of simple judgments without pressure, it is certainly an im-
mixtion, but it is relatively harmless since it is limited to contesting the way in which a State
uses its freedom without openly claiming to induce it to make better use of it. It gives rise to
protests which attest to its discourteous character, but generally remains without remarkable
consequences.
If the interference consists of pressure aimed at influencing the state which is subjected to it,
it is considered illicit in two situations:
- if it aims to undermine the stability of its government, for example by aiding rebels who seek
to overthrow it (ICJ, Nicaragua, 1986);
- when it results in the deprivation of a right and therefore consists in the violation of an
obligation by the perpetrator. In this case, the unlawful interference always results from the
violation of a pre-existing obligation. On the other hand, it is not unlawful if it consists of the
perpetrator using one of his legal discretionary powers.
The typical example in this respect is that of the State or international organization which, in
a context where it is under no obligation to grant any kind of aid, makes its granting
conditional on a certain political or economic orientation of its potential beneficiary. The fact
that the granting of the benefits in question is subject to conditions undoubtedly represents
an interference in matters within the competence of the person who hopes or requests them.
The conditions imposed are in fact openly intended to guide decisions which fall within the
discretionary power of the State and thus affect its residual freedom. But the fact remains
that, since these advantages are in themselves granted at the free discretion of their holder,
and thus no third party has a right to be granted them, the State or the organization is merely
exercising its discretionary power.

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The status of a sovereign state also has repercussions in foreign internal orders.
foreign internal orders as well.
B) In foreign internal orders
Internal subjects and property located in the territory of a foreign state are normally subject,
at least concurrently, to the domestic law of that state. Now, among these foreigners or their
property, there may be individuals who are agents of another State, legal persons dependent
on it, etc., as well as property belonging to another State.
The figures of the State abroad are numerous in fact: the State as a legal person itself, its
dismemberments (public persons), its organs (Heads of State, Head of Government, MFA
and possibly other ministers), its diplomatic missions and consular missions, its warships.
Diplomatic relations are the relations that States maintain between themselves at
governmental level, represented by diplomatic agents. The capacity of representative
recognized to the agents makes them an expression of the sovereignty of the State and
justifies their privileged status as well as that of their premises and their goods.
Consular missions are a kind of agency of the State in a foreign community, their functions
concerning mainly transnational relations. They are not representative of the sending State
and do not really express its sovereignty.
In addition to diplomatic and consular missions, there are missions to the headquarters of an
international organization. Since international organizations do not have their own territory,
they borrow the territory of one or more States to establish their headquarters. The member
states send agents to the headquarters to represent them in the organization. The
permanent agents form the diplomatic mission (or representation) which may, according to
needs, include temporary delegations. The mission is established in diplomatic premises.

Internal law is the means by which state power is manifested. To subject the activities of a
state, its property, its agents, its premises ... to foreign state rules, or to make certain legal
operations possible against it (such as legal action or forced execution) would be tantamount
to subjecting that state to a foreign state power and thus to undermining the independence it
needs to perform its functions properly. There is therefore a status derogating from ordinary
law applicable to any State, its property, its premises, its organs and its agents, and
comprising a set of privileges whose consistency (1) and scope (2) must be presented.

1. Consistency of privileges: exemptions and immunities

a. Exemptions

(i) Definition - Exemptions render inapplicable to the State (to its branches, agents, organs,
and property) substantive foreign rules likely to infringe its sovereignty, principally the rules of
public law embodying the general interest [fiscal laws; laws on expropriation for diplomatic
premises; laws relating to postal communications for mail carried in the diplomatic bag]. The
State (its departments, its agents, etc.) is, however, only exempted from the application of
foreign rules
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This does not exclude the possibility for it to carry out an activity abroad by using local law, in
particular private law (employment contracts, maintenance contracts, etc.).
(ii) Scope of application -
(ii-i) The exemptions apply first of all to State premises which house the activities of the State
in the exercise of its sovereign power [diplomatic premises and warships]. By virtue of a
principle of inviolability, these premises are protected from the application of territorial rules
which allow the carrying out of material operations on persons or property located there. This
principle of inviolability has its own effects for any subject of ordinary law who seeks refuge in
diplomatic premises or on board a warship (diplomatic asylum).
(ii-ii) The exemptions are also applicable to organs of the State, to State agents and their
entourage.

1°) The organs of the State [Head of State, Head of Government, MFA] as well as all
members of the diplomatic personnel [composed of 3 categories: 1° members of the
diplomatic mission, 2° members of the administrative and technical personnel of the mission,
3° members of the service personnel of the mission] and their families [for the 1st and 2nd
categories only] benefit from an extensive exemption:
- First, they are exempted from the rules of the host State governing access to its territory.
Thus, their admission is regulated jointly, between the sending State (sending) and the
receiving State (receiving).
For the constitution of diplomatic missions, the two States whose relations are concerned
agree on the identity of the head of mission (ambassador), who then receives approval. The
other members of the staff are appointed without approval, the sending State being obliged
to notify only their names and to maintain the size of the mission at a level which the sending
State considers reasonable.
- Secondly, and as a consequence of the fact that their access to foreign territory has been
decided upon jointly, all organs of the State as well as all members of the diplomatic staff and
the families of members of the first and second categories enjoy personal inviolability for the
entire duration of their functions in the country. This inviolability implies, first of all, that none
of the techniques allowing the refoulement or expulsion of ordinary subjects is applicable to
them. Inviolability then prohibits any exercise of coercion by the receiving State on the
protected persons. In particular, it entails for their benefit exemption from any form of arrest
or detention and prohibits any act or conduct likely to prevent them from freely disposing of
their property.
This does not mean, however, that the receiving State has no means of preventing access to
its territory or the continued stay of a person deemed undesirable. But these means do not
coincide with those applicable to aliens under ordinary law. For the receiving State, they
consist in the withdrawal of the authorization issued to diplomatic agents or in the refusal to
issue it. This withdrawal is discretionary and does not have to be justified. Once notified to
the sending State, it is up to the latter to recall the person concerned within a reasonable
period of time, on the expiry of which he will be refused membership of the mission by the
sending State, which will then be able to treat him as an ordinary foreigner.
(2) Members of consular missions are in a similar situation, but the concern to spare the
susceptibility of the sending State is less marked since these missions do not represent the
sending State in its relations with the receiving State. By agreeing to send a consular mission
to its territory, the foreign State undertakes, however, to respect

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In the case of consular missions, the inviolability of the consular mission shall be respected
by the foreign state, but only by the consular officials and their families, with the exception of
consular employees and service personnel.
For all members of diplomatic and consular missions, the rest of the substantive law of the
receiving State applies. Thus, the activities carried out abroad by government officials in their
personal capacity do not give rise to different treatment from that accorded to ordinary
foreigners. At most, they are, in addition to their inviolability, exempted from the application of
certain rules or institutions of public law which would make the public power of the foreign
State weigh on them in a way incompatible with that of the State of which they are agents
(taxes, customs duties, etc.). However, if the substantive law of the foreign State is largely
applicable to them, they benefit from immunities which protect them from the enforcement of
the substantive law of the State against them.

(b) Immunities

(i) Definition and typology - Immunities consist in exempting their beneficiaries from the rules
relating to the admissibility of applications and from those governing the means of
enforcement. They are therefore only a variety of exemptions, except that the foreign rules
that they set aside affect sovereignty in a more significant way. Immunity from jurisdiction
consists in exempting its beneficiary from the application of the laws governing the
admissibility of claims in a country, by rendering inadmissible, because of the status of the
defendant, actions which these courts could normally have heard.
Immunity from execution exempts its beneficiary from the rules governing the means of
enforcement available to any holder of an enforceable title [i.e. a judgment or an act which
allows the assistance of the public force to be requested in order to carry out, in the place of
the debtor, the obligations which the latter has not fulfilled]. These rules relating to
enforcement measures have the particularity of governing not legal operations but material
operations and, moreover, involving the exercise of constraint on the debtor or on his
property by the State authority. Through them, the state authority no longer implements a
normative power enabling it to govern conduct intellectually by means of commands, but an
operational power which empowers it to act itself, materially. An exercise of state power on
such a scale justifies that the foreign state (itself, all of its branches and services, its agents
and its property...) be totally exempt from it.
Immunity from jurisdiction and execution must be distinguished from inviolability, even if their
effects are often combined. Inviolability operates autonomously whenever the freedom of
movement of those it covers is threatened, even though no judicial action is directed against
them, nor any means of execution is possible. Inviolability thus opposes material actions
consisting in arresting and detaining persons, seizing property, entering premises which go
beyond the contours of the enforcement measures and do not completely cover them [for
example, provisional police measures, intended to prevent unlawful conduct or to put an end
to it are excluded against them]. For this reason, immunity from execution is set out
separately in diplomatic and consular law, and may be waived in civil matters, in particular if
the inviolability of the person or the premises is not thereby impaired.

(ii) Scope - A distinction must be made here between the State, as a legal person, and its
agents:
- Immunity from jurisdiction is granted to the State as a legal person in any action directed
against it and, in general, extended to the political subdivisions of the State and to all bodies
invested with a share of public power. At the same time, immunity from prosecution is
granted to the

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At the same time, immunity from execution protects the property of all public persons
enjoying the privilege of jurisdiction.
Immunities from jurisdiction are subject to objections of inadmissibility raised by the
representative of the State which avails itself of them. However, the State may waive one of
its immunities, either by an express declaration to that effect at the time of the action brought
against it, or in advance, by a conventional waiver. Consequently, if the State has not raised
a plea of inadmissibility but has not expressly waived its immunity, the judge must raise it ex
officio.
- The organs of the State (Head of State, Head of Government and MFA) as well as agents
who are members of diplomatic and consular missions also enjoy immunity from jurisdiction
and execution, the extent of which varies.

2. Extent of privileges

Two questions arise: those of the degree (2. a) and the scope of protection (2. b).

(a) Degree of protection: absolute or relative character of protection?

(i) Position of the problem: duality of the degrees of protection - The privileges granted to the
State itself, its branches, its property, its organs or its agents are always functional: their
object is the protection of a State function. But their scope can vary: relative (also called
"functional") or absolute. The protection is relative when the private activities of the protected
persons are subject to foreign law. It is absolute when it protects the persons even in the
case of activities that fall within their private sphere. This absolute protection lasts only during
the period of office. When the office ends, the protection becomes relative: private acts which
were performed before taking office and during the term of office are no longer protected and
may be subject to legal remedies, both judicial and enforceable.
(ii) Degree of protection afforded to the legal person State (and its dismemberments) - The
contemporary practice of national legislators and courts now accepts that civil proceedings
against the State are possible if the conduct they challenge is the exercise of private
functions (acte jure gestinonis), which do not attract the protection of international law. It is in
this sense that the immunity of the State, as a legal person and of its branches, is relative (or
"functional").
(iii) Degree of protection afforded to organs and agents of the State - Unlike the case of the
State as a legal person, the protection of organs and agents of the State is not always the
same. If, in fact, they benefit certain individuals personally, these privileges are functional in
their motives: beyond the individuals, it is the State that they protect. As a result, the degree
of protection varies (absolute or relative) according to the functions performed by the holder.
These alone justify the privileges and their extent. Certain functions can only be exercised if
the agent has real freedom, and it would then be prejudicial if the powers of the foreign State,
even if exercised over the representative in his private capacity, were to influence the
decisions he takes as a public official. It is therefore this criterion which will determine the
degree of protection.
In some cases, this question has been the subject of an assessment incorporated in a
convention. For example, the degree of protection granted to the personnel of diplomatic and
consular missions:

1 Thus, immunity from jurisdiction will be said to be absolute in the sense that it excludes all
prosecution of a person, regardless of the function, public or private, in the exercise of which
the conduct giving rise to the prosecution was engaged.
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1°) Vienna Convention of 18 April 1961 on Diplomatic Relations:

- Inviolability and immunity from execution: absolute for all members of the diplomatic staff
and their families (mission staff as well as administrative and technical staff);
- Immunity from criminal jurisdiction: absolute for all acts of members of the diplomatic
mission staff as well as for members of the administrative staff and their families. On the
other hand, immunity from criminal jurisdiction is restricted to acts performed in the course of
duty for personnel of diplomatic missions.
The absolute character of the immunity from jurisdiction is equivalent to a de facto exemption
from the criminal law of the foreign State. It therefore has its counterparts: the territorial State
may use the power to withdraw the privileges of continued residence from agents who are
accused of serious violations of its criminal legislation. Moreover, the immunity enjoyed by
the beneficiaries obliges the sending State to submit them to its own criminal jurisdiction.
- Civil immunity: this is more limited because sovereignty has little to fear from the exercise
by the foreign State of powers which it places at the service of internal subjects and not of its
own ends. Thus, it is largely granted to di- plomatic agents and their families but with
exceptions for certain categories of actions. It is not guaranteed to administrative and
technical staff and to service staff of diplomatic missions for acts performed outside the
exercise of their functions.

2°) Vienna Convention on Consular Relations of 1963:

- Inviolability and immunity from execution: absolute character for consular officials and their
families (not staff).
- Immunity from criminal jurisdiction: restricted to acts performed in the line of duty for all staff
of consular missions and not extended to the family.
- Civil immunity: this is not guaranteed to service agents of diplomatic missions, nor to
officials of consular missions, for acts performed outside the exercise of their functions.

But the question may also not have been settled in advance by convention, as in the case of
the question of the privileges and degree of protection granted to organs of the State
embodied in a single person. This question has been settled by the case law concerning the
Minister of Foreign Affairs.
ICJ, February 14, 2002, Case concerning the Arrest Warrant of April 11, 2000
On April 11, 2000, the Belgian judiciary issued an "international arrest warrant in absentia"
for Mr. Abdulaye Yerodia Ndombasi, requesting his arrest with a view to his surrender to the
Kingdom, on charges of grave breaches of the Geneva Conventions of 1949 and crimes
against humanity. The arrest warrant thus issued was immediately distributed by the Belgian
authorities. However, at the time the arrest warrant was issued and circulated, Mr. Yerodia
was Congo's foreign minister. The Congo saw this as a violation of the diplomatic immunity
of its minister. Belgium contends that, although the ministers of foreign affairs in office
generally enjoy immunity from jurisdiction before the courts of a foreign State, this immunity
applies only to acts performed in the context of their official functions, that such immunity
cannot protect these persons in their private actions, and that, moreover, the acts of which
Mr. Yerodia is accused cannot be considered to fall within the scope of the functions of a
minister of foreign affairs.

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The Court begins by recalling that the reason the MFA enjoys immunity from jurisdiction is to
protect the exercise of the state functions with which it is charged:
"[i]n customary international law, the immunities accorded to the Minister for Foreign Affairs
are not granted to him for his personal benefit, but to enable him to discharge his functions
freely on behalf of the State which he represents" (§53).
This is both the reason and the purpose of immunities: immunity is intended to avoid
interference with the exercise of state functions. This is why the Court is interested in the
nature of the functions of a MFA, the importance of which it highlights (head of the diplomatic
corps, external representative, general and ex officio, of the State...) in order to conclude that
these functions justify absolute or personal immunity, i.e. immunity which is not limited to
acts performed in the exercise of the functions. It does not matter that the conduct in
question is unrelated to the functions of "head of diplomacy": all foreign criminal proceedings
are excluded.
However, once the mandate of the MFA has expired, the Court states, the immunity will
again be relative and the minister may be tried for acts performed before or after the period
during which he held these functions, as well as for acts which, although performed during
this period, were done in a private capacity.
The Court has identified a test of general application. While the purpose of immunity is
always the protection of a State function, its scope or extent may vary according to the
importance of the functions performed:
- When the functions exceed a certain threshold of importance, international law exempts
them from state courts for all their acts, even if they do not fall within the exercise of the
protected functions: so-called personal or absolute immunity ;
- When the functions are less important, only acts performed in the exercise of the functions
are covered by immunity, which is then relative (or functional). On this basis, a minister in
charge of internal affairs is therefore not granted absolute protection.

The question remains, however, whether immunity is absolute or relative in that it applies to
all conduct attributable to the person it protects, and whether international rules exclude
certain conduct from the scope of immunity.

(b) Scope of protection

Is the scope of immunity absolute, in the sense that there are no exceptions based on the
nature of the crimes, or does the conduct over which jurisdiction or execution is exercised
justify the waiver or exclusion of immunity? Both domestic and international practice have
provided convergent answers.
(i) Domestic practice: the French example - Court of Cassation, March 13, 2001, Gaddafi.
The judgment was handed down in relation to the immunity from jurisdiction granted to
foreign heads of state. The Court of Cassation begins by recalling that:
"international custom precludes heads of state in office from being prosecuted before the
criminal courts of a foreign state, in the absence of international provisions to the contrary
binding on the parties concerned".
Thus, the only exceptions to immunity are those set out by treaty, and the Court of Cassation
added that no exception can be drawn from the gravity of the crime:
"in the state of international law, the crime denounced, whatever its gravity, does not fall
within the exceptions to the principle of immunity from jurisdiction of foreign heads of state in
office".

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It is thus the affirmation of a principle of immunity whose scope is absolute since it does not
find any exception which would be drawn from the nature of the crimes. The exceptions
mentioned are those that result from international conventions, i.e. those included in the
Rome Statute, which sets aside immunity as a rule for the admissibility of actions before the
Criminal Court. Other exceptions result from the Statutes of the ad hoc criminal tribunals.
(ii) International practice confirms the French position - ICJ, 14 February 2002, Case
concerning the Arrest Warrant of 11 April 2000:
The Belgian law of 1993 ruled out any objection to admissibility based on a possible
immutability that would be attached to the official capacity of the accused. Before the Court,
Belgium argued that immunities could not in any case protect their beneficiaries when they
were suspected of having committed war crimes or crimes against humanity, in the case of
serious crimes under international law. The Court rejects the Belgian argument: after
examining State practice, national legislation and decisions rendered by high national courts,
the Court is unable :
"to deduce from this practice the existence, in customary international law, of any exception
to the rule enshrining the immunity from criminal jurisdiction and the inviolability of serving
foreign ministers, when they are suspected of having committed war crimes or crimes
against humanity".
Belgium relied on various legal instruments creating international criminal jurisdictions
[Statutes of the International Military Tribunal of Nuremberg, of the International Military
Tribunal of Tokyo, of the International Criminal Tribunal for the former Yugoslavia, of the
International Criminal Tribunal for Rwanda, of the International Criminal Court] which set
aside the principle of immunity. The Court confirms this, but considers that these instruments
:
The Court confirms this, but considers that these instruments "do not allow it to conclude that
such an exception exists in customary international law with regard to national jurisdictions",
and it even indicates that "the decisions (taken on the basis of these texts) do not contradict
the findings it has made above". Indeed, it specifies further on, none of the decisions of the
international criminal courts "deals with the question of immunities before national courts".
It is therefore impossible to invoke the practice of international courts to restrict the scope of
immunities before national courts. The purpose of immunity, as we have seen, is to avoid
State interference with the exercise of State functions. The result is that only foreign national
proceedings are hindered by immunity, which does not hinder either proceedings of or in the
protected State or international proceedings. First of all, immunity does not prevent
proceedings in the protected State, which may bring before its courts the person who enjoys
immunity, where foreign courts must stand aside. Nor does it hinder international
proceedings which, precisely because they take place in the international order, do not
involve that state interference with the exercise of state functions which immunities are
intended to prevent. This is why the exclusion of immunities before international jurisdictions
pursuing certain deviations has no consequence on the applicability of immunities to national
jurisdictions pursuing the same deviations: before the international jurisdiction, the state
functions exercised abroad (which immunity protects) are not threatened.
What condition does international law place on the status granted to the State?