1. Dissenting Opinion of Judges Aduquawel Ahmed Yusuf, Peter Tomka, Patrick
Lipton Robinson and DalyeerBhandari
1. We regret not to be able to accompany the Court’s majority in parts of the decision
which the Court has just adopted today, 13 November 2016, in the case concerning
the Immunity of Heads of State under Universal Jurisdiction (Apalana v. Rutasia).
Our dissenting position pertains to the decision regarding the position of Jus cogens
law and immunity, encompassing the adopted methodology, the approach pursued,
the whole reasoning in its treatment of issues of substance, as well as the conclusions
of the Judgment regarding immunity rationae personae. This being so, we care to
leave on the records the foundations of our dissenting position, given the considerable
importance that we attach to the issues raised by Apalana and Rutasia in the course of
the proceedings in the cas d’espèce, and bearing in mind the settlement of the dispute
at issue ineluctably linked to the imperative of the realization of justice, as we
perceive it.
2. We therefore present with the utmost care the foundations of our partly dissenting
position on the matter dealt with by the Court in the Judgment which it has just
adopted, out of respect for, and zeal in, the exercise of the international judicial
function, guided above all by the ultimate goal precisely of the realization of justice.
To this effect, we shall dwell upon all the aspects concerning the dispute brought
before the Court which forms the object of its present Judgment, in the hope of thus
contributing to the clarification of the issues raised and to the progressive
development of international law, in particular in the international adjudication by this
Court of cases of the kind on the basis of fundamental considerations of humanity,
whenever grave breaches of human rights, crimes against humanity and of
international humanitarian law lie at their factual origins, as in the cas d’espèce.
3. Preliminarily, we shall dwell upon the standing in the consideration of immunity
rationae materiae and rationae personae, moving then onto our initial line of
considerations, pertaining, first, to the ineluctable relationship (as we perceive it), in
the present case and in all other cases, between all forms of immunities regarding
persons and Jus cogens law. We shall, next, turn to the threshold of the gravity the
crimes as defined in the Princeton Principles and their standing as Jus cogens law.
4. This will lead us into the consideration of the question of waiver of immunity
claims and into the position upholding the need for such a waiver when the Princeton
Principles can be applied.
The dissenting opinion
5. Applicant can initiate criminal proceedings against and prosecute Mr. A, Mr. B and
Ms. C for the alleged heinous crimes they have committed during the Civil War. We
dissent from the majority judgement that Mr. A can be prosecuted and have additional
reasons why Mr. B and Ms. C can be held responsible for their alleged crimes.
6. Our main reason for dissenting is the understanding that Jus cogens norms trump
any other international customary law such as immunity rationae materiae and
immunity rationae personae.

2. 7. In the majority judgement, the difference between immunity rationae personae and
rationae materiae was discussed. We approve of the definitions provided. It is
important to look at the specific rationale behind each of these immunities for State
officials, as it dictates what perspective one must have on each of these.
8. It can be concluded that immunity rationae materiae is a substantive defence.
Several other international legal scholars furthermore affirm this reasoning. It
contrasts with immunity rationae personae, which, admittedly, is a strict procedural
defence, as here, immunity is upheld purely because of the function of the person at
that time, without looking at the actual substance of his or her conduct.
9. Jus cogens norms are peremptory norms of international law ‘accepted and
recognized by the international community of States as a whole […] from which no
derogation is permitted’. The ICTY defined the concept in its hierarchical meaning as
‘a norm that enjoys a higher rank in the international hierarchy than treaty law and
even ‘ordinary’ customary rules’. Rules with a Jus cogens character are substantive
rules of international law.
10.It is generally accepted that the prohibition of crimes falling under the Princeton
Principles are Jus cogens norms. For purposes of these Principles, serious crimes
under international law include: (1) piracy; (2) slavery; (3) war crimes; (4) crimes
against peace; (5) crimes against humanity; (6) genocide; and (7) torture.” This has
furthermore been affirmed by the ICJ itself: While it retrospectively looked back at
the Arrest Warrant Case in its judgment in the Jurisdictional Immunities Case, it
stated that the rules that were criminally violated in the Arrest Warrant case
‘undoubtedly possess the character of Jus cogens’. Having in mind that the crimes at
hand in the Arrest Warrant Case were indeed crimes against humanity and war
crimes, it is clear that the prohibitions on both crimes have Jus cogens status.
11. It is then very clear to see why a violation of these norms would trump any
immunity. The rules of immunity as found in customary international law are not a
recognized as a Jus cogens norm. This means they will rank lower in the hierarchy of
international rules. Consequently, in the event that a Jus cogens norm conflicts with
immunity, the former will trump the latter, so that those who have allegedly
committed violations of these Jus cogens norms will not be able to rely on immunity.
This reasoning was used, for example in the Blaskic case:“The general rule under
discussion is well established in international law and is based on the sovereign
equality of States (par in parem non habet imperium). The few exceptions relate to
one particular consequence of the rule. These exceptions arise from the norms of
international criminal law prohibiting war crimes, crimes against humanity and
genocide. Under these norms, those responsible for such crimes cannot invoke
immunity from national or international jurisdiction even if they perpetrated such
crimes while acting in their official capacity.” The Trial Chamber in Furundzija
adopted a similar approach to the Chamber in Blaskic and emphasised its reasoning
with the Jus cogens status of the crime of torture. Even blunter was the reasoning in
Kunarac in which the ICTY again denied the existence of immunity rationae
materiae for this proceeding. Akande reasons that immunity from foreign criminal
jurisdiction does not exist when an individual is accused of having committed an
international crime and argues that state practice in matters of war crimes, crimes
against humanity and genocide to support that claim. This approach is echoed by the

3. Special Rapporteur who noted “there appears to have been greater support for a
potential exception in the case of immunity rationae materiae than in that of
immunity rationae personae.”However, we believe that both immunities are
customary law and therefore ranking lower than Jus cogens.
12. We believe that the argument that Jus cogens cannot trump immunity rationae
personae because substantial and procedural matters are absolutely separate to each
other does not hold. The procedural idea of personal immunity is based on the concept
of sovereignty, which is protected through the international community. A crime
defined by the Princeton Principles, however, is so heinous that it shakes the entire
international community in its core including the state it happened in. This could lead
in the long term to the destruction of international peace and national sovereignty.
Thus, the loss of personal immunity is necessary to protect the international
community and the very principle of sovereignty, which is necessary to establish such
a procedure in the first place.
13. In conclusion, it is clear that immunities do not provide protection for the alleged
commission of crimes defined in the Princeton Principles for this dissenting reason.