Counter-Memorial of the Kingdom of Belgium

International Court of Justice
Arrest Warrant of 11 April 2000
(Democratic Republic of the Congo v. Belgium)
Counter Memorial of the
Kingdom of Belgium
28 September 2001
Introduction
1
INTRODUCTION
0.1 By an Application dated 17 October 2000 filed with the Registry of the
Court, the Democratic Republic of the Congo (“DRC”) instituted proceedings against
the Kingdom of Belgium (“Belgium”) alleging that, in consequence of the issue of an
arrest warrant by a Belgian Judge against the Minister for Foreign Affairs of the DRC,
Belgium is in violation of “the principle that a State may not exercise [its authority]
on the territory of another State …, of the principle of sovereign equality among all
Members of the United Nations”, and of the “immunity of the Minister of Foreign
Affairs of a sovereign State”.1
The Application requests the Court to declare that
“Belgium shall annul the international arrest warrant issued on 11 April 2000 …
against the Minister for Foreign Affairs in office of the Democratic Republic of the
Congo, Mr. Abdulaye Yerodia Ndombasi”.2
Setting out the grounds on which the
claim is based, the Application states (A) that the universal jurisdiction provided for
by the Belgium law under which the arrest warrant was issued, as well as the arrest
warrant itself, are in breach of international law, and (B) that “[t]he non-recognition
… of the immunity of a Minister for Foreign Affairs in office is contrary to
international case-law …, to customary law and to international courtesy …”3
0.2 Addressing the jurisdiction of the Court, the Application states that “Belgium
has accepted the jurisdiction of the Court and, in so far as may be required, the present
Application signifies acceptance of that jurisdiction by the Democratic Republic of
the Congo”.4
0.3 Contemporaneously with its Application instituting proceedings, the DRC
also filed a Request for the Indication of Provisional Measures by which it asked the
Court to order “la mainlevée immédiate du mandat d’arrêt litigieux” (the immediate
discharge of the disputed arrest warrant).5

1 Application Instituting Proceedings, 17 October 2000 (“Application”), at Part I(1) and (2).
2 Application, at Part II (emphasis in the original).
3 Application, at Part IV(A) and (B) respectively (emphasis in the original).
4 Application, at Part V.
5 Demande d’indication d’une mesure conservatoire (“Provisional Measures Request”), at paragraph 2.
(Translation by the Registry, CR 2000/32, 20 November 2000, at p.5).
Introduction
2
0.4 In accordance with Article 31 of the Statute and Article 35 of the Rules of
Court (“Rules”), Belgium, by a letter to the Court dated 30 October 2000, notified the
Court of its intention to choose a Judge ad hoc and nominated Ms Christine Van den
Wyngaert, a Belgian national and Professor of Law at the University of Antwerp, for
purposes of the case. The DRC nominated Mr Sayeman Bula-Bula, a DRC national
and Professor of Law at the University of Kinshasa, as Judge ad hoc for purposes of
the case.
0.5 The Court held hearings on the DRC’s request for the indication of
provisional measures on 20 – 23 November 2000. In the course of the hearings, the
DRC referred to the Declarations by Belgium and the DRC under Article 36(2) of the
Statute of the Court (“Statute”) as constituting the basis of the Court’s jurisdiction in
the case. The Belgian Declaration under Article 36(2) of the Statute is dated 17 June
1958.6
The DRC Declaration under Article 36(2) of the Statute is dated 8 February
1989.7
0.6 On 20 November 2000, coinciding with the opening of the oral pleadings on
the DRC’s request for the indication of provisional measures, a cabinet reshuffle took
place in the DRC. As a result of this reshuffle, Mr Yerodia Ndombasi, the subject of
the arrest warrant, ceased to exercise the functions of Minister for Foreign Affairs of
the DRC and was appointed Minister of National Education.8
0.7 By an Order of 8 December 2000, the Court rejected the DRC’s request for
the indication of provisional measures. The basis of the Order was the Court’s
determination that, in view of the cabinet reshuffle of 20 November 2000, it had “not
been established that irreparable prejudice might be caused in the immediate future to
the Congo’s rights nor that the degree of urgency is such that those rights need to be
protected by the indication of provisional measures”.9

6 Annex 1.
7 Annex 2.
8
Order of the Court of 8 December 2000 on the Request for the Indication of Provisional Measures
(“Provisional Measures Order”), at paragraph 51. Also Memorial of the Democratic Republic of the
Congo, 15 May 2001 (“DRC Memorial”), at paragraph 11.
9 Provisional Measures Order, at paragraph 72.
Introduction
3
0.8 In the course of the provisional measures hearing, Belgium contended that, in
consequence of the cabinet reshuffle, the DRC Application had been rendered without
object and accordingly requested the Court to remove the case from its List. Noting
that the arrest warrant had not been withdrawn “and still relates to the same
individual, notwithstanding the new ministerial duties that he is performing”,10 the
Court, however, concluded that
“the Congo’s Application has not at the present time been deprived
of its object; and whereas it cannot therefore accede to Belgium’s
request for the case to be removed from the List at this stage of the
proceedings”.11
0.9 The Court further observed that it was “desirable that the issues before the
Court should be determined as soon as possible … [and that] it is therefore
appropriate to ensure that a decision on the Congo’s Application be reached with all
expedition”.12
0.10 By an Order of 13 December 2000, the Court noted the agreement of the
Parties
“that the written pleadings in this case would comprise, in that order, a
Memorial of the Democratic Republic of the Congo and a CounterMemorial
of the Kingdom of Belgium, and that those pleadings would
address both issues of jurisdiction and admissibility and the merits”.13
0.11 The Court went on to fix 15 March 2001 for the filing of the Memorial by the
DRC and 31 May 2001 for the filing of the Belgian Counter-Memorial.
0.12 Subsequent to the Court’s Order of 13 December 2000, the time-limits for
the filing of the pleadings of the Parties were extended by Orders of 14 March 2001
and 12 April 2001 to 17 May 2001 for the filing of the Memorial of the DRC and 17
September for the filing of the Belgian Counter-Memorial.

10 Provisional Measures Order, at paragraph 56.
11 Provisional Measures Order, at paragraph 57.
12 Provisional Measures Order, at paragraph 76.
13 Order of 13 December 2000.
Introduction
4
0.13 Pursuant to the Court’s Order of 12 April 2001, the DRC filed its Memorial
in this case dated 15 May 2001.
0.14 Consequent upon the filing of the DRC Memorial, and in the light of certain
factors mentioned in that Memorial, Belgium, by letter dated 14 June 2001, requested
the Court to vary the procedure laid down in its earlier Orders and permit the conduct
of a preliminary phase of proceedings in accordance with the Court’s usual procedure.
The principal factor highlighted by Belgium relevant to this request was that,
according to the information contained in the DRC’s Memorial, Mr Yerodia
Ndombasi, the subject of the arrest warrant, was no longer a member of the
Government of the DRC. In respect of this development, Belgium observed that
“[t]his new fact has important implications for this case. It raises
questions of jurisdiction and admissibility, on grounds inter alia that
the case as presented in the Congo’s Memorial differs on important
points from the case as presented in the Congo’s Application
instituting proceedings, and that the case is now moot. It also
suggests that the need for expedition is less pressing.”14
0.15 Belgium further noted that, in the light of this development, it envisaged
formulating objections to jurisdiction and admissibility.
0.16 Taking account of the views of the Parties, the Court, by Order of 27 June
2001, rejected Belgium’s request to submit preliminary objections involving
suspension of proceedings on the merits. The Court, however, extended the timelimit
for the filing of Belgium’s Counter-Memorial to 28 September 2001.
0.17 The present Counter-Memorial of the Kingdom of Belgium is filed pursuant
to the Court’s Order of 27 June 2001. As indicated in its letter to the Court of 14 June
2001, and pursuant to the Court’s Orders of 13 December 2000 and 27 June 2001, the
Counter-Memorial both sets out objections to jurisdiction and admissibility and
addresses the merits of the DRC’s case.

14 Order of 27 June 2001.
Introduction
5
0.18 As formulated in its Application instituting proceedings, the essence of the
DRC’s case is that the assertion of jurisdiction by a Belgian Judge over offences
allegedly committed in the DRC by a DRC national, without any allegation that the
victims were of Belgian nationality or that the acts constituted violations of the
security or dignity of Belgium, is a violation of the DRC’s sovereignty. More
particularly, the DRC contends that the issuing of an arrest warrant by a Belgian
Judge against the Minister for Foreign Affairs in office of the DRC constitutes a
breach of international law.
0.19 Noting that “ce grief et ces demandes diffèrent quelque peu de ceux et celles
qui furent formulés dans sa requête introductive”,15 the DRC has reformulated its case
in its Memorial in the following terms:
“L’émission et la diffusion internationale du mandat d’arrêt du 11
avril 2000 par un organe de l’État belge procèdent, ainsi qu’il sera
démontré ci-après, d’au moins une violation du droit international
dont la R.D.C. est victime: la violation de la règle de droit
international coutumier relative à l’inviolabilité et l’immunité
pénale absolues des ministres des affaires étrangères en fonction.”16
0.20 Consequent upon this revised formulation, the DRC requests the Court to
adjudge and declare inter alia
“[q]u’en émettant et en diffusant internationalement le mandat
d’arrêt du 11 avril 2000 délivré à charge de Monsieur Abdulaye
Yerodia Ndombasi, la Belgique a violé, à l’encontre de la R.D.C., la
règle de droit international coutumier relative à l’inviolabilité et
l’immunité pénale absolues des ministres des Affaires étrangères en
fonction”.17

15 “… this grievance and these requests differ slightly from those which were formulated in the
Application instituting proceedings.” (DRC Memorial, at paragraph 8; unofficial translation by
Belgium)
16 “The issue and international transmission of the Arrest Warrant of 11 April 2000 by an authority of
the Belgian State stems from at least one infringement of international law, as will be demonstrated
below, of which the DRC is the victim: the violation of the rule of customary international law and
criminal immunity of Ministers for Foreign Affairs in office.” (DRC Memorial, at paragraph 6;
unofficial translation by Belgium)
17 “[t]hat by issuing and internationally transmitting the Arrest Warrant of 11 April 2000 issued against
Mr Abdulaye Yerodia Ndombasi, Belgium violated, to the prejudice of the DRC, the rule of customary
international law on the complete inviolability and immunity of the Minister for Foreign Affairs in
office”. (DRC Memorial, at paragraph 97(1); unofficial translation by Belgium)
Introduction
6
0.21 The DRC further requests the Court to adjudge and declare that Belgium is
required to withdraw and annul the arrest warrant and that all States, including
Belgium, are prohibited from enforcing it.18
0.22 Notwithstanding the reformulation of the DRC’s case, both the DRC’s
Application and its Memorial make clear that the central element of its allegations
against Belgium is that Belgium is in breach of international law by the issuing and
international transmission of an arrest warrant against the DRC’s Minister for Foreign
Affairs in office.
0.23 Following the constitution of the new Congolese Government of President
Joseph Kabila on 14 April 2001, “M. Abdoulaye Yerodia n’apparaît plus sur la liste
des membres de ce gouvernement”.19 Mr Yerodia Ndombasi, the subject of the arrest
warrant, is accordingly, at this point, neither Minister for Foreign Affairs of the DRC
nor a member of the DRC Government occupying any other ministerial position. The
central and critical element of the DRC’s allegations against Belgium is thus no
longer operative.
0.24 In the light of this development, as well as the reformulation of the DRC’s
case in its Memorial, Belgium contends that the Court lacks jurisdiction in this case
and/or that the application is inadmissible. These issues are addressed fully in Part II
of this Counter-Memorial. By way of summary on these matters, Belgium contends,
in addition or in the alternative:
(a) in the light of the fact that Mr Yerodia Ndombasi is no longer either Minister
for Foreign Affairs of the DRC or a minister occupying any other position in
the DRC Government, that there is no longer a “dispute” between the Parties
within the meaning of this term in the Optional Clause Declarations of the
Parties and the Court accordingly lacks jurisdiction in this case;

18 DRC Memorial, at paragraph 97.
19 “Mr Adoulaye Yerodia no longer appears on the list of the members of this government”. (DRC
Memorial, at paragraph 11; unofficial translation by Belgium)
Introduction
7
(b) in the light of the fact that Mr Yerodia Ndombasi is no longer either Minister
for Foreign Affairs of the DRC or a minister occupying any other position in
the DRC Government, that the case is now without object and the Court
should accordingly decline to proceed to judgment on the merits of the case;
(c) that the case as it now stands is materially different to that set out in the
DRC’s Application instituting proceedings and that the Court accordingly
lacks jurisdiction in the case and/or that the application is inadmissible;
(d) in the light of the new circumstances concerning Mr Yerodia Ndombasi, that
the case has assumed the character of an action of diplomatic protection but
one in which the individual being protected has failed to exhaust local
remedies, and that the Court accordingly lacks jurisdiction in the case and/or
that the application is inadmissible.
0.25 Separately from the preceding, and in the event that the Court decides that it
does have jurisdiction in this case and that the application is admissible, Belgium
relies on the non ultra petita rule as limiting the jurisdiction of the Court to those
issues that are the subject of the DRC’s final submissions.
0.26 By way of summary, Belgium’s principal submissions on the issues of
substance raised by the DRC are as follows:
(a) the character of the arrest warrant is such that it neither infringes the
sovereignty of, nor creates any obligations for, the DRC;
(b) the assertion of jurisdiction by the Belgian Judge pursuant of the relevant
Belgian legislation is consistent with international law in that:
(i) it is based on the connection of the complainant civil parties to
Belgium by reason of nationality and/or residence;
(ii) it is consistent with the obligations upon High Contracting Parties to
the Fourth Geneva Convention Relative to the Protection of Civilian
Introduction
8
Persons in Time of War of 1949 ("Fourth Geneva Convention")20
–
and, in particular, Article 146 and 147 thereof – which the applicable
Belgian legislation was designed to implement;
(iii) it is consistent with principles of customary international law
permitting States to exercise universal jurisdiction over inter alia war
crimes and crimes and humanity;
(c) while Ministers for Foreign Affairs in office are in general immune from suit
before the courts of a foreign State, such immunity applies only in respect of
their official conduct for purposes of enabling them to carry out their official
functions. It does not avail such persons in their private capacity or when
they are acting other than in the performance of their official functions;
(d) immunity does not in any event avail Ministers for Foreign Affairs in office
alleged to have committed war crimes or crimes against humanity;
(e) the arrest warrant explicitly recognises that had Mr Yerodia Ndombasi, in his
role as DRC Foreign Minister, visited Belgium on the basis of an invitation
and in his official capacity, he could not have been arrested;
(f) whatever the Court’s conclusions on the merits of the case, key elements of
the remedies requested by the DRC in its final submissions fall outside the
accepted judicial function of the Court and should not accordingly be the
subject of any judgment by the Court.
0.27 These submissions are addressed in detail in Part III of this CounterMemorial.
The scheme of this Counter-Memorial is thus as follows:
Part I – Background and Preliminary Issues
Part II – Objections to Jurisdiction and Admissibility
Part III – Merits

20 75 UNTS 31.
Introduction
9
Conclusions
Final Submissions
* * *
Part I: Background and Preliminary Issues
10
PART I
BACKGROUND AND PRELIMINARY ISSUES
1.1 This Part of the Belgian Counter-Memorial addresses a number of
background and preliminary issues relevant to the submissions that follow in Part II,
on jurisdiction and admissibility, and Part III, on the merits of the DRC’s case.
Specifically, this Part addresses the following:
A. Factual and legal background
B. The DRC’s case
C. The position of Mr Yerodia Ndombasi at the material times
A. Factual and legal background
1.2 To the extent material, the facts and elements of law relevant to the present
proceedings are set out in the substantive parts of this Counter-Memorial addressing
in detail the arguments advanced by the DRC. For convenience, the essential facts
underlying the case and certain relevant elements of law may be summarised at this
point as follows.
1.3 In November 1998, various complaints were lodged with a Belgian
investigating Judge, Judge Damien Vandermeersch, at the Brussels Court of First
Instance concerning certain events that took place in the DRC in August 1998. Of the
12 complainants, five were of Belgian nationality. All of the complainants were
resident in Belgium.
1.4 Following detailed investigation into the matter, the Judge concluded that
there were strong and sufficient grounds for initiating proceedings before the Belgian
courts in respect of the matters complained of. Accordingly, on 11 April 2000, he
issued an arrest warrant in absentia naming Mr Abdulaye Yerodia Ndombasi, at the
time Minister for Foreign Affairs of the DRC, in respect of certain acts alleged to
Part I: Background and Preliminary Issues
11
have been committed in August 1998.21 At the time of the alleged commission of the
acts in question, Mr Yerodia Ndombasi was the Director of the Office of President
Laurent-Désiré Kabila.
1.5 The arrest warrant charges Mr Yerodia Ndombasi, as perpetrator or coperpetrator,
with two counts: (a) crimes constituting grave breaches of the Geneva
Conventions of 1949 and the additional protocols to these conventions, and (b) crimes
against humanity.22 Both categories of crimes were criminalized as a matter of
Belgian law by an Act of 16 June 1993, as amended by an Act of 10 February 1999,
concerning the punishment of grave breaches of international humanitarian law.23 It
may be recalled, in this regard, that Article 146 of the Fourth Geneva Convention
provides inter alia:
“The High Contracting Parties undertake to enact any legislation
necessary to provide effective penal sanctions for persons
committing, or ordering to be committed, any of the grave breaches
of the present Convention defined in the following Article.
Each High Contracting Party shall be under the obligation to search
for persons alleged to have committed, or to have ordered to be
committed, such grave breaches, and shall bring such persons,
regardless of their nationality, before its own courts. …
Each High Contracting Party shall take measures necessary for the
suppression of all acts contrary to the provisions of the present
Convention other than the grave breaches defined in the following
Article.”24
1.6 Article 147 of the Fourth Geneva Convention defines “grave breaches” as
including inter alia the following acts: wilful killing, torture or inhuman treatment,
wilfully causing great suffering or serious injury to body or health.25

21 Mandat d’Arrêt International par défaut, 11 Avril 2000 (“Arrest Warrant”), at Annex 3 (unofficial
translation by Belgium).
22 Arrest Warrant, at pp.2–3 (Annex 3).
23 Annex 4 (unofficial translation as reproduced in International Legal Materials).
24 Articles 146–147, Fourth Geneva Convention, at Annex 5.
25 At Annex 5. The provisions in Articles 146–147 of the Fourth Geneva Convention are broadly
common to all four of the Geneva Conventions. See Articles 49–50, First Convention; Articles 50–51,
Second Convention; and Articles 129–130, Third Convention.
Part I: Background and Preliminary Issues
12
1.7 The arrest warrant was transmitted to the DRC on 7 June 2000. As the
warrant concerned acts alleged to have been committed in the DRC by one of its
nationals, there were subsequently exchanges between the relevant authorities of the
two States at various stages with a view to ascertaining whether the dossier could be
handed over to the DRC authorities for further investigation and action. Nothing has
so far come of these exchanges. Belgium has from the outset made clear its
willingness to hand the matter over to the DRC authorities for further action.
1.8 As part of these exchanges, Belgium has at various points made enquiries of
the DRC about the possibility of extradition. However, as no appropriate extradition
agreement exists between Belgium and the DRC, and as the DRC does not extradite
its nationals, Belgium has not at any point made a formal request to the DRC for the
extradition of Mr Yerodia Ndombasi.
1.9 At the point that the arrest warrant was transmitted to the DRC, it was also
transmitted to Interpol. Through Interpol, the warrant was circulated internationally.
The warrant was not, however, at the time, the subject of an Interpol Red Notice, ie, a
provisional request to third States to arrest the person named with a view to
extradition.26
1.10 The facts underlying the allegations against Mr Yerodia Ndombasi and the
decision of the Judge to issue the arrest warrant are set out in detail in the warrant
itself.27 It is not necessary to go into these facts at this point, although relevant
aspects will be addressed briefly in Part III below. Likewise, there is no need to go
into the wider circumstances prevailing in the DRC at the time of the events in
question.28

26 In the light of the fact that Mr Yerodia Ndombasi no longer occupies a position in the DRC
Government, the Belgian National Central Bureau (“NCB”) of Interpol addressed a request to Interpol
to issue a Red Notice in respect of Mr Yerodia Ndombasi on 12 September 2001. At time of writing, a
Red Notice had not been issued. The effect of a Red Notice is determined by the municipal law of each
State. Whereas in some States a Red Notice will serve as a sufficient basis for the provisional arrest of
the named person, in others it will not, serving merely to alert the relevant authorities of that State that
the person concerned is the subject of an arrest warrant. In the case of the DRC, a Red Notice is not a
sufficient basis for the provisional arrest of a suspect. This matter is addressed further in Chapter One
of Part III below.
27 Annex 3.
28 These matters were the subject of comment by Belgium during the course of the provisional
measures phase (see CR 2000/33, at pp.9–17).
Part I: Background and Preliminary Issues
13
1.11 Given the official position of Mr Yerodia Ndombasi as Minister for Foreign
Affairs of the DRC at the point at which the arrest warrant was issued – although not
at the point at which the acts in question were alleged to have been committed – the
arrest warrant addresses the issue of immunity from execution in some detail inter
alia as follows:
“Official immunity
In terms of section 5(3) of the Act of 16 June 1993 as amended by
the Act of 10 February 1999, the immunity attaching to the official
capacity of a person does not prevent prosecutions on the grounds of
a crime against humanitarian law. …
The wording of this provision is borrowed from article 27(2) of the
Statute of the International Criminal Court, which provides:
‘Immunities or special procedural rules which may
attach to the official capacity of a person, whether under
national or international law, shall not bar the Court
from exercising its jurisdiction over such a person.’
Before the coming into force of the Act of 10 February 1999, the
view was taken that the immunity conferred on Heads of State did
not apply in questions of crimes under international law, such as war
crimes, crimes against peace, crimes of genocide or crimes against
humanity …
Although these arguments have been upheld to justify the absence
of any recognition of immunity for a former head of state, they also
assume a relevance for responsible persons who are in office.
According to the opinion of the Minister of Justice, expressed at the
time of the legislation’s passage through parliament, the rule of the
non-relevance of immunities from jurisdiction and enforcement
introduced by the Act of 10 February 1999 already existed
previously in international law, which forms an integral part of the
Belgian legal system …
Hence, the office of Minister for Foreign Affairs that is currently
occupied by the accused does not entail any immunity from
jurisdiction and enforcement and this court is consequently
competent to take the present decision.
However, the rule of the absence of immunity under humanitarian
law seems to us to require to be tempered as regards immunity from
enforcement. Beyond the question of the extent of the protection
Part I: Background and Preliminary Issues
14
that a private individual who holds an official capacity enjoys, sight
must not be lost of the fact that the immunity conferred on the
representatives of a State is not so much to protect the private
individual but first and foremost the State of which he is a
representative. This immunity, customary in origin, is founded on
the principle that a State has no jurisdiction to judge another State
(‘par in parem non habet iuridictionem’). By virtue of the general
principle of fairness in legal action, in our view, an immunity from
enforcement must be accorded to all representatives of a State that
are welcomed onto the territory of Belgium as such (on ‘official
visits’). Welcoming such a foreign personality as an official
representative of a sovereign State puts at stake not only relations
between individuals but also relations between States. On this line
of thinking, it includes an undertaking by the host State and its
various components not to take coercive measures against its guest,
and the invitation may not become a pretext [for] having the party in
question fall into what would then be labelled an ambush. In the
contrary case, failure to adhere to this undertaking could entail the
host State being liable at an international level.”29
1.12 As this extract makes clear, the investigating Judge distinguished explicitly,
on the face of the arrest warrant, between immunity from jurisdiction and immunity
from enforcement in the case of representatives of foreign States who visit Belgium
on the basis of an official invitation. In such circumstances, the warrant makes clear
that the person concerned would be immune from enforcement in Belgium. Other
States are likely to follow the same principle.
1.13 Contending that Belgium is in violation of the principle that a State may not
exercise its authority on the territory of another State, of the principle of sovereign
equality of States, and of the immunity of its Minister for Foreign Affairs, the DRC
initiated proceedings against Belgium before the International Court of Justice on 17
October 2000.
1.14 On 13 September 2000, lawyers acting on behalf of Mr Yerodia Ndombasi
applied to the Brussels chambre du conseil to have access to the dossier of complaints
submitted to Judge Vandermeersch. The application was found to be admissible but
was rejected on the merits by decision of the chambre du conseil on 12 October 2000.
The decision of the chambre was appealed to the Brussels chambre des mises en

29 Arrest Warrant, at pp.58–63; unofficial translation by Belgium, for original French text, please see
pp.21-23 of the Mandat d'Arrêt. (Annex 3).
Part I: Background and Preliminary Issues
15
accusation on 23 October 2000. After hearing argument, the chambre des mises en
accusation upheld the decision of the chambre du conseil denying access to the
dossier on 12 March 2001 on the grounds that (a) in the circumstances, access to the
dossier could result in reprisals being taken against the complainants, against others
heard during the course of the investigation, or against members of their families still
living in the DRC, and (b) the Applicant was fully aware of the allegations against
him following the issuing of the arrest warrant and the commencement of proceedings
by the DRC before the International Court of Justice.30
1.15 Contrary to the submissions made during the provisional measures phase of
the proceedings,31 Belgium knows of no application by Mr Yerodia Ndombasi in his
personal capacity seeking the annulment of the arrest warrant. As will be addressed
further in Part II of this Counter-Memorial, and contrary to what is stated in the DRC
Memorial,32 it would be open to a person who is the subject of an arrest warrant
issued by a Belgian investigating judge to challenge the issuing of that warrant on
grounds of, inter alia, the lack of jurisdiction on the part of the judge in question.

30 The Decision of the Brussels chambre des mises en accusation is appended as Annex 16 to the DRC
Memorial.
31 CR 2000/32, at p.19.
32 DRC Memorial, at paragraph 56.
Part I: Background and Preliminary Issues
16
B. The DRC’s case
1.16 As has already been observed, since the filing of the DRC’s Application on
17 October 2000 the case has undergone something of a metamorphosis, both
factually and legally. Mr Yerodia Ndombasi is no longer Minister for Foreign Affairs
of the DRC, nor a minister occupying any other position in the DRC Government.
The manner in which the DRC’s claim against Belgium has been formulated has also
changed, as has been expressly acknowledged by the DRC in its Memorial.33
1.17 As will be addressed in Part II of this Counter-Memorial, the change in the
factual circumstances underlying the case formulated in the DRC’s Application is
such that the case is now without object. To proceed further with it, in the light of
these developments, would turn the adjudicatory function of the Court into an
exercise focused on issues in abstracto. The change in the factual circumstances
underlying the case has also fundamentally altered the character of the case from one
involving an alleged breach by Belgium against the DRC directly to one involving the
assertion of a claim by the DRC on behalf of one of its nationals. Given the failure of
the individual concerned to pursue available remedies before the Belgium courts,
Belgium contends that the Court lacks jurisdiction in the case and/or that the case is
inadmissible.
1.18 Distinct from the change in the factual circumstances underlying the case, the
DRC has also reformulated its claims in law. As now formulated in its Memorial, the
DRC’s case both has little connection to the prevailing factual situation and is
materially different in important respects to that formulated in its Application
instituting proceedings. By reference to well-established principles in the case-law of
the Court, Belgium contends that, in consequence of these factors, the Court lacks
jurisdiction in this case and/or that the application is inadmissible.
1.19 As a necessary prelude to an examination of these issues of jurisdiction and
admissibility, it is necessary to identify the essential character of the DRC’s case as

33 DRC Memorial, at paragraph 8.
Part I: Background and Preliminary Issues
17
formulated in its Application instituting proceedings, in the course of the provisional
measures phase of the proceedings and, most recently, in its Memorial.
1. The DRC’s Application instituting proceedings
1.20 The DRC’s Application instituting proceedings was filed with the Court on
17 October 2000. Addressing the “Nature of the Claim”, the DRC formulated its case
in the following terms:
“The Court is requested to declare that the Kingdom of Belgium
shall annul the international arrest warrant issued on 11 April 2000
by a Belgian investigating judge, Mr. Vandermeersch, of the
Brussels tribunal de première instance against the Minister for
Foreign Affairs in office of the Democratic Republic of the Congo,
Mr. Adbulaye Yerodia Ndombasi, seeking his provisional detention
pending a request for extradition to Belgium for alleged crimes
constituting ‘serious violations of international humanitarian law’,
that warrant having been circulated by the judge to all States,
including the Democratic Republic of the Congo, which received it
on 12 July 2000.”34
1.21 The alleged “Legal Grounds” underlying the claim were stated to be the
violation of the principle that a State may not exercise its authority on the territory of
another State, the violation of the principle of the sovereign equality of Members of
the United Nations, and the “[v]iolation of the diplomatic immunity of the Minister
for Foreign Affairs of a sovereign State”.35
1.22 The “Statement of Facts” set out in the Application asserts inter alia that
· the arrest warrant fails to note the “current capacity [of Mr Yerodia
Ndombasi] as Minister for Foreign Affairs”;36
· the investigating judge claims jurisdiction in respect of offences
purportedly committed on the territory of the DRC by a DRC national

34 Application, at Part II (emphasis in the original).
35 Application, at Part I.
36 Application, at Part III(A) (emphasis in the original).
Part I: Background and Preliminary Issues
18
“without any allegation that the victims were of Belgian nationality or
that these acts constituted violations of the security or dignity” of
Belgium;37 and
· this unlimited jurisdiction which Belgium confers upon itself has “no
basis of territorial or in personam jurisdiction, nor any jurisdiction
based on the protection of the security or dignity” of Belgium.38
1.23 Finally, the detailed “Statement of the Grounds on Which the Claim is
Based” contends inter alia that
· “[t]he universal jurisdiction that the Belgian State attributes to itself …
contravenes international jurisprudence”;39
· “[t]he non-recognition … of the immunity of a Minister for Foreign
Affairs in office is contrary to international case-law …, to customary
law and to international courtesy, [which] accord to a Minister for
Foreign Affairs, the representative of the State on behalf of which he
acts, diplomatic privileges and immunities”;40 and
· the Belgian law in question “is manifestly in breach of international
law in so far as it claims to derogate from diplomatic immunity, as is
the arrest warrant issued pursuant thereto against the Minister for
Foreign Affairs of a sovereign State”.41
1.24 As these highlighted elements of the DRC’s Application describe, the case
formulated in the Application focuses on two central allegations: first, that the
exercise of jurisdiction by the Belgian Judge was excessive and contrary to
international law, and, second, that the issuing of an arrest warrant “against the
Minister for Foreign Affairs in office” of the DRC was a violation of international

37 Application, at Part III(A) (emphasis in the original).
38 Application, at Part III(B)(3) (emphasis in the original).
39 Application, at Part IV(A)(1) (emphasis in the original).
40 Application, at Part IV(B) (emphasis in the original).
41 Application, at Part IV(B) (emphasis in the original).
Part I: Background and Preliminary Issues
19
law. As is clear from the repeated references to the position of Ministers for Foreign
Affairs throughout the Application, the central focus of the case was the official
position of Mr Yerodia Ndombasi as the Minister for Foreign Affairs of the DRC.
2. The provisional measures phase
1.25 The provisional measures phase of the proceedings can be described
relatively briefly. The DRC’s request for the indication of provisional measures was
cast in the briefest of terms. There was, however, no mistaking the centrality to the
case of the position of Mr Yerodia Ndombasi as the incumbent Minister for Foreign
Affairs of the DRC. The point is clearly illustrated by the statement in the DRC’s
Provisional Measures Request of the harm said to be suffered by the DRC in
consequence of the issuing of the arrest warrant:
“… le mandat d’arrêt litigieux interdit pratiquement au ministre des
affaires étrangères de la République démocratique du Congo de
sortir de cet Etat pour se rendre en tout autre Etat où sa mission
l’appelle et, par conséquent, d’accomplir cette mission. Or les
conséquences de cet éloignement du représentant qualifié de l’Etat
congolais démocratique pendant un temps indéterminé sont, par
essence, de celles que l’on ne répare pas.”42
1.26 As has already been described, coinciding with the opening of the oral
pleadings in the provisional measures phase, Mr Yerodia Ndombasi was moved from
the position of Minister for Foreign Affairs to become Minister for National
Education. In its Provisional Measures Order, the Court concluded that this change
of circumstances was not such “at the present time” as to deprive the DRC’s
Application of its object or to require that the case be removed from the Court’s List
“at this stage of the proceedings”.43 Central to the Court’s reasoning on this matter
was the appreciation that the arrest warrant had not been withdrawn and related to the

42 “… the contested arrest warrant in practice prevents the Minister for Foreign Affairs of the
Democratic Republic of the Congo from leaving that State to travel to any other State where his duties
require him to go and thus prevent him from performing those duties. The consequences of this lack of
contact with the authorised representative of the Democratic Congolese State for an indeterminate
period are essentially quite irreparable.” (Provisional Measures Request, at paragraph 4; unofficial
translation by Belgium).
43 Provisional Measures Order, at paragraph 57.
Part I: Background and Preliminary Issues
20
same individual “notwithstanding the new ministerial duties that he is performing”.44

In so stating, the Court implicitly accepted that the DRC contention made in the
course of oral argument – to the effect that “any minister sent by his or her State to
represent it abroad … also enjoys, sensu lato, privileges and immunities”45
– was an
arguable proposition that, subject to the Court having jurisdiction in the matter, should
be addressed on the merits.
1.27 This aspect notwithstanding, what is abundantly clear from the provisional
measures phase is the pivotal dimension to the DRC’s case of the ministerial position
of Mr Yerodia Ndombasi. The point was explicitly made in the opening remarks of
counsel to the DRC:
“… Mr President, I should like to make a preliminary remark.
Neither the present request for the indication of a provisional
measure, not the Application whereby the Democratic Republic of
the Congo seised the Court of the merits of the dispute between
itself and the Kingdom of Belgium, seeks to make any claim
whatever on the basis of the diplomatic protection of one of its
nationals.
In his personal capacity, H.E. Mr. Yerodia Ndombasi has submitted
to the Belgian courts an application for the annulment of the arrest
warrant issued against him by Judge Vandermeersch. Those
proceedings are entirely separate from the present discussion and,
whatever legal incongruities they may have presented, they must
remain so.
The purpose of these proceedings by the Democratic Republic of the
Congo is altogether different. It is to make good the breaches of
international law affecting the Congolese State in the exercise of its
sovereign prerogatives in diplomatic matters. The Congo is
attacking the arrest warrant issued by the Belgian judge because it
is directed not at Mr. Yerodia Ndombasi as such, but at the office of
the Minister for Foreign Affairs of the sovereign State of the
Congo.”
46

44 Provisional Measures Order, at paragraph 56.
45 CR 2000/34 (translation), at p.8 (emphasis added). Also, Provisional Measures Order, at paragraph
59.
46 CR 2000/32 (translation), at pp.14–15 (pp.18–19 in the original; emphasis added). As has already
been observed, Belgium knows of no application by Mr Yerodia Ndombasi in his personal capacity
seeking the annulment of the arrest warrant. See further paragraphs 1.14–1.15 above.
Part I: Background and Preliminary Issues
21
1.28 The consequences of the changed circumstances of Mr Yerodia Ndombasi’s
position are addressed in Part II of this Counter-Memorial. For present purposes,
Belgium simply observes that the official ministerial position of Mr Yerodia
Ndombasi constituted the very basis of the DRC’s claim.
1.29 The pivotal dimension to the DRC’s case of the official position of Mr
Yerodia Ndombasi was reaffirmed repeatedly in the course of the DRC’s submissions
during the provisional measures phase of the case. Even following the cabinet
reshuffle which saw Mr Yerodia Ndombasi become Minister for National Education,
the DRC’s focus remained firmly on his official governmental position as the
continuing raison d’être of the case. The following observations made on behalf of
the DRC in the latter round of its provisional measures submissions illustrate the
point.
“The international status of the Minister for Foreign Affairs is
governed by the principle that he should be treated in the same way
as a foreign Head of State in so far as immunity and inviolability are
concerned.
…
However, should this immunity be confined to foreign Heads of
State and Ministers for Foreign Affairs or International Cooperation?
In fact, any minister sent by his or her State to represent
it abroad, deals with other States or international organisations and,
where necessary, enter into commitments on behalf of that State,
also enjoys, sensu lato, privileges and immunities. Moreover, that is
the price paid or to be paid for the widening, technical nature and
the growing complexity of international relations. With regard to
Mr Yerodia, yesterday Minister for Foreign Affairs, today Minister
of Education in the new Congolese Government, there is no getting
away from the fact that in such a field where the Democratic
Republic of the Congo’s present is being managed and its future
prepared, he will be called upon to travel, to respond to invitations
from abroad, to attend international meetings in connection with
Unesco, ACP-European Union co-operation (the epicentre of which
is Brussels), the OAU and Francophonie, to name but a few. He
will often be called upon to be sent as the plenipotentiary personal
representative of the Head of State to represent him abroad. In
connection with such activities, where he will have to represent the
Congolese Government, he will undoubtedly be entitled to benefit
from the principle of being treated in the same way as the Head of
Part I: Background and Preliminary Issues
22
State, the Head of Government or the Minister for Foreign Affairs
…”47
1.30 The Court’s Provisional Measures Order reflected the appreciation that it
was the official capacity of the subject of the arrest warrant that was central to the
case. Thus, the Court explicitly noted the DRC’s observations that it was attacking
the arrest warrant because it was “directed not at Mr Yerodia Ndombasi in his
personal capacity, but at the office of Minister for Foreign Affairs”.48 More
particularly, as has already been observed, the Court, in rejecting Belgium’s request
that the case be removed from the Court’s List, emphasised “the new ministerial
duties that [Mr Yerodia Ndombasi] is performing”.49
1.31 Belgium highlights these elements of the provisional measures phase of the
case not to suggest that they are in some way binding upon the Court. The matters
addressed during that phase of the proceedings are not now in issue. However, the
appreciation – of both Parties50 and of the Court – that the official ministerial position
of Mr Yerodia Ndombasi constituted the very basis of the DRC’s claim is material to
the question of the admissibility of the application given that Mr Yerodia Ndombasi
now no longer occupies any official position as a member of the DRC Government.
This matter is addressed fully in Part II below.
3. The DRC’s Memorial
(a) Preliminary matters and the reformulation of the DRC’s case
1.32 Mr Yerodia Ndombasi ceased to be Minister for Foreign Affairs of the DRC
on 20 November 2000, at which time he was appointed Minister for National
Education. Following the constitution of the new Congolese Government of President
Joseph Kabila on 14 April 2001, Mr Yerodia Ndombasi ceased altogether to be a
member of that government.51 At the point of the filing of the DRC’s Memorial with

47 CR 2000/34 (translation), at pp.7–8.
48 Provisional Measures Order, at paragraph 19.
49 Provisional Measures Order, at paragraph 56.
50 Belgium’s position on this matter is set out in CR 2000/35, at paragraphs 18–30 of the submissions
by Mr Bethlehem.
51 DRC Memorial, at paragraph 11.
Part I: Background and Preliminary Issues
23
the Court, Mr Yerodia Ndombasi did not therefore occupy any official position in the
DRC Government.
1.33 The introductory part of the DRC’s Memorial sets out the violations of
international law alleged to have been committed by Belgium as well as the issues
addressed subsequently in the Memorial in support of the DRC’s claim. The
statement of alleged violations and the requests made of the Court are interesting for
their departure from the way in which the case was formulated in the DRC’s
Application. Thus, the statement of alleged violation provides as follows:
“L’émission et la diffusion internationale du mandat d’arrêt du 11
avril 2000 par un organe de l’État belge procèdent, ainsi qu’il sera
démontré ci-après, d’au moins une violation du droit international
don’t la R.D.C. est victime: la violation de la règle de droit
international coutumier relative à l’inviolabilité et l’immunité
pénale absolues des ministres des affaires étrangères en fonction.”52
1.34 Two aspects of this formulation may be noted. First, notwithstanding that
Mr Yerodia Ndombasi no longer occupies any position as a member of the DRC
Government, the DRC’s case continues to be framed in terms of allegations that
Belgium is in violation of the immunity of Ministers for Foreign Affairs in office.
The case as formulated in the DRC’s Memorial, in other words, bears no connection
whatever to the prevailing situation of fact. Second, in contrast to the Application
instituting proceedings, no mention is here made of allegations of an excessive
exercise of jurisdiction by the Belgian Judge issuing the arrest warrant. Although this
latter element is addressed in the course of the Memorial as part of the DRC’s
argument on the question of the immunity of Ministers for Foreign Affairs, it is
pointedly not the subject of any of the DRC’s submissions or requests to the Court, all
of which hinge on the alleged violation of international law by Belgium in
consequence of the issuing and transmission of the arrest warrant against the DRC
Minister for Foreign Affairs in office.53

52 “The issue and international transmission of the Arrest Warrant of 11 April 2000 by an authority of
the Belgian State stems from at least one infringement of international law, as will be demonstrated
below, of which the DRC is the victim: the violation of the rule of customary international law and
criminal immunity of Ministers for Foreign Affairs in office.” (DRC Memorial, at paragraph 6;
unofficial translation by Belgium)
Part I: Background and Preliminary Issues
24
1.35 That this latter element of the jurisdiction of the Belgian Judge to issue the
arrest warrant is no longer a central part of the DRC’s case is confirmed by the
characterisation of the nature of the dispute between the Parties in the DRC’s
Memorial where the DRC suggests that, by addressing the issue of immunity, the
Court can avoid addressing the issue of jurisdiction, and that it may prefer to do so.54
(b) The jurisdiction of the Court and the existence and nature of the dispute
1.36 In contrast to its Application in which the basis of the Court’s jurisdiction
relied upon by the DRC was not explicitly stated, the DRC, in its Memorial, expressly
invokes the respective Declarations of the Parties under Article 36(2) of the Statute as
founding the jurisdiction of the Court. These Declarations, both cast in wide terms,
confer jurisdiction on the Court in the case of all “legal disputes”. The operative part
of the Belgian Declaration, dated 17 June 1958, provides as follows:
“I declare on behalf of the Belgian Government that I recognise as
compulsory ipso facto and without special agreement, in relation to
any other State accepting the same obligation, the jurisdiction of the
International Court of Justice, in conformity with Article 36,
paragraph 2, of the Statute of the Court, in legal disputes arising
after 13 July 1948 concerning situations or facts subsequent to that
date, except those in regard to which the parties have agreed or may
agree to have recourse to another method of pacific settlement.”
1.37 The operative part of the DRC’s Optional Clause Declaration, dated 8
February 1989, provides as follows:
“… in accordance with Article 36, paragraph 2, of the Statute of the
International Court of Justice:
The Executive Council of the [DRC] recognises as compulsory ipso
facto and without special agreement, in relation to any other State
accepting the same obligation, the jurisdiction of the Court in all
legal disputes concerning:
(a) the interpretation of a treaty;
(b) any question of international law;

53 See DRC Memorial, at paragraph 97.
54 DRC Memorial, at paragraph 15.
Part I: Background and Preliminary Issues
25
(c) the existence of any fact which, if established, would
constitute a breach of an international obligation;
(d) the nature or extent of the reparation to be made for the breach
of an international obligation.”
1.38 Addressing the existence and nature of the legal dispute between the Parties
over which the Court is said to have jurisdiction, the DRC characterises the dispute
inter alia in the following terms:
“Il existe entre les Parties un différend juridique ayant pour objet la
compétence des autorités judiciares d’un État pour mettre en
accusation un membre du gouvernement d’un autre État et,
notamment, le ministre des Affaires étrangères de cet État. …
Entre les États comparaissant devant la Cour il existe donc un
différend clairement ciblé qui a pour objet les limites dans lesquelles
le droit international enferme l’exercice de la compétence pénale
internationale. Sur cette question chacun des deux États adopte une
position qui dépasse largement la défense ou la promotion d’un
intérêt égoïste. D’un côté, tout en se plaignant à juste titre de
l’atteinte infligée à sa souveraineté en la personne d’un membre de
son gouvernement, l’État demandeur entend faire prévaloir un
principe essentiel à l’existence de relations réglées entre nations
civilisées, à savoir le respect de l’immunité des personnes chargées
de conduire ces relations. D’un autre côté, l’État défendeur prétend
donner la préférence à ce qu’il présente comme une règle nouvelle,
insuffisamment attestée, de l’ordonnancement international, à savoir
l’obligation de contribuer à une répression effective des crimes de
droit international humanitaire.”55
1.39 As this extract makes clear, the essential character of the legal dispute
between the Parties identified by the DRC concerns the immunity of persons
responsible for conducting the international relations of a State.

55 “There is a legal dispute between the Parties concerning the power of the judicial authorities of one
State to accuse a member of the government of another State and more particularly the Minister for
Foreign Affairs of that State. …
Between the States appearing before the Court there is … a clearly targeted legal dispute the object
of which lies in the limits that international law puts on the exercise of international criminal
jurisdiction. On this question, each of the two States has adopted a position that goes well beyond the
defence or promotion of self-centred interest. One side, while right pleading an infringement of its
sovereignty in the person of a member of its government, the plaintiff State avails itself of a principle
essential to the existence of regulated relations between civilised nations, which is the respect of the
immunity of persons responsible for conducting those relations. On the other side, the defendant State
chose to give preference to what it has presented as a new, insufficiently attested, rule of international
Part I: Background and Preliminary Issues
26
1.40 As will be addressed further in Part II of this Counter-Memorial, Belgium
contends that, in consequence of the changed circumstances at the heart of this case,
there is no longer a “legal dispute” between the DRC and Belgium within the meaning
of this term in the Optional Clause Declarations of the Parties. While a difference of
opinion clearly remains between the Parties on the scope and content of international
law in this area, that difference of opinion has become a matter of abstract, rather than
practical, importance. The continued prosecution of this case by the DRC in the light
of the changed circumstances at its heart has become an exercise in seeking an
advisory opinion from the Court on the scope and content of international law.
Whatever may be the perceived benefits of such a course, the case no longer concerns
an extant dispute between the Parties. The Court accordingly, by reference to its own
jurisprudence, lacks jurisdiction under the Optional Clause Declarations of the Parties
in this case.
(c) The substance of the case
1.41 The substance of the DRC’s case can be described relatively briefly. The
DRC’s contentions on the merits are divided between two main substantive parts of
its Memorial, the Second Part, which addresses various issues under the heading
International Law and Internal Law, and the Third Part, which addresses the Rules of
International Law Applicable to the Dispute Between the Parties. The Fourth Part
then briefly summarises elements of the DRC’s case and sets out the remedies
requested by the DRC of the Court. The DRC’s final submissions are then stated
formally in the Memorial’s Conclusions.
1.42 The Second Part of the Memorial, dealing with issues of international and
internal law, addresses at some length various aspects of Belgian municipal law and
the place therein of international law. Thus, the DRC addresses the doctrine of
monism and the precedence accorded by Belgium to international law.56 It goes on to
address in detail the methodology applicable to the interpretation of the Belgian Law
of 16 June 1993, as amended by the Law of 10 February 1999, as well as its

order which is the obligation to contribute to effective repression of violations of international
humanitarian law.” (DRC Memorial, at paragraphs 13 and 16; unofficial translation by Belgium)
56 At Deuxième Partie, Chapitre II.
Part I: Background and Preliminary Issues
27
meaning.57 Finally, it addresses the duty of the investigating judge to verify whether
he has jurisdiction in any given case.58
1.43 These sections are interesting. They are not, however, material to the case
before the Court. This point, indeed, is implicitly acknowledged in the opening
chapter of the Second Part in which it is stated “[l]a Partie demanderesse n’a pas
l’intention de solliciter de la Cour une décision sur le problème des rapports de
système entre le droit international et droit interne”.59
1.44 Two observations are nevertheless warranted on this material. First, the
issues addressed in the Second Part of the DRC Memorial are issues properly directed
to, and eminently suitable to be addressed by, a Belgian court. Whether ultimately
correct on the law or not, detailed argument is made in this Part to the effect that the
investigating judge erred when issuing the arrest warrant, as a matter of both the
substance and procedure of Belgian law. In Belgium’s contention, these are issues
that would properly be addressed to a Belgian court and should have been addressed
to such a court as a condition precedent to the initiation of the present case before the
International Court of Justice. Particularly in the light of the changed circumstances
at the heart of this case, the DRC itself, in this Part of its Memorial, makes the case
for the existence of local remedies.
1.45 Second, the issues of Belgian municipal law addressed in the Second Part of
the DRC Memorial suggest that the proper function of the International Court of
Justice is to strike down or annul national legislation or other measures that the Court
concludes is inconsistent with international law. The point is reinforced by the DRC’s
request that the Court require Belgium to withdraw and annul the disputed arrest
warrant.
1.46 In Belgium’s submission, this appreciation of the function of the
International Court of Justice is mistaken. The role and function of the Court is to

57 At Deuxième Partie, Chapitre III.
58 At Deuxième Partie, Chapitre IV
59 “The Plaintiff does not intend to solicit a ruling from the Court on the problem of the relations
between the international legal system and national law.” (DRC Memorial, at paragraph 20; unofficial
translation by Belgium)
Part I: Background and Preliminary Issues
28
decide issues of international law that come before it and in respect of which it has
jurisdiction. Pursuant to Article 94(1) of the United Nations Charter and Article 59 of
the Statute of the Court, parties to a case before the Court are obliged to comply with
the decision of the Court in that case. How a State chooses to comply with a decision
of the Court – within a range of options that may be available to it for doing so – is,
however, a matter for the State concerned. This issue is addressed further in Chapter
Six of Part III of this Counter-Memorial in connection with the remedies requested by
the DRC.
1.47 The Third Part of the DRC’s Memorial contains the main detail of the DRC’s
submissions in this case. It is subtitled “L’atteinte portée à l’inviolabilité et
l’immunité pénale absolues du ministre des Affaires étrangères et violation des droits
souverains de la R.D.C.”60 A number of elements of this Part may usefully be
highlighted.
1.48 First, this Part is divided into five chapters. Chapter I affirms that Mr
Yerodia Ndombasi was Minister for Foreign Affairs of the DRC at the point at which
the arrest warrant was issued. It also affirms that he became Minister for National
Education on 20 November 2000. It further states that he ceased to occupy any
ministerial position within the DRC Government from 15 April 2001. It does not
state, however, that he did not occupy any ministerial position at the time at which the
acts alleged in the arrest warrant were said to have been committed. As previously
noted, at that point in time, Mr Yerodia Ndombasi was Director of the Office of
President Laurent-Désiré Kabila.
1.49 Second, Chapters II – IV address in detail various aspects of the law relating
to the immunity of Ministers for Foreign Affairs. Nothing material is said about the
immunities that may or may not attach to other ministerial offices of State. The point
is made that immunities are related to the performance of the function of the Minister
for Foreign Affairs.61 It is argued that Ministers for Foreign Affairs in office are

60 “The infringement of the complete inviolability and immunity of the Minister for Foreign Affairs and
violation of the sovereign rights of the DRC.” (DRC Memorial, Troisième Partie, at p.28; unofficial
translation by Belgium)
61 DRC Memorial, at paragraph 47.
Part I: Background and Preliminary Issues
29
immune from any restrictive measures.62 It is further argued that the immunity of the
Minister for Foreign Affairs is restricted simply by the issuing of an arrest warrant.63
1.50 The prejudice alleged to have been caused to the DRC is addressed, as is the
effect of the arrest warrant in Belgian law.
64 Nowhere, however, is there any
suggestion that either the DRC or third States are obliged to act in response to the
Belgian warrant. As has already been observed, the issuing and transmission of the
arrest warrant created no obligation for the DRC. Nor, in the absence of a formal
extradition request, against the background of some relevant commitment to extradite,
would the issuing and transmission of the warrant have created any obligation for any
other State.
1.51 Third, the contention is advanced that there is no exception to the complete
inviolability and immunity of Ministers for Foreign Affairs even in the case of
allegations concerning the commission of international crimes.65 As regards this
matter, it is stated that this is “[l]e point de divergence le plus fondamental entre la
R.D.C. et la Belgique”.
66
1.52 Finally, Chapter V of the Third Part addresses the issue of universal
jurisdiction.67 The contentions here advanced are that Belgium is not under an
obligation to assume jurisdiction in respect of the crimes alleged, that it is not certain
(“il n’est pas certain”) that international law allows Belgium to do what it is doing,
and that, in any case, Belgium’s acts infringe the sovereign rights of the DRC.68

Significantly, however, the only discussion of the contention that Belgium is in
violation of the sovereignty of the DRC is through a reference back to the prejudice
alleged to have been caused to the DRC by the issuing of the arrest warrant.69 As has
already been observed, however, the DRC Memorial at no point addresses the binding

62 DRC Memorial, at paragraphs 49–50.
63 DRC Memorial, at paragraph 51.
64 DRC Memorial, at paragraphs 52–57.
65 DRC Memorial, at paragraphs 58–73.
66 “[t]he most fundamental point of divergence between the DRC and Belgium”. (DRC Memorial, at
paragraph 58; unofficial translation by Belgium)
67 DRC Memorial, at paragraphs 74–92.
68 DRC Memorial, at paragraph 74.
69 DRC Memorial, at paragraph 92. See also paragraphs 52 et seq.
Part I: Background and Preliminary Issues
30
effect of the arrest warrant vis-à-vis either the DRC or third States. As has already
been noted, the issuing and transmission of the arrest warrant created no obligation for
the DRC. Nor, in the circumstances, did it create any obligation for any other State.
Part I: Background and Preliminary Issues
31
(d) The remedies requested and the DRC’s final submissions
1.53 The remedies requested of the Court by the DRC are addressed in Part Four
of the DRC’s Memorial and then formally restated, as required by Article 49(1) of the
Court’s Rules, by way of final submissions. These are as follows:
“1. Qu’en émettant et en diffusant internationalement le mandat
d’arrêt du 11 avril 2000 délivré à charge de Monsieur Abdulaye
Yerodia Ndombasi, la Belgique a violé, à l’encontre de la R.D.C., la
règle de droit international coutumier relative à l’inviolabilité et
l’immunité pénale absolues des ministres des Affaires étrangères en
fonction;
2. Que la constatation solennele par la Cour du caractère illicite
de ce fait constitue une forme adéqaute de satisfaction permettant de
réparer le dommage moral qui en découle dans le chef de la R.D.C.;
3. Que la violation du droit international don’t procèdent
l’émission et la diffusion internationale du mandat d’arrêt du 11
avril 2000 interdit à tout État, en ce compris la Belgique, d’y donner
suite;
4. Que la Belgique est tenue de retirer et mettre à néant le
mandat d’arrêt du 11 avril 2000 et de faire savoir auprès des
autorités étrangères auxquelles ledit mandat fut diffusé qu’elle
renonce à solliciter leur coopération pour l’exécution de ce mandat
illicite suite à l’arrêt de la Cour.”70
1.54 Three brief observations are warranted on the remedies requested of the
Court by the DRC and their formulation. First, the remedies requested relate solely to
the allegation that Belgium violated the immunities of the Minister for Foreign Affairs
in office of the DRC. The Court is not requested to address by way of judgment the
allegations concerning the jurisdiction of the Belgian judge to issue the arrest warrant
distinct from any question of immunity. Second, the damage allegedly suffered by

70 “1. That by issuing and internationally transmitting the Arrest Warrant of 11 April 2000 issued
against Mr Abdulaye Yerodia Ndombasi, Belgium violated, to the prejudice of the DRC, the rule of
customary international law on the complete inviolability and immunity of the Minister for Foreign
Affairs in office; 2. That the solemn declaration by the Court of the illicit nature of this act constitutes
an adequate form of satisfaction to compensate the moral damages that resulted therefrom for the DRC;
3. That the violation of international law from which the issue and international transmission of the
Arrest Warrant of 11 April 2000 proceeds prohibits any State, including Belgium, from enforcing it; 4.
That Belgium is required to withdraw and annul the Arrest Warrant of 11 April 2000 and to inform the
foreign authorities to which the warrant has been transmitted that it renounces petitioning their
Part I: Background and Preliminary Issues
32
the DRC in consequence of the issuing and transmission of the arrest warrant is here
described as moral damage (“dommage moral”). This contrasts with the rather
unspecific allegations of wider prejudice suffered by the DRC made in the body of the
Memorial. Third, and closely associated with the preceding point, the DRC is not
seeking financial or compensatory damages of any sort for actual harm alleged to
have been suffered.
1.55 The significance of these points is twofold. They confirm that the central
pivot of the DRC’s case remains the question of the immunities of Ministers for
Foreign Affairs. More significantly, they attest to the fact that, in consequence of the
change of circumstances at the very heart of the case, the case has in reality been
transformed into a request for an advisory opinion on a matter of law on which
Belgian and the DRC disagree. The matter is now entirely abstract. There is no
suggestion of actual damage suffered by the DRC in the past. The case is now purely
concerned with the clarification of the law. As will be addressed in Part II, in the
absence of a dispute between States of a real, practical nature which requires
resolution by the Court, differences of view between States on the scope and content
of international law is part of the dynamic process of law-making in the international
community and is not a matter appropriate to the adjudicatory functions of the Court
in the abstract.
4. Conclusions
1.56 This case began on 17 October 2000 as a claim by the DRC that its
sovereignty had been infringed and the immunity of its Minister for Foreign Affairs
violated as a result of the issue and transmission of an arrest warrant by a Belgian
judge. The case has evolved significantly since then. First, the subject of the arrest
warrant was relieved of the position of Minister for Foreign Affairs whereupon the
claim was expressed to hinge on the immunity of ministers of State more generally.
Now, given that the subject of the arrest warrant no longer occupies any ministerial
position in the DRC Government, the case has been refashioned as a retrospective
claim for the infringement of the immunity of the Minister for Foreign Affairs at some

assistance for the enforcement of this illicit warrant in view of the Court’s judgment.” (DRC
Part I: Background and Preliminary Issues
33
point in the past. The damage alleged to have been suffered is described as moral
damage. The claim relating to the jurisdiction of the Belgian judge has become a
peripheral element of argument and one which is not the subject of any request of the
Court.
1.57 The case, therefore, in reality, has become a request for the clarification of
the law in the abstract. The dispute alleged has become an abstract difference of view
about certain issues of law rather than a matter of practical moment which is in need
of resolution by the Court. The case as now formulated has no connection to the
prevailing factual situation. As will be addressed in Part II of this Counter-Memorial,
Belgium contends therefore that, in the light of these developments, the Court lacks
jurisdiction in this case and/or that the application is inadmissible.
C. The position of Mr Yerodia Ndombasi at the material times
1.58 Before leaving this Part, it may be helpful simply to identify the position of
Mr Yerodia Ndombasi at all the material times. From the information available to
Belgium, the position is as follows:
· Mr Yerodia Ndombasi was Director of the Office of President LaurentDésiré
Kabila from 20 January 1998 until 14 December 1999. It was during
this period that he is alleged to have committed the acts that are the subject
of the arrest warrant;
· Mr Yerodia Ndombasi became Minister for Foreign Affairs of the DRC on
15 December 1999, a post that he held until 19 November 2000.71 This
period coincides with the commencement of proceedings by the DRC against
Belgium before the Court;
· from 20 November 2000 to 14 April 2001, Mr Yerodia Ndombasi was
Minister of National Education of the DRC; and

Memorial, at paragraph 97; unofficial translation by Belgium)
Part I: Background and Preliminary Issues
34
· since 15 April 2001 and the constitution of the new DRC Government of
President Joseph Kabila, Mr Yerodia Ndombasi has not occupied any
position in the Government of the DRC. This period coincides with the
filing of the Memorial of the DRC.
* * *

71 At paragraph 45 of its Memorial, the DRC indicates that Mr Yerodia Ndombasi exercised the
functions of Minister for Foreign Affairs of the DRC from 15 March 2000 until 20 November 2000.
Nothing material hinges on the discrepancy between the Parties on this matter.
Part II: Objections to Jurisdiction and Admissibility
35
PART II
OBJECTIONS TO JURISDICTION AND ADMISSIBILITY
2.1 As has already been intimated, Belgium contends that the Court lacks
jurisdiction in this case and/or that the application is inadmissible. In support of this
contention, Belgium advances four principal submissions and a fifth, ancillary
submission. The principal submissions may be summarised as follows:
First submission
That, in the light of the fact that Mr Yerodia Ndombasi is no longer
either Minister for Foreign Affairs of the DRC or a minister
occupying any other position in the DRC Government, there is no
longer a dispute between the Parties within the meaning of this term
in the Optional Clause Declarations of the Parties and that the Court
accordingly lacks jurisdiction in this case.
Second submission
That, in the light of the fact that Mr Yerodia Ndombasi is no longer
either Minister for Foreign Affairs of the DRC or a minister
occupying any other position in the DRC Government, the case is
now without object and the Court should accordingly decline to
proceed to judgment on the merits of the case.
Third submission
That the case as it now stands is materially different to that set out in
the DRC’s Application instituting proceedings and that the Court
accordingly lacks jurisdiction in the case and/or the application is
inadmissible.
Fourth submission
That, in the light of the new circumstances concerning Mr Yerodia
Ndombasi, the case has assumed the character of an action of
diplomatic protection but one in which the individual being
protected has failed to exhaust local remedies, and that the Court
accordingly lacks jurisdiction in the case and/or that the application
is inadmissible.
Part II: Objections to Jurisdiction and Admissibility
36
2.2 These submissions, though overlapping on certain elements – notably as
regards the first and second submission – are distinct and are advanced in the
alternative. They are addressed in turn below.
2.3 In the event that the Court decides that it does have jurisdiction in this case
and that the application is admissible, Belgium submits, as an ancillary matter, that
the non ultra petita rule operates to limit the jurisdiction of the Court to those issues
that are the subject of the DRC’s final submissions.
A. First submission: there is no longer a dispute between the Parties
2.4 The Optional Clause Declarations of the Parties under Article 36(2) of the
Court’s Statute give the Court jurisdiction in the case of “legal disputes” that may be
submitted to it.72 The language of “legal dispute”, reflecting the express wording of
Article 36(2), is common to many such Declarations and has been the subject of
comment by both the International Court and the Permanent Court before it on
numerous occasions. Thus, in the Mavrommatis Palestine Concessions case, the
Permanent Court defined a dispute as “a disagreement on a point of law or fact, a
conflict of legal views or of interests between two persons”.73 This language has been
echoed subsequently by the International Court with only minor variation. Thus, in
the East Timor case, the Court recalled that “a dispute is a disagreement on a point of
law or fact, a conflict of legal views or of interests between parties”.74
2.5 The Court has also had occasion to give other guidance on the matter. Thus,
for example, the Court has indicated that the question of whether a dispute exists “is a
matter for objective determination”75 by reference to all the relevant material relating
to the case.76 It has also observed that

72 Both Declarations are subject to various conditions which are not material for present purposes. The
Declarations are set out at paragraphs 1.36–1.37 above.
73 Mavrommatis Palestine Concessions, PCIJ, Series A, No.2 (1924), p.11.
74 East Timor (Portugal v. Australia), Judgment, ICJ Reports 1995, p.90, at paragraph 22.
75 Case Concerning the Applicability of the Obligation to Arbitrate Under Section 21 of the United
Nations Headquarters Agreement of 26 June 1947 (“Headquarters Agreement Advisory Opinion”), ICJ
Reports 1988, p.12, at paragraph 35.
76 Fisheries Jurisdiction (Spain v. Canada), ICJ Reports 1998, p.432, at paragraphs 29–30.
Part II: Objections to Jurisdiction and Admissibility
37
“it is not sufficient for one party to a contentious case to assert that a
dispute exists with the other party. A mere assertion is not
sufficient to prove the existence of a dispute any more than a mere
denial of the existence of the dispute proves its non-existence. Nor
is it adequate to show that the interests of the two parties to such a
case are in conflict. It must be shown that the claim of one party is
opposed by the other.”77
2.6 Belgium does not contest that a legal dispute existed between the DRC and
Belgium at the point at which the DRC filed its Application instituting proceedings.
That legal dispute related to a disagreement on a point of law between the Parties, the
issue in contention being the entitlement, as a matter of international law, of the
Belgian investigating judge to issue an arrest warrant naming the Minister for Foreign
Affairs in office of the DRC on charges of grave breaches of the Geneva Conventions
and crimes against humanity.
2.7 For purposes of the jurisdiction of the Court, the question is not, however,
whether a legal dispute did exist. It is whether a legal dispute does exist. It is not a
question of critical dates and whether the Court was properly seised. Belgium accepts
that it was. It is a question of whether there continues to be a “concrete case”
involving an “actual controversy”78 at the point at which the Court is called upon to
give judgment on the merits. As the Court observed in the Nuclear Tests cases:
“The Court, as a court of law, is called upon to resolve existing
disputes between States. … The dispute brought before it must
therefore continue to exist at the time when the Court makes its
decision.”79
2.8 It is not Belgium’s intention here to stand on trite or technical points of law.
It is clear that there was a dispute between the Parties when the DRC filed its
Application instituting proceedings. But for certain shortcomings relating to the
imprecision with which the case, and the jurisdiction of the Court, were stated in that
Application – which are no longer material – the Court was properly seised by that

77 South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections,
ICJ Reports 1962, p.319, at p.328. Also, Headquarters Agreement Advisory Opinion, supra, at
paragraph 35.
78 Case Concerning Northern Cameroons (Cameroon v. United Kingdom), Preliminary Objections, ICJ
Reports 1963, p.15, at pp.33–34.
Part II: Objections to Jurisdiction and Admissibility
38
Application. The question, however, is whether, in the light of the quite fundamental
changes in the circumstances at the very heart of the DRC’s case, there continues to
be a “concrete dispute” in respect of which the Court can properly be said to have
jurisdiction pursuant to the Optional Clause Declarations of the Parties.80
2.9 This question is not abstract and without wider ramifications. The issues of
law at the centre of this case raise matters of considerable importance which go to the
development of the international legal order in the area of individual criminal
responsibility. Belgium takes a particular view of the role of national courts and
procedures in this process. It considers that this view is permitted by international
law. Other States may take a different view.81 Is it to be the case, however, that any
State which disagrees with Belgium on this matter is to be free to initiate proceedings
before the Court alleging a dispute, regardless of whether there is an “actual
controversy” amounting to a “concrete dispute”, with the view of obtaining an
advisory opinion from the Court on the matter? This cannot be so. As will be
addressed further below, the adjudicatory function of the Court requires, in Belgium’s
submission, that a dispute with which the Court is seised is and remains a real,
concrete dispute; a live controversy requiring practical resolution. Any other
interpretation of the term “dispute” would extend the adjudicatory role of the Court
into the area of advisory opinions. This is not the scheme of the Statute.
2.10 The point was cogently made by the Court in the Nuclear Tests cases:
“It does not enter into the adjudicatory functions of the Court to deal
with issues in abstracto, once it has reached the conclusion that the
merits of the case no longer fall to be determined. The object of the
claim having clearly disappeared, there is nothing on which to give
judgment.”82

79 Nuclear Tests Cases (Australia v. France; New Zealand v. France), ICJ Reports 1974, pp.253 and
457 respectively (“Nuclear Tests cases”), at paragraphs 55 and 58 respectively.
80 There is also the closely related point of whether, even if the Court does have jurisdiction in the case,
the issue is one in respect of which it would be appropriate for the Court to proceed to judgment on the
merits. This question is the subject of Belgium’s Second Submission addressed below.
81 Although, on the evidence available, such States appear to be in the distinct minority. This element
is addressed in Part III below.
82 Nuclear Tests cases, supra, at paragraphs 59 and 62 respectively.
Part II: Objections to Jurisdiction and Admissibility
39
2.11 The point was made in similar terms in the Northern Cameroons case,
although in language that straddled the issues of jurisdiction and admissibility, as
follows:
“The Court must discharge the duty to which it has already called
attention – the duty to safeguard the judicial function. Whether or
not at the moment the Application was filed there was jurisdiction in
the Court to adjudicate upon the dispute submitted to it,
circumstances that have since arisen render any adjudication devoid
of purpose. Under these conditions, for the Court to proceed further
in the case would not, in its opinion, be a proper discharge of its
duties.”83
2.12 In the light of these observations, the question is whether there continues to
be a concrete dispute between the Parties in respect of which the Court can properly
be said to have jurisdiction. Belgium contends that there does not. What remains,
following the changed circumstances in the position of Mr Yerodia Ndombasi, is a
difference of view between the DRC and Belgium on the law relating to the immunity
of Ministers for Foreign Affairs in respect of allegations of war crimes and crimes
against humanity. Deprived of practical content by the change in circumstances, this
difference of view is, however, now a matter of abstract concern.
2.13 The centrality to the DRC’s case of the official governmental position of Mr
Yerodia Ndombasi was fully addressed in the preceding part of this CounterMemorial.
There is accordingly no need to go over the issue in any detail at this
point. For convenience, however, it may be helpful to recall that the position of Mr
Yerodia Ndombasi as Minister for Foreign Affairs of the DRC was central to the
DRC’s Application instituting proceedings. The ministerial position of the subject of
the arrest warrant was expressly stated to be the continuing raison d’être of the case
during the provisional measures phase. The immunity of Ministers for Foreign
Affairs is the central pivot of the DRC Memorial. It is also the critical point on which
the DRC has requested the Court to adjudicate.

83 Northern Cameroons case, supra, at p.38.
Part II: Objections to Jurisdiction and Admissibility
40
2.14 As was observed in the discussion on the remedies requested by, and the
final submissions of, the DRC in the preceding part of this Counter-Memorial, the
abstract nature of the DRC’s case is reinforced by its characterisation of the damage
allegedly suffered as “moral damages” and the absence of any request for
compensatory damages.84 In this regard, it may be recalled that the absence of claim
for compensatory damages was an element in the decision of the Court in the
Australian Nuclear Tests application that the dispute in that case had become abstract
and, accordingly, fell outside of the adjudicatory functions of the Court.85
2.15 The point does not need to be laboured further. In Belgium’s contention, the
change in circumstances at the heart of this case has deprived the case of both its
practical content and purpose. The dispute, real at the point at which the Court was
seised, has ceased to have any concrete dimension requiring practical resolution.
Belgium contends that, in consequence, there is no longer a “legal dispute” between
the Parties within the meaning of this term in the Parties’ Optional Clause
Declarations. As a matter of law, the Court accordingly lacks jurisdiction in this case.
B. Second submission: the case is now without object
2.16 Distinct from the preceding submission, in the event that the Court concludes
that there continues to be a legal dispute between the Parties which falls within the
jurisdiction of the Court, Belgium contends that that dispute is now without object in
view of the fact that Mr Yerodia Ndombasi no longer occupies any ministerial
position in the DRC Government. In the language of the Court, this change in
circumstances renders any adjudication “devoid of purpose”.86 The Court should
accordingly decline to proceed to judgment on the merits of the case. Although this
submission raises similar issues to those addressed in the previous section, it goes to
the discretion of the Court in the exercise of its judicial function.
2.17 The distinction between the formal question of the jurisdiction of the Court
in any given case and the exercise by the Court of its judicial function is well-

84 See paragraphs 1.53–1.55 above.
85 Nuclear Tests cases, supra, p.253, at paragraph 53.
86 Northern Cameroons case, supra, at p.38; Nuclear Tests cases, supra, at paragraph 23.
Part II: Objections to Jurisdiction and Admissibility
41
established in the Court’s jurisprudence. In the Nottebohm case, for example, the
Court observed that “the seising of the Court is one thing, the administration of justice
is another”.87 The distinction was elaborated upon in the Frontier Dispute (Burkina
Faso v. Mali) in the following terms:
“[i]n the Chamber’s opinion, it should first be recalled that there is a
distinction between the question of the jurisdiction conferred upon it
… and the question whether ‘the adjudication sought by the
Applicant is one which the Court’s judicial function permits it to
give’, a question considered by the Court in the case concerning the
Northern Cameroons, among others (I.C.J. Reports 1963, p.31). As
it also stated in that case, ‘even if the Court, when seised, finds that
it has jurisdiction, the Court is not compelled in every case to
exercise that jurisdiction (ibid., p.29).”88
2.18 This distinction was central to the decisions of the Court in both the Northern
Cameroons case and the Nuclear Tests cases as well as having arisen for
consideration in a number of other cases before both the International Court and the
Permanent Court.89
2.19 The decisions of the Court in the Northern Cameroons and Nuclear Tests
cases are particularly on point as regards the present proceedings and warrant closer
examination.
2.20 As is well-known, in the Northern Cameroons case, following the filing of
the Application instituting proceedings by Cameroon against the United Kingdom
alleging that the United Kingdom had failed to respect certain obligations flowing
from the Trusteeship Agreement concerning Northern Cameroons, the UN General
Assembly decided to terminate the Trusteeship Agreement. In developing its
arguments before the Court subsequent to this decision, the Applicant indicated that it
did not ask the Court to revise or reverse the conclusions of the General Assembly but
simply “to appreciate certain facts and to reach conclusions on those facts”.90

87 Nottebohm Case (Liechtenstein v. Guatemala), Preliminary Objections, ICJ Reports 1953, p.111, at
p.122.
88 Case Concerning the Frontier Dispute (Burkina Faso and Mali), ICJ Reports 1986, p.554, at
paragraph 45.
89 For example, the Free Zones case, PCIJ, Series A, No.22 and Series A/B, No.46.
Part II: Objections to Jurisdiction and Admissibility
42
2.21 In the light of the changed circumstances at the heart of that case, the Court
declined to proceed to render a judgment on the merits of the issue. In so doing, it set
out a number of principles of general application relating to the exercise of the
judicial function which are directly pertinent to the present proceedings. Thus, as has
already been observed in the preceding section of this Part, the Court noted that “it
may pronounce judgment only in connection with concrete cases where there exists at
the time of the adjudication an actual controversy involving a conflict of legal
interests between the parties”.91
2.22 The Court went on to note that the Applicant’s claim in that case was for a
declaratory judgment. It continued in terms that merit recitation in detail.
“That the Court may, in an appropriate case, make a declaratory
judgment is indisputable. The Court has, however, already
indicated that even if, when seised of an Application, the Court
finds that it has jurisdiction, it is not obliged to exercise it in all
cases. If the Court is satisfied, whatever the nature of the relief
claimed, that to adjudicate on the merits of an Application would be
inconsistent with its judicial function, it should refuse to do so.
…
… it is not the function of a court merely to provide a basis for
political action if no question of actual legal rights is involved.
Whenever the Court adjudicates on the merits of a dispute, one or
the other party, or both parties, as a factual matter, are in a position
to take some retroactive or prospective action or avoidance of
action, which would constitute a compliance with the Court’s
judgment or a defiance thereof. That is not the situation here.
… circumstances that have since [the filing of the Application]
arisen render any adjudication devoid of purpose. Under these
conditions, for the Court to proceed further in the case would not, in
its opinion, be a proper discharge of its duties.
… Any judgment which the Court might pronounce would be
without object.”92
2.23 The circumstances of the present case are not, of course, ad idem with those
in the Northern Cameroons case. On the essential elements of the two cases relevant

90 Northern Cameroons case, supra, at p.32.
91 Northern Cameroons case, supra, at pp.33–34 (emphasis added).
Part II: Objections to Jurisdiction and Admissibility
43
to a decision of the Court, however, they are not that far apart. In the Northern
Cameroons case, the Court was properly seised by the Applicant in respect of a
dispute that was concrete at the time of the Application instituting proceedings. So
too in this case. In the Northern Cameroons case, circumstances subsequent to the
filing of the Application fundamentally altered the practical dimension of the
proceedings. This, too, is the situation in the present proceedings. In the Northern
Cameroons case, the supervening circumstances rendered any adjudication on the
merits devoid of practical purpose. Belgium contends that this is the situation in the
present case as well. This issue is addressed further below. In the Northern
Cameroons case, a judgment of the Court on the merits might have provided some
guidance on the law for the future relevant to the performance of trusteeship
obligations. The same will no doubt be argued by the Applicant in this case with
regard to the law relating to the immunity of Ministers for Foreign Affairs in office.
Finally, in the Northern Cameroons case, despite the issues of abstract principle that
remained in contention between the parties, the Court declined to give a judgment on
the merits on the ground that to do so would be without object. Belgium submits that
the Court should adopt the same approach in the present case.
2.24 The circumstances of, and decision of the Court in, the Nuclear Tests cases
further support Belgium’s submissions in the present case. As is well known, the
Applications by Australia and New Zealand in those cases concerned French
atmospheric nuclear testing in the South Pacific. The Applications requested a
declaration from the Court to the effect that the carrying out of further atmospheric
nuclear tests in the South Pacific would be inconsistent with international law.
Subsequent to the filing of the Applications, a number of authoritative statements
were made on behalf of the French Government which the Court considered
expressed an intention on the part of France to cease atmospheric nuclear testing
following the series of tests in which it was then engaged.
2.25 In the light of these statements, the Court concluded that the object of the
claim had disappeared and that it was no part of the adjudicatory function of the Court

92 Northern Cameroons case, supra, at pp.37–38.
Part II: Objections to Jurisdiction and Admissibility
44
to deal with issues in abstracto.
93 The Court accordingly declined to proceed to
judgment in the matter. Its reasoning in doing so is material to the present case.
2.26 The Court first recalled that it possessed an “inherent jurisdiction” enabling it
to take such decisions as may be required inter alia to ensure the “inherent limitations
on the exercise of the judicial function”.94 It proceeded thereafter to address its
function as a court of law in terms that have already been touched upon but which are
particularly germane to the present proceedings.
“The Court, as a court of law, is called upon to resolve existing
disputes between States. Thus the existence of a dispute is the
primary condition for the Court to exercise its judicial function; it is
not sufficient for one party to assert that there is a dispute, since
‘whether there exists an international dispute is a matter for
objective determination’ by the Court (Interpretation of Peace
Treaties with Bulgaria, Hungary and Romania (First Phase),
Advisory Opinion, I.C.J. Reports 1950, p.74). The dispute before it
must therefore continue to exist at the time when the Court makes its
decision. It must not fail to take cognisance of a situation in which
the dispute has disappeared because the object of the claim has been
achieved by other means. …
The Court has in the past indicated considerations which would lead
it to decline to give judgment. The present case is one in which
‘circumstances that have … arisen render any adjudication devoid
of purpose’ (Northern Cameroons, Judgment, I.C.J. Reports 1963,
p.38). The Court therefore sees no reason to allow the continuance
of proceedings which it knows are bound to be fruitless. While
judicial settlement may provide a path to international harmony in
circumstances of conflict, it is none the less true that the needless
continuance of litigation is an obstacle to such harmony.
Thus the Court finds that no further pronouncement is required in
the present case. It does not enter into the adjudicatory function of
the Court to deal with issues in abstracto, once it has reached the
conclusion that the merits of the case no longer fall to be
determined. The object of the claim having clearly disappeared,
there is nothing on which to give judgment.”95
2.27 As with the Northern Cameroons case, the circumstances of the present case
are not ad idem with the Nuclear Tests cases. In particular, in the Nuclear Tests cases

93 Nuclear Tests cases, supra, at paragraphs 59 and 62 respectively.
94 Nuclear Tests cases, supra, at paragraph 23 respectively.
95 Nuclear Tests cases, supra, at paragraphs 55–59 and 58–62 respectively (emphasis added).
Part II: Objections to Jurisdiction and Admissibility
45
the Court concluded that, in consequence of the official statements made on behalf of
the Respondent in that case, the Applicants’ objective had been achieved. In contrast,
in the present case, the supervening facts relate to a change in circumstances at the
heart of the case to do with the position of the Applicant. This notwithstanding, there
are important elements in common between the two sets of proceedings which suggest
that the principles laid down by the Court in the Nuclear Tests cases would be
appropriately applied in the present case.
2.28 One such element was the contention in the Nuclear Tests cases that, even
though the Applicants’ objectives had been achieved, a judgment of the Court might
still be of value because, if it upheld the Applicants’ contentions, “it would reinforce
the position of the Applicant[s] by affirming the obligation of the Respondent.”96 The
proposition, in other words, was that a judgment of the Court might serve some
purpose in clarifying the law notwithstanding that the Applicants’ objectives had been
achieved. The Court rejected this contention, however, noting that “the dispute
having disappeared, the claim advanced by [the Applicants] no longer has any object.
It follows that any further finding would have no raison d’être.”97 The Court thus
considered that clarification of the law for the future was not a sufficient ground for
proceeding to judgment in circumstances in which to do so would have no practical
effect.
2.29 A second element emerging from the Nuclear Tests cases was the Court’s
appreciation of the limits of the judicial function as something not to be exercised in
the adjudication of abstract issues notwithstanding that it may have jurisdiction to do
so – “[t]he dispute brought before it must … continue to exist at the time when the
Court makes its decision.”98
2.30 A third element of note was the Court’s appreciation that to proceed with
litigation that had been commenced in isolation of the wider context of relations
between the parties was not necessarily conducive to harmonious relations – “[w]hile
judicial settlement may provide a path to international harmony in circumstances of

96 Nuclear Tests cases, supra, at paragraphs 56 and 59 respectively.
97 Nuclear Tests cases, supra, at paragraphs 56 and 59 respectively.
98 Nuclear Tests cases, supra, at paragraphs 55 and 58 respectively.
Part II: Objections to Jurisdiction and Admissibility
46
conflict, it is nonetheless true that the needless continuance of litigation is an obstacle
to such harmony.”99
2.31 Finally, it may be observed that the Court’s appreciation, in the Nuclear
Tests cases, of issues that had been in contention between the parties at the
commencement of the proceedings but that had subsequently become issues in
abstracto, and accordingly no longer fell to be determined by the Court, hinged not on
whether there was an on-going difference of views between the parties but on whether
determination by the Court would have any practical utility. Clarification of the law
for the future, or the reinforcing of the position of one or other party to the dispute,
were not objectives that required the Court to proceed to a judgment in circumstances
in which the essential concrete substance of the dispute had ceased to exist.100
2.32 The question, against this background, is whether the issues at the heart of
the present case remain concrete issues in contention between the Parties or whether
they have become abstract questions on which a determination by the Court would
serve no practical purpose. In Belgium’s contention, the response to this enquiry is
manifest. In the light of the change in circumstances at the heart of this case, the
issues raised by the case have, for all practical purposes, become abstract questions
the resolution of which no longer has any object. Belgium would go further. In
Belgium’s contention, in the absence of a continuing concrete dispute between the
Parties on the matters in question, for the Court to proceed to a judgment on the
merits could be positively counter-productive.
2.33 As was addressed in detail in Part I of this Counter-Memorial, the DRC case
has from the outset been predicated on the ministerial position of the subject of the
arrest warrant. This was the way in which the Application instituting proceedings was
framed. The ministerial position of Mr Yerodia Ndombasi was explicitly declared by
the DRC to be the continuing raison d’être of the case during the provisional
measures phase of the proceedings. The entire focus of the DRC Memorial has also
been directed towards this issue.

99 Nuclear Tests cases, supra, at paragraphs 58 and 61 respectively.
Part II: Objections to Jurisdiction and Admissibility
47
2.34 It will no doubt be argued that the case as reformulated in the DRC Memorial
addresses the allegation that Belgium was in breach of international law as a result of
the issuing and transmission of the arrest warrant and that a declaration to this effect
is a continuing and legitimate object of the proceedings. The reality of the matter,
however, is quite different. As has already been observed, the DRC is not seeking
compensatory damages and does not allege such damage. The DRC seeks the
withdrawal and annulment of the arrest warrant by order of the Court on the grounds
that the warrant was issued in violation of the immunity of the Minister for Foreign
Affairs. The issue and transmission of the arrest warrant were not, however,
predicated on the position of person named therein as Minister for Foreign Affairs.
Nor is the person concerned now the Minister for Foreign Affairs. There is thus no
longer any basis for these requests of the Court by the DRC even assuming arguendo
that the case as presented by the DRC has any merit.
2.35 The remaining request of the Court is for a declaration that Belgium, by
issuing and transmitting the warrant violated the immunity of the Minister for Foreign
Affairs of the DRC. This element, however, falls about as clearly as it is possible to
fall within the principles enunciated by the Court in the Northern Cameroons and
Nuclear Tests cases. In the circumstances, a judgment by the Court on the merits
could only have two possible purposes. It could either be directed towards the
clarification of the law in this area for the future. Or it could be designed to reinforce
the position of one or other Party. In either case, for the Court to proceed to a
judgment on the merits would be to turn the adjudicatory function of the Court into
advisory proceedings. Both such purposes were clearly rejected by the Court in the
Northern Cameroons and Nuclear Tests cases as providing an insufficient raison
d’être for it to proceed to a judgment on the merits. The principle in these cases apply
with equal force in the present case.
2.36 A further dimension may also be mentioned. As is commonly appreciated,
and as is addressed further in Part III of this Counter-Memorial, the abstract issues of
law raised by this case go to the heart of the debate about individual responsibility for
the commission of international crimes. Although this issue has deep roots in

100 Nuclear Tests cases, supra, at paragraphs 56–59 and 59–62 respectively.
Part II: Objections to Jurisdiction and Admissibility
48
international law – as Part III makes clear – debate about the scope and application of
principles that emerged from instruments such as the Nuremberg Charter has become
caught up more recently in wider developments relating to jurisdiction over, and
immunities in respect of, acts of torture, the legal basis of the competence of the
tribunals established by the UN Security Council to address atrocities committed in
the former Yugoslavia, Rwanda and Sierra Leone, and the adoption of the Statute of
the International Criminal Court and its anticipated entry into force in the near future.
2.37 Against this background, a judgment of the Court on the merits in this case
would – no matter in what direction that judgment was to go – inevitably influence
the course of this debate. Two related questions are thus relevant. First, would it be
appropriate, in circumstances in which there is no longer a concrete dimension to the
dispute before it, for the Court to render, in the context of bilateral adjudicatory
proceedings, what would in effect be an advisory opinion on matters on which the
wider international community has an interest? Second, in the absence of a subsisting
concrete dispute or an appropriate request for an advisory opinion, would it in any
event be appropriate for the Court to address such matters given that this would place
the Court in a quasi-legislative role as opposed to an adjudicatory or declaratory role?
2.38 In Belgium’s view, in appropriate circumstances, the Court has a centrally
important role to play in the adjudication of concrete disputes between States. In
Belgium’s submission, however, given the absence of a subsisting concrete dispute
between the Parties which is in need of practical resolution, it would go beyond the
adjudicatory function of the Court to address the matters raised in the present case by
way of a judgment on the merits. Belgium accordingly contends that, in the light of
the fact that Mr Yerodia Ndombasi is no longer either Minister for Foreign Affairs of
the DRC or a minister occupying any other position in the DRC Government, the case
is now without object and the Court should accordingly decline to proceed to
judgment on the merits of the case.
C. Third submission: the case as it now stands is materially different to
that set out in the DRC’s Application instituting proceedings
Part II: Objections to Jurisdiction and Admissibility
49
2.39 Article 40(1) of the Statute of the Court requires that the “subject of the
dispute” must be indicated in the Application instituting proceedings. Article 38(2) of
the Court’s Rules goes on to provide that “the precise nature of the claim” must be
specified in the Application. The object of these provisions is to require that, from the
point at which proceedings are commenced, the subject of the dispute is specified
with sufficient clarity to allow the Respondent, the Court and third States to have a
clear appreciation of the nature of the dispute.
2.40 The importance of such clarity and precision in the initiation of proceedings
within the scheme of the administration of justice has been affirmed repeatedly by the
Court. Thus, for example, referring to these provisions of the Statute and the Rules,
the Court, in the Fisheries Jurisdiction case, observed as follows:
“In a number of instances in the past the Court has had occasion to
refer to these provisions. It has characterised them as ‘essential
from the point of view of legal security and the good administration
of justice’ and, on this basis, has held inadmissible new claims,
formulated during the course of proceedings which, if they had been
entertained, would have transformed the subject of the dispute
originally brought before it under the terms of the Application
(Certain Phosphate Lands in Nauru (Nauru v. Australia),
Preliminary Objections, Judgment, I.C.J. Reports 1992, pp.266–
267; see also Prince von Pless Administration, Order of 4 February
1933, P.C.I.J., Series A/B, No.52, p.14, and Société Commerciale de
Belgique, Judgment, 1939, P.C.I.J., Series A/B, No.78, p.173).”101
2.41 Implicit in this requirement of clarity and precision in the initiation of legal
proceedings is also necessarily its corollary. It would be contrary to legal security and
the good administration of justice for an applicant to continue with legal proceedings
in circumstances in which the factual dimension on which the Application instituting
proceedings was based had changed fundamentally. The prejudice to the respondent
in such circumstances would be of the same order as in the case of the transformation
of the subject of the dispute during the course of proceedings. The case would
assume an artificial character. The respondent would be uncertain, until the very last
moment, of the substance of the case against it. The raison d’être of the case would
cease to be the resolution of a dispute between the parties and become one of the

101 Fisheries Jurisdiction (Spain v. Canada), supra, at paragraph 29.
Part II: Objections to Jurisdiction and Admissibility
50
abstract consideration of legal principle. Typically, in municipal proceedings, an
applicant who wishes to continue with a case in such circumstances, is required to
apply to amend its statement of claim so that the nature of the case in issue will be
clear to all involved.
2.42 In the present case, the underlying factual dimension of the case now before
the Court is materially different to that set out in the DRC’s Application instituting
proceedings. Yet, in essence, as presented in its Memorial, the DRC is proceeding as
if the issues at the core of its initial complaint remain unchanged. The case has been
reformulated as regards issues of law and requests to the Court. Yet no account is
taken of the quite fundamental changes at the heart of the case.
2.43 In its concluding submissions to the Court during the provisional measures
phase, Belgium argued that the changed circumstances of Mr Yerodia Ndombasi’s
reassignment as Minister of National Education “so fundamentally alter the case
initiated by the Democratic Republic of Congo’s Application of 17 October 2000 that
this completely undermines the legal and procedural basis of any further proceedings
pursuant to the Application.”102 Belgium proceeded to draw attention to the Court’s
jurisprudence on Article 40(1) of the Statute and Article 38(2) of the Rules (as noted
above), concluding as follows:
“The Application initiating the case of which these proceedings are
a part is fundamentally incapable, as a matter of settled law, of
sustaining a claim based on the changed circumstances of Mr
Yerodia Ndombasi’s move from the position of the Democratic
Republic of the Congo Foreign Minister.”103
2.44 The Court, in its Provisional Measures Order, concluded that the new
ministerial duties being performed by Mr Yerodia Ndombasi as Minister for National
Education meant that the case had not, at that point, been deprived of its object.104

102 CR 2000/35, at paragraph 21 of the submissions of Mr Bethlehem.
103 CR 2000/35, at paragraph 29 of the submissions of Mr Bethlehem.
104 Provisional Measures Order, at paragraphs 56–57.
Part II: Objections to Jurisdiction and Admissibility
51
2.45 Since that point, Mr Yerodia Ndombasi has ceased to be a member of the
DRC Government altogether. This circumstances arose well before the DRC filed its
Memorial with the Court. Yet, the very essence of the DRC’s case remains the
allegation that Belgium is in violation of international law for having issued and
transmitted an arrest warrant naming the Minister for Foreign Affairs of the DRC.
2.46 When the DRC filed its Application instituting proceedings on 17 October
2000, Belgium was faced with a claim concerning the immunities of the Minister for
Foreign Affairs of the DRC. On 20 November 2000, in the midst of the provisional
measures phase, that claim – by the express assertion of the DRC – metamorphosed
into a claim concerning the immunities of a Minister for National Education. On 15
April 2001, following the constitution of the new Government of the DRC and the
absence therefrom of Mr Yerodia Ndombasi, that claim appeared to have become
entirely moot. A month later, with the filing of the DRC Memorial, the claim was
resurrected alleging that, in consequence of the issuing and transmission of the arrest
warrant against the DRC Minister for Foreign Affairs, Belgium is in violation of
international law. Belgium may perhaps be excused for wondering what the next
twist in the proceedings will be.
2.47 In the light of these developments, the question that arises is why the DRC
has persisted in formulating its case by reference to the immunities of its Minister for
Foreign Affairs. The answer appears to be self-evident. Given the terms of the
Application instituting proceedings, any transformation of the case away from this
central fact would almost inevitably have resulted in the case being declared
inadmissible. Belgium, indeed, signalled clearly during the provisional measures
phase that it would be advancing argument to this effect. The continuing focus of the
case on the immunity of the DRC Minister for Foreign Affairs therefore appears
simply to be a device to avoid the problems of admissibility that would inevitably
have arisen had the case been reformulated to reflect accurately the prevailing factual
situation.
2.48 The question for the Court now is whether, by such a device, the DRC is to
be permitted to present a case which for all practical purposes is materially different
in its underlying factual component to the case presented in its initial Application.
Part II: Objections to Jurisdiction and Admissibility
52
Belgium contends that this should not be permitted. Legal security and the good
administration of justice requires that the clarity and precision required of an applicant
in its Application instituting proceedings should also be required of an applicant as
regards the manner in which the case is continued. Any other approach would be both
contrary to principle and the sound administration of justice and would open the door
for the conduct of proceedings in a manner that would unfairly prejudice the
Respondent.
2.49 The Court, in a number of areas, has recently taken steps to ensure that the
adjudicatory process works more efficiently and to greater legal effect. Time limits
have been shortened. Exceptional procedures – as in the present case – have been
introduced. Provisional measures orders have been declared to be binding.105

Belgium contends that, consistent with these developments, the Court should signal
clearly that the sound administration of justice precludes the continuation of
proceedings in circumstances in which the underlying factual dimension at the heart
of the case has changed fundamentally since the filing of the Application instituting
proceedings. In such circumstances, if an applicant wishes to pursue a matter, it
should be required to initiate proceedings afresh or, at the very least, to apply to the
Court for permission to amend its initial Application, such a procedure admitting of
observations by the respondent.
2.50 Against this background, Belgium contends that, in view of the fact that the
underlying factual dimension of the case now before the Court is materially different
to that set out in the DRC’s Application instituting proceedings, the Court lacks
jurisdiction in the case and/or the application is inadmissible.

105 LeGrand (Germany v. United States), 27 June 2001, unpublished, ICJ General List No.104.
Part II: Objections to Jurisdiction and Admissibility
53
D. Fourth submission: the case has assumed the character of an action of
diplomatic protection but local remedies have not been exhausted
2.51 During the course of the provisional measures phase of the proceedings,106
and again in its Memorial,107 the DRC asserted that it had not initiated the
proceedings in the exercise of a right of diplomatic protection. Insofar as the original
Application, and the facts underlying it, addressed the position of the Minister for
Foreign Affairs in office of the DRC, Belgium accepts that the DRC proceeded in
respect of a matter with which it had a direct legal interest. The position, however,
changed fundamentally on 15 April 2001, the point at which Mr Yerodia Ndombasi
ceased to be a member of the Government of the DRC. From this point, the case, in
important respects, assumed the character of an action of diplomatic protection.
2.52 As has already been addressed, the principal focus of the DRC Memorial
remains the immunities of Ministers for Foreign Affairs. The DRC’s requests of the
Court, however, raise issues that fall squarely within the realm of an action of
diplomatic protection. Thus, notwithstanding that the issue and transmission of the
arrest warrant was not predicated on the ministerial status of Mr Yerodia Ndombasi,
and that he no longer occupies a ministerial position within the Government of the
DRC, the DRC has requested of the Court a declaration inter alia (a) that the arrest
warrant cannot be enforced, whether by Belgium or by any other State, and (b) that
Belgium is required to withdraw and annul the arrest warrant.108
2.53 Given the present status of Mr Yerodia Ndombasi as a private citizen, these
requests go beyond matters on which the DRC has a direct and independent interest.
Properly characterised, these requests concern the legal effect of an arrest warrant
charging a private citizen of the DRC with war crimes and crimes against humanity.
In other words, they address matters which, although of indirect concern to the DRC
through its national, do not engage the interest of the DRC independently of the
position of its national. Indeed, this element illustrates an inconsistency at the very
heart of the DRC’s case. On the one hand, the DRC purports to pursue the interests of

106 CR 2000/32, at pp.19–20.
107 DRC Memorial, at paragraph 56.
108 DRC Memorial, at paragraph 97(3) and (4).
Part II: Objections to Jurisdiction and Admissibility
54
the State. On the other hand, however, its requests of the Court are focused on the
interests of one of its nationals in his private capacity.
2.54 The principle is well-established in international law that, before a State can
adopt the cause of one of its nationals in international proceedings, that national must
first have exhausted the available local remedies in the State whose acts are being
challenged. The Court, in the Interhandel case, put the matter in the following terms:
“The rule that local remedies must be exhausted before international
proceedings may be instituted is a well-established rule of
customary international law; the rule has been generally observed in
cases in which a State has adopted the cause of its national whose
rights are claimed to have been disregarded in another State in
violation of international law. Before resort may be had to an
international court in such a situation, it has been considered
necessary that the State where the violation occurred should have an
opportunity to redress it by its own means, within the framework of
its own domestic legal system.”109
2.55 Anticipating, no doubt, that Belgium would raise the issue of the nonexhaustion
of local remedies, the DRC addresses the matter pre-emptively in its
Memorial contending essentially that, in the case of an arrest warrant issued in
absentia (as in the present case), there are no means available to the person named
therein to challenge the warrant prior to arrest and imprisonment.110
2.56 The Memorial continues:
“Dans le droit de la procedure pénale belge, la seule possibilité de
contester le mandat d’arrêt avant l’arrestation de la personne qui y
est visée est de solliciter du juge d’instruction puis, en cas de refus,
d’une juridiction d’instruction supérieure, un nouvel acte
d’instruction après avoir pris connaissance du dossier d’instruction.
Toutefois, le simple accès à ce dossier fut refusé par le juge
Vandermeersch à Monsieur Yerodia par ordonnance du 12 octobre
2000. Cette ordonnance fut confirmée par l’arrêt du 12 mars 2001
prononcé par la Chambre des mises en accusation de la Cour
d’appel de Bruxelles, sur conclusions conformes du Premier Avocat
général. Il est donc clair que, du point de vue de toutes les autorités
judiciares belges, le mandat d’arrêt ne pourrait pas être levé et serait

109 Interhandel Case (Switzerland v. United States of America), ICJ Reports 1959, p.6, at p.27.
110 DRC Memorial, at paragraph 56.
Part II: Objections to Jurisdiction and Admissibility
55
conforme au droit international, ce qu’a d’ailleurs soutenu la Partie
défenderesse lors des plaidoiries relatives à la demande d’indication
de mesures conservatoires.”111
2.57 A number of observations on this statement are warranted. First, as was
addressed in Part I of this Counter-Memorial,112 the Brussels Court of Appeal gave
two reasons for refusing Mr Yerodia Ndombasi access to the dossier: (a) there was
concern that access to the dossier could result in reprisals being taken against the
complainants and others; (b) the Applicant was in fact fully aware of the allegations
made against him following the issuing of the arrest warrant.
2.58 Second, an application for access to the dossier is entirely distinct from an
application challenging the issue of an arrest warrant on grounds of a lack of
jurisdiction on the part of the investigating judge. As has already been stated,
Belgium knows of no application by Mr Yerodia Ndombasi seeking the annulment of
the arrest warrant.
2.59 Third, Belgium is unaware even of any enquiry made by or on behalf of Mr
Yerodia Ndombasi to any Belgian authority – whether the courts, the Office of the
Prosecutor, the Ministry of Justice or the Ministry of Foreign Affairs – concerning a
challenge to the arrest warrant on grounds of the lack of jurisdiction of the judge
concerned or on any other ground.
2.60 Turning to the law relevant to the application of the local remedies rule, the
matter was addressed most recently by the Court in the Elettronica Sicula case
(“ELSI”).113 Two principles of general application emerge from this decision:

111 “Under Belgian criminal proceedings, the only possibility to challenge an Arrest Warrant before the
arrest of the person who is referred to in it, is to apply to the juge d’instruction and then, in the case of
refusal, to a higher investigative competence, for a new investigative act after having consulted the
investigating file. However, Mr Yerodia was refused simple access to the file by Judge Vandermeersch
by an order of 12 October 2000. This order was confirmed by a ruling of 12 April 2001 given by the
Chambre de mises en accusation of the Court of Appeal of Brussels, in keeping with the conclusions of
the First Advocate General. It is clear, therefore, from the standpoint of all Belgian judicial authorities,
that the Arrest Warrant could not be voided and was considered in compliance with international law,
which, moreover, the defendants argued in the pleadings on an indication for provisional measures.”
(DRC Memorial, at paragraph 56; unofficial translation by Belgium)
112 See paragraphs 1.14–1.15 above.
Part II: Objections to Jurisdiction and Admissibility
56
(a) the local remedies rule does not require that a claim be presented to the
municipal courts in a form, and with arguments, suited to an international
tribunal, applying different law to different parties;114 and
(b) it is for the party alleging the failure to exhaust local remedies to adduce
evidence of the existence of a remedy which the foreign national concerned
failed to pursue.115
2.61 Going beyond these principles, the application of the local remedies rule was
addressed at length by the 1956 Arbitration Commission in the Ambatielos Claim
(Greece v. United Kingdom) in terms that merit fairly full repetition:
“The [local remedies] rule thus invoked by the United Kingdom
Government is well established in international law. Nor is its
existence contested by the Greek Government. It means that the
State against which an international action is brought for injuries
suffered by private individuals has the right to resist such an action
if the persons alleged to have been injured have not first exhausted
all the remedies available to them under the municipal law of that
State. The defendant State has the right to demand that full
advantage shall have been taken of all local remedies before the
matters in dispute are taken up on the international level by the State
of which the persons alleged to have been injured are nationals.
In order to contend successfully that international proceedings are
inadmissible, the defendant State must prove the existence, in its
system of internal law, of remedies which have not been used. The
views expressed by writers and in judicial precedents, however,
coincide in that the existence of remedies which are obviously
ineffective is held not to be sufficient to justify the application of the
rule. Remedies which could not rectify the situation cannot be
relied upon by the defendant State as precluding an international
action.
…
Although this question has hardly been studied by writers and
although it does not seem, hitherto, to have been the subject of
judicial decisions, it is hardly possible to limit the scope of the rule
of prior exhaustion of local remedies to recourse to local courts.

113 Case Concerning Elettronica Sicula SpA (ELSI) (United States of America v. Italy), ICJ Reports
1989, p.15.
114 ELSI, supra, at paragraph 59.
115 ELSI, supra, at paragraph 62.
Part II: Objections to Jurisdiction and Admissibility
57
The rule requires that ‘local remedies’ shall have been exhausted
before an international action can be brought. These ‘local
remedies’ include not only reference to the courts and tribunals, but
also the use of the procedural facilities which municipal law makes
available to litigants before such courts and tribunals. It is the
whole system of legal protection, as provided by municipal law,
which must have been put to the test before a State, as the protector
of its nationals, can prosecute the claim on the international plane.
…
It is clear, however, that it cannot be strained too far. Taken
literally, it would imply that the fact of having neglected to make
use of some means of procedure – even one which is not important
to the defence of the action – would suffice to allow a defendant
State to claim that local remedies have not been exhausted, and that,
therefore, an international action cannot be brought. This would
confer on the rule of the prior exhaustion of local remedies a scope
which is unacceptable.
In the view of the Commission the non-utilisation of certain means
of procedure can be accepted as constituting a gap in the exhaustion
of local remedies only if the use of these means of procedure were
essential to establish the claimant’s case before the municipal
courts.”116
2.62 Beyond this statement of the law, other principles relevant to the application
of the local remedies are conveniently summarised by Sir Robert Jennings and Sir
Arthur Watts in Oppenheim’s International Law. Particular mention may be made of
two further principles germane to the present case:
(a) the local remedies rule requires that recourse should be had to all legal
remedies available under the local law which are in principle capable of
providing an effective and sufficient means of redressing the wrongs alleged
to have been committed even if those remedies may be regarded as of an
extraordinary nature;117

116 Ambatielos Claim (Greece v. United Kingdom), Award of the Commission of Arbitration, 6 March
1956, 23 International Law Reports p.306, at pp.334–336 (emphasis added).
117 Jennings and Watts, Oppenheim’s International Law (9th ed., 1992), at p.524, note 6. See also
Nielsen v. Government of Denmark (1959) 28 International Law Reports p.210.
Part II: Objections to Jurisdiction and Admissibility
58
(b) where the respondent has shown that local remedies do exist, it is for the
applicant to show that they were exhausted or were inadequate.118
2.63 In summary of the preceding, the principles of law relevant to the application
of the local remedies rules which are germane to the present proceedings can be stated
as follows:
(a) it is for Belgium to adduce evidence of the existence of a remedy which Mr
Yerodia Ndombasi has failed to pursue;
(b) such a remedy is not restricted to proceedings before the Belgian courts but
extends to the whole system of legal protection provided by municipal law,
including procedural facilities, which are capable of providing an effective
and sufficient means of redressing the wrongs alleged;
(c) once Belgium has adduce sufficient evidence to show that a local remedy
meeting the preceding criteria does exist, it will be for the DRC to show that
that remedy was exhausted or inadequate.
2.64 Against this background, Belgium contends that Mr Yerodia Ndombasi has
indeed failed to exhaust at least one avenue of potential redress in Belgium which, if
successful on the merits, would have provided an effective and sufficient means of
redressing the wrongs alleged to have been committed.
2.65 As a matter of accepted practice under Belgian criminal law, persons who are
the subject of criminal investigation and/or of an arrest warrant issued by an
investigating judge may submit a legal memorandum to the judge concerned
contesting the jurisdiction of the judge and the validity of any warrant said to have
been issued in excess of jurisdiction. The judge is not compelled to take the
arguments so raised into account. If, however, he considers that the arguments raised
address issues of importance going to his jurisdiction or to the admissibility of the
application, he must submit the matter to the court for resolution.

118 Oppenheim’s International Law, supra, at p.526. See also the Velasquez Rodriguez case (1989), 28
International Legal Materials p.291.
Part II: Objections to Jurisdiction and Admissibility
59
2.66 As has become well know publicly, there is an unresolved anomaly to the
Belgian Law of 1993, as amended by the Law of 1999, pursuant to which the arrest
warrant was issued. This pertains to the possible application to that Law of Article
12, paragraph one, of the Belgian Code of Criminal Procedure. This provides, as a
general rule relating to criminal prosecutions, that any prosecution of offences can
only proceed if the accused is found in Belgium. The relevant text is as follows:
“Sauf dans les cas prévus aux articles 6, nos 1 et 2, 10, nos 1 et 2,
ainsi qu’à l’article 10bis, la pour-suite des infractions dont il s’agit
dans le présent chapitre n’aura lieu que si l’inculpé est trouvé en
Belgique.”119
2.67 The question of whether Article 12, paragraph one, applies to the Law of
1993, as amended, is uncertain. Strong arguments have been advanced in public
debate on both sides of the question. The matter has not so far been determined by
the Belgian courts.
2.68 It is not necessary to go into the detail of this debate for present purposes.
What is clear, however, is that, were the Belgian courts to uphold the application of
this provision to the Law of 1993, as amended, it would preclude the issuing of arrest
warrants in circumstances in which the person concerned was not found in Belgium.
This is the case regarding the arrest warrant naming Mr Yerodia Ndombasi. In any
event, this is not, however, a matter that is relevant before the Court.
2.69 What is also material to the present proceedings is that this very question has
in fact been raised – and raised publicly – with the Belgian investigating judge in
another case currently being addressed under the Law of 1993 concerning allegations
made against the current Prime Minister of Israel, Ariel Sharon. Legal counsel acting
on behalf of Mr Sharon has argued inter alia that, Article 12, paragraph one, of the

119 “Except in the cases provided for in Articles 6, nos. 1 and 2, 10, nos. 1 and 2 and in Article 10bis,
prosecution for violations that are the subject of this chapter will take place only if the accused is found
in Belgium.” Le titre préliminaire de la Loi du 17 avril 1878 du Code de procédure pénale, Article 12,
paragraph 1 (unofficial translation by Belgium). (Annex 6) Articles 6, 10 and 10bis referred to in this
provision concern acts against the safety of the State, the counterfeiting of Belgian currency and the
unlawful avoidance of miltary service. (The titre préliminaire du Code de procédure pénale is a part of
Part II: Objections to Jurisdiction and Admissibility
60
Code of Criminal Procedure is applicable to the Law of 1993, as amended, and that
the investigating judge accordingly lacks jurisdiction as the person concerned is not in
Belgium. The matter is currently under consideration by the investigating judge in
that case. At the point at which this Counter-Memorial is being finalised, there is
every indication that the judge will refer the matter to the court for determination. In
the interests of justice, and as the validity of the arrest warrant issued against Mr
Yerodia Ndombasi would be effected by a determination of the court in the case of
the complaint against Mr Sharon, it is likely that the Prosecutor will join the case of
Mr Yerodia Ndombasi proprio motu to that of Mr Sharon before the court.
2.70 In Belgium’s contention, it was from the outset open to Mr Yerodia
Ndombasi, in his personal capacity, to challenge the jurisdiction of the investigating
judge by reference to Article 12, paragraph one, of the Code of Criminal Procedure.
In the course of such submissions to the judge, it would further have been open to Mr
Yerodia Ndombasi to adduce arguments based on international law supporting the
application of the principle of territorial jurisdiction reflected in Article 12, paragraph
one, to the Law of 1993, as amended.
2.71 While the likely outcome of such a procedure is not certain – and is
ultimately a matter for the Belgian courts rather than the Government – it is clear that
there was from the outset at least one domestic procedure available to Mr Yerodia
Ndombasi that he failed to pursue. Indeed, not only did he fail to pursue this
procedure, but there is no suggestion of any serious enquiry having been made at all
as to the existence of local remedies.
2.72 As Belgium has repeatedly observed, the fact that Mr Yerodia Ndombasi no
longer occupies any official position within the Government of the DRC has radically
transformed this case. As it currently stands, the case can be viewed in one of two
ways. It either concerns abstract issues relating to the immunities of Ministers for
Foreign Affairs. Or it is in practice an action of diplomatic protection by the DRC in
respect of one of its nationals. As was observed at the outset of this section, two of
the requests made of the Court by the DRC in the final submissions of its Memorial in

the Code d'instruction criminelle. For reasons of simplicity, reference will be made to the "Code of
Part II: Objections to Jurisdiction and Admissibility
61
practice concern the legal effect of an arrest warrant issued against a private citizen of
the DRC. In Belgium’s contention, a condition precedent to the jurisdiction of the
Court and/or the admissibility of the application in such circumstances is that the
person concerned should first have exhausted all available local remedies capable of
providing an effective and sufficient means of redressing the wrongs alleged to have
been committed.
2.73 As shown above, Mr Yerodia Ndombasi has not exhausted the avenues of
effective potential redress available as a matter of Belgian law and procedure.
Belgium accordingly contends that the Court lacks jurisdiction in the present case
brought by the DRC and/or that the application is inadmissible.
E. Fifth submission: the non ultra petita rule limits the jurisdiction of the
Court to those issues that are the subject of the DRC’s final submissions
2.74 As an ancillary matter, in the event that the Court decides that it does have
jurisdiction in this case and that the application is admissible, Belgium contends that
the non ultra petita rule operates to limit the jurisdiction of the Court to those issues
that are the subject of the DRC’s final submissions. The point can be made relatively
briefly.
2.75 The non ultra petita rule – first applied by the Court in its Corfu Channel
(Assessment of Compensation) Judgment120
– was expressed by the Court in the
Asylum (Interpretation) case in the following terms:
“… it is the duty of the Court not only to reply to the questions as
stated in the final submissions of the parties, but also to abstain from
deciding points not included in those submissions.”121
2.76 The principle has subsequently been reiterated and applied by the Court in a
number of other cases. In the Barcelona Traction case, for example, the Court held

Criminal Procedure".)
120 Corfu Channel (Assessment of Compensation), ICJ Reports 1949, at p.249.
Part II: Objections to Jurisdiction and Admissibility
62
that it was “not open to the Court to go beyond the claim as formulated by the Belgian
Government”.122
2.77 Commenting on this rule, Shabtai Rosenne has observed that,
“[w]hile not disputing the view that the non ultra petita rule may
properly be regarded as one of procedure, in international litigation
it is also appropriate to regard it as an aspect of jurisdiction. As
such, however, it has a quantitative and not a qualitative effect. It
does not confer jurisdiction on the Court or detract jurisdiction from
it. It limits the extent to which the Court may go in its decision.”123
2.78 As was observed in Part I of this Counter-Memorial, the claim formulated in
the DRC Memorial departs in important respects from the way in which that claim
was expressed in its Application instituting proceedings. More significantly, for
present purposes, the requests made of the Court in the final submissions set out in
DRC Memorial are confined to certain aspects of the case as argued in that Memorial.
In particular, the DRC’s final submissions do not make any request of the Court
concerning the scope and content of the law relating to universal jurisdiction. As
Belgium has already observed,124 the DRC suggested explicitly in its Memorial that
the Court could avoid addressing the issue of jurisdiction and that it may prefer to do
so.
2.79 In the event that the Court decides – contrary to Belgium’s earlier
submissions in this Part – that it does have jurisdiction in this case and that the
application is admissible, Belgium contends that the non ultra petita rule operates to
limit the jurisdiction of the Court to those elements that are the subject of the DRC’s
final submissions. As the Court observed in the Asylum (Interpretation) case, it is the
duty of the Court to abstain from deciding points not included in the final submissions
of the parties.

121 Request for Interpretation of the Judgment of November 20, 1950, in the Asylum Case, ICJ Reports
1950, p.395, at p.402.
122 Barcelona Traction, Light and Power Company (Belgium v. Spain), ICJ Reports 1970, p.3, at
paragraph 49.
123 Rosenne, The Law and Practice of the International Court, 1920–1996 (3rd ed, 1997), v. II, at p.595.
124 See paragraphs 1.34–1.35 above.
Part II: Objections to Jurisdiction and Admissibility
63
F. Conclusions in respect of this Part
2.80 By way of summary of this Part, Belgium contends that the Court lacks
jurisdiction in this case and/or that the application is inadmissible on a number of
alternative grounds as follows:
(a) that there is no longer a “dispute” between the Parties within the meaning of
this term in the Parties’ Optional Clause Declarations;
(b) that the case is now without object;
(c) that the case as it now stands is materially different to that set out in the
DRC’s Application instituting proceedings; and
(d) that the case has assumed the character of an action of diplomatic protection
but that local remedies have not been exhausted.
2.81 In the event that, contrary to these submissions, the Court decides that it does
have jurisdiction in this case and that the application is admissible, Belgium contends
that the non ultra petita rule operates to limit the jurisdiction of the Court to those
elements that are the subject of the DRC’s final submissions.
* * *
Part III, Chapter One: Merits
68
CHAPTER ONE
THE CHARACTER OF THE ARREST WARRANT IS SUCH THAT IT
NEITHER INFRINGES THE SOVEREIGNTY OF, NOR CREATES
OBLIGATIONS FOR, THE DRC
3.1.1 The legal and jurisdictional bases of the arrest warrant, in both Belgian and
international law, are addressed in detail in the following chapter in this Part. As will
there be shown, the arrest warrant, while issued pursuant to Belgian municipal law, is
fully consistent with accepted principles of international law concerning the assertion
by States of jurisdiction over war crimes and crimes against humanity. It will further
be shown, in Chapter Three of this Part, that the warrant is fully consistent with
international law even if considered solely by reference to customary principles of
universality. Finally, as will be shown in Chapters Four and Five, principles of
international law relating to the immunity of Ministers for Foreign Affairs do not
preclude the issuing and transmission of an arrest warrant in circumstances in which
the allegations in question concern grave breaches of the Geneva Conventions of
1949, and the Additional Protocols thereto, or crimes against humanity. In the light of
these submissions, the allegations by the DRC that the issuing and transmission of the
arrest warrant amounted to a violation of international law have no substance.
3.1.2 Separately from the preceding, the character of the arrest warrant and the
legal consequences that flow therefrom also warrant comment. The central point is
that the character of the arrest warrant is such that it neither infringes the sovereignty
of, nor creates obligations for, the DRC. The matter has already been addressed in
passing in Part I above.125 It was also the subject of comment in the Declaration to
the Provisional Measures Order in this case by Judge ad hoc Van den Wyngaert.126

125 See paragraph 1.9 and footnote 26.
126 Provisional Measures Order, Declaration by Judge ad hoc Van den Wyngaert, at paragraph 2.
Part III, Chapter One: Merits
69
3.1.3 The arrest warrant of 11 April 2000 is a national arrest warrant. Although,
subject to its terms,127 it is enforceable in Belgium without further requirements, it is
not automatically enforceable in third States. For this to occur, the arrest warrant
must first be validated by the appropriate authorities of the putative arresting State.
This is a matter of the internal law of the State concerned, subject to any relevant and
applicable international commitments (such as an extradition agreement between the
States concerned) and a request for extradition. In the absence of a request for
extradition, or an indication that such a request is pending, and a binding international
commitment to act thereon, a third State is under no obligation to act to enforce an
arrest warrant issued by another State.
3.1.4 As has previously been observed, the arrest warrant of 11 April 2000 was
transmitted by Belgium to the DRC on 7 June 2000. There is, however, no extradition
agreement between Belgium and the DRC covering offences of the kind alleged and,
accordingly, Belgium did not, and has not at any point since, formally requested the
extradition of Mr Yerodia Ndombasi to Belgium.128
3.1.5 In early June 2000, at the point at which the arrest warrant was transmitted to
the DRC, it was also transmitted to Interpol. Through Interpol, the warrant was
circulated internationally. It was not, however, the subject of an Interpol Red Notice.
This point requires emphasis.
3.1.6 A Red Notice, sometimes referred to as an Interpol Wanted Notice, is a
formal document issued by Interpol at the request of the Interpol National Central
Bureau (“NCB”) of the State concerned identifying a person whose arrest is requested
with a view to extradition. It is required to contain detailed and specific information
about the person concerned and the facts alleged including description, identity
particulars (such as name, place and date of birth, photographs and fingerprints, if
available, occupation, identity document numbers, etc), the facts alleged, charges,
arrest warrant details and other relevant judicial information. A 1998 explanatory

127 Notably concerning the exception, noted in paragraph 1.11 above, in the case of the presence of Mr
Yerodia Ndombasi in Belgium on an official governmental visit.
128 The only binding commitment relating to extradition applicable between the two States is pursuant
to the Torture Convention of 1984 to which both are party. As the offences alleged in the arrest
warrant do not include torture, the Convention does not apply in the circumstances.
Part III, Chapter One: Merits
70
note on Red Notices prepared by the Interpol General Secretariat is attached hereto as
Annex 7.
3.1.7 As this explanatory note indicates, paper copies of Red Notices are sent by
mail to all NCBs.
“It is then up to the NCBs to take the appropriate steps – in
conformity with their legislation and regulations – to inform their
national police and immigration authorities (particularly border
posts and airports) that an individual is wanted at international level.
Some NCBs are empowered to record names from red notices in a
national file of wanted persons. Red notices are also recorded in the
ASF (Automated Search Facility) so that NCBs, and any national
police forces connected to the database, can access red notices
directly.”129
3.1.8 The legal status of Red Notices as a matter of national law was recently the
subject of a major study by Interpol. The results of this study were set out in Report
No.8 prepared by the Interpol General Secretariat and adopted by the Interpol General
Assembly at its 66th Session in New Delhi in October 1997.130 The background to
this study, and a summary of its conclusions, are set out in the 1998 explanatory note
referred to above.131
3.1.9 As Report No.8 describes, 65 of the 178 countries and territories which are
members of Interpol indicated that, as a matter of their national laws and regulations,
it was possible to make a provisional arrest on the bass of a Red Notice. In such
cases, a Red Notice thus effectively amounts to a request for provisional arrest.
3.1.10 A request for provisional arrest is not the same as a request for extradition.
Rather, it is a document requesting that a wanted person be arrested pending the
transmittal of a formal request for extradition. A request for extradition, in contrast, is
a formal document sent by one State to another, usually through diplomatic channels,
requesting the surrender to the requesting State of a named person found on the

129 Interpol Red Notices, ICPO-Interpol General Secretariat, (1998) International Criminal Police
Review No.468, at p.2 (Annex 7).
130 Report No.8, ICPO-Interpol General Assembly, 66th Session, New Delhi, 15–21 October 1997,
AGN/66/RAP/8, as amended by Resolution No.AGN/66/RES/7 (Annex 8).
131 See paragraph 3.1.6 above and Annex 7.
Part III, Chapter One: Merits
71
territory of the requested State for purposes of either standing trial for an offence he
or she is alleged to have committed or to serve a penal sentence already pronounced
on him or her. A request for extradition must be accompanied by all the documents
required to allow the relevant authorities of the requested State to decide, on the basis
of its national laws and international obligations, whether to agree to or refuse
extradition.
3.1.11 As Belgium understands the position, having made enquiries on the matter
(including with Interpol), the DRC does not regard a Red Notice as a request for
provisional arrest. Additionally, as has just been observed, Red Notices do not in any
circumstances amount to a formal request for extradition. As has also been observed,
Belgium has not at any point made a formal request to the DRC for the extradition of
Mr Yerodia Ndombasi. Nor, for completeness, it may be added, has Belgium
addressed a request for the extradition of Mr Yerodia Ndombasi to any other State.
3.1.12 As will be apparent from the preceding, the character of the arrest warrant of
11 April 2000 is such that it has neither infringed the sovereignty of, nor created any
obligation for, the DRC. Indeed, both at the point that it was issued and today, the
arrest warrant has no legal effect at all either in or as regards the DRC. Although the
warrant was circulated internationally for information by Interpol in June 2000, it was
not the subject of a Red Notice. Even had it been, the legal effect of Red Notices is
such that, for the DRC, it would not have amounted to a request for provisional arrest,
let alone to a formal request for extradition.
3.1.13 As was observed in Part I,132 in the light of the changed circumstances of Mr
Yerodia Ndombasi, the Belgian National Central Bureau of Interpol addressed a
request to Interpol to issue a Red Notice in respect of Mr Yerodia Ndombasi on 12
September 2001, ie, some five months after Mr Yerodia Ndombasi ceased to be a
member of the DRC Government.133 At the point at which this Counter-Memorial is
being finalised, a Red Notice had still not, however, been issued. Given the effect of

132 At paragraph 1.9 and footnote 26.
133 Annex 8.
Part III, Chapter One: Merits
72
Red Notices in the DRC, even were a Red Notice to be issued, it would neither
infringe the sovereignty of, nor create any obligation for, the DRC.
3.1.14 As regards the 65 members of Interpol that have indicated that a Red Notice
would permit the provisional arrest of a named person, the issuing of a Red Notice in
this matter would still require a positive act of the validation by the relevant
authorities of the State concerned in accordance with their national laws and
regulations. Even in such cases, therefore, there is no automaticity in the effect of the
Red Notice.
3.1.15 On the basis of the preceding, Belgium contends that the character of the
arrest warrant of 11 April 2000 is such that it has neither infringed the sovereignty of,
nor created obligations for, the DRC.
* * *
Part III, Chapter Two: Merits
73
CHAPTER TWO
THE LEGAL AND JURISDICTIONAL BASES OF THE ARREST WARRANT
3.2.1 The legal and jurisdictional bases of the arrest warrant issued against Mr
Yerodia Ndombasi will be addressed in the light of:
· the Law of 16 June 1993,134 as amended by the Law of 10 February 1999;135
· the charges against Mr Yerodia Ndombasi;
· the law governing the jurisdiction of the Belgian investigating judge.
A. The Law of 16 June 1993, as amended by the Law of 10 February 1999
3.2.2 On 16 June 1993, the Belgian Parliament adopted the “loi relative à la
répression des infractions graves aux Conventions internationales de Genève du 12
août 1949 et aux Protocoles I and II of 8 June 1977, additionnels à ces
Conventions”.136
3.2.3 Initially, this Law had no purpose other than to adapt Belgian law to the
requirements of the Geneva Conventions of 1949 and the First Additional Protocol of
1997. It is recalled137 that, indeed, the Geneva Conventions, in common Article
49/50/129/146, require the High Contracting Parties to the Conventions:138
“to enact any legislation necessary to provide effective penal
sanctions for persons committing, or ordering to be committed, any

134 Moniteur belge, 5 August 1993.
135 Moniteur belge, 23 March 1999.
136 Law concerning punishment of grave breaches of the Geneva International Conventions of 12
August 1949 and to Protocols I and II of 8 June 1977, Additional to these Conventions. (Annex 4)
137 These points were addressed by Belgium in the course of the provisional measures phase of the case
(see CR 2000/33, 21 November 2000, at pp19-22, paragraphs 4–13).
138 At Annex 5.
Part III, Chapter Two: Merits
74
of the grave breaches of the present Convention defined in the
following Article.”
3.2.4 The obligation for High Contracting Parties to the Conventions to adapt their
legislation for the purpose of criminally punishing serious violations of the Geneva
Conventions was extended by the first Additional Protocol to the violations defined
thereby. Article 85(1) of the First Additional Protocol provides:
“The provisions of the [four Geneva] Conventions relating to the
repression of breaches and grave breaches, supplemented by this
Section, shall apply to the repression of breaches and grave breaches
of this Protocol.”
3.2.5 As is emphasised in the document stating the grounds of the draft law
submitted by the Government in 1990, this proposal simply aimed to enable Belgium
to adapt its criminal legislation to the provisions referred to above, in keeping with its
commitments further to the ratification of the Geneva Conventions and the First
Additional Protocol.
139
3.2.6 On certain points, the Law of 1993 went further than the stricto sensu
requirements of the Geneva Conventions and the First Additional Protocol. This was
particularly the case with regard to the extension of the scope of application of the law
to crimes committed in non-international armed conflicts. It is known that the
concept of a “war crime” is traditionally limited to grave breaches of international
humanitarian law committed in an international armed conflict. By extending the
scope of application of the accusations provided by the Law of 1993 to the most
serious breaches of the Second Additional Protocol – those corresponding to “grave
breaches” referred to by the Geneva Conventions and the First Additional Protocol –
the legislature intended to criminally punish acts committed in non-international
armed conflicts.
3.2.7 That which might have appeared as a form of audacity was rapidly confirmed
in practice and in jurisprudence, as the following examples testify:

139 Documents parlementaires, Sénat, 1990-1991, n° 1317/1, in Pasinomie, 1993, p.1836. (Annex 10)
Part III, Chapter Two: Merits
75
· in 1994, the Security Council, in creating the International Criminal Tribunal
for Rwanda (“ICTR”),140 gave it jurisdiction to investigate “serious
violations of Article 3 common to the Geneva Conventions of 12 August
1949 for the Protection of War Victims, and of Additional Protocol II thereto
of 8 June 1977”;141
· on 2 October 1995, the appeals chamber of the International Criminal
Tribunal for the former Yugoslavia (“ICTY”) considered that international
customary law recognised individual criminal responsibility for violations of
humanitarian law committed in domestic armed conflicts.142 The Belgian
Law referred to above was, moreover, cited as an example of the application
of this custom;143
· in 1996, in its Draft Code of Crimes Against the Peace and Security of
Mankind, the International Law Commission (“ILC”) included in its list of
war crimes a number of acts “committed in violation of international
humanitarian law applicable in armed conflict not of an international
character”;144
· the Statute of the International Criminal Court (“ICC”) adopted in Rome on
17 July 1999 in turn considers a certain number of actions committed in a
non-international armed conflict to be war crimes.145
3.2.8 In its Memorial, the DRC, while affirming that this extension of competence
“ne répond ... à aucune obligation conventionnelle particulière”,146 nevertheless
refrains from challenging the legality of this extension of jurisdiction. Belgium takes
note of this.

140 S/RES/955, 8 November 1994.
141 International Criminal Tribunal for Rwanda, Statute, at Article 4.
142 ICTY, Tadic, Case No.IT-94-1-AR72, 2 October 1995, at paragraphs 128–142.
143 Ibid., at paragraph 132.
144 Draft Article 20(f), ILC Report, 1996, UN Doc.A/51/10, p.135, at 140–143.
145 ICC Statute, Articles 8(2)(c)–(f).
146 “does not correspond to any particular conventional obligation”. (DRC Memorial, at paragraph 77;
unofficial translation by Belgium).
Part III, Chapter Two: Merits
76
3.2.9 The Law of 1993 presents two other aspects which particularly concern this
case. On the one hand, in Article 7, it provides for the universal jurisdiction of the
Belgian judge for the crimes that it stipulates. On the other hand, the document
stating the grounds of the draft law shows that a crime stipulated by the Law can be
brought before the Belgian courts even if the alleged perpetrator of the act in question
is not found on Belgian territory.147
3.2.10 As concerns the principle of universal jurisdiction, the DRC does not
challenge Belgium’s right to include this in its legislation. During the provisional
measures phase of the case, Belgium demonstrated that Belgium has complied fully
with its international obligations by stipulating universal jurisdiction in its Law of
1993. As the DRC does not challenge this point in its Memorial, Belgium will refrain
from repeating what it said at that time.148
3.2.11 Conversely, the DRC challenges Belgium’s right to exercise this jurisdiction
with regard to a person who is not found on Belgian territory. This point will be
addressed further below. For the moment it is enough to observe that the extraterritorial
nature of the acts with which Mr Yerodia Ndombasi is charged, and his
foreign nationality, are not an obstacle to the application of the Law of 1993.
3.2.12 The Law of 10 February 1999 amended the Law of 1993 by, on the one
hand, extending the jurisdiction ratione materiae of the law to the crime of genocide
and crimes against humanity149 and, on the other hand, by providing that
“[l]'immunité attachée à la qualité officielle d'une personne n'empêche pas
l'application de la présente loi.”150
3.2.13 These amendments result from the combined will of certain Members of
Parliament and of the Government. The former wanted to introduce the accusation
provided by the Convention on the punishment of the crime of genocide of 9
December 1948 into Belgian law, a Convention that had been binding on Belgium

147 Documents parlementaires, Sénat, 1990–1991, n° 1317/1, Pasinomie, 1993, p.1842. (Annex 10)
148 See further, CR 2000/33, 21 Nov. 2000, at pp.19–20, paragraphs 7–8.
149 New Article 1(1) and (2).
150 “the immunity associated with the official capacity of a person does not prevent the application of
this law” (new Article 5(3); unofficial translation).
Part III, Chapter Two: Merits
77
since 5 September 1951.151 For the authors of the draft amendment, it was necessary
to be able to prosecute under the Convention a number of “génocidaires rwandais”
(Rwandan perpetrators of genocide) who had taken refuge in Belgium.152 The
introduction of the amendment also corresponded to a symbolic and educational
concern: prosecuting people for homicide is one thing, prosecuting them for genocide
is something else.153 Society needed to be made aware of the horror of the act so as to
prevent its reoccurrence.154
3.2.14 As for the Government, it approved this initiative and wanted to take the
opportunity to start to adapt the law to the ICC Statute. With this in mind, it added
the accusation of crimes against humanity (stipulated in Article 7 of the ICC Statute)
and the exclusion of immunity for perpetrators of acts stipulated in that law (provided
under Article 27 of the ICC Statute) to the draft amendment submitted by the
Members of Parliament.155
3.2.15 The amendments to the Law of 1993 were adopted on 10 February 1999 and
the Law of 1993 changed its name to be called thereafter “loi relative à la répression
des violations graves de droit international humanitaire”.156
3.2.16 Insofar as the acts charged against Mr Yerodia Ndombasi were covered by
the Law of 1993/1999, the investigating judge had grounds to open a (preliminary)
investigation into the complaints. In keeping with common law, if the investigation
made it possible to conclude that there was serious evidence of guilt,157 and if the acts
in question were “de nature à entraîner pour l'inculpé un emprisonnement
correctionnel principal d'un an ou une peine plus grave”,158 the investigating judge
had grounds to issue to an arrest warrant against Mr Yerodia Ndombasi.

151 Loi d'approbation du 26 juin 1951 (Law relating to the approval of treaties), Moniteur belge, 11
January 1952.
152 Documents parlementaires, Sénat, 1997-1998, 16 October 1997, n° 1-749/1, p.2. (Annex 11)
153 Ibid., at p.3.
154 Ibid.
155 Ibid., 1998-1999, 1 December 1998, n° 1-749/2, pp.4–5. (Annex 12)
156 Law on the punishment of grave breaches of international humanitarian law.
157 See Code d’instruction criminelle (Code of Criminal Procedure), Art. 61 bis: “The investigating
judge proceeds to charge any person against whom there is serious evidence of guilt....” (unofficial
translation by Belgium).
158 “Such that they would result in … a principle criminal incarceration of the accused of one year or a
more serious sentence”. (Article 16(1) de la Loi du 20 juillet 1990 relative à la détention préventive
Part III, Chapter Two: Merits
78
B. The charges against Mr Yerodia Ndombasi
3.2.17 By an arrest warrant issued on 11 April 2000, the Belgian investigating
judge, Judge Damien Vandermeersch, charged Mr Yerodia Ndombasi with violations
covered by the Law of 1993. Belgium takes the liberty of repeating the elements that
it has already brought before the Court in oral pleadings on the request for an
indication of provisional measures lodged by the DRC.159
3.2.18 It must be observed that this warrant is not the result of a personal initiative.
Belgian criminal procedure stipulates that an investigating judge can only adjudicate
validly after acts are brought before him for which an arrest warrant could be
issued.160 In this case, charges by the King’s Prosecutor of Brussels, on the one hand,
and, on the other hand, complaints by private citizens, some of whom were referred to
by name in the arrest warrant, and others not for reasons of safety, had been referred
to the Judge. Of the twelve persons filing complaints, five were of Belgian nationality
and seven of Congolese nationality. All were domiciled in Belgium. Eight of the
complainants had filed complaints for injuries that they considered were incurred
specifically because they belong to a Tutsi ethnic group.
3.2.19 What were the acts that led the investigating judge to issue the arrest
warrant? The warrant notes that on 4 and 27 August 1998, Mr Yerodia Ndombasi,
who was at the time Director of the Office of President Laurent Kabila, gave various
public speeches quoted in the media inciting ethnic hatred, speeches which led to the
massacre of several hundred people, mostly of Tutsi origin.
3.2.20 Without taking any stand as to the guilt or innocence of Mr Yerodia
Ndombasi – this is not the role of the Belgian Government – Belgium would only
observe that the alleged acts in question were serious. Mr Yerodia Ndombasi notably

(Law of 20 July 1990 on preventive detention), Moniteur belge, 14 August 1990 (unofficial translation
by Belgium).
159 CR 2000/33, 21 November 2000, at pp.23–27, paragraphs 14–20.
160 Bosly, H.-D. and Vandermeersch, D., Droit de la procédure pénale, Brugge, La Charte, 1999,
p.488.
Part III, Chapter Two: Merits
79
declared at a press conference on 27 August 1998 about those whom he considered
responsible for the unrest in the Congo:
“Pour nous, ce sont des déchets et c’est même des microbes qu’il
faut qu’on éradique avec méthode. Nous sommes décidés à utiliser
la médication la plus efficace.”161
3.2.21 Already, on 4 August 1998, according to testimony quoted in the warrant,
Mr Yerodia Ndombasi had spoken on RTNC radio about “de vermine qu’il fallait
éradiquer avec méthode”.162
3.2.22 The arrest warrant, referring to many witnesses, describes what happened at
that point. Here are a few meaningful extracts of the testimony that fills several pages
of the arrest warrant:163
· according to witness B.A., “la réaction ne s’est pas fait attendre. Il y a eu des
emprisonnements, des arrestations et des massacres de personnes d’origine
tutsi ”;164
· according to witness C.B., “Des barrages ont été placés dans les quartiers
populaires, des chasses à l’homme ont été organisées. De nombreux suspects
ont été arrêtés par la population et mis à mort par le supplice du collier ”;165
· Belgian television journalists on the spot stated: “C’est une chasse aux
rebelles, aux tutsis, aux Rwandais, c’est une chasse à l’homme.”;166

161 “For us, they are rubbish, and even microbes have to be eradicated methodically. We have decided
to use the most effective medication.” International Arrest Warrant, p.15 (unofficial translation by
Belgium). (Annex 3).
162 “vermin that had to be eradicated methodically.” Ibid. at p.16 (unofficial translation by Belgium).
163 Ibid., at pp.16 – 30.
164 “[t]here was no waiting for the reaction [to the speech]. People were put in gaol, there were arrests
and massacres of people of Tutsi origin” Ibid., at p.19 (unofficial translation by Belgium).
165 “[r]oad blocks were set up in populated districts, manhunts were organised. Numerous suspects
were arrested by the people and put to death by being necklaced.” Ibid., at p.20 (unofficial translation
by Belgium).
166 “[i]t’s a hunt for rebels, Tutsis, Rwandans; it’s a manhunt" Ibid., at p.24 (unofficial translation by
Belgium).
Part III, Chapter Two: Merits
80
· an individual questioned by those journalists told them: “Nous sommes
déterminés, jusqu’au dernier enfant, pour écraser les tutsis, les Rwandais et
les Ougandais”;167
· according to an Amnesty International report, “Des mises à mort de tutsi et
d’autres personnes considérées comme des sympathisants du RCD sont
signalées depuis le début du mois d’août 1998.”168
3.2.23 There is no point in going on with this list, which suggests that, apart from
the war between the DRC and the Rwandan and Ugandan forces, atrocities were
clearly committed against Tutsis at the time of the offending speeches because they
belonged to that ethnic group.
3.2.24 Even so, and without prejudice to the conclusions that could be reached by a
tribunal about the arrest warrant, Belgium would only observe that the warrant does
not ignore the defence’s arguments raised by the accused, who maintains “qu’il n’a
pas prononcé le mots tutsi mais qu’il visait les rebelles”.169 For his part, the DRC
Minister for Human Rights also suggested, in the text cited above, that the speeches
by Mr Yerodia Ndombasi were nothing more than “un appel légitime à la résistance
populaire contre les envahisseurs qu’ils soient d’origine tutsi ou pas”.170
3.2.25 The DRC’s Memorial repeats this attempt to legitimise the speeches in
question. It underlines “le caractère tenu de l’accusation” 171 against Mr Yerodia
Ndombasi, the absence by the Belgian authorities of a “mise en contexte” “historique”
ou “culturelle”172, an abusive interpretation of the words pronounced.

167 “[w]e are determined, to the last child, to wipe out the Tutsis, the Rwandans and the Ugandans.”
Ibid., at p.25 (unofficial translation by Belgium).
168 “[k]illings of Tutsis and other persons regarded as DRC sympathisers have been reported since the
start of the month of August 1998.” Ibid., at p.26 (unofficial translation by Belgium).
169 “that he did not mention the word Tutsi but that they [the comments] were directed at the rebels”
Ibid., at p.31 (unofficial translation by Belgium).
170 “a legitimate call to the people to resist the invaders whether they were of Tutsi origin or not”
(unofficial translation by Belgium). CR 2000/33, 21 September 2000, p. 25 at paragraph 18.
171 “the tenuous nature of the accusation”, DRC Memorial, at paragraph 57. (unofficial translation by
Belgium)
172 “put into” the “historical” or “cultural” context, Ibid. (unofficial translation by Belgium)
Part III, Chapter Two: Merits
81
3.2.26 The arrest warrant deals with these defences by describing the context in
which the speeches were made. According to the testimony put forward in this
respect, they were made in the general context of a hunt for Tutsis. For example, a
Human Rights Watch report cited in the warrant stated as follows:
“Lorsque le gouvernement congolais fut attaqué au mois d’août,
certains officiels de haut rang encouragèrent les comportements de
haine raciale et firent naître parmi la population un sentiment de
peur vis-à-vis des Congolais d’origine tutsi, qu’ils relièrent aux
Rwandais, aux Burundais et même aux Ougandais, membres selon
eux de la famille ethnique plus large tutsi-hima. En appelant à ce
qu’ils appelèrent ‘l’auto-défense populaire’, ils encouragèrent en fait
les Congolais à s’attaquer aux tutsi et à ceux qui, simplement,
‘avaient l’air’ d’être des tutsis.”173
3.2.27 The warrant also cites a report by the African Association for the Defence of
Human Rights where one can read:
“A partir du mois d’août, les membres du gouvernement,
particulièrement, le directeur de cabinet du chef de l’Etat, M.
Yerodia, ainsi que le ministre de l’information, Didier Mumengi,
ont usé des média nationaux pour appeler au meurtre des tutsi à
Kinshasa. […] A Bunia, la radio nationale a carrément demandé à
la population de prendre les machettes, les houes pour tuer les tutsi
habitant le district d’Ituri”174
3.2.28 An Agence France Presse release dated 25 August 1998, quoted in the arrest
warrant, reported the following words by President Laurent Kabila:
“Les agresseurs sont identifiés. C’est une guerre injuste imposée à
un peuple souverain. Le peuple doit se mobiliser. Cela est
important parce qu’il faut écraser l’ennemi. Les Congolais doivent
se battre sur tous les fronts. La guerre peut être longue. Dans les

173 “When the Congolese government was attacked in August, some important officials fostered
popular hatred and fear of Congolese of Tutsi origin, whom they linked with Rwandans, Burundians,
and even Ugandans said to constitute part of a larger Tutsi-Hima cluster of peoples. In calling for socalled
‘popular self-defence’, they encouraged other Congolese to attack Tutsi or those thought to look
like Tutsi.” International Arrest Warrant, p.12 (unofficial translation by Belgium) (Annex 3)
174 “As from the month of August, the members of the government, in particular the director of the
office of the head of state, Mr Yerodia, together with the Minister for Information, Didier Mumengi,
have used the national media to call for the murder of Tutsis in Kinshasa. The authorities have invited
the population, through the official media, ‘to treat the enemy like a virus, a mosquito and as garbage,
that has to be wiped out with determination and resolution’. In Bunia, the national radio station openly
demanded that the population take up machetes and hoes to kill the Tutsis living in the district of Ituri.”
Ibid., pp.14-15 (unofficial translation of Belgium)
Part III, Chapter Two: Merits
82
villages, les gens doivent prendre les armes, les armes
traditionnelles, les flèches et les lances pour écraser l’ennemi sinon
on va être l’esclave des tutsi.”175
3.2.29 The warrant also cites a report of 8 February 1999 by the United Nations
Commission on Human Rights, which asserted that:
“ La riposte du gouvernement à la rébellion a été violente. Ce qui est
particulièrement grave, c’est l’incitation à la haine contre les tutsi
(considérés comme ‘des virus, des moustiques, des ordures’ qu’il
fallait éliminer) […].”176
3.2.30 From the legal standpoint, the arrest warrant observes that the speeches
imputed to the person in question constitute incitement to commit certain violations
under the Law of 1993, including “wilfully causing great suffering and serious injury
to the body, health” (Article 1(3)) and crimes against humanity (Article 1(2)). The
Law of 1993 incriminates not only incitement (Article 4, 3rd item), but also failure to
take action to prevent the occurrence of the events incriminated by the law (Article 4,
5th item).177 This relates not only to these direct appeals to massacre launched by Mr
Yerodia Ndombasi, but also to the absence of notification of the obligation to protect
the persons captured. As these acts are incriminated by the law, and as several
complaints had been brought before the investigating judge, he believed that he was
justified in issuing the arrest warrant against the alleged perpetrator of these acts.
3.2.31 The DRC observes, however, that the “causal relation between those words
and certain unspeakable acts of violence directed against the Tutsi minority” is not
established. Independently of the fact that the Court is not an appellate court for
decisions taken by national judicial authorities,178 it must nevertheless be recalled, to

175 “The aggressors have been identified. This is an unjust war imposed on a sovereign people. The
people must mobilise. That is important because the enemy has to be wiped out. ... The people of
Congo have to fight on all fronts. The war may be long. In the villages, people must take up arms, the
traditional arms, arrows and spears, to wipe out the enemy, otherwise we are going to be the slaves of
the Tutsis.” Ibid., pp.22-23 (unofficial translation of Belgium)
176 “The government’s riposte to the rebellion was violent. What is particularly serious is the
incitement of hatred against the Tutsis (regarded as ‘viruses, mosquitoes, garbage’, which had to be
eliminated) ...” Ibid., p.27 (unofficial translation by Belgium)
177 Ibid. pp.48–54.
178 Vienna Convention on Consular Relations, Order of 9 April 1998, ICJ Reports 1998, p.12, at
paragraph 38; LaGrand, Order of 3 March 1999, ICJ Reports 1999, p.15, at paragraph 25.
Part III, Chapter Two: Merits
83
put the situation in a correct perspective, that the law also punishes incitement “même
non-suivie d'effet”.179
3.2.32 At the time of the issue of the arrest warrant, the investigating judge also
took account of the questions of immunity of jurisdiction resulting from the
indictment of a Minister by rejecting the possibility of the arrest of Mr Yerodia
Ndombasi if he were to come to Belgium in response to an official invitation of the
Belgian government. In such circumstances, an invitation would imply that Belgium
had renounced the execution of the warrant for the duration of the official visit and
the judicial authority could not disregard this without entailing the international
responsibility of the Belgian State180 given the principle of indivisibility of powers of
the State in this field.181
3.2.33 These questions are no longer applicable today, since Mr Yerodia Ndombasi
no longer holds a ministerial office in the DRC government.
3.2.34 In any case, in April 2000, the investigating judge believed that he had
sufficient elements to conclude that Mr Yerodia Ndombasi had committed the acts
that were imputed to him, that these acts fell under the scope of the Law of
1993/1999, and that they were sufficiently serious, to justify issuing an arrest warrant
against the alleged perpetrator.
C. The law governing the jurisdiction of the investigating judge
3.2.35 Although all of the complainants were domiciled in Belgium, and five were
of Belgian nationality, the investigating judge relied on universal jurisdiction
provided for in Article 7 of the Law of 1993/1999. The judge would not have
founded his action on the passive personal competence stipulated in Belgian law182

179 “not having an effect” (as per Article 4 de la Loi du 16 juin 1993; unofficial translation by
Belgium).
180 International Arrest Warrant, p.63 (Annex 3).
181 Draft Articles of the ILC on the Responsibility of States, Art. 6, YILC, 1973, v.II, pp.197-201: in the
same vein, Draft Articles provisionally adopted by the Drafting Committee in the Second Reading, Art.
5, UN Doc. A/CN.4/L.600, 21 August 2000.
182 Article 10 du titre préliminaire de la Loi du 17 avril 1878 du Code de procédure pénale provides:
“Pourra être poursuivi en Belgique l'étranger qui aura commis hors du territoire du Royaume ... 5° Un
Part III, Chapter Two: Merits
84
because the exercise of that law is subject to the presence of the accused on Belgian
territory.183 As a result, the jurisdiction exercised by the investigating magistrate is
universal jurisdiction and it is founded on the text of the law.
3.2.36 The DRC challenges the exercise of this jurisdiction with regard to a person
who is not found on Belgian territory, but surprisingly, although it devotes nearly onefourth
of its Memorial to trying to demonstrate this point,184 it does not formally ask
the Court to rule on the question.185
3.2.37 While noting the fact that the DRC does not ask the Court anything on these
points, Belgium nevertheless briefly meets the arguments given by the DRC and will
show that the universal jurisdiction provided by the Law of 1993 is not in violation of
any rule of international law. These issues are addressed in the following chapter of
this Part.
* * *

crime contre un ressortissant belge, si le fait est punissable en vertu de la législation du pays où il a été
commis d'une peine dont le maximum dépasse cinq ans de privation de liberté.”
183 Ibid., Article 12(1).
184 DRC Memorial, at paragraphs 47–61.
185 DRC Memorial, at paragraphs 93 and 97.
Part III, Chapter Three: Merits
86
CHAPTER THREE
INTERNATIONAL LAW ALLOWS UNIVERSAL
JURISDICTION IN ABSTENTIA
3.3.1 Traditionally, universal jurisdiction is defined as the aptitude of the judge to
investigate an offence wherever the offence was committed and whatever the
nationality of the perpetrator or of the victim. According to H. Donnedieu de Vabres:
“le système de la répression universelle, ou de l’universalité du
droit de punir est celui qui attribue vocation aux tribunaux répressifs
de tous les Etats pour connaître d’un crime commis par un individu
quelconque, en quelque pays que ce soit.”186
3.3.2 It is not necessary to go into further detail on this jurisdiction which is not
challenged in itself in the DRC Memorial. The reproach that the DRC particularly
makes to Belgium is the exercise of universal jurisdiction against someone who is not
found on Belgian territory. The DRC Memorial states:
“La question qui se pose dès lors est de savoir si l’Etat belge est
tenu, en droit international, d’exercer une compétence ‘unversivelle’
aussi élargie, c’est-à-dire une compétence prétendant s’exercer
même à l’encontre de personnes qui ne se trouveraient pas sur le
territoire national.”187
3.3.3 Two questions arise in respect of this matter:

186 “the system of universal punishment or the universality of the right to punish is that which gives
criminal courts of all States the role of prosecuting a crime committed by any individual, in any
country whatsoever” (unofficial translation by Belgium), Donnedieu de Vabres, H. “Le système de la
répression universelle”, Rev. dr. int. pr., 1922-1923, p.533, See also La Pradelle, G. de, “La
compétence universelle”, in Droit international pénal, s/ la dir. de H. Ascensio, E. Decaux and A.
Pellet, Paris, Pédone, 2000, p.905.
187 “The question that arises under these circumstances is to know whether the Belgian State is
required, under international law, to exercise such a broad ‘universal’ criminal competence, referring to
competence that claims to have exercise even against persons who were not found on the national
territory.” (DRC Memorial, at paragraph 75; unofficial translation by Belgium).
Part III, Chapter Three: Merits
87
(a) Does international law oblige Belgium to exercise universal jurisdiction with
regard to the alleged perpetrator of a violation falling under the scope of the
Law of 1993/1999 who is not found on Belgian territory?
(b) If not, does international law permit Belgium to exercise universal
jurisdiction with regard to the alleged perpetrator of a violation falling under
the scope of the Law of 1993/1999 who is not found on Belgian territory?
A. Does international law oblige Belgium to exercise universal jurisdiction
in the circumstances in issue?
3.3.4 According to the DRC, Belgium claimed it was obliged to exercise universal
jurisdiction with regard to the alleged perpetrator of a violation falling under the
scope of the Law of 1993/1999 even though he is not found on Belgian territory. The
DRC Memorial states:
“C’est en vain que la Partie défenderesse tenterait de justifier la
violation des droits souverains de la RDC démontrée ci-dessus en
invoquant l’obligation (voy. le compte rendu de l’audience du 21
novembre 2000, §§ 11 et s., per E. David) dans laquelle est [sic — il
faut sans doute lire “ elle ”] se trouverait d’exercer une compétence
pénale ‘universelle’ ”
188
3.3.5 In fact, in paragraph 11 of the pleadings quoted by the DRC, Belgium purely
and simply recalled that by declaring the principle of universal jurisdiction, Article 7
of the Law of 1993/1999 only responded to a general obligation stipulated in
international law:
“Regarding the extension to crimes against humanity and the crime
of genocide of the universal jurisdiction provided for in Article 7 of
the 1993 law, this again merely represents the incorporation into
domestic law of an obligation long since recognised in general
international law. It suffices to recall specific resolutions of the
General Assembly of the United Nations (resolution 2840 (XXVI)
of 18 December 1971, paragraph 4; resolution 3074 (XXVIII) of 3

188“In vain would the defendant attempt to justify the violation of DRC’s sovereign rights as
demonstrated above by invoking an alleged obligation (see the report of the hearing of 21 November
2000, paragraph 11 and thereafter per E. David) to exercise a ‘universal’ criminal competence.” Ibid. p
47 at paragraph 74.
Part III, Chapter Three: Merits
88
December 1973, paragraph 1) and of the Economic and Social
Council (resolution 1986/65 of 29 May 1989, Principle 18); or
indeed the Nuremberg principles adduced by the International Law
Commission (Principles I and VI), and the Commission's Draft
Code of Offences against the Peace and Security of Mankind
(Article 9); or the Statute of the International Criminal Court
(preambular paragraphs 4-6), and the jurisprudence of the Court,
which held in its Judgment of 11 July 1996 that:
‘the rights and obligations enshrined by the [1948
Genocide] Convention are rights and obligations erga
omnes. The Court notes that the obligation each State
thus has to prevent and to punish the crime of genocide
is not territorially limited by the Convention’. (ICJ
Reports 1996, p.616, paragraph 31)”
3.3.6 Nothing in this quotation shows that Belgium argued that it was obliged to
prosecute someone not found on its territory. This was simply a reminder of the texts
which set down the obligation of prosecution in general.189 These texts were recalled
only to show that the adoption of the Law of 1993/1999190 corresponded to an
international obligation. It was not claimed that these texts required Belgium to
prosecute someone in another country.
3.3.7 Moreover, the DRC itself recognises the existence of an obligation to
prosecute war crimes when it writes:
“S’il n’est pas contestable que ce texte [l’art. 49/50/129/146
commun aux CG de 1949] emporte une obligation de réprimer
pénalement les crimes énoncés par ces conventions
indépendamment de la nationalité de leur auteur, il est cependant
difficile de considérer que cette obligation ne serait pas limitée au
cas où les personnes accusées seraient trouvées sur le territoire de
l’Etat ainsi obligé.” 191

189 See van Elst, R., “Implementing Universal Jurisdiction over Grave Breaches of the Geneva
Conventions”, (2000) 13 Leiden J.I.L. 815.
190 Referred to by one author as “a valuable model for countries that so far have failed to meet their
obligation" to give themselves the means to punish grave breaches of international humanitarian law”.
Ibid., at p.825.
191 “Although it cannot be challenged that this text (common Articles 49/50/129/146, Geneva
Conventions of 1949) includes an obligation to criminally prosecute crimes listed in these conventions,
independently of the nationality of the perpetrator, it is nevertheless difficult to consider that this
obligation is not limited to cases where the accused persons are found on the territory of the State that
is so obliged.” Ibid., at paragraph 76 (emphasis added).
Part III, Chapter Three: Merits
89
3.3.8 Conversely, the DRC voices doubts about the existence of such an obligation
for third States for the crime of genocide and for crimes against humanity. Although
the question is not the subject of a formal conclusion of the DRC, Belgium
nevertheless feels that it should treat this subject for the sake of the respect that it
owes to judicial truth, its opponent and the Court.
3.3.9 In the case of genocide, the DRC, voicing a narrow interpretation of the
Convention of 9 December 1948, considers that the obligation to prosecute belongs to
the State “loci delicti” only.192 It recognises, however, that in its Judgment of 11 July
1996, the Court observed that the Convention of 1948 set down “rights and
obligations erga omnes” and that:
“the obligation each State thus has to prevent and to punish the
crime of genocide is not territorially limited by the Convention”.193
3.3.10 The DRC nevertheless deduces that the Court simply wanted to say that,
wherever the persons accused of genocide may be found, they can be criminally
prosecuted subject to the condition that the State where the acts of genocide were
committed (or the future International Criminal Court) so requests. The DRC writes:
“ […] les personnes accusées de ce crime [de génocide] ne sont
nulle part, en aucun territoire étatique, à l’abri de poursuites pénales
dirigées contre elles à l’initiative de l’Etat loci delicti, ou de la cour
criminelle internationale dont la convention de 1948 envisageait
déjà l’institution. ”
194
3.3.11 One wonders, first, where the DRC found in the Judgment of 11 July 1996
that prosecution for genocide depended exclusively on the “initiative” of the State
where the genocide took place. One then wonders how the DRC can reconcile an
obligation to prosecute erga omnes, not limited territorially, with the so-called
subordination of this obligation to an initiative of the State of the genocide. One

192 Ibid., at paragraph 78.
193 Application of the Convention on the Prevention and Punishment of the Crime of Genocide, ICJ
Reports 1996, p.616, paragraph 31.
194 “... persons accused of this crime [genocide] are nowhere safe from criminal prosecution, in the
territory of any State, directed against them at the initiative of the State loci delicti or the International
Criminal Court, whose institution was already envisaged in the 1948 Convention.” DRC Memorial, at
paragraph 78; unofficial translation by Belgium (emphasis added).
Part III, Chapter Three: Merits
90
wonders, finally, what the coherence would be today of a similar limitation of the rule
with the obligation to prosecute that is recognised, moreover, for war crimes. For
example, for the murder of a prisoner of war – a war crime according to Article 130 of
the Third Geneva Convention – the DRC admits that every state should punish this,
but for the destruction of an entire people, third States could not punish this as long as
the State where the massacre took place had not taken the initiative to request it. This
shows that the DRC's reasoning has no foundation.
3.3.12 For punishment of crimes against humanity, the DRC begins by observing
that “aucune disposition conventionnelle spécifique n’existe à propos du point
évoqué”.195 Need it be recalled that international law is not limited to treaties, and
that custom – particularly that which results from resolutions adopted by the organs of
the United Nations and cited by Belgium at the proceedings on provisional
measures196
– is also part of international law?
3.3.13 Nor does the DRC retain the preamble of the Statute of the ICC. Quoting
paragraph 6 of the Preamble – that stipulates “that it is the duty of every State to
exercise its criminal jurisdiction over those responsible for international crimes”197
–
the DRC considers that
“ Cette disposition, énoncée sous forme d’un ‘rappel’, ne saurait
toutefois servir de preuve à l’existence d’une obligation qui pèserait
indistinctement sur tout Etat de réprimer ces crimes […]”198
3.3.14 Why cannot this provision prove the existence of an obligation to punish
crimes against humanity? First of all, according to the DRC, this is because it is
found in a treaty which is not yet in effect.199

195 “no specific conventional provision exists on the point in reference”. Ibid, at paragraph 79.
196 CR 2000/33, 21 November 2000, at p.21, paragraph 11. These included the following resolutions:
A/RES/2840 (XXVI), 18 December 1971, at paragraph 4; A/RES/3074 (XXVIII), 3 December 1973, at
paragraph 1; E/RES/1986/65, 29 May 1989, at principle 18. (Supplementary Annex 93)
197 (Supplemenary Annex 92)
198 “This provision, set down in the form of a ‘reminder’, cannot, nevertheless, serve as proof of the
existence of an obligation that weighs indistinctly on any State to punish these crimes”. DRC
Memorial, at paragraph 79 (unofficial translation by Belgium).
199 Ibid
Part III, Chapter Three: Merits
91
3.3.15 The argument is clearly moot. As is recalled moreover by the DRC, the
States Parties to the ICC Statute must refrain from acts which would deprive a treaty
of its object and purpose.200 But above all, it is not because the treaty is not in force
that its standards do not have an effect under custom (Vienna Convention on the Law
of Treaties, 1969, Article 38).201
A fortiori this is the case when States have taken the
trouble to “recall” the rule. In general, a rule that does not yet exist is not “recalled”.
3.3.16 In the Kadafi case, it was on the basis of this paragraph of the Preamble of
the ICC Statute that the chambre d'accusation of the Cour d'Appel of Paris concluded
“qu'il est du devoir des Etats l'ayant ratifié[e] de juger les crimes internationaux”.202 It
is true that this judgment was overturned by the French Cour de Cassation, but not as
concerns this point.
3.3.17 The customary nature of the rule – that being the duty of each State to
prosecute perpetrators of crimes under international law203
– finds additional
confirmation in the fourth and fifth paragraphs of the Preamble of the ICC Statute
which stipulate:
“Affirming that the most serious crimes of concern to the
international community as a whole must not go unpunished and
that their effective prosecution must be ensured by taking measures
at the national level and by enhancing international cooperation,
Determined to put an end to impunity for the perpetrators of these
crimes and thus to contribute to the prevention of such crimes.”204
3.3.18 Punishment which “must be ensured ... at the national level”; a determination
to “put an end to impunity”. These terms testify to the opinio juris of the Rome
diplomatic conference with regard to the existence of an obligation to prosecute that is
the duty of every State.

200 Ibid, at paragraph 91 (referring to Article 18 of the Vienna Convention on the Law of Treaties).
201 See Military and paramilitary activities in and against Nicaragua, ICJ Reports 1986, pp.95-96 at
paragraph 178.
202 “it is the duty of States having ratified it, to judge international crimes” (unofficial translation by
Belgium) Chambre d’accusation de la Cour d’appel de Paris, judgment, 20 October 2000, at p.8.
(Annex 49)
203 See paragraph 3.3.13.
204 Empahsis added. (Supplementary Annex 92).
Part III, Chapter Three: Merits
92
3.3.19 The DRC advances a second argument however. The paragraph quoted from
the Preamble, does not, in its opinion, entail a general obligation for states to
prosecute because the Statute “uses the concept of the ‘State which has jurisdiction
over it (the case)’ (Article 17)”. This argument is as moot as the previous one. The
preamble “recalls” the general obligations of international law binding “each State”
whereas Article 17 quoted by the DRC lists the particular procedures of the principle
of complementarity and can, of course, refer only to the States Party to the Statute. It
is entirely artificial to try to make a rapprochement between the sixth consideration in
the Preamble and Article 17 to then conclude that one must be interpreted in light of
the other.
3.3.20 The DRC again affirms that the Security Council resolutions and the
declarations of its President requesting prosecution for those responsible for crimes
committed in the DRC are addressed only “aux Etats de la région impliqués dans le
conflit, et uniquement à eux”.205 In reality, if among these texts, certain specifically
refer to the States in the region,206 others refer, in a very general way, to the
prosecution of perpetrators of grave breaches of international humanitarian law and
are in no way limited only to the States in the region.207 This type of request is
moreover fully in compliance with the practice of the Security Council. Thus, with
regard to the events in Rwanda in 1994, the Security Council
“Urge[d] States to arrest and detain, in accordance with their
national law and with the relevant standards of international law,
pending prosecution by the International Tribunal for Rwanda or by
the appropriate national authorities, persons found within their

205 “States of the region involved in the conflict, and exclusively to them” DRC Memorial, at paragraph
85 (unofficial translation by Belgium).
206 Declaration of the President of the Security Council, 11 December 1998, S/PRST/1998/36, 7th
paragraph (Supplementary Annex 83); see also S/RES/1291, 24 February 2000: "The Security
Council … 15. Calls on all parties to the conflict in the Democratic Republic of the Congo ... to bring
to justice those responsible …” (Supplementary Annex 85)
207 Declaration of the President of the Security Council, 31 August 1998, S/PRST/1998/26, 4th
paragraph provides: “The Council reaffirms that all persons who commit or order the commission of
grave breaches of the above-mentioned instruments are individually responsible in respect of such
breaches.” (Supplementary Annex 82); see also, S/RES/1234, 9 April 1999: “The Security Council …
Condemns all massacres carried out on the territory of the Democratic Republic of the Congo and calls
for an international investigation into all such events, … with a view to bringing to justice those
responsible …" (Supplementary Annex 84); and in the same vein S/RES/1291, 24 February 2000, at
paragraph 14 (Supplementary Annex 85); S/RES/1304, 16 June 2000, at paragraph 13; these texts in
no way limit their scope to the States in the region. (Supplementary Annex 86)
Part III, Chapter Three: Merits
93
territory against whom there is sufficient evidence that they were
responsible for acts within the jurisdiction of the International
Tribunal for Rwanda.”208
3.3.21 Contrary to the DRC claims, the Security Council does not therefore limit the
obligation to prosecute perpetrators of war crimes, crimes against humanity or crimes
of genocide only to the States of the region where these events took place. Again
recently, the Security Council observed, in a very general way:
“... that it is up to the Member States first of all to prevent genocide,
crimes against humanity and war crimes and to put an end to the
impunity enjoyed by their perpetrators”.209
3.3.22 In conclusion, and without referring to other points that are purely
academic,210 it can be observed that the DRC has in no way countered, nor even
weakened, the argument presented by Belgium in the provisional measures, according
to which all States must contribute to the punishment of grave breaches of
international humanitarian law, be they war crimes, crimes against humanity and, of
course, the crime of genocide.
3.3.23 This obligation of universal punishment is a simple fact that Belgium has
done nothing less than to observe. Given that this obligation appears in several rules
of international law, Belgium entirely agrees with the DRC in concluding, as it does,
that
“une norme de droit international commandant l’exercice de la
compétence dite ‘universelle’ pourrait contrebalancer et même
primer la norme protectrice des immunités”
211
3.3.24 Given that such a standard does exist, as has just been shown212
– and that
the DRC itself recognises this in the case of war crimes213
– Belgium has already

208 S/RES/978, 27 February 1995, at paragraph 1.
209 S/RES/1366, 30 August 2001, preamble, 17th paragraph (emphasis added).
210 See for example the unusual interpretation given to Article 105 of the Montego Bay Convention on
the Law of the Sea, DRC Memorial, at paragraph 84.
211 “indeed, only a standard of international law governing the exercise of the so-called ‘universal’
jurisdiction could counterbalance and even take precedence over the protective rule of immunity”, DRC
Memorial, at paragraph 15. (Unofficial translation by Belgium (emphasis added))
212 See paragraphs 3.3.7 to 3.3.16 above.
213 See paragraph 3.3.7 above.
Part III, Chapter Three: Merits
94
noted what the DRC affirms: the existence of a rule imposing the exercise of universal
jurisdiction has precedence over the rule of immunity.
3.3.25 There remains the question of the prosecution of a person accused of grave
breaches of international humanitarian law who is not found on the territory of the
State. Contrary to the DRC suggestion over more than eight pages of its Memorial,214
Belgium repeats that it has never claimed that international law obliges it to prosecute
in a case of this kind, and it would be curious to see the DRC quote a single extract of
the pleadings of 21/23 November 2000 which says anything to the contrary. It is
therefore unnecessary to discuss this point given that Belgium recognises with the
DRC that international law does not include a provision explicitly obliging the States
to prosecute a person who is not found on their territory.
B. Does international law permit Belgium to exercise universal jurisdiction in
the circumstances in issue?
3.3.26 On this point, which is the subject of an important divergence between
Belgium and the DRC, the Applicant is considerably less voluble; it is barely five
pages, although the question is crucial.
3.3.27 Be that as it may, Belgium will begin by examining the legal foundation of
this jurisdiction (I). Thereafter, Belgium will address the argument of the DRC (II).
I. The legal foundation of the exercise of universal jurisdiction in absentia
3.3.28 As has already been addressed, pursuant to Belgium law, Belgium has the
right to investigate grave breaches of international humanitarian law even when the
presumptive perpetrator is not found on Belgian territory.215 This prerogative, which
does not violate any rule of law of international law (a), appears as one of the means
to fight impunity accepted in both the international (b) and internal practice of States
(c). These issues are addressed in turn below.

214 Ibid., pp.47-56.
215 See paragraph 3.2.9 above.
Part III, Chapter Three: Merits
95
(a) An investigation and/or prosecution by default does not violate any rule of
international law
3.3.29 No rule of international law prohibits States from opening an investigation
against someone who is not on their territory. As was stated by the PCIJ in the Lotus
case:
“It does not, however, follow that international law prohibits a State
from exercising jurisdiction in its own territory, in respect of any
case which relates to acts which have taken place abroad, and in
which it cannot rely on some permissive rule of international law.
Such a view would only be tenable if international law contained a
general prohibition to States to extend the application of their laws
and the jurisdiction of their courts to persons, property and acts
outside their territory, and if, as an exception to this general
prohibition, it allowed States to do so in certain specific cases. But
this is certainly not the case under international law as it stands at
present. Far from laying down a general prohibition to the effect that
States may not extend the application of their laws and the
jurisdiction of their courts to persons, property and acts outside the
territory, it leaves them in this respect a wide measure of discretion
which is only limited in certain cases by prohibitive rules; as regards
other cases, every State remains free to adopt the principles which it
regards as best and most suitable.”216
3.3.30 This extract perfectly describes the Belgian position in respect of the events
in issue in this case. They took place abroad. The alleged perpetrator is outside the
country. And, no specific rule of international law prohibits Belgium from extending
its jurisdiction to these events. The right recognised by the Permanent Court,
moreover, is in no way limited to the field of application ratione loci of the law itself.
The Court referred, not only to the “law” of the forum State but also to its
“jurisdiction”. But the word “jurisdiction” covers any exercise of justice on the
territory of the forum state, whether this is the investigation of an act or prosecution
by default.
3.3.31 In the light of the Lotus case, Belgium was therefore permitted to investigate
the events charged against Mr Yerodia Ndombasi and to issue the arrest warrant
against him.

216 Lotus, Judgment of 7 September 1927, PCIJ Reports, Series A, No.9, at p.19.
Part III, Chapter Three: Merits
96
3.3.32 Belgium does not claim that States are permitted to adopt just any legislation.
All legislation must comply with the rules of international law which bind the State
that adopts it. Moreover, in the case of a law having an extraterritorial character, it
must be reasonable217 and not infringe on the principle of non-intervention.218
3.3.33 The Belgian Law of 1993/1999 in issue in this case is not in violation of the
principle of non-intervention. On the contrary, it corresponds to the international
trend to fight impunity as witnessed in the texts quoted above.219
3.3.34 Already in 1950, the representative of Belgium to the 6th Commission of the
UN General Assembly on the deliberations on the “Principles of Nuremberg”,
affirmed, without being contradicted, that the Nuremberg Judgment had established
the principle according to which a war criminal could be condemned by default:
“The Nürnberg trial has established the principle that a war criminal
can be tried in absentia”.220
3.3.35 Belgium no doubt referred to the fact that the Nuremberg International
Military Tribunal condemned Martin Bormann by default.221
(b) An investigation and/or prosecution by default against the alleged perpetrator
of serious violations of international humanitarian law is accepted in international
practice as a means of fighting impunity
3.3.36 Contrary to certain modern conventions on international criminal law,
international law regulates judicial procedures for the repression of grave breaches of
international humanitarian law only very briefly. The Convention on the crime of
genocide, 1948, the Geneva Conventions, 1949, and the resolutions adopted in the
United Nations leave States relatively free to act as they see fit against the

217 Higgins, R., “The Legal Bases of Jurisdiction”, in Extra-territorial Application of Laws and
Responses thereto, ed. by C.J. Olmstead, ILA and ESC, 1984, p.12
218 See the reaction of the EC to certain American laws, ILM, 1982, p.895; 1996, pp.397-400.
219 See paragraphs 3.3.7 to 3.3.21 above.
220 235th Meeting of the Sixth Committee of the UN General Assembly, 8 November 1950, p. 162,
paragraph 38 (Annex 37)
Part III, Chapter Three: Merits
97
perpetrators of crimes defined by these texts. This freedom of action of the States is
consistent with the context of the dictum in the Lotus case referred to above.222
3.3.37 If modern conventions on international criminal law are more specific as to
repressive procedures, they do not prevent prosecution by default. Since the adoption
of the Hague Convention for suppression of the unlawful seizure of aircraft of 16
December 1970, most conventions adopted subsequently, if not all, provide in quite a
similar way:
· first, for a principle of universal jurisdiction generally founded on the
alternative aut dedere aut judicare. States party to the convention need only
prosecute the alleged perpetrator of the violation if it does not extradite him
to another State party to the convention who so requests;223
· subsequently, a protective clause which provides that the convention does
not rule out any criminal jurisdiction exercised in compliance with national
laws.224 In other words, the extraterritorial jurisdiction that Belgium retains
is fully in compliance with the practice of most conventions on international
criminal law adopted since 1970.
3.3.38 The DRC concedes that this type of clause suggests that "le droit
international général ne paraît pas formellement interdire une telle affirmation de
compétence 'universelle' aussi élargie."225 The DRC, as we will see, nevertheless

221 Judgment, 30 September – 1 October 1946, Trial, Official Documents, I., p. 367.
222 See paragraph 3.3.29.
223 See, for example, the Hague Convention for the suppression of unlawful seizure of aircraft, 1970, at
Article 4(2); the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil
Aviation, 1971, at Article 5(2); the UN Convention on the Prevention and Punishment of Crimes
against Internationally Protected Persons, including Diplomatic Agents, 1973, at Article 3(3); the
International Convention against the Taking of Hostages, 1979, at Article 5(3); the UN Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, at Article
5(2). See also Guillaume, G., “La compétence universelle – Formes anciennes et nouvelles”, in
Mélanges Levasseur, Paris, Litec, 1992, at pp.33-34; Buergenthal, Th. and Maier, H.G., Public
International Law in a Nutshell, St. Paul, Minn., West Publ., 1990, pp. 172-173; Van den Wyngaert,
C., Strafrecht en strafprocesrecht in hoofdlijnen, Antwerpen, Maklu, 1999, pp.127-128.
224 Ibid., Hague Convention at Art. 4(3); Montreal Convention at Art. 5(3), etc.
225 “general international law does not seem to formally prohibit this affirmation of such a broad
‘universal’ competence”. DRC Memorial, at paragraph 86 (unofficial translation by Belgium).
Part III, Chapter Three: Merits
98
concludes that this jurisdiction is illicit, without fear of being incoherent with the
implications of the wording of such a clause.
3.3.39 It should be recalled that these provisions were based on the text of Article
3(3) of the Tokyo Convention on offences and certain other acts committed aboard
aircraft of 14 September 1963. Yet, the history of this provision demonstrates that
the drafters intended it to have as broad a scope of application as possible. At the
time of the preparations in Geneva in 1956 on the competences of the States for
breaches committed on board aircraft, the legal subcommittee of ICAO wanted to
establish a priority in respect of the exercise of:226 the State of registration of the
aircraft, the State where it landed, the State of nationality of the perpetrator or of the
victim, the State in whose airspace the violation was committed, etc. It seems that
this objective was abandoned quite soon, as by 1958, in Montreal, the subcommittee
had already accepted that no claim of jurisdiction by a state founded on its national
law should be set aside.227 This was proposed in the Draft Convention presented by
the Subcommittee.
3.3.40 The concern of the parties was to adopt as broad a scope of basis of
jurisdiction as possible was confirmed at the time of the Tokyo Conference. The
initial draft text proposed to the conference stated:
“This article does not preclude any charge for criminal prosecution
that a State may have incorporated in its national laws.”
228
Italy criticised this text, observing that the expression “incorporated in its national
laws” was too restrictive and that the expression “this article” should be replaced by
“this convention” to show that it was not that provision, but the entire convention that
should not exclude any internal criminal jurisdiction.229 Yugoslavia seconded the
Italian proposal observing that the Convention’s preclusion of any internal
competence existing in the laws of a State Party to the Convention was to be

226 ICAO, International Conference of Air Law, Tokyo, 1963, v. II, French Doc. No. OACI 8565-
LC/152-2, p.31. (Annex 14)
227 Ibid. at pp.46-47 and 60-61.
228 Ibid. at p.46.
229 Ibid. at p.2. (Annex 14)
Part III, Chapter Three: Merits
99
avoided.230 Canada also considered competences that a state might adopt after
ratification should not be excluded.231 Article 3(3) in its final form was written in
view of all these comments:
“This Convention does not exclude any criminal jurisdiction
exercised in accordance with national law.”232
3.3.41 The background of the adoption of this text and its reproduction in other
instruments thus consecrate the validity of all national criminal jurisdictions in the
fields covered by these instruments.
(c) An investigation and/or prosecution by default are largely accepted in the
internal practice of the States
3.3.42 The internal practice of States confirms the possibility of opening a
prosecution or conducting a trial by default. We will not go into the possibilities of
trying (and condemning) by default because the DRC's petition does not concern the
trial itself, but will only address the opening of an investigation or initiation of a
prosecution by default. It can nevertheless be observed that the principle of a trial by
default is recognised by a good number of States in the Roman civil law system
(including Belgium and France).233 If a trial can take place in the absence of the
accused, a fortiori, prosecution can be initiated in his absence.
3.3.43 As concerns the opening of a prosecution by default and/or the opening of an
investigation in the absence of the accused, this is a practice exercised by all judicial
systems in the world.234 If one could never open a preliminary inquiry, an
investigation or initiate a public prosecution against a fugitive or accused unless he is
found on the territory of the prosecuting State, it would suffice for the accused to

230 Ibid., Procès verbaux, v. I, at pp.116 and 228. (Annex 13)
231 Ibid., at p.116.
232 Ibid..
233 See paragraphs 3.3.46 to 3.3.47 below.
234 In Belgian law, the Law of Preventive Detention of 20 July 1990, Article 34(1): "Lorsque l'inculpé
est fugitif ou latitant or lorsqu'il y a lieu de demander son extradition, le juge d'instruction peut
décerner un mandat d'arrêt par défaut." (“when the accused is fugitive or absent or when it is
appropriate to request his extradition, the investigating judge can issue an arrest warrant in default”;
unofficial translation by Belgium). See Van den Wyngaert, C. Strafrecht en strafprocesrecht,
Antwerpen, Maklu, 1998, at p.862.
Part III, Chapter Three: Merits
100
leave the territory where he is traced and he would never have to worry since the
public action could not be initiated in his absence. This is clearly absurd. In addition,
punishment would be singularly jeopardised if the judicial system had to wait for the
presence of the accused on the territory of jurisdiction to begin to work on his dossier.
3.3.44 One may reply that a distinction must be made between a case where an
offence is committed on the territory of the prosecuting State and an offence is
committed in another country. Only the latter would require the presence of the
accused on the territory of the prosecuting State to open an investigation or to initiate
a prosecution. Conversely, for the former, justice would be founded in taking action
even in the absence of the accused.
3.3.45 Practice generally concurs with this. This is the case for Belgium in respect
of many offences. In the terms of Article 12, paragraph one, of the Code of Criminal
Procedure, offences committed outside the country cannot give rise to investigation
or prosecution unless the alleged perpetrator is found in Belgium.235
3.3.46 Well-established exceptions do exist, however. For example, in the case of
crimes and offences committed abroad by a Belgian or a foreigner that are directed
against the security of the State or against “public trust” (such as the counterfeiting of
money or other papers, seals or stamps of the State), prosecution can take place even
if the accused is not found on Belgian territory.236 There are other, more marginal,
exceptions.237 All these exceptions are traditional. They are found in the legislation
of a large number of States.
3.3.47 By way of example, reference can be made to the Italian criminal code,238 the
German criminal code,239 which imposes no condition of territoriality for

235 Code of Criminal Procedure, titre préliminaire, Article 12: “Sauf dans les cas prévus aux articles 6,
n
os 1 et 2, 10 nos 1 et 2 , ainsi qu'à l'article 10 bis, la poursuite des infractions dont il s'agit dans le
présent chapitre n'aura lieu que si l'inculpé est trouvé en Belgique.” (“Except in the cases provided for
in articles 6, nos. 1 and 2, 10 nos. 1 and 2, and in article 10bis, prosecution for violations that are the
subject of this chapter will take place only if the accused is found in Belgium”; unofficial translation by
Belgium). (Annex 6)
236 Ibid., Art. 6, 10 and 12.
237 Ibid. Art. 10 bis and 12.
238 Codice penale, at Articles 7, 8 and 10 combined. (Annex 15)
239 Strafgesetzbuch, Article 5. (Annex 16)
Part III, Chapter Three: Merits
101
competence,240 the French criminal code,241 the Spanish law on the organisation of the
judiciary,242 and the Dutch criminal code.243
3.3.48 These exceptions or their application have never given rise to any difficulty
in international relations. This proves that, as such, nothing prohibits the State from
prosecuting foreigners for offences committed outside the country when these
foreigners are not on the territory of the prosecuting State. This is a simple question
of national choice which falls within the sovereignty of the State. A fortiori, this must
be the case when the offences in question are not only violations of national law but
of international law as well.
3.3.49 The ratio legis of the rule, according to which the accused must, in certain
cases, be present on the territory of the State for that state to be able to prosecute him
for acts committed outside the country, confirms that the source of this limitation, that
the State imposes on itself, must not be sought in a hypothetical international opinio
juris. The rule in fact corresponds only to considerations of practical convenience or
opportunity and not to any “feeling of complying to that which is equivalent to an
(international) legal obligation”.244 It is considered, indeed, that a criminal offence
committed outside the country against a private citizen does not disturb the social
order of the State of jurisdiction in the same way as if it is committed on its territory.
This offence therefore does not a priori justify the opening of an investigation and/or
prosecution. This is not the case, however, if the alleged perpetrator of the offence is
found on the territory of the State of jurisdiction because his presence and his
impunity would then be, “une cause de danger, de désordre, et de scandale”.245

Conversely, when the offence is directed against the State itself, or against certain
signs of its authority (currency, seals, stamps, etc.), the seriousness of the act requires

240 Vander Beken, T., Forumkeuze in het internationale strafrecht, Antwerpen, Maklu, 1999, at p.138,
paragraph 405.
241 Articles 113–6 to 113–12 (concerning offences committed outside the territory of the Republic),
combined with Articles 689 and 689-1 of the French criminal procedure code. (Annexes 17 and 18)
242 Ley organica 6/1985 de 1 de julio, del poder judicial, Article 23(3). (Annex 19)
243 Wetboek van strafrecht, Article 4(1)–(4). (Annex 20)
244 North Sea Continental Shelf cases, ICJ Report 1969, at p 44.
245 “a cause of danger, disorder, and scandal”. Franchimont, M., Jacobs, A., and Masset, A., Manuel de
procédure pénale, Ed. coll. Sc. de la Faculté de droit de Liège, 1989, at p.1064. (unofficial tranlation
by Belgium)
Part III, Chapter Three: Merits
102
immediate repressive action independent of the presence of the perpetrator on the
territory of the jeopardised State.
3.3.50 The travaux préparatoires of Article 12, paragraph one, of the Belgian Code
of Criminal Procedure is enlightening on this subject. One reads in the document
outlining the grounds for this text, which dates back to 1877:
“Quand le délit commis hors du territoire d’un Etat est dirigé contre
cet Etat lui-même, contre sa sûreté intérieure ou extérieure, contre
sa fortune publique, cet Etat a un intérêt évident à la répression, car
il est directement et personnellement attaqué. Dans ce cas aussi, il
importe peu que le coupable soit un national ou un étranger ; qu’il
soit saisi sur le territoire ou qu’il se tienne au dehors. L’absence du
coupable peut rendre plus difficile l’action de la justice, mais cette
circonstance n’influe en rien sur le droit de l’Etat.
Au contraire, quand il s’agit de délits commis à l’étranger contre des
particuliers, l’Etat, hors du territoire duquel ces délits ont été
commis, n’a plus un intérêt immédiat à la répression ; cet intérêt ne
naît que de la présence du coupable.
C’est le retour du coupable dans sa patrie qui constitue l’outrage à la
loi nationale. Ce retour justifie l’action de la justice, car l’impunité
du coupable au milieu de ses concitoyens serait une cause de
trouble, de mauvais exemple et de scandale pour l’autorité du
droit.”
246
3.3.51 If an ordinary criminal offence committed in a foreign State does not
mobilise the judicial system of another State except insofar as an offence becomes a
source of disorder for the latter, it can be understood why the Belgian legislature, like
that of many other states, has provided for exceptions to the requirement of the

246 “When the offence committed outside the territory of the State is directed against this State itself,
against its internal or external security, against its public fortune, this State has an obvious interest in
repression, because it is directly and personally attacked. In this case too, it hardly matters whether the
guilty party is a national or a foreigner; whether he is arrested on the territory or is found outside. The
absence of the guilty party can make the legal action more difficult, but this circumstance has no
influence on the right of the State.
On the contrary, when the offences were committed outside the country against private citizens,
the State, outside of whose territory the offences were committed, no longer has an immediate interest
in the oppression; this interest is only created by the presence of the guilty party.
The return of the guilty party to his native country is what constitutes violation of national law.
This return justifies legal action, because impunity of the guilty party among his fellow citizens would
be a cause of disorder, bad example and scandal for the legal authority.” (Unofficial translation by
Belgium) Documents parlementaires., Chambre, n° 70, 23 janvier 1877, p.19 (Annex 21); see also,
Rapport Thonissen, ibid., n° 143, 11 mai 1877, pp.19-20. (Annex 22)
Part III, Chapter Three: Merits
103
presence of the alleged perpetrator, notably, for offences such as violations of the
security or public trust of the state.
3.3.52 That which holds for violations of the fundamental interests of the State must
hold a fortiori for violations of the fundamental interests of the international
community, and more particularly, for those pertaining to violations of the most
elementary human rights.
3.3.53 Thus, war crimes, crimes against humanity and the crime of genocide trouble
the entire international community and are not exclusively associated with one
territory. As the chambre d'accusation of the Cour d'appel of Lyon stated in the
Barbie case, these crimes belong to “un ordre répressif auquel la notion de frontière ...
[est] fondamentalement étrangère”.247 Where the crimes were committed matters
little. By their gravity and the violation they represent for the international order,
these crimes are considered to have been committed on the territory of every State.
This conclusion is moreover coherent with the erga omnes nature of the rules
governing their punishment.248 The social disorder is no longer only national. It is
universal. In such cases, it is vain to try to find a ratione loci limit in international
law for the punishment of crimes which are among those that offend “the conscience
of the world”.249
3.3.54 State practice confirms this. Thus, the Luxembourg Law of 9 January 1985
on the punishment of serious breaches to the Geneva Conventions of 12 August 1949,
provides in Article 10:
“Tout individu, qui a commis, hors du territoire du Grand-Duché,
une infraction prévue par la présente loi peut être poursuivi au
Grand-Duché encore qu'il n'y soit pas trouvé.”250

247 “a repressive order to which the concept of a border ... [is] fundamentally foreign” (unofficial
translation by Belgium). 8 July 1983, JDI, 1983, starting at p.779, note Edelman.
248 See paragraph 3.3.5 above.
249 Nuremberg International Military Tribunal, Judgement of 30 September – 1 October 1946, Off.
Doc., T.1, p.231.
250 “Every individual, who has committed an offence, outside the territory of the Grand-Duchy, a
violation covered by the present law, can be prosecuted in the Grand Duchy even if he is not found
here.” (unofficial translation by Belgium). Cited in Amnesty International, Study on Universal
Jurisdiction, September 2001, v.1, Ch.4, Part B, at p.26.
Part III, Chapter Three: Merits
104
3.3.55 Article 7 of the Italian penal code permits the prosecution of foreigners who
commit, outside Italy, offences contrary to international conventions binding upon
Italy even if that foreigner is not found on Italian territory.251
3.3.56 In New Zealand, section 8(1) of the International Crimes and International
Criminal Court Act 2000 provides:
“Proceedings may be brought for an offence---
...
(c) against section 9 [genocide] or section 10 [crimes against
humanity] or section 11 [war crimes] regardless of
(i) the nationality or citizenship of the person accused; or
(ii) whether or not any act forming part of the offence occurred in
New Zealand; or
(iii) whether or not the person accused was in New Zealand at the
time that the act constituting the offence occurred or at the
time a decision was made to charge the person with an
offence.”252
3.3.57 In a substantial recently published study of comparative law on universal
jurisdiction, Amnesty International reviewed the legislation of some 125 States which
admit this competence for matters of war crimes and crimes against humanity. In a
number of cases, the study observes that the exercise of universal jurisdiction requires
the presence of the accused on the territory of the prosecuting State. In other cases, it
does not specify whether this presence is necessary or not. In a third category of
cases, it expressly comments that presence within the jurisdiction is not required to
initiate prosecution. For example:
· Bolivia – with regard to Article 1(7) of the Codigó Penal (Penal Code)
giving national courts universal competence for crimes that the Bolivian
State has undertaken by convention to punish, the study observes that

251 Antolisei, F., Manuale di diritto penale, Milano, Guiffrè, 1997, pp.122-123. (Annex 23)
252 Cited in Amnesty International, op.cit., September 2001, v.1, Ch.4, Part B, at p.40 fn.181.
Part III, Chapter Three: Merits
105
“[t]here is no requirement in Art. 1(7) that a suspect be in Bolivia before a
prosecutor can initiate an investigation…”;253
· Burundi – with regard to Article 4 of the Décret-Loi No. 1/6 du 4 April 1981
portant réforme du code pénal, art. 4 on crimes committed outside the
country, the study observes that “it may be possible to charge a person
suspected of a crime abroad who is outside the country, but no further
proceedings to prosecute the person may occur until the person is found in
Burundi”;254
· El Salvador – with regard to Article 10 of the 1998 Código Penal (Penal
Code), the study observes that it “does not require that the suspect be in El
Salvador”;255
· Peru – with regard to Article 2(5) of the Peruvian 1998 Código Penal (Penal
Code) which provides for universal competence of Peruvian courts for acts
established as crimes by international treaties, the study observes that
“[t]here is no express requirement in this article that the suspect be in the
territory in order to open an investigation.”;256
· Switzerland – with regard to the provisions of the Code pénal militaire suisse
(Swiss Military Penal Code), the study observes that “[t]here is no express
requirement … that the suspect be in Switzerland to open a criminal
investigation, although the normal practice is that prosecutors will not open a
criminal investigation unless the suspect is believed to be in Switzerland.”257
3.3.58 To come up with a comprehensive picture, it would of course be necessary to
examine the laws on criminal procedure of every State. Nevertheless, the preceding is

253 Ibid., Amnesty International, Part A, at p.28.
254 "Decree-law No. 1/6 of 4 April 1981 reforming the Penal Code, Art.4." (unofficial translation by
Belgium); cited in Amnesty International, Ibid., at p.35.
255 Ibid., at p.68.
256 Ibid., Part B, at p.49; Art. 2(5) provides: "Peruvian law shall be applicable to any offence committed
abroad when: … (5) it is an offence which Peru is obliged to punish under the terms of international
treaties".
257 Ibid., at p.77.
Part III, Chapter Three: Merits
106
an interesting sample of legislation that does not correspond to the simplistic image
that the DRC tries to give to international legal reality.
3.3.59 This practice notwithstanding, the DRC nevertheless challenges Belgium’s
right to open an inquiry or to initiate prosecution by default in the name of the opinio
juris that in the DRC’s opinion allegedly emerges from certain national legislation.
For this purpose, it refers to two laws – those of Canada and of France – that limit the
exercise of the criminal jurisdiction of these States with regard to certain serious
violations of international humanitarian law to the case where the perpetrator of these
violations is found on their territory.258
3.3.60 It may be observed that, in adopting this approach, the DRC shows no opinio
juris. It simply notes that two States have chosen to prosecute the perpetrator of these
acts only when that person is found in their territory. The DRC does not cite a single
extract in the travaux préparatoires of these two laws showing that these States do not
want to open an investigation or initiate prosecution in absentia in the name of any
prohibition in international law.
3.3.61 However, the DRC refers to the rejection by the French National Assembly
of an amendment that would have made it possible to prosecute in France the crimes
referred to by the ICTY Statute in the event that their perpetrator was not found on the
French territory but in circumstances in which the victims were domiciled there. The
DRC sees in the rejection of this amendment,
“l’opinio juris du législateur français qui tient l’exercice d’une
compétence ‘universelle’ en l’absence de la présence [sic] de
l’accusé sur le territoire national pour abusive.” 259
3.3.62 It is particularly interesting to verify whether, as the DRC affirms, this
amendment was rejected due to an opinio juris of the French legislature which

258 DRC Memorial, at paragraphs 88-89.
259 “the opinio juris of the French legislature considers that the exercise of a ‘universal’ competence in
the absence of the presence of accused Party on the national territory is abusive.” Ibid., at paragraph 88
(unofficial translation by Belgium).
Part III, Chapter Three: Merits
107
considered that the exercise of a “compétence ‘universelle’ en l’absence de la
présence [sic] de l’accusé sur le territoire national pour abusive .”260
3.3.63 The real situation is much more prosaic. The amendment was rejected
exclusively for practical reasons having to do with the risk of overloading the case list
of the Tribunal de Grande Instance of Paris. The French Minister responsible for
relations with the National Assembly explained his opposition to the amendment
proposed by Mr Picotin, the rapporteur of the draft law, as follows:
“En effet, si l’on retenait sa proposition [d’amendement], nombre
des 4000 victimes vivant en France déposeraient plainte, pour la
plupart devant le tribunal de grande instance de Paris. Cela
provoquerait un embouteillage considérable qui aboutirait à l’effet
inverse de celui recherché, car certaines exactions qui pourraient
être sanctionnées ne le seraient jamais à cause de cet encombrement
artificiel.
…
Nous sommes donc là face à un problème pratique.”
261
3.3.64 As for Canada, the situation is much more subtle than the DRC describes.
Although it is true that Article 8 of the law on crimes against humanity and war
crimes of 29 June 2000 limits prosecution against a foreigner alleged to have
perpetrated a crime under the law, in the event that this person is found in Canada
after the violation, Article 9(1) accepts that a prosecution may be opened “whether or
not the person is in Canada”.262 Canadian law therefore does indeed authorise the
opening of public prosecution in abstentia.
3.3.65 In addition to the Pinochet case, several important precedents drawn from
national practice confirm the right of the forum State to exercise universal jurisdiction
for acts committed outside the country by a foreigner who was found outside the
country at the time prosecution was initiated.

260 “universal competence in the absence of the accused on the national territory is abusive” Ibid.
(Unofficial translation by Belgium)
261 “Indeed, if this proposal [for an amendment] is retained, many of the 4000 victims living in France
would file a complaint for the most part with the Tribunal de Grande Instance of Paris. This would
cause a considerable bottleneck which would finally have an effect opposite to the one sought, because
certain exactions that could be sanctioned never would be because of this artificial overload. ... We are
therefore faced with a practical problem.” Journal Officiel de l’Assemblée nationale, 20 décembre
1994, 2e
séance, p.9446 (unofficial translation by Belgium). (Annex 24)
262 Crimes Against Humanity and War Crimes Act, 2000, c.24. (Annex 25)
Part III, Chapter Three: Merits
108
3.3.66 When Israel petitioned the United States to extradite John Demjanjuk for war
crimes that he was alleged to have committed in Poland during the Second World
War, it did no more than act on a judicial investigation carried out in abstentia against
a foreigner for acts committed in another country against foreigners. This action did
not raise particular judicial difficulty for either Israel or the United States, the latter of
which agreed to extradite the person in question. In its Decision of 31 October 1985
rejecting the appeal lodged by Demjanjuk against the Judgment of the District Court
concluding that he could be extradited to Israel, the 6th Circuit Court of Appeal
notably affirmed:
“Israel is seeking to enforce its criminal law for the punishment of
Nazis and Nazi collaborators for crimes universally recognized and
condemned by the community of nations. The fact that Demjanjuk
is charged with committing these acts in Poland does not deprive
Israel of authority to bring him to trial.
Further, the fact that the State of Israel was not in existence when
Demjanjuk allegedly committed the offenses is no bar to Israel’s
exercising jurisdiction under the universality principle. When
proceeding on that jurisdictional premise, neither the nationality of
the accused or the victim(s), nor the location of the crime is
significant. The underlying assumption is that the crimes are
offenses against the law of nations or against humanity and that the
prosecuting nation is acting for all nations. This being so, Israel or
any other nation, regardless of its status in 1942 or 1943, may
undertake to vindicate the interest of all nations by seeking to
punish the perpetrators of such crimes.”263
3.3.67 In the Bouterse case (referred to by Belgium during the provisional measures
phase of the case),264 two Dutch citizens launched an action in the Netherlands against
a decision of the Dutch public prosecutor not to prosecute a senior officer of Surinam,
Lieutenant Colonel Bouterse. Lt-Col. Bouterse was alleged to have commanded the
soldiers who, in December 1982 in Panamaribo, arrested, tortured and executed 15
persons (legal specialists, teachers, businessmen, trade union representatives,
journalists and officers) considered to be a threat to the military authority of Bouterse.

263 Demjanjuk v. Petrovsky, 79 ILR 534, at pp.545-546 (emphasis added). (Annex 26)
264 CR 2000/35, 23 November 2000, in the submission of M. David, at paragraph 2.
Part III, Chapter Three: Merits
109
Fourteen of the victims were citizens of Surinam. The 15th was a Dutch national.265

The Dutch complainants in the case were respectively the brother of one of the
victims and the nephew of two other victims.266
3.3.68 In a decision dated 3 March 2000, the Court of Appeal of Amsterdam
justified the admissibility of the action, in spite of its extra-territorial character, on a
number of grounds as follows:
“The Netherlands has close historic ties with Surinam. A large
number of people of Surinamese origin [are] living in the
Netherlands. The events in December 1982 shocked not only this
group but also society at large in the Netherlands. There are
indications that at least one of the victims and possibly more had
Dutch nationality. Finally, the complainants, who are relatives of
two of the victims, live in the Netherlands. As a prosecution
elsewhere in the world cannot be expected in the foreseeable future,
as explained above, they have now applied to the most appropriate
authorities. Prosecution in the Netherlands would be appropriate on
all these grounds.”267
3.3.69 It is striking to observe to what extent most of the criteria referred to by the
Court of Appeal of Amsterdam to justify the forum conveniens are found in the
decision of the Belgian investigating judge to investigate complaints directed against
the subject of the arrest warrant in the present case: the Belgian nationality of some of
the complainants, who also consider themselves to be victims; the residence of these
persons in Belgium; the presence of a large Congolese community in Belgium; the
shock caused in Belgium by the acts alleged to have been committed by Mr Yerodia
Ndombasi; the foreseeable absence of a more appropriate jurisdiction to try the
violation.
3.3.70 As concerns more specifically the exercise of universal competence in
absentia, the Amsterdam Court of Appeal, in its Judgment on the merits of 20
November 2000, simply observed that customary international law acknowledged

265 In re Bouterse, Expert Opinion of Prof. C.J. Dugard, 7 July 2000, p.1 at paragraphs 1.1–1.3 (Annex
29). On this case see also Kooijmans, P.H., Internationaal publiek recht in vogelvlucht, Tjeenk
Willink, 2000, at p.56.
266 In re Bouterse, Beslissing van Het Gerechtshof (Decision of the Court of Appeal), 3 March 2000, at
paragraph 3.1. (Annex 30)
267 Ibid., at paragraph 4.2. (Annex 30)
Part III, Chapter Three: Merits
110
such competence in the case of crimes against humanity, that the exercise of such
competence did not require the victims to be nationals of the prosecuting state, and
that nothing in the report of the expert appointed by the Court of Appeal (Professor
John Dugard) excluded the exercise of this competence in absentia:
“5.2 The Court of Appeal also shares the view of the expert:
… that as customary international law stood in 1982, a State had
competence to exercise extraterritorial (universal) criminal
jurisdiction over a person accused of a crime against humanity when
that person was not a national of the State concerned.
5.3 The Court of Appeals also understands from the report of the
expert that it is not necessary for the exercise of jurisdiction that the
victim should be a national of the prosecuting State or that the
victims are nationals of the prosecuting State, although such a
connecting factor – as in the present case where the complainants
are relatives of the victims – would strengthen the basis for the
exercise of jurisdiction.
5.4 The Court of Appeal has found insufficient grounds in the
report of the expert to conclude that prosecution of Bouterse in the
Netherlands would not be possible and admissible in accordance
with the criteria of customary international law as long as he is not
in the Netherlands.”268
3.3.71 This statement could not be clearer. The Court appointed Expert, Professor
Dugard, observed as concerns the presence of the accused on the territory of the
prosecuting State as a criterion for initiating prosecution:
“It is not clear whether this requirement [the presence of the accused
in the forum State] prevents a State in whose territory the offender is
not present from requesting extradition of the offender from a state
in whose territory the offender is present, but which elects not to try
him itself, when the sole basis for the exercise of jurisdiction is the
principle of universality. Some have argued that it is objectionable
to allow extradition requests of this kind as this would permit a
particular state to act as ‘policeman’ of the world by requesting
extradition of torturers from any country. This objection was not
raised in the Pinochet proceedings and a number of English courts
were prepared to entertain a request from Spain to exercise
jurisdiction on grounds of universality.

268 Ibid., Judgment of 20 November 2000, at paragraphs 5.2-5.4 (emphasis added). (Annex 30)
Part III, Chapter Three: Merits
111
(fn. In Spain v Pinochet (Bow street Magistrate’s Court, 8 October
1999) the extraditing magistrate was satisfied that the principle of
universality gave Spain jurisdiction in this case. Article 7 of the
European Convention on Extradition, under which Pinochet’s
extradition was ordered, permits extradition where both the
requesting and requested State recognise the principle of universal
jurisdiction in the case in question).
A State that requests extradition of a torturer would probably be
wise to stress the presence of some connecting factor between it and
the crime to ensure that this objection would not be raised against
it.”269
3.3.71a In its decision of 18 September 2001, the Hoge Raad of the Netherlands,
however, did not go so far. It corrected the decision of the Court of Appeal once
having observed that the Torture Convention did not oblige the Netherlands to
exercise jurisdiction other than the one provided for by the Convention (territorial
jurisdiction, personal jurisdiction, and universal jurisdiction if the accused is present
in the territory of the forum state). Furthermore, it recognised that the intention of the
Dutch legislature was to confine the jurisdiction of the Dutch judge to matters coming
within the purview the Convention only. Nevertheless, the Hoge Raad did not call
into question the above reasoning of the appellate Court.270 More specifically, it does
hold that international law prohibits States to exercise a broader jurisdiction.271
3.3.72 In the case of Spain, in addition to the Pinochet case, reference may be made
to the investigation opened in the 1990s by Judge Garzon concerning 98 dossiers on
Argentine citizens for their participation in crimes alleged to have been committed
during the Argentine dictatorship of 1976 – 1983. The Cavallo case took place in this
context. In this case, Ricardo Miguel Cavallo was accused by Judge Garzon of acts of
genocide, torture and terrorism. Cavallo was arrested on 24 August 2000 in Cancun,
Mexico. On 12 September 2000, Spain, after a favourable decision of the Audiencia
Nacional,
272 petitioned Mexico for his extradition. On 12 January 2001, a Mexican

269 In re Bouterse, Expert Opinion of Prof. C.J. Dugard, 7 July 2000, at paragraph 5.6.5. (emphasis
added) (Annex 29)
270 See paragraph 3.3.70 above.
271 In re Bouterse, judgment of 18 September 2001, at paragraph 8, especially 8.2, 8.4 and 8.5. (Annex
31)
272 Cavallo, Audiencia Nacional, Auto solicitando la extradición de Ricardo Miguel Cavallo, 12
September 2000 (Spanish extradition order by the Audiencienci Nacional; French translated extracts
certified by Belgium). (Annex 27)
Part III, Chapter Three: Merits
112
judge decided to authorise the extradition to Spain.273 On 2 February 2001, the
Mexican government agreed to extradite Cavallo to Spain. This decision is now on
appeal before the Mexican supreme court. Whatever the final decision, the case
illustrates recognition, by Spain and Mexico, of the right to prosecute in absentia.
3.3.73 By way of further example, an investigation was opened in Germany with
regard to a Dutch national, Dost, on charges of trafficking in narcotics in Arnhem in
the Netherlands. On the basis of Article 6(5) of the Strafgesetzbuch – which provides
for the universal competence on the part of a German judge without any requirement
that the perpetrator should be present on the territory of the State prosecuting the case
– the case was investigated. In this example, the person concerned was not in
Germany and the charges against him concerned acts alleged to have been committed
outside the country.274
3.3.74 In conclusion, there is no shortage of sources to confirm the right of the State
to open an investigation in abstentia. The DRC is unable to quote a single source
affirming that international law only authorises the initiation of an investigation or
prosecution by default when the crime is committed on the territory of the prosecuting
State and that it prohibits such action when the crime is committed elsewhere. In fact,
international law, which recognises the principle of universal jurisdiction in the case
of grave breaches of international humanitarian law, in no way prohibits the exercise
of this competence in absentia. This follows from differences in systems of criminal
law. Some apply strict territoriality whereas others exercise extraterritorial
jurisdiction to varying degrees. This explains the tolerance of modern conventions on
international criminal law with regard to jurisdictions not provided for in these
instruments.275 It is not possible, therefore, to deduce from the international law rules
that would limit the extra-territorial competence of States in the case that the alleged
perpetrator of an extra-territorial breach would be on the territory of the forum State.
Such rules do not therefore exist at this time.

273 Texto de las conclusiones del Juez natural sobre la poible extradicion de Miguel Angel Cavallo a
España, 12 January 2001 (Conclusions by the Mexican Juez natural regarding the potential extradition
of Cavallo; French translated extracts certified by Belgium). (Annex 27)
274 See Vander Beken, T., Forumkeuze in het internationaal strafrecht, Anterwerpen, Maklu, 1999, at
p.165. (Annex 28)
Part III, Chapter Three: Merits
113
II. Additional arguments of the DRC in opposition to the exercise of universal
jurisdiction in abstentia
3.3.75 The DRC further challenges the exercise of universal competence in absentia
on grounds of the risk of multiple prosecutions (a) and by reference to rules of the
ICC (b). Each of these arguments is addressed in turn.
3.3.76 Independently of the arguments that have just been set down and which
justify the opening of an investigation in Belgium in respect of the allegations against
Mr Yerodia Ndombasi, it will be seen that none of the additional arguments presented
by the DRC stand up to analysis.
(a) The alleged risk of multiple prosecutions
3.3.77 The authors of the DRC Memorial express a fear that the exercise of
universal jurisdiction by default could result in a 'monstrous cacophony'. They sing a
common tune, but international law is not a perfect four-part harmony.276 As has
already been seen, however, international law accepts positive conflicts of
jurisdiction. These are inherent in a society of juridically equal sovereign States
juxtaposed to one another.
3.3.78 Moreover the risk of such conflicts does not result only from universal
jurisdiction. All forms of extraterritorial jurisdiction (active personal, passive
personal, real, multi-territorial) can lead to this. Today, with the development of
cross-border criminality, the same offence could give rise to prosecution in many
different States. As things stand at present, international law does not preclude this.
3.3.79 The travaux préparatoires of the Tokyo Convention on offences committed
on board aircraft of 14 September 1963 are instructive on the subject.277 It was
believed that the initial intention to establish a priority in respect of the exercise of
competencies of different States concerned by breaches committed on board aircraft

275 See paragraph 3.3.37 above.
276 On this, see the interview with MJ Verhoeven in Vif – L'Express, 18 May 2001.
277 ICAO Doc. 8565-LC/152/2, Documents, II at pp.31 et seq. (Annex 14)
Part III, Chapter Three: Merits
114
was soon abandoned.278 Italy, however, recalled the matter during the Tokyo
Conference, and the principle remained in the final text.279
3.3.80 The risk of a positive conflict of jurisdictions is in any event theoretical for
two reasons. First, national courts and case lists are already sufficiently full and
States are hardly likely to be inclined to prosecute alleged perpetrators of offences
that are so much more difficult to investigate because they were committed in another
country. Second, national law, like international law, provides remedies in the event
of overlapping jurisdictions, notably by the application of the non bis in idem rule.280

The risk of multiple prosecutions is therefore small.
(b) The alleged incompatibility of the Law of 1993/1999 with the ICC Statute
3.3.81 According to the DRC, the implementation of universal jurisdiction set down
in the Law of 1993/1999 would hinder the exercise of jurisdiction by the future ICC
because ICC jurisdiction is complementary to that of states (ICC Statute, Articles 1
and 17) but Belgium would always be competent for offences provided for in the
Statute.
281
3.3.82 This argument does not hold. Independently of the principle of the
opportunity of prosecution which does not require Belgian justice to act on all
violations of international humanitarian law committed in the world, the text of the
Statute itself answers this objection: the ICC can initiate proceedings on any offence
provided for in its Statute insofar as the State normally having jurisdiction is
incapable of truly exercising its jurisdiction. Article 17 of the Statute provides:
“1. Having regard to paragraph 10 of the Preamble and article 1,
the Court shall determine that a case is inadmissible where:

278 Ibid., Article 3(1) at p.46, see above, paragraphs 3.3.39 and 3.3.40.
279 Ibid., LC/152-1, Procès Verbaux, at p.115 (Annex 13)
280 This is found, for example, in Article 13, of the Belgian Code de procédure pénale, titre
préliminaire (Annex 6); and in Article 54 of the Schengen Convention on the gradual elimination of
border controls of 19 June 1990, which provides: “A person who has been finally judged by a
Contracting Party may not be prosecuted by another Contracting Party for the same offences provided
that, where he is sentenced, the sentence has been served or is currently being served or can no longer
be carried out under the sentencing laws of the Contracting Party.”; see also Charter of Fundamental
Rights of the European Union, 9 December 2000, Art.50 in DAI, 2001, at p.49.
281 DRC Memorial, at paragraph 91.
Part III, Chapter Three: Merits
115
(a) The case is being investigated or prosecuted by a State which
has jurisdiction over it, unless the State is unwilling or unable
genuinely to carry out the investigation or prosecution;
...
3. In order to determine inability in a particular case, the Court
shall consider whether, due to a total or substantial collapse or
unavailability of its national judicial system, the State is unable to
obtain the accused or the necessary evidence and testimony or
otherwise unable to carry out its proceedings.”282
3.3.83 The terms of Article 17 are perfectly clear. It is not because Belgian law
allows an investigation or prosecution in absentia that Belgium will be able to
“genuinely carry out the prosecution” and to obtain the “necessary evidence and
testimony or to carry out the prosecution”. If Belgium proves unable to seriously
investigate the case, the very text of paragraphs 1(a) and 3 of Article 17 show that the
ICC will be perfectly able to do so.
3.3.84 In conclusion, the universal jurisdiction provided for by the Belgian Law of
1993/1999 infringes no standard of international law. It falls into the framework of
the sovereignty of States as referred to in the Lotus case. It is confirmed by
international practice which takes account of the great diversity of criminal legislation
and jurisdiction that the States adopt. It is not unique in the world and did not raise
international protest at the time that it was enacted. It is no more singular than any
other form of criminal jurisdiction exercised in absentia for acts committed outside
the territory of the State concerned, a competence broadly accepted by international
practice.
* * *

282 ICC Statute, Article 17 (emphasis added).
Part III, Chapter Four: Merits
118
CHAPTER FOUR
THE LAW RELATING TO THE IMMUNITY OF MINISTERS FOR
FOREIGN AFFAIRS
3.4.1 The central contention in the DRC’s case is that Belgium is in breach of
international law because it has violated the customary international law immunities
that attach to Ministers for Foreign Affairs in office. In Belgium’s contention, this
argument overlooks a quite fundamental development in international law in recent
times that goes to the core of the present case, as well as a number of other key
elements of the applicable law. While, ordinarily and as a matter of general
proposition, Ministers for Foreign Affairs are immune from suit before the courts of
foreign states, and the persons of Ministers for Foreign Affairs are inviolable, this is
subject to an important caveat. As Sir Arthur Watts observed in his recent study on
The Legal Position in International Law of Heads of States, Heads of Governments
and Foreign Ministers:
“As with Heads of State, so too it is now accepted that heads of
governments and foreign ministers bear a personal responsibility in
international law for those international acts which are so serious as
to constitute international crimes. This acceptance has sprung
primarily from the judgment of the International Military Tribunal
at Nuremberg, and the principle of the international responsibility of
individuals has now been incorporated into numerous international
instruments.”283
3.4.2 As well as the issue of personal responsibility for international crimes, also
germane to the present proceedings is the increasingly widely held appreciation that
the special privileges and immunities that avail those representing states are accorded
“to enable them to carry out their functions”.284 Implicit in this appreciation is the
proposition that the scope and application of these privileges and immunities are
limited to circumstances involving the performance by the person concerned of
official functions. In other words, privileges and immunities that attach to Ministers

283 Watts, A., The Legal Position in International Law of Heads of States, Heads of Governments and
Foreign Ministers, (1994-III) Recueil des cours, Volume 247, at p.111.
284 Watts, supra, at p.103.
Part III, Chapter Four: Merits
119
for Foreign Affairs to enable them to carry out their official functions do not avail
such persons in their private capacity or when they are acting otherwise than in the
performance of their official functions.
3.4.3 Also relevant to the present proceedings is the uncontroversial proposition
that
“[u]pon loss of office a former head of government or foreign
minister resumes again the position of a private person, and is as
such entitled to no special protection under international law. In
particular, their immunity from jurisdiction ceases, even in respect
of their private acts committed while they held office (or earlier) and
in respect of which they might while in office have benefited from
immunity.”285
3.4.4 By reference to the preceding, a number of propositions relating to the
immunity of Ministers for Foreign Affairs germane to the present case may be simply
stated:
(a) Ministers for Foreign Affairs in office are in general immune from suit
before the courts of a foreign State;
(b) by way of exception to the general rule, Ministers for Foreign Affairs in
office bear personal responsibility for acts they are alleged to have
committed which are so serious as to constitute international crimes. Such
acts include inter alia grave breaches of the Geneva Conventions of 1949 and
the Additional Protocols thereto of 1977, and crimes against humanity;
(c) by way of further exception to the general rule, the immunity that avails
Ministers for Foreign Affairs in office applies in respect of their official
conduct for purposes of enabling them to carry out their official functions. It

285 Watts, supra, at p.112. For completeness, the passage in question continues: “But even after a head
of government or foreign minister ceases to hold office, immunity continues to subsist in respect of
official acts performed in the exercise of their functions.” This element is not in contention in the
present case as their is no suggestion that the acts that Mr Yerodia Ndombasi is alleged to have
committed constituted official acts.
Part III, Chapter Four: Merits
120
does not avail such persons in their private capacity or when they are acting
otherwise than in the performance of their official functions;
(d) upon loss of office, a former Minister for Foreign Affairs is no longer
entitled to immunity as regards any conduct other than official acts
performed in the exercise of his or her functions while Minister for Foreign
Affairs.
3.4.5 The law and practice relating to the immunity from suit of Ministers for
Foreign Affairs in office in the case of allegations of grave breaches of international
humanitarian law and crimes against humanity is addressed in detail in the following
chapter in this Part. The object of the present chapter is simply, and briefly, to set that
discussion in context by sketching the broad contours of the law in this area.
3.4.6 The law relevant to immunities of Ministers for Foreign Affairs is largely
customary in origin, although, depending on the circumstances and the parties
involved, it may also have a conventional basis. The principal conventional source in
this area is the UN Convention on Special Missions of 1969 (“Special Missions
Convention”) which entered into force in 1985.286 Neither Belgium nor the DRC are,
however, party to this Convention. It may, nevertheless, be a useful point of reference
on certain matters of principle which are commonly accepted as having a basis in
customary international law. Other instruments setting out principles on the immunity
of other State representatives may also be relevant. A particularly useful general
commentary on the law in this area is the recent study by Sir Arthur Watts referred to
above on The Legal Position in International Law of Heads of States, Heads of
Governments and Foreign Ministers.
3.4.7 In general, discussion of the immunities that attach to the office of Ministers
for Foreign Affairs proceeds by reference to the wider review of immunities that
attach to the offices of Head of State, Head of Government and Minister for Foreign
Affairs. As the review of the law by Sir Arthur Watts makes clear, holders of these
offices of State are commonly considered to be in a special position as regards
Part III, Chapter Four: Merits
121
privileges and immunities as it is through these offices that a State normally conducts
its foreign relations. While this does not preclude privileges and immunities attaching
to other offices of State, the scope of such privileges and immunities are more likely
to require determination on a case-by-case basis. In contrast, as is commonly known,
there is a presumption that Heads of State, Heads of Government and Ministers for
Foreign Affairs possess, simply by virtue of their office, full powers to act on behalf
of the State they represent.287
3.4.8 While the position of Heads of State, Heads of Government and Ministers for
Foreign Affairs are frequently addressed together as regards the question of privileges
and immunities – a practice that is followed in chapter 5 below – an important
distinction must be drawn between the position of Heads of State, on the one hand,
and of Heads of Government and Ministers for Foreign Affairs, on the other.
Whereas Heads of State are commonly perceived as occupying a privileged position
as a result of their personal identification with the State, ie, simply by virtue of their
office, Heads of Government and Ministers for Foreign Affairs occupy a special
position in consequence of the functions they perform. This distinction, an amalgam
of the old notion of the Sovereign as the State – “L’Etat, c’est moi”, as Louis XIV is
reputed to have said – and the more recent trend away from absolute immunities in
favour of immunities linked to functional considerations, remains important today.
Whereas the privileges and immunities of Heads of State are predicated on both form
(the status of the office) and substance (the functions performed), the privileges and
immunities that avail Heads of Government and Ministers for Foreign Affairs are, to a
significant degree, predicated on substance only. While, therefore, the scope of the
immunities of Ministers for Foreign Affairs is commonly discussed by reference to
the law applicable to Heads of State, the application of the law in the case of
Ministers for Foreign Affairs is circumscribed by what is necessary to enable the
person concerned to perform his or her functions.288

286 UN Convention on Special Missions, Annex to UNGA Resolution 2530 (XXIV) of 8 December
1969. (Annex 32)
287 See, for example, Article 7(2)(a) of the Vienna Convention on the Law of Treaties, 1969.
288 The distinction between the position of a Head of State, on the one hand, and a Head of Government
or Minister for Foreign Affairs, on the other, is widely apparent and accepted. The two categories are,
for example, addressed separately by Sir Arthur Watts in the commentary noted above. The Special
Mission Convention, likewise, addresses the two categories separately; in Article 21(1) and 21(2)
respectively.
Part III, Chapter Four: Merits
122
3.4.9 This issue is addressed by Sir Arthur Watts in the following terms:
“As representatives of their States, of high seniority and rank, heads
of government and foreign ministers are, in their official capacities,
in principle entitled in international law to special respect and
protection from other States. However, several considerations need
to be borne in mind when translating the principle into practice.
The first is that heads of governments and foreign ministers,
although senior and important figures, do not symbolise or personify
their States in the way that Heads of State do. Accordingly, they do
not enjoy in international law any entitlement to special treatment
by virtue of qualities of sovereignty or majesty attaching to them
personally.
Second, in contemporary international law specially favourable
treatment is in general (and notwithstanding the exception which
appears to be accepted in view of the very special position of Heads
of State) accorded to State representatives where that is necessary to
enable them to carry out their functions. ...
Functional considerations, which are now accepted as the true basis
for privileges and immunities accorded in respect of resident
diplomatic missions, are in principle as applicable to temporary
visits by heads of governments and foreign ministers for the conduct
of official business as they are to resident diplomatic missions.”289
3.4.10 That the privileges and immunities that attach to a Minister for Foreign
Affairs are limited by reference to functional considerations is also evident from the
approach adopted by the Special Missions Convention. Thus, while the persons of the
representatives of the sending State in the special mission are declared to be
inviolable,290 and such representatives “shall enjoy immunity from the criminal
jurisdiction of the receiving State,291 the whole focus of the Convention is on
privileges and immunities that are limited by reference to function. Thus, the very
notion of a “special mission” – which would include a mission lead by, or including,
the Minister for Foreign Affairs – is defined in functional terms:

289 Watts, supra, at pp.102–103.
290 See Article 29. (Annex 32)
291 See Article 31. (Annex 32)
Part III, Chapter Four: Merits
123
“a ‘special mission’ is a temporary mission, representing the State,
which is sent by one State to another State with the consent of the
latter for the purpose of dealing with it on specific questions or of
performing in relation to it a specific task”.292
3.4.11 Pursuant to Article 11 of the Convention, the Ministry of Foreign Affairs of
the receiving State is to be notified of the termination of the functions of the special
mission. The point at which the functions of a special mission come to an end is
addressed in detail in Article 20 of the Convention. As regards the commencement of
functions, Article 13(1) provides that “[t]he functions of a special mission shall
commence as soon as the mission enters into official contact” with the appropriate
authority of the receiving State.
3.4.12 As already noted, the Convention provides expressly both that the persons of
the representatives of the sending State in the special mission shall be inviolable and
that they shall enjoy immunity from the criminal jurisdiction of the receiving State.
The status of Heads of State and other persons of high rank leading or taking part in a
special mission is further addressed in Article 21 in the following terms:
“1. The Head of the sending State, when he leads a special mission,
shall enjoy in the receiving State or in a third State the facilities,
privileges and immunities accorded by international law to Heads of
State on an official visit.
2. The Head of the Government, the Minister for Foreign Affairs
and other persons of high rank, when they take part in a special
mission of the sending State, shall enjoy in the receiving State or in
a third State, in addition to what is granted by the present
Convention, the facilities, privileges and immunities accorded by
international law.”
3.4.13 As will be apparent, there is a degree of circularity in this text for present
purposes given that it refers back to general international law. What is material,
however, is not so much the absence of detail on the privileges and immunities that
may subsist as a matter of general international law but the approach of the
Convention on the question of the duration of such privileges and immunities. This is
addressed in Article 43 of the Convention inter alia as follows:

292 Article 1(a). (Annex 32)
Part III, Chapter Four: Merits
124
“1. Every member of the special mission shall enjoy the privileges
and immunities to which he is entitled from the moment he enters
the territory of the receiving State for the purposes of performing his
functions in the special mission or, if he is already in its territory,
from the moment when his appointment is notified to the Ministry
of Foreign Affairs or such other organ of the receiving State as may
be agreed.
2. When the functions of a member of the special mission have
come to an end, his privileges and immunities shall normally cease
at the moment when he leaves the territory of the receiving State, or
on the expiry of a reasonable period in which to do so, but shall
subsist until that time, even in the case of armed conflict. However,
in respect of acts performed by such a member in the exercise of his
functions, immunity shall continue to subsist.”293
3.4.14 As these provisions make clear, privileges and immunities avail members of
a special mission only for the duration of the mission, which in turn is defined in
functional terms.
3.4.15 The functional nature of the immunities that attach to Ministers for Foreign
Affairs in office is important for purposes of the present proceedings independently of
the issue of limitations on immunity in circumstances of allegations of grave breaches
of international humanitarian law or crimes against humanity. The reason for this is
that the DRC is proceeding on the basis that all that needs to be established for
purposes of its case is that Ministers for Foreign Affairs in office are immune from
suit before the courts of foreign States. If so, the implicit presumption advanced is
that they will be immune from suit for all purposes. The position, however, is rather
more complex. Even were the Court to uphold, contrary to Belgium’s submissions,
the immunity of Mr Yerodia Ndombasi qua Minister for Foreign Affairs of the DRC
in the circumstances in issue, it would not follow that he would have been immune,
even when in office, as regards conduct of a private nature or otherwise than in the
performance of his official functions. The “private shopping trip” example given by
Belgium during the provisional measures phase of the proceedings would still operate.

293 Annex 32. (emphasis added).
Part III, Chapter Four: Merits
125
3.4.16 Needless-to-say, as is clear from the principles set out at the start of this
chapter, now that Mr Yerodia Ndombasi is no longer Minister for Foreign Affairs of
the DRC, he does not benefit from the privileges and immunities that attach to that
office.
3.4.17 The personal responsibility of Ministers for Foreign Affairs for serious
violations of international humanitarian law that they are alleged to have committed,
and the consequences that flow therefrom for the question of immunity, are addressed
in detail in the following chapter of this Part. By way of foundation for that
discussion, the following observation by Sir Arthur Watts in respect of the position of
Heads of State may be noted. As the generality of the observation suggests, it is
relevant also to the position of Ministers for Foreign Affairs.
“A Head of State’s position in international law is not solely a
matter of his powers and the privileges and immunities to which he
is entitled. A Head of State can also engage the responsibility of
both his State and himself under international law.
...
The idea that individuals who commit international crimes are
internationally accountable for them has now become an accepted
part of international law. Problems in this area – such as the nonexistence
of any standing international tribunal to have jurisdiction
over such crimes, and the lack of agreement as to what acts are
internationally criminal for this purpose – have not affected the
general acceptance of the principle of individual responsibility for
international criminal conduct.
...
Provisions like those adopted in the Nuremberg Charter have been
repeated in subsequent general international instruments, and, most
recently, are included in Article 11, as provisionally adopted in
1988, of the International Law Commission’s draft Code of Crimes
against the Peace and Security of Mankind.
...
It can no longer be doubted that as a matter of general customary
international law a Head of State will personally be liable to be
Part III, Chapter Four: Merits
126
called to account if there is sufficient evidence that he authorised or
perpetrated such serious international crimes.”294
3.4.18 As regards the acts of Heads of Government and Ministers for Foreign
Affairs, Sir Arthur went on to observe as follows:
“The official acts of a head of government or of a foreign minister
are attributable to the State so as, if the circumstances warrant, to
make the State responsible for them.
The position is different as regards acts which they may perform in
their private capacities (which may include acts performed in a
political capacity – eg, as leader of a political party – so long as that
capacity can be differentiated from their official capacities as senior
members of the government). For their private acts the State bears
no greater legal responsibility than it bears in respect of acts of
private persons which may happen to cause internationally injurious
consequences.
As with Heads of State, so too it is now accepted that heads of
governments and foreign ministers bear a personal responsibility in
international law for those international acts which are so serious as
to constitute international crimes. This acceptance has sprung
primarily from the judgment of the International Military Tribunal
at Nuremberg, and the principle of the international responsibility of
individuals has now been incorporated into numerous international
instruments.
The various instruments include in some cases express provision to
the effect that that individual responsibility exists even though the
person concerned holds a senior office of State. The language used
varies slightly, but in the context in which they were adopted there
is no room for doubting that such provisions clearly embrace
holders of such offices as heads of governments and foreign
ministers. The Nuremberg Tribunal, it may be recalled, included
amongst those tried and convicted the former foreign minister of
Germany (von Ribbentrop).”295
3.4.19 One concluding point warrants comment. As a general approach, both
international and national law concerning the immunity of State representatives
address immunity from jurisdiction and immunity from execution or enforcement as
separate issues. For example, Article 31 of the Special Missions Convention
addresses immunity from criminal jurisdiction in paragraph (1), immunity from civil

294 Watts, supra, at pp.81–84.
Part III, Chapter Four: Merits
127
jurisdiction in paragraph (2) and, separately, immunity from measures of execution in
paragraph (4). The same approach is adopted in respect of diplomatic agents in
Article 31 of the Vienna Convention on Diplomatic Relations of 1961.296
3.4.20 In Belgium’s contention, there may be exceptional circumstances in which
the functional considerations that underlie the immunities that avail Ministers for
Foreign Affairs in office will require recognition of an extensive immunity from
enforcement in foreign States. The general and commonly endorsed trend towards
restrictive immunity, as well as principle in the pursuit of those alleged to have
committed serious violations of international humanitarian law, requires, however,
that claims to immunity from jurisdiction in such circumstances be firmly rejected.
* * *

295 Watts, supra, at pp.111–112.
296 500 UNTS 95.
Part III, Chapter Five: Merits
128
CHAPTER FIVE
INTERNATIONAL LAW EXCLUDES IMMUNITY IN THE CASE OF
PROSECUTION FOR SERIOUS CRIMES OF INTERNATIONAL
HUMANITARIAN LAW
3.5.1 As has just been seen, Belgium does not challenge the fact that the members
of a foreign government in office benefit from immunity. But whereas the DRC
affirms that this immunity is absolute,297 Belgium contends that there are exceptions
in the event of crimes under international humanitarian law.
3.5.2 In the case at hand, Belgium considers that even on this particular point, the
DRC's petition is pointless, not only because it has become purely academic since Mr
Yerodia Ndombasi is no longer a minister, but also because the argumentation of the
DRC itself leads to this conclusion. Belgium will begin by demonstrating that point
(section A) which, as we know, is already secondary compared to the general
inadmissibility of the DRC petition. It will therefore deal with the substance of the
question of immunities of high foreign representatives (section B) in a still more
subsidiary capacity.
A. The DRC's petition concerning the immunity of Mr Yerodia Ndombasi
is pointless
3.5.3 In the provisional measures phase, Belgium showed that in the event of the
execution of the arrest warrant by a third State, the infringement of criminal immunity
– supposing that it exists in this case, quod non – would have been the act of that State
and not of Belgium.298 The DRC recognises that the execution of the arrest warrant
by a third State would entail the responsibility of that State, but this would not exempt
Belgium from its responsibility in the illicit act of transmitting the warrant:
“Le comportement de ces autorités tierces ne serait en effet jamais
que la suite logique de la délivrance du mandat d’arrêt, que la

297 DRC Memorial, at paragraphs 49-51, 54, 61.
298 CR 2000/33, 21 November 2000, at paragraphs 36-40.
Part III, Chapter Five: Merits
129
Belgique sollicite par la diffusion internationale qui en est faite. En
d’autres termes, le mandat d’arrêt du 11 avril 2000 demeure en toute
hypothèse la cause du fait illicite complémentaire et distinct que
réaliserait un Etat tiers par la collaboration que pourrait [sic]
apporter certains de ses organes et agents à l’exécution de ce mandat
d’arrêt […].”299
3.5.4 This extract shows that the DRC recognises that any collaboration of a third
State in the execution of the arrest warrant would allegedly embody an infringement
of international law in its own right by that State. This confirms what Belgium said in
the provisional measures phase concerning the accountability of a third State for its
participation in the execution of the arrest warrant. By executing the arrest warrant,
the third State would engage its own responsibility if, as the DRC claims, the
execution of the warrant is an infringement of international law.
3.5.5 The DRC adds that no third State has acted on the arrest warrant and that this
shows the existence of a custom sanctioning the absolute criminal immunity of a high
foreign representative:
“Aucun Etat n’ayant à ce jour donné suite à ce mandat d’arrêt, il ne
faut pas s’interroger plus avant sur la responsabilité spécifique qui
pourrait en résulter dans le chef de l’Etat qui l’exécute, ni sur la
manière dont elle devrait s’articuler par rapport à celle, en quelque
sorte originaire, de l’Etat belge. Le fait qu’aucun Etat n’a à ce jour
donné suite au mandat d’arrêt du 11 avril 2000 est toutefois le signe
de l’opinio juris dominante suivant laquelle tout ministre des
Affaires étrangères en exercice bénéficie d’une inviolabilité et d’une
immunité pénale absolues, ainsi qu’il fut rappelé ci-avant”300
3.5.6 Belgium will refrain from discussing here the opinio juris argument
belonging to the substance of the case, to which Belgium will come back later. At

299 “The behaviour of the authorities of third States would in fact only be a logical follow-up of the
issue of the arrest warrant that Belgium has solicited by the international transmission it enacted. In
other words, the arrest warrant of 11 April 2000 remains, in all cases, the cause of the complementary
and separate illicit act that a third State might effect by the collaboration of some of its authorities and
agents in the execution of the arrest warrant ...” DRC Memorial, at paragraph 55 (unofficial translation
provided by Belgium).
300 “As no State has to date enforced this arrest warrant, there is no need to go further into the specific
responsibility that might result for the State that enforces it, nor on the way that responsibility would be
interconnected with that of the Belgian State which is the originating authority so to speak. The fact
that no State has to date enforced the arrest warrant of 11 April 2000 is, however, a sign of the
dominant opinio juris maintaining that any Minister of Foreign Affairs in office benefits from complete
Part III, Chapter Five: Merits
130
this point, it is enough to observe the following. If no third State has acted on the
arrest warrant, and if this refusal to take action were the expression of a dominant
opinio juris, as the DRC affirms, then it is hard to see what the DRC is complaining
about, since, in its opinion, Mr Yerodia Ndombasi’s criminal immunity is recognised
by third States. The DRC’s argument is in contradiction with what it maintains
elsewhere:
“[…] la diffusion internationale du mandat d’arrêt fait
automatiquement échapper au contrôle des autorités belges
l’exécution de celui-ci. […] l’entrave au libre exercice des fonctions
internationales que constitue la crainte d’une arrestation demeure
entière hors de la Belgique […].”301
3.5.7 However, the DRC’s fears are vain since the third States would not have
acted on the arrest warrant, and under these circumstances, the DRC’s petition to have
Belgium condemned for the extraterritorial effects of the arrest warrant and the
alleged infringement of Mr Yerodia Ndombasi’s criminal immunity not only no
longer serve any purpose, but in fact never did. It would suffice, indeed, for Mr
Yerodia Ndombasi to refrain from coming to Belgium given that, as the DRC affirms,
no State has to date enforced the arrest warrant of 11 April 2000. The DRC’s petition
thus has no practical scope and the complaint of the alleged infringement of Mr
Yerodia Ndombasi’s immunity becomes moot.
3.5.8 On this point, the DRC thus agrees with Belgium. If a State had executed the
arrest warrant, it might infringe Mr Yerodia Ndombasi’s criminal immunity – quod
non as we will see hereinafter – but in any case, the party directly responsible for that
infringement would have been that State and not Belgium. Since Mr Yerodia
Ndombasi was never arrested anywhere and since, according to the DRC, no State is
prepared to carry out the warrant, any attempt to understand the scope of this petition
is fruitless.

inviolability and immunity, as recalled above.” DRC Memorial, at paragraph 55 (unofficial translation
provided by Belgium).
301
“... international transmission of the arrest warrant automatically takes the execution of the warrant
out of the hands of the Belgian authorities ... [T]he obstacle to free exercise of the Minister’s
international functions that the fear of arrest it constitutes is still entirely applicable outside of Belgium
..." DRC Memorial, at paragraph 54 (unofficial translation provided by Belgium).
Part III, Chapter Five: Merits
131
B. As a subsidiary argument, the DRC’s petition concerning the immunity of
Mr Yerodia Ndombasi is groundless
3.5.9 If the Court were to consider that the DRC’s petition is admissible as
concerns its argumentation, Belgium will demonstrate in the following pages the legal
justification of the refusal of immunity to persons suspected of having committed
grave breaches of international humanitarian law and will answer the DRC’s
arguments that deal directly with this (I). It will thereafter turn to address the other
arguments presented by the DRC in favour of absolute immunity of the members of
foreign governments in power (II).
I. Foundation for the refusal of immunity to persons suspected of serious
crimes of international humanitarian law
3.5.10 Article 5(3) of the Law of 1993/1999 provides:
“L’immunité attachée à la qualité officielle d’une personne
n’empêche pas l’application de la présente loi.”302
3.5.11 The explanatory statement to this amendment to the Law of 1993 introduced
by the Law of 1999 states that the amendment:
“introduit explicitement une règle établie de droit international
humanitaire, rappelée récemment de façon absolue à l’art. 27 du
Statut de Rome.”303
3.5.12 Further on, the government indicates that this amendment
“vise à confirmer explicitement la règle de la non-pertinence des
immunités de juridiction et d’exécution dans le cadre de

302 “The immunity associated with the official capacity of the person does not prevent the application of
this law.” (Unofficial translation) (Annex 4)
303 “explicitly introduces a rule established in international humanitarian law, recalled recently in an
absolute way by Article 27 of the Rome Statute.” Documents parlementaires, Senat, 1998-1999, n° 1 –
749/3, at p.14 (unofficial translation by Belgium). (Annex 12)
Part III, Chapter Five: Merits
132
l’application de la loi, mais cette règle existe déjà en droit
international, qui fait partie intégrante de l’ordre juridique belge.”304
3.5.13 In other words, when the Belgian government introduced this amendment, it
did so with the conviction of acting in perfect compliance with international law. In
fact, international sources are not lacking to show that the head of State or a member
of his government does not benefit from immunity when accused of having
committed crimes under international humanitarian law.
3.5.14 There are many such sources – conventional (a), national (b), juridical (c),
and the writings of publicists (d). Each will be examined in turn. Belgium begs the
Court to excuse the long list of texts which will follow, but the assertion that
immunity of members of foreign governments is absolute and without exception
obliges Belgium to explain why it holds another standpoint.
(a) Conventional sources excluding the immunity of alleged perpetrators of a
serious crimes of international humanitarian law
3.5.15 Belgium will present here not only the text of conventions stricto sensu but
also the texts of secondary legislation (resolutions of United Nations bodies) and of
international agreements that can be assimilated to treaties according to Article 2 (a)
of the Vienna Convention on the Law of Treaties.

304 “aims to explicitly confirm the rule of non-pertinence of immunity of jurisdiction and execution in
the context of the application of the law, but this rule already exists in international law, which is an
integral part of the Belgian judicial order.” Ibid., at p.21(unofficial translation by Belgium).
Part III, Chapter Five: Merits
133
(i) The Treaty of Versailles of 1919
3.5.16 Implicitly, the Treaty of Versailles of 28 June 1919, by Article 227, excluded
immunity of the Emperor of Germany by prosecuting him before a special
international tribunal “for supreme offence against the international morality and
sanctity of Treaties”.
3.5.17 The preparatory work for this provision shows that the States were perfectly
aware of the fact they were excluding immunity normally recognised for foreign
sovereigns. Yet the United States was strongly opposed to this idea. In its opinion,
William II could not be judged “en raison de l’immunité de mise en accusation et de
poursuites dont jouit un monarque chef d’Etat, selon le droit public de tous les pays
civilisés et selon le droit commun des nations”.305 To this position, which the United
States maintained throughout the entire work done on criminal liability, Great Britain
answered vigorously that immunity should not be considered “comme un fait acqui”
(“as an acquired fact”), that Heads of State are not “au-dessus de la loi quand ils
commettent un acte criminel” (“above the law when they commit a criminal act”), and
that one can “les traduire en justice.” (“bring them to justice”) 306
3.5.18 France went further by observing that the acts charged against the Emperor
of Germany:
“sont de nature telle qu’ils mettent celui qui les a déchaînés sous la
règle directe du droit international. Lorsque le droit international
proclame que tel ou tel acte est répréhensible, il s’adresse à tout le
monde et non pas seulement à de malheureux petits soldats, à des
chefs plus ou moins élevés dans la hiérarchie, mais à tous ceux qui
prennent part aux hostilités, et il n’y a personne qui soit en dehors
de ces règles: l’Empereur lui-même, le chef le plus élevé de
l’Empire ne peut pas éviter la responsabilité qui pèse sur lui.”
307

305 “due to the immunity from accusation and prosecution enjoyed by a monarch head of State,
according to the public law of all civilized countries and according to the common law of nations.” La
paix de Versailles, in La documentation internationale, Paris, 1930, éd. Internat, v.III, p. 332 (unofficial
translation by Belgium) (Annex 33)
306 Ibid; see also see p.440 (unofficial translation by Belgium). (Annex 33)
307 “are such that they put the one who unleashed them directly under the rule of international law.
When international law proclaims that a given act is reprehensible, this is addressed to everyone and
not just to unfortunate little soldiers, to leaders higher or lower in the hierarchy, but to all those who
take part in the hostilities, and there is no one to whom these rules do not apply: the Emperor himself,
Part III, Chapter Five: Merits
134
3.5.19 It is interesting to note that in these declarations, the refusal of immunity
was based not on the international nature of the court charged with judging William II
– the solution finally adopted – but on the internationally criminal nature of the acts
that were charged against him. The American position remained isolated. None of
the other States taking part in the deliberations of the Treaty of Versailles (Belgium,
Greece, Japan, Poland, Romania, Serbia) supported it.
3.5.20 William II’s trial never took place. The Netherlands, which was not a Party
to the Treaty of Versailles, refused to hand over William II to the Allied and
Associated Powers on grounds of the political nature of the acts alleged against
him.308 While the Treaty of Versailles implicitly excluded the immunity of the
German Head of State and that the acts charged against him were Acts of State,309 it is
significant that the Netherlands, although not a Party to this treaty, did not challenge
this point since they did not refer to the immunity of the former Head of State to reject
the request for extradition.310
(ii) The Statutes of international criminal jurisdictions
3.5.21 The Statutes of international criminal jurisdictions all exclude immunity of
the members of governments accused of crimes against peace, war crimes, crimes
against humanity or the crime of genocide. For example, Article 7 of the Charter of
the International Military Tribunal of Nuremberg, annexed to the London Agreement
of 8 August 1945, provides:
“The official position of defendants, whether as Heads of State or
responsible officials in Government Departments, shall not be

the highest leader of the Empire, cannot avoid the liability that weighs on him.” Ibid , at p.336
(unofficial translation by Belgium).
308 The DRC affirms that the extradition of William II “ne fut jamais formellement requise par les
puissances alliées”, (“was never formally requested by the Allied powers”) DRC Memorial, p. 25, fn 2.
Please see Kiss, A.C., however, who writes: “Conformément aux dispositions du traité, les puissances
alliées et associées ont adressé ‘au Gouvernement des Pays-Bas une requête le priant de livrer l’ancien
empereur entre leurs mains pour qu’il soit jugé’. (“In conformity with the Treaty’s provisions, the
Allied and Associated powers sent ‘a request to the Government of the Netherlands asking it to hand
over the ex-emperor in order to judge him’.”) see Kiss, A.C., Répertoire de la pratique française du
droit international public, Paris, CNRS, 1966, v.II, n°1126.
309 Lombois, C., Droit pénal international, Paris, Thémis, 1979, p.110, at paragraph 105.
310 Kiss, op. cit., fn. 2.
Part III, Chapter Five: Merits
135
considered as freeing them from responsibility or mitigating
punishment.”311
3.5.22 In his report to the President of the United States, Justice Jackson referred to
“the obsolete doctrine that a head of State is immune from legal liability”. He then
continued:
“There is more than a suspicion that this idea is a relic of the
doctrine of the divine right of kings. It is, in any event, inconsistent
with the position we take toward our own officials, who are
frequently brought to court at the suit of citizens who allege their
rights to have been invaded. We do not accept the paradox that
legal responsibility should be the least where power is the greatest.
We stand on the principle of responsible government declared some
three centuries ago to King James by Lord Chief Justice Coke, who
proclaimed that even a King is still ‘under God and the law’.
With the doctrine of immunity of a head of state usually is coupled
another, that orders from an official superior protect one who obeys
them. It will be noticed that the combination of these two doctrines
means that nobody is responsible. Society as modernly organised
cannot tolerate so broad an area of official irresponsibility.”312
3.5.23 Article 6 of the Charter of the International Military Tribunal for the Far
East, approved on 19 January 1946 by the Supreme Commander of the Allied Forces
in the Far East, addresses the issue in similar terms:
“Neither the official position, at any time, of an accused, nor the fact
that an accused acted pursuant to order of his government or of a
superior shall, of itself, be sufficient to free such accused from
responsibility for any crime with which he is charged, but such
circumstances may be considered in mitigation of punishment if the
Tribunal determines that justice so requires.”313
3.5.24 Other, more recent instruments, which address the issue in similar terms
include:

311 Supplementary Annex 88.
312 Report to the President by Mr. Justice Jackson, 6 June 1945, in Jackson, J. R., International
Conference on Military Trials, London 1945, Washington, 1949, pp.46-47.
313 Supplementary Annex 89
Part III, Chapter Five: Merits
136
· Article 7(2) of the Statute of the International Tribunal for the former
Yugoslavia:
“The official position of any accused person, whether as head
of State or Government or as a responsible Government
official, shall not relieve such person of criminal responsibility
nor mitigate punishment.”314
· Article 6(2) of the Statute of the International Tribunal for Rwanda:
“The official position of any accused person, whether as head
of State or Government or as a responsible Government
official, shall not relieve such person of criminal responsibility
nor mitigate punishment.”315
· Article 27 of the ICC Statute of 17 July 1998:316
“1. This Statute shall apply equally to all persons without any
distinction based on official capacity. In particular, official
capacity as a head of State or Government, a member of a
Government or parliament, an elected representative or a
government official shall in no case exempt a person from
criminal responsibility under this Statute, nor shall it, in and of
itself, constitute a ground for reduction of sentence.
2. Immunities or special procedural rules which may attach to
the official capacity of a person, whether under national or
international law, shall not bar the Court from exercising its
jurisdiction over such a person.”317
3.5.25 The DRC considers that these instruments are not significant in the present
context as:
· international criminal jurisdictions enjoy jurisdiction which are not
transposable to national courts – "… les personnes jugées par ces tribunaux
avaient cessé, à ce moment, d'exercer leurs fonctions officielles" ;
318

314 S/RES/827, 25 May 1993. (Supplementary Annex 90)
315 S/RES/955, 8 November 1994. (Supplementary Annex 91)
316 Ratified by Belgium on 23 June 2000; signed by the DRC on 8 September 2000.
317 (Supplementary Annex 92)
318 “... the persons judged by these courts had ceased, at the time, to exercise their official functions”
DRC Memorial, at paragraphs 42 and 67 (unofficial translation by Belgian).
Part III, Chapter Five: Merits
137
· the ICC Statute is said to concern only States party to it and the text of
certain of its provisions confirms that it does not authorise a State to infringe
on the principle of immunity of Heads of State and members of foreign
governments.319
These arguments will be considered in turn.
3.5.26 Claiming that the national courts of a State cannot invoke the international
rules provided for an international criminal court is a postulate. These rules are a part
of practice. As from the time this practice appears to be an expression of custom,
nothing prevents national courts from invoking them, as the DRC remarks itself from
a general point of view, when it deals with the place of international custom in
Belgian law.320 However, as will be seen further, the exclusion of immunity of
persons accused of the most serious violations of international humanitarian law, is
among the “principles of Nuremberg” drawn by the ICL and by the General Assembly
of the United Nations. It consequently corresponds to the opinio juris of States.
3.5.27 In addition, if it were to be established that no immunity could be invoked
before an international criminal court, it would not be necessary to say so. The fact
that it was nevertheless stated therefore has a meaning which goes beyond the narrow
context of the international criminal court to cover that of all criminal jurisdictions,
both international and national. This is a way to affirm that for certain abominations
no immunity can come into play.
3.5.28 The argument based on the fact that the defendants cited before international
criminal courts did not in any case exercise official functions at the time of the trial, is
not significant.
3.5.29 If the defendants had lost all official capacity at the time they appeared
before the international military tribunals, again it was unnecessary to stipulate in the
statutes that immunity could not constitute an argument of defence. By so saying, the
States indicated that immunity which normally continues for actions associated with

319 DRC Memorial, at paragraph 42.
Part III, Chapter Five: Merits
138
the office – in casu, the crimes in question had in fact been committed in the context
of the duties of the defendants – was not admissible for such crimes. The fact that
these were international tribunals and not national courts does not decrease the
interest of these precedents because the argument of immunity was not rejected on the
basis of the international nature of these courts, but simply due to the horror of the
crimes in question. If the horror of the crime justifies the exclusion of immunity, it
matters little whether the question arises before an international court or a national
court. Before both, the same cause should produce the same effects.
3.5.30 The DRC’s argument, moreover, confirms Belgium’s current position. If the
cessation of official duties is what justifies that the person holding them can be
brought to court, the DRC then recognises that nothing opposes the prosecution of
Mr Yerodia Ndombasi today.
3.5.31 With respect to the ICC Statute, it is true that it concerns persons who are
nationals of the States party to the Statute or nationals who have committed crimes in
the territory of those States and that the exclusion of immunity is applicable in the
mutual relations of the States Party to the Statute. Even limited to the States Party to
the Statute (and to States which have accepted the competence of the ICC without
having ratified the Statute Article 12 § 2 and without prejudice to the hypothesis that
all United Nations Member States are bound by the rule when the ICC is referred to
directly by the Security Council, as per Article 13 of the Statute), the rule nevertheless
proves that the seriousness of some acts excludes the application of any immunity for
their perpetrator.
3.5.32 The fact that the rule is set down in the Statute of an international court does
not mean that it does not concern national courts, and this is true for several reasons.
(1) if it is true that the terms of Article 27(2) seem to be limited to the ICC
alone,321 conversely, Article 27(1) has a very general field of application;

320 DRC Memorial, at paragraphs 25-26, 70.
321 DRC Memorial, at paragraph 70.
Part III, Chapter Five: Merits
139
(2) Article 27 must, in addition, be read taking into account the entire Statute,
and particularly paragraphs 4 to 6 of the Preamble which require all States to
prosecute the crimes listed in the Statute. Thus, as the DRC itself stated, the
existence of a standard imposing the exercise of universal jurisdiction has
precedence over the rule of immunity;322
(3) if the immunity of the members of foreign governments were not removed
for the prosecution of the crimes set down in the Statute, the principle of
complementarity would be unnecessary in most cases. Insofar as the
jurisdiction of the ICC is limited to “the most serious crimes” (Article 1) and
presenting a certain magnitude (Article 6, 7(1) and 8(1)), these crimes
consequently are mostly imputable to the highest State authorities. If these
authorities could argue the immunity traditionally recognised for the
members of foreign governments, they would only be subject to prosecution
in their State of origin and the subsidiary role of the Court would be effective
only under this hypothesis. Conversely, the other States could never
prosecute these crimes and the role of the Court, rather than being
complementary, would become principal – which does not correspond to the
intention of the authors of the Statute;
(4) the Venice Commission – an expert advisory body established by the
Committee of Ministers of the Council of Europe on 10 May 1990323
–
meeting in its 45th plenary session in Venice on 15–16 December 2000,
observed as follows:
"States may provide in their national law that the national
courts shall be competent to try a leader who has committed
crimes within the jurisdiction of the International Criminal
Court. This is possible because of the Statute is based on the
principle of complementarity, but whatever solution is
adopted, perpetrators of such crimes cannot plead
immunity"324

322 See paragraph 3.5.23 above.
323 Resolution 909(6); see www.venice.coe.int/site/iterfact/english.htm. See also Article 3 of the
Statute of the Commission.
324 Report on Constitutional Issues Raised by the Ratification of the Rome Statute of the ICC, note 13
(Annex 34)
Part III, Chapter Five: Merits
140
3.5.33 For these reasons, Article 27 of the ICC Statute shows that the immunity of
the members of foreign governments cannot be an obstacle to criminal prosecution for
crimes listed in the Statute, before whichever court the case may be brought.
3.5.34 The DRC further maintains that Article 98(1) of the Statute justifies
recognition of immunity of the alleged perpetrator of the crimes listed in the Statute
despite the very clear terms of Article 27.325 The argument is weak. Article 98(1),
entitled “Cooperation with respect to waiver of immunity and consent to surrender”,
is found in Chapter IX of the Statute which concerns international cooperation and
judicial assistance. It can only concern persons not accused of crimes listed in the
Statute. If the person in question is charged with one of these crimes, Article 27
should apply. In addition, by specifying that the petitioned State cannot act in a way
incompatible with the international obligations incumbent on it with regard to
immunity, Article 98(1) clearly lets it be understood that the petitioned State does not
infringe these obligations if it remits to the Court a person accused of the crimes
provided for by the Statute since international law, in general, and Article 27, in
particular, excludes immunity in such a case. This is the only way to reconcile the
meaning of the two provisions and to maintain their effectiveness.326
3.5.35 Literature confirms that Article 98 is in no way intended to reduce the scope
of Article 27. For example, K. Prost and A. Schlunck comment as follows:
“[Article 98] does not accord an immunity from prosecution to
individuals, which the Court may seek to prosecute. Article 27
makes it clear that no such immunity is available. This particular
article does not reduce the effect of Article 27 in any way. A person
sought for arrest for prosecution by the Court cannot claim an
immunity based on official capacity nor does such capacity effect
the jurisdiction of the Court over the person.”327

325 DRC Memorial, at paragraph 70.
326 See Maritime delimitation and territorial questions between Qatar and Bahrain, ICJ Reports 1995,
p.19.
327 In O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, Baden
Baden, Nomos, 1999, p.1132. (Annex 35)
Part III, Chapter Five: Merits
141
3.5.36 On the hypothesis that Article 98(1) concerns a State not Party to the ICC
Statute, the same reasoning applies. Once international customary law as it is
disclosed in the many sources listed in this chapter – among others paragraphs 4–6 of
the Preamble of the ICC Statute of the ICC328
– excludes the immunity of persons
accused of crimes provided for under the Statute, the State petitioned to co-operate
with the ICC or with a State Party to the Statute that does not take account of the
immunity of the alleged perpetrator of such a crime, does not act in a way
incompatible with its international obligations. The contrary in fact is true. That
State is only fulfilling its international obligations to co-operate with the punishment
of the acts for which the person in question is accused.
3.5.37 Generally speaking, the distinction between States party to the Statute, States
having accepted the jurisdiction of the ICC, and States not Party to the Statute has
only a limited scope since the Security Council, acting in virtue of Chapter VII of the
Charter, can defer “a situation in which one or more of such crimes appear to have
been committed” to the Prosecutor (Statute, Article 13(b)).329 In this case, any United
Nations Member State would be concerned, whether it is or is not party to the Statute.
To meet this situation, it is logical to exclude, in general terms, the criminal immunity
of high foreign representatives for crimes referred to by the ICC Statute.
3.5.38 It is true that the Belgian law goes further to the extent that it also applies
outside of the hypothesis mentioned above. But this is in compliance with
international law as a whole as it appears in the sources cited in this CounterMemorial.
(iii) Law No. 10 of the Allied Control Authority
3.5.39 On 20 December 1945, the Allied Control Authority that administrated
Germany adopted Law No.10 on the punishment of persons guilty of war crimes,
crimes against peace and crimes against humanity. Although in this case the text was
called a “law”, it is similar to an international agreement since that “law” was adopted
by an agreement of the four Powers administrating Germany at the end of the Second

328 See paragraph 3.5.32 above.
Part III, Chapter Five: Merits
142
World War. Article (4) provides, in terms that are more or less the same as the
Statutes of the international criminal courts referred to above, as follows:
“The official position of any person, whether as head of State or as a
responsible official in a Government Department, does not free him
from responsibility for a crime or entitle him to mitigation of
punishment.”330
3.5.40 It is observed that this text applied both to prosecution before national
courts, those being German courts,331 and before foreign courts established in
Germany. According to the Preamble of this text, the idea was to establish a uniform
legal basis to prosecute war criminals in Germany:
“In order to give effect to the terms of the Moscow Declaration of
30 October 1943 and the London Agreement of 8 August 1945, and
the Charter issued pursuant thereto and in order to establish a
uniform legal basis in Germany for the prosecution of war criminals
and other similar offenders, other than those dealt with by the
International Military Tribunal, the Control Council enacts as
follows …”332
3.5.41 The fact that the rule provided for the international criminal courts has been
included for its application in the national legal order of a State by the occupying
Powers proves that, contrary to what is affirmed by the DRC, the rule is indifferent to
the international or national nature of the courts that apply it; the seriousness of the
act justifying its application is all that counts. The DRC did not refer to this text.
(iv) Convention on the Prevention and Punishment of the crime of Genocide
3.5.42 Article 4 of the Convention on Genocide of 9 December 1948 provides:333
“Persons committing genocide or any of the other acts enumerated
in Article 3 shall be punished, whether they are constitutionally
responsible rulers, public officials or private individuals.”334

329 Supplementary Annex 92.
330 Text in Bassiouni, C., International Criminal Law, New York, Dovvs Ferry, 1987, III, at p.130.
(Annex 36)
331 Lombois C., Droit pénal international, Paris, Thémis, 1979, p.145 at paragraph 137.
332 Bassiouni, op. cit., III, at p.130. (Annex 36)
333 Ratified by Belgium and the DRC, respectively on 6 December 1951 and 31 May 1962 (by
succession)
Part III, Chapter Five: Merits
143
3.5.43 This provision clearly leads to the exclusion of immunity of persons who are
normally found to benefit from it qualitate sua. Like Law No.10, this provision is
meant to apply in the internal legal order of the States Party to the Convention. It
again confirms that the rule of exclusion of immunity for perpetrators of war crimes,
crimes against humanity and the crime of genocide applies, independently of the
question as to whether a national or an international court is applying it.
3.5.44 Only one State – the Philippines – expressed reservations about this
article.335 However, even here, three other States – Australia, Brazil and Norway –
objected to these reservations.336
3.5.45 The DRC Memorial did not discuss Article 4 of the Convention of 1948
although it was among those quoted by Belgium in the provisional measures phase.337
(v) Resolutions of the U.N. organs
3.5.46 Already on 11 December 1946, the U.N. General Assembly adopted
Resolution 95 (I) in which it set down the principles derived from the Statute and the
Judgment of the Nuremberg International Military Tribunal (“IMT”). The Assembly,
by this Resolution,
“confirm[ed] the principles of international law recognised by the
Statute of the Nuremberg Tribunal and by the judgment of that
Court.”338
3.5.47 Among these principles appears the exclusion of immunity of agents of the
State, whatever their rank in the State hierarchy, for crimes against peace, war crimes
or crimes against humanity, as is set down in both the Statute of the Nuremberg
IMT339 and in the Tribunal’s Judgment.340 As we know, these principles were

334 Supplementary Annex 87.
335 See Traités multilatéraux deposés auprès du Secrétaire general, Etat au 31 déc. 1999, I, UN Doc.
ST/LEG/SER.E/18, p. 98.
336 Ibid., pp.99-100
337 CR 2000/33, 21 November 2000, p.22.
338 Supplementary Annex 93.
339 See paragraph 3.5.21 above.
340 See paragraph 3.5.61 below.
Part III, Chapter Five: Merits
144
subsequently codified in 1950 by the International Law Commission341 which
affirmed in Principle III:
“The fact that a person who committed an act which constitutes a
crime under international law acted as a head of State or responsible
Government official does not relieve him from responsibility under
international law.”342
3.5.48 These principles were discussed again by the Sixth Committee of the UN
General Assembly which unanimously adopted certain paragraphs of the Preamble of
what was to become Resolution 488 (V) of 12 December 1950 (“Formulation of the
Nuremberg principles”), and notably the second paragraph which recalls that:
“the G.A. by its Res. 95 (I) of 11 December 1946, unanimously
confirmed the principles of international law recognised by the
Statute of the Nuremberg Tribunal and by the judgment of that
tribunal”.343
3.5.49 As concerns Principle III more specifically,344 the representative of Belgium
observed at the time that this
“was based on a supremely just idea that the person who was the
head of state should be the first to bear the responsibility and to
suffer the penalty to which he was liable under international law in
order to ensure that war criminals would receive their just
punishment.”345
3.5.50 The DRC Memorial did not discuss the deliberations of the U.N. General
Assembly.
3.5.51 On 24 May 1989, the U.N. Economic and Social Council adopted the
“Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and
Summary Executions”. Principle 19 of this text provides:

341 See paragraph 3.5.105 below.
342 Supplementary Annex 95.
343 239th Meeting of the 6th Committee of the UN General Assembly, 5th Session, at paragraph 43.
344 See paragraph 3.5.47 above.
345 Ibid., 235th Session, 8 Nov. 1950, at paragraph 44. (Annex 37)
Part III, Chapter Five: Merits
145
“In no circumstances, including a state of war, siege or other public
emergency, shall blanket immunity from prosecution be granted to
any person allegedly involved in extra-legal, arbitrary or summary
executions.”346
3.5.52 In its Resolution 44/159 of 15 December 1989, the U.N. General Assembly
welcomed with satisfaction these Principles.
347
3.5.53 The DRC Memorial does not discuss these texts although they were
produced by Belgium in the proceedings on a request for provisional measures.
3.5.54 On 14 October 1994, the Chairman of the Security Council declared in its
name:
“The Council reaffirms that all those responsible for grave breaches
of international humanitarian law and acts of genocide must be
brought to justice. It underlines that the persons who participated in
such acts "cannot achieve immunity from prosecution" by fleeing
the country [ ...]. In this context, the Council is currently examining
the recommendations of the Commission of experts on the creation
of an international court and it intends to make haste on this
question.”348
3.5.55 For Morris and Scharf, this declaration is an illustration of the rule that
criminal immunity is incompatible with the obligation to prosecute perpetrators of
serious crimes under international humanitarian law.349
(b) National sources excluding the immunity of alleged perpetrators of serious
crimes of international humanitarian law
3.5.56 National laws that exclude the immunity of leaders who have committed
crimes against international humanitarian law are scarce, although they exist and have
not been challenged. Thus, following the Second World War, Article VIII of the
Chinese Law of 24 October 1946 provided that the following circumstances:

346 Supplementary Annex 93.
347 Ibid.
348 S/PRST/1994/59, 14 October 1994. (Annex 38)
349 The International Criminal Tribunal for Rwanda, Irvington-on-Hudson, New York, Transnational
Publications, 1998, p.289; see paragraph 3.5.131 above. (Annex 39)
Part III, Chapter Five: Merits
146
“… do not in themselves relieve the perpetrator from penal liability
for war crimes:
…
(2) that crimes were committed as a result of official duty;
(3) that crimes were committed in pursuance of the policy of the
offender’s government;
…”350
3.5.57 Similarly, Article II(4) of the Luxembourg Law of 2 August 1947 provides:
“In no instances can the application of the laws mentioned in Article
1 be set aside under the pretext that the authors or co-authors of, or
the accomplices in, the offences acted in the capacity of an official,
a soldier or an agent in the service of the enemy …”351
3.5.58 The Council of Europe's Steering Committee for Human Rights asked its
members about certain paragraphs of Recommendation 1327 (1997) adopted by the
Parliamentary Assembly of the Council of Europe. For the public international law
service of the Swiss Federal Department for Foreign Affairs, the punishment of
“grave breaches of human rights”, “being of an imperative nature”, must prevail over
the immunity of Article 31 of the Vienna Convention of 1961.352 Switzerland
observed that in the Golder case, the European Court of Human Rights stated that
Article 6 of the European Convention on Human Rights did not affect the system of
diplomatic immunity, but added:
“Ce respect du principe de l’immunité diplomatique ne doit
cependant pas conduire à vider l’art. 6 CEDH de son contenu [réf.
omise]. Ainsi, l’on pourrait admettre qu’un agent diplomatique soit
actionné pénalement devant un tribunal suisse malgré son immunité
de juridiction pénale, à la condition que la victime ne soit pas en
mesure d’obtenir la levée de l’immunité de cet agent et que
l’accusation porte sur une violation grave des droits de l’homme.”353

350 Text in Law Reports of Trials of War Criminals, London, 1949, XIV, p.157 and 1950, XV, at p.161.
(Annex 40)
351 Ibid. (Annex 40)
352 Caflisch, L., "La pratique suisse en matière de droit international public 1998", RSDIE, 1999, p.689.
(Annex 41)
353 “Compliance with the principle of diplomatic immunity must not, however, result in the annulment
of the content of Article 6 ECHR. Thus, one can admit that a diplomatic agent can be brought before a
Swiss criminal court despite his criminal immunity, subject to the condition that the victim is not in a
Part III, Chapter Five: Merits
147
3.5.59 Further to an investigation by the Council of Europe on the implementation
of the ICC Statute in national law, certain States have, incidentally, affirmed that the
rule of immunity of the Head of State does not apply in the case of grave crimes such
as those for which the ICC is competent. Thus, the following is statement was made
in a declaration of the Norwegian Government to the Storting (Parliament) on the
ratification of the ICC Statute:
“L’évolution du droit tend elle aussi à faire que les chefs d’Etat ne
peuvent plus bénéficier de l’immunité pour les crimes les plus
graves.”
354
3.5.60 Poland stated in the same Council of Europe study:
“responsibility of state officials under international law, regardless
of their office and function (including crimes covered by the
jurisdiction of the Court) constitutes a clearly binding norm of the
customary international law as formed on the basis of the
Nuremberg rules and subsequent international practice (the Pinochet
case).”355
(c) International jurisprudence addressing the immunity of alleged perpetrators
of serious crimes of international humanitarian law
3.5.61 International case-law clearly affirms the principle of exclusion of the
immunity of the agent of a foreign State for crimes in international humanitarian law.
Thus, the Nuremberg IMT declared:
“The principle of international law, which under certain
circumstances protects the representative of a State, cannot apply to
acts condemned as crimes by international law. The perpetrators of
these acts cannot refer to their official capacity to escape the normal
procedure or to protect themselves from punishment.”356
3.5.62 This passage is important from two standpoints:

position to obtain relief of immunity of the agent and that the accusation deals with a grave breach of
human rights." Ibid., at pp.689-690 (unofficial translation by Belgium).
354 “Evolution of law also tends to make it so that heads of State can no longer benefit from immunity
for the most serious crimes” Proposition n° 24 (1999-2000) to the Storting (unofficial translation by
Belgium). (Annex 42)
355 Progress Report by Poland, 7 August 2001, Consult/ICC (2001) 22, at p.4. (Annex 43)
Part III, Chapter Five: Merits
148
· it is entirely general and takes no account of whether the acts in question are
judged by an international or national court;
· whereas Article 7 of the Statute of the Nuremberg IMT (like the
corresponding provisions of other international criminal tribunals),
considered literally, seems only to disregard the official capacity of the
accused as grounds for excuse or justification with regard to the substance of
the question, and not as a procedural exception, the extract quoted above
from the Judgment of the Tribunal clearly shows that immunity is
disregarded both as a procedural exception – “[t]he perpetrators of such acts
cannot refer to their official capacity to escape the normal procedure” – and
as a possible excuse or justification – “[t]he authors of these acts cannot
invoke their official capacity to ... protect themselves from punishment”
(emphasis added).
3.5.63 The DRC recognises that the official capacity of the accused is not grounds
for exemption from criminal liability or for a reduction of sentence,357 but denies that
the criminal violation of international humanitarian law that is imputed to the accused
can justify an exception to his criminal immunity. The extract of the Judgment of the
Nuremberg Tribunal quoted above answers this objection very clearly. The DRC
refrained from discussing this, although this extract was also among those quoted by
Belgium in the phase on provisional measures.358
3.5.64 The Tokyo IMT confirmed the principles established by the Nuremberg
IMT. Among the exceptions raised by the Japanese defendants, one of them stated:
“War is the act of a nation for which there is no individual
responsibility under international law.”359

356 Judgments of 30 Sept. and 1 Oct. 1946, Off. Doc., v. I, p.235, (Annex 94).
357 DRC Memorial, at paragraphs 59-60.
358 CR 2000/33, 21 November 2000, at p.22.
359 Text in Röling and Ruter (ed.), The Toyko Judgement, Amstedam University Press, 1977, vol. I, at
p.27 (p. 24 of the original text). (Annex 44)
Part III, Chapter Five: Merits
149
3.5.65 In dismissing the argument, the Tribunal recalled and approved various parts
of the Nuremberg Judgment, notably the extract quoted above.360 The Tribunal
declared:
“With the foregoing opinions of the Nuremberg Tribunal and the
reasoning by which they are reached this Tribunal is in complete
accord. They embody complete answers to the first four of the
grounds urged by the defence as set forth above. In view of the fact
that in all material respects the Charters of this Tribunal and the
Nuremberg Tribunal are identical, this Tribunal prefers to express
its unqualified adherence to the relevant opinions of the Nuremberg
Tribunal rather than by reasoning the matters anew in somewhat
different language to open the door to controversy by way of
conflicting interpretations of the two statements of opinions.”361
3.5.66 Thus the Tribunal rejected the exception founded on the diplomatic capacity
of General Oshima, Ambassador of Japan to Berlin from 1939 to 1945, who was
among the defendants:
“Oshima's special defence is that in connection with his activities in
Germany he is protected by diplomatic immunity and is exempt
from prosecution. Diplomatic privilege does not import immunity
from legal liability, but only exemption from trial by the Courts of
the State to which an Ambassador is accredited. In any event, this
immunity has no relation to crimes against international law charged
before a tribunal having jurisdiction. The Tribunal rejects this
special defence.”362
3.5.67 The case-law of the ICTY comes to similar conclusions. For example in the
Furundzija case, a Chamber of the ICTY concluded:
“Individuals are personally responsible, whatever their official
position, even if they are heads of State or government ministers”.363
3.5.68 It went on to add that the provisions of the ICTY Statute which exclude the
immunity of State agents “are indisputably declaratory of international customary
law”.364

360 See paragraph 3.5.61 above.
361 Ibid., p.28 (p. 26 of the original text). (Annex 44)
362 Ibid., p.456 (p. 1189 of the original text). (Annex 44)
363 ICTY, Furundzija, Case no. IT-95-17/1-T, 10 December 1998, at paragraph 140. (Annex 45) See
also Dupuy, P.-M., “Crimes et immunités ou dans quelle mesure la nature des premiers empêche
l’exercice des secondes?”, RGDIP, 1999, at p.292.
364 Ibid., Furundzija (Annex 45) See also ICTY Statute, Article 7(2) and ICTR Statute, Article 6(2).
Part III, Chapter Five: Merits
150
3.5.69 In the Kunarac case, another Chamber of the ICTY affirmed in turn:
“Likewise, the doctrine of ‘act of State’, by which an individual
would be shielded from criminal responsibility for an act he or she
committed in the name of or as an agent of a state, is no defence
under international criminal law. This has been the case since the
Second World War, if not before. Articles 1 and 7 of the Statute
make it clear that the identity and official status of the perpetrator is
irrelevant insofar as it relates to accountability.”365
3.5.70 Even if the Chamber refers to Article 1 and 7 of its Statute, the proposition is
clearly of a general nature and is in no way limited to cases of persons prosecuted
before an international criminal court.
3.5.71 As regards national jurisprudence, the Eichmann case illustrates this
principle. The defendant in that case pleaded an Act of State. This was rejected by
the Supreme Court of Israel by reference to Article 4 of the Genocide Convention and
the principles of Nuremberg which had become “part of the law of nations and must
be regarded as having been rooted in it also in the past”.366 For the District Court of
Jerusalem, this provision “affirm[ed] a principle recognised by all civilised
nations”.367 The Israel Supreme Court went on to add on the same point:
“The very contention that the systematic extermination of masses of
helpless human beings by a Government or regime could constitute
‘an act of State’ appears to be an insult to reason and a mockery of
law and justice.”368
3.5.72 Other national judicial decisions are along the same lines. Although several
of them deal with civil cases, they are nevertheless significant. This holds for the
application by the American case law of the Alien Tort Claims Act of 1789 to persons
who, having occupied important State functions, claim to benefit from the act of State
doctrine in this capacity. It may be recalled that the Alien Tort Claims Act allows any

365 ICTY, Kunarac, Kovac and Vukovic, Case nos. IT-96-23-T and IT-96-23/1-T, 22 February 2001, at
paragraph 494. (Annex 46)
366 36 ILR at p.311, 29 May 1962.
367 36 ILR, at p.48, 12 Dec. 1961.
368 Ibid., p.312.
Part III, Chapter Five: Merits
151
foreigner who considers himself to be the victim of a violation of international law to
claim compensation before the American courts:
“The district courts shall have original jurisdiction of any civil
action by an alien for a tort only, committed in violation of the law
of nations or a treaty of the United States.”369
3.5.73 Although this is a question of civil proceedings and the person against whom
the claim is filed would argue the doctrine of an act of State rather than that of
immunity, the reasoning of judges in cases brought under this Act rejecting the act of
State doctrine due to the international illegality of the acts in question applies equally
to please of immunity in criminal courts. The acts to which the law applies – torture,
massacre, etc – confirm the validity in casu of reasoning by analogy.
3.5.74 In the Suarez-Mazon case, the defendant, a former commander of the first
Army Corps which had control of the province of Buenos Aires at the time of the
siege in Argentina in 1976-1979, objected to the application of the act of State
doctrine in a civil suit filed against him by Argentine citizens in the United States on
the basis of the Alien Tort Claims Act claiming compensation for acts of torture,
arbitrary detention and summary executions committed against them and members of
their family at that time. For the American District Court, the acts referred to by the
Alien Tort Claims Act may have been “official”,
“[b]ut this is not necessarily the governmental and public action
contemplated by the act of State doctrine.”370
3.5.75 The Court added that if this doctrine had to be applied to all acts of State, the
Alien Tort Claims Act could never be applied:
“These allegations of officials for purpose of § 1350 [the Alien Tort
Claims Act in the U.S. code] do not necessarily require application
of the act of state doctrine. Indeed, since violations of the law of
nations virtually all involve acts practiced, encouraged or
condemned by states, defendant's arguments would in effect

369 28 U.S. Code § 1350 (1988)
370 Forti v. Suarez-Mason (U.S. Distr. Crt., N.D. Col.), 6 Oct. 1987, 95 ILR at p. 638.
Part III, Chapter Five: Merits
152
preclude litigation under § 1350 for torts (...) committed in violation
of the law of nations.371
3.5.76 In the Karadzic and Barayagwiza cases, the American courts considered that
the Alien Tort Claims Act enabled them to prosecute acts of genocide, whether or not
they were committed by a State or in the name of State.372 Thus, with regard to acts
of genocide imputed to the first defendant, the Court of Appeal declared:
“… we doubt that the acts of even a state official, taken in violation
of a fundamental law and wholly unratified by that nation's
government, could properly be characterised as an act of state.”373
3.5.77 In the Noriega case – which involved criminal proceedings against General
Noriega of Panama – the defendant also argued that the acts that were charged against
him were not subject to American jurisdiction under the act of State doctrine as this
prohibited the judge from adjudicating on the legality of acts of a foreign government.
The court, however, rejected the plea observing that it did not see how
“Noriega’s alleged drug trafficking and protection of money
launderers could conceivably constitute public action taken on
behalf of the Panamanian State”.374
3.5.78 In the Marcos case, an American Court of Appeal considered that torture,
forced disappearance and extra-judicial executions imputed to the former Filipino
dictator violated the jus cogens375 and “were clearly outside his authority as
President”.376 Consequently, they were not “the acts of an agency or instrumentality
of a foreign state within the meaning of [the US Foreign Sovereign Immunities
Act]”.377
3.5.79 The same reasoning was used with regard to a former defence Minister of
Guatemala, Gramajo, who invoked the Foreign Sovereign Immunities Act (“FSIA”)

371 Ibid.
372 (US CA, 2nd Cir.), 13 Oct. 1995, ILM, 1995, at p.1602, and 104 ILR at p. 135; (US Distr. Crt.,
NYED), 9 Apr. 1996, 107 ILR at p.459.
373 Idid. 104 ILR at p.163.
374 (US Distr. Crt., SDFla.) 8 June 1990, 99 ILR at p.164.
375 Hilao v. Marcos (US CA, 9th Cir.), 16 June 1994, 104 ILR at p. 126.
376 Ibid., p.125.
377 Ibid.
Part III, Chapter Five: Merits
153
to counter a suit for compensation filed before an American court by a person who
had been tortured by the services of that minister. For the judge, these acts
“exceed[ed] anything that might be considered to have been lawfully within the scope
of Gramajo's official authority”. Consequently, even if the FSIA applied to civil
servants, the minister could not benefit from it.378
3.5.80 These decisions show again that the horror of certain acts and their
international illegality is the reason for excluding the immunity of State agents who
are responsible for them.
3.5.81 In the Pinochet case, it will be remembered that the House of Lords reversed
the decision of the Divisional Court which on 28 October 1998, had upheld the
immunity from jurisdiction claimed by the former Chilean dictator.379 In its decision
of 25 November 1998, the Chamber of the Lords set aside the immunity on the
grounds of the fact that Pinochet was not in function any longer, and that, if he kept
this immunity only for the acts committed in the exercise of his functions, the facts
that were reproached to him, could not be assimilated to the acts of the function. In its
second (and definitive) Judgment on the matter, of 24 March 1999, the House of
Lords decided by a majority of six to one that General Pinochet could not benefit
from immunity as regards acts of torture committed after 8 December 1988 when the
UN Convention Against Torture of 10 December 1984 entered into force for the
United Kingdom.380
3.5.82 Among the justifications given by the Lords for rejecting General Pinochet’s
claim to immunity of jurisdiction were a number of US cases referred to above.381

These may be summarised as follows:
· international instruments – such as the ILC Draft Code of Crimes Against the
Peace and Security of Mankind and the Statutes of the ICTY, ICTR and ICC

378 Xuncax v. Gramajo (US Distr. Crt., DMass.), 12 April 1995, 104 ILR at p.176.
379 ILM, 1999, at pp.70-90, 3 Nov. 1998.
380 For a reasoned criticism of this ratione temporis limitation, see Cosnard, M., “Quelques
observations sur les décisions de la Chambre de Lords du 25 novembre 1998 et du 24 mars 1999 dans
l’aff. Pinochet”, RGDIP, 1999, at pp.325-328.
381 See paragraphs 3.5.74 et seq. above.
Part III, Chapter Five: Merits
154
– rejected immunity of jurisdiction for crimes against peace, war crimes and
crimes against humanity;382
· although a former Head of State continues to benefit from immunity ratione
personae for official acts, acts of torture can in no way be assimilated to such
acts given that torture is not only prohibited but is also a violation of
international law:
“The alleged acts of torture by Senator Pinochet were carried
out under colour of his position as head of state, but they
cannot be regarded as functions of head of state under
international law when international law expressly prohibits
torture as a measure which a state can employ in any
circumstances whatsoever and has made it an international
crime”.383
“International Law cannot be supposed to have established a
crime having the character of a jus cogens and at the same
time to have provided an immunity which is co-extensive with
the obligation it seeks to impose”.384
“Had the Genocide Convention not contained this provision
[Article 4], an issue could have been raised as to whether the
jurisdiction conferred by the Convention was subject to state
immunity ratione materiae. Would international law have
required a court to grant immunity to a defendant upon his
demonstrating that he was acting in an official capacity? In
my view it plainly could not. I do not reach that conclusion
on the ground that assisting in genocide can never be a
function of a state official. I reach that conclusion on the
simple basis that no established rule of international law
requires state immunity ratione materiae to be accorded in
respect of prosecution for an international crime. International
crimes and extra-territorial jurisdiction in relation to them are
both new arrivals in the field of public international law. I do
not believe that state immunity ratione materiae can co-exist
with them. The exercise of extra-territorial jurisdiction
overrides the principle that one state will not intervene in the
internal affairs of another. It does so because, where
international crime is concerned, that principle cannot prevail.
An international crime is as offensive, if not more offensive,
to the international community when committed under colour
of office. Once extra-territorial jurisdiction is established, it

382 House of Lords, 24 March 1999, op. cit., Lord Hutton, at pp.634 et seq, and Lord Millett, at p.647.
383 Ibid., Lord Hutton, at p.638; see also pp.639, 642.
384 Ibid., Lord Millet, at p.651.
Part III, Chapter Five: Merits
155
makes no sense to exclude from it acts done in an official
capacity.”385
· as regards the argument that immunity was necessary to protect official
capacity, some Lords stated that the argument:
“can hardly be prayed in aid to support the availability of the
immunity in respect of criminal activities prohibited by
international law”.386
“I do not believe that those functions [the official functions of
a former head of state], as a matter of statutory interpretation,
extend to actions that are prohibited as criminal under
international law.”387
· the prohibition of torture is a jus cogens rule. The ratione materiae
immunity of former Heads of State is therefore incompatible with the
Convention against Torture. By definition, the torturer is a State agent and it
would be absurd to prosecute him if the Head of State for whom he was
acting could not be prosecuted:
“… if the former head of state has immunity, the man most
responsible will escape liability while his inferiors (the chiefs
of police, junior army officers) who carried out his orders will
be liable. I find it impossible to accept that this was the
intention.”388
Lord Browne-Wilkinson added that the Convention Against Torture refers
only to State agents. It could therefore never apply if the immunity of those
agents had to be recognised, and this was certainly not the aim of the
Convention:
“Under the Convention the international crime of torture can
only be committed by an official or someone in an official
capacity. They would all be entitled to immunity. It would
follow that there can be no case outside Chile in which a
successful prosecution for torture can be brought unless the

385 Ibid., Lord Phillips of Worth Matravers, at p.661.
386 Ibid., Lord Millett, at p.645; see also p.646.
387 Ibid., Lord Phillips of Worth Matravers, at p.663.
388 Ibid., Lord Browne-Wilkinson, at p.594.
Part III, Chapter Five: Merits
156
State of Chile is prepared to waive its right to its official
immunity. Therefore the whole elaborate structure of
universal jurisdiction over torture committed by officials is
rendered abortive and one of the main objectives of the
Torture Convention – to provide a system under which there is
no safe haven for torturers – will have been frustrated. In my
judgment all these factors together demonstrate that the notion
of continued immunity for ex-heads of state is inconsistent
with the provisions of the Torture Convention.”389
Even if the judge’s reasoning is confined to the case of former Heads of
State, it is also applicable, as such, to the case of high foreign representatives
in power. Other Lords put forward similar reasoning.390
3.5.83 Although the DRC also referred to the Pinochet case, it of course refrained
from quoting the above extracts. Its Memorial refers to a passage by “Lord BroweWilkinson
dont l’opinion forma la majorité de la Cour”, and who declared that the
Head of State benefits from “complete immunity”.391 In fact, the judge in question
simply referred to the general rule, and this reference is that much less significant for
the “complete criminal immunity” defended by the DRC392 in that, as has just been
addressed,393 the judge belonged to the majority which recognised that Pinochet's
claim to immunity394 should be rejected. The DRC insists on the fact that, in the
decision of the Chamber of the Lords of 25 November 1999, Lord Nicholls had
acknowledged the immunity of an acting Head of State. But the DRC forgets that
Lord Nicholls concluded that Pinochet was not entitled to plead this immunity:
“From this time on [Nuremberg], no head of State could have been
in any doubt about his potential personal liability if he participated
in acts regarded by international law as crimes against humanity.
[…] Even such a broad principle [the act of State doctrine],
however would not assist Senator Pinochet. In the same way as
acts of torture and hostage-taking stand outside the limited
immunity afforded to a former head of state by section 20 [of the
State Immunity Act 1978], because those acts cannot be regarded

389 Ibid., at pp.594-595.
390 Ibid., Lord Saville of Newdigate at p.643; Lord Phillips of Worth Matravers, at p.661; see also but
more indirectly, Lord Hutton , at p.639.
391 (“Lord Browe-Wilkinson, whose opinion expressed the majority of the Court”) DRC Memorial, at
paragraph 63 (unofficial translation by Belgium).
392 DRC Memorial, at paragraphs 50-51 and 62.
393 See paragraph 3.5.82 above.
394 Op. cit., ILM, 1999, at p.595.
Part III, Chapter Five: Merits
157
by international law as a function of a head of state, so far a similar
reason Senator Pinochet cannot bring himself within any such
broad principle applicable to state officials. Acts of torture and
hostage-taking, outlawed as they are by international law, cannot
be attributed to the state to the exclusion of personal liability.”395
As to Lord Steyn, he affirmed in this decision:
“[…] the development of international law since the Second World
War justifies the conclusion that by the time of the 1973 coup
d’Etat, and certainly ever since, international law condemned
genocide, torture, hostage taking and crimes against humanity
(during an armed conflict or in peace time) as international crimes
deserving of punishment. Given this state of international law, it
seems to me difficult to maintain that the commission of such high
crimes may amount to acts performed in the exercise of functions
of a Head of State.”396
3.5.84 The DRC could have referred to the opinions of other judges who, in the
Judgment of 24 March 1999, while considering that Pinochet did not benefit from
immunity ratione materiae, nevertheless reserved the case of immunity ratione
personae, that being the immunity of a Head of State in power.397 In Belgium, this
reservation is not founded, given the international rules recalled above, on the
exclusion of immunity for crimes of international humanitarian law, rules which make
no distinction at all between immunity ratione materiae and immunity ratione
personae.
3.5.85 An important point must nevertheless be made. Belgium accepts that the fact
of being in office for a Head of State could entitle him to a certain immunity, but this
would not be an objective immunity opposable erga omnes. It would be nothing but
the expression of acceptance by the State of jurisdiction to host, for one reason or
another, the Head of State in question. This would entail the renunciation by the
State of jurisdiction as regards the prosecution of the Head of State for the duration of
his visit. This is a different situation to that which will be considered further below.

395 Regina v. Bartle, ex parte Pinochet, ILM, 1998, pp. 1333-1334.
396 Ibid., p. 1337.
397 Ibid., Lord Hope of Craighead, at p.626; Lord Millett, at p.644; Lord Phillips of Worth Matravers, at
p.653.
Part III, Chapter Five: Merits
158
3.5.86 In Belgium, when complaints were filed against General Pinochet, the
investigating judge before whom the matter was brought justified his jurisdiction, and
dismissed the claims based on immunity of jurisdiction for acts in an official capacity,
on grounds of the gravity of the acts with which the General was charged and without
taking account of the fact that the accused was no longer in office:
“En ce qui concerne la personne ayant le statut d'ancien chef d'Etat,
elle cesse de jouir des immunités conférées à l'exercice de sa
fonction lorsque celle-ci prend fin. Elle continue cependant à jouir
des immunités pour tous les actes accomplis dans l'exercice de ses
fonctions de chef d'Etat pour autant que cette immunité ne soit pas
levée par l'Etat d'envoi
Si les crimes reprochés actuellement à Monsieur Pinochet devaient
être considérés comme établis, on ne saurait cependant considérer
qu'ils aient été accomplis dans le cadre de ses fonctions : de tels
actes criminels ne peuvent être censés rentrer dans l'exercice normal
des fonctions d'un chef d'Etat, dont l'une des missions consiste
précisément à assurer la protection de ses concitoyens.
…
'La protection que le droit international assure aux représentants de
l'Etat ne saurait s'appliquer à des actes criminels. Les auteurs de ces
actes ne peuvent invoquer leur qualité officielle pour se soustraire à
la procédure normale et se mettre à l'abri du châtiment'.” 398
3.5.87 The DRC sets great store by the Judgment given by the French Cour de
Cassation in the Qadafi case on 13 March 2001.399 In that case, the court overturned
the decision of the chambre d'accusation of the Court of Appeal of Paris ruling that
an investigation should be made of complaints lodged against Colonel Qadafi for his

398 “As concerns a person having the status of a former Head of State, he or she ceases to enjoy
immunity conferred on the exercise of that function when those duties terminate. He or she continues,
however, to enjoy immunity for all acts carried out in the exercise of his or her duties of the head of
State insofar as that immunity is not removed by the State of which he or she is an envoy.
If the crimes alleged against Mr. Pinochet should be considered to be founded, it could not
nevertheless be considered that they were carried out in the context of his duties: such criminal acts
cannot be considered as falling under the normal exercise of the duties of a head of State, whose
assignments specifically include among other things ensuring the protection of its citizens.
The protection that international law grants to representatives of the State cannot apply to criminal
acts. The perpetrators of these acts cannot argue their official capacity to be exempt from normal
prosecution and to escape punishment (IMT of Nuremberg, 1 October 1946, quoted in J. Salmon,
Manuel de droit diplomatique, Bruylant 1994, at pp.602-603; unofficial translation by Belgium; Court
Order of 4 November 1998, RDPC, 1999, at p.278; Unofficial translation by Belgium; see also Bosly
and Labrin, J.T., 1999, and the critical note by Verhoeven, at p.308.
399 DRC Memorial, at paragraph 64.
Part III, Chapter Five: Merits
159
alleged involvement in the bombing which resulted in the destruction of the UTA
aircraft over Niger in September 1989.
3.5.88 Before examining the judgment of the Cour de Cassation, it will be helpful
to recall what the chambre d’accusation of the Court of Appeal of Paris had said.
Based notably on the Statutes of the international criminal courts, it concluded that
these sources showed:
“la volonté de la communauté internationale de poursuivre les faits
les plus graves, y compris lorsqu’ils sont commis par un chef d’Etat
dans l’exercice de ses fonctions, dès lors que ceux-ci constituent des
crimes internationaux, contraires aux exigences de la conscience
universelle.”
400
3.5.89 For the chambre d’accusation, the ICC Statute, as well as the Pinochet case
in the United Kingdom and the Noriega case in the United States, were:
“la preuve d’une pratique générale acceptée par tous, y compris la
France, comme étant le droit, selon laquelle l’immunité ne couvre
que les actes de puissance publique ou d’administration publique
accomplis par le chef de l’Etat, à condition qu’ils ne soient pas
considérés comme des crimes internationaux.”
401
3.5.90 Although the decision of the chambre d’accusation was subsequently
overturned, it nevertheless shows that, in the opinion of the judges, there are
exceptions in international law to the immunity of a Head of State in office.
3.5.91 We will see that this is also the case for the French Cour de Cassation and
that the only point of disagreement lies in the identification of the crimes on which the
exceptions to immunity can be founded.

400 “the determination of the international community to prosecute the most serious acts, including
when they are committed by a head of State in the exercise of his functions, when these constitute
international crimes, contrary to demands of universal conscience” Judgment of 20 Oct. 2000
(unofficial translation by Belgium). (Annex 49)
401 “the proof of a practice generally accepted by all, including France, as being the law, according to
which immunity only covers acts of public power or public administration carried out by the head of
State under the condition that they are not considered international crimes.” (unofficial translation by
Belgium). Ibid.
Part III, Chapter Five: Merits
160
3.5.92 As regards the Cour de Cassation, two grounds of this Judgment are
important:
“Attendu que la coutume internationale s’oppose à ce que les chefs
d’Etat en exercice puissent, en l’absence de dispositions
internationales contraires s’imposant aux parties concernées, faire
l’objet de poursuites devant les juridictions pénales d’un Etat
étranger;
...
Mais attendu qu’en prononçant ainsi [rejet de l’immunité par la
chambre d’accusation pour des faits de complicité de terrorisme],
alors qu’en l’état du droit international, le crime dénoncé, quelle
qu’en soit la gravité, ne relève pas des exceptions au principe de
l’immunité de juridiction des chefs d’Etat étrangers en exercice, la
chambre d’accusation a méconnu le principe susvisé; ...”402
3.5.93 Independently of the fact that this Judgment has been criticised in the
literature,403 simply reading the grounds reproduced above, shows that, contrary to
that which is maintained by the DRC, the Judgment does not confirm "qu'un chef
d'Etat en exercice bénéfice d'une inviolabilité et d'une immunité pénale absolues,
même en cas d'accusation de crime de droit international."404 On the contrary, the
Cour de Cassation explicitly recognised in the second item of the grounds quoted
above that there are exceptions to the principle of the immunity of jurisdiction of
foreign Head to State in power, but that they do not include acts of terrorism.405

Formally speaking, this reasoning corresponds to reality since most texts which
provide for the immunity of jurisdiction of a Head of State in office concern only
crimes against peace and the gravest breaches of international humanitarian law, ie,
war crimes, crimes against humanity and the crime of genocide.406 They do not,
however, expressly apply to acts of terrorism.

402 “Whereas international custom is opposed to the prosecution of Heads of States in power by the
criminal courts of a foreign State, in the absence of international provisions to the contrary that bind the
parties concerned; …
But whereas, by ruling in this way [rejection of immunity by the chambre d'accusation for acts of
complicity with terrorism], with respect to international law, the charge, however serious it may be, is
not among the exceptions to the principle of immunity of a foreign head of State in power, the chambre
d'accusation has failed to recognize the above principle; ...” (unofficial translation by Belgium) Ibid.
403 Cassese, A., International Law, Oxford University Press, 2001, p. 260. (Annex 47) See also
Zappala, S;, “Do Heads of State in Office enjoy immunity from jurisdiction for international crimes?”,
EJIL, 2001, pp. 595-612 (Annex 48).
404 “that a head of State in office benefits from complete inviolability and immunity, even in the case of
accusation of international crime.” DRC Memorial, at paragraph 62 (unofficial translation by Belgium).
405 Zappala, loc. cit., at pp.601 and 604. (Annex 48)
406 See paragraphs 3.5.14 et seq. above.
Part III, Chapter Five: Merits
161
3.5.94 The memorial lodged to support the pourvoi en cassation in the Qadafi case,
filed on 14 November 2000 by the Federal Prosecutor of the Court of Appeal of Paris,
confirmed the above. The Prosecutor recognised that conventional international law
excludes the immunity of Heads of State for crimes falling under the Statutes of
international criminal courts but observed that these do not extend the exclusion of
immunity to terrorism. In keeping with the principle of the restrictive interpretation
of criminal law, it could not therefore be argued that immunity ceased to apply in
cases other than those stipulated by conventional international law. He stated notably
that prosecution before international criminal courts was only possible “parce que des
dispositions expresses avaient été prises en ce sens par les conventions ou résolutions
ayant créé ces tribunaux”.407
3.5.95 The Prosecutor further observed, however:
“Sans doute l’évolution du droit pénal international tend-elle,
conformément à la position adoptée par une partie des Etats, à
restreindre la portée des immunités traditionnellement admises.
Mais ces restrictions sont, comme toujours en matière pénale,
d’interprétation stricte.”408
3.5.96 It can be observed that at no time did the Prosecutor claim to limit the
exclusion of immunity to international criminal courts alone. He based the exclusion
of immunity on the existence of conventional sources, not on the international nature
of the courts in question.
3.5.97 In his conclusions lodged at the hearing of 27 February 2001, the Avocat
général included these arguments while also developing others.409 He appears
notably to admit that certain rules of jus cogens, such as the prohibition of torture or
genocide, could take precedence over the customary rule of immunity of the Head of
State and he only rejected the argument because the references to jus cogens were to

407 “because of express provisions provided by the conventions or resolutions that created the
tribunals”. (Unofficial translation by Belgium) (Unpublished). (Annex 50)
408 “No doubt the evolution of international criminal law tends to restrict the scope of traditionally
accepted immunity, in keeping with the position adopted by some of the States. However, these
restrictions, as always in criminal matters, are to be interpreted strictly.” (Unofficial translation by
Belgium) (Unpublished). (Annex 50)
Part III, Chapter Five: Merits
162
be found in the Vienna Convention on the Law of Treaties and France is not a party to
this Convention. A contrario, the Avocat général would have admitted the argument
had France been party to the Convention.410
3.5.98 The DRC, however, develops the following argument. It considers that the
second ground of the Qadafi case must be read in the light of the first which affirms
that international custom excludes all criminal prosecution of a Head of State in office
in the absence of international provisions to the contrary binding the parties
concerned. For the DRC, these terms refer to conventional provisions and not rules of
custom, because, by the phrase “s’imposant aux parties concernées” (“binding on the
parties concerned”), the Cour de cassation “fait immanquablement allusion à l’effet
relatif des conventions internationales” (“necessarily alludes to the relative effect of
international conventions”).411 Apparently, the DRC considers that the relativity of
international law is limited exclusively to conventional law and it appears to ignore
the many examples of the application of the relativity of international custom.412 The
argument is therefore moot and the Judgment of the French Cour de Cassation, read
in the light both of the ordinary meaning of the terms in question and the Prosecutor’s
presentation, does indeed confirm the existence of exceptions to the principle of
immunity for acting Heads of State.
3.5.99 In addition to the Pinochet and Qadafi cases which confirm Belgium’s
viewpoint, the DRC also quotes four cases which, in its opinion, constitute “des
précédents bien établis” recognising “qu’un chef d’Etat bénéficie d’une inviolabilité
et d’une immunité pénale absolues, même en cas d’accusation de crime de droit
international.”413 Although the cases cited by the DRC – cases which are simply
indicated by a footnote in the text,414 viz., Baccheli, Honecker, Arafat and Marcos –
affirm in a very general way, in one sentence, that the Head of State benefits from

409 Ibid. at pp. 511 and 515. (Annex 50)
410 Ibid., p. 514.
411 DRC Memorial, at paragraph 64 (unofficial translation by Belgium).
412 E.g. Lotus, PCIJ, Series A, n° 10, p.28; Asylum Case, ICJ Reports 1950, p.276; Norwegian
Fisheries, ICJ Reports 1951, p.116; Rights of Passage, ICJ Reports 1959, p.39.
413 “well-established precedents … that a head of State in office benefits from complete inviolability
and immunity, even in the case of accusation of international crime.” (Unofficial translation by
Belgium) DRC Memorial, at paragraph 62.
Part III, Chapter Five: Merits
163
immunity of criminal jurisdiction, none of them is significant since they do not
concern allegations, even implicitly, of crimes of international humanitarian law.
Moreover, none refers to the instruments and the precedents cited above.415
3.5.100 Case law concerning diplomatic immunities also tends to confirm that
diplomatic immunity does not protect the holder in the event of a crime against peace,
a war crime or a crime against humanity. Thus, in the case of Otto Abetz, who
claimed to be the representative of the Reich with the Vichy government, the French
Cour de Cassation observed that the point was not proven and that:
“… the Ordinance of 28 August 1944 concerning the punishment of
war crimes excludes by its very object the application of a rule of
municipal or of international law the effect of which would be to
make a prosecution subject to preliminary authorisation of the
Government of the country to which the accused belongs.” 416
3.5.101 Similarly, in the case of In re Best, a representative of the Reich in occupied
Denmark who was prosecuted for war crimes and who claimed that he was entitled to
diplomatic immunity, the Supreme Court of Denmark declared that Law No 395 of 12
July 1946 on the punishment of war crimes applied to perpetrators of those crimes no
matter whether they benefited from diplomatic immunity at the time the crimes were
committed:
“Statute n° 395 of July 12, 1946, must, according to its wording, as
well as its purpose, be considered as including all foreigners in
German service, irrespective of whether or not they enjoyed
diplomatic immunity at the time when they committed the offences
referred to in the statute. Hence it follows that the rules of
international law governing immunity cannot be relied upon for the
benefit of any of the accused.”417
(d) The writings of publicists excluding the immunity of alleged perpetrators of
serious crimes of international humanitarian law

414 Ibid., citing Bacchelli v. Commune di Bologna (Cass. It.), 20 February 1978, (1978-79) IYIL 137, at
note L.C.; Honecker (BGH), 14 December 1984, 80 ILR 366 ; Ric. Arafat e altro, Foro it (Cass. It), 28
June 1985, 1986, II, p. 279; Marcos (Trib.féd. suisse), 1 December 1989, 102 ILR 201.
415 See paragraph 3.5.15 et seq. above.
416 In re Abetz (Cass. fr. crim.), 17 ILR 279, 28 July 1950; also in RCDIP, 1951, p.478 (Annex 51).
417 In re Best and Others (Dk. SC), 17 March 1950, 17 ILR 437. (Annex 52)
Part III, Chapter Five: Merits
164
3.5.102 There is nothing new in the recognition in literature of the exclusion of
criminal immunity of an agent of a foreign State, even if he is the Sovereign of that
State, for serious crimes under international humanitarian law. Vattel, for example,
referred to this already in the 18th century. He began by recalling the general
principle according to which “no foreign power can declare itself judge of conduct” of
another State. He went on to observe that “the Spanish violate all rules when they
declare themselves entitled to judge the Inca Athualpa”. But he added immediately:
“If this prince had violated the law of Nations in their regard they
[the Spanish] would have been right in punishing him. But they
accused him of having put to death certain of his own subjects, of
having had several wives, etc., things for which he was not
responsible to them; and, as the crowning point of their injustice,
they condemned him by the laws of Spain.”418
3.5.103 This passage illustrates to a large extent what has already been said. The rule
is the application of par in parem. The exception is the case of a grave breach of
international law.
3.5.104 Today, the most eminent literature confirms the principle of rejecting
criminal immunity for crimes under international humanitarian law. This is addressed
below, first, by reference to the work of the International Law Commission and the
Institut de Droit International (i), and second, to other authors (ii).
(i) Deliberations of the International Law Commission and the Institut de Droit
International
3.5.105 Already in 1950, the ILC recognised the principle according to which the
official capacity in which the agent of foreign State (Head of State or government
minister) acts does not constitute grounds justifying a crime against peace, a war
crime or a crime against humanity. It stated this both in the context of the
development of the Nuremberg Principles and in the context of its various proposals
Part III, Chapter Five: Merits
165
for a code of crimes against peace and security of mankind. These texts are
sufficiently important to warrant citation here in extenso:
· Principle 3, Principles of Nuremberg of 1950:
“The fact that a person committed an act which constitutes a
crime under international law acted as a head of State or
responsible Government official does not relieve him from
responsibility under international law.”419
· Article 3, Draft Code of Crimes Against Peace and Security of Mankind of
1951:
“The fact that a person acted as a head of State or responsible
government official does not relieve him from responsibility
for committing any of the offences defined in this Code.”420
· Article 3, Draft Code of Crimes Against Peace and Security of Mankind of
1954:
“Le fait que l'auteur a agi en qualité de chef d'Etat ou de
gouvernement ne l'exonère pas de la responsabilité encourue
pour avoir commis l'un des crimes définis dans le présent
code.”421
· Article 13, Draft Code of Crimes Against Peace and Security of Mankind of
1991:
“La qualité officielle de l'auteur d'un crime contre la paix et la
sécurité de l'humanité, et notamment le fait qu'il a agi en
qualité de chef d'Etat ou de gouvernement ne l'exonère pas de
sa responsabilité pénale.”422

418 Vattel, The Law of Nations or the Principles of Natural Law, 1758, Book II, chap. IV, at § 55.
(Annex 53)
419 Supplementary Annex 95.
420 YILC 1951, II, p.137.
421 "The fact that the perpetrator acted in the capacity of Head of State or of government does not
exonerate him from responsibility for having committed one of the crimes defined in the present code."
ILC Report 1954, UN doc. A/2693, at p.12 (unofficial translation by Belgium).
422 "The official position of an individual who commits a crime against the peace and security of
mankind, even if he acted and as a Head of State or government, does not exonerate him of criminal
responsibility and is not a reason to mitigate punishment." ILC Report 1991, UN doc. A/46/10, at p.264
(unofficial translation by Belgium). (Annex 54)
Part III, Chapter Five: Merits
166
· Article 7, Draft Code of Crimes Against Peace and Security of Mankind of
1996:
“The official position of an individual who commits a crime
against the peace and security of mankind, even if he acted as
head of State or Government, does not relieve him of criminal
responsibility or mitigate punishment.”
423
3.5.106
As will be evident, except for a few details in the wording, the text in essence has not
varied since 1950.
3.5.107 The DRC, as has been said, does not challenge the rule according to which
the official capacity of the accused at the time of the acts does not constitute grounds
for exoneration of liability. It persists, however, in seeing this only as a rejection of
the substantial exception that could be raised by a defendant at the time of trial.424 It
also persists, conversely, in thinking that this exception has no effect on the
procedural exception of the immunity of foreign State agents from criminal suit.425

The work of the ILC, however, leaves no doubt about the fact that the exception
covers both the substance and the procedure, ie, the exclusion of official capacity as a
ground of excuse or justification as well as of the immunity of the State agent.
3.5.108 Thus, already in 1949, on the discussion of the Nuremberg principles, Scelle
proposed an amendment to the text addressing the official capacity of the defendant.
The draft text proposed by the Commission said:
“The official position of an individual as head of State or
responsible official does not free him from responsibility or mitigate
punishment.”426
3.5.109 The amended text proposed by Scelle was as follows:
“The office of head of state, ruler or civil servant, does not confer
any immunity in penal matters nor mitigate responsibility.”427

423 ILC Report 1996, UN doc. 1/51/10, at p.56. (Annex 55)
424 DRC Memorial, at paragraph 59–60.
425 See paragraph 3.5.61 et seq. above.
426 YILC 1949, at p.183, paragraph 9.
Part III, Chapter Five: Merits
167
3.5.110 Scelle’s text had the merit of clearly covering both aspects of the exception
based on the defendant’s official capacity: the question of an agent’s “immunity”
stricto sensu and that of liability as regards the substance of the case. The amendment
was, however, rejected due to the fact that it corresponded to a text on which the
Commission was working elsewhere:
“The Chairman said that that paragraph corresponded to paragraph 3
provisionally adopted by the Commission, according to which the
official position of a head of State or responsible civil servant did
not confer any immunity in penal matters nor mitigate
responsibility.”428
3.5.111 In other words, the Commission considered, from the start, that the wording
of the rule rejecting any exception based on the official capacity of the defendant
covered both the question of liability with regard to the substance and any argument
based on the immunity of the State agent.
3.5.112 The Commission’s position has not varied. In 1996, the Commission
commented specifically on the fact that senior civil servants who had committed
crimes against peace and security of mankind could not escape their liability as a
result of their official capacity:
“It would be paradoxical if individuals who in some ways are the
most responsible for the crimes to which the Code refers, could
invoke the sovereignty of the State and take refuge behind the
immunity that their functions confer on them, all the more so since
these are odious crimes that distress the conscience of mankind,
violate some of the most fundamental rules of international law and
threaten international peace and security.” 429
3.5.113 The Commission went on to say:
“The object of Article 7 is to prevent an individual who has
committed a crime against peace and security of mankind from
invoking his official capacity as a circumstance exempting him from
any liability or conferring an immunity of any kind, even while he

427 Ibid. at p.206.
428 Ibid., at p.212.
429 ILC Report 1996, UN doc.1/51/10, at p.57 (Emphasis added).
Part III, Chapter Five: Merits
168
maintains that the acts constituting crimes were committed in the
context of the exercise of his duties. ... The Nuremberg Tribunal in
addition recognized in its judgment that the perpetrator of a crime
under international law cannot refer to his official capacity to escape
from the normal procedure or protect himself from punishment.
The absence of any procedural immunity giving relief from
prosecution or punishment in the context of the appropriate judicial
procedure constitutes an essential corollary to the absence of any
substantial immunity or any justifying act ...”430
3.5.114 The ILC concluded with a sentence that replies very precisely to the artificial
distinction that the DRC claims to find in international law between an exception
drawn from the official capacity of the perpetrator of the crime as a justification of a
crime under international law – ratione materiae immunity, the rejection of which is
accepted by the DRC – and the procedural exception based on the ratione personae
immunity of the perpetrator:
“It would be paradoxical if the person in question could not invoke
his official capacity to exempt himself from criminal liability but
could invoke it to protect himself against the consequences of the
liability.”431
3.5.115 The DRC refrained from discussing the work of the ILC in this field
although Belgium referred to it in the phase on the request for provisional
measures.432
3.5.116 The Institut de Droit International has also addressed the question of
immunity of Heads of State. On 26 August 2001, at its meeting in Vancouver, it
adopted a Resolution by 31 votes in favour, none against and 6 abstentions on
“Immunities of jurisdiction and execution of the head of State or government in
international law”. While Article 2 of the Resolution enshrines the principle of the
immunity from criminal jurisdiction of a foreign Head of State, whatever the gravity
of the offence charged, Article 11 reserves not only the case of obligations arising
under the UN Charter and the Statutes of international criminal courts, but also that of
rules concerning crimes under international law. These two provisions are worded as
follows:

430 Ibid. at p.59 (Emphasis added).
431 Ibid.
Part III, Chapter Five: Merits
169
“Article 2: En matière pénale, le chef d’Etat bénéficie de
l’immunité de juridiction devant le tribunal d’un Etat étranger pour
toute infraction qu’il aurait pu commettre quelle qu’en soit la
gravité.”
“Article 11(1): Les dispositions de la présente résolution ne font
pas obstacle
(a) aux obligations qui découlent de la Charte des Nations
Unies;
(b) à celles qui résultent des statuts des tribunaux pénaux
internationaux ainsi que de celui, pour les Etats qui y
sont parties, de la Cour pénale internationale.
(2) Les dispositions de la présente résolution ne préjugent pas :
(a) des règles déterminant la compétence du tribunal
devant lequel l’immunité est soulevée;
(b) des règles relatives à la détermination des crimes de
droit international;
(c) des obligations de coopération qui pèsent en ces
matières sur les Etats.
(3) Rien dans la présente résolution n’implique ni ne laisse entendre
qu’un chef d’Etat jouisse d’une immunité devant un tribunal
international à compétence universelle ou régionale.”433
3.5.117 The Institut does not affirm, as does the ILC, that the immunity of a foreign
Head of State is excluded in the event of crimes under international humanitarian law.
Implicitly, it nevertheless observes that immunity of a foreign Head of State or
Government could not be effective in the case of a crime under international law. It
may also be observed that the Resolution addresses foreign Heads of State and Heads
of Government. It does not address immunities that may be recognised for “other
members of the government by reason of their official functions”. The resolution
could not therefore be invoked to the benefit of Mr Yerodia Ndombasi – whether at
the time of the issue of the arrest warrant of 11 April 2000 or a fortiori today, since he
is no longer occupies an official capacity.

432 CR 2000/33, 21 November 2000, at p.22.
433 "Article 2: In criminal matters, the Head of State is immune from the jurisdiction of a foreign
tribunal for all crimes that he may have committed despite their seriousness
Article 11(1): The provisions of the present resolution do not preclude: (a) obligations pursuant to
the Charter of the United Nations; (b) obligations arising out of international criminal statutes,
including the International Criminal Court, for the States that are party.
(2) The provisions of the present resolution do not prejudice: (a) the jurisdictional rules of
the tribunal before which immunity has been raised; (b) the rules on defining crimes under international
law; (c) States' obligations to co-operate on these matters.
(3) Nothing in the present resolution implies or leads to the understanding that a Head of
State is entitled to immunity from an international tribunal with universal or regional jurisdiction.",
Resolution 13f, 26 August 2001 (unofficial translation by Belgium). (Annex 56)
Part III, Chapter Five: Merits
170
(ii) Other sources
3.5.118 Notwithstanding the preceding, the DRC affirms that the most accepted
doctrine supports the principle of absolute criminal immunity of an agent of a foreign
State.
3.5.119 This affirmation, which appears in the DRC Memorial after the analysis of
the Judgments of the House of Lords in the Pinochet case and the French Cour de
Cassation in the Qadafi case, calls for four comments:
(1) contrary to the DRC’s contention, the two cases referred to do not show in
any way that Ministers for Foreign Affairs benefit from immunity in the case
of allegations of grave breaches of international humanitarian law. On the
contrary, exactly the opposite is the case;434
(2) the literature quoted by the DRC cannot approve the Pinochet and the Qadafi
decisions since it precedes this case-law;435
(3) the literature is in any case not pertinent. Specifically, as has already been
observed, the studies quoted by the DRC limit themselves to affirming the
principle of criminal immunity of high foreign representatives in a general
way without addressing the question of the maintenance of immunity in the
event of allegations of grave breaches of international humanitarian law;
(4) where the sources cited by the DRC do refer to crimes under international
humanitarian law, they, quite to the contrary, tend to endorse the exclusion of
immunity. For example, the DRC quotes an extract of the Manuel de droit
diplomatique by Professor Salmon recalling the criminal immunity of foreign
sovereigns and ministers but it omits to refer to another passage where the

434 See paragraphs 3.5.81 et seq. and 3.5.87 et seq. above.
435 E.g. Völkerrecht by G. Damn, 1964; Le droit diplomatique by Ph. Cahier, 1984; Universelles
Völkerrecht by Vedross and Simma, 1985; Statenimmunität und Gerichtszwang by Damian, 1994;
Satow's Guide to Diplomatic Practice, 1994; Sir Arthur Watts’ course at The Hague Academy of
International Law, 1994; and Manuel de droit diplomatique by J. Salmon, 1994.
Part III, Chapter Five: Merits
171
same author observes: “qu'il convient de réserver la question de grands
criminels de guerre” and goes on to refer to a number of the texts and
precedents noted above.436 Similarly, Sir Arthur Watts, quoted by the DRC,
affirms that the Head of State enjoys absolute criminal immunity but goes on
to make a reservation in the case of certain international crimes:
“However, this immunity, while absolute at least as regards
the ordinary domestic criminal law of other States, has to be
qualified in respect of certain international crimes, such as war
crimes.”437
The same holds true for the reference to the observations to Alland who, after
having quoted the Pinochet case, concludes:
“En effet, il convient d’ajouter que dans tous les cas, quelle
que soit la fonction exercée, il ne saurait y avoir d’immunité
pour les crimes internationaux. Cela a été clairement affirmé
en 1946 par le Tribunal militaire international de Nuremberg
(Jug. Nur., p. 235). Le statut des deux tribunaux pénaux
internationaux actuels et celui de la future Cour pénale
internationale ont confirmé le rejet de toute immunité pour les
quatre grands crimes contre la paix et la sécurité
internationale : le crime d’agression, les crimes de guerre, le
crime contre l’humanité, le génocide.”438
Another author quoted by the DRC, Ruth Wedgwood, does indeed discuss
the Pinochet case but does not directly deal with the question of immunity of
a Head of State or other government representatives accused of serious
crimes of international humanitarian law.439 The reference is not therefore
pertinent for present purposes.

436 “reservations must be made for the question of major war criminals”. Salmon, J. Manuel de droit
diplomatique, Brussels, Bruylant, 1994, at pp.603-664. (unofficial translation by Belgium) (Annex 57)
437 Watts, Sir A., “The Legal Position in International Law of Heads of States, Heads of Governments
and Foreign Ministers”, RCADI, 1994, T. 247, p.54.
438 “Indeed, it must be added that in all cases, whatever the office held, there can be no immunity for
international crimes. This was clearly affirmed in 1946 by the International Military Tribunal of
Nuremberg (Jug. Nur. p. 235). The statutes of the two current international criminal tribunals and that
of the future international criminal court have confirmed the rejection of any immunity for the four
major crimes against peace, and international security: the crime of aggression, war crimes, crime
against humanity and genocide.” (Unofficial translation by Belgium) Droit international public, s/ la
dir. de D. Alland, Paris, PUF, 2000, at p.159. (Annex 58)
439 See paragraphs 3.5.15 et seq. above.
Part III, Chapter Five: Merits
172
3.5.120 Many other authors exclude the immunity of the agent of a foreign State
alleged to have committed grave breaches of international humanitarian law. Not
only the two World Wars but more recent events have occasioned affirmations of this
type.
3.5.121 Thus, in 1917, Mérignhac wrote on crimes committed during the First World
War as follows:
“Quant aux auteurs des faits dits collectifs, on les retrouvera, aussi
bien que ceux des faits individuels, à la condition de vouloir
nettement atteindre les coupables, si haut placés soient-ils: chefs
d’Etat, chanceliers, ministres, généraux, commandants d’armées ou
de troupes, qui ont donné les ordres de commettre les faits collectifs
incriminés. … Il suffira donc de rechercher ceux qui ont donné les
ordres et les ont exécutés, sans souci d’une prétendue inviolabilité
diplomatique que personne ne comprendrait.”440
3.5.122 While he entertained doubts about the pertinence of the charges against
Kaiser Wilhelm II for an offence described in Article 227 of the Treaty of Versailles
as an “offence to international morals”, Garner nevertheless observed that:
“It may be argued with reason that the exemption accorded to
reigning sovereigns was never intended to shield and protect from
punishment heads of States responsible for such crimes and offences
against the rights of nations as those with which the German
Emperor was charged.”441
3.5.123 After the Second World War, Donnedieu de Vabres, commenting on the Otto
Abetz case, noted that the international legal order emerging from the League of
Nations and the Yalta, Moscow and London agreements:
“concerne un domaine où l’universalité de la répression,
l’interdépendance des souverainetés, qui en résulte, ont dépouillé

440 “As for perpetrators of collective acts, they will be found, like those of individual acts, if we are
determined to get to the guilty parties, however highly placed they may be: Heads of State, chancellors,
ministers, generals, commanders of the army or troops, who gave orders to commit the incriminated
collective acts. ... It suffices to seek those who gave the orders and who carried them out, without
worrying about any alleged diplomatic immunity that no one would understand.” Merignhac, A., “De la
sanction des infractions au droit des gens commises au cours de la guerre européenne par les Empires
du centre”, RGDIP, 1917, at p.49. (Unofficial translation by Belgium) (Emphasis added) (Annex 59)
441 Garner, J. W., International Law and the World War, London, 1920, at p 495. (Annex 60)
Part III, Chapter Five: Merits
173
l’impunité des actes d’Etat et l’immunité des agents diplomatiques
de leur raison d’être.”442
3.5.124 It is also interesting to read what was written, in the same period, by an
author that the DRC cites in its favour and that it refers to as an “eminent
internationalist”.443 This is Henri Rolin, then a Senator in the Belgian Parliament. In
his 1951 report on the deliberations of the Foreign Affairs Commission of the Belgian
Senate on the approval of the 1948 Genocide Convention he wrote, with regard to the
prosecution of a foreign Head of State and the immunity that attaches to him under
international law:
“Mais il est admis qu'elle [l'immunité] ne peut être invoquée par les
chefs d'Etat violant le droit des gens.”444
3.5.125 In the 8th edition of the Oppenheim's International Law, H. Lauterpacht
observed that individuals have international obligations and that, consequently, they
are answerable for the crimes under international law that they commit. In this case,
the benefit from immunity of any kind is excluded for war crimes or crimes against
humanity:
“In particular, the entire law of war is based on the assumption that
its commands are binding not only upon States but also upon their
nationals … To that extent no innovation was implied in the Charter
annexed to the Agreement of August 8, 1945 … as it decreed
individual responsibility for war crimes proper and for what is
described as crimes against humanity.”445
“The State and those acting on its behalf, bear criminal
responsibility for such violations of international law as by reason of
their gravity, their ruthlessness, and their contempt for human life
place them within the category of criminal acts as generally
understood in the law of civilised countries. Thus if the
Government of a State were to order the wholesale massacre of

442 “concerns a field where the universality of punishment, the interdependence of sovereignties, which
results from it, have stripped the impunity of Acts of State and the immunity of diplomatic agents of
any reason for existing.” Obs. s/ Cass. fr., 28 juillet 1950, RCDIP, 1951, at p.484. (Unofficial
translation by Belgium) (Annex 61)
443 DRC Memorial, at paragraph 78.
444 “But it is accepted that it [immunity] cannot be invoked by Heads of State violating international
law.” Documents Parlementaires, Sénate, 1950-1951, 24 May 1951, n° 286, at p. 2 (Unofficial
translation by Belgium).
445 Lauterpacht, H., International Law A Treatise by L. Oppenheim, London, 1955, Vol. I, at p.341,
paragraph 153a.
Part III, Chapter Five: Merits
174
aliens resident within its territory the responsibility of the State and
of the individuals responsible for the ordering and the execution of
the outrage would be of a criminal character. … Yet it is impossible
to admit that individuals by grouping themselves into States and
thus increasing immeasurably their potentialities for evil, can confer
upon themselves a degree of immunity from criminal liability and
its consequences which they do not enjoy when acting in
isolation.”446
3.5.126 In 1980, Ch. Rousseau observed, referring to Article 227 of the Treaty of
Versailles and the Judgment of the Nuremberg IMT:
“Le principe [de l’immunité absolue du chef de l’Etat] doit être
considéré aujourd’hui comme abandonné dans le cas où une
violation du droit international est imputable à un chef de l’Etat.”447
3.5.127 In 1982, Van Bogaert affirmed similarly:
“De immuniteit [van een staatshoofd] … kan ook niet meer worden
ingeroepen bij een vervolging wegens schuld aan oorlogsmisdaden.
Dit spruit voort uit artikel 7 van het ‘Nürnberg Charter’ van 8
augustus 1945 en artikel 6 van het ‘Tokyo Charter’.”448
3.5.128 In the Al-Adsani case, the petitioner had unsuccessfully filed civil
proceedings against Kuwait before the British courts alleging torture inflicted on him
by agents of Kuwait. In this case, the English Court of Appeal affirmed:
“… no State or sovereign immunity should be accorded even under
the State Immunity Act in respect of acts which it is alleged are
properly to be described as torture in contravention of public
international law.”449

446 Ibid., at pp.355-357, paragraph 156b. These extracts were also cited by the Jerusalem District Court
in the Eichmann case of 12 December 1961, 36 ILR, p.47. The first two sentences of the second
paragraph have been reproduced in the 9th edition (1992) of Oppenheim's International Law edited by
Jennings and Watts at paragraph 157 and the spirit of the remainder of the text may be found at
paragraph 148. (Annex 62)
447 “The principle [of the absolute immunity of the Head of State] must be considered as having been
abandoned today where a violation of international law is imputable to a Head of State.” (Unofficial
translation by Belgium) Rousseau, Ch., Droit international public, Paris, Sirey, 1980, IV, at p.125.
(Annex 63)
448 “The immunity [of a Head of State] ... can no longer be invoked in the case of a prosecution for war
crimes. This results from Article 7 of the Statute of Nuremberg of 8 August 1945 and Article 6 of the
Statue of Tokyo.” Van Bogaert, E., Volkenrecht, Antwerpen, Kluwer, 1982, at pp.348-349 (translation
by Belgium). (Annex 64)
Part III, Chapter Five: Merits
175
3.5.129 The immunity of Kuwait was nevertheless accepted because the acts in
question had been committed outside the United Kingdom and the State Immunity Act
only provided an exception for certain categories of crimes committed in the United
Kingdom. Dr. Michael Byers criticised the acceptance of immunity in this case
because of the jus cogens nature of the prohibition of torture in the following terms:
“It has been established that customary international law is part of
English law and that English courts are not bound by the doctrine of
stare decisis when applying rules of customary international law. It
is also widely accepted that jus cogens rules are rules of customary
international law which have effects additional to those identified in
the 1969 Vienna Convention on the Law of Treaties. English
courts, when dealing with questions in respect of which the
legislator has not spoken, should therefore take into account the
development of the concept of jus cogens and the fact that certain
rules of customary international law now possess a jus cogens
character. In cases involving torture outside the United Kingdom,
the jus cogens character of the prohibition against torture may have
rendered void any rule of customary international law which might
otherwise have required English courts, when applying the common
law of State immunity, to grant immunity to foreign States".450
3.5.130 The author refers to a decision of the Court of Appeal of New Zealand in
1996 and, in particular, the following passage by the President of that Court:
“One can speculate that the law may gradually but steadily develop,
perhaps first excepting from sovereign immunity atrocities or the
use of weapons of mass destruction, perhaps ultimately going on to
except acts of war not authorised by the United Nations.”451
3.5.131 Mrs. V. Morris, a member of the UN Bureau of Legal Affairs since 1989,
and Professor M. Scharf, Legal Adviser to the US Department of State from 1989 to
1993, were closely associated with the preparation of the ICC Statute.
452 They
commented on the question of the immunity of foreign Heads of State for grave
breaches of international humanitarian law, without any consideration of whether a

449 Al-Adsani v. Governement of Kuwait and Others (England, CA), 21 January 1994, 100 ILR 465., at
p.471. (Annex 65)
450 Byers, M., "Decisions of British Courts during 1996 Involving Questions of Public or Private
International Law", 1996 BYIL, at pp.539-540. (Annex 66)
451 Ibid.
452 See the preface written by the former Prosecutor for the ICTY, Judge Goldstone, in The
International Criminal Tribunal for Rwanda, Irvington-on-Hudson, N.Y., Transnational Publ., 1998, at
pp.xi-xii. (Annex 39)
Part III, Chapter Five: Merits
176
prosecution was to take place before an international or national criminal court, in the
following terms:
“The notion of conferring immunity for crimes under international
law would be inconsistent with the very nature of these crimes for
four reasons. First, these crimes violate peremptory norms of
general international law (jus cogens) which have been ‘accepted
and recognised by the international community as a whole as norm
from which no derogation is permitted’ (Vienna Convention on the
Law of Treaties, 23 May 1969, Article 53 …). These norms are
intended to protect the fundamental interests of the international
community as a whole. Therefore the standard of conduct is
absolute. …
Second, the notion of immunity is inconsistent with the direct
applicability of the principle of individual criminal responsibility
and punishment for crimes under international [sic] by virtue of
international law notwithstanding the absence of any corresponding
national law or the presence of any conflicting national law. … The
notion of conferring immunity for war crimes or crimes against
humanity would be inconsistent with the principle of individual
criminal responsibility recognised in the Nuremberg Charter and
Judgment which represent the very core of the Nuremberg
precedent. The fundamental purpose of these principles is to
remove any possibility of immunity for persons responsible for such
crimes, from the most junior officer acting under the orders of a
superior to the most senior government officials acting in their
official capacity, including the head of State.
Third, no single State or group of States is competent to negate a
peremptory norm of general international law (jus cogens) which
‘can be modified only by a subsequent norm of general international
law having the same character’. … The erga omnes character of the
prohibition of crimes under international law is reflected in the
jurisdictional competence of all States to prosecute and punish any
individual who violates such a norm without consideration of the
usual requirements for the exercise of the national criminal
jurisdiction of a State …
Fourth and finally, the conferral of immunity would be inconsistent
with the absolute character of the procedural obligation of States to
prosecute and punish persons responsible for war crimes or
genocide recognised in the Geneva Conventions and the Genocide
Convention, respectively. … The fact that these obligations have
often been honored in the breach does not erode the legal force of
the norms. …
No State has the authority to unilaterally preclude by a grant of
immunity another State from exercising its criminal jurisdiction
Part III, Chapter Five: Merits
177
with respect to a crime under its national law or a crime under
international law.”453
3.5.132 As a result of the Pinochet case, several authors clearly affirmed
incompatibility of absolute immunity of high foreign representatives implicated in
infringements of elementary human rights as part of the rule of the absolute respect of
such rights. Thus, for Prof. Bainchi:
“Ultimately, any argument based on state sovereignty is inherently
flawed. First, external scrutiny of state action as regards human
rights is permitted under contemporary standards of international
law and sovereignty can no longer be invoked to justify human
rights abuses. Secondly, and perhaps most importantly, human
rights atrocities cannot be qualified as sovereign acts: international
law cannot regard as sovereign those acts which are not merely a
violation of it, but constitute an attack against its very foundation
and predominant values (see also Higgins … ‘Acts in the exercise of
sovereign authority (acta jure imperii) are those which can only be
performed by states, but not by private persons. Property
deprivation might fall in this category; torture would not.’ [‘The
Role of Domestic Courts in the Enforcement of international Human
Rights: The United Kingdom’, in B. Conforti and F. Francioni (eds),
Enforcing International Human Rights Before Domestic Courts,
1997, p.53]). Finally, the characterisation of the prohibition of
torture and other egregious violations of human rights as jus cogens
norms should have the consequence of trumping a plea of state
immunity by states and states officials in civil proceedings as well.
As a matter of international law, there is no doubt that jus cogens
norms, because of their higher status, must prevail over other
international rules, including jurisdictional immunities.454
For J.M. Sears:
“Most convincingly, the Law Lords indicated that it would be
wholly inconsistent with international law (and common sense) to
allow heads of state to go unpunished for state acts of torture when
junior officials would be liable. … [G]iven the inconsistency which
necessarily results from the exemption of heads of state from
responsibility for torture, which by definition requires action in an
official capacity, this author believes the view of the majority of
Lords to be correct. In this vein, the overwhelming adoption of the

453 Ibid, at pp.285-290. (Annex 39) Both Scharf and Morris have repeated and expanded on the point
that they had already developed in An Insider's Guide to the International Criminal Tribunal for the
former Yugoslavia, Irvington-on-Hudson, N.Y., Transnational Publ., 1995, at pp.112-115.
454 Bianchi, A “Immunity versus Human Rights: the Pinochet Case”, (1999) EJIL, at p.265. (Annex 67)
Part III, Chapter Five: Merits
178
Rome Statute is a very positive sign that, Cold War politics now
aside, states can get down to serious business in enforcing the
Nuremberg principles. The efforts of one ad hoc tribunal are
contributing in large part to this development.”455
For S. Villalpando:
“… la condamnation suprême des crimes contre l’humanité et le
principe d’universalité pour sa répression paraissent incompatibles
avec la défense fondée sur l’immunité.”456
For C.M. Chinkin, who, however, limits her analysis to the case of a
former Head of State, the Pinochet Judgment
“represents the globalisation of human rights law through the
affirmation that the consequences of, and jurisdiction over, gross
violations are not limited to the state in which they (mostly) occur,
or of that of nationality of the majority of the victims. It validates
the assertion that torture is always unacceptable and unjustifiable on
any grounds and provides a memorial to the thousands who did not
survive. Further, obligations incurred by human rights treaties, such
as the Torture Convention, can be enforced extraterritorially, a blow
to those regimes (such as that of Pinochet himself) that cynically
become bound by these treaties with contemptuous disregard for
their requirements.”457
3.5.133 Professor E. Decaux writes that the charge of torture in the 1984 UN
Convention Against Torture (Articles 2, 4-7), and the obligation to prosecute the
perpetrator of forced disappearance set down in the UN General Assembly
Declaration of 18 December 1992,458 implies the exclusion of any form of immunity
for the perpetrator of such acts:
“Mais l’esprit de ces textes est clair, ils visent à écarter toute forme
d’impunité et donc d’immunité pour le chef de l’Etat.”459

455 Sears, J.M., “Confronting the ‘Culture of Impunity’: Immunity of Heads of State from Nuremberg
to ex parte Pinochet”, (1999) GYIL, at p.144. (Annex 68)
456 “... the supreme combination of crimes against humanity and the principle of the universality of its
repression seem incompatible with a defense based on immunity.” Villalpando, S., supra., at p.424.
(Unofficial translation by Belgium) (Annex 69)
457 Chinkin, C.M., “International Decisions”, (1999) AJIL, at p.711. (Annex 70)
458 A/RES/47/133, 18 December 1992, at Article 14.
459 “but the spirit of these texts is clear, they aim to eliminate any form of impunity and therefore
immunity for the head of State.” Decaux, E., “Les gouvernants”, in Droit international pénal, s/ la dir.
Part III, Chapter Five: Merits
179
3.5.134 He concludes his analysis referring to the Pinochet case in the following
terms:
“C’est cette nature du crime qui empêche toute immunité, et non le
fait que le chef de l’Etat aurait quitté le pouvoir ou que son crime
serait privatisé, voire banalisé.”460
3.5.135 P. Burns and S. McBurney, after analysing the pertinent provisions of the
Statutes of international criminal courts, conclude:
“State courts which function as the domestic agents of these
regimes, notably within the pending ICC regime, can also exercise
such a jurisdiction without the constraint of pleas of immunity.”461
3.5.136 Professor Antonio Cassese, former President of the ICTY, has observed that
Heads of State benefit from immunity of jurisdiction in foreign States for acts carried
out in their official capacity but that “this privilege does not apply when they are
accused of international crimes, and they may be brought to justice for such
crimes”.462 Noting that all this is found in the Statute of the ICTY and the ICC, he
concludes:
“As these treaty rules or provisions of ‘legislative’ acts adopted by
the SC have been borne out by State practice, it is safe to contend
that they have turned into customary law.”463
3.5.137 Based on the various sources that exclude the immunity of foreign Heads of
State for grave breaches of international humanitarian law,464 and on the ‘Principles’

de H. Ascensio, E. Decaux et A. Pellet, Paris, Pédone, 2000, p.192, at paragraph 28 (Unofficial
translation by Belgium).
460 “The nature of the crime is what prevents any immunity, not the fact that the head of State has left
power or that his crime has been privatised, or made ordinary.” Ibid, at p.199, paragraph 48 (Unofficial
translation by Belgium).
461 Burns, P. and McBurney, S., “Impunity and the United Nations Convention against Torture: A
Shadow Play without an Ending”, in Torture as Tort, ed. by C. Scott, Oxford – Portland, Hart Publ.,
2001, p.280. (Annex 71)
462 Cassese, A. International Law, Oxford Univ. Press, 2001, at p.260. (Annex 47)
463 Ibid.
464 See paragraph 3.5.15 et seq. above.
Part III, Chapter Five: Merits
180
of prevention of extra-judicial executions adopted by the UN Economic and Social
Council in 1989,465 H. Duffy writes:
“These Principles may provide further indication of opinio juris
concerning the non-applicability of immunity to the gravest
international crimes. In summary, were constitutional immunity
provisions interpreted to guarantee absolute immunity from
domestic prosecutions and surrender to the ICC, they would
contradict already established international obligations. …
To the extent that immunities were intended to enable the
beneficiary to carry out his or her functions unhindered, they should
not protect those who perpetrate criminal acts. Crimes do not
constitute the official functions of any parliamentarian, government
official or head of state and therefore fall outside of the scope of
immunity.”466
3.5.138 In an in-depth analysis of the immunity of foreign Heads of State in the event
of a crime under international law, Professor S. Zappalà develops a theory very
similar to the Belgian stance. He makes the distinction between the “functional”
immunity of Heads of State and their “personal” immunity. It is clear that the former
is not applicable in the case of crimes under international law given the existence of a
customary rule excluding it. This customary rule is found notably in the Statutes of
international criminal courts. Zappalà goes on to state:
“… there is a compelling argument supporting the conclusion that
international crimes are an exception to functional immunity from
jurisdiction under customary international law. The inclusion of this
principle in the Statutes of the UN ad hoc Tribunals (ICTY and
ICTR; and also in the Statute of the Special Court for Sierra Leone)
cannot be considered simply as a treaty stipulation. Were one to
accept this is only a treaty-based principle, one would have to
perforce conclude that the Tribunals are enjoined or allowed to
apply retroactive law. In other words, if – before the adoption of the
Statutes – the irrelevance of official capacity had not already been a
rule of customary law, Heads of State and other senior state officials
accused of crimes under the Statutes might not be considered
responsible for acts committed at any time prior to the adoption of
the statutes themselves. Otherwise, the nullum crimen sine lege
principle would be breached.”467

465 See paragraph 3.5.51 above.
466 Duffy, H., “National Constitutional Compatibility and the International Criminal Court”, (2001)
Duke JCIL, at pp.30-31. (Annex 72)
467 Zappala, loc. cit., at pp.602-603. (Annex 48)
Part III, Chapter Five: Merits
181
3.5.139 The absence of functional immunity, according to the author, does not
exclude the existence of personal immunity, even for crimes under international law.
However, this does not necessarily exclude the prosecution against the person in
question, or even measures of execution, as long as the person in question is aware of
the risk that he runs by coming to the territory of the foreign State:
“… personal (diplomatic) immunity should certainly be recognised
for official visits, including the case of international crimes. … for
private visits, a more elaborate solution is needed. … foreign Heads
of State – because they generally represent their nations in external
relations – should not be arrested even if they are on a private visit
unless it can be proved that the competent authorities of the state
exercising jurisdiction (or a competent international body) do not
(or no longer) consider that Head of State an appropriate counterpart
in international relations. … In other words, a Head of State should
not be taken by surprise, and a sort of warning that he or she may be
not welcome in a foreign country should be required.”468
3.5.140 This seems to have been the case when Mr Yerodia Ndombasi was informed
by certain States, when he applied to them for a visa, that he could be arrested if he
came to their territory.469 This was a way of saying to Mr Yerodia Ndombasi that his
capacity as minister would not be recognised. The author concludes:
“At this stage of development of international criminal law one must
conclude that functional immunity cannot be granted to state
officials that have committed crimes under customary international
law. This exception to the principle of functional immunity must
equally apply to Heads of State. On the other hand, the personal
immunity of Heads of State from jurisdiction always covers official
visits abroad. Additionally, private visits are also protected,
although to a more limited extent. As to the latter, one might go so
far as to suggest that restrictions to personal immunity may be
imposed by a state, if it were proven that the state whose jurisdiction
is triggered has refused to accept the Head of State concerned as a
counterpart in foreign relations.”470
3.5.141 Fundamentally, even if this study makes the distinction between the
functional immunity and personal immunity of foreign representatives – a distinction
which is not to be found in positive international law – it leads to conclusions close to

468 Ibid., at p.606.
469 DRC Memorial at paragraph 52.
Part III, Chapter Five: Merits
182
those defended by Belgium in the present case: recognition of the immunity of a
foreign government minister, who is nevertheless liable for serious crimes under
international humanitarian law, in the event of an invitation of that person by the State
where prosecution has been undertaken (so-called “personal” immunity); no
immunity in the event of a private visit, subject to that party knowing of the existence
of prosecution against him.
3.5.142 In a similar field – that of the Act of State doctrine – the American Law
Institute affirmed, in the Third Restatement of the Foreign Relations Law of the
United States:
“A claim arising out of an alleged violation of fundamental human
rights – for instance, a claim on behalf of a victim of torture or
genocide – would (if otherwise sustainable) probably not be
defeated by the act of state doctrine since the accepted international
law of human rights is well established and contemplates external
scrutiny of such acts.”471
3.5.143 Belgian literature is split on these questions, particularly at the time of the
order made on 6 November 1988 by Judge Vandermeersch in the Pinochet case.472 If
two authors (J. Verhoeven473 and P. d'Argent474) criticise this ruling and declare that
they are in favour of maintaining immunity of jurisdiction of a foreign Head of State,
even in the case of serious breaches of international humanitarian law, nearly ten
others entirely approved the ruling.
3.5.144 The criticism of the ruling is based essentially on the fact that the immunity
of Heads of State is a customary rule, that there is no practice to the contrary,475 and

470 Op cit.., Zappala, at p.611.
471 The American Law Institute, Restatement of the Law (Third) : the Foreign Relations Law of the
United States, St. Paul, American Law Institute Publ., 1987, at §443, comment “c”; (Annex 73) see
also Sharon v. Time, Inc. (US Dist. Crt., SDNY), 12 November 1984, 599 F.Supp., at p.552; (Annex
74) and Bühler, M., “The Emperor’s New Clothes: Defabricating the Myth of ‘Act of State’ in AngloCanadian
Law”, in Torture as Tort, op. cit., p.363. (Annex 75)
472 Pinochet, (Civ. Brussels), Judgment of 6 November 1998, JT 1999, at pp.308-311; observations by
J. Verhoeven; RDPC, 1999, at pp.278-290, and the note J.B. Labrin and H. D. Bosly; see paragraph
3.5.86 above.
473 Ibid., Verhoeven, J., at p.312; DRC Memorial, Annex 15.
474 D’Argent, P., “La loi du 10 février 1999 relative à la répression des violations graves du droit
international humanitaire”, J.T., 1999, at p.552 ; DRC Memorial, Annex 14.
475 Op. cit., Verhoeven, J., at p.312; DRC Memorial, Annex 15.
Part III, Chapter Five: Merits
183
that the Statutes of international criminal tribunals only concern those tribunals and
are not transposable to national courts.476
3.5.145 To the contrary, L. Weerts and A. Weyembergh, who refer to traditional
sources on exclusion of immunity,
477 consider that the refusal of immunity to
Pinochet was legally founded:
“International customary law indisputably establishes this exception
to the principle of sovereign immunity for war crimes, crimes
against peace or against humanity.”478
3.5.146 Weyembergh developed the above conclusion and showed that the absence
of practice does not question the customary rule excluding immunity of a Head of
State accused of serious crimes of international humanitarian law. The material
element of the custom is not limited to the absence of practice. It also resides in
repeated affirmations of the rule:
“Il est erroné d’affirmer que l’exception à l’immunité des chefs
d’Etat n’est pas coutumière parce que, n’ayant jamais débouché sur
une condamnation pénale d’un chef d’Etat, l’élément matériel fait
défaut. En effet, l’élément matériel ne consiste pas uniquement
dans la condamnation pénale d’un chef d’Etat. La règle est de plus
en plus souvent rappelée par les Etats. De simples mises en
accusation, comme celle de Guillaume II par le Traité de Versailles
ou des demandes d’extradition comme celles adressées par plusieurs
juges de pays différents à l’égard de Pinochet sont aussi des
éléments matériels à prendre en compte, de même que les décisions
précitées rendues par certaines juridictions internationales, l’arrêt de
la Chambre des Lords du 25 novembre 1998 et les statuts des
Tribunaux ad hoc et de la Cour pénale internationale où l’exception
à l’immunité des chefs d’Etat est répétée.”479

476 Op. cit., at p.552 ; DRC Memorial, Annex 14.
477 See paragraphs 3.5.15 et seq. above.
478 Weerts, L. and Weyembergh, A., (1999) 2 YIHL at p.337.
479 “It is a mistake to affirm that the exception to immunity of Heads of State is not customary because,
since it has never resulted in a criminal condemnation of a Head of State, the material element is
missing. Indeed, the material element does not consist exclusively of the criminal condemnation of a
Head of State. The rule is recalled more and more often by States. Simple charges, such as those
against William II by the Treaty of Versailles or petitions for extradition like the ones addressed by
several judges of different countries with regard to Pinochet are also material elements to be taken into
account, along with the above-mentioned rulings of several international jurisdictions, the judgment of
the House of Lords of 25 November 1998 and the Statutes of the ad hoc Tribunals and the International
Criminal Court where the exception to the immunity of Heads of State is repeated.” Weyembergh, A.,
Part III, Chapter Five: Merits
184
3.5.147 J.B. Labrin and H.-D. Bosly, without analysing the special case of immunity,
approve the ruling on the whole:
“L’ordonnance publiée ci-dessus, dont la motivation constitue un
modèle de précision et de pertinence s’inscrit dans cette évolution
positive du droit international. Elle mérite d’être approuvée sans
réserve.”480
3.5.148 For Naert, in the absence of a treaty expressly excluding the immunity of a
Head of State, States now have the choice of granting or refusing immunity in the
event of crimes against humanity:
“Internationale instrumenten inzake misdaden tegen de
menselijkheid sluiten meestal immuniteit van staatshoofden uit. Op
nationaal vlak kan men m. i. stellen dat, wanneer er geen verdrag
van toepassing is, staten nu de keuze hebben.”481
3.5.149 In a long collective study, Goffin, Denis, Chapaux, Magasich and Goldman
observe that the classical sources of exclusion of the immunity of a Head of State in
the event of grave breaches of international humanitarian law justify the reasoning
that underlies the ruling:
“L’ensemble de ces précédents [statuts des juridictions pénales
internationales, textes CDI, etc] ainsi que leur caractère obligatoire
établissent à suffisance l’existence d’une coutume. Contrairement à
ce que d’aucuns ont soutenu, le fait qu’ils se rapportent
essentiellement à des juridictions internationales est sans incidence.
La règle coutumière est en effet claire: la qualité officielle de
l’auteur ne l’exonère pas de sa responsabilité pénale qu’il soit
traduit ou non devant une juridiction pénale internationale. Par
application de la règle international law is part of the law of the

“Sur l’ordonnance du juge d’instruction Vandermeersch rendue dans l’affaire Pinochet le 6 novembre
1998”, RBDI, 1999, at pp.190-191. (Unofficial translation by Belgium) (Annex 77)
480 “The published order here above, the grounds for which are a model of accuracy and pertinence, is
in line with the positive evolution of international law. It deserves to be approved without reserve.”
Obs. s/ Civ. Brussels, Judgment of 6 November 1998, Pinochet, (Unofficial translation by Belgium).
(Annex 76)
481 “International instruments relating to crimes against humanity generally exclude the immunity of
Heads of State. On a national level, one can consider that in the absence of an applicable treaty, the
States now have the choice.” (unofficial translation by Belgium). Naert, F., “Zijn (ex-)staatshoofden
immuun inzake misdaden tegen de menselijkheid? Kanttekeningen bij de zaak Pinochet” (Les ex-chefs
d’Etat bénéficient-ils de l’immunité en ce qui concerne des crimes contre l’humanité ? Remarques sur
l’aff. Pinochet), R.W., 1998-1999, at p.1505. (Annex 78)
Part III, Chapter Five: Merits
185
land, cette règle coutumière fait partie du droit interne belge sans
qu’il soit nécessaire de l’y recevoir par un procédé formel
quelconque.”482
3.5.150 These examples show that when the literature that focuses on criminal
immunity of high foreign representatives, not in general, but in the particular case of
serious crimes under international humanitarian law, it tends to recognise that this
immunity does not protect the perpetrator of such crimes. There are of course those
who disagree. But it is remarkable to observe to what extent those who argue in
favour of absolute immunity never seriously examine the sources that exclude this
immunity in the event of grave breaches of international humanitarian law.
3.5.151 In conclusion, the DRC may claim that the exception “au régime des
immunités pénales des chefs d'Etat étrangers et des personnes assimilées” is “en
réalité inexistante”.483 However, all the texts, positions and decisions mentioned
support the contrary conclusion. The principle of the “absolute” immunity from
criminal proceedings of such these persons is non-existent in cases – fortunately,
fairly rare in practice – in which high representatives are alleged to have committed
serious crimes under international humanitarian law. Practice, case law and literature
all demonstrate that the immunity that normally avails such persons ceases in view of
the higher values of the struggle against impunity for certain crimes and the respect of
the most elementary rule of law.
II. The DRC’s other arguments in favour of the absolute immunity of the
members of foreign governments in office

482 “All of these precedents [statutes of international criminal jurisdictions, ILC texts, etc.] and their
mandatory nature sufficiently establish the existence of a custom. Contrary to what some have
maintained, the fact that they refer essentially to international jurisdictions has no incidence. The
customary rule is indeed clear: the official capacity of the perpetrator does not exempt him from
criminal liability whether he is or is not brought before an international criminal court. By application
of the rule international law is part of the law of the land, this customary rule is part of Belgian
national law without having to be adopted by a formal process of any kind.” Goffin, Denis, Chapaux,
Magasich and Goldman, “La mise en œuvre du droit pénal international dans l’ordre juridique belge:
perspectives au regard de l’ordonnance du 6 novembre 1998”, Rev. dr. étr., 1999, at p.427. (Unofficial
translaytion by Belgium) (Annex 79)
483 "to the scheme of criminal immunity of Heads of foreign States and persons assimilated" … "in
reality non-existent", DRC Memorial, at paragraph 60 (unofficial translation by Belgium).
Part III, Chapter Five: Merits
186
3.5.152 A number of other arguments were advanced in the DRC Memorial in favour
of the absolute immunity of members of foreign governments in office. As not all are
relevant to the dispute at hand, Belgium will limit itself to addressing those arguments
that the DRC has particularly emphasised.
3.5.153 These arguments can be grouped around the following main ideas:
· the immunity of high foreign representatives would be an objective rule
imposed upon Belgium (a);
· the Belgian national legal order would be opposed to any recognition of
immunity once the investigating judge has issued the arrest warrant (b);
· recognising immunity of a high foreign representative who has been accused
of serious crimes under international humanitarian law would be
contradictory with the jus cogens nature of these crimes (c); and
· the absence of execution of the arrest warrant by the States shows that opinio
juris supports absolute immunity from criminal jurisdiction of high foreign
representatives (d).
Part III, Chapter Five: Merits
187
(a) The immunity of high foreign representatives is an objective rule imposed
upon Belgium
3.5.154 At the provisional measures phase, Belgium stated that, pursuant to the
express terms of the arrest warrant,484 the warrant took account of the immunity of the
high foreign representative because it could not be executed in the event that Mr
Yerodia Ndombasi was invited to come to Belgium by the Belgian Government or by
an international organisation of which Belgium is a member. Under such
circumstances, indeed, the most elementary fairness would require the judge to refrain
from arresting someone so invited.485
3.5.155 This account of the immunity of a high foreign representative who is
nevertheless under investigation, has been criticised by the DRC on the ground that
Belgium seems to subordinate recognition of the immunity of a high foreign
representative to its own appreciation alone, whereas this immunity is imposed on all
States who host the high foreign representative. This is allegedly a rule of customary
international law which does not depend in any way on the consent of State to accept
the high foreign representative on its territory. The DRC notably states:
“Ensuite, et plus fondamentalement, l'argument témoigne de la
mauvaise compréhension qu'ont les autorités belges de ce qu'est
l'inviolabilité et l'immunité pénale absolues des hauts représentants
des Etats étrangers. L'argument donne en effet à penser que ce serait
la Belgique qui, en quelque sorte, 'distribuerait', accorderait ces
privilèges d'inviolabilité et d'immunité aux hauts dignitaires
étrangers invités. Rien ne saurait être plus erroné … L'existence de
ces privilèges ne dépend nullement du consentement qui serait
donné par une autorité étrangère à leur déplacement dans cet Etat …
La vérité est que tout Etat invitant un chef d'Etat, un Permier
ministre, un misistre des Affaires étrangères … est tenu de respecter
l'inviolabilité et l'immunité pénale absolues qui est la leur en droit
international coutumier.”486

484 CR 2000/33, 21 November 2000, at p.27.
485 CR 2000/33, 21 November 2000, at p.27, paragraph 21.
486 “Finally, and more fundamentally, the [Belgian] argument demonstrates a misunderstanding by
Belgian authorities of the absolute inviolability and immunity of the high representatives of foreign
States. The argument gives the impression that Belgium is the one that ‘distributes’ so to speak, or
grants these privileges of inviolability and immunity to the foreign dignitaries invited. Nothing could
be more erroneous ... The existence of these privileges in no way depends on the consent given by
foreign authority to the travel in the State ... The truth is that any State that invites a Head of State, a
Prime Minister, the Minister of Foreign Affairs ... is bound to respect the complete inviolability and
Part III, Chapter Five: Merits
188
3.5.156 The DRC's argument amounts to saying that Belgium cannot subject the
immunity of a high foreign representative to its appreciation. Such immunity is
allegedly an objective rule imposed upon Belgium. This claim calls for the following
responses.
(1) The DRC's argument is based on the presupposition that the immunity from
criminal process of a high foreign representative is absolute and without
exception. As described above, however, this is not the case. Both
customary and conventional international law establish an exception to such
immunity in the case of a person accused of serious crimes under
international humanitarian law;487
(2) If the immunity of a high foreign representative is not therefore an obstacle
to the arrest of a high foreign official accused of serious crimes under
international humanitarian law, nevertheless the investigating judge is always
free not to execute an arrest warrant in keeping with the broad power of
appreciation that he has in this matter. Article 16 of the Loi du 20 juillet
1990 on preventive detention is very clear.
488 In the case of “absolute
necessity for security, and for offences of a certain gravity the investigating
judge can issue an arrest warrant” (emphasis added). This is a decision that
he takes on the basis of all the elements of the investigation.489 In addition,
pursuant to Article 25 of the above-mentioned Law of 1990, the investigating
judge is authorised “to give relief from the arrest warrant”.
490 Furthermore,
“this power can be exercised at any time of the investigation without any
restriction”.491
An official invitation to Mr Yerodia Ndombasi to come to Belgium would be
an element prompting the investigating judge to suspend the effects of the

immunity that belongs to them under international customary law.” (Unofficial translation by
Belgium) DRC Memorial, at paragraph 54.
487 See paragraphs 3.5.15 et seq. above.
488 Annex 96
489 See. Art. 16 § 2 of the Law of 20 July 1990. (Annex 96)
490 Ibid.
491 Bosly, H.-D. and Vandermeersch, D., Droit de la procédure pénale, Bruges, La Charte, 1999, at
p.532.
Part III, Chapter Five: Merits
189
arrest warrant – in casu, the investigating judge considers that he would
engage Belgium’s responsibility if he were to arrest Mr Yerodia Ndombasi in
circumstances in which he had been officially invited to Belgium. In fact,
were Mr Yerodia Ndombasi to have been invited to Belgium to discuss, for
example, cooperation between the two countries, he would have been entitled
to believe that he would not be arrested in virtue of the principles of good
faith. By arresting Mr Yerodia Ndombasi in such circumstances, the
investigating judge would betray the implicit commitment made by Belgium
that Mr Yerodia Ndombasi would not be arrested. The investigating judge
would thus engage the responsibility of Belgium with regard to the unity of
the State in international law.492
There are precedents. In the Schnoebelé
case of 1887, a French police commissioner was invited by a German
counterpart to confer with him and was arrested as soon as he crossed the
border. Bismarck ordered his immediate release:
“en se basant sur le principe du droit des gens, d’après lequel
il faut toujours considérer comme un véritable sauf-conduit
l’invitation qui entraîne une traversée de la frontière dans le
but de régler des questions administratives entre deux Etats
voisins. Il n’est pas croyable que le fonctionnaire allemand ait
donné rendez-vous à M. Schnoebelé pour rendre possible
l’arrestation de celui-ci.”493
This is similar to the situation whereby someone comes to negotiate with the
enemy under the cover of a flag of truce in an armed conflict. By accepting
this negotiation, the enemy recognises the inviolability of the negotiator,
even if he is guilty of the worst crimes. Such immunity is all the more
justified in that it is limited in duration. Once it has ended and the negotiator
has returned to his lines, the immunity that he enjoyed ceases to be effective.

492 Proposal for articles of the ILC on liability of States, Art. 6. Ann.CDI, 1973, II, pp. 197-201 ; in the
same vein, proposal of articles provisionally adopted by the editorial committee in a 2nd reading, Art. 5,
ILC Report, 2000. See further CR 2000/33, 21 November 2000, at p.27, paragraph 21.
493 “based on the principle of human rights, according to which an invitation entailing crossing the
border to settle administrative questions between two neighbouring States must always be considered
as a veritable safe-conduct. It is not credible that a German civil servant could have given an
appointment to Mr. Schnoebelé to make his arrest possible.” Cited in Travers, M., “Arrestations en
cas de venue involontaire sur le territoire”, RDI privé et dr. pénal internat., 1917, at p.639 (Unofficial
translation by Belgium).
Part III, Chapter Five: Merits
190
(3) In any case, it is not accurate to think that the immunity of a high foreign
representative is an objective right valid erga omnes. Examples (one of
which is quoted by the DRC itself494) show that this is not the case. If
immunity is not recognised for persons such as Yasser Arafat or General
Noriega, this is because governments, respectively Italian495 and
American,496 did not recognise their capacity as Heads of State.
Another example, also quoted by the DRC,497 reasons along the same lines.
This is the case of a Peruvian officer accused in 1997 by a Peruvian civil
servant of torture. Together with three colleagues, he was sentenced to 8
years in prison by a Peruvian court but was released a year later. In March
2000, he was invited by the Inter-American Commission on Human Rights to
take part in a hearing in Washington on phone tapping. He was then arrested
by the FBI at Houston airport with a view to possible prosecution for acts of
torture. The Department of Justice having consulted the State Department,
decided that the officer:
“was entitled to immunity from prosecution as a diplomatic
representative of his government present in the United States
for an official appearance before an international
organisation.”498
In other words, just as Belgium has observed with regard to the immunity
that it recognises were Mr Yerodia Ndombasi to have been officially invited
by the Belgian Government or by an international organisation of which
Belgium is a member, the United States refrained from prosecuting the
person in question given that he was the official guest of the Inter-American
Commission of Human Rights in Washington.

494 DRC Memorial, at paragraph 40, fn.1.
495 Cass. it., 28 June1985, R.G.D.I.P., 1988, pp. 534-537 and IYIL, 1986-1987, pp. 295-298.
496 U.S. Distr. Crt., S. D. Fla., 8 June 1990, 99 ILR, pp.161-162.
497 DRC Memorial, at paragraph 68.
498 “Contemporary Practice of the United States” (2000) AJIL, at pp.535-536 (emphasis added).
Part III, Chapter Five: Merits
191
If it is inaccurate to say that the criminal immunity of a high foreign
representative is absolute, it is also moot to say that, in the hypothesis that it
does not apply, the forum State is prohibited from making it effective.
(b) The Belgian national legal order is opposed to any recognition of immunity
once the investigating judge has issued the arrest warrant
3.5.157 This is the DRC’s answer to Belgium’s affirmation, in the provisional
measures phase, that Mr Yerodia Ndombasi would not be prosecuted if he were
officially invited to Belgium by the Belgian government or by an international
organisation of which Belgium is a member .499
3.5.158 For the DRC, this hypothesis is impossible to imagine because the principle
of separation of powers would be opposed to the suspension of the effects of the arrest
warrant by the Belgian investigating judge further to an invitation addressed by the
Belgian Government to Mr Yerodia Ndombasi. The DRC contends that the Belgian
“argument”
“is a very surprising one. On one hand, it is intrinsically
contradictory in that it ignores, which is particularly surprising, the
principle of the separation of powers which is however set down in
the Belgian Constitution. There is no need to dwell on this question,
except to underline that Belgium advances a supposed 'escape
clause' that its own national legal order does not allow it to
apply.”500
3.5.159 As regards this reasoning of the DRC:
(1) Is this in fact an argument and to what is it an answer? Belgium limited itself
to saying that it could recognise criminal immunity for Mr Yerodia
Ndombasi under the restrictive hypothesis of an official invitation to come to
Belgium. This recognition should at least partially satisfy the DRC since it
wants Mr Yerodia Ndombasi’s immunity to be recognised. The dispute
between the DRC and Belgium is thus reduced to the condition that Belgium

499 CR 2000/33, 21 November 2000, at p.27, paragraph 21.
500 DRC Memorial, at paragraph 54. See also paragraph 63.
Part III, Chapter Five: Merits
192
does not recognise this immunity. Where Belgium does recognise the
immunity of the person in question, there is no dispute and the DRC’s
reasoning has no purpose.
Only insofar as it is considered that the DRC’s reasoning has a practical
purpose – quod non – need its content be addressed.
(2) What the DRC refers to as the Belgian “argument” was simply a
clarification. Belgium nevertheless wants to clarify any misunderstanding
about what it said. There is no question of jeopardising the separation of
powers. The Belgium Government has never claimed that it could prohibit
the investigating judge from executing the arrest warrant or, reciprocally, that
the investigating judge could order the Government to grant immunity to Mr
Yerodia Ndombasi. The investigating judge simply stated that he would not
execute the arrest warrant in the event that Mr Yerodia Ndombasi were to be
officially invited to come to Belgium for the reasons stated above.501
The principle of the separation of powers is therefore intact. Indeed, more so
than if, for example, the executive of a State, in order to obtain extradition of
someone sought by its judicial system, undertakes to say that it will not apply
capital punishment. This practice is nevertheless accepted in many
democratic States, including Belgium,502 and has never created any particular
difficulty as concerns respect of the principle of separation of powers. The
DRC’s argument is thus ineffective.
(c) Recognising immunity of a high foreign representative who has been accused
of crimes under international humanitarian law would be contradictory with the jus
cogens nature of the repression of these crimes
3.5.160 The DRC considers that Belgium contradicts itself by affirming, on the one
hand, that punishment of crimes under international humanitarian law is a jus cogens

501 See paragraph 3.5.157 at subparagraph (2).
Part III, Chapter Five: Merits
193
rule, and on the other, that it would recognise Mr Yerodia Ndombasi's immunity
should he be officially invited to come to Belgium:
“It is hard to understand that Belgium can unilaterally grant that
which it maintains jus cogens prohibits.”503
3.5.161 Again two remarks:
(1) As in the previous case, the practical utility of the DRC’s reasoning can be
questioned. If it considers that Belgium cannot question Mr Yerodia
Ndombasi’s practical immunity, and if Belgium accepts this immunity under
the particular case of an official invitation, there is no dispute to be settled, at
least in this case, and the claim by the DRC against Belgium becomes purely
academic.
For the same reasons as in the previous case, only insofar as the DRC’s
reasoning has some practical purpose – quod non – need its content be
considered.
(2) Belgium has never affirmed that the punishment of crimes under
international humanitarian law was a jus cogens obligation insofar as those
crimes were committed outside its territory and by persons who were not
found on its territory. Conversely, Belgium considers that, if these crimes
were committed on its territory or if their perpetrator were found on Belgian
territory, Belgium, like all other States confronted with the situation, would
be obliged to prosecute these crimes.
This obligation to prosecute is similar to a jus cogens obligation in view of
the gravity of the crimes, the universality of the rules which provide for their
punishment, the strength with which the obligation is affirmed and their

502 See the Belgian law on extradition of 15 March 1874, amended on 31 July 1985, art. 1 § 2, 3e
item.;
along the same lines, the European Extradition Convention of 12 December 1957, Art. 11.; The
Benelux Treaty for Extradition and Judicial Assistance of 27 June 1962, Art. 10; etc.
503 DRC Memorial, at paragraph 54.
Part III, Chapter Five: Merits
194
relation with the obligation to insure the most elementary rules of human
rights.504
On this point, however, Belgium agrees with the DRC in saying that
immunity does not mean impunity.505 If States must prosecute crimes under
international humanitarian law, nowhere is it said that they must do so hic et
nunc. There is, therefore, no contradiction with positive international law
should the investigating judge refrain from executing an arrest warrant issued
against Mr Yerodia Ndombasi in the event that he were to be officially
invited to come to Belgium. In casu, charges would not be dropped or voided
but simply suspended. Belgium would not be in breach of its imperative
obligation to prosecute.
(d) The absence of execution of the arrest warrant by third States shows that
opinio juris supports absolute criminal immunity of a high foreign representative
3.5.162 As Belgium observed at the beginning of this chapter, the DRC has stated
that no State has acted on the arrest warrant and that this shows the existence of a
custom sanctioning the absolute criminal immunity of a high foreign representative.
We recall what the DRC said in its Memorial:
“Aucun Etat n'ayant à ce jour donné suite à ce mandat d'arrêt, il ne
faut pas s'interroger plus avant sur la responsabilité spécifique qui
pourrait en résulter dans le chef de l'Etat qui l'exécute, ni sur la
manière dont celle-ci devrait s'articuler par rapport à celle, en
qulque sorte originaire, de l'Etat belge. Le fait qu'aucun Etat n'a à ce
jour donné suite au mandat d'arrêt du 11 avril 2000 est toutefois le
signe de l'opinio juris dominante suivant laquelle tout ministre des
Affaires étrangères en exercice bénéfice d'une inviolabilité et d'une
immunité pénale absolues, ainsi qu'il fut rappelé ci-avant.”506

504 See Chapter 3.
505 DRC Memorial, at paragraph 73.
506 “As no State has to date enforced this Arrest Warrant, there is no need to go further into the specific
responsibility that might result for the State that enforces it, nor on the way that responsibility would be
interconnected with that of the Belgian State which is the originating authority so to speak. The fact
that no State has to date enforced the Arrest Warrant of 11 April 2000 is, however, a sign of the
dominant opinio juris maintaining that any Minister of Foreign Affairs in office benefits from complete
inviolability and immunity, as recalled above.” DRC Memorial, paragraph 55 (Unofficial translation by
Belgium).
Part III, Chapter Five: Merits
195
3.5.163 As has already been observed, this argument logically leads to the
inadmissibility of the DRC’s request.507 If no State has acted on the arrest warrant,
and if this refusal to act on it is the expression of the dominant opinio juris, it is hard
to see what the DRC is complaining about, since, Mr Yerodia Ndombasi’s immunity
would be recognised in all third States.
3.5.164 If, on the contrary, certain third States had been willing to execute the arrest
warrant, opinio juris would consequently not be what the DRC supposes. In fact, to
the knowledge of Belgium, it seems that Mr Yerodia Ndombasi, on applying for a
visa to go to two countries, learned that he ran the risk of being arrested as a result of
the arrest warrant issued against him by Belgium. This, moreover, is what the DRC
itself hints when it writes that the arrest warrant “obligea le ministre Yerodia à
emprunter des voies parfois moins directes pour voyager”.508 Consequently, the claim
that there is opinio juris, which is demonstrated by the fact that the arrest warrant was
not acted upon by other States is not founded.
3.5.165 In conclusion, Belgium observes that
· the submission by the DRC that the criminal immunity of a high
representative is absolute and is imposed on States does not take account of
exceptions to this immunity stipulated for serious crimes under international
humanitarian law. It is also contradicted by the practice of States which
shows that States reserve the right to assess the legal situation of the person
who relies on immunity;509
· the submission that immunity could not be recognised for Mr Yerodia
Ndombasi by the Belgian investigating judge, despite what he declares in the
arrest warrant, due to the separation of powers, is an argument that has no
practical purpose for the dispute. Even if the argument of the DRC were
admissible – quod non –- it would still be pointless since the power of the
Belgian investigating judge in no way encroaches on that of the Government

507 See paragraph 3.5.3 to 3.3.8 above.
508 "obliged Minister Yerodia to use less direct itineraries for travel" DRC Memorial, at paragraph 52
(unofficial translation by Belgium).
Part III, Chapter Five: Merits
196
and vice versa. Therefore, there is no jeopardy to the principle of the
separation of powers;510
· the submission that immunity could not be recognised for Mr Yerodia
Ndombasi by the investigating judge as a result of the jus cogens nature of
the obligation to prosecute crimes under international humanitarian law is
also an argument with no practical purpose, since it refutes what the DRC
precisely claims. Even if the argument of the DRC were admissible – quod
non – it is moot in any case due to the fact that nothing prohibits the
investigating judge from including the procedures for execution of the acts
he adopts;511
· by affirming that no State has acted on the arrest warrant for reasons of
custom, the DRC again shows that the case is without practical purpose since
it would suffice for Mr Yerodia Ndombasi simply to stay out of Belgium.512

However, the fact that certain States seem to be willing to execute the arrest
warrant undermines the DRC’s argument on the existence of opinio juris
favourable to absolute criminal immunity of a high foreign representative.513

Therefore, even accepting that the DRC's petition has a practical purpose –
quod non – it is without foundation.
* * *

509 See paragraphs 3.5.154 to 3.5.156 above.
510 See paragraphs 3.5.157 to 3.5.159 above.
511 See paragraphs 3.5.157 to 3.5.159 above.
512 See paragraphs 3.5.7 and 3.5.163 above.
513 See paragraph 3.5.164 above.
Part III, Chapter Six: Merits
201
CHAPTER SIX
THE REMEDIES REQUESTED OF THE COURT BY THE DRC FALL
OUTSIDE THE ACCEPTED JUDICIAL FUNCTION OF THE COURT
3.6.1 The DRC requests of the Court are set out in its final submissions in
paragraph 97 of its Memorial as follows:
“1. Qu’en émettant et en diffusant internationalement le mandat
d’arrêt du 11 avril 2000 délivré à charge de Monsieur Abdulaye
Yerodia Ndombasi, la Belgique a violé, à l’encontre de la R.D.C., la
règle de droit international coutumier relative à l’inviolabilité et
l’immunité pénale absolues des ministres des Affaires étrangères en
fonction;
2. Que la constatation solennele par la Cour du caractère illicite
de ce fait constitue une forme adéquate de satisfaction permettant de
réparer le dommage moral qui en découle dans le chef de la R.D.C.;
3. Que la violation du droit international dont procèdent
l’émission et la diffusion internationale du mandat d’arrêt du 11
avril 2000 interdit à tout État, en ce compris la Belgique, d’y donner
suite;
4. Que la Belgique est tenue de retirer et metre à néant le mandat
d’arrêt du 11 avril 2000 et de faire savoir auprès des autorités
étrangères auxquelles ledit mandat fut diffusé qu’elle renonce à
solliciter leur cooperation pour l’exécution de ce mandat illicite
suite à l’arrêt de la Cour.”514
3.6.2 As has already been observed,515 the remedies requested relate solely in one
way or another to the allegation that Belgium violated the immunities of the Minister

514 “1. That by issuing and internationally transmitting the Arrest Warrant of 11 April 2000 issued
against Mr Abdulaye Yerodia Ndombasi, Belgium violated, to the prejudice of the DRC, the rule of
customary international law on the complete inviolability and immunity of the Minister for Foreign
Affairs in office; 2. That the solemn declaration by the Court of the illicit nature of this act constitutes
an adequate form of satisfaction to compensate the moral damages that resulted therefrom for the DRC;
3. That the violation of international law from which the issue and international transmission of the
Arrest Warrant of 11 April 2000 proceeds prohibits any State, including Belgium, from enforcing it; 4.
That Belgium is required to withdraw and annul the Arrest Warrant of 11 April 2000 and to inform the
foreign authorities to which the warrant has been transmitted that it renounces petitioning their
assistance for the enforcement of this illicit warrant in view of the Court’s judgment.” (DRC
Memorial, at paragraph 97; unofficial translation by Belgium)
515 See paragraphs 1.54–1.55 above.
Part III, Chapter Six: Merits
202
for Foreign Affairs of the DRC. As has also been observed in the context of
Belgium’s submission on admissibility,516 given that Mr Yerodia Ndombasi is no
longer either Minister for Foreign Affairs of the DRC or a member of the DRC
Government occupying any other ministerial position, the third and fourth requests by
the DRC in practice concern the legal effect of the arrest warrant of 11 April 2000 as
regards a private citizen of the DRC.
3.6.3 The issue addressed in the present section is different and can be addressed
briefly. It is whether requests to the Court to order the withdrawal and annulment of a
measure of domestic law, and the restraint of both Belgium and other States as
regards the execution of that measure, fall properly within the accepted judicial
function of the Court. The issue is therefore one of a subsidiary nature which would
only fall to be addressed in the event that the Court, contrary to Belgium’s
submission, were to decide that Belgium was in breach of international law as regards
the issuing and transmission of the arrest warrant.
3.6.4 It is Belgium’s contention that the third and fourth requests to the Court by
the DRC fall outside the accepted judicial function of the Court and should not be the
subject of any judgment by the Court.
3.6.5 The adjudication of disputes by international courts and tribunals rests on an
accepted, though seldom articulated, division of competence between the court or
tribunal in question and the States whose interests are in contention. It is the function
of the court or tribunal to declare the law. It is for the State concerned to give effect
to the law as so declared.517 An integral part of the adjudicatory process is the
obligation on States participating in the process to give effect to the decision that

516 See paragraphs 3.52–3.53 above.
517 Although, subject to the discussion that follows concerning the function of the Court, the general
point may be made simply by way of proposition, it may be helpful to observe that the issue arises
quite commonly for consideration in the context of the practice of other international, or supranational,
courts or tribunals. Thus, for example, the European Court of Justice frequently refers the distinct roles
of the courts and tribunals (and governments) of the Member States of the European Union to give
effect to European Community law, and its own role of interpreting that law. By way of further
example, the Members of the World Trade Organisation are required, by the Dispute Settlement
Understanding which is integral to that agreement, to comply with the recommendations and rulings of
WTO panels and the Appellate Body as adopted by the WTO Dispute Settlement Body. While the
effectiveness of such compliance may be scrutinised in accordance with procedures specially laid down
Part III, Chapter Six: Merits
203
emerges therefrom. In the case of the Court, that obligation is laid down in Article
94(1) of the UN Charter and is reflected in Article 59 of the Court’s Statute. Article
94(2) of the Charter goes on to establish a mechanism for the enforcement of
decisions of the Court by the Security Council.518
3.6.6 A number of reasons are apparent for this division of competence. First, it is
not for a court or tribunal to assume that its decisions will not be complied with.
Indeed, were such an assumption to be made, it would call into question the very
raison d’être of the decision in the first place. Second, there may be a number of
ways in which a State could comply with a decision of a court or tribunal directed to
it. The choice between those various ways of compliance is one for the State to make.
Third, the division of competence reflects a balance between the role of courts and
tribunals to declare the law, the responsibility of States to comply with decisions
directed to them, and the sovereignty of States to organise their affairs as they choose
subject only to the obligation to comply with the law.
3.6.7 Although the matter has not arisen frequently for consideration by the Court,
it has been the subject of comment. In the Haya de la Torre case, for example, the
principal request to the Court was to determine the manner in which Peru was
required to give effect to the Court’s Judgment of 20 November 1950. Declining this
request, the Court stated as follows:
“The Court observes that the Judgment confined itself, in this
connection, to defining the legal relations between the Parties. It
did not give any directions to the Parties, and entails for them only
the obligation of compliance therewith. The interrogative form in
which they have formulated their Submissions shows that they
desire that the Court should make a choice amongst the various
courses by which the asylum may be terminated. But these choices
are conditioned by facts and by possibilities which, to a very large
extent, the Parties alone are in a position to appreciate. A choice
amongst them could not be based on legal considerations, but only

for this purpose once a reasonable period for compliance has passed, the decision of how to comply is a
matter for the Member concerned.
518 Article 94 of the Charter provides: “1. Each Member of the United Nations undertakes to comply
with a decision of the International Court of Justice in any case to which it is a party. 2. If any party to
a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the
other party may have recourse to the Security Council, which may, if it deems necessary, make
recommendations or decide upon measures to be taken to give effect to the judgment.”
Part III, Chapter Six: Merits
204
on considerations of practicability or of political expediency; it is
not part of the Court’s judicial function to make such a choice.
…
Having thus defined in accordance with the Havana Convention the
legal relations between the Parties with regard to the matters
referred to it, the Court has completed its task. It is unable to give
any practical advice as to the various courses which might be
followed with a view to terminating the asylum, since, by doing so,
it would depart from its judicial function.”519
3.6.8 As is clear from this extract, the Court was of the view that the question of
how to comply with a judgment of the Court was a matter for the party concerned and
fell outside of the accepted judicial function of the Court. The fact that a range of
possible options for compliance could be contemplated reinforced this appreciation.
3.6.9 The Court addressed the matter in similar terms in the Northern Cameroons
case, although in circumstances which ultimately led to it declining to give judgment
on the ground that to do so would be devoid of purpose. On the question of
compliance, the Court stated:
“As the Court said in the Haya de la Torre case, it cannot concern
itself with the choice among various practical steps which a State
may take to comply with a judgment. It may also be agreed, as
Counsel for Applicant suggested, that after a judgment is rendered,
the use which the successful party makes of the judgment is a matter
which lies on the political and not the judicial plane.”520
3.6.10 In Belgium’s contention, the import of these decisions is clear. If, contrary
to its submissions, the Court were to decide that Belgium was in breach of
international law by the issuing and transmission of the arrest warrant, the manner in
which Belgium would comply with the Judgment of the Court would be a matter for
Belgium to decide. A number of avenues of compliance may be open. Compliance
may involve issues of domestic constitutional and penal law of wider consequence.
As the Court has recognised in the jurisprudence just referred to, it is not within the
function of the Court to advise parties on the question of compliance.

519 Haya de la Torre (Colombia v. Peru), ICJ Reports 1951, p.71, at pp.78–82.
520 Northern Cameroons case, supra, at p.37.
Part III, Chapter Six: Merits
205
3.6.11 In Belgium’s contention, the third and fourth requests addressed to the Court
in the final submissions in the DRC Memorial raise questions of compliance with a
putative judgment of the Court on the merits. They should not therefore be
entertained by the Court.
* * *
Conclusions
206
CONCLUSIONS
10.1 For the reasons set out in Part II of this Counter-Memorial, Belgium
contends, as a preliminary matter, that the Court lacks jurisdiction in this case and/or
that the application by the DRC against Belgium is inadmissible. For ease of
reference, Belgium’s principal submissions on jurisdiction and admissibility may be
summarised as follows:
First Submission (Part II: paragraphs 2.4 – 2.15)
That, in the light of the fact that Mr Yerodia Ndombasi is no longer
either Minister for Foreign Affairs of the DRC or a minister
occupying any other position in the DRC Government, there is no
longer a “legal dispute” between the Parties within the meaning of
this term in the Optional Clause Declarations of the Parties and that
the Court accordingly lacks jurisdiction in this case.
Second Submission (Part II: paragraphs 2.16 – 2.38)
That, in the light of the fact that Mr Yerodia Ndombasi is no longer
either Minister for Foreign Affairs of the DRC or a minister
occupying any other position in the DRC Government, the case is
now without object and the Court should accordingly decline to
proceed to judgment on the merits of the case.
Third Submission (Part II: paragraphs 2.39 – 2.50)
That the case as it now stands is materially different to that set out in
the DRC’s Application instituting proceedings and that the Court
accordingly lacks jurisdiction in the case and/or the application is
inadmissible.
Fourth Submission (Part II: paragraphs 2.51 – 2.73)
That, in the light of the new circumstances concerning Mr Yerodia
Ndombasi, the case has assumed the character of an action of
diplomatic protection but one in which the individual being
protected has failed to exhaust local remedies, and that the Court
accordingly lacks jurisdiction in the case and/or that the application
is inadmissible.
10.2 In the event that the Court decides that it does have jurisdiction in this case
and that the application is admissible, Belgium contends, by way of a fifth
Conclusions
207
submission, that the non ultra petita rule operates to limit the jurisdiction of the Court
to those issues that are the subject of the DRC’s final submissions (Part II:
paragraphs 2.74 – 2.79).
10.3 If, contrary to Belgium’s preliminary objections to the jurisdiction of the
Court and the admissibility of the application, the Court concludes that it does have
jurisdiction in this case and that the application is admissible, Belgium contends that
the DRC case is unfounded on the merits. For ease of reference, Belgium’s principal
submissions on the merits of the case may be summarised as follows:
First Submission (Part III, Chapter One)
That the character of the arrest warrant of 11 April 2000 is such that
it neither infringes the sovereignty of, nor creates any obligations
for, the DRC.
Second Submission (Part III, Chapters Two and Three)
That the assertion of jurisdiction by the Belgium Judge pursuant of
the relevant Belgian legislation is consistent with international law
in that:
· it is based on the connection of the complainant civil
parties to Belgium by reason of nationality and/or
residence;
· it is consistent with the obligations upon High Contracting
Parties to the Fourth Geneva Convention;
· it is consistent with principles of customary international
law permitting States to exercise universal jurisdiction over
war crimes and crimes and humanity.
Third Submission (Part III, Chapter Four)
That the immunity that attaches to Ministers for Foreign Affairs in
office applies for purposes of enabling them to carry out their
official functions and not in respect of conduct undertaken in their
private capacity or other than in the performance of their official
functions.
Fourth Submission (Part III, Chapter Five)
That immunity does not avail persons in official capacity alleged to
have committed war crimes or crimes against humanity.
Conclusions
208
Fifth Submission (Part III, Chapter Six)
That, whatever the Court’s conclusions on the merits of the case,
key elements of the remedies requested by the DRC in its final
submissions fall outside the accepted judicial function of the Court
and should not accordingly be the subject of any judgment by the
Court.
10.4 By reference to these submissions, Belgium requests the Court to reject the
claim of the DRC on the merits of the case and to dismiss the application.
* * *
Submissions
209
SUBMISSIONS
11.1 For the reasons stated in Part II of this Counter-Memorial, Belgium requests
the Court, as a preliminary matter, to adjudge and declare that the Court lacks
jurisdiction in this case and/or that the application by the Democratic Republic of the
Congo against Belgium is inadmissible.
11.2 If, contrary to the preceding submission, the Court concludes that it does
have jurisdiction in this case and that the application by the Democratic Republic of
the Congo is admissible, Belgium requests the Court to reject the submissions of the
Democratic Republic of the Congo on the merits of the case and to dismiss the
application.
Jan Devadder
Agent of the Kingdom of Belgium
28 September 2001
List of Annexes
210
LIST OF ANNEXES
The annexes to the Belgian Counter-Memorial are produced in three volumes.
Volume I contains documents 1 - 28. Volume II contains documents 29 - 80. A third
volume, with the exception of the final document, contains Supplementary Annexes
extracted from the bundle that was submitted to the Court at the time of the
provisional measures phase of the case. Where documents have been readily
available in both French and English, the French text of the document is followed by
the English text. Where this has not been possible, the documents are reproduced in
either French or English as the case may be. Where the original of a document is in a
language other than French or English, the original language version is annexed
together with a translation into French certified by Belgium as accurate in
accordance with Article 51(3) of the Court's Rules.
Annex Document
Volumes I and II
1. Déclaration belge faite en application de l'Article 36(2) du Statut, le 17
juin 1958
Belgian Declaration under Article 36(2) of the Statute, 17 June 1958
2. Déclaration de la RDC faite en application de l'Article 36(2) du Statut,
le 8 février 1989
DRC Declaration under Article 36(2) of the Statute, 8 February 1989
3. Mandat d'arrêt international par défaut, du 11 avril 2000
International Arrest Warrant by default (unofficial English translation
by Belgium)
4. BELGIQUE, Loi du 16 juin 1993 relative à la répression des
infractions graves aux Conventions internationales de Genève du 12
août 1949 et aux Protocolles I et II du 8 juin 1977, additionnels à ces
conventions, modifiée par la loi du 19 février 1999, relative à la
répression des violations graves de droit international humanitaire
Belgian Act of 16 June 1993 Concerning the Punishment of Grave
Breaches of the Geneva Conventions of 12 August 1949 and their
List of Annexes
211
Additional Protocols I and II of 18 June 1977, as modified by the Act of
10 February 1999 Concerning the Punishment of Grave Breaches of
International Humanitarian law (Unofficial consolidated English text,
and commentary, published in 38 I.L.M. 918 (1999))
5. Articles 146 à 147 de la Convention de Genève relative à la protection
des personnes civiles en temps de guerre, 1949
Articles 146 – 147, Fourth Geneva Convention
6. BELGIQUE, le titre préliminaire de la Loi du 17 avril 1878 du Code
de procédure pénale (contenant Articles 6, 10, 10 bis 12, et 13 )
Belgian Code of Criminal Procedure (unofficial English translation of
Article 12 by Belgium)
7. Interpol Red Notices, International Criminal Police Review – No.468
(1998)
8. Rapport d'Interpol sur la valeur des notices rouges, AGN/66/Rap.N°8,
qui résulte de la résolution No. AGN/66RES/7
9. Interpol Formulaire Rouge, Recherches internationale d'une personne
en vue de son arrestation et de son extradition, SIG/AEL/JB/72932/01,
12 septembre 2001
10. BELGIQUE, Sénat, Travaux préparatoires, projet du loi, D.P., 1990-
1991, n° 137/1, Pasin., 1993, pp. 1836-1859
11. BELGIQUE, Sénat, D.P., 1997-1998, 16 octobre 1997, Proposition de
loi relative à la répression du crime de génocide, en application de la
Convention pour la prévention et la répression de génocide, n° 1-
749/1, pp. 2-8
12. BELGIQUE, Sénat, D.P., 1998-1999, 1er déc. 1998, Proposition de loi
relative à la répression du crime de génocide, en application de la
Convention pour la prévention et la répression de génocide,
Amendements n° 1-749/2, pp. 1-5; n° 1 – 749/3, pp. 14-21
13. ORGANISATION DE L’AVIATION CIVILE, Conférence
Internationale de droit aérien, 1963, Examen du projet – Première
lecture, art. 2 § 4, MONACO, M., représentant de l’Italie, Procès-
List of Annexes
212
verbaux I, pp. 115-116 et Examen du projet de convention –
Deuxième lecture, art. 3 § 3, SIDENBLADH, M., président du Comité
de rédaction, pp. 288-289
14. ORGANISATION DE L’AVIATION CIVILE, Conférence
Internationale de droit aérien, 1963, Projet de convention concernant
les infractions et certains autres actes survenant à bord des aéronefs,
Doc. 8565-LC/152-2, Documents, II, pp. 2, 31-35, 46-47, et 60-61
15. ITALIE, Codice penale, art. 7, 8 et 10
(Traduction en français, certifiée par la Belgique)
16. ALLEMAGNE, Strafgesetzbuch, art. 5
(Traduction en français, certifiée par la Belgique)
17. FRANCE, Code pénal, art. 113-6 à 113-12
18. FRANCE, Code de procédure pénale, art. 487-488 et 627-641 art. 689
et 689-1
19. ESPAGNE, Ley Organica 6/1985 de 1 de julio del poder judicial, art.
23 § 3
(Traduction en français, certifiée par la Belgique)
20. PAYS-BAS, Wetboek van strafrecht, art. 4 §§ 1-4
(Traduction en français, certifiée par la Belgique)
21. BELGIQUE, D.P., Chambre, n° 70, 23 janvier 1877, p. 8, 18-28
22. BELGIQUE, D.P., Chambre, n° 143, 11 mai 1877, pp. 19-20, Rapport
Thonissen
23. ANTOLISEI, F., Manuale di diritto penale, Milano, Giuffrè, 1997, pp.
122-123
(Traduction en français, certifiée par la Belgique)
24. FRANCE, Ministre français délégué aux relations avec l’Assemblée
nationale, Journal officiel de l’Assemblée nationale, 20 décembre
1994, 2e
séance, p. 9445-9446
List of Annexes
213
25. CANADA, La loi sur les crimes contre l’humanité et les crimes de
guerre, 2000 ch.24, Art. 9
Crimes Against Humanity and War Crimes Act, 2000, c.24, Art. 9
26. Demjanjuk v. Petrovsky, 79 ILR 535 (US CA, 6th Cir., 31 Oct. 1985)
pp. 545-546
27. Affaire Cavallo, Ordre de l'extradition de l'Audience nationale
espagnole, 12 septembre 2000, et Décision du juge mexicain
concernant l'extradition, 12 janvier 2001
(Traduction en français, certifiée par la Belgique)
28. VANDER BEKEN, T., Forumkeuze in het internationaal strafrecht,
Antwerpen, Maklu, 1999, p. 165
(Traduction en français, certifiée par la Belgique)
29. In re Bouterse, Expert Opinion of Professor C.J. Dugard, 7 July 2000
30. In re Bouterse, Beslissingen van Het Gerechtshof van Amsterdam, 3
March 2000 and 20 November 2000
(English translation and annotation by the T.M.C. Asser Instituut,
certified by Belgium)
31. In re Bouterse, Samenvatting van de beslissing van de Hoge Raad,
(Résumé par le greffier de la décision de la Haute Cour) 18 septembre
2001
(Traduction en français, certifiée par la Belgique)
32. Convention on Special Missions, 1969, A/RES/2530 (XXIV)
33. Travaux préparatoires du Traité de Versailles, in La paix de Versailles:
Responsabilités des auteurs de la Guerre et Sanctions, Paris, 1930,
Editions Internationales, v. III, pp. 332- 447
34. Conseil de l'Europe, Commission de Venise, Rapport sur les questions
constitutionnelles soulevées par la ratification du Statut de Rome
instituant la CPI, 15 janvier 2001, CDL-INF (2001) Or. Fr.
Council of Europe, Venice Commission, Report on Constitutional
issues raised by the ratification of the Rome Statute of the ICC, 15
January 2001, CDL-INF (2001) Or. Fr.
List of Annexes
214
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2001, Consult/ICC (2001) 22
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2001, pp. 507-515
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la paix et la sécurité de l’humanité, Ann. CDI, 1996, II, (2e partie), pp.
27-28
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Questions of Public or Private International Law », BYIL, 1996, pp.
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217
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EJIL, 1999, p. 265
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709-711
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de menselijkheid ? Kanttekeningen bij de zaak Pinochet” (Les ex-chefs
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80. BELGIQUE, Art. 56 § 1, 1er al. du Code d'instruction criminelle
Supplementary Materials
81. Résolution 978 (1995) du Conseil de sécurité, 27 février 1995
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82. Déclaration du Président du Conseil de sécurité, 31 août 1998
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83. Déclaration du Président du Conseil de sécurité, 11 décembre 1998
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84. Résolution 1234 (1999) du Conseil de sécurité, 9 avril 1999
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86. Résolution 1304 (2000) du Conseil de sécurité, 16 juin 2000
Security Council Resolution 1304 (2000), 16 June 2000
87. Convention sur le crime de génocide, 9 décembre 1948
88. Statut du Tribunal militaire international de Nuremberg, 8 août 1945
(extraits)
List of Annexes
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89. Statut du Tribunal militaire international de Tokyo, 19 janvier 1946
(extraits)
90. Statut du tribunal Pénal international pour l'ex-Yougoslavie, 25 mai
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1994 (extraits)
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(Taduction des extraits pertinents en français, certifiée par la
Belgique)
* * *
Contents
(Revision 2)
i
CONTENTS
Page
INTRODUCTION ...................................................................... 1
PART I: BACKGROUND AND PRELIMINARY ISSUES ................. 10
A. Factual and legal background ................................................ 10
B. The DRC’s case ................................................................ 16
1. The DRC’s Application instituting proceedings ...........….... 17
2. The provisional measures phase .................................... 19
3. The DRC’s Memorial ............................................….. 23
(a) Preliminary matters and the reformulation of the
DRC’s case ..............................................……. 23
(b) The jurisdiction of the Court and the existence and
nature of the dispute ......................................…. 24
(c) The substance of the case ................................…. 27
(d) The remedies requested and the DRC’s final
Submissions .................................................... 31
4. Conclusions ............................................................. 32
C. The position of Mr Yerodia Ndombasi at the material times ............ 33
PART II: OBJECTIONS TO JURISDICTION AND ADMISSIBILITY .. 35
A. First submission: there is no longer a dispute between the Parties .….. 36
B. Second submission: the case is now without object ............…......... 40
C. Third submission: the case as it now stands is materially different
to that set out in the DRC’s Application instituting proceedings ........ 49
D. Fourth submission: the case has assumed the character of an
action of diplomatic protection but local remedies have not
been exhausted .............................................................……. 54
E. Fifth submission: the non-ultra petita rule limits the jurisdiction of
the Court to those issues that are the subject of the DRC’s final
submissions ....................................................................... 62
F. Conclusions in respect of this Part .....................................….... 64
Contents
(Revision 2)
ii
PART III: MERITS .............................................................……. 66
Chapter One: The character of the arrest warrant is such that it neither
infringes the sovereignty of, nor creates obligations for, the DRC ...….... 68
Chapter Two: The legal and jurisdictional bases of the arrest warrant ... 73
A. The Law of 16 June 1993, as amended by the Law of 10 February
1999 ..................................................................................................…... 73
B. The charges against Mr Yerodia Ndombasi ................................. 78
C. The law governing the jurisdiction of the Belgian judge ........…....... 84
Chapter Three: International law allows universal jurisdiction
in abstentia ......…………………………………….......................…............ 86
A. Does international law oblige Belgium to exercise universal
jurisdiction in the circumstances in issue? ................................... 87
B. Does international law permit Belgium to exercise universal
jurisdiction in the circumstances in issue? ................................... 95
I. The legal foundation of the exercise of universal
jurisdiction in absentia ................................................. 95
(a) An investigation and/or prosecution by default does not
violate any rule of international law .......................…... 95
(b) An investigation and/or prosecution by default against the
alleged perpetrator of serious violations of international
humanitarian law is accepted in international practice as a
means of fighting impunity ....................................... 97
(c) An investigation and/or prosecution by default are largely
accepted in the internal practice of the States .............…. 100
II. Additional arguments of the DRC in opposition to the
exercise of universal jurisdiction in abstentia .................…......... 114
(a) The alleged risk of multiple prosecutions ......................115
(b) The alleged incompatibility of the Law of 1993/1999 with
the ICC Statute ..................................................…........ 116
Contents
(Revision 2)
iii
Chapter Four: The law relating to the immunity of Ministers for
Foreign Affairs .......................................................................... 118
Chapter Five: International law excludes immunity in the case of
prosecution for serious crimes of international humanitarian law ........… 128
A. The DRC's petition concerning the immunity of Mr Yerodia
Ndombasi is pointless ...........................................................…… 128
B. As a subsidiary argument, the DRC's petition concerning the immunity
of Mr Yerodia Ndombasi is groundless ......................................…. 131
I. Foundation for the refusal of immunity to persons suspected of
serious crimes of international humanitarian law …………….… 131
(a) Conventional sources excluding the immunity of alleged
perpetrators of serious crimes of international
humanitarian law …………………………………………………
132
(i) The Treaty of Versailles of 1919 ……………….. 133
(ii) The Statutes of international criminal
jurisdiction ……………………………….………….
134
(iii) Law No. 10 of the Allied Control Authority …… 142
(iv) Convention on the Prevention and the
Punishment of Genocide ………………………….. 143
(v) Resolutions of the UN organs ……………………. 144
(b) National sources excluding the immunity of alleged
perpetrators of serious crimes of international
humanitarian law ………………………………………………….
146
(c) International jurisprudence addressing the immunity of
alleged perpetrators of serious crimes of international
humanitarian law ……………………………………………….…
148
(d) The writings of publicists excluding the immunity of
alleged perpetrators of serious crimes of
international humanitarian law ………………………………….
165
(i) Deliberations of the ILC and the IDI ……………. 166
(ii) Other sources ..………………………………………
172
II. The DRC's other arguments in favour of the absolute immunity
Contents
(Revision 2)
iv
of the members of foreign governments in office ………………. 189
(a) The immunity of high foreign representatives is an
objective rule imposed upon Belgium ……………………….. 190
(b) The Belgian national legal order is opposed to any
recognition of immunity once the investigating judge
has issued the arrest warrant ………………………………….. 194
(c) Recognising immunity of a high foreign representative
who has been accused of crimes under international
humanitarian law would be contradictory with the
jus cogens nature of the repression of these crimes ……….. 196
(d) The absence of execution of the arrest warrant by third
States shows that opinio juris supports criminal immunity
of a high foreign representative ………………………………. 197
Chapter Six: The remedies requested of the Court by the DRC fall
Outside the accepted judicial function of the Court .......................... 201
CONCLUSIONS .................................................................….. 206
SUBMISSIONS .....................................................................… 209
LIST OF ANNEXES .....................................................….......... 210