Belgium's reply to the question put by Judge Koroma

ROYAUME DE BELGIQUE du Commercees extérieuréetrangères.
de la Coopération au Développement 1,,

ARREST WARRANT OF 11 APRIL 2000 (DEMOCRATIC REPUBLIC OF THE
CONGO v.BELGIUM)

Reply by Belgium to the question raised by Judge Koroma at the conclusion of
the oral hearing on 19 October 2001(CR 2001111,p.19)

Question: "ln the course of this afternoon's session [counsel for Belgium] stated
that this case is not about the enforcement of the arrest warrant in Belgium, and

the delegation bas maintained ali along that it is not obligatory on third States to
enforce the warrant.

If, then, the warrant of arrest is neither about one nor the other, what was the
purpose of the warrant?"

Answer

1. In its Application instituting proceedings, the Democratie Republic of the

Congo charged that, in consequence·of the issuing and transmission of the arrest

warrant, Belgium had violated the DRC's sovereignty and the immunity of its
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Minister for Foreign Affairs in office. In Belgium's contention, these allegations

cannet simply be taken at face value. They mustbe proved.

2. In addressing the issue of the effect of the arrest warrant, Belgium

distinguished between the effect of the warrant in Belgium and the effect of the

warrant in third States. 1 As regards the effect of the warrant in Belgium, Belgium

acknowledges that the warrant would require the relevant Belgian authorities to arrest

Mr Yerodia Ndombasi were he to be found in Belgium - subject to the caveat

expressed on the faceof the warrant relating to immunityfrom enforcement.

3. While the arrest warrant undoubtedly bas an effect in Belgium, the present

case is not, however, about the effect of the warrant in Belgium. This is simply

because the DRC bas no right inlaw to insist on the unrestricted entry into Belgium of

its Minister for Foreign Affairs. This is a matter that falls entirely within the

1 CR 2001/8. at p.52: CR 2001/ll. atpp.lü- 11.sovereign competence of Belgium. The sovereignty of the DRC cannot therefore be

infringed in consequence of the legal effect of the arrest warrant in Belgium.

4. As regards third States, the nature of the warrant is such as to require that

further preliminary steps are taken before the relevant authorities of such States are

obliged to act upon the Belgium warrant. As Judge ad hoc Van den Wyngaert

observed in her Declaration to the Court's Provisional Measures Order in this case,
"[t]here is always a need for validation by the authorities of the State where the

person named in the warrant has been found, even in the case where a red notice has

been issued by Interpol. "2 This independent act of validation by third State

authorities, such as the issuing of a local arrest warrant, will in turn itself invariably

be preceded by sorne further prior act, such as a request for provisional arrest or the

issuing of a Red Notice. The Belgian arrest warrant is not therefore, of itself,

sufficient to create obligations for either the DRC or any other State. If it is to have

legal effect in third States, the warrant must be validated or completed by sorne

further actor acts. Put differently, as regards enforcement in third States, the Belgian

arrest warrant is an inchoate act. Enforcement of the warrant is dependent on sorne

further preliminary steps having been taken.

5. Given its inchoate quality as regards third States, Belgium contends that the

issuing and transmission of the arrest warrant cannot ofitselfbe said to have infringed

the sovereignty of the DRC.

6. Against this background, the question asks about the purpose of the arrest

warrant. As a matter ofBelgian law, subject to the caveat expressed on the face of the

warrant concerning immunity from enforcement, the purpose of the warrant was

clearly to require that, if found in Belgium, Mr Yerodia Ndombasi should be detained

by the relevant Belgian authorities with a view to his prosecution on charges of war
crimes and crimes against humanity. The purpose of the warrant was also, no doubt,

to establish a legal basis for the arrest of Mr Yerodia Ndombasi abroad and his

..., (•

subsequent extradition to Belgium on charges of war crimes and cnmes against

humanity. However, as described above, as regards this latter purpose, the legal
effectof the warrant is conditional upon it being validated or completed by sorneprior

act requiring the arrestofMr Yerodia Ndombasi by the relevant authorities in a third

State. The arrest warrant does not, therefore, of itself, establish a legal basis for the

arrestofMr YerodiaNdombasi in a third State.

* * *

~Provisional Measures Order, 8 December 2000; Declaration of Judge Van den Wyngaert. at
paragraph 2.