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CR200115(translation)

CR200115 (traduction)

Monday15October2001

Lundi 15octobre2001 The PRESIDENT: Pleasebe seated. The sittingisopen.
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The Court meets today, pursuant to Articles43 et seq. of its Statute, to hear the oral

arguments of the Parties in the case concerningtheArrest Warrantof II April2000 (Democratic

Republic ofthe Congov. Belgium).

Before recallingthe principalphases of the present proceedings,1should like to state that,

following the resignation of JudgeMohammedBedjaoui with effect from 30 September 2001,the

GeneralAssemblyandthe SecurityCouncilon 12October2001electedMr. Nabil Elarabyto serve

for the remainder of Judge Bedjaoui'sterm of office, which will expire on 5February2006. As

this election took place only three days ago, Mr. Elaraby willnot be able to come to The Hague

until alater date.

1should alsoliketo take the opportunityofferedto us by this sitting to mentionver=briefly

the distinguished contribution made by JudgeBedjaoui to the wo& of the Court. For alrnost

20years, Judge Bedjaouimade his mark on the Court, at a time of far-reaching developmentsin

international law and international relations. My colleagues and 1myself can bear witness to the

breadthof his intellectand clarityof his thinkingand to his persona1commitrnent inthe serviceof

Ourinstitution. The departure of this former Judge and Presidentof the Court is without doubt a

great lossto the Court.

1would now recall that each of the Parties in the present case, the DemocraticRepublic of

the Congo and the Kingdom of Belgium, has availed itselfof the possibility conferred on it by

Article 31 of the Statute of the Courtto choose a Judge ad hoc. Mr. SayemanBula-Bula, chosen

by the Democratic Republic of the Congo, and Mrs. Christinevan den Wyngaert, chosen by

Belgium,were duly installed asjudges ad hocinthe case lastyear, when the Court consideredthe

request for the indication of provisional measuressubmitted by the Democratic Republic of the

Congo; in accordance with Article8, paragraph3, in$ne, of the Rules of Court, they are not

requiredto make anew declarationforthe present phaseofthe case. On 17October2000, the Democratic Republic of the Congo filed in the Registry of the
007
Court an Application instituting proceedingsagainst theingdom of Belgium in the matter of a

dispute concerning an "international arrest warrant issued on 11Apri12000 by a Belgian

investigating judge... against the Minister for Foreign Affairs in office of the Democratic

Republic of the Congo, Mr. AbdulayeYerodiaNdombasi". In that Application, the Congo

contendedthat Belgiumhad violated the "principlethat a State may not exercise [its authority]on

the territory of another State", therinciple of sovereign equality among al1Members of the

United Nations, as laid down in Article2, paragraph 1, of the Charter of the United Nations", as

well as "the diplornatic immunity of the Minister for Foreign Affairs of a sovereign State, as

recognized by the jurisprudence of the Court andfollowing from Article41, paragraph 2,of the

Vienna Conventionof 18 April 1961onDiplomaticRelations". In sectionII of its Application,the

Congo requestedthe Court to declare that Belgium should"annul the international arrestwarrant

issued on 11April2000".

In order to found the Court's jurisdiction, the Congo invokeh in the aforementioned

Applicationthe fact that"Belgiumha[d]acceptedthejurisdiction of the Court and,in sofar as may

be required, the [aforementioned]Application signifie[d] acceptance of that jurisdiction by the

DemocraticRepublicofthe Congo".

The same day on which it filed its Application instituting proceedings, the Congo also

submittedto the Court a request forthe indicationof a provisional measurepursuantto Article41

of theStatute of the Court. In this request, itstated that the "disputed arrest warrant effectively

bar[red]the Minister forForeign Affair... of the Congofrom leaving that Statein orderto go to

any other Statewhichhis dutiesrequire[d]himto visit and,hence, fromcarrying outthose duties".

The Congo stated in its request that it was seeking "an order for the immediatedischarge of the

disputed arrestwarrant". In the meantirne,Mr. YerodiaNdombasi had lefthis positionas Minister

for ForeignAffairs andhad been giventhe educationportfolio. By Orderof 8 December2000,the

Court, on the one hand, rejecteda requestby Belgium thatthe case be removed fromthe List and,

on the other, held that the circumstances,as theyn presentedthemselvesto the Court,were not

such as to require the exerciseof its powerunder Article41 of the Statuteto indicate provisional

measures. In the sameOrder,the Courtalso heldthat "it [was] desirablethatthe issuesbeforethe
OO Court should be determined as soonas possible" andthat "it [was]therefore appropriatetoensure

thata decisiononthe Congo'sApplicationbe reachedwith al1expedition".

By Order of 13December2000,the President of the Court,taking accountof the agreement

of the Parties as expressed at a meeting held with their Agents on 8December2000, fmed

time-limits for the filing of a Memorial by the Congo and of a Counter-Memorialby Belgium,

addressing both issues of jurisdiction and admissibility and the merits. By Orders of

14March 2001 and 12 April2001, these time-limits, taking account of the reasons given by the

Congoand the agreement of the Parties, weresuccessivelyextended. TheMemorialof the Congo

wasfiled on 16May2001within the time-limit thusfinallyprescribed.

By Order of 27 June 2001, the Court, on the one hand, rejected a request by Belgium for

authorization, in derogation from the previous Orders of the President of the Court, to submit

preliminary objections involvingsuspension of the proceedings onthe merits and, on the other,

extended the time-limit prescribed in theder of 12April2001 for the filing by ~elgium of a

Counter-Memorialaddressing both questionsofjurisdiction and admissibilityand the merits. The

Counter-Memorial of Belgium was filed on 28 September2001 within the time-limit thus

extended. The casewas thenreadyfor hearing.

1 would add that, having ascertained the views of the Parties, the Court has decided, in

accordancewith Article 53,paragraph2, ofthe Rulesof Court,tomake copiesof the pleadingsand

documents annexedthereto accessibleto the publicfromtoday. Further, in accordancewith Court

practice,the pleadings and annexestheretowilltoday be placed onthe Court'sWeb siteandwill be

publishedat a laterdate inthePleadings,OralArguments,Documentsseriesofthe Court.

1note the presence at the hearing of the Agents, Counsel and Advocates of both Parties. 1

also note the presence of His Excellency MaîtreNgele Masudi, Minister of Justice and Keeper of

the Sealsof the DemocraticRepublicofthe Congo,whom 1ampleasedto welcome.

In accordancewith the scheduleof hearingsadoptedbythe Court, afterconsultationwiththe
009

Parties, the Congo will make its oral statement first. 1 therefore now give the floor to

H.E.Mr. JaquesMasangu-a-Mwanza, Agentof the DemocraticRepublic ofthe Congo. Mr. MASANGU-A-MWANZA: Thank you, Mr.President. My speech will certainlybe a

very brief one, for it simply consists in introducingto you the distinguished individuals who are

goingto makethe oralpresentationsand replieson behalfofthe DemocraticRepublicof the Congo

at the hearings in accordance with the agreement betweenthe Parties in the case concemingthe

Arrest WarrantofII April2000 (Democratic Republic of theCongov.Belgium).

Theyare:

1. H.E. Maître Ngele Masudi, Minister of Justice and Keeper of the Seals(whomthe President
hasjust been kind enoughto welcome);

2. Maître KosisakaKombe,Adviserto the Presidencyofthe Republic;

3. ProfessorMandjambo,LegalAdviserto the MinistryofJustice;

4. Mr. FrançoisRigaux,ProfessorEmeritusat the CatholicUniversityof Louvain;

5. Ms MoniqueChemillier-Gendreau,Professoratthe Universiv of Paris VI1(DenisDiderot);

6. Mr. Pierred'Argent,Chargéde cours,CatholicUniversityof Louvain;

7. Mr. DjeinaWembou,Professorat theUniversityof Abidjan (whois not yet here);

8. MaîtreMokaN'Golo,Bâtonnierof the Kinshasa Bar(who is notyet here either).

In hisletter of14June2001 to the Registryof the Court, the Agent ofBelgium askedthat

the proceedings be divided into three phases. He put fonvard two arguments in support of his

request.

He wanted the proceedings split into a preliminary phase, where issuesofjurisdiction and

admissibiliy would bedealtwith,and a phasedealingwith the merits. He furtherarguedthat there

was to be a reviewofthe disputed Lawinthe Belgianlegislativechambers.

These proposals were opposedby the Democratic Republic of the Congo, whichdesiredno

derogation fromthe procedureas fixed bytheCourtin its Ordersof 8and 13 December 2000.

Whatever may be the content of the amendment to its legislation sought by the Belgian
810
Govemment,we believethat at the present time nodraft of any such amendment has been tabled

with the Belgian Parliament. On the contrary, complaints against a number of prominent

individuals, including Mr. Sharon,Prime Minister of Israel,r. Fidel Castro, President of Cuba,

Mr. Laurent Gbabo, President of the Republic of Cote d'Ivoire, and,most recently, Mr. Denis Sassou Nguesso, President of the Republic of the Congo, continue to be filed with the Belgian

courts.

In any event, the Democratic Republicof the Congo has suffered moral injury from this

affair and accordingly seeks reparation. For,in the Congo's view, thisis at wrongful act that

no legislativerefonn can remedy.

It might perhaps have been possible to reach a compromise if, pursuant to Article 88,

paragraph2, of the Rulesof Court, Ouropponentshadbeen ableto persuadeJudge Damienvan der

Meerschto withdrawhis arrest warrant,and if Belgiumhadagreedto makea forma1apologyto the

DRCon account of the injurycausedto it.

This being the present position, Mr.President, Members of the Court, the Congolese

delegationrespectfullyasks youto decidethis matterin accordancewiththe law.

Thankyou.

The PRESIDENT: Thank you. May 1askto whom 1am now to givethe floor on behalfof

the DemocraticRepublicof the Congo?

Mr. MASANGU-a-MWANZA:To the MinisterofJustice.

The PRESIDENT: Thank you, Ambassador. 1 give the floor to His Excellency

MaîtreNgele Masudi,Minister ofJusticeandKeeperof the Seals. Minister,youhavethe floor.

Maître NGELE MASUDI: Thankyou. Mr. President, Membersof the Court, Registrar. It

is agreat honour for meto appear beforeyou todayto introducethe firstround of oral argumentof

the Democratic Republicof the Congo in this case between itself and the Kingdom of Belgium.

The presence of the Democratic Republic of the Congo beforethis Court as the applicant Party

Q 11 bearswitnessto its profound attachmentto the principleof the pacificsettlementof disputes. How

could it be othenvise, given that since its accessionto internationalsovereignty my country has

chosento participatein internationallifeas a civilized modemStaterespectfülof international law?
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Thus it is a partyto al1of the principalmultilaterallegal instruments,in particularthoseconceming

humanrights and humanitarianlaw,and its legal systemenshrinesthe primacyof internationallaw

over domestic law. It was this choiceof an approachbased on respect for internationallaw whichled the Democratic Republic of theCongoto acceptthe compulsoryjurisdiction of your Court in

regard toal1disputes of a legal nature between itselfand any other State having accepted thesame

obligation. It havingproved impossibleto reach a negotiatedsettlementof the disputebetween the

Democratic Republic of the Congo and the Kingdom of Belgium over the international arrest

warrant of 11April2000, the Democratic Republicof the Congo has been obliged to submit that

dispute toyour Court forjudicial settlement.

The Democratic Republic ofthe Congo considersthat the issue and circulation of awarrant

against an incumbentMinister forForeignAffairs representsan internationally wrongful act on the

part of Belgiumwhich violatesthe Congo's sovereignrights and is enormously damagingto it, in

both moral and material terms. This,the Congo's counseland advocates will shortlydemonstrate

to you.

However, before that, 1would askyou, Mr. President,to permit us a very short speech in

which we will recall the specificcontextin whichthe statements havinggiven rise to the disputed

warrant were made, namelythe aggression and invasionof the Democratic Republicof the Congo

by its three neighbours,who chosedeliberatelyto act outsideinternationallaw.

Thank you.

The PRESIDENT: Thank you, Minister. If 1have understood youcorrectly, 1am nowto

give the floorto Maître KosisakaKombe,LegalAdviserto the Presidencyof the Republic. Maître,

you have the floor.

Maître KOSISAKA KOMBE: Thank you, Mr.President. Mr.President, Members of the

Court. Thank you for giving me this opportunityto remind you, in the form of some preliminary

remarks, of the context in which the acts having given rise to the issue of the arrest warrant

occurred. It al1stems fromthe aggressionby certainneighbouring countriesof which Ourcountry

has been victim since 2August 1998, an aggression today acknowledged by the international

community,notablythroughthe relevant resolutionsof the SecurityCouncilof the United Nations.

The aggressors have distinguishedthemselves by systematic acts of massive violationof human

rights- the United Nations estimate the number of deaths as a result of this aggression at more

than two million- and of the plunderingof the wealth of the Democratic Republicof the Congo. The inhuman conduct of the aggressors, who respect no rule of international humanitarianlaw,

became manifest right from the month of August 1998, when they seized the electrical power

supplyfacilities andut off the supply of electricityto Kinshasa, withcatastrophic results for the

six million inhabitantsof that city, particularlyin the hospitals. It was inircumstancesthat

the population of Kinshasa rose up en masse to resist the aggressionwhen the attacking forces ,

reached the outskirts of the city. The Government, by rekindling the flame of freedom,

strengthened the population's determinationto resist foreign domination. There was never any

question, as far as the Government of the Democratic Republicof the Congo was concerned, of

incitingthe populationto attack a specific group with a view to exterrninatingthem. Nor did the

Government cal1on the populationto subject individualsto inhumanor degradingtreatrnent. On

the contrary, whenever excesses were observed, the Government, with the support of certain

friendly countries and of the international community, took steps to protect those at risk,

successfullyevacuatingthem ormoving themto protectedareas. It wasthus with someindignation

thatthe Congolesepeople and Governmentwere informedof the issueby the Kingdomof Belgium

of an arrest warrantagainst the Minister for Foreign Affairs, thereby handicappingtheCongolese

, Statein its effortsto mobilizethe internationalcommunityagainst the aggression. Thepeopleand

Government ofthe Congo accordinglyseekto secure fromthe Court ajudgment which will make

good the immense legal, material and moral injury which they have manifestly suffered. The

DemocraticRepublicof the Congo,likeal1other weak nations,has a profoundtrust in the exercise

by the Court of its judicial function within an international community with ever-growing

aspirationsto becominga community governedby a rule of law akinto that prevailingat national

0 1 3 level. The presentproceedings alsorepresenta concreteexample of the acceptanceby the Congo

of judicial settlement of international disputes as a method of pacific settlement of disputes in

accordancewith theUnited Nations Charter. Mr.President, Membersof the Court, morethan any

otherforum, the Courtis best placed todayto give practical effectto that fundamentalprincipleof

the international communityrepresented by the sovereign equality of States, by condemningthe

illegal conduct of a member of the international community,irrespective of its developed-nation

status.1thank youfor your attention. The PRESIDENT: Thankyou Maître. 1now givethe floorto Professor Mandjambo, Legal

Adviserto the Ministryof Justice.

Mr.MANDJAMBO: 1am sorry, Mr. President,it is in fact ProfessorFrançois Rigaux who

will now speak.

The PRESIDENT: Thank you.
1 accordingly give the floor to Mr. FrançoisRigaux,

ProfessorEmeritusat the CatholicUniversityof Louvain.Professor,youhavethe floor.

Mr.RIGAUX:

A. INTRODUCTORY REMARK

Thankyou, Mr. President. May1first make it clearhow honoured1feelto be appearingfor

the first time before the International Court of JusticMay 1 then just Say, Mr. President,

Members of the Court, by way of preliminary remark,that relations between the Democratic

Republicofthe Congoandthe Kingdomof Belgiumareçurrently excellent. Thereis absolutely no

hostilitywhateverbetweenthe two States,and the problemwhich bringsthem before this Court is,

as has already been pointed out,very much a one-off, specific one, namely this arrest warrant

issued inthe year 2000 against the Ministerfor ForeignAffairs of the Democratic Republic of the

Congo. Whatthe two Parties are submitting to you, Mr. President, Members of the Court, is a

question of principle. Each of the two Statesis to an extent fighting rather for a principlethan to

defend its own interest. True,the Congoseeks reparationfor the offence-iniur -iacommitted

against it, but at thee time the Congois defendingan objective principleof internationallaw,

narnely respect for the immunities guaranteed by international law. In so doing, the Congo

arguing on behalf of the entire international community,for it is certainthat the violationof those

immunitieswould truly lead to chaos in interstate relations. However,1would addthat Belgium

too is fighting toefend a principle- one which may be looked upon here with a degree of

sympathy-, narnelythe principlethat crimes must not gounpunished.1fear, however, thatthis

concernon Belgium'spart has in this casebeen wrongly inspired andill-advised, and that it risks,

moreover, doing more harm than good to the principle known as universal jurisdiction. The

remainder of my speech, Mr. President, Membersof the Court, will be in two parts. In the firstpart1 will recall the subject-matterofthe proceedingsby the applicant State and the principlesof

law applicable, and in the second partill briefly set out the grounds of the Kingdom of

Belgium's internationalresponsibilityfor the violationofthe immunity of the Minister forForeign

Affairsofthe DemocraticRepublicofthe Congo.
.

B.THE SUBJECT-MATTER OF THE PROCEEDINGB SYTHE DEMOCRAT REPUBLI OCF THE
CONGO ANDTHELEGALPRINCIPLESAPPLICABLE THERETO

Belgium's first point,Ariadne's thread, which runs fromthe first to the last page of the

Counter-Memorial,is based on a flagrant misinterpretationof the subject-matter of the Congo's

suit andof the legalprinciplesapplicableto it.

1.The subject-matterof the Application, ashas alreadybeen said, concernsthe canying out

of an act ofjudicial powerwhich impugnsan essentialprerogativeof a sovereign State,namely the

right to conduct its international affairs in total independence, represented by the Minister for

Foreign Affairs of its choice, who is accordingly immune fromnal process on the part of

another State. Such imrnunityis guaranteedby an objectiverulethe victim of whosebreachis and

remainsthe DemocraticRepublic ofthe Congo,thebreach beingattributableto Belgium.

When the Counter-Memorialclaims that the initial Application is now without object, it

ignoresan essential dimensionof the applicationof the lawto relations between States orbetween

individuals. That essentialdimensionis time. Clearly,thekeyquestionto be answeredino

determinewhether the internationalarrest warrant of2000compliedwith internationallaw is what

was Mr. Yerodia's statusat that time. Ande factual circumstancesemphasizedadnauseamin

the Counter-Mernorial,namely the fact that the individual concerned is no longer Minister for

Foreign Affairs, are clearly irrelevant, for it is not as of today that the internationally lawful or

unlawful character of the arrest warranthas to be determined,but as of the time when the warrant

was issued. And as we have already stated, the only approach which could have accorded

satisfaction to the Democratic Republic of the Congo would have been for Belgium to have

expressed its regretsandpresented its apologies forthis flagrant violation of international

to have undertakento procureandeffectivelyto procure- withdrawalofthe warrant.

Thus this is nota theoretical question, asyou have been asked to believe, but very much a

practical one,articularly so in view of the fact that in its Counter-Memorial the Belgian Govemment acknowledges that, at the time of the warrant's transmission to the Democratic

Republic ofthe Congo, itwas also senttoInterpol,thoughwithout beingthe subjectof an Interpol

Red Notice (Counter-Mernorial,p. 69, para. 3.1.5). The fact that such a Red Notice might still be

issued subsequently (ibid,p. 72) thus demonstrates thatthe Belgian Governmentstill wishestoday

to seethe arrest warrantof 11 April2000 accorded its legal consequence,namelyexecution. Thus

the current subject-matterof the proceedings by the Democratic Republic of the Congo is very

mucha realone, namelya requestto the Courtto ruleon a violation of international lawwhich was

committedby Belgiuminthe year 2000,butwhichcontinuesto this day.

The notionthat it is a hypothetical question without any realsubstancewhich is today before

the Courtis developed principallyin fivepassages ofthe Counter-Memorialwhich one is boundto

regard atthe very leastas curious.

1shall cite them in the order in whichthey occur: it is statedthat the "arrestwarrant has no

legal effect at al1 either in or as regards the DRC" (ibid., p. 71, para. 3.l. 12). 1 have trouble

grasping the implications of this. Presumably it means that the authorities of the Democratic

Republic of the Congo arenot requiredto execute the warrantin any way. This notion istaken up

again on the next page(ibid., p. 72, para.3.1.13) in regard to the RedNotice: even if one were to

be issued,it would neither infringethe sovereigntyof,nor createanyobligationfor,the DRC. This

double caveat loses sight of the violation of the Congo's sovereignty resulting simply from
016
performance ofthe act of coercion representedby an arrest warrant, irrespectiveof whether it is

enforced or not. The third passage (ibid., p. 83, para. 3.2.32) restates the passage from the

reasoninginthe arrest warrantin whichthe investigatingjudge arguesthat the warrantcould notbe

executed if the Minister cameto Belgium in his official capacity. Without wishingto labourthis

curious conceptionof the operationof the separationof powers withinthe domesticorder inregard

to ajudicial decision which seeks to tell the Governmenthow it should or should not respect an

immunity under international law, it is clear from the statementswhich 1havejust cited that the

arrest warrant is claimed to have no force or practical effect either in the Congo or in Belgium.

Thus what we are seeing here is an attempt to reduce this famous arrest warrant to a document

barelyworththe paperit iswrittenon. And finally,the last passage- also, 1must Say,a somewhatastonishingone - where it is

said(ibid., pp. 130-131,para. 3.5.8that, if thearrestwarrant wereto be executedin a third State,it

would be that State, and not Belgium, which would be responsible for the violation of an

internationalobligationto the detriment of the Congo. A point which evidently loses sight of the

factthat there is a direct causalrelationbetweenthe arrestwarrant issued in Belgiumand anyact of

executioncarriedout elsewhere.

The Counter-Memorialappearsto criticizethe Applicantfor claimingno form of reparation

other than one characterized as"moral". The reparationforthis moral injury - and we shallcome

backto this tomorrow - consistsin respectfullyrequestingthe Courtto findthat the arrestwarrant

was issued illegally,but also to condemn the Respondentbyrequiringit to take the necessarysteps

to have the arrest warrant declared nul1and void ab initio, and accordingly withdrawn from its

currentcontinued circulation.

It is somewhat surprising that a Respondent shouldcomplain of the moderation ofwhat is

sought of the Court, and, in al1 likelihood, if Mr. Yerodia had still been Minister for Foreign

Affairs, the content of theApplicant's requestsmight have beeninfinitelymore substantial. But

what remains, of course, is to defendthe principleof Statesovereignty,which has been manifestly

ignoredby the issue ofthe arrestwarrant.

O17 1 will terminate this point by accordingly noting that this is in no sense a hypothetical

question, but both a question of principle and a very real one, namely the existence-the

continuing existence - within the Belgian domestic legal order of an arrest warrant the issue of

which is contraryto internationallaw.

II. In additionto disregardingthe need forthe properapplicationratione temporisofthe rule

of international law - this is the temporal problem to which 1referred and to which 1 shall

return-the Counter-Memorial is markedthroughoutby a certain conceptual confusion. In order

to explain this point to the Court, 1would like to discuss three basic concepts whichneed to be

distinguished: (1)jurisdiction, (2) immunity,and(3) culpability.

(a) In respect ofjurisdiction, the Counter-Memorialrecallsthedictum fromthe LotusJudgrnentto

the effect that a State determines its criminal jurisdiction as it sees fit, subject to any

prohibitiverule of international law. Andjurisdiction characterized,rightly or wrongly, as "universal" is particularly entitled to such an assessment, with wide latitude being left to

States to determine the geographical reach of their criminal jurisdiction. Such universal

jurisdiction appearsevenmore attractiveinthatit receivessupportfroma wide body of public

opinion, which rightly demands on behalf ofvictims of crimes under international law that

those crimesbe punishedand, if possible, thatreparationbe made for them. Even though this

aspect of universaljurisdiction wasreferred toin the Applicationinstitutingproceedings,it is

not, however,essentiallyat this point that the Court is now being askedtoide whetheror

not suchjurisdiction is a violation of international law. 1believe that the solution to the

dispute doesnot call fora responseto this question.

A Stateassertinga grievancebasedon the exerciseof "universal" jurisdictionon behalfof one

of its nationalswho isnot protectedby immunityunder international lawcould clearlybring a

diplomatic actionor an internationaljudicial action. And althoigh a clumsyattempt is made

in theCounter-Mernorialto distortthe natureof the requestbefore youby describingit inthat

way, the question hereis obviously not oneof diplomaticprotection. It is not.Yerodia's

person which is at issue;what is at issue is the office, and it is the injuryto that office which

thus constitutesthe prejudicesufferedbytheCongo.

0 1 8 (3) In respectofthe second point, immunities, whenthese are immunitiesunderinternationallaw,

they are beyond thejurisdiction ofany State legislature. And, what we find hereis, if you

will, the other aspect of theLotus judgment, i.e., that simultaneouslywith the freedom

conferred by aState'ssovereignty incriminalmatters, prohibitivenoms of international law

limiting such State autonomy in criminal matters must be maintained. And 1believe that

immunities under international law are precisely one example of a limitation placed onthe

exerciseof "universal"jurisdiction.

What 1wish to underscore is that, unlike international lawor civil law,whereand 1 hope

not to be showinga lack of respect for the Court in sayingthis -it is not necessaryto call

upon ajudge at every step alongthe way- treaties are concluded, contractsare entered into

by the parties,they are performed,they are construed,they are terminated withoutthe needfor

interventionby a court, subject of courseto respect fordrepublic under domestic law and

jus cogensunder international law- criminalproceedings arecharacterizedby the need for a court. Therecan be nopunishmentina State govemedbythe rule of lawunless a court orders

it. Accordingly,therules ofjurisdiction and procedureare utterly crucialin criminalmatters.

An act taken by a judge withoutjurisdiction, or by a judge who overstepsthe bounds of his

jurisdiction, ashose boundsare establishedby an immunity,is a flagrantly unlawfulact. It is

not in factajudicial act atll, an1 believethat whatthe Court is being asked todo is to hold

that this flagrantly unlawfulact, onethat in my opinionis unlawful eveninthemesticorder,

must be condemnedbythe Court.

(c) 1 shall now tum to the third problem- culpability- and lay stress on a fundamental

principle: immunity does not equal impunity. The fact that an immunity might bar

prosecutionbefore a specificcourt, orat a given pointin time, doesnot meanthat prosecution

cannot be brought, if appropriate,beforeanother court which is not bound by that immunity,

or at anothertimewhenthe immunityneedno longerbe taken into account.

1now retum to the role played by time, and to the Counter-Memorial,and thus also to the

Belgian Law, which, like the Counter-Memorial, confusestwo points in time. The timewhen the

alleged crime was committedand the time when the act of prosecutionis carried out. The time

when the crime was committed can have certain consequences- and did in the past have far

greater consequences- with respect to prosecution. As you know, it was long consideredthat a

O 2 9 Head of State was safe from being chargedpersonally or individuallyfor any crime. It has only

been quite recently that the view has beentaken that acts carried out in the exercise of an office

such as that of Head of Statecould be prosecuted. But there, what is decisive is the effect of the

temporal rule conceming the existence,or alleged existence, atthe time the acts were carried out,

of a legal bar to prosecution. And there isalso a second,entirely distinct, question: atthe time of

prosecution is there or is there not an immunity,independent ofthendividual'sstatusat the time

when the offencewas committed,barringprosecution? Now, as you will recall, the acts of which

Mr. Yerodia stands accused were, or are said to have been, committedbefore he took office as

Minister for Foreign Affairs; hecannot claimthe benefit of anyrule concerningofficial status at

thetime of the acts. But the prosecutionwasinstituted ata timewhen he did havethat status.

If you look at the Counter-Memorialand al1the examples so laboriously and extensively

discussed, they al1refer to a set of totallydifferent situations, those of individuals who held an officialstatusat the time whenthe acts were committedand whohad lost that statusby the time of

prosecution.

And if you consider the classic examples, from Kaiser Wilhelm II to the Japanese and

Germandefendantsbefore the Tokyoand Nuremberg tribunals, al1these cases involved situations

in which an official status could be claimedat the time of the acts. But there was no longer any

officia1 status, and therefore no longer any role to be played by immunity, at the time of

prosecution. For example, no one thought during the First World War of indicting the German

Kaiser beforea tribunalof oneofthe belligerent States while hewas in power. The issuewas only

raised after he ceasedto hold office. Accordingly,thisjurisprudence providesno basis for arguing

that it is possible to prosecute an individual holding a status which wouldnormally protect him

from prosecution atthe time prosecution is brought. In my view, the two aspects in which the

Counter-Memorial is open to criticism are that, first, it fails to take account of the difference

between an international courtand a domestic one- the Nuremberg and Tokyo tribunals were

international courts, which- andthis is the second difference- ruled on crimes charged against

individuals who had ceased to hold their official capacities at the time the prosecutions were
0 2 0
brought.

And this confusion, which is central to Ourproblem, is to be found in the Belgian Law,

which in a single article bypasses the two paragraphs of Article 27 of the Statute of the

InternationalCriminalCourt. Article27 ofthe Statuteof the InternationalCriminalCourtmakesa

clear distinction between the first issue, groundsof exemption which the accused may claim by

virtue of the office which he held at the time when he held it, andthe second paragraph, which

deals with immunity. And the Statute of the International Criminal Court explicitly refers to

immunitiesboth undernationallawand underinternationallaw.

The Belgian Law does indeed speak of immunity; it does not go so far as to speak of

immunityunder internationallaw,for it wouldclearlybe excessivefor the lawrnakerto legislateon

immunity under internationallaw. The Lawthus refers to immunity,without further qualification.

And, in any case, this is how theLaw hasbeen interpretedby a number of investigatingjudges,as

we already pointedout a shortwhile ago. Thus, in the case of the major war criminals,there was

no questionof immunity; they no longer enjoyedany immunity; they no longerheld any official capacity. It was a completely differentproblem,that of determiningwhether the offices theyhad

held protected them against internationalcriminal prosecution. As you will perhaps recall, Mr.

President, Membersof the Court, a number of dissentingvoices, notably from the United States,

were heard at the time former KaiserWilhelmII was indicted; adoptinga doctrinalviewthat was

accepted at that time but is now outdated, they believed that a Head of State could not be

personally prosecuted foracts committedbyhim inthe narneof his government.

And now to the second part, which willbeyrest assured, much shorter. Why and in what

manner is Belgium assuming today an international responsibility whichresults in its appearance

before your Court? Why is the injuryto the DemocraticRepublic of the Congo imputableto the

Kingdomof Belgium? And is the Court not under an obligationto establish whichin particularof

the various organs of the Belgian State, in the internal order, is responsible for the violation?

However, I should like tostressthe extent of this responsibilityby stting that al1the organsof the

Belgian State have contributedto the wrong,to the violation of international law. First,of course,
021
there is the organ of the judiciary which issued the disputed arrest warrant, then there is the

legislator- or perhaps before the legislator(as the Congo stated in its Memorial, and 1will not

return to this, there were doubts as to the exact interpretationof the Belgian Law in questionand,

had thejudge applied the old doctrine ofthe CharmingBetsy,that is to Saythat wherethere is any

doubt as to the interpretation of a domestic rule of law it must be construed and interpreted in

compliance with international law - you will find this argument in the Memorial if you are

interested,1shall not press that pointfor the moment). 1simply statethat the legislatoralso had a

hand in, if one may use that phrase, issuing.this arrest warrant and that, thirdly, theernrnent

itself provided CO-operationby circulatingthe arrest warrant or arranging for its circulationby its

officials, and, further, by continuingto claim before the Court todaythat this arrest warrant is not

contraryto international law.

Inorderto gain a clearerpictureofthis combination ofwrongscommittedwithinthe Belgian

internal order,1 should like to recalla procedural rule of criminal law which is not peculiar to

Belgium, but which nonetheless is not commonto al1States, and that isthe possibility open toa

plaintiff,an individual who claimsto be the victim of ariminaloffence,to lodgea civil complaint

with an investigatingjudge. It is a practice which, in my view, is most welcome because it prevents the ministèrepublic, the public prosecutorand the crown prosecutorfrom monopolizing

criminalproceedings. The complainant, thevictim, can set inmotion the public proceedings,and

that is precisely whathappenedinthis caseand in the othersimilar cases. But let there not beany

misunderstanding. The factthat the complainant mayset the criminalproceedingsin motiondoes

not mean that the courts and the prosecutingauthorities are deprivedof their jurisdiction. Should

the investigating judge receivea complaintor a civil suit which is contrary to the law, he must

either himself make an order, or apply to the Chamber of the local criminal court [Tribunal

correctionnel] for a finding that no prosecution will be brought. Itwas also pointed out in the

Memorial that thereare a large number of immunitiesunder domestic law, primarily that of the

inviolabilityof theersonof the Kingand alsothose of ministersor parliamentarians,who maybe

prosecuted only after immunity has been waived, particularly as far as parliamentarians are

concerned, by the competent assembly. Then there are special privilegesor immunities from

suit a Belgianjudgecan be prosecuted onlybeforethe Appeal Court- andthus, ifthe plaintiff

seeksto instituteproceedingson a civil complainant beforethe investigatingjudge of a lowercourt

[Tribunal de première instance], that court must declare itself incompetent. Military courts
0 2 2
representanother groundof incompetence. No proceedingson a civil complaint maybe instituted
,
against militas. personnel, because such come within the remit of the militas, courts, where no

suchprovisionexists.

Thus we must not shift the responsibilityto the civil complainants. It was,of course, the

civil complainantswho initiatedthe criminalproceedings,but acivil complaintin no way deprives

the organs of the judiciary of their power to veri@the jurisdiction of the court and the possible

existenceof immunity.

In this context- and we referredto thisjust now- there are two aspects which appearto

me of more interest. The annual addressof the Public Prosecutorto the BrusselsAppeal Courton

3 September2001, followedby a statementbythe Advocate-General,Alain Winants,entitled "The

ministèrepublic and international criminal law". First, as regards the system of universal

jurisdiction,the ministèrepublic considers thatit must be maintained,butthere are groundsde Iege

ferenda, on the one hand, "to establishjurisdictional hierarchy and, on the other, when Belgian

courtsare seised onthe basis of universaljurisdiction,toprovidefor a criterionof connectionwithBelgium, for example Belgian nationalityof the perpetrator, Belgian nationality ofthe victim,

residence of the victim in Belgium, the fact that the perpetrator is present in Belgium". An

explanatory footnote statedthat thejurisdictional hierarchymight be as follows: "1.International

courts; 2. Courts loci delicti; 3. Courts ofthe State ofthe perpetrator'snationalityor of the State

where he resides,or of the State wherehe maybe present; and finally,only in 4., the court seised

underuniversaljurisdiction,in conjunction withcriteriaof connection".

Thus, we see that the principal prosecuting organ forthejurisdictional area of the Brussels

Appeal Court, where al1the cases are currently pending, has retreated verymarkedly from the

approachwhichthe legislator wouldhave takentothis problem.

What follows is even more significant. The self-same prosecutor, still in the address of

3 September2001, suggests de legeferenda that "additional guarantees for individuals enjoying

internationalimmunity"shouldbe provided. Hecontinues:

"One could imaginea mechanismmodelledon that applicable in domestic law
either to ministersorto parliamentarians.

Personally, it seems to me that we should favour the route of judicial
intervention rather than action at parliamentaryor government level,thus respecting
the principleof the separation ofpowers." [Translation bytheRegistry]

What is really troubling about this text is the idea of removingor diminishing animmunity

recognized under international lawby subjectingit to review under domesticlaw. The true nature

of such immunityis evidentlymisunderstood. Whatis interestingis that the certaintythat Belgium

is in theright, proudly proclaimedin the Counter-Memorial,is far from sharedby al1the organsof

the domestic legal order. And indeed, in the letter addressed to the Registrar of the Court on

14June 2001- to which reference has already been made- by the Agent of the Belgian

Govemment, one of the arguments invokedto secure a delay in the Court's considerationof the

case was as follows:

"As regardsthe Belgian legislationat issue inthis case,Belgiumwould observe
that it is currentlyundertakinga review ofthe Law interms of its implementation.

In lightof thesenew facts,and in orderto preventthe issuesonthe merits ofthe
dispute between the Parties being considered and adjudicated upon to no purpose
beforethe ongoingreview of legislationhas beencompleted .. ." In its Counter-Memorial- which 1 have, however, read with care- the Belgian

Governmentmakes no furtherreferenceto anythoughtsof legislativereview. 1wouldadd thatthis

is the wiser approach when appearing before the Court, since a future amendment of current

legislation the Laws of 1993and 1999 - cannot make good theinfi-ingementof international

law committedby implementationof the law as it currently stands. The legislatorand the Belgian

judiciary should be invited to reread thel-chosenwords of Portalis, inwhich the Govemment

Orator providedjustification in responseto certain observations that thei Civil Code did not

containany provisionson immunitiesunderinternationallaw. Portalis' replywas:

"Matters regarding ambassadors pertain to the law of nations. It was not
incumbent upon us to concern ourselves with this in aaw which concems only the
country's interna1régime."(Memorial of the Democratic Republic of the Congo,
P. 12)

1will concludeby saying that whatevermay be the future directiontaken by Belgian lawin

the matter, it is of no relevance to the present proceedings and that is why 1would highlightthe

referenceinthe Agent's letterof Juneto the matterbeing "adjudicatedupon to no purpose". There

is no question of adjudicatingto no purpose upon an act which has been committed and which
O 2 4

cannot be remedied by a simple legislative amendment designed for the future. It is certainly

desirable that Belgium should cease making an exhibition of itself by openly disregarding the

internationalrégimeof immunities,but the cracks appearingin a crumblingedifice are merelyan

additional argument in support of the position we are honoured toefend before the Court on

behalf of the Democratic Republic of the Congo. A violation of international law has been

committed,and the Court is respectfullyrequestedtoorder Belgiumto make redress. 1 thank the

Courtfor its attention.

The PRESIDENT: Thankyou Professor. Towhomshould1nowgivethe floor?

Mr. RIGAUX: To Ms Chemillier-Gendreau.

The PRESIDENT: Thankyou. ProfessorChemillier-Gendreau,you havethe floor

Ms CHEMILLIER-GENDREAU: Mr. President, Members of the Court, 1am honoured at

appearing before you to present certain arguments in support of the Application which the Democratic Republic of the Congo has submittedto the Court. Professor Rigaux hasjust given a

comprehensivereview of the reasons underlyingthe point of view of the applicant State. 1shall

now attempt to demonstratethat, contrary to what is stated in the Counter-Mernorial,there is no

impedimentto the Court'sjurisdiction in terms of the admissibilityof the claim of the Democratic

Republicof theCongo.

Belgium has put forward two arguments in this respect: first, on the alleged basis of the

facts, it says that the claim of the Democratic Republic of the Congo is now without object.

Second, it asserts that the substance of that claim underwent considerable alteration between its

initial formulation in the Applicationled on 17October2000 and the submissions made in the

Memorialpresentedto the Courton 15May2001.

This metarnorphosis, according to Belgium,is on such a scale that the dispute betweenthe

two States now relates purely to a theoretical issue, andhus cloaks a request for an advisory

O 2 5 opinion in the guise of a contentious Applicationthat has become entirely meaningless. The

applicant State intends to show the Court that the dispute at the origin of its Application of

17October2000 is still fully extant,that any change whichmay have taken place in the facts has

, not modifiedthe terms of the disputeandthat there is no argumentwhich couldjusti@terminating

the proceedings by a finding of lack ofjurisdictiondfor inadmissibility, whichwould leave the

dispute unresolved.

Today, it is my tum to give a rapid sketch of the facts in order to demonstrate how their

extremely unrealistic presentationhas enabledthe Belgian Govemment toconvince itself that the

dispute no longer exists. In the view of the respondent State,the point which foundsthe lack of

jurisdiction of the Court or the inadmissibility ofthe Congolese claimconcems the changeswhich

took place in Mr. YerodiaNdombasiYscareer. Thus it is stated that, having held the post of

Director of the Office of President LaurentDésirée Kabila, as he did at the time of the acts of

which he is accused, he then became Minister for Foreign Affairsof the Congolese Govemment,

the post whichhe held at the time of issueof the Belgian arrest warrant whichis the subjectof the

present dispute. Subsequently, Mr.Yerodiawas MinisterofNationalEducation,andthis changeof

office coincided with the opening of the proceedings on provisional measures. Finally, since Apri12001, he has ceased to be shown as holding any government office. In the context of the

present casewe should pause fora while atthispoint.

There is no disagreementbetweenthe Partieson this statement of the facts. The arguments

which Belgium adduces to justify the criminal proceedings instituted againstthe Minister for

Foreign Affairsofthe Congo neverthelessdeserveattention.

InNovember 1998,whenthe personnamed in the Belgianarrestwarrantwas Directorof the

Office of the President of the Democratic Republicof the Congo, a number of complaints were

lodged in Belgiumin regard to international crimes committedin the Congo. Theywere madeby

12complainants,five of whomare said to be Belgian nationality,against President Laurent Désiré

Kabila himself, but also against the Minister for Information, the Minister of the Interior, the

CommunicationsAdviserto Mr. Kabilaand,finally, Mr. Yerodia Ndombasi.

The last-named, however,is the only person who is today the subject of an arrest warrant.

This isan initialcauseforjustifiable surprise.

Belgium has enacted some bold legislation,making itself a pion&r in the contribution of
O26
Statesto the suppression of internationalcrimes. The DemocraticRepublic of the Congo does not

seek to criticizeper se the principle of national laws which enhance the ability of States to

participate in thetruggle against international crimes. We shall have occasionto revert to this

tomorrow. We fully understand whyBelgianjustice, beingrightlyalarmed atthe murderous events

taking place on the territory of the Democratic Republic ofthe Congo, and having been seisedof

complaints relating tothese events, wished to utilize the recent legislationas a possible means of

putting a halt to the tragic events which were taking place. This is the professed aim. The

dificulty, however, arises fromthe selectivitywhich governedthe measuresthat were taken. And

the argumentthat the prosecutionwasjustified cannot dispose ofthisdificulty. Whatwe objectto

here, namely,that in international law, the immunitiesenjoyedby high-rankingpolitical leadersbar

proceedingsbeing taken against them,proved noobstacleto the long am of Belgianjustice. That

am struck,however,in a mannerthat was highlypartial.

Sucha course of actiondoesnot matchthe defined objective,ifthat objectiveis in factto put

a halt to crimes whose massive scale clearly precludes them in every possible way from being

attributable to one individual alone. The recitals in the warrant specifically cite the accused's personality as a ground for the absolutenecessityto issue a warrantagainst him in the interests of

public security. What, then, is this public securityto which he represents a threat,and not others

against whom complaints were also filed? According to the testimonies, however, they uttered

remarksof the samekind as thosewhich formedthe basis ofthe arrestwarrant of 11April2000.

The question, why prosecute that particular individual?is al1the more troubling in light of

the actsallegedagainsthim evenweretheseto be confirrned. The indictmentanditsterms, andthe

characterization of theoffences charged, are, itis true, questions falling outside the scope of the

proceedings now before the Court. The reason, however, why it is necessary to mention them

briefly is that they formelementsto the background of thecase and serveto showhow it is marked

at everystageby vacillationandimprecision.

Mr. Yerodia is said to have uttered words in 1998 constituting incitement to hate and

violence. That is whathe is accusedof.

The representative of the DemocraticRepublic of the Congo, now present here before you,
027
naturally shares the censure which such statementswould arouse were it confirrnedthat they had

been made. He neverthelessnotesthat the accusation relates to wordsand not to acts.

This clearlyraises questions aboutthe entire course of reasoningwhich is needed if thereis

to be an absolutelyrigorous progression from the facts to their characterization,and thence to the

prosecution of the persons actually responsible. 1sthe reference tointentional homicide relevant?

1sthe act of killing intentionally,a crime dealtwith in the GenevaConventionsas an international

war crime,assimilableto intentionto kill? Canan extension ofthis kind be effectedby a national

law or by the applicationof the national lawby a domesticjudge? Onthe basis of the information

on record in the file, is the charge of incitementto racial hatredstified? Accordingto the actual

tenns of the warrant, the speeches concerned- since the complaints relate to speeches-

"resulted inthe death of severalhundredpeople andthe internment ofTutsis, summaryexecutions,

arbitrary arrests and unfair trials". 1sthe process of imputation- such a delicatematter where

persona1 criminal responsibility is concerned- applied here correctly? International criminal

justice, inarticulateand fi-agileas it is, gainsnothing fi-omproceedingsbeing instituted withoutthe

full rigour which the nature of their subject demands. Extendingthe indictment even further, to

crimes against humanity,the judge relies on Article 4 of the Belgian Law of 16June 1993,citing provocation to commit such crimes and failure to act by persons in a position to prevent their

commission(see page 20 of thearrest warrant [p. 54 of the Englishtranslation]). Yet, as we have

pointed out, no action was taken on complaints brought against persons who were far more

powerful in the machinery of Congolese Government atthe time of the alleged offences. In his

investigation, 7,000kmfrom the scene of the violence, theBelgianjudge chargesthe accusedwith

speeches whose content emergessolely from the testimony availabie to him in Belgium. Then,

heedlessof any scruples,he lays an indictmentforcrimesofthe gravestkind.

In this hazy context, there is one point whichis not without relevanceto the case presented

to the Court, because it is centralto the disputewhich the Court hasto resolve. That is the failure

to act, which inthe eyes of the investigatingjudgejustifies both the charge ofwar crimes and that

of crimes against humanity. The inevitable corollaryof this argument is that the warrant concerns

Mr. Yerodia in his public capacity. Moreover, itis brought against Mr. YerodiaNdombasi as

former Director of the Office of PresidentKabilaand currently Ministerfor ForeignAffairs of the
028

Democratic Republic of the Congo. Thus there is noedoubt: it is definitely the individual with

governmentalresponsibilitieswho is beingprosecuted. The reason why partof the indictmentrests

on his failure to act is that, in the view of thejudge, the political posts successively occupiedby

Mr. Yerodiawere such as might have enabledhim to curbthe violence. Thus the acts prosecuted

are, accordingto their express interpretationbythe Belgianinvestigatingjudge, acts of office. This

point is an embarrassment to the representativesof Belgium, who strive to reconcile it with the

argumentthat the accused acted privately andnot in the course of his official duties. They cannot

get around the fact that thecore of this case is the question of the immunities fromjurisdiction

enjoyed by certain incumbent representatives ofthe State. Belgium is nevertheless bent in its

Counter-Mernorialon maintaining that the immunities do not protect the personsto whom they

apply when these are acting privately or not in the course of their official duties. Thus, for the

needs of itsthesis, Belgium takes the view herethat the accused was in a position to protect the

populationand prosecutes him for not having done so, but italso contendsthat the dispute before

the Court is without object, since immunity fromjurisdiction is not at issue in this case, which is

solely a matter of private acts. In reality it is pointless hereto go into thedistinctionbetweenacts

of office andprivate acts, or into a discussionof acts whichremain criminal once the person is nolongerin office. What the accusedis chargedwithrelatesto a periodduringwhich he occupiedan

importantpost, butone which didnot entitle him to immunity. The warrant was issuedwhile he

was in office as Minister for Foreign Affairs and wasthus protectedby an immunity whichbarred

his prosecution, regardlessof the date or nature of the acts charged against him. Herein lies the

violation of internationallaw.

But the imprecision ofthe Belgian position doesnot stopthere. 1should likenowto identiQ

certain additional instancesof it. They explain why- and this is what justifies mentioning

them - Belgium's argumentrevolves around the disappearanceof the object of the dispute. This

purported extinction ofthe disputewould, wereit a true - quodnon- openthe way for a finding

by the Court of lack ofjurisdiction andforinadmissibility. Thatwould, withoutfurtherado, permit

the disappearanceof a dispute which has highlightedthe difficulties,underestimatedby Belgium,

that are inherent in the joint conduct by States and internationaltribunals of the suppression of

internationalcrimes. It is in no one'snterestto do away withthe matter at so little cost, however,

andthe difficultieswhich embarrassthe representativesof Belgium in th&e proceedingsdeserveto

be exarnined. The Belgian Law calls for no territorial nexus for the exercise of its universal

jurisdiction. This point willbe discussed tomorrow fromthe standpoint of its consistencywith the

general logic of internationallaw. The Belgian investigatingjudge made use in this case of the

power thus conferred on him. However, what seems highly significant here is that,

notwithstanding the terms of the Law, the arrest warrant itself, and above al1 the arguments

contained in the Counter-Mernorial, demonstratea concem to prove a territorial link nevertheless.

No doubt universaljurisdiction, a notion which reaches beyond the confines of individual States

and is exercised on behalf ofthe entire communityof mankind,is an exalting idea,but one which

also tends to induce a certain sense of vertigo. Thus the authors of the Counter-Memorial areat

pains to emphasize, in paragraph3.3.69, that certain of the complainants, who also consider

themselvesto be victims,areof Belgian nationality; thatthey areresident in Belgium; thatthere is

a large Congolese communityin Belgiumand that Mr. Yerodia's speech aroused real emotionin

Belgium. This raises a whole flood of questions: is it possible to lodgea complainton accountof

crimesagainst intemationallawwithout havingbeena victim, sincesomeof the complainantswere

not victims? Who can be called victimsof such crimes? Alas,the majority of the direct victims are no longerwith us. 1sthis a sortof "classaction"? If so, why record al1the evidencepertaining

particularlyto Belgium? Moreover,is ittruly immaterialto the institutionof proceedingswhether

the individual concemed is present in the territory of the prosecuting State? Not without real

candour- a candour which the Court will appreciate as much as we, their opponents,do- the

authors of the Counter-Memorial acknowledge the uncertainties created by the amendments to

Belgian criminal law in 1993and 1999. In order to widen the possibilities ofprosecution opento

Belgian courts dealingwith complaintson account of crimesunder internationallaw,the presence

in Belgianterritory of the perpetratorisno longer required. Butthis up againstthe obstacleof

a provision of the Belgian Code of Criminal Investigation which authorizes the prosecution of

offencesonly ifthe accusedis presentin Belgium. We aretold that the Belgiancourts havenot yet

reacheda decisionon this. Dependingonthe outcorne,their decisionmightrendervoid al1pending

proceedings, including the arrestwarrant against Mr.Yerodia. Yetthe arrest warrant remains in

force. Even were it to disappear, the damage has been done and reparation must be made.

Q 3 O Furthemore, the Belgian Governmentis well aware of the fact that the Belgian Law,despitethe

advance in internationalcriminal law which it represents, needs to shed the contradictionswhich

havearisen between itandthe prevailinglegalstructure. The Belgian Governmentmakesno secret

of its wish to amend its legislation, but, as ProfessorRigaux has just pointed out, that has no

bearing on this case. However, it does highlight the unsoundness of the position from the

standpoint of international law. By the same token, it is significant that the representative of

Belgium is at pains to minimizeal1the potentialeffects of the arrest warrant. The arrest warrant,

issued in breachof internationallaw, has caused injuryto the Democratic Republic ofthe Congo,

for which it seeks legitimate redress fiom the Court. Nevertheless, the arrestwarrant is still in

force. The conduct of the Belgian investigating judge, supported by the authors of the

Counter-Memorial,consists in indicting a minister in office of the Democratic Republicof the

Congobecause, in the eyesof Belgian justice,he has committedcrimes so serious as to invalidate

his immunity.

The arrest warrant claims that this will have no effecton intemational relations between

Belgium and theCongo. An entireparagraphof itstext is devotedtojustifiing an assuranceto the individual concernedthat his presence,in his capacityas Minister,on Belgian territory wouldnot

leadto an arrest.

"In the contrarycase," writesthejudge, "failureto adhereto this undertakingcould entailthe

host State beingliableat internationallevel." Thejudge is gravelymistakenhere as to the origin of

that international responsibility.

Responsibility has already arisen, not because of the hypothetical arrest of an invited

Minister, but becauseof the arrest warrant issuedagainst him. For, if the offenceswith which he

was charged were so serious as to extinguish the immunityfrom suit of a minister in office, how

could such immunitybe resurrectedprecisely whenthe practical condition forthe executionof the

arrestwarrant was met: narnelyhis presenceinthe territory ofthe prosecuting State?

How couldthe courts blindfold themselvesand suspend proceedings,onlyto relaunchthem

at the very time when nothing further could be achieved owing tothe absence of the individual

concemed?

Such inconsistencies cannotbe madegoodby drawinga distinctionbetween immunityfrom
031

jurisdiction and immunity from execution. We see the inconsistency in concentrated form on

page9 of the Counter-Memorial. There it is said:

"[l.] Immunity does not in any event avail Ministersfor Foreign Affairs in
office allegedto have committed war crimesor crimesagainsthumanity;

[2.]The arrest warrant explicitlyrecognizesthat had Mr.YerodiaNdombasi, in
his role as DRCForeign Minister,visited Belgiumon the basisof an invitation andin
his officialcapacity, he couldnot havebeenarrested."

The "not in anyevent" of paragraph 1 isthus incorrect,sincethere is an instanceinwhichhe

is protectedby immunity,that setout inparagraph 2.

Unfortunately,failing lamentablyto observethe principleofthe sovereign equality of States,

Belgium has arbitrarily resewed the right to be ableto lift immunity,then to restore it, at the whim

It is impossiblenot to see in this a sort of judicial opportunism,
of its diplornaticconvenience.

which hasin effectledto the inventionofthe categoryof "virtualarrest warrant"

In thesame irresponsible spirit,the representativesof Belgium,having dweltat lengthonthe

follow-upto an international arrest warrantin the shapeof action by Interpol, statethat to date the

arrestwarranthas notbeen the subjectof a RedNotice. The PRESIDENT: MadarnProfessor,allowmeto ask ifthis would bea convenienttime for

the traditional break,or if youwould preferto speakfor a few momentslonger.

Ms CHEMILLIER-GENDREAU:Mr. President, yes,my statementwill take another tento

fifteenminutes,and 1am quitewillingto take abreakhere.

The PRESIDENT: Weshallnowtake a break,ifyouwill beso kind. Thank you.

TheCourtadjournedffom11.30to 11.50a.m.

Le VICE-PRESIDENT,faisantfonctionde Président :En raison d'unimportantengagement

officiel, le Président m'a demandéd'assurer la présidence pour le restede l'audience. J'invite

O 3 2 maintenant MmeChemillier-Gendreau à poursuivre son exposé. Je prie aussi

MmeChemillier-Gendreaude parlerplus lentement afinde permettreaux interprètesde suivreplus

facilement le coursde l'exposé.

Ms CHEMILLIER-GENDREAU: Thank you, MrP . resident.shall do my best to ensure

that the interpreters can follow me, and 1beg your pardon for having spoken too rapidly at the

outset. 1accordinglycontinuemy statement,which, ina firstpart which1did not completelyfinish

earlier, has covered a number of points whichwe shall analyse, such as the inconsistenciesand

difficultiesof the Belgian position. Having pointed out thatthe arrest warrant againstMr.Yerodia

also contained the assurance that he would notbe arrested were he to be invited into Belgian

territory, the pointad reached concerns what1would term the irresponsiblespirit in which the

representativesof Belgiumdwelt at lengthon the follow-upto an internationalarrestwarrant inthe

shape of actionby Interpol. In the Counter-Memorial, theystate that to datethe arrest warranthas

not been the subject of a Red Notice. Such a notice, issued and circulated by Interpol, is an

international wanted notice. Almost casually,the Counter-Memorialadds, in paragraph 3.1.13:

"Giventhe effect ofRedNotices in the DRC,even werea RedNotice to be issued, itwouldneither

infringethe sovereigntyof,nor createanyobligationfor,the DRC." In a similarvein, one whichit

will be for the Court to appraise, Belgium's Counter-Memorialnotes the statement by the

Democratic Republic of the Congo that to date no State has acted on the arrest warrant. But Belgiumtwiststhis to make it Saywhatthe Democratic Republicof the Congodid not Say,narnely

that "no Stateis preparedto act on the arrestwarrant". And this distortion of languagepermitsan

astonishingmental leap: these proceedingsare pointless. It cannotbe concludedthat,just because

no State has so far acted on the arrest warrant,no State is preparedto do so. For so long as the

arrest warrantexists,there is still a risk that it will be enforcedin any country, includingBelgium,

despite Belgium's unilateral undertakings.Al1this revealsa sad misreading ofthe obligationsof

States arising fiom the respect due to international law. Yet such respect, as the Democratic

Republicof the Congo will later show, requires al1States to giveeffect to the immunities enjoyed

by certain of their representatives.It is not for one State alone to lift such immunities. It can

0 3 3 happen that international law provides for derogationsthat apply to all, but a single State cannot

claim to be applyinga derogation if it isnable to indicatethe rules of internationalla- not of

domesticlaw- which permitsuchderogation.
8
Noting such contradictions in Belgium's reasoning has enabled me toidentifi the context

which explainsBelgium7swish to havethe dispute sweptunderthe table on the groundsof lackof

jurisdiction or lack of admissibility. Belgium has thrown itself ardently into a new role as an

internationalsheriff. It legitimizesthis on the grounds of its humanitarian views, viewswhich 1

myself share passionately. Belgium saw in the United Nation resolutions a cal1to advance the

cause of internationaljustice in the wake of the crimes committedin the Democratic Republicof

the Congo. However, it erroneously sawin them a mandate to act swiftly and severely without

concemingitselfwiththe consistency demandedby the lawas a whole.

Belgiumnow finds itself in an awkwardcorner and itattemptsto minimizethe significance

of its actions. It is not possible to flout the sovereignty of another State in this manner. The

withdrawalofthe disputedarrestwarrant wasthe onlywayout. In refising, Belgiumhas chosento

sideline the dispute by declaring that it has become moot. We regret, quite as much as the

representatives of Belgium,this new episodein relationsbetweenthe two States. Yetthe disputeis

stillextant,as 1shallnow show.

Belgiumstatesthat the disputehas becomean abstract one, that itis no longer anythingmore

than a theoretical issue, tantamountto a request for an advisory opinion, and its argument is

founded on the changes of office that have marked Mr. Yerodia's career since 1998. The arrest warrant, we are told, was addressedto Mr. Yerodia in his private capacity on account of persona1

acts. As a result, the waters of the case have become muddiedby the confusion oftwo arguments.

On the one hand, it is statedthat, in the face of the mostrious crimes- and it is these that the

judge imputesto Mr.Yerodia- immunitiesmust cede. Here alreadywe have a point of lawthat

is open to debate. Are immunities to be ceded before al1national courts as well as international

courts, and without States having expressly agreed thereto amongthemselves? The Democratic

Republic of the Congo maintains the opposite. If,on the other hand, immunitycould constitutea

bar to the warrant whilstthe accused held office it wouldno longer, we are told, be effectiveafter

the cessation ofthat office. The warrantwouldhaveremainedin forcewithout interruptionas from

its issue. Now it would address an individual without govemmentalduties and would retain no

memory of those once performed, for it would be basedon acts done in his private capacity.
034
Unfortunatelyfor Belgium,this scenario is not the true one, as is confirmed by the statementsof

thejudge, who charged this individualas a govemment officia1and not as a private person. The

Democratic Republicof the Congo is not acting here on behalf of one of its nationals by wayof

diplomatic protection, as is erroneously suggested in Belgium7s pleadings. The Democratic

Republic of the Congo is quite simply acting within the fiamework of State continuity and the

defence of its interests,and onthose groundsthe dispute persists. 1fully understandthat it is not

enough forone of the Partiesto claimthat it is in disagreementwith the other to require afinding

that a disputeexists- which mightbe nothingmorethan the productof a subjective belief. Since

the case of the Mavromattis Palestine Concessionsin 1924,internationalcourts have consistently

stressed that there must be a dispute on a point of law or of fact- a conflict, a clash of legal

argumentsor interestsbetweenthe parties. It has been statedsince, interalia inthe 1950judgment

on the interpretationof the peace treaties with Bulgaria, Hungary and Romania,that the existence

of an internationaldispute is aatter for objective determination. In the South WestAffica Cases

in 1962the Court stated that the claim of one of the parties must be positively opposedby the

other. It isbecause it found that there was such oppositionthat the Court ruled that there was a

dispute in 1988 in its advisory opinionon the Applicability of the Obligation to Arbitrate under

Section 21 of the UnitedNations HeadquartersAgreementof 26 June 1947. It was afier stressing that Portugal's complaintshad beenrejectedby Australiathat this Court againruled that a dispute

existedin 1995inthe case concemingEast Timor. Heretheterms ofthe disputeare obvious.

The Democratic Republic of the Congo states that the arrest warrant issued while

Mr.Yerodia was Ministerfor Foreign Affairs violates intemational lawand seeks reparation for

thiswrongful act. Belgium maintains thatthere has been no such violation ofthat law. The legal

conflictarisesfiom the factthat inthe opinionof the DemocraticRepublicofthe Congotherespect

for immunity fromsuit enjoyed by a Minister for Foreign Affairs in office flows from a positive

nom of customaryinternationallaw,that at presentthere are no contraryrules of internationallaw

with greater force and that theomestic law of a State cannot validlyand unilaterallyamend the

terms of internationallaw. The respondentState maintainson the contrarythat it wasjustified in
0 3 5

doingso.

Underlying these conflictinglegalstances is a clash of interests. TheRepublicofthe Congo

is defending itsinterestsas a sovereignState, which requirethat the immunitiesrecognizedunder

international lawforholders ofthe highestpublic offices*shouldbe respected.

Belgium is defending the broad positions with regard to the prosecution of international

crimes establishedby Belgian legislationandthe usethat has beenmade ofthem by ajudge.

We still have to look more closely to see whether, as Belgiummaintains, this disputehas

evolved since the time when the Applicationwas filed. More precisely,we must check whetherit

has diminished to such a point as to leavethe case without object. We are told that the changed

situation stems fiom the changes that have occurred in the positions held by Mr.Yerodia.

However,as 1havealreadypointedout, Belgiumispursuingtwo parallel linesof argument.

It is contendedthat immunities would notapply in any case to crimesof a certain gravity

and that this is such a case. However, as if this argument were not sufficient, it is said that the

immunities ofthe Minister for Foreign Affairs were extinguishedon his departure fiom that post

and that the case became moot dueto the changes that took place in the Congolese government.

The respondent State believes itself entitled to rely on the Order made by the Court on

8December2000 on the request for provisional measures. Then, however, the urgency and the

existence of irreparableinjury stemmed in the view of the Congo fiom the fact that Mr.Yerodia

held the post of Minister for Foreign Affairs. His change ofpostduring the proceedings, andthe post of MinisterforNational Educationthathe then occupied,stilljustified provisional measuresin

the Congo's view. The Courtconsidered that such measures were no longer necessaryin the

circumstances. Therewas,however,noquestionof rulingonthe merits.

Assessment ofthetime factor cannotbe the same on the merits and onthe issue of urgency.

On the merits, the fact that. Yerodiais no longerthe Ministerfor ForeignAffairs today cannot

erasethe factthat he wasMinister whenthe warrantwas issued. And itisthat contemporaneity -

which cannotbe effaced by any externalevent of whatever nature- betweenthe protectedoffice

and the warrant that disregardsthatprotection,which lies atthe heart of the dispute. It isprecisely

this claim by the Democratic Republic of the Congo, based on its right asan injured sovereign
O 3 6

State, that comes into collision with the manifest opposition of the respondent State. The latter

refusesto cancelthe disputedarrest warrantand conteststhe legalbasis oftheclaim.

This is not an abstract issue,underthe guiseof which weare asking the Courtto declarethe

law. We expect the Courtto settle an actual dispute. Becausethis is a legal dispute,the Court's

decision will doubtless clarifj the law, but that is only to be expected. To have an injured right

upheld iswhat States norrnallycome to the Court for. In order for the case to become devoidof

object duringthe proceedings,the causeof the violationof the right would havehad to disappear,
,

and the redresssought would have hadto be obtained. The causehereis thewarrant issuedbythe

Belgianjudge.

In itsOrder of 8December2000the Courtstressed thatto date the saidwarrant had not been

withdrawnand still relatedto thesarneindividual(see paragraph56). Ten monthslater, mywords

stillaccordwiththe facts.

In continuing to claim that the Court no longer has any grounds for the exercise of its

jurisdiction, Belgium seemsto meto be falling intoa seriouserror by devotingseveralpages of its

Memorial [sic] to the Northern Cameroons and NuclearTestscases. But the attemptto draw a

parallel between those and the present case is irrelevant in both instances. In the Northern

Cameroonscase, the Court rejectedtwo of the United Kingdom'spreliminary objections,stating

clearly thatthere was indeeda legal dispute betweenthe parties. And, whileit isue that the Court

ultimately tookthe view that it could notrule on the merits,this is because it was faced with the

resolution of the United Nations General Assembly (Resolution 1608 of 21 April 1961) which terminated the trusteeship agreement andwas moreover not disputedby the Applicant. There is

nothingcomparableinthe casenowbeingarguedhere.

The NucZearTests case represents an even clearer argument against Belgium's position.

For, while this Courtdecidedhenthat no decisionwas necessaryinthat case,that was becausethe

aimsof the applicantStates- to put an endto nucleartests- had beenachieved. Here, at the point

in time when the Court has to decide the dispute, the aim of the applicant State- to have the

disputed arrest warrant cancelled and to obtainredress for itmains unachieved. This is what

4)3 7 leaves room for thejudgment of the Court. Thus we are not in a situation wherethere is a simple

differenceof opinionwhich wouldbe a matterfor academic discussion,and which it wouldbe an

abuse of process to bring before the Court; theong done to the Republic of the Congo in the

personof the individualwho wasthen its Ministerfor Foreign Affairsin officecontinues.

The argument used by Belgium in the proceedings on provisional measures, namely that

negotiationswere proceedingatthe highestlevelregardingthe arrest warrant, has fadedaway with

time. Belgium, pleading at that time the terms of its declaration, contendedthat "thelsoIy

jurisdiction of the Court was excluded in the event of the parties resorting to another method of

peaceable settlement".But nearly a year later it appears that this other method has failed. By

maintaining the arrest warrant, Belgium has maintained the dispute and preserved its

subject-matter. Has there, nonetheless, been that substantial amendment of the terms of the

Congolese Application stressed in Belgium's Counter-Memorial? Tomorrow,to conclude this

initial presentation,the Democratic Republicofthe Congowillestateits requeststo the Court. As

you will see, Mr. President,Membersof the Court,the Democratic Republic of the Congo hasdone

nothing through the various stagesin the proceedingsbut condense and refine its claims,as most

States that appear beforethe Court are wont to do. We are not in a situation comparableto the

case conceming CertainPhosphateLandsinNauruin 1992. Herethere is no newclaim, whether

of substance or of form, that would have alteredthe subject-matterof the dispute. Use is simply

being made of the option given tothe Parties to amend their submissionsuntil the end of the oral

proceedings, a usage already recognised by the Permanent Court of International Justiceand

confirmed by yourCourt. The truth isthat the Congo's claim, by being defined more precisely,

identifies as the central issue in this dispute the immunitiesfrom suit to which Ministers for Foreign Affairs in office may be entitled. This is the pointthat will now be argued before you by

Mr. Pierred'Argent. 1thank the Court.

Le VICE-PRESIDENT, faisant fonction de Président: Merci beaucoup,

MadameChemillier-Gendreau. Je donne maintenantlaparole àM. Pierre d'Argent.

Mr. D'ARGENT: Thankyou Mr. President.Mr. President,Membersof the Court. Let me
038

Sayfirstof al1how honoured1amto takethefloor forthefirsttime beforethe Court.

As Professor Chemillier-Gendreauhas just informed you, it falls to me to present the

position of the Democratic Republic of the Congo with regard to the violation of the immunity

from suitof its Minister for Foreign Affairs,arising fromthe issueand internationalcirculationof

the disputedarrestwarrant.

This matter is at the heart of the dispute before theCourt, and even amounts to its raison

d'être.

Mystatementwillbe dividedintofourparts:

First, 1 will give a brief, very brief restatement of the facts in relation to this issue of

immuniv from suit.

Secondly, 1will set outthe pointsofagreementbetweenthe Parties,to showmoreclearlythe

pointsof difference- on which,in our view,the Courtshouldrule.

Thirdly,1 will set out the legalpositionof the Democratic Republicof the Congo regarding

the issueof principle of whichyour Courtis seised. As Professorgauxhas already emphasized,

this issue of principle is by no means an abstract point, as Belgium erroneously claims in its

Counter-Memorial.

Fourthly,and before briefly summing up,1will refute the argumentspresented by Belgium

in its Counter-Memorialregarding this issueof immunity. Astime isettingon, 1proposeto deal

with thisfourthparttomorrowmorning.

1.THE FACTS

Let us retum briefly to the facts that form the basis of this dispute. These facts are well

known to you and havealready been set forth. Nevertheles1,ventureto refer in particular to the few factors that are essentialto Ourdiscussiononthe immunityof a Minister forForeignAffairs in

office.

039 It is important to refer back to the wording used by the "international arrest warrant by

default" of 11April2000 concerning identification of the accused. Itis written in terms which
a
identify the accused "Mr. AbdulayeYerodia Ndombasi,born 5 January 1933, former director of

President Kabila's Cabinet and currentlyMinister for ForeignAffairs of the DemocraticRepublic

of the Congo, havingas hisprofessionalresidencethe Ministry of Foreign Affairs in Kinshasa."

(Counter-Memorial,Ann. 3 .)

This identificationgivesriseto fourcomments:

First, it is neither disputed nor disputable that, at the time when the warrant was issued,

Mr. Yerodia was indeed the Minister for Foreign Affairs of the DRC and that he was actually

performing his duties.

Secondly,Judge Vandermeerschwas perfectly well aware of the fact that his arrest warrant

was directed againstthe Minister forForeignAffairsin officeof a sovereignState. In other words,

the issue ofthis arrestwarrant is a deliberateact.

Thirdly, the complaints that form the basis of the criminal action were filed with the

investigating judge, as you have already been told, in the month of November 1998

(Counter-Memorial,p. 10). At that time Mr.Yerodia was still the director of PresidentKabila's

Cabinet. He became Minister for Foreign Affairs on 15March 1999 and the arrest warrant was

issued on 11April2000. Almost a year and a half elapsed betweenthe complaints and the arrest

warrant. Doubtless this should be seen as evidence of a "detailed examination"(as stated by

Belgium in its Counter-Memorial). However, it should be noted that the arrest warrant relies

mainly on sourcesprior to MinisterYerodiataking office, so thatthis delay of a year and a half is

difficultto explain. In chronologicalorder,the followingarelisted inthe arrestwarrant:

- an excerptfiom the newspaperLeMondedated26 August 1998;

- a news bulletin from the Belgian French-language Broadcasting Service (RTBF) dated ,

28 August 1998andanotherbulletin broadcasttwo dayslaterthrough the samemedium;

- a report byAmnestyInternationaldated23 November 1998;

- a reportbythe UnitedNations Commissionfor HumanRightsdated 8 Febmary 1999; - a February 1999reportby HumanRights Watch.

040 Al1these documentspredateMinisterYerodia's assumption of office. It will alsobe noted

thatthese sources,whichare general, andpurely documentaryin nature, were neverthelessdeemed

sufficientto give credenceto the unsubstantiatedallegationsmadeagainstthe Minister.

Fourthly,it is clearthathese facts,whichformthe basis of this dispute,raise a very specific

point of law: as has already been stated,whether the incumbentMinister for Foreign Affairsof a

sovereign Statecan, whilehe is inoffice,be the subjectof criminalproceedings. Can a Ministerin

office be brought before a foreign criminal court, even when he is accused of crimes under

internationallaw?

In other words, the disputed arrest warrant itself sets the legal parameters of the issue of

which the Courtis seised. This issue is that of thetent of immunityfrom suit of a Minister for

Foreign Affairsin officeof a sovereignStatebefore thecriminalcourts of a foreign State. Thusthe

issue does not concem the possible continuation ofsuch immunityafter those duties have ceased.

Neither does it concem the relevance of anyexceptionsto immunitythat might be relied on before

internationalcriminal courts. No: here the issue of immunity fromsuit arises before a domestic

court; and it arises at the time when the accused is performingthe duties of Ministerfor Foreign

Affairsof another State.

Preciselydefinedinthis way,the conflictofprinciplebetweenthe Parties is clearlyapparent:

whereas the Congo maintains that the issue of an arrest warrant violates the immunity of its

Minister for Foreign Affairs, Belgiumclaims that there has been no such violation because, in its

view, there can be no criminal immunity once the individual accused- even a Minister for

Foreign Affairs in office- is charged with having committed crimes under international law.

Belgium thus claims that there is an exception to the rule of immunity fromsuit and the Congo

maintainsthatinthis casethere cannot besuchan exception.

041 II. THEPOINTSOFCONVERGENCEBETWEENTHE PARTIES

Before dealing with this central issue, which, 1shave said, is the crux of this dispute, 1

think it helpful, Mr. President and Members of the Court, to bring out the few points of lawonwhich the Congo and Belgium are not in disagreement. These points of convergence are as

follows:

First, it is not disputed by Belgium that Ministers for Foreign Affairsin office in principle

enjoy,by virtue of international custom,immunityfrom criminalprosecution before foreigncourts.
1
Belgiumalso agreesthattheir personsare inprinciple inviolable. Thus, on page 118of the Belgian

Counter-Memorial we read: "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] areinviolable". To be sure,this statement is qualified, in that it is

immediatelyaccompaniedby analleged exception, which is saidto existwhen accusationsdirected

against Ministers in office relate to crimes under international law. 1 will certainly return to this

point later. For the present, however, itis importantto establishthat Belgiumdoes not dispute the

existence of a customary rule of immunity fromsuit on the part of Ministers for Foreign Affairs.

Once more it is only the precise scope of this rule - its absolute or integral nature- that

constitutesa point ofdifferencebetweenthe Parties.

2. Belgium no longer seemsto disputethe fact that, during their penod of office, Ministers

for ForeignAffairs enjoythe sameimmunityfrom suit in foreigncourts as heads of State in office.

This principle ofassimilationofthe status of Ministers for ForeignAffairsto that of headsof State

in matters of immunity from suitwas asserted by the Democratic Republicof the Congo in its

Memorial on pages 29 to 31. And it is in no waydisputed by Belgium in its Counter-Mernorial,

save, ofcourse, in regardto its extent,as 1havejust pointedout.

3. The third point of convergencebetween the Democratic Republic of the Congo and

Belgium relates to the issue of personal criminal responsibility in respect of criminal acts, and

particularlycrimes under international law. Theapplicant Stateconsiders it importantto showthe

Courtthat in reality, and contraryto what Belgium seeks to imply,there is no difference ofviews

between the Parties in this respect, in so far as it is fully understood whatis meant by personal

criminal responsibility on the one hand and immunity from suit on the other. In its Y

Counter-Memorial Belgiumattemptsto discreditthe legal position of the DemocraticRepublicof

the Congo, implying that to assert the rule of immunity from suit amounts to a denial of the

well-established principle ofpersona1 criminal responsibility. This is an absurd simplificationofthe DemocraticRepublicof the Congo'sposition. It is howeverclearthat the DemocraticRepublic

of the Congo has never maintainedthat immunityfrom suitwould constitute a substantivedefence

to acriminalcharge,northat personsenjoyingimmunityarenot criminallyliable. Onthe contrary:

the DemocraticRepublicof the Congomaintains,likeBelgium,that there can be no questionas to

the existence in internationaliminal law ofa principle of persona1criminalresponsibilityin the

case of crimes under international law,just as there can be no doubt as to its existence in the

general criminal law in relationto any kindof offence. Onthe other hand the applicant Statedoes

maintain, unlike Belgium, that this principle of responsibility is without prejudiceto the issue of

immunity fromsuit, that is toSay,of the questionof the forum in which, and the timewhen, such

persona1criminalresponsibilitymaybe established.

It is important that thereshouldbe no ambiguityin this respect. The differencebetweenthe

Partiesdoesnot relateto the existenceor absenceof a principleof persona1criminalresponsibility.

It relates solelyto the question whether amesticforum may seise itself of this issue ofpersona1

criminal responsibility when it is raised, while the individual is in office, against a member of a

foreign governmententitledinprincipleto immunity from criminalprocess.

m. THE LAW ONIMMUNITIES

Mr. President, Members of the Court, 1come now to the legal positionof the Democratic

Republic of the Congo on the question of the immunity of the Minister for Foreign Affairsin

office. Afier affirming the principleof immunityfromjurisdiction,1shall review the basis of the

principle and shall outlineits scope.

The position ofthe applicantStateis quitesimple: throughouthisterm of office,no criminal

prosecution may be brought against the Minister for Foreign Affairs of a sovereign Statein a

foreign court. In other words, before foreigncourts he is entitledto inviolabilityand to absolute,

full immunityfrom criminal prosecution, as regards bothjurisdiction and execution, that is to Say

immunitywithout exception. Even were he to be suspectedof having committedoffences against

international law, a domestic court in a foreign country cannot make a finding of criminal

responsibility and any investigation or enquiry undertakenwith the intention of bringing him to

court wouldcontravenethe principleofimmunityfromjurisdiction, aslong as he remains in office. It is quite obvious that there is no violation of immunity from suit when the State represented

agrees to waive immunity. Immunity may be waived on the occasion of a specific criminal

prosecution. Itmay also be excludedin advance,undertheexpresstems of a treaty.

The basis of immunity from criminal prosecution is purely functional, that is to Saythat
i
immunityis accorded under customary internationallaw in order to allow the representativeof a

foreign State to perform his functions, fieely and without let or hindrance. In protecting the

representativeof a sovereign Statefrom prosecution, immunityin fact protectsthe State, sinceit is

designed to ensure that the representative freely chosen by that State is able to cany out his

distinguished duties effectively. It is quite obvious that the untrammelled performance of such

functionsis in the elementaryinterest of the Staterepresented. However,let us make no mistake:

the untrammelled performanceof such representativefunctions is also, and perhapschiefly,in the

interestof the internationalcommunityas a whole. Legaltransactions between Stateswouldvery

soongrind to a halt werethose responsible forsuch transactionsto be exposedto the possibilityof

criminal prosecution before various national courts. Immunity from suit may thus be seen as a

necessity for the international community as a whole, not only for each State within that

community. If there were no immunity, the representative of the State would have to defend
,

himself before foreign criminal courts and would be unable also to represent his State fully and

effectively,which wouldbe an embarrassmentnot only to his ownStatebut also to al1others. It is

therefore the office, the dutiesto be performed, whichsubstantiates and founds the principle of

0 4 4 immunity fromcriminalprosecutionforministersof foreigngovemmentsin office.

Pray allow me a brief digression in this expositionof legal theory. It is not inopportuneto

recall that, in the course of the oral arguments on the request for the indication of provisional

measures,ProfessorDavidsaidthat the disputedarrestwarrant in no wayinfringedthe rightsofthe

Democratic Republic ofthe Congo since, and 1quote, "there is nothingto preventthe Congofrom

continuing its foreign policy with an other representativeof its choice" (Verbatim Record of the

hearing of 21 November 2000,p. 27, para. 30, Professor David)! It seems to me that this view is

indicativeof the spirit in which Belgiumapproachesthis matter. It is,however,clear that it is not

for the respondent State, nor for any other State, to criticize the Congo's choiceof Government

ministers. Whena representativeis in office, hisimmunityfromjurisdiction isthereforefunctional,as 1

have just explained. The "functionality" of the immunity of a representative in office does not

depend on any distinction between official acts and acts which are not part of his functions. In

reality, if a representative ofthe State in office cannot be prosecuted for a past act, this is not

becauseitwas effectively an act performedinthe courseof his functionsbut becausethe complaint

is madeduringhis periodof office, somethingwhichimmunitycannottolerate. In other words,the

Congo maintains thatuch immunityfromcriminaljurisdiction whenin officecoversal1theactsof

a foreign representative. It is irrelevant whether such acts were done before he took office, or

aftenvards. It is irrelevantwhetheror nottheacts donewhilstin officewereofficialacts.

In itsounter-Memorial( 3.119 )B,elgium,on the other hand, considersthat thereare

two exceptions to the immunity from jurisdiction enjoyedby a Minister for Foreign Affairsin

office: one relates toiminal responsibilityin the case of offences against internationallaw; the

otherto actsone ina privatecapacityor othenvisethan inthe performance ofofficialfunctions. 1

shall come back to Belgium's first so-called exception tothe principle of immunity, andto the

0 4 5 conceptual confusion it conceals. Today 1 propose succinctly to review the second so-called

exception,even thoughit isnot directlyrelevantto the case.

The second exceptionis undoubtedly presentedin terms which are far too sweeping and

cannot applyto acts, albeit acts in a privatecapacity,which normallyfall withinthejurisdiction of

the criminal courts. In office there is immunityfrom criminal prosecution, even if the offence is

committedin a privatecapacity or was committed beforethe person concernedtook office, for the

reasons1 have just set forth. This is moreover confirmed by the principle that, afrer office,

immunity fromjurisdiction remainsonlyin respectofofficialacts performed inthe exercise ofthe

representative's functions. Thatule has not been challenged by Belgium (Counter-Memorial,

p. 120). It wasinter alia recalled in Article 13,aph2 of the resolution adoptedthis summer

by the Institutde DroitInternational, at its Vancouver session. If the Courtwill indulgeme, 1shall

read thisarticleout:

"Article 13

1.A headof Statewho is nolongerin officeis no longerentitledto inviolability
inthe territoryof a foreign State; 2. He [a head of State no in longer in office] enjoys no immunity from
jurisdiction, whether criminal,civil or administrative,unless he is sued or prosecuted
for acts performed whilst in office and performed in the exercise of his functions."
[Translationby theRegistry]

It is howeversurprisingthat Belgiumhas not realisedthe contradictionbetween this principle, the

correct one, and the incorrect one which has been put forward as the second exception to the

immunity ofministers of foreign governmentsin office. Thus, if afier office immunityfiom suit

remainsonlyin respect ofofficialactsperformedwhilst in office,this is necessarilybecauseduring

office, it wasbroader in scope and also coveredacts performed beforetaking office,acts donein a

private capacity and any other acts which could notbe describedas officia1acts. This is also the

reasoningfollowedby Sir ArthurWatts,who is nevertheless quotedby Belgium on page 119of its

Counter-Memorial.

The exampleof "Christmas shoppinginBrussels" putforwardby Belgium inthe provisional

measures phase and echoed in its Counter-Memorialis therefore not sound, at least as far as

immuniq from criminalprosecutionis concerned. Eveninthe course of a private visit, a Minister
O 4 6

for Foreign Affairs does not stop doing his daily job and it is certain that modem means of

communication, particularlymobiletelephones, placehim ina positionwhere he is availableto his

State atal1times and in al1places- which is why there must be no obstacles to the functions he

performsorwill be calleduponto perform.

Thus it is only once a representativeof the State has lost office that the characterizationof

the actcomes into play. That is the appropriatetime to raisethe issue. However,it must be noted

that at that particular momentthe question of immunity from jurisdiction takes on a different

aspect. Duringoffice, immunityhad a prospectivefunction: to allow fünctionswhich hadstilZto

be performedto be performed freely. On lossof office, immuniq becomes retrospective, applying

to an act whichhas been done. In this respect,the true lessonof the Pinochet ruling in the House

of Lords, as ProfessorRigaux has said, is to have affirmed that crimes against internationallaw

may not be considered official acts, and that consequentlya foreign dignitary who is no longerin

F
office is not entitledto immunityfromjurisdiction in respectof past acts. This is also what isd

in paragraph2 of Article 13of the Institute'sVancouver resolution,the last passage ofwhich 1did

not read to you.1 shallcome backtothe Houseof Lords ruling. For now, it is enoughto recall that

the disputebeforethe Court doesnotconcemthe immunityfromjurisdiction of the formerminister of a foreign govemment,but in factthe immunity fromjurisdiction which protectedhim in office.

As 1said, the disputed arrest warrantwas actuallyissued at a time when the accused was Minister

for ForeignAffairs of the DemocraticRepublicofthe Congo. It is therefore pointlessto speculate

on the private or public nature of the words complained of, or to establish whether or not they

constitutedan official act as a minister, something whichwould be absurd since the words were

spoken beforehe took officeas minister.

Mr. President,Members of the Court,the positionof the DemocraticRepublicof the Congo

in this case conformsfblly to practice,to precedent andto the most authoritative legal opinion.

There is no international practice to contradict the assertion thatthe Ministerfor Foreign Affairsof
O4 7
a sovereign State, or any other distinguished representativeon a similar footing, is entitled to

absolute or total immunity from criminal prosecution beforethe domestic courts of foreign

countries whilst in office. Any search for a true precedent for the Belgian practice would be

fruitless, since to date States have always naturally respected the immunity fromjurisdiction

enjoyed by foreign dignitariesinficeand havenot arraigned them beforetheir courtswhilstthey

were in office, even whenthere was a serious suspicionthat they had committedoffences against

international law.

When it comes tojurisprudence,as ProfessorRigaux hasalready said, al1the casesto which

Belgium refers in its Counter-Mernorialconcern either cases before internationalcourts or cases

before nationalcourts, andin both instancestheyconcemforeigndignitarieswho wereno longerin

office. Therefore they bear no relation to the facts underlyingthis dispute. The only case which

comes closeto the legalposition adoptedby Belgiumis one before a Belgrade courtas a result of

the conflictinKosovo,one in whichthe presidents, prime ministers,reignministersand chiefsof

staff of the member countries ofNATO,togetherwith the Secretary General ofthe Organization,

were sentenced in their absence for the crimeof aggressionand war crimes. It is understandable

that Belgiumwas at painsnot to mentionthis precedent,a surprisingone toSaythe least! On the

contrary, the most recentand most authoritativejurisprudenceconfirms the principle of immunity

from criminaljurisdiction of senior representativesof foreign countries in office. Such immunity

exists even when the charge relatesto crimes against internationallaw. The House of Lords

followedthis reasoninginthe Pinochet case; theCourtof Cassationin Francealsotookthis stance intheKhadaJicase. Both casesarecitedandanalysedinthe Memorialof the Democratic Republic

of the Congo and it would not be appropriateto dwell on themat length. Allow me, however,to

recallthe pithy words of LordNicholls inthe Pinochetcase: "1have no doubtthat a currentHead

of Stateis immunefrom criminal process under customary internationallaw". None of his peers
1
contradictedthe Lord Justice. On the contrary, LordBrowneWilkinson restatedthe samerule in a

paragraphcited on pages 40 and 41 of the Memorialof the Democratic Republicof the Congo. In
O4 8
itsCounter-Memorial,Belgium barely touchedon thesedecisive pertinent passages of thePinochet

judgment. And its interpretationof them is debatable,as1 shall showtomorrow.

1 would furthemore recall that the French Court of Cassation solemnly affirmed in its

Judgment of 13March of this year that: "unless otherwise providedby international provisions

binding on the parties concerned, international custom barsthe prosecution ofa Head of State in

power before a foreign State's criminal courts". The Court of Cassation also emphatically

dismissed the argument that the serious nature of the crime and the fact that it was a breach of

internationallawwould be sufficientgroundsin themselvesto set aside the principle of immunity

fromjurisdiction- an argument steadfastly put forwardby Belgium in its Counter-Memorial. 1

shall come back to Belgium's interpretationof this finding,a finding which is nonetheless crystal

clear. It is therefore evident that there can in principle be no exception to the immunity from

jurisdiction beforedomestic criminal courts of foreign Heads of Statein officeand of personsof a

similarstanding. Nonetheless,this rule doesnot prejudicethe factthat there is no immunitywhen

the State that is represented agrees to waive it, either in apecific criminal prosecution or in

advanceby meansof a treaty. Immunity alsoceasesto exist whenwaived as a result of a decision

of a SecurityCouncil,since the Parties tothe Charterhave agreed in advanceto obey its decisions

and are obliged to collaborate with the international criminal tribunals set up by the Security

Council. Sincenone of these three situationsobtains in this case, Belgiummust be foundto have

violatedthe principleof immunity fromsuit.

Finally, the leading doctrinal authoritiesprovide us1 believe, with confirmation that the

position maintained by the Democratic Republic ofthe Congo accords with general international

law. It will doubtless suffice in this respect to point to Article2 of the resolution adopted this

summer by the Institute of International Law, to which 1 have already referred: ''Incriminal matters, aHead of State enjoysimmunity fromsuit beforethe courts of a foreignState in regardto

any offence,howeverserious,that he is allegedto have committed." [TranslationbytheRegistry]

049 It seems unnecessaryto refer hereto Professor Verhoeven'sreportjustiSing this rule, or to

the remarkable mental acrobatics indulged in by Belgium in its Counter-Memorialin order to

demonstratethe alleged compatibilityof the resolution withits own position andat the sametime

mainly to establish its irrelevance to the present proceedings (pp.170-171, paras.3.5.116 and

3.5.117). It is equally unnecessary to dwell further on the literature cited so extensively by

Belgiumin its Counter-Memorialin supportof itsposition. It would weary the Court, 1believe,to

re-examineeach writer, whose thinking is often more complex and more subtlethan - and even

different from- what the brief extracts quoted by Belgium suggest. One might also cite a large

numberof authors whose viewscontradict Belgium's arguments.To takejust one exarnple,and a

recent one - since Belgium somewhatvainly reproachesthe Congofor relying on literature which

antedatesthe Pinochetand KhadaJijurisprudence - 1shall quote Professor MichelCosnard,who

writes in his introductory report onthe symposium of the Sociétéfiançaise pour le droit

internationalheld inJune this year:

"if there is one principle whichis proclaimed unanimously,it is that of the absolute
immunity fromcriminalprocessof incumbentHeads of State,regardlessof the dateof
the criminal acts alleged against them, evenwhere these are prior to their taking
office" (M. Cosnard, 'Les immunitésdu chef d'État', Introductory Report, SFDI,

Clermont Symposium (June2001), Le chef d'État et le droit international,p. 24).
[TranslationbytheRegistry]

Michel Cosnard also points outthat the onlydecisionconflictingwith this undisputedrule is

the decision handed down by a Serbian court on21 September 2000, which1 have already

mentioned.

At al1events, Mr. President, the DemocraticRepublic of the Congo does not seekto deny

thatthere arewriters, authoritativewriters,who believethat membersof foreign governments, even

incumbents,should not enjoy immunity from criminal process in domestic courts where they are

accused of an international crime. It is neverthelessclear, al1things considered,that the stateof

positive lawas1havejust described it isjudicious and perfectly consistent.

Mr. President, Members of the Court, 1would suggest that 1 end my statement for this

morningat this point and, with your permission, begingaintomorrow morning. 1shall then deal more specificallywith the various arguments expoundedby Belgium in its Counter-Memorialon

this issueof immunity fromjurisdiction.hankthe Court forits attention.

850 Le VICE-PRESIDENT, faisant fonction de président: Je vous remercie,

Monsieur Pierred'Argent. La séancede ce matin parvientainsià son terme. L'audience de la *+

Courreprendra demain matinà 10heures.

L'audience esltevéà 12h 45. Non-Corrigé
Uncorrected

Courinternationale InternationalCourt
deJustice of Justice

LA HAYE THEHAGUE

Audiencepublique

tenue le lundi 15octobre20à10heures,auPalais delaPaix,

sous laprésidencedeM. Guillaume,président,puisdeM. Shi, vice-président,

en l'affairerelativeauMandatd'arrêdtu Il avril 2000

(Républiquedémocratiqueu Congoc.Belgique)

COMPTE RENDU

YEAR2001

Publicsitting

held on Monday15October2001,at 10a.m, utthePeace Palace,

PresidentGuillaumeand Vice-PresidentShipresiding,successively,

in the caseconcerningtheArrest Warrantof 11April2000
(DemocraticRepublicof the Congov. Belgium)

VERBATIMRECORD [Pourdes raisons techniques, les pages2 et 3 du présent corrigendumremplacent les pages

correspondantesduCR 200115distribuéultérieurement.]

[For technical reasons, thishe following page replace pages2 and 3 of CR200015as

previously distributed.]

Présents: M. Guillaume,président
M. Shi,vice-président

MM. Oda
Ranjeva
Herczegh
Fleischhauer
Koroma
Vereshchetin
Mme Higgins

MM. Parra-Aranguren
Kooijmans
Rezek
Al-Khasawneh
Buergenthal,juges
M. Bula-Bula
Mme Van denWyngaert,juges ad hoc

Arnaldez,greffier-adjointPresent: President Guillaume
Vice-President Shi
Judges Oda
Ranjeva
Herczegh
Fleischhauer

Koroma
Vereshchetin
Higgins
Parra-Aranguren
Kooijmans
Rezek
Al-Khasawneh

Buergenthal
Judgesad hoc Bula-Bula
Vanden Wyngaert

Deputy-Registrar Amaldez