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NOR-corrigé 1Traductio1
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CR2001/10(translation)

CR 2001/10(traduction)

Friday 19October2001

Vendredi 19octobre 2001 The PRESIDENT: Pleasebe seated. The sittingis open. We meet this moming to hear the
006

secondround of oral argumentin the case betweenthe DemocraticRepublic of the Congoand the

Kingdom of Belgium, and this moming we shall hear the representatives of the Democratic

Republic of the Congo, to whom 1 shall give the floor without further ado. 1 believe that

ProfessorRigauxwill open the arguments. Professor,you have thefloor.

Mr. RIGAUX: Mr. President, Members of the Court, after the two half-days of oral

argument on behalf of Belgium, counsel for the Democratic Republic of the Congo are both

reassured and disappointed. Reassured, because it would seem that what we have heard was

nothing more than a paraphrase of the Counter-Mernorial and thatthe arguments expoundedby

counsel for the DemocraticRepublic of the Congo, highly pertinentarguments as 1believe, were

not really addressed. Yet disappointed,at an intellectual level ofse, since ultimately nothing

verysignificanthasemergedfiom these twohalf-days.

1would submitthe following sevenpoints tothe Court:

1.One matterwas highlightedin the oral arguments, indeedin the opening statementby the

Agent of the Belgian Government, a matter which was somewhat less in evidence in the

Counter-Memorial,more particularly in paragraph 1.7. The Belgian Govemment is said to have

invitedthe CongoleseGovemment,on severaloccasions, to takeover the prosecution,and,had the

Govemment accepted, it is said that the case file would have beentransmitted to the Congolese

Govemment. We have scant information concerningthe form of the proposal, and the exacttime

whenit was made and, as 1saidin the firstround, the Govemmentof Belgium and its counsel have

a somewhat confusednotion of time. It is plainly essentialtoow when this proposa1wasmade.

And it might be imagined that a cautious investigatingjudge, having before him a complaint

against an incumbentMinister for Foreign Affairs of aiiendly country, would pause for thought.

And were he to have the idea of transmiîtingthe case file to the Congolesejudicial authorities, he

would have done so through hierarchical channels: the Prosecutor-General, the Minister for

Justice, the Minister for Foreign Affairs. However, tme to his maverick reputation, the

investigatingjudge, Mr. Vandermeersch, certainlydidnot do this. Andthese proposalsthusappear

to have been made very belatedly, namely after an arrest warrant against Mr.Yerodia had beenO issued. Are we to assume that the Application of the Democratic Republic of the Congo was

already beforethe Court? If so, 1findthat the Belgianproposa1aggravates Belgiurn'scase, for it

would appearthat some sort of pressure was exercisedon the Congolese authorities through the

issue of an arrest warrant. Andhad the Congolese Govemmentacceptedthe offer, would this not

in asensehave endorsedandlegitimizedthe wrongcomrnittedwhenthe arrestwarrant was issued?

II. Second observation. Mr.President, Membersof the Court, the Court has been invitedto

make a distinctionbetweenthe exercise ofjurisdictionand of a power ofenforcement. And what

appears to be said is that, in any event, only enforcement is covered by immunity fi-omsuit. 1

would simplylike to re-readthe operativepartof the arrest warrant. 1shallnot invite Membersof

the Court torummage in their papers for this item of evidence,1shall read it out, and you will be

ableto Saywhetherornot it is a measureof enforcement:

"We issue awarrant for thearrestofthe accused.

We instruct and order al1bailiffs and agents of publicauthority who may be so
required to execute this arrest warrant and to copduct the accused to the detention
centrein Forest;

, We require the govemor of the prison to receive the accused and keep him in
the detention centrepursuantto thisarrestwarrant;

We require al1those in whompublic authority has been investedand to whom
this arrestwarrantshallbe shownto lend al1assistance to itsexecution.

Sopronouncedand our sealadhibitedin Brussels on 11April2OOO."

Followedby the signatureandthe seal.

If 1have understoodthe position of counsel for Belgium,enforcementcould only have been

said to occur if the individual concemedhad actually been imprisonedin the detention centre at

Forest. Yet the same arrestwarrant declaressuch a scenarioto be impossiblewere the Minister to

be present in Belgium on an officia1visit. 1 believe that an arrest warrant is a measure of

enforcement by its very nature and that consequentlythe distinction which counsel for Belgium

endeavour to introduce simply shows that they are somewhatunsure of their position of principle

on the absenceof immunity.

III. Third element. In developingthis line of reasoning, counsel for Belgium have adopted

an oddly contradictory stance: either the immunity of members of a foreign government is restxictedto measures of enforcement alone,or else it applies also to earlier acts of jurisdiction.

The Court is awarethat the second interpretationis that cornmonlyadopted by a unanimous body
008

of scholarly opinion and that the French Court of Cassation upheld this interpretation in the

Qaddafi case. If counsel for Belgiumare fallingback to the positionthat measuresof enforcement

aloneareprohibited,it is alsobecausethey areaware of the weaknessoftheir stance.

IV. Fourth point. Mention was made yesterday, on several occasions, of the proceedings

broughtby the Prosecutor-Generalbefore the Indictments Chamberof the Brussels Appeal Court.

Forthe benefit ofMembersof the Courtwho arenot Belgian,1wouldexplainthatunder Belgium's

Code of Criminal Investigation it is the Prosecutor-General (procureur général)within the

jurisdiction of the Appeal Court in question who has overall responsibility for prosecutions, the

Crown Prosecutors (procureurs du roi) being, as it were, no more than deputies to the

Prosecutor-Generalwho conduct criminal prosecutions by delegation. Two points may be made

whichindicatethattheProsecutor-General'sinitiativewasbelated and selective.

It is significantthat the four cases which are currently before the Indictments Chamberal1

concern foreign dignitaries, heads of State, heads of governmentor ministers for foreign affairs,

who are entitledto claimtotal imrnunityfromsuit. It is howeversignificant,andmerits reiteration,

thatthe Prosecutor-Generalonlybegan to concernhimselfwith the lawfulnessof the arrestor other

warrants issued when the Head of Governmentof the State of Israelalso became the subjectof a

complaint, an affairwhich aroused massive mediainterestin Belgium. It was in this case that the

Prosecutor-General first took thernatterto the IndictmentsChamber. Subsequently,it was realized

that theAftican dignitariesin the same situationcouldnot simplybe forgottenabout, andthe cases

were thereforejoined. The Court will accordinglynote that the principle of the sovereign equality

of Stateswas not particularlyrespected here. In one caseit was deemedworthwhileto examinethe

lawfulness of the prosecution, and the other cases were only joined incidentally. This is a first

indicationof selectivity.

The other element of selectivity lies in the questions of law submitted to the Indictments

Chamber by the Prosecutor-General. Whatis at issue, according to the information available to

counselfor the Democratic Republicof the Congo? The Chamberis simply being asked tosettlea

point of interpretationof the BelgianStatute, a point conceming universaljurisdiction- namely must the accused be present in Belgian territory for prosecution to take place. In the travaux
OO

préparatoiresof the 1993Law - thematterdidnot comeup again in 1999 - we findit statedthat

a prosecutionmight be instituted in the case of crimesnder international law,even if the suspect

could not be found in Belgium, thoughit was later saidthat it was not deemed necessary to spell

out this pointin the actualtext of the Law. It iss inrelationto thisinterpretationof the La-

apparently now a controversial one- that the matter has been placed before the Indictments

Chamber.

The Courtwill note that- thoughthe coincidenceis a surprisingone - onlycasesin which

immunityis also an issue have been referredto the Chamber. The issueof imrnunitiesas suchhas

not been raised. However, as 1said in the first round, in accordancewith a long lineof decisions

by the Courtof Cassation,the Belgian courtsare obligedto apply the directly applicableprinciples

of internationallaw and of internationalcustom. Thus it is an issue wbh should have beenraised

automatically.

Be thatasit rnay,Membersof theCourt,you willobservethat itwas somewhatirresponsible

on the part of the investigatingjudges to have brought prosecutions,and even to have issuedan

arrest warrant,pursuant to a Law whose interpretationis now foundto be open to doubt, this being

the point subrnittedto the IndictrnentsChamber. You will see, moreover,that there is a degreeof

contradictionin the Counter-Mernorial. 1invite the Court to compareparagraphs2.67 and3.2.35,

which contain two somewhat differingviews as to the meaning of the famous Article 12 of the

Law of 1878.

V. What is the significanceof the informationthus given to the Court? It would clearlybe

presumptuous of the Belgian Govemment to expect the Court to stay pronouncement of its

judgrnent until the IndictrnentsChamber decideswhetherto annul the anest warrant. It wouldbe

annulled through the operation of Belgian domestic law, which would not at al1 satise the

DemocraticRepublic of the Congo. Whatis important to the DemocraticRepublicof the Congois

that the irnmunity of its Minister for Foreign Affairs should have been respected and that the

violation of that obligation must be made goodby the recognition of the internationallyongful

character of the warrant, and it is surely somewhat insulting- 1 have to Say it- that the Prosecutor-Generalhopesperhaps to secure the annulment of thearrest warrant solelyon the basis
010

of areinterpretationof theBelgian Statute.

Here again we findthat Belgiumhas got itselfconfusedabouttime. At what momentin time

should the validity of an act be judged? At the time the document is issued, noer that the

individual concemed subsequently losthis status as Minister for Foreign Affairs; andit is also as

of thetimewhenproceedingswere institutedthatthe Court'sjurisdiction mustbe deterrnined.

VI. Counsel for Belgium persevere with their endeavours, already apparent in the

Counter-Memorial, to mischaracterize the international legal proceedings brought by the

Democratic Republic of the Congoas proceedingsby way of diplomatic protection. Their aim in

sodoing, of course, is to be able torely on the defenceof failureto exhaustdomesticremedies.

The answerto this argumentis threefold:

(a) The DemocraticRepublic ofthe Congobringsthe proceedingsin its ownright. It is therights

of the Congo which havebeen violated by the violation of theunityof its diplomat; this

is not an action onbehalfof an individualnational.

(b) We are told that the accused- and we are obligedto cal1himthis in accordancewith Belgian

law- could have appealed. What appeal? No channel of appeal is available until the

investigating judge forwards the case file to the Crown Prosecutor. The latter makes

submissionsto the Chambre du conseiland at thattime, forthe first time,the accusedmayask

the Chambre du conseil to dismiss the charge. Let there be no mistake, the proceedings

broughtby the Prosecutor-Generalareproceedingswhich he alone is authorizedto bring. The

only course of actionopen to theaccused in criminalproceedingsagainsthim, 1reiterate,is to

defendhimselfbeforethe Chambre du conseil.

(c) Lastly, and this third consideration may be the most decisive one, what would rernain of

irnrnunity,Mr.President,Members of the Court,if the personentitled to such irnmunitywere

obliged to defend himself against acts contrary to international law carried out within the

intemal legal order of a State by addressing hirnself to the authorities of that State? It is a

vicious circle. What it would mean is that a person entitled to immunity would have to

address himself to authoritieswhich he is simultaneously clairning haveno jurisdiction in the
O 1 1
matter. That is thus a notion whichappearsto me to be totallyunacceptable. VII. One final observation, Mr.President, Members of the Court. Counsel for Belgium

suggested yesterday thatthe Court should use its powers with "judicial restraint". Inter alia

because the questionsof lawwhich mustbe consideredin this case arenot yet fully settled. It was

saidthat there has been a shift in opinion,chieflywithregard to the issue of universal jurisdiction.

Opinion,it was said, is movingtowardsbroadeningthejurisdiction of States,particularlyin respect

ofpersonsaccusedof having committedcrimesagainstinternationallaw.

Apparent surprise was expressed that the Democratic Republic of the Congo should be

withdrawingfiom the terrainof universaljurisdiction. Inrealily, that is an area ofno interestto us.

It was mentionedof coursein the initial Application,but what intereststhe DemocraticRepublic of

the Congo is a fmdingthat its Ministerfor Foreign Affairshas been the victim of an intemationally

wrongful act. Whether this occurred in the course of the exercise of an over-extensive universal

jurisdiction seemsto us to be an entirely secondaryconsideration. This is not Saythat the Court

shouldnot examinethe issuesof internationallawraisedby universaljurisdiction, but it willnot do

so at the request ofthe Applicant: it will, as it were, havethe issue forcedupon it as a result of the

defence strategy adoptedby the Respondent, sincetheRespondentappearsto contendnot only that

it is lawful to exercise suchjurisdiction butthat it is moreover obligatory to do so, and therefore

that the exercise of such jurisdiction can represent a valid countenveight to the observance of

immunities. 1accordingly believe that the Court will in any event be obliged to adjudicate on

certain aspects of universaljurisdiction, but1would stress that this is not at the request of the

Applicant, which is not directly interestedin the issue. What does interest us of course, as you

already know,and as youwill see shortlywhen theAgentof the Democratic Republic ofthe Congo

reads out our submissions, is that the Court should make a finding of the wrongfûlness under

intemational law of the issue of an arrest warrant againstthe Minister for Foreign Affairs of the

applicantState. Thankyou.

0112 The PRESTDENT: Thank you, Professor Rigaux. 1 shall now give the floor to Professor

Chemillier-Gendreau. Ms CHEMILLIER-GENDREAU:Mr. President,Membersof the Court.

The second rounds of oral argument so patiently listened to by the Court have no doubt

fiequently produced the impression that the Parties have been engaged in a dialogue of the deaf.

The representativesof the DemocraticRepublic of the Congohave a very keen sense afterhearing

Belgium's oral argumentthata deafear has beenturnedto a numberofpointswhichwe triedto get

across.

That is the case in respect of theo mattersabout which1shall be speakingthis moming:

the Kingdom of Belgium's desire to raise preliminary objectionsand the question of universal

jurisdiction, to which1shallbrieflyreturn.

1.Challengingthe Court's jurisdictionand the admissibilityof the Congo's claim,Belgium

sets out four arguments which are barely distinguishablefiom one another and are al1founded on

the changeinthe situation.

Underlyingthe dispute is Belgium's interpretationoftwofactualconsiderations: in its view,

the change in Mr.Yerodia's position undoes the violation of irnmunity, and the arrest warrant,

describedas being free ofal1dangerouseffects,causesno prejudiceto the Democratic Republic of

the Congo, which wrongly complains that its sovereigptyhas been violated. As the Democratic

Republic of the Congo considersthe interpretation advancedby Belgium to be mistaken,we must

return for a momentto these twoconsiderations.

A. In respect of Mr. Yerodia's career, Belgium's interpretation is founded on faulty

reasoning fiom the perspective of time. The arrest warrantis a legal instrument vitiated fromthe

outset by the violation inherent in it of an irnmunity which, for a sitting Minister for Foreign

Affairs, could not in the contextbe diminishedby any exception. This nullity ab initiisothe root

of the prejudice. The subsequent change in post of the individual concemed does not extinguish

the legal defect. The only way that can be achieved is by withdrawingthe instrument. It is the

warrant of 11April2000 which is at issue here, not another warrant issuedat another time. What
Q 13

may have become of Mr. Yerodia after that date has no bearingon the case beforethe Court. His

having ceased to hold any ministerial post is of no consequence, nor would be his leaving the temtory of the Congo,his residence in another country,a changeof nationality, or evenhis death.

The wrongtookplace, andhas not been redressed.

Belgium has ignored certain argumentsraised in our earlier oral statements. For example,

while the arrest warrant recognizesthat Mr. Yerodia'sarrest in Belgium would engage Belgium's

international responsibility, that statement is incomplete. The arrest would obviously engage

Belgium's internationalresponsibility,but first it is the instrumentleading to that arrest, i.e., the

arrest warrant, which engages its international responsibility. The Democratic Republic of the

Congo filed its Application in order to obtain a ruling by the Court that such international

responsibilityhas been incurred.

Belgiumalsorefrains fiomrespondingto the argumentwe made to counterthe assertionthat

it was merely prosecuting aprivate individual foracts committedoutside the scope of his office.

Admittedly, the alleged crimes were not committed by Mr.Yerodia, the Minister, but by

Mr. Yerodia, Director of the Office of the President of the Republic. But 1pointed out in this

regard that the accusation names a public figure andcould not be aimed at a private individual,

because he is accused of acts and omissionswhich do not lie within a private individual'spower,

notably preventing acts of violence. And as the public figure pursues his career by becoming

Minister for Foreign Affairs, the arrest warrant issued againsthim names the Minister and is

addressedto his residence.

B. Inrespect of the contentionthat the arrest warrant causesno prejudiceto the Democratic

Republiî of theCongo,Belgium'sinterpretationisjust as tendentious.

The constant attempt to understate the significance of the warrant has no basis in reality.

The terms of the warrant are there to be seen,and they go so far as to identifythe prison to which

Mr. Yerodia would be sent, as Professor Rigauxnoted. They include the executory formula. The

act violating the Democratic Republic of the Congo's sovereignty is thus characterized,in these

few pages, which are not simply one text like any other, but a text designed to result in the

incarceration of a SittingMinister.

QI4 Thus, nothng about this case is abstract. Mr. Yerodia's position was concrete and

corresponded to the reality of his power as Minister for Foreign Affairs within the Congolese

Govermnent. By means of this warrant,the Belgianjudge decidedon his arrest, another concrete act. Belgium regards the issuance of one of the mostpowerful instruments of criminalprocedure

against anindividual withparticular responsibilityfor representingthe State as insignificantin the

contextof relations between States. The Democratic Republic ofthe Congo,whosemost sensitive

interestshave been prejudiced, respectfullyooks to the Court to rule on whether or not there is a

disputeinthis respect,and it placesitsnist in the Court'sresponse on thispoint.

Showingthatthere is in fact a disputeis the response toBelgium'sfirst argumentconcerning

thepreliminary objections. 1sit also necessaryto recall that, under the well-settled jurisprudence,

the Court's jurisdiction is to beetermined at the time of its seisin?The other arguments are

closely related. In support of the second point, seeking a ruling that the case is moot, Belgium

returns to two precedents on which it relies. We do notfmd the arguments advanced during the

oral statementstobe persuasive.

In the Judgments of 20 December 1974in the NucIearTestscases, the Court stated that the

Applicants were not seeking a declaratory judgrnent but that their "original and ultimate

objective... was and has rernained to obtain a terminatibn of those tests".Belgium draws an

unfounded parallel,interpreting the Democratic Republic ofthe Congo's action as an attempt to

obtain a declaratory judgment. But France had publicly announced its intention to cease

conducting nuclear tests. Has Belgium publicly stated its intention to have the arrest warrant

cancelled? Until thathappens,therecanbeno comparisonwiththeNucIearTestscase.

Nor does the case concemingNorthem Cameroonshave any greaterrelevance tothe present

proceedings. The Court'sjurisdiction in that casewas foundedupon Article 19of the Trusteeship

Agreement,whichprovided for suchjurisdiction in the eventof a disputeoverthe Agreement. The

Court first found that there was a dispute between Carneroon and the United Kingdom; it then

ascertainedthat the claim did indeed have asubject-mattercomplyingwith Article32,paragraph2,

of theRules of Court. And while the Court ultimatelyheld, despite its affirmative responseson

thosetwo points, that it couldnot rule on the merits,that was becausethe Trusthad ceasedto exist.

Q 15 The United Nations General Assemblyhad acknowledgedthat and Cameroonhad not disputedit.

Thus, to find that there had been a breach of the law, as requested by Cameroon, wouldhave led

the Court to "revise" the United Nations resolution. There is absolutely no basis for comparison

between that case and the case we are dealing with today. The Northem Cameroons precedent contributesnothing to the argument that the case is now moot. Belgium aclaiowledgesmoreover

that the Democratic Republic of the Congo has not submitted anew claim. And a judgrnent

holding that an arrest warrant issued against asittingMinister for ForeignAffairs is withoutbasis

in the law,which is whatthe DemocraticRepublic of theCongois seelung,cannotbe considered to

be a declaratoryjudgment.

Belgium attempts to re-cast its argument- still the same argument- by maintainingthat

the case now before the Court is differentfiom the onepresented in the Application. So as not to

weary the Court, the only response tobe given is that the same warrant, still in effect, lies atthe

heart ofa claimwhichremainsunchanged.

Finally, Belgium makes this out to be a diplomatic protection action in disguise, but

Professor Rigauxhas dealt sufficientlywiththatpoint.

This line of argumentin its variouspermutations cannot prevail in the face of an enduring

dispute.

II. 1shall now briefly tum to the concem expressed by Belgium that the Court couldrule

ultrapetita vis-à-vis the Congo'sclaim. Thereby, it seeks,as it were, an endorsementof its policy

e and an assurance that universal jurisdiction will not be called into question.
The Democratic

Republic of the Congo'sposition remains focusedon respect for the sovereign equality of States.

Belgium adopts a strangeapproach in its attempttojustiQ its legislation and the warrant deriving

fiom it. It happily mixes examples fiom intemational courts with others based on the practice of

domesticcourts, cases of formerHeads of Statewith casesof Heads of State in power,the general

obligation to assume universal jurisdictionwith the possibility of doing so specificallywhen the

narned individual is not on the territory. And, to the question1raised last Tuesday concemingthe

reaction to be had by Belgium or France if a Congolesejudge issued an arrest warrant againstthe

Head of State in power or the sitting Ministerfor Foreign Affairs of Belgium or France for acts

comrnittedin Rwanda,my fiend Eric Davidreplies without answering. Hecites the exampleof a

Q 1 6 Belgian colonel prosecuted in Belgium for acts comrnitted in Rwanda or of Belgian ministers

placed under judicial investigation in Belgium. But this disregards the argument of foreign

nationality and that of absence from the territory and, as far as the colonel is concerned, that

conceming irnmunities of the hghest category. Thus, 1 find no confirmation that Belgium or Francewould accept that the same stepsbe taken in their regard which the Democratic Republic of

the Congohas rightly seenas a violation ofits sovereiw.

If the law is to progress, it needs to be better assured than this of the ground on which its

rules rest and of their exact content. It is as close as possible to what international lawsays to

assert:

1. That rules developed for internationalcourtsmust be distinguishedfromthose which applyto

actions before domestic courts. Lnthe former case, the sovereignty ofal1States is subjectto

one and the same limitation and, directly or indirectly, has been accepted by them. In the

latter, mutualrespect for their sovereigntiesmustbe absolute. Nothing, therefore,justifies the

view that what has been prescribed in the case of international crirninal courts extends

automaticallyto domesticcourts. Howcouldcriminallawbe satisfiedwith approximationsof

thiskind?

2. That the internationalcrirninaljurisdiction of domesticcourtsin respect of acts cornmitted by

foreigners abroad, including international crimes,inevitably conflicts with the sovereignty of

another State and must therefore have groundsin treaty or customary law authorizing those

courts to act; and that a set of grounds exists in this respect which should not be given an

extensive interpretation.

3. That the extension of thisjurisdiction to the casewhere the person concernedis not within the

temtop has at present no confirrned legal basis, which is very different from saying, as

ProfessorDavid would have us Say, that we no longer challenge universal jurisdiction

in ahsc.ntia.The activetrend towardspunishmentof internationalcrimes operatesin favourof

estending it in this way, but the need to protect the territorial sovereigm of Stateswhich are

equals tends to lirnit any such expansion. Inthe light of this case, Belgium would like the

Court, by finding in favour of a universaljurisdiction which possesses those broaderbounds,

to intervene in the lawrnakingprocess and therebyendorse the validity of its policy. But this
017

is not the place for the Court todothat,nor is ithelpful inthiscase for it to go sofar.

4. For ourpart, we contendthat thepointto whichthe Court shouldconfineits rulinginregardto

universal jurisdiction is, as ProfessorRigaux has just said, its use where it infiinges an

irnmunity fi-omsuit of an incumbent Ministerfor Foreign Affairs. And we then request the Court to declare that its use in these circumstances, as embodied in Belgium's action, is

contraryto internationallaw.

Mr.President,Members of the Court, thankyou.

The PRESDENT: Thankyou,Professor,and1now givethe floorto Mr.d'Argent.

Mr. d'ARGENT: Mr.President,Membersofthe Court,myreply will deal withthreepoints,

al1of which relate to the central question of the violation of the immunity of the Minister for

ForeignAffairsby the disputed warrant.

Let me return first to Belgium's assertionthat the arrest warrant wasnot liableto cause any

such violation; 1 shall then deal briefly with the alleged exception to immunity beforedomestic

courts where the accusationconcems crimes under international law; and 1shall concludewith a

few details about the subject-matterof the claim and the incorrect statementsby Belgium on that

point.

1.According to Belgium, the arrest warrant did not violate the immunity of the incumbent

Minister for Foreign Affairsof the Congo, and consequentlydid not injure the sovereignrights of

the Democratic Republicof the Congo. In an attemptto substantiatethis assertion, Belgiumputs

forward three main arguments: first, the fact that the arrest warrant was directed against the

incumbent Minister for Foreign Affairs of the Democratic Republic of the Congo is "purely

incidental", to use the words employedby Mr. Bethlehem yesterday; second, the arrest warrant

was devoid ofeffect abroadand its effectwould be suspendedin Belgiumin the case of an officia1

visit; finally, the violation of the sovereignty of the Democratic Republic of the Congo is not

sufficientlyproved, whichties up withthe argumentrelating to the absenceof a claimfor material

injury.

Let usexaminetheseargumentsfora fewmoments,if youwill permit.

(i) It is incorrect to claim that. the fact that the warrant was directed against the incumbent

Minister for Foreign Affairs was purely fortuitous. As 1 have already pointed out and as

ProfessorChernillier-Gendreauremindedthe Courtyesterday,the officia1statusofthe accused

and theplace of exerciseof his officialdutiesarereferredto in the warrant. Whatis more, and

what counts,is not a claim thatsuch officia1status was purely incidental or fortuitous; what counts is the fact that the investigatingjudge was fully aware of the officia1status of the

accused, who is clearly identifiedas such,and that he did not draw the conclusionshe should

have done fiom that inregard to his lackofjurisdictionrationepersonae.

(ii) No violation of the sovereignrights of theCongoexisted,it is said,sincethe arrestwarrantdid

not have the effect which the Congo attributesto it. The warrant, it is asserted, is devoid of

any rnandatory scope in third States and would not be executed in Belgium, since the

investigatingjudge would suspendit inthe event of an officialvisitby the Minister.

The arrest warrant, if devoid of any legal effect, is it not a mere whim of the investigating

judge, a mere plaything? Do not these various assertions by Belgium actually worsen its

position onceagain, becauseif the arrestwanant is totally devoidof effect - which isnot the

case - is it not even more reprehensibleto take judicial steps whose sole purpose is then to

castblame onanother Stateby publicisingthe fact to therest ofthe world?

As regards the legal effect of the arrest warrant, Mr.Bethlehem stated: "The warrant is a

national arrest warrant" (CR200118,p. 55, para. 131). This is not true, unless we are to

believe that the investigatingjudge himselfis unaware of whathe is doing: the arrestwarrant

of 11April2000 is headed: "Internationalarrest warrant bydefault". The fact that the arrest

warrant is allegedly of no effect in the temtory of the DemocraticRepublic of the Congoor in

third Statesis irrelevant in this respect, aswell as beingopento question. The discussionhere

about the lack of an InterpolRed Noticeis a smokescreen. Again,what countsis the claimin

QI.9 the arrest warrant that a person is subject to Belgium's criminaljurisdiction when his office

places him totallybeyond itsreach.

Moreover, do 1need to rernindthe Court again that in the Qaddafi case the French Court of

Cassationheld that the mere fact of openingan investigation - into factsthat rnayspeakboth

for and againstthe accused - concerningan incumbentHead of State sufficedto constitute a

violation of the irnmunity from suit enjoyed by incumbent foreign Heads of State? The

opening of an investigation is a preparatory step, preceding the arrest warrant, which is a

coercivejudicial act of a farmore serioushnd.

1shall not dwell further on the claim regarding the lack of effect of the warrant in Belgium

following an official invitation to the Minister. ProfessorRigaux has dealt perfectly clearly and adequately with that point. If necessary, though, 1 would invite you, Mr. President,

Members of the Court, tolook again at therelevantpassagesin the Congo'sMernorial. 1must

point out, however, that, contrary toMr.Bethlehem's statement, there was nothing whch

required (CR200118,p. 22, para. 28) that the investigatingjudge should suspend the arrest

warrant; he merely expressed the persona1 opinion that, and 1 quote, "in our view", an

"irnmunity from enforcement" should be accorded in the case of an officia1visit. The

distinction between immunity fromjurisdiction/irnmunity fiom enforcement underlyingthis

"opinion" of the investigating judge is obviously a false one in the present case, as

ProfessorRigaux has pointed out, as well as being questionable conceptually, since in

principle immunityfrom enforcementis "an imrnunitywhich bars execution against property,

inparticular in order to give effectto ajudgment" [translationby theRegistryl (J.Verhoeven,

L'immunité dejuridiction et d'exécutio des chefsd'EtatsetancienschefsdlEtats,Instituteof

InternationalLaw,ThirteenthCommission,p. 55, para. 29). The issue which the investigating

judge raises is more one of persona1 inviolabilitjr than immunity. Furthemore, as

ProfessorRigaux has also pointed out, there is no avoiding the flagrant contradiction which

existson this point inthe arrest warrant,just before its aboutthe suspensionof the warrant

in case ofofficial visits"Hence, the office of Minister for ForeignAffairs that is currently

020 occupiedby the accused does not entai1any irnmunityfiom jurisdiction and enforcementand

this Court is consequently competentto take the present decision" (arrestwarrant, translation,

p.63).

At al1 events, Mr. President, Members of the Court, a more fundamental pointis that the

existence of an internationallywrongful actcannot depend on the domestic legal effect of a

judicial step which itself constitutes the internationally wrongfùl act. The presentation of

arguments about the legal effect produced domestically by the act which constitutes the

violation of internationallaw- the act which is the intemationallywrongful act- is thus a

wayof divertingthe Court'sattentionfromthe reality ofthatwrongfulact.

(iii) Moreover, contrary toBelgium's assertion,theviolation ofsovereigntyis an establishedone,

something which has taken place. Contrary to whathas been stated, what constitutes the

violation of irnmunity andof the Congo's sovereign rights is not the fear of being arrested abroad, but the coercive legalstep representedby the arrest warrant itself, which violatesthat

irnmunityand those rights in clairningthat a member of aforeign governmentis subjectto a

domestic criminal jurisdiction when in pnnciple he is beyond its reach. What is more, this

fear of arrest abroadclearlyresulted,amongother things,fromthe factthat variousextradition

treatiesoperate in a particular way in the European sphere. It is highly significant in this

respect that, once the warrant had been issued intemationally, MinisterYerodia made no

further visits to any member State of the European Union and that his aircraft made its

technical stops at Dakar, where his father comes fiom. When MinisterYerodia went to

New York at the invitationof the United Nationshe was careful not to leave its Headquarters,

to which hetook the shortestpossibleroute fiom the airport. To claimthat the sovereigntyof

the Democratic Republic of the Congo was not violatedby the arrest warrant, a document

which totally negates the immunity from jurisdiction of the Minister for Foreign Affairs,is

obviouslyto misunderstandthereality of thefactsand theirwrongful character.

II. Regardingthe allegedexceptionto immunityfiom suitof Ministersfor Foreign Affairsin

office before domestic courts, 1do not thinkMr. President,Members of the Court, that there is a
021
need toreturn to this point at length. It clearly concernsan issue of law, a fundamentalissue that

the Court will have to settle. The Democratic Republic of theCongo maintains in this respect al1

thatit has set out in its writtenand oral arguments.

However, 1am anxiousto emphasisesomepoints in relationto ProfessorDavid'sarguments.

As he said himself, he has made an "interpretative analysis"(CR200119,p. 19, para. 29) of the

various sourcescitedby Belgiumin supportof its position. It think it sufficientto state,oncemore,

that this "interpretativealysis" is nothing but the improperuse of the texts cited, a processthat

feeds on the conceptual confusion, exposedbut still pursued, between persona1criminal liability

and imrnunity, between the jurisdiction of intemational courts and the jurisdiction of domestic

courts. Not a single precedentcited by Professor Davidrelates to our situation,i.e., to a domestic

criminal process against a member of a foreign govemmentin office. However, we are told: no

matter, it is not the samething; but al1the same,it is the samething! To be sure,they tell us at the

same time that there is no real precedent, but the rule is nonetheless certain, and has been certain

sinceNuremberg, or even sincethe Treaty of Versailles, and, anyway, theremust alwaysbe a first time! 1 venture, however, to doubt the existenceof a mle which is not clearly stated but is the

result of the improper use of texts covering other situations, ae which in addition has not been

applied for nearly 60years, or even 80years! But that is not all: to allay Ourastonishmentwhen

confrontedby an allegedrule that has neverbeen appliedfor overhalf a centurybut is nonetheless

certain,we receive an explanation that,if the rule has neverbeen applied,this is doubtlessbecause

it was a concealedone. And ProfessorDavid - no layrnanhe! - reveals it to us. He has told us

thatthe statutesof internationalcourtsthathe citesin supportofBelgium's position"were intended

to cover, by a terminological abridgment thatis convenient butperhaps regrettable in the case of

the layrnan, the two aspects of a defence based on the officia1 position of the individual"

(CR 2001/9,p. 19,para. 30).

1sit not time to wake up? The dream may give pleasureto the dreamer, but nonethelessit

remains a dream, and, let me tell you, it makes wearisomelistening. One wonders why, onsuch
022
important issues of principle, such a terminological abridgementhas been systematicallyapplied,

leavingthe "layrnan"ignorantofthe realwill ofthe authorsofthe rule.

Here is yet another example,quite significant,ofthismethodof "interpretativeanalysis"that

1consider improper. Concemingthe Pinochetruling in the House of Lords, ProfessorDavid cites

an excerpt fromLord Browne-Wilkinson'sopinion. Whileconcedingthat this excerptrelates to a

former foreignHead of State,oneno longerin office,he neverthelessasserts: "with suchperfectly

correct premises Lord Browne-Wilkinson, the author of this excerpt, could equally welI have

concludedthat immunity rnightnot apply,in the case of such acts, to an incurnbenthead of State.

It is the logc of his reasoning that leads to this conclusion which, however,1 hasten to

aclcnowledgethathe didnot draw7'(CR200119,p. 24, para.40).

What is this logic? 1sit not enoughto Saythat LordBrowne-Wilkinson did not draw the

conclusionthat ProfessorDavid asserts that he could have drawn? To make a text Saysomething

that itoes not Sayis even less convincingwhen the sametext expressly says the oppositeof what

it is claimed it rnight haveaid! It should be rememberedthat, in his opinion in support of the

House of Lordsruling of 24March 1999,LordBrowne-Wilkinsonhimself wrotethis about aHead

of State in office, adding his voice to the explicit statementby Lord Nicholls on this point that

havealready cited: "This irnrnunityenjoyedby a head of state in power and an ambassadorin post

is a completeimmuniîyattached to the person of the head of state or ambassador and
rendering him immune fiom al1actions or prosecutions whether or not they relate to
matters done for the benefit of the state." (See Memonal, p. 41, para. 63) (emphasis
added).

III. 1still have to Saya few words about the request madeby the Congo in its submissions,

which will be restated shortly by the Agent. The subject of the request, properly understood,

itself justifies the disrnissal of al1the preliminary objections put forward by Belgium regarding

jurisdiction and admissibilityand to which Professor Chemillier-Gendreauas alreadyreplied.In

other words,if the subjectof therequest is properly understood, it becomesclearthat the claimsby

Belgiumthat the dispute doesnot exist or is withoutobject, or has become an action ofdiplornatic

protection,that al1theseclairnsregarding the subjectofthe dispute,fa11at a stroke.

What is the Democratic Republic of the Congo actually asking for? It isasking for
023

reparationfor the injurycausedto its sovereignrightsby an unlawfulact. This reparationis sought

as a combinationof two forms: a measure of satisfaction,aimed atredressing the moral injury to

the DemocraticRepublicof the Congo,and a measure ofreparationin the form of legalrestitution,

that is toay,the withdrawaland cancellationof the disputed arrestwarrant and notificationof the

States to whch the warrant was circulated that it has been withdrawn. These three measures,
.
satisfaction, legal restitution in kind and notification of third parties, are necessary in order to

redress the injury caused to the Democratic Republic of the Congo, that is, in order "as far as

possible, [to]wipe outal1the consequencesofthe unlawfulact and re-establishthe situationwhich

would, in al1probability, have existed if that act had not been cornmitted", accordingto the

celebrated words of the Judgment in the case conceming the Factoy af Chonbw(P.C.I.J.,

SeriesA, No. 17,p. 47, 13September1928). Evenif the warrant wereliable to cancellationby the

Indictments Chamber of the Brussels Court of Appeal, the fact would remain that a measure of

satisfaction should be granted, as already stressed by ProfessorRigaux. Belgium does not,

moreover, appear to contest this request for satisfactionby a forma1declaration of the unlawful

nature of the act cornrnitted,but rather the third and fourthrequestsby the DemocraticRepublicof

the Congo, conceming the withdrawal and cancellation ofthe arrest warrant. Several arguments

are advancedin this connection. Allow meto examine thembriefly. First, it is said that the arrest warrantis no longer unlawfulin view of the fact that at present

the accused hasno officia1duties, so that the third and fourthrequests by the Democratic Republic

of the Congoseekto protect its accused national.

There aretwo replies to this argument:

(1) the arrest warrant is unlawful ab initio, and can no longer have any legal force, as

ProfessorChemillier-Gendreau has already stated. It is fundamentally flawed, and must

therefore be withdrawn. It is open to Belgiumto issue a fiesh warrant against Mi-.Yerodia.

The questionof diplomaticprotectionwill arise then, andonlythen.

(2) The sole impact of the termination of Mi-.Yerodia'sofficial duties is to deprive the wrongful

act by Belgium of its character as a continuingintemationallywrongful act. The termination

O24 of officia1duties in no way operatesto efface the wrongfulact and the injury that flows from

it. Thesecontinueto exist. The only differenceis that, sincetherQ no longerany continuing

intemationally wrongful act, the request by the Congo is not a request that ths act should

cease, as Belgium's argumentsmight erroneously imply. The request by the Congo is a

request for reparation for theinjury caused, requiring the restoration of the situation which

would in al1probability have existed if that act had not been committed. It is clear that, since

the wrongful act consisted in an intemal legal instrument, only the withdrawal and

cancellationof the latteran provide due reparation,inthe form ofjuridical restitutionin hnd.

There is nothing extraordinaryin this. As ProfessorArangio-Ruizstressed in his preliminary

report to the Intemational Law Commission on State responsibility: "Inpractice, any

international restitution in kind will be an essentiallyjuridical restitutio within the legal

system of the author State, accompanying or preceding material restitutio" (ILC Yearbook

1988,Vol.II(Part One),p. 27,para. 80).

Belgium's second argument is that the request goes beyond the powers of the Court. The

argumentseemsto assertboth that the Courtlacks the power to annul an intemal legal act and that

it cannotdecideon the means whereby a State should complywith itsjudgment. The decisions of

the Court cited by Belgium on this point in reality in no way gainsay the DemocraticRepublic of

the Congo's request. In nosense is the Court asked to determinethe meanswhereby Belgiumis to

comply with its decision. Belgium remains perfectly free in this respect. The withdrawal and cancellation of the warrant, by the means that Belgium deems most suitable,are not means of

enforcement ofthejudgrnent of the Courtbut the requested measureof legal reparationlrestitution

in itself. Moreover, in no respect is the Court itself asked to withdrawand cancel the disputed

warrant: the request is that the Court adjudge anddeclare that Belgium, by way of reparation for

the injury to the rights of the Democratic Republic of the Congo, be required to withdraw and

cancel this warrant by themeans of its choice. Again, there is nothing extraordinaryin this.o

conclude, 1venture to cite ProfessorArangio-Ruizagain, in the same report to the International

LawCommission:

025 "It is submittedthat al1that internationallaw-and internationalbodies- are
nonnally fit or enabledto do withregard to internallegalacts, provisionsor situations
is to declarethem to be in violation ofinternationalobligationsand as such sourcesof
international responsibility and furtherto declare the duty of reparation, such
reparationrequinng, le cas échéanti,nvalidationor annulment ofinternallegal acts on
the part of the author State itself." (ILC Yearbook1988, Vol. II (Part One), p. 28,
para. 84 (a).)

Thankyou,Mr.President,Members ofthe Court.

The PRESIDENT: Thank you, Professor. 1 now give the floor to the Agent of the

DemocraticRepublicof the Congo.

Mr. MASANGU-a-MWANZA: Mr.President,Members ofthe Court. Mr.President,before

my final submissions,allow me to expressto the Court on behalf of the Congolese delegation led

by His Excellency Maître Ngele Masudi, Minister of Justice and Keeper of the Seals, and of the

counsel who have assisted us, our most respectful gratitude for most patiently following the

argumentsdeveloped duringthese five days of sittings. 1will alsotake this opportunityto express

my sincere thanks to the Registrar, who has facilitatedthe gant of travel visas to our delegation

through the Netherlands Ministry of ForeignAffairs,ecause our Belgian diplomathends present

in this roomknow that it is not easy to obtain a travel visain the chanceriesof Western countries

accredited to Kinshasa. PhilippeCahier, in accordance with present-day diplomatic law, defines

diplomacyas the way of conductingthe foreignaffairsof a subject of internationallaw by peaceful

means. This being so, 1now wish to thank counsel on both sides for the diplomaticway inwhich they have conductedtheir arguments,with a proper regardfor the good relations that happilyexist

herebetweenthe Kingdomof Belgiumandthe DemocraticRepublicof the Congo, my country.

FINAL SUBMISSIONS

In light of the facts and arguments set out during the written and oral proceedings, the

Govemment of the Democratic Republic ofthe Congo requests the Court to adjudge and declare

that:

1.
By issuing and intemationally circulating the arrest warrant of 11Apri12000 against

026 Mr.Abdoulaye Yerodia Ndombasi, Belgium comrnitted a violation in regard to the

Democratic Republicof the Congo of the rule of international customary law concemingthe

absoluteinviolabilityand irnmunityfrom criminalprocess of incumbent foreign rninisters; in

so doing,it violated the princïpleof sovereignequalityamongStates;

2. A formal findingby the Court of the unlawfulnessof that act constitutes an appropriate form

of satisfaction, providing reparation for the consequent moral injury to the Democratic

Republic ofthe Congo;

3. The violations of intemational law underlying the issue and intemational circulation of the

arrestwarrant of 11pnl2000 preclude anyState,includingBelgium, fromexecutingit;

4. Belgium shall be required to recall and cancel the arrest warrant of 11Apri12000 and to

inforrnthe foreignauthoritiesto whom the warrant was circulatedthat Belgium renouncesits

requestfor theirCO-operatioin executingthe unlawfulwarrant.

Thrink!ou, Mr. President.

The PRESDENT: Thank you, Mr. Arnbassador. That ends the secondround of arguments

by the Democratic Republic ofthe Congo. The Court will meet this aftemoon at 4.30 p.m. forthe

secondroundof argumentsby the Kingdomof Belgium. The sittingis closed.

TheCourtrose at 10.40a.m.