Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) - The Court finds that the issue and international circulation by Belgium of the arrest warrant of 11 April 2000 against M

INTERNATIONALCOURTOFJUSTICE

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Communiqué
unofficial
forimmediaterelease

No. 2002/4
14February 2002

Arrest Warrant of 11 April 2000
(Democratie Republic of the Congo v. Belgium)

The Court finds that the issue and international circulation by Belgium of the arrest warrant
of 11 April2000 against Mr. Abdulaye Yerodia Ndombasi failed to respect the immunity

from criminal jurisdiction and the inviolability which the incombent Minister for
Foreign Affairs of the Congo enjoyed onder international law; and that Belgium
must cancel the arrest warrant

THE HAGUE, 14 February 2002. Today the International Court of Justice (ICJ), principal
judicial organof the United Nations, delivered its Judgment in the case conceming the Arrest

Warrant of 11April2000 (Democratie Republicof the Congov. Belgium).

In its Judgment, whichis final, without appeal and binding for the Parties, the Court found,
by thirteen votes to three,

"that the issue againstMr. Abdulaye Yerodia Ndombasi of the arrest warrant of
11April 2000, and its international circulation, constituted violations of a legal
obligation of the Kingdom of Belgium towards the Democratie Republic of the
Congo, in that they failed to respect the imrnunity from criminaljurisdiction and the

inviolability which the incumbent Minister for Foreign Affairs of the Democratie
Republic of the Congo enjoyedunder international law"

and, by ten votes to six,

"that the Kingdom of Belgium must, by means of its own choosing, cancel the arrest
warrant of 11April 2000 and so inform the authorities to whom that warrant was
circulated".

The Court reached these findings afterhaving found,by 15votesto 1, that it had jurisdiction,
that the Application of the Democratie Republic of the Congo ("the Congo") was not without
object (and the case accordingly not moot)nd that the Applicationwas admissible, thus rejecting
the objections which the Kingdom ofBelgium ("Belgium") had raised on those questions. - 2-

The reasoning of the Court

Jurisdiction and admissibilitv

The Court first rejects certain objectionsof Belgium based on the fact that Mr. Yerodia was
no longer the Minister for Foreign Affairs, or even a member of the Government of the Congo, at
the time that the Court was dealing withthe case.

With regard to the Court's jurisdiction, Belgium argues that there no longer exists a "legal

dispute" between the Parties within the meaning of the declarations filed by them pursuant to
Article 36 (2) of the Statute, and that, therefore, the Court lacks jurisdiction. On this point, the
Court recalls that its jurisdiction must be determined at the time of the institution of the
proceedings, and that at that time there was clearly "a legal dispute between ... [the parties]
conceming the international lawfulness of the arrest warrant of 11 April 2000 and the
consequences to be drawn if the warrant was unlawful". The Court accordingly rejects the first
Belgian objection.

The Court also rejects the second Belgian objection, namely that, because of the
above-mentioned change in Mr. Yerodia's situation, the case is now without object. The Court
finds that this change has not deprived the Application of its object. Itpoints out that the Congo
argues that the arrest warrant was and remains unlawful, and asks the Court so to declare, while
continuing to seek cancellation of the warrant; for its part Belgium continues to dispute the
Congo's submissions.

Nor does the Court find, as claimed by Belgium in its third objection, that the Congo's
daims are inadmissible because the facts underlying the Application have changed in such a way
as to produce a transformation of the dispute before the Court into another dispute. The Congo's
final submissions, the Court observes, arise "directly out ofthe questionwhich is the subject-matter
ofthat Application".

Belgium's fourth objection, that, because of the change ofMr. Yerodia's situation, "the case
has assumed the character of an action of diplomatie protection but one in which the individual
being protected has failed to exhaust local remedies" is alsorejected by the Court. The Court notes
that the Congo never invoked the individualrights ofMr. Yerodia andrecalls that, in any event, the
admissibility of the Application mustbe determinedas at thetime ofits filing.

The Court finally observes, in response to a subsidiary argument of Belgium, that, while in

accordancewith a well-established principle the Court is "not entitled to decide upon questions not
asked of it, [that] non ultra petita rule nonetheless cannot preclude the Court from addressing
certain legal points in its reasoning". The Court observes that in the present case itthus may not
rule, in the operative part of its Judgment, on the question whether the disputed arrest warrant,
issued by the Belgian investigating judge in exercise of his purported universal jurisdiction,
complied in that regard with the rules and principles of intemationallaw goveming the jurisdiction
of national courts, because that questionwas not contained in the final submissions of the Parties.

This does not mean, however, that the Court may not deal with certain aspects of that question in
the reasoning of its Judgment, shouldit deem thisnecessary or desirable.

The Court then observes that in the present case it is only the immunity from criminal
jurisdiction and the inviolability of an incumbent Minister for Foreign Affairs which it has to

consider. Having referred to certain treaties which were cited by the Parties in this regard, and
having concluded thatthey do not definethe immunities ofMinisters for Foreign Affairs, the Court
finds that it must decide the questions relating to these immunities on the basis of customary
internationallaw. - 3 -

The Court states that, in customary international law, the immunities accorded to Ministers
for Foreign Affairs are not granted for their personal benefit, but to ensure the effective.
performance of their functions on behalf of their respective States. In arder to determine the extent

of these immunities, the Court must therefore frrstconsider the nature of the functions exercised by
a Minister for Foreign Affairs. After an examination of the nature of those functions the Court
concludes that they are such that, throughout the duration of his or her office, a Minister for
Foreign Affairs when abroad enjoys full immunity from criminal jurisdiction and inviolability.
That immunity and inviolability protect the individual concerned against any act of authority of
another State which would hinder him or her in the performance of his or her duties. In this
respect, no distinction can be drawn between actsperformed by a Minister for Foreign Mfairs in an

"official" capacity and those claimed to have been performed in a "private capacity", or, for that
matter, between acts performed before the person concemed assumed office as Minister for Foreign
Affairs and acts committed during the period of office. Thus, if a Minister for Foreign Affairs is
arrested in another State on a criminal charge, he or she is clearly thereby prevented from
exercising the functions of his or her office.

The Court then turns to Belgium's argumentsthat Ministers for Foreign Affairs do not enjoy

such immunity when they are suspected of having committed war crimes or crimes against
humanity. It points out that, after having carefully examined State practice, including national
legislation andthose few existing decisions ofnational higher courts, such as the House of Lords or
the French Court of Cassation, it has been unable to deduce from this practice that there exists
under customary international law any form of exception to the rule according immunity from
criminal jurisdiction and inviolability to incumbentMinisters for Foreign Affairs.

The Court further observes that the rules goveming the jurisdiction of national courts must

be carefully distinguished from those governingjurisdictional immunities. The immunities under
customary international law, including those of Ministers for Foreign Affairs, remain opposable
before the courts of a foreign State, even where those courts exercise an extended criminal
jurisdiction on the basis of various international conventions on the prevention and punishment of
certain seriouscrimes.

The Court emphasizes, however, that the immunitv from jurisdiction enjoyed by incumbent

Ministers for Foreign Affairs does not mean that they enjoy impunity in respect of any crimes they
might have committed, irrespective of their gravity. Immunity from criminal jurisdiction and
individual criminal responsibility are quite separate concepts. While jurisdictional immunity is
procedural in nature, criminal responsibility is a question of substantive law. Jurisdictional
immunity mayweil bar prosecution for a certainperiod or for certain offences; it cannot exonerate
the person to whom it applies from all criminal responsibility. The Court then spells out the
circumstances in which the immunities enjoyed under international law by an incumbent or former

Minister forForeign Affairs do not representa bar to criminalprosecution.

After examination of the terms of the arrest warrant of 11 April 2000, the Court states that
the issuance, as such, of the disputed arrest warrant represents an act by the Belgian judicial
authorities intended to enable the arrest on Belgian territoryof an incumbent Minister for Foreign
Affairs on charges of war crimes and crimes against humanity. It finds that, given the nature and
purpose of the warrant, its mere issue constituted a violation of an obligation of Belgium towards

the Congo, in that it failed to respect the immunity which Mr. Yerodia enjoyed as the Congo's
incumbent Minister for Foreign Affairs and, more particularly, infringed the immunity from
criminal jurisdiction and inviolability then enjoyedby him under international law. The Court also
notes that Belgium admits that the purpose of the international circulation of the disputed arrest
warrant was "to establish a legal basis for the arrest ofMr. Yerodia ... abroad and his subsequent
extradition to Belgium". It finds that, as in the case of the warrant's issue, its international
circulation from June 2000 by the Belgian authorities, giventhe nature and purpose of the warrant,

constituted a violation of an obligation of Belgium towards the Congo, in that it failed to respect
the immunity of the incumbent Minister for Foreign Affairs of the Congo and, more particularly, -4-

infringedthe immunity from criminaljurisdiction and the inviolability then enjoyed by him under
internationallaw.

The Court finally considers that its finding that the arrest warrant was unlawful under
international law, and that its issue and circulation engaged Belgium's international responsibility,
constitute a form of satisfaction which will make good the moral injury complained of by the
Congo. However, the Court also considers that, in order to re-establish "the situation which would,
in aliprobability have existed if [theillegal act] hadnot been committed", Belgium must, by means
of its own choosing, cancel the warrant in question and so inform the authorities to whom it was

circulated.

Composition of the Court

The Court was composed as follows: PresidentGuillaume; Vice-President Shi;
JudgesOda, Ranjeva, Herczegh, Fleischhauer, Koroma,Vereshchetin, Higgins, Parra-Aranguren,
Kooijmans,Rezek, Al-Khasawneh, Buergenthal; Judges ad hoc Bula-Bula,Van den Wyngaert;
RegistrarCouvreur.

President Guillaume appends a separate opinion to the Judgment of the Court; Judge Oda
appendsa dissenting opinion to the Judgment of the Court; JudgeRanjeva appends a declaration to
the Judgment of the Court; Judge Koroma appends a separate opinion to the Judgment of the
Court; Judges Higgins, Kooijmans and Buergenthal append a joint separate opinion to the
Judgment of the Court; Judge Rezek appends a separate opinion to the Judgment of the Court;
Judge Al-Khasawneh appends a dissenting opinion to the Judgment of the Court;

Judgead hoc Bula-Bula appends a separate opinion to the Judgment of the Court;
Judgead hoc Van den Wyngaert appends a dissenting opinionto the Judgmentof the Court.

A summary of the Judgment is given in Press CommuniquéNo. 2002/3bis, to which a
summary of the opinions is annexed. The full text of the Judgment and of the opinions is available
onthe Court'swebsite (http://www.icj-cij.org).

Information Department:
Mr. Arthur Witteveen, First Secretary (Tel.: +1 70 302 23 36)
Mrs. Laurence Blairon, InformationOfficer (Tel.: +31 70 302 23 37)
E-mail address: [email protected]