Summaries of Judgments, AdNot an official documentrs of the Internationa
l Court of Justice
ARREST WARRANT OF 11APRIL 2000 (DEMOCRATIC REPUBLIC OF THE
CONGO v. BELGIUM) (MERITS)
Judgment of 14 Febiruary2002
In its Judgment in the case concerning the Arrest Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh,
Warrant of 11 April 2000 (Democratic Republic of the Buergenthal; Judgesad hoc Bula-Bula, Van den Wyngaert;
Congo v. Belgium), the Court found, by thirteen votes to RegistrarCouvreur.
three, that the issue against Mr. Abdulaye Yerodia *
Ndombasi of the arrest warrant of 11 April 2000, and its * *
international circulation, constituted violationsof a legal
obligation of the Kingdom of Belgium towards the President Guillaume appended a separate opinionto the
Democratic Republic of the Congo, in that they failed to Judgment of the Court; Judge Oda appendeda dissenting
respect the immunity from criminal jurisdiction and the opinion to the Judgment of the Court; Judge Ranjeva
inviolability which the incumbent Minister for Foreign appended a declarationto the Judgmentof the Court; Judge
Affairs of the Democratic Republicof the Congo enjoyed Koromaappendeda separateopinion to theJudgment ofthe
underinternationallaw. Court; Judges Higgins, Kooijmans and Buergenthal
It also found, by ten votes to six, that the Kingdom ofppended a joint separate opinion to the Judgmentof the
Belgium must, by means of its own choosing, cancel the Court; Judge Rezek appended a separate opinion to the
arrestwarrant of 11April 2000and so informthe authoritiesJudgment of the Court; Judge Al-Khasawneh appendeda
to whom that warrant was circulated. The Court reached dissenting opinion to the Judgment of the Court; Judge ad
these findings after having found,by 15votes to 1, that itoc Bula-Bulaappendeda separateopinionto the Judgment
of the Court; Judge adoc Van den Wyngaert appended a
had jurisdiction, that the Application of the Democratic
Republic of the Congo ("the Congo") was not without dissentingopinionto the Judgmentofthe Court.
object (and the case accordingly not moot) and that the
Application was admissible, thus rejecting the objections
which the Kingdom of Belgium ("Belgium") had raised on
thosequestions.
'Thefull text of the operativeparagraph ofthe Judgment
The Court was composed as follows: President readsas follows:
Guillaume; Vice-President Shi; Judges Oda, Ranjeva, "78. For thesereasons,
Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins,
THECOURT,
Continued on next page (1) (A) By fifteenvotes to one, Finds that the Kingdom of Belgium must,by means
Rejects the objections of the Kingdom of Belgium of its own choosing, cancel the arrest warrantof 11April
relatingtojurisdiction, mootness and admissibility; 2000 and soinforn~the authorities towhomthat warrant
was circulated;
FOR: President Guillaume; Vice-President Shi; FOR: President Guillaume; Vice-President Shi;
Judges Ranjeva, Herczegh, Fleischhauer, Koroma,
Vereshchetin, Higgins, Paya-Aranguren, ICooijmans, Judges Ranjeva, Herczegh, Fleischhauer, Koroma,
Rezek, Al-Khasawneh, Buergenthal; Judges adhoc Vereshchetin, Parra-Aranguren. Rezek; Judge adhoc
Bula-Bula,Van den Wyngaert; Bula-Bula;
AGAINST: Judges Oda, Higgins, Kooijmans,Al-
AGAMST: Judge Oda; Khasawneh, Buergenthal; Judge ad hoc Van den
(B)By fifteen votesto one,
Finds that it has jurisdiction to entertain the Wyngaert."
Application filed by the Democratic Republic of the
Congoon 17October2000;
FOR: President Guillaume; Vice-President Shi;
Judges Ranjeva, Herczegh, Fleischhauer, Koroma, History of theproceedings und sz~bnlissiorisof the
Vereshchetin, Higgins, Parra-Aranguren, ICooijnlans,
Rezek, Al-Khasawneh, Buergenthal; Judges ad hoc Parties
Bula-Bula, Van den Wyngaert; (paras. 1-12)
The Court recalls that on 17 October 2000 the
AGAINST:Judge Oda;
(C)By fifteenvotesto one, Democratic Republic of the Congo (hereinafter "the
Congo") filed in the Registry of the Courtan Application
Finds that the Application of the 1)einocratic instituting proceedings against the Kingdom of Belgium
Republic of the Congo is not without object and that (hereinafter "Belgiunl") in respect of a dispute concerning
accordingly the case is notmoot; an "international arrest warrant issuedon 11April 2000by a
FOR: President Guillaume; Vice-President Shi; Belgian investigating judge ...against the Minister for
Judges Ranjeva, Herczegh, Fleischhauer, Koroma, Foreign Affairs in office of the Democratic Republic of the
Ve:reshchetin, Higgins, Parra-Aranguren, ICooijmans,
Congo,Mr. Abdulaye YerodiaNdombasi".
Rezek, Al-Khasawneh, Buergenthal; Judges adhoc In that Application theCongo contended that Belgium
Bu'la-Bula,Van denWyngaert; had violated the "principlethat a State may notexercise its
AGAINST: Judge Oda; authority on the territory of anotherState", the "principle of
(D)By fifteenvotes to one, sovereign equality among all Members of the United
Fitids that the Application of the 1)emocratic Nations, as laid down in Article 2, paragraph 1, of the
Republic of the Congo is admissible; Charter of the United Nations", as well as "the diplomatic
FOR: President Guillaume; Vice-President Shi; immunity of the Minister for Foreign Affairsof a sovereign
Judlges Ranjeva, Herczegh. Fleischhauer, Koroma, State, as recognized by the jurisprudence of the Court and
following from Article 41, paragraph2, of the Vienna
Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Convention of 18April 1961 on DiplomaticRelations". In
Rezek, Al-Khasawneh, Buergenthal; Judges ad hoc order to found the Court's jurisdictionthe Congo invoked in
Bu:la-Bula,Vanden Wyngaert;
AGAINST: JudgeOda; the aforementionedApplicationthe fact that"Belgiumha[d]
(2) By thirteen votes to three, accepted thejurisdiction of the Court and, insofaras inaybe
required, the [aforementioned] Application signifie[d]
Finds that the issue againstMr. Abdulaye Yerodia acceptanceof that jurisdiction by the Democratic Republic
Ndombasi of the arrest warrant of11 April 2000,and its of theCongo".
international circulation, constitutedviolatof a legal The Court further recalls that on the same day, the
obligation of the Kingd.om of Belgium towards the
Democratic Republic ofthe Congo,in that they failed to Congo also filed a request for the indication of a provisional
measure; and that by an Order of 8 Deceinber 2000 the
respect the immunityfroin criminaljurisdiction and the Court, on the one hand, rejected Belgium's request that the
inviolability which the ir~cumbentMinister for Foreign case be removedfrom the List and, on the other,held that
Afiirs of the Democriatic Republic of the Congo the circumstances,as they then presented themselvesto the
enjoyed under internationallaw; Court, were not such as to require the exercise of its power
FOR: President Guillaume; Vice-President Shi;
under Article 41 of the Statute to indicate provisional
Judlges Ranjeva, Hercniegh, Fleischhauer, Koroma, measures. In the same Order, the Court also held that"it
Vereshchetin, Higgins, Parra-Aranguren, ILooijmans, [was] desirable that the issues before the Court should be
Rezek, Buergenthal;JudgeadhocBula-Bula; determinedas soon aspossible" andthat "it [was] therefore
AGAINST: Judges Oda, Al-Khasawneh; Judge ad appropriate to ensure that a decision on the Congo's
hoc Vanden Wyngaert; Applicationbe reached with allexpedition".
(3) By ten votes tosix, By Order of 13 Deceinber 2000,the President of the
Court, taking account of the agreementof the Parties asexpressed at a meeting held with their Agents on 8 Ndombasi, charging him, as perpetrator or co-perpetrator,
December 2000, fixed time limits for the filing of a with offences constituting grave breaches of the Geneva
Memorial by the Congo and of a Counter-Memorial by Conventions of 1949 and of the Additional Protocols
Belgium, addressing both issues of jurisdiction and themto, and with crimes against humanity. The arrest
admissibility and the merits. After the.pleadings had been warrantwas circulatedinternationallythrough Intel-pol.
filed within the time limits as subsequentlyextended,public At the time when the arrest warrant was issued Mr.
hearingswereheld from 15 to 19October2001. Yerodiawas the MinisterforForeignAffairs of the Congo.
At the oral proceedings, the following final submissions The crimes with which Mr. Yerodia was charged were
werepresentedby the Parties: punishable in Belgium under the Law of 16 June 1993
Onbehalfofthe Gover-t~ttien otftlie Congo, "concerning the Punishment of Grave Breaches of the
"In lightof the facts and argumentsset out duringthe InternationalGenevaConventionsof 12August 1949and of
written and oral proceedings, the Government of the Protocols I and I1 of 8 June 1977 Additional Thereto", as
Democratic Republic of the Congo requests the Court to amended by the Law of 19February 1999"concerning the
adjudgeand declare that: Punishment of Serious Violations of International
Humanitarian Law" (hereinafter referred to as the "Belgian
1. by issuing and internationally circulating the Law"').
arrest warrant of 11 April 2000 against Mr. Abdulaye
Yerodia Ndombasi, Belgium cominitted a violation in C)n17 October 2000, the Congo instituted proceedings
regard to the Democratic Republic of the Congo of the before the International Court of Justice, requesting the
rule of customary international law concerning the Court "to declare that the Kingdom of Belgium shall annul
absolute inviolability and immunity from criiniilal the international arrest warrant-issued on 11 April 2000".
process of incumbent foreign ministers; in so doing, it After the proceedingswere instituted,Mr. Yerodia ceasedto
hold office as Minister for Foreign Affairs, and
violated the principle of sovereign equality among
States; subsequentlyceasedto hold any ministerialoffice.
2. a formal findingby the Court of the unlawfulness In its Application instituting proceedings, the Congo
of that actconstitutesan appropriateformof satisfaction, relied on two separate legal grounds. First, it claimed that
providing reparation for the consequent moral injury to "[tlhe ~lniversajlurisdiction that the Belgian State attributes
the DemocraticRepublicof the Congo; to itself under Article 7 of the Law in question" constituted
a "[v]iolation of the principle that a State may not exercise
3. the violations of international law underlying the its authority on the territory of another State and of the
issue and international circulation of the arrest warrant
of11April 2000 preclude any State, includingBelgium, principle of sovereign equalityanlong all Members of the
fromexecutingit; United Nations". Secondly, it claimed that "[tlhe non-
4. Belgium shallbe requiredto recall and cancelthe recognition,on the basis of Article5...of the Belgian Law,
of the immunity of a Minister for Foreign Affairs in office"
arrest warrantof11April 2000and to informthe foreign constituted a"[v]iolation of the diplomatic immunity of the
authorities to whom the warrant was circulated that Ministerfor ForeignAffairs of a sovereignState". However,
Belgium renounces its request for their cooperation in the (Zongo'sMemorial and its final submissions refer only
executingthe unlawfulwarrant."
Onbehalfofthe GoverizinentofBelgilmi, to a violation "in regard to the ..Congo of the rule of
customary international law concerning the absolute
"For the reasons stated in the Counter-Memorial of inviolability and immunity from criminal process of
Belgium and in its oral subn~issions,Belgium requests incumbentforeignministers".
the Court, as a preliminary matter, to adjudge and
declare that the Court lacks jurisdiction in this case Objections of Belgizcltzi-elatingtojtrrisdictiori, rnootness
andlor that the Applicationby the Democratic Republic
of the CongoagainstBelgiumis inadmissible. arid adinissibility
(paras. 22-44)
If, contrary to the submissions of Belgium with
regard to the Court's jurisdictionand theadmissibilityof Belgium kfirst objection
the Application, the Court concludes that it does have (paras. 23-28)
jurisdiction in this case and that the Application by the
Democratic Republic of the Congo is admissible, The Court begins by considering the first objection
Belgium requests the Court to reject the submissions of presentedby Belgium,whichreads as follows:
the Democratic Republic of the Congo on the merits of "That, inthe light of the fact that Mr. Yerodia Ndombasi
the case andto dismissthe Application." i!;no longer either Minister for Foreign Affairs of the
[Congo] or a minister occupying any other position in
Background to the case the ...Government [of the Congo], there is no longer a
(paras. 13-21) 'legaldispute' betweenthe Parties withinthe meaningof
this term in the Optional Clause Declarations of the
On 11April 2000 an investigatingjudge of the Brussels Parties and that the Court accordingly lacksjurisdiction
tribunaldeprernizre iiistunceissued "an internationalarrest
warrant iii abseiltin" against Mr. Abdulaye Yerodia in this case." The Court recalls that, according to its settled Belgiztpnkthird objection
jurispr~~dencei,tsjurisdiction mustbe determinedat the time (paras. 33-36)
that the act instituting proceedings was filed. Thus, if the
Court basjurisdiction on the date the case is referred to it, it The third Belgianobjectionis put as follows:
continues to do so regardless of subsequent events. Such "That the case as it now stands is materially different to
that set out in the [Congol's Application instituting
events might lead to a finding that an appli1:ationhas proceedings and that the Court accordingly lacks
subsequentlybecome moot and toa decision not to proceed jurisdiction in the case and/or that the application is
tojudgment on the merits, but they cannot deprivethe Court
ofjurisdiction. inadmissible."
The Court then finds that, on the date that the Congo's The Court notes that, in accordance with settled
Applicatioil instituting these :proceedingswasfiled, each of jurisprudence, it "cannot, in principle, allow a dispute
brought before it by application to be transformed by
the Parties was bound by a declaration of acc1:ptanceof amendments in the submissions into another dispute which
compu:lsoryjurisdiction, filed in accordancewith Article36,
paragraph 2, of the Statute of the Court: Be1g;iunlby a is differentin character". However,the Court considersthat
declarationof 17June 1958 a.ndthe Congoby a declaration in the present case the facts underlyingthe Applicationhave
of 8 :February 1989. Those declarations contained no not changedin a way that produced sucha transformation in
reservation applicableto the present case. The Ccurt further the dispute brought beforeit. The question submitted to the
observes that it is, moreover, not contested by the Parties Court for decisionremains whetherthe issue and circulation
of the arrest warrant by the Belgian judicial authorities
that at the materialtime there was a legal dispute between against a person who was at that time the Minister for
them concerning the international lawhlness of the arrest
warrant of 11April 2000 and the consequencestc)be drawn Foreign Affairs of the Congo were contrary to international
if the warrant was unlawful. The Court accordingly law.
concludes that at the time that it was seized of the case it The Congo's final submissionsarise"directly out of the
had jurisdiction to deal with. it, and that it still has such questionwhich is the subject matter of that Application".In
jurisdiction, and that Belgium's first objec1.ion must these circumstances, the Court considers that Belgium
cannot validly maintain that the dispute brought before the
thereforebe rejected.
Court was transformedin a way that affected its ability to
Belgium ksecond objection prepare its defence, or that the requirements of the sound
(paras. 29-32) administration of justice were infringed. Belgium's third
objectionis accordinglyrejected.
The second objection presented by Belgium is the
following:
Belgium :fourth objection
"That in the light of the fact that Mr. Yerodia Ndombasi (paras. 37-40)
is no longer either Minister for Foreign Affiirs of the The fourthBelgianobjectionreads as follows:
[Congo] or a minister occupying any other position in
the ...Government [of the Congo], the case is now "That, in the light of the new circumstancesconcerning
without object and the Court should accordingly decline Mr. Yerodia Ndombasi, the case has assumed the
to proceed tojudgment on the merits of the case." characterof an actionof diplomaticprotectionbut one in
which the individual being protected has failed to
The Court notes that it has alreadyaffirmedon a number exhaust local remedies, and that the Court accordingly
of occasionsthat events occurringsubsequentto the filingof
an application may render the application without object lacksjurisdiction in the case and/or that the application
such that the Court is not called upon to give a decision is inadmissible."
thereon.However,the Court considersthat thisis not such a The Court notes that the Congo has never sought to
case. 11:finds that the change which has occurred in the invoke before it Mr. Yerodia's personal rights.It considers
situation of Mr. Yerodia has not in fact put an end to the .that, despite the change in professional situation of Mr.
Yerodia, thecharacter of the dispute submittedto the Court
dispute between the Parties and has not deprived the
Application of its object. The Congo argues that the arrest by means of the Application has not changed: the dispute
warrant issued by the Belgian judicial authorities against ,stillconcerns the lawhlness of the arrest warrant issued on
Mr. Yerodia was and remains unlawful. It asks the Court to 11April 2000 againsta person who was at the time Minister
hold that the warrant is unlawful, thus providingredress for for Foreign Affairs of the Congo, and the question whether
the moral injury which the warrant allegedly caused to it. .therights of the Congo have or have not been violated by
The Congo also continues to'seek the cancellation of the .thatwarrant.The Court findsthat, as the Congois not acting
:inthe context of protection of one of its nationals, Belgium
warrant. For its part, Belgium contendsthat it did not act in
violation of international law and it disputes the Congo's cannotrely upon therules relating to the exhaustionof local
submis:;ions.In the view of the Court, it follows from the remedies.
foregoing that the Application of the Congo is not now In any event,the Court recallsthat an objectionbased on
without object and that accoirdinglythe case is not moot. mon-exhaustionof localremedies relates to the admissibility
Belgium's secondobjectionis accordingly rejected. of the application. Under settled jurisprudence, the critical
date for determining the admissibility of an application isthe date on which it is filed. Belgium accepts that, on the particular matter that there can be any question of
date on which the Coilgo filed the Application instituting immunities in regard to the exercise of that jurisdiction.
proceedings, the Congo had a direct legal interest in the However, in the present case, and in view ofthe final form
matter, and was asserting a claim in its own name. of the Congo's submissions,the Court first addresses the
Belgium'sfourthobjectionis accordinglyrejected. question whether, assunling that it had jurisdiction under
international law to issue and circulate the arrest warrant of
Belgium bsubsidiary ctrgurrzeiltconcei-rzingthe 11April 2000, Belgium in so doing violated the inlnlunities
rtonultra petita rule of the thenMinisterforForeignAffairsof the Congo.
(paras. 41-43)
As a subsidiary argument,Belgium further contendsthat Iinnttliiityand inviolability of ait inc~irnbentForeign
"[iln the event that the Court decides that it does have Minister in gerteral
jurisdiction in this case and that the application is para.^.47-55)
admissible, ...the izonultrapetitu rule operates to limit the The Court observesat the outset that in internationallaw
jurisdiction of the Court to those issues that are the subject it isirnlly establishedthat, as also diplomaticand consular
of the [Congol'sfinal submissions". agents. certain holders of high-ranking office in a State,
Belgium points out that the Congo initially advanced a such as the Head of State, Head of Governmetit and
twofold argument, based, on the one hand, on the Belgian Minister for Foreign Affairs, enjoy immunities from
judge's lack of jurisdiction and, on the other, on the jurisclictionin other States, both civil and criminal. For the
purposes of the present case, it is only the immunity from
immunity from jurisdiction enjoyed by its Minister for criminal jurisdiction and the inviolability of an incumbent
Foreign Affairs. According to Belgium, the Congo now
confines itself to arguing the latter point, and the Court Minister for Foreign Affairs that fall for the Court to
consequently cannot rule on the issue of universal consider.
jurisdiction in any decision it renders on the merits of the The Coui-t notes that a certain number of treaty
case. instni~nents were cited by tlie Parties in this regard,
including the Vienna Convention on Diplomatic Relatioils
The Court recalls the well-established principle that "it of 18April 1961and the New YorkConveiltionon Special
is the duty of the Court not only to reply to the questions as
stated in the final subn~issionsof the parties, but also to Missions of 8 December 1969. The Court finds that these
abstain from deciding points not included in those Conventions provide useful guidance on cei-tainaspects of
submissions". The Court observes that, while it is thus not the questioilof immunities,but that theydo not contain any
entitled to decide upon questions not asked of it, the nor1 provision specifically defining the immunities enjoyed by
ultrapetita rule nonethelesscannotpreclude the Court fro111 Ministers forForeignAffairs. It is consequentlyon the basis
addressing certain legal points in its reasoning. Thus in the of customary international law that the Court must decide
the questions relating to the immunities of such Ministers
present case the Courtmay not rule, in the operativepart of
its Judgment, on the question whether the disputed arrest raised inthe present case.
warrant, issued by the Belgian investigating judge in In customary internationallaw, the inimunitiesaccorded
exercise of his purported universaljurisdiction, complied in to Ministers for Foreign Affairs are not granted for their
that regard with the rules and principles of internationallaw personal benefit. but to ensure the effective performance of
governing the jurisdiction of national courts. This does not their functions on behalf of their respective States. In order
mean, however, that the Court may not deal with certain to determinethe extent of these immunities,tlie Court illust
aspects of that question in the reasoning of its Judgment, therefore first consider the nature of the functionsexercised
shouldit deemthis necessaryor desirable. by a Minister for Foreign Affairs. After an examination of
those:functions. the Courtcoilcludesthat they are such that,
Merits oftlie case throughout the duration of his or her office, a Minister for
(paras. 45-71) Forei.gnAffairs when abroad enjoys full immunity from
criminal jurisdiction and inviolability. That iminunity and
As indicated above, in its Application instituting these that inviolability protect the individual concerned against
proceedings,the Congo originally challengedthe legality of
the arrestwarrant of 11April 2000 on twoseparategrounds: any act of authority of another State which would hinder
him or her inthe perfomlance of his or her duties.
on the one hand, Belgium's claim to exercise a universal The Court finds that in this respectno distinctioncall be
jurisdiction and, on the other, the alleged violation of the drawn between acts perfonned by a Minister for Foreign
immunitiesof the Minister for Foreign Affairs of the Congo Affairs in an "official" capacity and those claimed to have
then in office. However, in its submissions in its Memorial, been perfonlled in a "private capacity", or, for that matter,
and in its final submissions at the close of the oral
proceedings,the Congo invokesonly the latterground. between acts performed before the person conceined
assumed office as Minister for Foreign Affairs and acts
The Court observes that, as a matter of logic, the second committed during the period of office. Thus, if a Minister
ground should be addressed only once there has been a forForeignAffairs is arrested in another State on a criminal
determinationin respect of the first, since it is only where a charge, he or she is clearly thereby prevented from
State hasjurisdiction under internationallaw in relation to a exercising the functions of his or her office. Furthennore,even the mere risk that, by travellingto or transiting another Ministers for Foreign Affairs does not mean tliat theyenjoy
State, a Minister for Foreign Affairs might be exposing inzpuniQ in respect of any crimes they might have
liimsel,f or hcrself to legal proceedings coulc. deter the committed, irrespective of their gravity. Jurisdictional
Minister froin travelling i1lte:matiollawhen required to do immunity may well bar prosecution for a certain period or
so for the puiyoses of tlie performance of his or her official for certain offences; it cannot exonerate the person to whom
functions. it appliesfrom all criminal responsibility. Accordingly, the
immunities enjoyed under international law by an
The Court then addresses Belgium's argnlnent that
immunities accorded to incumbent Ministers for Foreign incumbent or fornler Minister for Foreign Affairs do not
Affair;<can in no case protect:them where they ar: suspected represent a bar to criminal prosecution in certain
of having cominitted wa:r crimes or crimes against circumstances. The Court refers to circumstances where
humar~ity. such persons are tried in their own countries, where the
State which they represent or have represented decides to
The Court states that it has carefully examined State waive that immunity, where such persons no longer enjoy
practice, including national legislation and those few all of thei~nmunitiesaccorded by international law in other
decisions of national higher courts, such as tho House of
Lords in the United Kingdom or the French Court of States after ceasing to hold the office of Minister for
Cassation, and that it has been unable to deduct: froin this Foreign Affairs, and whcre such persons are subject to
practic:ethat there exists under customary international law criminal proceedings before certain international criminal
any form of exception to the rule accordiilg inlll-unityfrom courts, where theyhavejurisdiction.
-
criminal jurisdiction and inviolability to incumbent
Ministers for Foreign Affairs, where they are suspected of Theissue urtd circlrlatiorz of the arr-est warr-ant of
having committed war crimr:~or crimes against humanity. 11April 2000
The Court adds that it has also exa~niiled the rules (paras. 62-7 1)
concerning the immunity or criminal responsibility of
persons having an official c:apacitycontained in the legal Given the conclusions it has reached above concerning
instrurnents creating international criminal tribunals, and the nature and scope of the rules goveniing the immunity
which are specifically applicable to the latter (see Charter of fro~ncriininal jurisdiction enjoyed by incumbent Ministers
for Foreign Affairs, tlie Court then considers whether in the
the Intenlational Military Tribunal of Nureniberg, Art. 7; present case the issue of the arrest warrant of 11April 2000
Charter of the Inteniational Military Tribunal ofTokyo.Art. and its international circulation violated those rules. The
6; Statute of the Inteinational Criminal Tribunal for the Court recalls in this regard that the Congo requests it, in its
former Yugoslavia. Art. 7, para. 2; Statute of the first final submission,toad-judgeand declare tliat:
InternationalCri~niiialTribunal for Rwanda, Art. 6, para. 2;
Statute:of the International Criiiiiiial Court, Art. 27), and "[Bly issuing and illternationally circulating the arrest
that it finds that these rule:; likewise do not enable it to warrant of 11April 2000 against Mr. Abdulaye Yerodia
Ndombasi, Belgium committed a violation in regard to
conclude tliat any such exception exists in customaly the Democratic Republic of the Congo of tlie rule of
interiiational law in regard l:onational courts. Finally, the customa~y interiiational law concer~iing the absolute
Court observes tliat none of the decisioils of tlieYuremberg inviolability and imnlunity fro111criminal process of
and Tokyo international rnilitary tribunals, or of the
International Criminal Tribunal ibr the former Yugoslavia, incumbent foreign ministers; in so doing. it violated the
cited by Belgium deal with the question of the iin~nunities principle of sovereignequalityamong States."
of incumbent Ministers for Foreign Affairs before national After examining tlie terms of the arrest warrant, the
courts where they are accu:jed of having cotninitted war Court notes that its isszrartce,as such, represents an act by
the Belgianjudicial authorities intended to enable the arrest
crimes or crimes against hmnanity. The Court a.ccordingly on Belgian territory of an incumbent Minister for Foreign
notes that those decisions are in no way at variance with the
findings it has reached above. The Co111.atccordingly does Affairs on charges of war crimes and crimes against
not accept Belgium's argument in this regard. humanity. The fact that the warrant is enforceable is clearly
It further notes that the rules governing the jurisdiction apparent from tlie order given in itto "all bailiffs and agents
of national courts must be carefully distinguished from of public authority ...to execute this arrest warrant" and
from the assertion in the warrant that "the position of
those governingjurisdictional immu~iities:jurisdiction does Minister for Foreign Affairs currently held by the accused
not iliiply absence of immunity, while absencc 01immunity does not entail iinrllunity from jurisdiction and
does not implyjurisdiction.
Thus. although various international conventions on the enforcement". The Court notes that the warrant did
prevention and puliishmentof certain serious crinles impose adn~ittedlymake an exception for the case of an officialvisit
on States obligations of prosecution or extradition, thereby by Mr. Yerodia to Belgium, and that Mr. Yerodia never
suffered arrest in Belgium. The Court considers itself
requiring them to extend their criinilial jurisdiction, such bound, however, to find that, given the nature and purpose
extension ofjurisdiction in no way affects ilniiluritics under of the warrant. its mere issue violated tlie immunity which
customary international law, including those of'Ministers Mr. Yerodiaenjoyed as the Congo's incumbent Minister for
for Foreign Affairs. The Court enlphasizes, however, that Foreign Affairs. The Court accordingly concludes that the
the inznlzrriig from jurisdiction enjoyed by incumbent
issue of the warrant constihlted a violation of an obligationof Belgiumtowardsthe Congo,in that it failedto respectthe merely by a findingby the Court that the arrest warrant was
immunity of that Minister and, inore particularly, infringed unlawful under internationallaw. The warrant is still extant,
the immunityfrom criminaljurisdiction and the inviolability and remains unlawful, notwithstailding the fact that Mr.
then enjoyedby himunder iiiternationallaw. Yerodia has ceased to be Minister for Foreign Affairs. The
The Court also notes that Belgium admits that the Court accordingly considers that Belgiuni must, by means
purpose of the international circ~4latioizof the disputed of its own choosing, cancel the warrant in question and so
arrest warrantwas "to establisha legalbasis for the arrest of. infonn the authoritiesto whoin it was circulated.
Mr. Yerodia ...abroad and his subsequent extradition to The Court sees no need for any further remedy: in
Belgium". The Court finds that, as in the case of 'the particular, the Court points out that it cannot. in ajudgment
warrant's issue, its internationalcirculationfrom June 2000 ruling on a dispute between the Coiigo and Belgium.
by the Belgian authorities, given its nature and purpose, indicate what that judgment's implications might be for
effectively infringed Mr. Yerodia's immunity as the third States, and the Court finds that it cannot therefore
Congo's incumbent Minister for Foreign Affairs and was acceptthe Congo's submissionson this point.
furthermore liable to affect the Congo's conduct of its
international relations. The Court concludes that the
Separate opinion ofJudge Gzlillaume,President
circulation of the warrant, whether or not it significantly In his separate opinion, President Guillaume subscribes
interfered with Mr. Yerodia's diplomatic activity, to the Judgmentof the Courtand sets out his position on one
constituted a violation of an obligation of Belgium towards
the Congo, in that it failed to respect the immunity of the question which the Judgment had not addressed: whether
incumbent Minister for Foreign Affairs of the Congo and, the Belgian judge has jurisdiction to issue an international
more particularly, infringed the immunity from criminal arrestwarrantagainstMr.Yerodia Ndoinbasi.
jurisdiction and inviolability then enjoyed by him under HI:recalls that the primary aim of thecriminal law is to
enablepunishmentin eachcountryof offences coinlnittedin
internationallaw.
thenational territory. He adds that classic international law
Remedies does not exclude a State's power in some cases to exercise
(paras. 72-77) itsjudicial jurisdiction over offences committed abroad,but
he emphasizes that the exercise of that juiisdiction is not
The Court then addresses the issue of the remedies without its limits. as the Permanent Court stated in the
sought by the Congo on account of Belgium's violation of "Lotus"case as long agoas 1927.
the above-mentioned rules of international law. (Cf. the
second, third and fourth submissions of the Congo He continues by inaking it clear that, under the law as
classicallyformulated,a Statenormallyhasjurisdiction over
reproducedabove.) an offence committed abroad only if the offender, or at the
The Court observesthat it has alreadyconcludedthat the very least the victim, has the nationality of that State, or if
issue and circulation of the arrest warrant of 11April 2000 the crimethreatens its internalor externalsecurity.
by the Belgian authorities failed to respect the immunity of
the incumbent Minister for Foreign Affairs of tlie Congo Additionally, Statesmay exercisejurisdiction in cases of
piracy and in the situation of subsidiary universal
and, more particularly, infringed the immunity from jurisdiction provided for by various conveiitions if the
criminal jurisdiction and the inviolability then enjoyed by offender is present on their territoiy. However, apart from
Mr. Yerodia under international law. Those acts engaged these cases, international law does not accept universal
Belgium's international responsibility. The Court considers jurisdiction: still less does it accept universaljurisdiction
that the findings so reached by it constitute a form of absentia.
satisfaction which will make good the moral injury
complainedof by the Congo. Thus, President Guillaume concludes that, if the Court
had addressed these questions, it ought to have found that
However, the Court goes on to observe that, as the the Belgianjudge was wrong in holding himself competent
Pernlanent Court of International Justice stated in its to prosecute Mr. Yerodia Ndombasi by relying on a
Judgment of 13 September 1928in the case concerningthe universaljurisdiction incompatiblewith internationallaw.
Fnctorvat Choli-dw:
"[tlhe essential principle contained in the actual notion Dissenting opinion ofJudge Oda
of an illegal act - a principle which seems to be
establishedby internationalpractice and in particular by Judge Oda voted against all of the provisions of the
the decisions of arbitraltribuiial- is that reparation operative part of the Court's Judgment in this case. In his
must, as far as possible. wipe out all the consequencesof dissentingopinion, Judge Oda stresses that the Court should
the illegalact and re-establish thesituationwhichwould, have declared ex officio that it lacked jurisdiction to
in all probability, have existed if that act had not been entertain the Congo's Application of 17 October 2000
committed" (P.C.I.J.,SeriesA,No. 17,p. 47). because there was at the time no legal dispute between the
The Court finds that, in the present case, "the situation Partiesof tlie kind required underArticle 36,paragraph 2,of
which would, in all probability, have existed if [the illegal the Court's Statute.In his dissenting opinion, Judge Oda
act] had not been committed" cannot be re-established reiterates tlie arguments he made in his declaration
appended to the Court's Order of 8 December 2000concerning the request for indication of preliminaly Judge Oda also stresses his belief that the issuance and
nleasnres, and he addresses four main points. circulation of an arrest warrant, without any action
First, Judge Oda stresses tliat a belief by the Congo that concerning the warrant by third States, does not have any
the 1993 Belgian Law violated internatio~iallaw is not legal impact. Regarding diplomatic immunity, Judge Oda
enough to create a legal dispute between the Parties. In its divides the question presented by this case into two main
Application, the Congo asserted that Belgium's 1993 Law, issues: first, whether in principle a Foreign Minister is
as amended in 1999,concerning the Punislinieiii:of Serious entitled to the same immunity as diplomatic agents; and
second, whetlier diplomatic immunity can be claimed in
Violations of Iliternational Humanitarian Law ("the 1993
Belgian Law"). contravenes international law. The Congo respect of seriousbreaches of humanitarian law. The Court,
also argued that Belgium's prosecution of Mr. Yerodia, he indicates, has not sufficiently answered these questions,
Foreign Minister of the Congo, violated the diplomatic and should not have made the broad finding it appears to
imn~u~nity granted under international law to Ministers for make, according Ministers for Foreign Affairs absolute
Foreign Affairs. This argument was not support~:dby proof im~nunity.
that Mr. Yerodia himself had suffered or would suffer Finally, Judge Oda believes that there is no practical
anything more than some moral injury. Because of this, the significance to the Court's order that Belgium cancel the
case did not concern a legur'dispute, but instead amounted arrest warrant of April 2000, sinceelgium can presumably
to a request froni the Congo for the Court to render a legal issue a new arrest warrant against Mr. Yerodia as a,fot-tiler
opittion on the lawfulness of the 1993 Belgian Law and Minister for Foreign Affairs. If the Court believes that the
actions taken under it. Judge Oda expresses gr-~.veconcern sovereign dignity of the Congo was violated in 2000, the
that the Court's findingthat there was a legal dispute could harm done cannot be remedied by the cancellation of the
lead to an excessive nunibel:of cases being refi:rred to the arrest warrant; the only remedy would be an apology by
Court without any real injury being evidenced, a state of Belgium. For his part, Judge Oda does not believe that the
affairs which could cause States to withdraw their Congo suffered any injury, since no action was ever taken
acceptanceof the Court's co~npulsoryjurisdiction. against Mr. Yerodia pursuant to the warrant. In closing,
Second, Judge Oda believes that the Congo changed the Judge Oda states tliat lie finds the case "not only unripe for
subject matter of the proceediiigs between the time it filed adjudication at this time but also findanlentally
its Al~plication of 17 October 2000 and subiiiitted its inappropriateforthe Court's consideration".
Memcaial on 15 May 2001. The questions the Congo
originally raised - whether a State has extraterritorial Declaration ofJudge -arlieva
jurisdiction over crimes anounting to serious violations of In his declaration, Judge Ranjeva expresses agreement
humar~itarianlaw regardless of where they were committed
and by whom, and whetlier a Foreign Minister is exempt with both the operative part and the Court's approach in
from :;uchjurisdiction - were transformed into questions refraining from considerationof the issue of the merit of the
conce~niiigthe issuance and international circulatio~iof an extremely broad interpretation given to universal
arrest warrant against a Foreign Ministerand the immunities jurisdiction in nbseiztiaby the organs of the Belgian State.
The withdrawal of the Congo's original first sub~nission
of incumbent Foreign Minislers. This transfornliitionof the from its final submissions resulted in excluding universal
basic issues of tlie case, Judge Oda believes, dilj not come jurisdiction fromthe scopeof the claims.
within the scope of the right tlie Congo reserved in its
Application "to argue further the grountls of its This change in the Applicant's litigation strategy
~~~li~~ti~~-.~~d~~ oda agrees with the courtYs obscured the heart of the problem underlying the present
determination that the alleged dispute (which he does not as seen in the light and
agree was a legnl displrte),was the one existing in October international law concerning the suppression of the most
2000, a~idhe believes, tllere:Foret,hat the Court .wascorrect heinous international crimes. The author ~oints out that
customary international law, as codified by the law of the
to reject ~ ~ l ~ i ~ o~bje~tions relating to y,.isdiction,
mootness and admissibility". sea conventions,recognizesone situation in which universal
Third, Judge Oda turns to the question of whether the jurisdiction may be exercised: maritime piracy. The
present case involves any legal issues on which the Congo developlnent of conventional law is marked by the gradual
and Belgium hold conflicting views. In response, he notes establishment of national courts' jurisdiction to punish,
progressing as it has from the affi~mationof the obligation
that the Congo appears to have abandoned it:; assertion, to prevent and punish, without however establishing
made in its Application, that the 1993 Belgian Law was jurisdiction to punish, towards the enshrinement in treaty-
itselfcontrary to tlie principle of sovereign equality under made lawof the principle nzrtjzrdicarearrtdeder-e.
international law. In this regard, Judge Oda finds that
extratelritorial criminal jurir;diction has been expanded in Judge Ranjeva finds Belgium's interpretation of the
recent decades, and that universal jurisdiction is beillg ''Lotus''case, which in its view lays down the principle that
increa:singlyrecognized. ~~d~~oda believes that the court jurisdiction exists in the absence of an explicit prohibition,
to be unreasonable given the facts and circumstancesof the
wisely refrained from finding issue, since the law is case on which the Permanent Court of International Justice
not sufficiently developed in this area, and because the
c~~~.w ~as not requested to take a decision on this point. was called to adjudicate. Judge Ranjeva is of the opinion
that, leaving aside the compelling obligation to give effect
215;to the punishmentand preventioncalled forby international crimes, crimes against humanity including the slave trade
law and withoutit being necessary to condemn the Belgian andgenocide.
Law, it wouldhave been difficultunder currentpositivelaw Fynally, on the issue of remedies, Judge Koroma
not to uphold the Congo's originalfirst submission.
consideredthat the Court's instructionto Belgiumto cancel
the arrestwarrant shouldrepair the moral injury sufferedby
Separate opiilion of Judge Koroiiza the Clongoand restore the situation statlrs quo ante before
the warrant was issued and circulated. This should restore
In his separate opinion, Judge Koroma statedthat the legalpeacebetweenthe Parties.
choice of technique or method of responding to the final
submissions put to the Court by the Parties is the
prerogative of the Court so longas the Judgmentprovides a Joint separate opinion ofJudges Higgirzs,
complete answer to the submissions.On the other hand, in Kooijmaiis and Btrergeizthal
the context of the present case, the Court decided not to Irl their joint separate opinion, Judges Higgins,
engage in a legal discourse or exegesis to reach its Kooijmansand Buergenthalagree with the Court's holding
conclusion, since it didnot consider it necessary, interesting onjurisdiction and admissibility,and with muchof whatthe
though it mayhave been. The Judgment cannot thereforebe Court hasto sayregarding immunitiesofincumbentForeign
juridically queriedonthis ground. Ministers. They consider, however, that the Court should
Judge Koroma maintainedthat the Court was entitled,in also have addressed the issue ofuniversaljurisdiction since
respondingto submissions,to take as its point of departure the issue of immunities depends, conceptually,upon a pre-
the determination of whether international law permits an existingjurisdiction. Theultrapetita rule barsonly a ruling
exemption of immunity from the jurisdiction of an on universaljurisdiction in the dispositlfinot its elucidation.
incumbentMinister for Foreign Affairs without delving into Such elucidation was necessary because immunities and
the issue of universal jurisdiction, particularly as both universaljurisdiction are closely interrelatedin this caseand
Partieshad relinquishedthe issue andhad askedthe Courtto bear on the maintenance of stability in international
pronounce on it only insofar as it relates to the question of relations without perpetuating impunity for international
the immunity of a Foreign Minister in office. Thus, in his crimes.
view, and despite appearances to the contrary,what the Turning to universal jurisdiction, Judges Higgins,
Court is called uponto decide is not which of theprinciples Kooi.jmansand Buergenthal ask whether States are entitled
of either immunityor universaljurisdiction is pre-eminent, to exercisesuchjurisdiction overpersons accused of serious
but rather whether the issue and circulation of the warrant internationalcrimeswhohave no connectionwith the forum
violated the immunityof a ForeignMinisterin office. Judge State and are not present in the State's territory. Although
Koroma pointed out that jurisdiction and immunity are
they find no established practice indicatingthe exercise of
differentconcepts. suchjurisdiction, neither dothey find evidenceof anopinio
According to him, the method chosen by the Court is juris that deemsit illegal.
alsojustified on practical grounds;in that the arrest warrant Moreover, the growing number of multilateral treaties
had been issued in Belgium onthe basis of Belgian law, it for the punishmentof serious internatio~ialcrimestend to be
was therefore appropriate for the Court to determine the
drafted with great care so as not to preclude the exercise of
impact of that law on an incumbent Foreign Minister. The universal jurisdiction by national courts in these type of
Court has ruled that while Belgium is entitled to initiate cases. Thus, while theremay be no generalrule specifically
criminal proceedings against anyonein its jurisdiction, this authorizing the right to exercise u~iiversaljurisdiction, the
did not extend to ail incumbent Foreign Minister of a absence of a prohibitive rule and the growing international
foreign State who is immune from suchjurisdiction. In the consensus on the need to punish crimes regarded as most
Judge's opinion,the Judgment shouldbe seenas responding heinous by the international community, indicatethat the
to that issue, the paramount legal justification forwhich is
warrantfor the arrest of Mr.Yerodia did notas such violate
that a Foreign Minister'simmunity is not onlyof functional internationallaw.
necessitybut increasinglynowadayshe orshe representsthe Judges Higgins, Kooijmans and Buergenthal agree in
State, even though this position is not assimilable to that of general with the Court's finding regardingMr. Yerodia's
Head of State.However, in the Judge's view, the Judgment immunity.They sharethe Court'sviewthat the immunityof
should notbe consideredeitheras a validationor a rejection
of the principle of universaljurisdiction, particularlywhen a Foreign Ministermust not be equated witli impunity and
no such submissionwas beforethe Court. that procedural immuliity cannot shield the Minister from
personal responsibility once the Minister is no longer in
On the other hand, the Judge stated that,by issuing and office.
circulating the warrant, Belgium had demonstrated how H.owever.they consider as too expansive the scope of
seriously it took its international obligation to combat
internationalcrimes,yet itisunfortunatethat thewrong case the immunitiesthe Court attributestoForeignMinisters and
would appear to have been chosen to do this. It is his too restrictivethe limits it appearsto imposeon the scope of
the personal responsibility of such officials and where they
opinion that today, together witli piracy, universal may be tried. In their view, serious crimes under
jurisdiction is available for certain crimes such as war inteniational law engage the personal respo~isibilityof highState officials. For purposes of imtnunities. the concept of accompanied - while Mr. Yerodiawas still in office - by
officialactsinust be narrowlydefined. a RedNoticeaskingother Statesto take enforcementsteps.
Judges Higgins. Kooijmans and Buerger~thal voted Judge Al-Khasawneh also dealt with the question of
against the Court's finding imparagraph (3) of the clispositg exceptions in the case of high-ranking State ofiicials
that Belgiua~must cancel the amestwarrant. They consider accused of grave crimes from the protection afforded by
that the Court's reliance on.tlie dictum in tlie Fcictoiy at immunities. In this regard he felt that the morally
Clzo~*zdw c.se is inisplaced because the restora.tionof the embarrassing problen~of impunitywas not adequatelydealt
statlr.7qzlocinteis not possible as Mr. Yerodia is no longer with in the Judgment whichtried to circumventthe problem
Foreign Minister. Morcover, since Mr. Yerodia no longer by an artificial distinction between "procedural immunity"
holds this office, the illegality attaching to the warrant on the one hand and "substantive immunity" onthe other,
ceasecl and with it the continuing illegality that would and by postulating four situations where immunity and
justify an orderfor its witlidrawal. impunity would not be synonymous, i.e., (a) prosecution in
the home State, (b) waiver and (c) prosecution after leaving
Separate opirlion ofJzldye Rezek office, except for official acts and(4 before international
courts. Having considered these four situations he
Judge Rezek voted in favour of all paragraphs of the neverthelessfelt that a lacunastill existed.Lastly,he argued
operative part of tlie Judgment. He nonetheless regrets that that the need for effective combating of grave crimes -
the Court did not rule on the issue of the ju~isdi~:tionof the
Belgian courts. The fact that the Congo confined itself to recognized as such by the international community -
represents a higher norm than the rules on immunity and in
inviting the Court to render a decision based oil immunity case of conflict should prevail, even if one is to speak of
does not justify, in Judge Rezek's view, t:ne Court's reconciliation of opposing norms and not of the triumph of
dropping of what represents an inevitablelogicalpremise to one over the other, this would suggest a more restrictive
the exiuiiinationof the issue of immunity. approach to immunity - which would incidentally bring
Judge Rezek considers that an exalnination of immunity from criminal process into consonance with the
inteinational law demonstrates that, as it currer~tlystands,
now firmly established rCgimeof restrictive immunities of
that law does not pennit the exerciseof crilninaljurisdiction States- than the Judgmentportrays.
by domestic courts in the absence of some connecting
circulrlstancewith the forum State.A,fortioi.i,it fbllowsthat Separate opinioit of Judge Bula-Bula
Belgium cannot be considered as having been "obliged"to
institute criminal proceedings iu this casc. Judge Rezek By conducting itself unlawfully, the Kingdom of
notes in particular that the Geneva Conventions do not Belgium, a sovereign State, committed an internationally
wrongful act to the detrimentof theDemocraticRepublic of
enshril~eally notion of ui~iversaljurisdiction ill abserltin, the Congo, likewisea sovereignState.
and that such jurisdiction has never been clailned by the
Spanishcourts in tliePinochetcase. JudgeBula-Bulafullysupportsthe decisionof the Court,
Juclge Rezek concludes by noting the importance of which upholdsthe rule of law against the law of thejungle.
restraint in the exercise ofriminaljmisdiction by domestic In this regard, he has also indicated other grounds of fact
courts; a restraint in line with the notion of aecei~tralized and law whichwill render further substance to a Judgment
of interestto the entireinternationalcommunity.
interna.tiona1colnmunity, founded on the pri~~cipleof the
equality of its members and necessarily requiring mutual
coordination. Dissenting opinion of Judge Vanden Wyngaerl
Dissentirly opinion of'JzrdgeAl-Khasaw~eh Judge Van den Wyngaert has voted against the Court's
decision on the merits. She disagrees with the Court's
JuclgeAl-Khasawneh dissented because, in his opinion, conclusionthat there is a rule of customaryinternationallaw
incumbent Ministers for Forr:ignAffairs elljoy only limited granting immunity to incumbent Foreign Ministers. She
immm-~ity,i.e., immunity fro111enforcement when on an believes that Belgium has not violated a legal obligation it
owed in this respect to the Congo. Even assuming,
official mission. He arrived at this conclusioi~on the bases
that: irl~munityis an exceptionto the rule that man is legally argrrendo,that there was sucha rule, there was no violation
and morally responsible for his actions and should therefore in the present case as the warrant could not be and was not
be const~ued narrowly; that unlike diplomats, the executed. neither in the country where it was issued
immunities of Foreign Ministers are not clear io terms of (Belgium) nor in the countries to which it was circulated.
their basis or extent and unlike Heads of State, Foreign The warrant was not an "international arrest warrant" in a
Ministszrsdo not personify the State and are therefore not legal sense:it could and did not have this effect, neither in
Belgium nor in third countries. Judge Van den Wyngaert
entitled to immunities and privileges attaching to their
person.While the Belgianwarrant went beyondjmisdiction, believes that theseare the only objective elententsthe Court
it contained express language regarding unenfor1:eabilityif should have lookedat. The subjectiveelements,i.e., whether
thc Minister was on Belgian soil on official mission, the warrant had a psychological effect on Mr. Yerodia or
sii~~ilarly the circulatioi~ of the warrant was not whether it was perceived as offensiveby the Congo (cf. theterms iniuria and capitis diminutioused by counsel for the This case was to be a test case, probably the first
Congo)was irrelevantforthe dispute. opportunity for the International Court of Justice to address
a number of questions that have not beenconsidered since
On the subject of immzotities,Judge Van den Wyngaert
finds no legal basis under international law for granting the famous "Lotus" case of the Permanent Court of
immunity to an incumbent Minister for Foreign Affairs. InternationalJustice in 1927.In technical terms, the dispute
There is no conventional international law on the subject. was about an arrest warrant against an incumbent Foreign
There is no customary international law on the subject Minister.
either. Before reaching the conclusion that Ministers for The warrant was, however, based on charges of war
Foreign Affairs enjoy a $11 immunity from foreign crimes and crimes against humanity, which the Court even
jurisdiction under customaiy international law, the fails to mention in thdispositi$ In a more principled way,
Intei~iationalCourt of Justice should have satisfied itself of the case was about how far States can or must go when
the existence of State practice (usus) and opinio juris implementing modem international criminal law. It was
establishing an international custom to this effect. A about the questionwhat internationallaw requires or allows
"negative" practice, consisting in their abstaining from States to do as "agents" of the international community
institutingcriminalproceedings,cannot, in itself,be seen as when they are co~ifrontedwith complaintsof victimsof such
evidence for an opinio juris ("Lotus': Judgment No. 9, crimes, given the fact that internationalcriminal courts will
1927, P.C.I.J.,Series A, No. 10, p. 28), and abstinence can not be able to judge all international crimes. It was about
be attributed to many other factors, including practical and balancing two divergent interests in modern international
political considerations. Legal opinion does not support the (criminal) law: the need of iiiternational accountability for
Court's proposition that Ministers for Foreign Affairs are such crimes as torture, terrorism, war crimes and crimes
immune from the jurisdiction of other States under against humanity and the principle of sovereign equality of
customary international law. Moreover, the Court reaches States,whichpresupposesa systemof immunities.
this conclusion without regard to the general tendency Judge Van den Wyngaert regrets that the Court has not
toward the restriction of immunity of the State officials
addressed the dispute froni this perspective and has instead
(including even Heads of State), not only in the field of focused on the very rzawow technical question of
private and commercial law butalso in the field of criminal iminilnities for incumbent Foreign Ministers. In failing to
law, when there are allegations of war crimes and crimes address the dispute from a more principled perspective, the
against humanity. Belgium may have acted contrary to International Court of Justice has missed an excellent
international comity, but it has not infringed international opportunity to contribute to the development of modern
law. Judge Van den Wyngaert therefore believes that the international criminal law. In legal doctrine, there is a
whole Judgment is basedon flawedreasoning.
plethora of recent scholarly writings on the subject. Major
On the subject of (tmiversal)j~{risdiction,on which the schol.arlyorganizationsand non-governmentalorganizations
Court did not pronounce itself in the present Judgment, have taken clear positions on the subject of international
Judge Van den Wyngaert believes that Belgium was accoimtability.The lattermay be seen as the opinion of civil
perfectly entitled to apply its legislation to the war crimes socieQ, an opinion that cannot be completely discounted in
and crimes against humanity allegedly committed by Mr. the formation of customary international law today. She
Yerodia in the Congo. Belgium's War Crimes Act, giving highly regrets that the Court fails to acknowledge this
deve'lopment,and instead adopts a foimalistic reasoning,
effectto the principle of universaljurisdiction regardingwar
crimes and crimes against humanity, is not contrary to examining whether there is, under customary international
internationallaw. On the contrary, internationallaw permits law, an international crimes exception to the - wrongly
and even encouragesStatesto assertthis formofjurisdiction postulated - rule of immunity for incumbent Ministers
in order to ensure that suspects of war crimes and crimes under customaryinternationallaw.
against hunlanity do not find safe havens. Universal By adopting this approach, the Court implicitly
jurisdiction is not contrary to the principle of establishes a hierarchy between the rules on iiizntunity
conzplenlentari~in the Rome Statutefor an Iizternational
(protecting incumbent former Ministers) and the rules on
CriminalCourt. The InternationalCriminal Court will only iitterrzationalaccountability(calling for the investigation of
be ableto act if Statesthat havejurisdiction are unwillingor charges against incumbent Foreign Ministers suspected of
unable genuinely to carry out investigation or prosecution war crimes and crimes against humanity). By elevating the
(Art. 17). And even where such willingness exists, the former rules to the level of customary international law in
International Criminal Court, like the ad hoc international the first part of its reasoning,and finding that the latterhave
tribunals, will not be able to deal withll crimes that come failed to reach the same status in the second part of its
under its jurisdiction. The International Criminal Court will
reasotiitig, the Court does iiot need to give finther
not have the capacity for that, and there will always be a consideration to the legal status of the principle of
need for States to investigate and prosecute core crimes. international accountability under international law. Other
These States include, but are not limited to, national and courts, for example,the House of Lords in the Pinochetcase
territorial States.Especially in the case of sham trials, thereand the European Court of Human Rights in the Al-Adsani
will still be a need for third States to investigate and case have given more thought and consideration to the
prosecute. balancing of the relative normative status of iaternational According to Judge Van den Wyngaert, an implicit
iuscogeiu crimesand immu:nities. consideration behind this Judgment may have beell a
Judge Van den Wyngaert disagrees with the Court's concer~jzor rrbirseand chaos, arisingfrom the riskof States
asserting unbridled universaljurisdiction and engaging in
proposition that immunity does not lead to iir~punigof
incumbentForeign Ministers. This may be true in theory, abusive prosecutions against incumbentForeign Ministers
but notin practice. It is, in theory,true thatan incumbentor of other States and thus paralysing the functioning of these
former Foreign Minister can always be prosecuted in his States.In the present dispute, however, there was no
own country or in other States if the State whom he allegation of abuse of process on the part of Belgium.
represents waves immunity, as the Courtassert:;.However, Criminal proceediligs against Mr. Yerodia were not
this is preciselythe core of itheproblem of iniptnity: where frivolousor abusive.The warrantwasissued aftertwo years
of criminalinvestigationsand there were no allegationsthat
national authorities are not willing or able to investigateor
prosecute, the crime goes unpunished. And this is what the investigatingjudge who issuedit acted on false factual
happened in thepresent case. The Congo accusedBelgium evidence. The accusation that Belgium applied its War
of exercising universal jurisdiction in ubsenticlagainst an Crimes Statute in an offensive and discriminatory manner
incumbent Foreign Minister, but it had itself omitted to against a Congolese Foreign Minister was manifestlyill-
exercise its jurisdiction in pi-esentia in the case of Mr. founded. Belgium, rightly or wrongly, wishes to actas an
Yeroclia,thus infringing the Geneva Conventions and not agent of the world coinmunity by allowing con~plaints
brought by foreign victimsof serious human rights abuses
complyingwith a host of UinitedNations resolutionsto this
effect. The Congo did not come to the Court with clean committedabroad. Sincethe infamousDzttroiuccase (a case
hands: it blamed Belgium for investigatingand prosecuting of child molestation attracting great inedia attention in the
allegations of international crimes that it was obliged to late 1990s), Belgium has amended its laws in order to
investigateandprosecute itself, improve victims' procedural rights, without discriminating
betweenBelgian and foreign victims. In doing so, Belgiuin
In addition,JudgeVan den WyngaertfindstheJudgment has also openedits courts to victims bringing chargesbased
highly unsatisfactory where itstatesthat immunitydoes not on war crimes and crimes against humanity committed
lead to implrnityoffoniter ~ForeigrMr inistei-s:accordingto
the Court, the liftingof full immunity,in this case, is only abroad. This new legislation has been applied, not only in
for ac:tscommitted prior or subsequent to his orher period the case against Mr. Yerodia butalso in cases against Mr.
of office and for acts committed duringthat periodof office Pinochet, Mr. Sharon, Mr. Rafzanjani, Mr. Hissen Habre,
in a private capacity. Whether war crimes and crimes Mr. Fidel Castro, etc. It would therefore be wrong to say
that the War Crimes Statute has been applied against a
against humanity fall intothis category the Coi~rtdoes not Congolesenationalin a discriminatoryway.
say. Judge Van den Wyngaertfinds it extremelyregrettable
that the InternationalCourtofJusticehas not,likethe House In the abstract, the chaos arguirzentmay be pertinent.
of Lords in the Pinochet case, qualified this statement. It This risk may exist, and the Courtcould have legitimately
could and indeed should have added that war crimesand warned against it in its Judgment without necessarily
crimes against humanity can never fall into this category. reaching the conclusion that a rule of customary
Some crimes under internationallaw (e.g., certain acts of internationallaw existsto the effect of grantingimmunityto
Foreign Ministers.Judge Van den Wyngaert observes that
genocide and of aggressio:n)can, for practical purposes,
only be committed with the means and mechanisms of a granting immunities to incumbent Foreign Ministers inay
State and as part of a State policy. They cannot, from that opeit the door to other sorts of abuse. It drainatically
perspective,be anythingother than "official" acts.Immunity increases the number of persons that enjoy international
should never apply to crimes under international law, iininunity from jurisdiction. Recognizing immunities for
neither before internationalcourtsnornationalcourts. other members of government is just one step further:in
present-day society, all cabinet members represent their
Kctims of such violations bringing legal action against countries in various meetings. If Foreign Ministers need
such persons in third States would face the obstacle oj'
immunity fromjurisdiction. Today, they may, by virtue of immunities to perforni their functions, why not grant
the ?pplication of the 1969 Special Missions Convention, immunities to otlier cabinet members as well? The
face the obstacle of immunity from executio~lwhile the InternationalCourtof Justice doesnot state this,but doesn't
Minister is onan official visit,but theywouldnot be barred this flow fromits reasoning leading to the conclusioiithat
from bringing an action altogether. Judge Van den Foreign Ministers are immune? The rationale for
assimilating Foreign Ministerswith diplomatic agents and
Wyngaertfeels that taking immunitiesfurtherthan this may Heads of State, which is at the centre of the Court's
even lead to coirjlictwith iiiterizationulhuinunriglrtsrules,
partic:ularlythe rightof accessto court, as appe.3rsfromthe reasoning,also exists for otlierMinisters who representthe
recent Al-Adsrmi case of the European Court of Human State officially, for example, Ministers of Education who
Righ1.s. have to attendUNESCOconferencesin New Yorkor other
Ministersreceivinglioiiorarydoctoratesabroad.Malepa'egovernmentsmay appoint persons to cabinet postsin order Intenlational Court of Justice, in its effort to close one ho.x
to shelter them from prosecutions on charges of ofPundora for fear of chaos and abuse, may have opened
internationalcrimes. another one: that of granting immunity and thus de facto
Judge Van den Wyngaert concludes by saying that the impunityto an increasingnumberof governlllentot'ficials.
Summary of the Judgment of 14 February 2002