Comments of the Democratic Republic of the Congo on Belgium's Reply to the Question put by Judge Koroma

CASE CONCERNING THE ARREST WARRANT OF 11 APRIL 2000
(D EMOCRATIC R EPUBLIC OF THE C ONGO v. BELGIUM )

Comments of the Democratic Republic of the Congo on the reply of the Kingdom of Belgium
to the question put by Judge Koroma

In virtue of its right under Article72 of the Rules of Court, the Democratic Republic of the
Congo wishes to make the following comments on the reply given by Belgium on 30 October 2001
to the question put at the hearing of 19 October 2001 by Judge Koroma (CR 2001/11, p. 19):

1. Judge Koroma’s question concerned the “purpose” of the disputed arrest warrant and not
its legal effect in Belgium or abroad, as is clearly evident from the language used by him:

“In the course of this afternoon’s session [counsel for Belgium] stated that this
case is not about the enforcement of the arre st warrant in Belgium, and the delegation

has maintained all along that it is not obligat ory on third States to enforce the warrant.
If then, . . . what was the purpose of the warrant?”

Belgium’s reply, which is entirely devoted to the legal effect of the warrant in Belgium or in
third States, does not answer the precise question put by the Judge. It simply repeats what was

already stated in the Counter-Memorial and in its or al argument with regard to the effect of the
warrant; it says nothing as to the warrant’s purpos e. Only point 6 of the Belgian reply appears to
address the question of the purpose of the arrest warrant; only to return immediately to assertions
regarding its effect in Belgium and abroad.

2. The Democratic Republic of the Congo confines itself to noting  as Belgium does not
dispute  that the warrant is fully enforceable without special formality in Belgium, and that, like
any unilateral public act of a State authority, it cannot produce any effects abroad or bind foreign
authorities without their agreement. The manner in which that consent is given does not matter.

The DRC would observe, however, that, in issuing and circulating an international arrest warrant, a
State manifests an intention to have the individualconcerned arrested at the place where he is to be
found, with a view to procuring his extradition.

3. Belgium’s contention that the disputed arrest warrant, as such, has no legal effect outside

Belgium implies that Belgium is not responsible for the effect given to the warrant abroad,
responsibility for implementation of the warrant being purportedly a matter solely for the foreign
State which gives effect to it. The Congo’s Memo rial and the oral argument of its counsel were
sufficiently critical of that approach to the matter for it to be unnecessary to address the point again
here. Equally, it is not for thCongo to address the hypothetical issue of joint authorship of an

unlawful act. The Democratic Republic of th e Congo does, however, consider it necessary to
preclude any confusion which might arise between the arguments concerning the legal effect of the
arrest warrant abroad and the question of any (co-)responsibility of the foreign authorities who give
effect to it.

4. At all events, the legal effect of the disputed arrest warrant, whether in Belgium or abroad,
is a question of domestic law, irrespective owhether or not that public act by Belgium accords -2-

with international law, as an act under that lega l order. The internationally wrongful act (violation
of the immunity from suit of the Congo’s Minister for Foreign Affairs) oc curred in this case as
soon as Belgium, through its investigating judge, sought to subject to the criminal jurisdiction of its
courts an individual who, by virtue of his hi gh representative office, must be totally immune
therefrom. It makes no difference whether or not the internal act whereby that desire to prosecute

is manifested produces binding legal effects abroad, or even within the responsible State itself. The
Democratic Republic of the Congo would again recall in this regard that an act without any binding
effect for third States under French law, namely th e opening of an investigation in a case, was held
by the French Court of Cassation to be contrary to the customary rule of the immunity of foreign
Heads of State (Qaddafi, Judgment of 13 March 2001).

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