ARREST WARRANT OF 11 APRIL 2000 (DEMOCRATIC REPUBLIC OF THE
CONGO v. BELGIUM) (MERITS)
Judgment of 14 Febiruary 2002
In its Judgment in the case concerning the Arrest
Warrant of 11 April 2000 (Democratic Republic of the
Congo v. Belgium), the Court found, by thirteen votes to
three, that the issue against Mr. Abdulaye Yerodia
Ndombasi of the arrest warrant of 11 April 2000, and its
international circulation, constituted violations of a legal
obligation of the Kingdom of Belgium towards the
Democratic Republic of the Congo, in that they failed to
respect the immunity from criminal jurisdiction and the
inviolability which the incumbent Minister for Foreign
Affairs of the Democratic Republic of the Congo enjoyed
under internationallaw.
It also found, 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 after having found, by 15 votes to 1, that it
had jurisdiction, that the Application of the Democratic
Republic of the Congo ("the Congo") was not without
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
those questions.
The Court was composed as follows: President
Guillaume; Vice-President Shi; Judges Oda, Ranjeva,
Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins,
Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh,
Buergenthal; Judges ad hoc Bula-Bula, Van den Wyngaert;
Registrar Couvreur.
*
* *
President Guillaume appended a separate opinion to the
Judgment of the Court; Judge Oda appended a dissenting
opinion to the Judgment of the Court; Judge Ranjeva
appended a declaration to the Judgment of the Court; Judge
Koroma appended a separate opinion to the Judgment of the
Court; Judges Higgins, Kooijmans and Buergenthal
appended a joint separate opinion to the Judgment of the
Court; Judge Rezek appended a separate opinion to the
Judgment of the Court; Judge Al-Khasawneh appended a
dissenting opinion to the Judgment of the Court; Judge ad
hoc Bula-Bula appended a separate opinion to the Judgment
of the Court; Judge ad hoc Van den Wyngaert appended a
dissentingopinion to the Judgment of the Court.
'The full text of the operative paragraph of the Judgment
reads as follows:
"78. For these reasons,
THE COURT,
Continued on next page
Summaries of Judgments, Advisory Opinions and Orders of the International Court of Justice
Not an official document
(1) (A) By fifteen votes to one,
Rejects the objections of the Kingdom of Belgium
relating to jurisdiction, mootness and admissibility;
FOR: President Guillaume; Vice-President Shi;
Judges Ranjeva, Herczegh, Fleischhauer, Koroma,
Vereshchetin, Higgins, Paya-Aranguren, ICooijmans,
Rezek, Al-Khasawneh, Buergenthal; Judges ad hoc
Bula-Bula, Van den Wyngaert;
AGAMST: Judge Oda;
(B)By fifteen votes to one,
Finds that it has jurisdiction to entertain the
Application filed by the Democratic Republic of the
Congo on 17October 2000;
FOR: President Guillaume; Vice-President Shi;
Judges Ranjeva, Herczegh, Fleischhauer, Koroma,
Vereshchetin, Higgins, Parra-Aranguren, ICooijnlans,
Rezek, Al-Khasawneh, Buergenthal; Judges ad hoc
Bula-Bula, Van den Wyngaert;
AGAINST: Judge Oda;
(C)By fifteen votes to one,
Finds that the Application of the 1)einocratic
Republic of the Congo is not without object and that
accordingly the case is not moot;
FOR: President Guillaume; Vice-President Shi;
Judges Ranjeva, Herczegh, Fleischhauer, Koroma,
Ve:reshchetin, Higgins, Parra-Aranguren, ICooijmans,
Rezek, Al-Khasawneh, Buergenthal; Judges ad hoc
Bu'la-Bula,Van den Wyngaert;
AGAINST: Judge Oda;
(D)By fifteen votes to one,
Fitids that the Application of the 1)emocratic
Republic of the Congo is admissible;
FOR: President Guillaume; Vice-President Shi;
Judlges Ranjeva, Herczegh. Fleischhauer, Koroma,
Vereshchetin, Higgins, Parra-Aranguren, Kooijmans,
Rezek, Al-Khasawneh, Buergenthal; Judges ad hoc
Bu:la-Bula, Van den Wyngaert;
AGAINST: Judge Oda;
(2) By thirteen votes to three,
Finds that the issue against Mr. Abdulaye Yerodia
Ndombasi of the arrest warrant of 11April 2000, and its
international circulation, constituted violation:<of a legal
obligation of the Kingd.om of Belgium towards the
Democratic Republic of the Congo, in that they failed to
respect the immunity froin criminal jurisdiction and the
inviolability which the ir~cumbentMinister for Foreign
Afiirs of the Democriatic Republic of the Congo
enjoyed under international law;
FOR: President Guillaume; Vice-President Shi;
Judlges Ranjeva, Hercniegh, Fleischhauer, Koroma,
Vereshchetin, Higgins, Parra-Aranguren, ILooijmans,
Rezek, Buergenthal; Judge ad hoc Bula-Bula;
AGAINST: Judges Oda, Al-Khasawneh; Judge ad
hoc Van den Wyngaert;
(3) By ten votes to six,
Finds that the Kingdom of Belgium must, by means
of its own choosing, cancel the arrest warrant of 11April
2000 and so inforn~the authorities to whom that warrant
was circulated;
FOR: President Guillaume; Vice-President Shi;
Judges Ranjeva, Herczegh, Fleischhauer, Koroma,
Vereshchetin, Parra-Aranguren. Rezek; Judge ad hoc
Bula-Bula;
AGAINST: Judges Oda, Higgins, Kooijmans, AlKhasawneh,
Buergenthal; Judge ad hoc Van den
Wyngaert."
History of the proceedings und sz~bnlissiorisof the
Parties
(paras. 1-12)
The Court recalls that on 17 October 2000 the
Democratic Republic of the Congo (hereinafter "the
Congo") filed in the Registry of the Court an Application
instituting proceedings against the Kingdom of Belgium
(hereinafter "Belgiunl") in respect of a dispute concerning
an "international arrest warrant issued on 11 April 2000 by a
Belgian investigating judge ... against the Minister for
Foreign Affairs in office of the Democratic Republic of the
Congo, Mr. Abdulaye Yerodia Ndombasi".
In that Application the Congo contended that Belgium
had violated the "principle that a State may not exercise its
authority on the territory of another State", the "principle of
sovereign equality among all Members of the United
Nations, as laid down in Article 2, paragraph 1, of the
Charter of the United Nations", as well as "the diplomatic
immunity of the Minister for Foreign Affairs of a sovereign
State, as recognized by the jurisprudence of the Court and
following from Article 41, paragraph 2, of the Vienna
Convention of 18 April 1961 on Diplomatic Relations". In
order to found the Court's jurisdiction the Congo invoked in
the aforementioned Application the fact that "Belgium ha[d]
accepted thejurisdiction of the Court and, insofar as inay be
required, the [aforementioned] Application signifie[d]
acceptance of that jurisdiction by the Democratic Republic
of the Congo".
The Court further recalls that on the same day, the
Congo also filed a request for the indication of a provisional
measure; and that by an Order of 8 Deceinber 2000 the
Court, on the one hand, rejected Belgium's request that the
case be removed from the List and, on the other, held that
the circumstances, as they then presented themselves to the
Court, were not such as to require the exercise of its power
under Article 41 of the Statute to indicate provisional
measures. In the same Order, the Court also held that "it
[was] desirable that the issues before the Court should be
determined as soon as possible" and that "it [was] therefore
appropriate to ensure that a decision on the Congo's
Application be reached with all expedition".
By Order of 13 Deceinber 2000, the President of the
Court, taking account of the agreement of the Parties as
expressed at a meeting held with their Agents on 8
December 2000, fixed time limits for the filing of a
Memorial by the Congo and of a Counter-Memorial by
Belgium, addressing both issues of jurisdiction and
admissibility and the merits. After the .pleadings had been
filed within the time limits as subsequentlyextended, public
hearings were held from 15 to 19October 2001.
At the oral proceedings, the following final submissions
were presented by the Parties:
On behalf of the Gover-t~ttientof tlie Congo,
"In light of the facts and arguments set out during the
written and oral proceedings, the Government of the
Democratic Republic of the Congo requests the Court to
adjudge and declare that:
1. by issuing and internationally circulating the
arrest warrant of 11 April 2000 against Mr. Abdulaye
Yerodia Ndombasi, Belgium cominitted a violation in
regard to the Democratic Republic of the Congo of the
rule of customary international law concerning the
absolute inviolability and immunity from criiniilal
process of incumbent foreign ministers; in so doing, it
violated the principle of sovereign equality among
States;
2. a formal finding by the Court of the unlawfulness
of that act constitutesan appropriate form of satisfaction,
providing reparation for the consequent moral injury to
the DemocraticRepublic of the Congo;
3. the violations of international law underlying the
issue and international circulation of the arrest warrant
of 11 April 2000 preclude any State, including Belgium,
from executing it;
4. Belgium shall be required to recall and cancel the
arrest warrant of 11April 2000 and to inform the foreign
authorities to whom the warrant was circulated that
Belgium renounces its request for their cooperation in
executingthe unlawful warrant."
On behalf of the Goverizinentof Belgilmi,
"For the reasons stated in the Counter-Memorial of
Belgium and in its oral subn~issions,Belgium requests
the Court, as a preliminary matter, to adjudge and
declare that the Court lacks jurisdiction in this case
andlor that the Application by the Democratic Republic
of the Congo against Belgium is inadmissible.
If, contrary to the submissions of Belgium with
regard to the Court's jurisdiction and the admissibilityof
the Application, the Court concludes that it does have
jurisdiction in this case and that the Application by the
Democratic Republic of the Congo is admissible,
Belgium requests the Court to reject the submissions of
the Democratic Republic of the Congo on the merits of
the case and to dismiss the Application."
Background to the case
(paras. 13-21)
On 11 April 2000 an investigatingjudge of the Brussels
tribunal de prernizre iiistunce issued "an internationalarrest
warrant iii abseiltin" against Mr. Abdulaye Yerodia
Ndombasi, charging him, as perpetrator or co-perpetrator,
with offences constituting grave breaches of the Geneva
Conventions of 1949 and of the Additional Protocols
themto, and with crimes against humanity. The arrest
warrant was circulated internationallythrough Intel-pol.
At the time when the arrest warrant was issued Mr.
Yerodia was the Minister for Foreign Affairs of the Congo.
The crimes with which Mr. Yerodia was charged were
punishable in Belgium under the Law of 16 June 1993
"concerning the Punishment of Grave Breaches of the
International Geneva Conventionsof 12August 1949and of
Protocols I and I1 of 8 June 1977 Additional Thereto", as
amended by the Law of 19 February 1999 "concerning the
Punishment of Serious Violations of International
Humanitarian Law" (hereinafter referred to as the "Belgian
Law"').
C)n 17 October 2000, the Congo instituted proceedings
before the International Court of Justice, requesting the
Court "to declare that the Kingdom of Belgium shall annul
the international arrest warrant -issued on 11 April 2000".
After the proceedings were instituted, Mr. Yerodia ceased to
hold office as Minister for Foreign Affairs, and
subsequentlyceased to hold any ministerialoffice.
In its Application instituting proceedings, the Congo
relied on two separate legal grounds. First, it claimed that
"[tlhe ~lniversaljurisdiction that the Belgian State attributes
to itself under Article 7 of the Law in question" constituted
a "[v]iolation of the principle that a State may not exercise
its authority on the territory of another State and of the
principle of sovereign equality anlong all Members of the
United Nations". Secondly, it claimed that "[tlhe nonrecognition,
on the basis of Article 5 ...of the Belgian Law,
of the immunity of a Minister for Foreign Affairs in office"
constituted a "[v]iolation of the diplomatic immunity of the
Minister for Foreign Affairs of a sovereign State". However,
the (Zongo's Memorial and its final submissions refer only
to a violation "in regard to the ... Congo of the rule of
customary international law concerning the absolute
inviolability and immunity from criminal process of
incumbentforeign ministers".
Objections of Belgizcltz i-elatingtojtrrisdictiori, rnootness
arid adinissibility
(paras. 22-44)
Belgium kfirst objection
(paras. 23-28)
The Court begins by considering the first objection
presented by Belgium, which reads as follows:
"That, in the light of the fact that Mr. Yerodia Ndombasi
i!; no longer either Minister for Foreign Affairs of the
[Congo] or a minister occupying any other position in
the ... Government [of the Congo], there is no longer a
'legal dispute' between the Parties within the meaning of
this term in the Optional Clause Declarations of the
Parties and that the Court accordingly lacks jurisdiction
in this case."
The Court recalls that, according to its settled
jurispr~~dence,itsjurisdiction must be determined at the time
that the act instituting proceedings was filed. Thus, if the
Court bas jurisdiction on the date the case is referred to it, it
continues to do so regardless of subsequent events. Such
events might lead to a finding that an appli1:ation has
subsequentlybecome moot and to a decision not to proceed
tojudgment on the merits, but they cannot deprive the Court
ofjurisdiction.
The Court then finds that, on the date that the Congo's
Applicatioil instituting these :proceedingswas filed, each of
the Parties was bound by a declaration of acc1:ptance of
compu:lsoryjurisdiction, filed in accordancewith Article 36,
paragraph 2, of the Statute of the Court: Be1g;iunl by a
declaration of 17 June 1958 a.nd the Congo by a declaration
of 8 :February 1989. Those declarations contained no
reservation applicable to the present case. The Ccurt further
observes that it is, moreover, not contested by the Parties
that at the material time there was a legal dispute between
them concerning the international lawhlness of the arrest
warrant of 11 April 2000 and the consequencestc)be drawn
if the warrant was unlawful. The Court accordingly
concludes that at the time that it was seized of the case it
had jurisdiction to deal with. it, and that it still has such
jurisdiction, and that Belgium's first objec1.ion must
therefore be rejected.
Belgium k second objection
(paras. 29-32)
The second objection presented by Belgium is the
following:
"That in the light of the fact that Mr. Yerodia Ndombasi
is no longer either Minister for Foreign Affiirs of the
[Congo] or a minister occupying any other position in
the ... Government [of the Congo], the case is now
without object and the Court should accordingly decline
to proceed to judgment on the merits of the case."
The Court notes that it has already affirmed on a number
of occasions that events occurring subsequentto the filing of
an application may render the application without object
such that the Court is not called upon to give a decision
thereon. However, the Court considers that this is not such a
case. 11: finds that the change which has occurred in the
situation of Mr. Yerodia has not in fact put an end to the
dispute between the Parties and has not deprived the
Application of its object. The Congo argues that the arrest
warrant issued by the Belgian judicial authorities against
Mr. Yerodia was and remains unlawful. It asks the Court to
hold that the warrant is unlawful, thus providing redress for
the moral injury which the warrant allegedly caused to it.
The Congo also continues to' seek the cancellation of the
warrant. For its part, Belgium contends that it did not act in
violation of international law and it disputes the Congo's
submis:;ions. In the view of the Court, it follows from the
foregoing that the Application of the Congo is not now
without object and that accoirdingly the case is not moot.
Belgium's second objection is accordinglyrejected.
Belgiztpn k third objection
(paras. 33-36)
The third Belgian objection is put as follows:
"That the case as it now stands is materially different to
that set out in the [Congol's Application instituting
proceedings and that the Court accordingly lacks
jurisdiction in the case and/or that the application is
inadmissible."
The Court notes that, in accordance with settled
jurisprudence, it "cannot, in principle, allow a dispute
brought before it by application to be transformed by
amendments in the submissions into another dispute which
is different in character". However, the Court considers that
in the present case the facts underlying the Applicationhave
not changed in a way that produced such a transformation in
the dispute brought before it. The question submitted to the
Court for decision remains whether the issue and circulation
of the arrest warrant by the Belgian judicial authorities
against a person who was at that time the Minister for
Foreign Affairs of the Congo were contrary to international
law.
The Congo's final submissions arise "directly out of the
question which is the subject matter of that Application". In
these circumstances, the Court considers that Belgium
cannot validly maintain that the dispute brought before the
Court was transformed in a way that affected its ability to
prepare its defence, or that the requirements of the sound
administration of justice were infringed. Belgium's third
objectionis accordinglyrejected.
Belgium :Y fourth objection
(paras. 37-40)
The fourth Belgian objectionreads as follows:
"That, in the light of the new circumstances concerning
Mr. Yerodia Ndombasi, the case has assumed the
character of an action of diplomaticprotection but one in
which the individual being protected has failed to
exhaust local remedies, and that the Court accordingly
lacks jurisdiction in the case and/or that the application
is inadmissible."
The Court notes that the Congo has never sought to
invoke before it Mr. Yerodia's personal rights. It considers
.that, despite the change in professional situation of Mr.
Yerodia, the character of the dispute submitted to the Court
by means of the Application has not changed: the dispute
,stillconcerns the lawhlness of the arrest warrant issued on
11April 2000 against a person who was at the time Minister
for Foreign Affairs of the Congo, and the question whether
.the rights of the Congo have or have not been violated by
.that warrant. The Court finds that, as the Congo is not acting
:inthe context of protection of one of its nationals, Belgium
cannot rely upon the rules relating to the exhaustion of local
remedies.
In any event, the Court recalls that an objectionbased on
mon-exhaustion of local remedies relates to the admissibility
of the application. Under settled jurisprudence, the critical
date for determining the admissibility of an application is
the date on which it is filed. Belgium accepts that, on the
date on which the Coilgo filed the Application instituting
proceedings, the Congo had a direct legal interest in the
matter, and was asserting a claim in its own name.
Belgium's fourth objection is accordinglyrejected.
Belgium b subsidiary ctrgurrzeilt concei-rzingthe
rton ultra petita rule
(paras. 4 1-43)
As a subsidiary argument,Belgium further contends that
"[iln the event that the Court decides that it does have
jurisdiction in this case and that the application is
admissible, ...the izon ultra petitu rule operates to limit the
jurisdiction of the Court to those issues that are the subject
of the [Congol's final submissions".
Belgium points out that the Congo initially advanced a
twofold argument, based, on the one hand, on the Belgian
judge's lack of jurisdiction and, on the other, on the
immunity from jurisdiction enjoyed by its Minister for
Foreign Affairs. According to Belgium, the Congo now
confines itself to arguing the latter point, and the Court
consequently cannot rule on the issue of universal
jurisdiction in any decision it renders on the merits of the
case.
The Court recalls the well-established principle that "it
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
abstain from deciding points not included in those
submissions". The Court observes that, while it is thus not
entitled to decide upon questions not asked of it, the nor1
ultrapetita rule nonetheless cannot preclude the Court fro111
addressing certain legal points in its reasoning. Thus in the
present case the Court 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 internationallaw
governing the jurisdiction of national courts. This does not
mean, however, that the Court may not deal with certain
aspects of that question in the reasoning of its Judgment,
should it deem this necessary or desirable.
Merits oftlie case
(paras. 45-71)
As indicated above, in its Application instituting these
proceedings, the Congo originally challenged the legality of
the arrest warrant of 11April 2000 on two separate grounds:
on the one hand, Belgium's claim to exercise a universal
jurisdiction and, on the other, the alleged violation of the
immunities of the Minister for Foreign Affairs of the Congo
then in office. However, in its submissions in its Memorial,
and in its final submissions at the close of the oral
proceedings, the Congo invokesonly the latter ground.
The Court observes that, as a matter of logic, the second
ground should be addressed only once there has been a
determination in respect of the first, since it is only where a
State hasjurisdiction under international law in relation to a
particular matter that there can be any question of
immunities in regard to the exercise of that jurisdiction.
However, in the present case, and in view of the final form
of the Congo's submissions, the Court first addresses the
question whether, assunling that it had jurisdiction under
international law to issue and circulate the arrest warrant of
11April 2000, Belgium in so doing violated the inlnlunities
of the then Minister for Foreign Affairs of the Congo.
Iinnttliiity and inviolability of ait inc~irnbentForeign
Minister in gerteral
para.^. 47-55)
The Court observes at the outset that in international law
it is firnlly established that, as also diplomatic and consular
agents. certain holders of high-ranking office in a State,
such as the Head of State, Head of Governmetit and
Minister for Foreign Affairs, enjoy immunities from
juriscliction in other States, both civil and criminal. For the
purposes of the present case, it is only the immunity from
criminal jurisdiction and the inviolability of an incumbent
Minister for Foreign Affairs that fall for the Court to
consider.
The Coui-t notes that a certain number of treaty
instni~nentswere cited by tlie Parties in this regard,
including the Vienna Convention on Diplomatic Relatioils
of 18 April 1961 and the New York Conveiltion on Special
Missions of 8 December 1969. The Court finds that these
Conventions provide useful guidance on cei-tain aspects of
the questioil of immunities, but that they do not contain any
provision specifically defining the immunities enjoyed by
Ministers for Foreign Affairs. It is consequently on the basis
of customary international law that the Court must decide
the questions relating to the immunities of such Ministers
raised in the present case.
In customary international law, the inimunities 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 order
to determine the extent of these immunities, tlie Court illust
therefore first consider the nature of the functions exercised
by a Minister for Foreign Affairs. After an examination of
those: functions. the Court coilcludes that they are such that,
throughout the duration of his or her office, a Minister for
Forei.gn Affairs when abroad enjoys full immunity from
criminal jurisdiction and inviolability. That iminunity and
that inviolability protect the individual concerned against
any act of authority of another State which would hinder
him or her in the perfomlance of his or her duties.
The Court finds that in this respect no distinction call be
drawn between acts perfonned by a Minister for Foreign
Affairs in an "official" capacity and those claimed to have
been perfonlled in a "private capacity", or, for that matter,
between acts performed before the person conceined
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. Furthennore,
even the mere risk that, by travelling to or transiting another
State, a Minister for Foreign Affairs might be exposing
liimsel,f or hcrself to legal proceedings coulc. deter the
Minister froin travelling i1lte:matiollallywhen required to do
so for the puiyoses of tlie performance of his or her official
functions.
The Court then addresses Belgium's argnlnent that
immunities accorded to incumbent Ministers for Foreign
Affair;<can in no case protect: them where they ar: suspected
of having cominitted wa:r crimes or crimes against
humar~ity.
The Court states that it has carefully examined State
practice, including national legislation and those few
decisions of national higher courts, such as tho House of
Lords in the United Kingdom or the French Court of
Cassation, and that it has been unable to deduct: froin this
practic:e that there exists under customary international law
any form of exception to the rule accordiilg inlll-unity fromcriminal
jurisdiction and inviolability to incumbent
Ministers for Foreign Affairs, where they are suspected of
having committed war crimr:~or crimes against humanity.
The Court adds that it has also exa~niiledthe rules
concerning the immunity or criminal responsibility of
persons having an official c:apacity contained in the legal
instrurnents creating international criminal tribunals, and
which are specifically applicable to the latter (see Charter of
the Intenlational Military Tribunal of Nureniberg, Art. 7;
Charter of the Inteniational Military Tribunal of 'Tokyo. Art.
6; Statute of the Inteinational Criminal Tribunal for the
former Yugoslavia. Art. 7, para. 2; Statute of the
International Cri~niiialTribunal for Rwanda, Art. 6, para. 2;
Statute: of the International Criiiiiiial Court, Art. 27), and
that it finds that these rule:; likewise do not enable it to
conclude tliat any such exception exists in customaly
interiiational law in regard l:o national courts. Finally, the
Court observes tliat none of the decisioils of tlie Yuremberg
and Tokyo international rnilitary tribunals, or of the
International Criminal Tribunal ibr the former Yugoslavia,
cited by Belgium deal with the question of the iin~nunities
of incumbent Ministers for Foreign Affairs before national
courts where they are accu:jed of having cotninitted war
crimes or crimes against hmnanity. The Court a.ccordingly
notes that those decisions are in no way at variance with the
findings it has reached above. The Co111.t accordingly does
not accept Belgium's argument in this regard.
It further notes that the rules governing the jurisdiction
of national courts must be carefully distinguished from
those governing jurisdictional immu~iities:jurisdiction does
not iliiply absence of immunity, while absencc 01' immunity
does not imply jurisdiction.
Thus. although various international conventions on the
prevention and puliishment of certain serious crinles impose
on States obligations of prosecution or extradition, thereby
requiring them to extend their criinilial jurisdiction, such
extension ofjurisdiction in no way affects ilniiluritics under
customary international law, including those of' Ministers
for Foreign Affairs. The Court enlphasizes, however, that
the inznlzrriig from jurisdiction enjoyed by incumbent
Ministers for Foreign Affairs does not mean tliat they enjoy
inzpuniQ in respect of any crimes they might have
committed, irrespective of their gravity. Jurisdictional
immunity may well bar prosecution for a certain period or
for certain offences; it cannot exonerate the person to whom
it applies from all criminal responsibility. Accordingly, the
immunities enjoyed under international law by an
incumbent or fornler Minister for Foreign Affairs do not
represent a bar to criminal prosecution in certain
circumstances. The Court refers to circumstances where
such persons are tried in their own countries, where the
State which they represent or have represented decides to
waive that immunity, where such persons no longer enjoy
all of the i~nmunitiesaccorded by international law in other
States after ceasing to hold the office of Minister for
Foreign Affairs, and whcre such persons are subject to
criminal proceedings before certain international criminal
courts, where they havejurisdiction.
The issue urtd circlrlatiorz of the arr-estwarr-ant of
11April 2000
(paras. 62-71)
Given the conclusions it has reached above concerning
the nature and scope of the rules goveniing the immunity
fro~ncriininal jurisdiction enjoyed by incumbent Ministers
for Foreign Affairs, tlie Court then considers whether in the
present case the issue of the arrest warrant of 11 April 2000
and its international circulation violated those rules. The
Court recalls in this regard that the Congo requests it, in its
first final submission, to ad-judgeand declare tliat:
"[Bly issuing and illternationally circulating the arrest
warrant of 11 April 2000 against Mr. Abdulaye Yerodia
Ndombasi, Belgium committed a violation in regard to
the Democratic Republic of the Congo of tlie rule of
customa~yinteriiational law concer~iingthe absolute
inviolability and imnlunity fro111 criminal process of
incumbent foreign ministers; in so doing. it violated the
principle of sovereign equality among States."
After examining tlie terms of the arrest warrant, the
Court notes that its isszrartce, as such, represents an act by
the Belgian judicial authorities intended to enable the arrest
on Belgian territory of an incumbent Minister for Foreign
Affairs on charges of war crimes and crimes against
humanity. The fact that the warrant is enforceable is clearly
apparent from tlie order given in it to "all bailiffs and agents
of public authority ... to execute this arrest warrant" and
from the assertion in the warrant that "the position of
Minister for Foreign Affairs currently held by the accused
does not entail iinrllunity from jurisdiction and
enforcement". The Court notes that the warrant did
adn~ittedlymake an exception for the case of an official visit
by Mr. Yerodia to Belgium, and that Mr. Yerodia never
suffered arrest in Belgium. The Court considers itself
bound, however, to find that, given the nature and purpose
of the warrant. its mere issue violated tlie immunity which
Mr. Yerodia enjoyed as the Congo's incumbent Minister for
Foreign Affairs. The Court accordingly concludes that the
issue of the warrant constihlted a violation of an obligation
of Belgium towards the Congo, in that it failed to respect the
immunity of that Minister and, inore particularly, infringed
the immunity from criminaljurisdiction and the inviolability
then enjoyedby him under iiiternationallaw.
The Court also notes that Belgium admits that the
purpose of the international circ~4latioizof the disputed
arrest warrant was "to establish a legal basis for the arrest of.
Mr. Yerodia ... abroad and his subsequent extradition to
Belgium". The Court finds that, as in the case of 'the
warrant's issue, its international circulation from June 2000
by the Belgian authorities, given its nature and purpose,
effectively infringed Mr. Yerodia's immunity as the
Congo's incumbent Minister for Foreign Affairs and was
furthermore liable to affect the Congo's conduct of its
international relations. The Court concludes that the
circulation of the warrant, whether or not it significantly
interfered with Mr. Yerodia's diplomatic activity,
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, infringed the immunity from criminal
jurisdiction and inviolability then enjoyed by him under
internationallaw.
Remedies
(paras. 72-77)
The Court then addresses the issue of the remedies
sought by the Congo on account of Belgium's violation of
the above-mentioned rules of international law. (Cf. the
second, third and fourth submissions of the Congo
reproduced above.)
The Court observes that it has already concluded that the
issue and circulation of the arrest warrant of 11 April 2000
by the Belgian authorities failed to respect the immunity of
the incumbent Minister for Foreign Affairs of tlie Congo
and, more particularly, infringed the immunity from
criminal jurisdiction and the inviolability then enjoyed by
Mr. Yerodia under international law. Those acts engaged
Belgium's international responsibility. The Court considers
that the findings so reached by it constitute a form of
satisfaction which will make good the moral injury
complainedof by the Congo.
However, the Court goes on to observe that, as the
Pernlanent Court of International Justice stated in its
Judgment of 13 September 1928 in the case concerning the
Fnctorv at Choli-dw:
"[tlhe essential principle contained in the actual notion
of an illegal act - a principle which seems to be
established by international practice and in particular by
the decisions of arbitral tribuiials - is that reparation
must, as far as possible. wipe out all the consequencesof
the illegal act and re-establish the situation which would,
in all probability, have existed if that act had not been
committed" (P.C.I.J., Series A, No. 17,p. 47).
The Court finds that, in the present case, "the situation
which would, in all probability, have existed if [the illegal
act] had not been committed" cannot be re-established
merely by a finding by the Court that the arrest warrant was
unlawful under international law. The warrant is still extant,
and remains unlawful, notwithstailding the fact that Mr.
Yerodia has ceased to be Minister for Foreign Affairs. The
Court accordingly considers that Belgiuni must, by means
of its own choosing, cancel the warrant in question and so
infonn the authorities to whoin it was circulated.
The Court sees no need for any further remedy: in
particular, the Court points out that it cannot. in a judgment
ruling on a dispute between the Coiigo and Belgium.
indicate what that judgment's implications might be for
third States, and the Court finds that it cannot therefore
accept the Congo's submissionson this point.
Separate opinion of Judge Gzlillaume,President
In his separate opinion, President Guillaume subscribes
to the Judgment of the Court and sets out his position on one
question which the Judgment had not addressed: whether
the Belgian judge has jurisdiction to issue an international
arrest warrant against Mr. Yerodia Ndoinbasi.
HI: recalls that the primary aim of the criminal law is to
enable punishment in each country of offences coinlnitted in
the national territory. He adds that classic international law
does not exclude a State's power in some cases to exercise
its judicial jurisdiction over offences committed abroad, but
he emphasizes that the exercise of that juiisdiction is not
without its limits. as the Permanent Court stated in the
"Lotus"case as long ago as 1927.
He continues by inaking it clear that, under the law as
classically formulated,a State normally hasjurisdiction over
an offence committed abroad only if the offender, or at the
very least the victim, has the nationality of that State, or if
the crime threatens its internal or external security.
Additionally, States may exercisejurisdiction in cases of
piracy and in the situation of subsidiary universal
jurisdiction provided for by various conveiitions if the
offender is present on their territoiy. However, apart from
these cases, international law does not accept universal
jurisdiction: still less does it accept universal jurisdiction in
absentia.
Thus, President Guillaume concludes that, if the Court
had addressed these questions, it ought to have found that
the Belgian judge was wrong in holding himself competent
to prosecute Mr. Yerodia Ndombasi by relying on a
universaljurisdiction incompatiblewith internationallaw.
Dissenting opinion of Judge Oda
Judge Oda voted against all of the provisions of the
operative part of the Court's Judgment in this case. In his
dissenting opinion, Judge Oda stresses that the Court should
have declared ex officio that it lacked jurisdiction to
entertain the Congo's Application of 17 October 2000
because there was at the time no legal dispute between the
Parties of tlie kind required under Article 36, paragraph 2, of
the Court's Statute. In his dissenting opinion, Judge Oda
reiterates tlie arguments he made in his declaration
appended to the Court's Order of 8 December 2000
concerning the request for indication of preliminaly
nleasnres, and he addresses four main points.
First, Judge Oda stresses tliat a belief by the Congo that
the 1993 Belgian Law violated internatio~iallaw is not
enough to create a legal dispute between the Parties. In its
Application, the Congo asserted that Belgium's 1993 Law,
as amended in 1999, concerning the Punislinieiii:of Serious
Violations of Iliternational Humanitarian Law ("the 1993
Belgian Law"). contravenes international law. The Congo
also argued that Belgium's prosecution of Mr. Yerodia,
Foreign Minister of the Congo, violated the diplomatic
imn~u~nitygranted under international law to Ministers for
Foreign Affairs. This argument was not support~:d by proof
that Mr. Yerodia himself had suffered or would suffer
anything more than some moral injury. Because of this, the
case did not concern a legur' dispute, but instead amounted
to a request froni the Congo for the Court to render a legal
opittion on the lawfulness of the 1993 Belgian Law and
actions taken under it. Judge Oda expresses gr-~.veconcern
that the Court's finding that there was a legal dispute could
lead to an excessive nunibel: of cases being refi:rred to the
Court without any real injury being evidenced, a state of
affairs which could cause States to withdraw their
acceptance of the Court's co~npulsoryjurisdiction.
Second, Judge Oda believes that the Congo changed the
subject matter of the proceediiigs between the time it filed
its Al~plicationof 17 October 2000 and subiiiitted its
Memcaial on 15 May 2001. The questions the Congo
originally raised - whether a State has extraterritorial
Judge Oda also stresses his belief that the issuance and
circulation of an arrest warrant, without any action
concerning the warrant by third States, does not have any
legal impact. Regarding diplomatic immunity, Judge Oda
divides the question presented by this case into two main
issues: first, whether in principle a Foreign Minister is
entitled to the same immunity as diplomatic agents; and
second, whetlier diplomatic immunity can be claimed in
respect of serious breaches of humanitarian law. The Court,
he indicates, has not sufficiently answered these questions,
and should not have made the broad finding it appears to
make, according Ministers for Foreign Affairs absolute
im~nunity.
Finally, Judge Oda believes that there is no practical
significance to the Court's order that Belgium cancel the
arrest warrant of April 2000, since Belgium can presumably
issue a new arrest warrant against Mr. Yerodia as a,fot-tiler
Minister for Foreign Affairs. If the Court believes that the
sovereign dignity of the Congo was violated in 2000, the
harm done cannot be remedied by the cancellation of the
arrest warrant; the only remedy would be an apology by
Belgium. For his part, Judge Oda does not believe that the
Congo suffered any injury, since no action was ever taken
against Mr. Yerodia pursuant to the warrant. In closing,
Judge Oda states tliat lie finds the case "not only unripe for
adjudication at this time but also findanlentally
inappropriatefor the Court's consideration".
Declaration o fJudge Rarlievajurisdiction
over crimes anounting to serious violations of
humar~itarianlaw regardless of where they were committed In his declaration, Judge Ranjeva expresses agreement
and by whom, and whetlier a Foreign Minister is exempt with both the operative part and the Court's approach in
from :;uch jurisdiction - 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 Minister and the immunities jurisdiction in nbseiztia by the organs of the Belgian State.
of incumbent Foreign Minislers. This transfornliition of the The withdrawal of the Congo's original first sub~nission
basic issues of tlie case, Judge Oda believes, dilj not come from its final submissions resulted in excluding universal
within the scope of the right tlie Congo reserved in its jurisdiction from the scope of the claims.
Application "to argue further the grountls of its This change in the Applicant's litigation strategy
~ ~ ~ l i ~ ~ t i ~ ~ - .~~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:Fore, that the Court .was correct heinous international crimes. The author ~ointsout that
to reject ~ ~ l ~ i ~ ~ ~ ~ ~objections relating to y,.isdiction, customary international law, as codified by the law of the
mootness and admissibility". sea conventions,recognizes one 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,
that the Congo appears to have abandoned it:; assertion, progressing as it has from the affi~mationof the obligation
made in its Application, that the 1993 Belgian Law was to prevent and punish, without however establishing
itself contrary to tlie principle of sovereign equality under jurisdiction to punish, towards the enshrinement in treatyinternational
law. In this regard, Judge Oda finds that made law of the principle nzrtjzrdicare arrt deder-e.
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,
wisely refrained from finding issue, since the law is to be unreasonable given the facts and circumstances of the
not sufficiently developed in this area, and because the case on which the Permanent Court of International Justice
c ~ ~ ~ . ~was 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 punishment and prevention called for by international
law and without it being necessary to condemn the Belgian
Law, it would have been difficult under current positive law
not to uphold the Congo's original first submission.
Separate opiilion of Judge Koroiiza
In his separate opinion, Judge Koroma stated that the
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 long as the Judgment provides a
complete answer to the submissions. On the other hand, in
the context of the present case, the Court decided not to
engage in a legal discourse or exegesis to reach its
conclusion, since it did not consider it necessary, interesting
though it may have been. The Judgment cannot therefore be
juridically queried on this ground.
Judge Koroma maintained that the Court was entitled, in
responding to submissions, to take as its point of departure
the determination of whether international law permits an
exemption of immunity from the jurisdiction of an
incumbent Minister for Foreign Affairs without delving into
the issue of universal jurisdiction, particularly as both
Parties had relinquished the issue and had asked the Court to
pronounce on it only insofar as it relates to the question of
the immunity of a Foreign Minister in office. Thus, in his
view, and despite appearances to the contrary, what the
Court is called upon to decide is not which of the principles
of either immunity or universal jurisdiction is pre-eminent,
but rather whether the issue and circulation of the warrant
violated the immunity of a Foreign Minister in office. Judge
Koroma pointed out that jurisdiction and immunity are
different concepts.
According to him, the method chosen by the Court is
also justified on practical grounds; in that the arrest warrant
had been issued in Belgium on the basis of Belgian law, it
was therefore appropriate for the Court to determine the
impact of that law on an incumbent Foreign Minister. The
Court has ruled that while Belgium is entitled to initiate
criminal proceedings against anyone in its jurisdiction, this
did not extend to ail incumbent Foreign Minister of a
foreign State who is immune from such jurisdiction. In the
Judge's opinion, the Judgment should be seen as responding
to that issue, the paramount legal justification for which is
that a Foreign Minister's immunity is not only of functional
necessity but increasinglynowadays he or she represents the
State, even though this position is not assimilable to that of
Head of State. However, in the Judge's view, the Judgment
should not be considered either as a validation or a rejection
of the principle of universal jurisdiction, particularly when
no such submissionwas before the Court.
On the other hand, the Judge stated that, by issuing and
circulating the warrant, Belgium had demonstrated how
seriously it took its international obligation to combat
internationalcrimes,yet it is unfortunate that the wrong case
would appear to have been chosen to do this. It is his
opinion that today, together witli piracy, universal
jurisdiction is available for certain crimes such as war
crimes, crimes against humanity including the slave trade
and genocide.
Fynally, on the issue of remedies, Judge Koroma
considered that the Court's instruction to Belgium to cancel
the arrest warrant should repair the moral injury suffered by
the Clongo and restore the situation statlrs quo ante before
the warrant was issued and circulated. This should restore
legal peace between the Parties.
Joint separate opinion ofJudges Higgirzs,
Kooijmaiis and Btrergeizthal
Irl their joint separate opinion, Judges Higgins,
Kooijmans and Buergenthal agree with the Court's holding
on jurisdiction and admissibility, and with much of what the
Court has to say regarding immunities of incumbent Foreign
Ministers. They consider, however, that the Court should
also have addressed the issue of universal jurisdiction since
the issue of immunities depends, conceptually, upon a preexistingjurisdiction.
The ultrapetita rule bars only a ruling
on universaljurisdiction in the dispositlfi not its elucidation.
Such elucidation was necessary because immunities and
universal jurisdiction are closely interrelated in this case and
bear on the maintenance of stability in international
relations without perpetuating impunity for international
crimes.
Turning to universal jurisdiction, Judges Higgins,
Kooi.jmans and Buergenthal ask whether States are entitled
to exercise suchjurisdiction over persons accused of serious
internationalcrimes who have no connection with the forum
State and are not present in the State's territory. Although
they find no established practice indicating the exercise of
suchjurisdiction, neither do they find evidence of an opinio
juris that deems it illegal.
Moreover, the growing number of multilateral treaties
for the punishment of serious internatio~ialcrimes tend to be
drafted with great care so as not to preclude the exercise of
universal jurisdiction by national courts in these type of
cases. Thus, while there may be no general rule specifically
authorizing the right to exercise u~iiversaljurisdiction, the
absence of a prohibitive rule and the growing international
consensus on the need to punish crimes regarded as most
heinous by the international community, indicate that the
warrant for the arrest of Mr. Yerodia did not as such violate
internationallaw.
Judges Higgins, Kooijmans and Buergenthal agree in
general with the Court's finding regarding Mr. Yerodia's
immunity. They share the Court's view that the immunity of
a Foreign Minister must not be equated witli impunity and
that procedural immuliity cannot shield the Minister from
personal responsibility once the Minister is no longer in
office.
H.owever. they consider as too expansive the scope of
the immunities the Court attributes to Foreign Ministers and
too restrictive the limits it appears to impose on the scope of
the personal responsibility of such officials and where they
may be tried. In their view, serious crimes under
inteniational law engage the personal respo~isibilityof high
State officials. For purposes of imtnunities. the concept of
official acts inust be narrowly defined.
Judges Higgins. Kooijmans and Buerger~thal voted
against the Court's finding im paragraph ( 3 )of the clispositg
that Belgiua~must cancel the amest warrant. They consider
that the Court's reliance on. tlie dictum in tlie Fcictoiy at
Clzo~*zdw.case is inisplaced because the restora.tion of the
statlr.7 qzlo cinte is not possible as Mr. Yerodia is no longer
Foreign Minister. Morcover, since Mr. Yerodia no longer
holds this office, the illegality attaching to the warrant
ceasecl and with it the continuing illegality that would
justify an order for its witlidrawal.
Separate opirlion ofJzldye Rezek
Judge Rezek voted in favour of all paragraphs of the
operative part of tlie Judgment. He nonetheless regrets that
the Court did not rule on the issue of the ju~isdi~:tionof the
Belgian courts. The fact that the Congo confined itself to
inviting the Court to render a decision based oil immunity
does not justify, in Judge Rezek's view, t:ne Court's
dropping of what represents an inevitable logical premise to
the exiuiiination of the issue of immunity.
Judge Rezek considers that an exalnination of
inteinational law demonstrates that, as it currer~tlystands,
that law does not pennit the exercise of crilninaljurisdiction
by domestic courts in the absence of some connecting
circulrlstance with the forum State.A,fortioi.i,it fbllows that
Belgium cannot be considered as having been "obliged" to
institute criminal proceedings iu this casc. Judge Rezek
notes in particular that the Geneva Conventions do not
enshril~eally notion of ui~iversaljurisdiction ill abserltin,
and that such jurisdiction has never been clailned by the
Spanish courts in tlie Pinochet case.
Juclge Rezek concludes by noting the importance of
restraint in the exercise of criminaljmisdiction by domestic
courts; a restraint in line with the notion of a decei~tralized
interna.tiona1 colnmunity, founded on the pri~~cipleof the
equality of its members and necessarily requiring mutual
coordination.
Dissentirly opinion of'JzrdgeAl-Khasaw~eh
Juclge Al-Khasawneh dissented because, in his opinion,
incumbent Ministers for Forr:ign Affairs elljoy only limited
immm-~ity,i.e., immunity fro111 enforcement when on an
official mission. He arrived at this conclusioi~on the bases
that: irl~munityis an exceptionto the rule that man is legally
and morally responsible for his actions and should therefore
be const~ued narrowly; that unlike diplomats, the
immunities of Foreign Ministers are not clear io terms of
their basis or extent and unlike Heads of State, Foreign
Ministszrs do not personify the State and are therefore not
entitled to immunities and privileges attaching to their
person. While the Belgian warrant went beyond jmisdiction,
it contained express language regarding unenfor1:eability if
thc Minister was on Belgian soil on official mission,
sii~~ilarlythe circulatioi~ of the warrant was not
accompanied-while Mr. Yerodia was still in office -by
a Red Notice asking other Statesto take enforcement steps.
Judge Al-Khasawneh also dealt with the question of
exceptions in the case of high-ranking State ofiicials
accused of grave crimes from the protection afforded by
immunities. In this regard he felt that the morally
embarrassingproblen~of impunity was not adequately dealt
with in the Judgment which tried to circumvent the problem
by an artificial distinction between "procedural immunity"
on the one hand and "substantive immunity" on the other,
and by postulating four situations where immunity and
impunity would not be synonymous, i.e., (a)prosecution in
the home State, (b) waiver and (c)prosecution after leaving
office, except for official acts and (4before international
courts. Having considered these four situations he
nevertheless felt that a lacuna still existed. Lastly, he argued
that the need for effective combating of grave crimes recognized
as such by the international community represents
a higher norm than the rules on immunity and in
case of conflict should prevail, even if one is to speak of
reconciliation of opposing norms and not of the triumph of
one over the other, this would suggest a more restrictive
approach to immunity - which would incidentally bring
immunity from criminal process into consonance with the
now firmly established rCgime of restrictive immunities of
States-than the Judgment portrays.
Separate opinioit of Judge Bula-Bula
By conducting itself unlawfully, the Kingdom of
Belgium, a sovereign State, committed an internationally
wrongful act to the detriment of the DemocraticRepublic of
the Congo, likewisea sovereign State.
Judge Bula-Bula fully supportsthe decision of the Court,
which upholds the rule of law against the law of the jungle.
In this regard, he has also indicated other grounds of fact
and law which will render further substance to a Judgment
of interestto the entire internationalcommunity.
Dissenting opinion of Judge Van den Wyngaerl
Judge Van den Wyngaert has voted against the Court's
decision on the merits. She disagrees with the Court's
conclusionthat there is a rule of customary internationallaw
granting immunity to incumbent Foreign Ministers. She
believes that Belgium has not violated a legal obligation it
owed in this respect to the Congo. Even assuming,
argrrendo,that there was such a rule, there was no violation
in the present case as the warrant could not be and was not
executed. neither in the country where it was issued
(Belgium) nor in the countries to which it was circulated.
The warrant was not an "international arrest warrant" in a
legal sense: it could and did not have this effect, neither in
Belgium nor in third countries. Judge Van den Wyngaert
believes that these are the only objective elentents the Court
should have looked at. The subjective elements, i.e., whether
the warrant had a psychological effect on Mr. Yerodia or
whether it was perceived as offensive by the Congo (cf. the
terms iniuria and capitis diminutio used by counsel for the
Congo) was irrelevant for the dispute.
On the subject of immzotities, Judge Van den Wyngaert
finds no legal basis under international law for granting
immunity to an incumbent Minister for Foreign Affairs.
There is no conventional international law on the subject.
There is no customary international law on the subject
either. Before reaching the conclusion that Ministers for
Foreign Affairs enjoy a $11 immunity from foreign
jurisdiction under customaiy international law, the
Intei~iationalCourt of Justice should have satisfied itself of
the existence of State practice (usus) and opinio juris
establishing an international custom to this effect. A
"negative" practice, consisting in their abstaining from
instituting criminal proceedings, cannot, in itself, be seen as
evidence for an opinio juris ("Lotus': Judgment No. 9,
1927, P.C.I.J.,Series A, No. 10, p. 28), and abstinence can
be attributed to many other factors, including practical and
political considerations. Legal opinion does not support the
Court's proposition that Ministers for Foreign Affairs are
immune from the jurisdiction of other States under
customary international law. Moreover, the Court reaches
this conclusion without regard to the general tendency
toward the restriction of immunity of the State officials
(including even Heads of State), not only in the field of
private and commercial law but also in the field of criminal
law, when there are allegations of war crimes and crimes
against humanity. Belgium may have acted contrary to
international comity, but it has not infringed international
law. Judge Van den Wyngaert therefore believes that the
whole Judgment is based on flawed reasoning.
On the subject of (tmiversal)j~{risdiction,on which the
Court did not pronounce itself in the present Judgment,
Judge Van den Wyngaert believes that Belgium was
perfectly entitled to apply its legislation to the war crimes
and crimes against humanity allegedly committed by Mr.
Yerodia in the Congo. Belgium's War Crimes Act, giving
effect to the principle of universaljurisdiction regarding war
crimes and crimes against humanity, is not contrary to
international law. On the contrary, international law permits
and even encourages Statesto assert this form ofjurisdiction
in order to ensure that suspects of war crimes and crimes
against hunlanity do not find safe havens. Universal
jurisdiction is not contrary to the principle of
conzplenlentari~in the Rome Statute for an Iizternational
Criminal Court. The International Criminal Court will only
be able to act if States that havejurisdiction are unwilling or
unable genuinely to carry out investigation or prosecution
(Art. 17). And even where such willingness exists, the
International Criminal Court, like the ad hoc international
tribunals, will not be able to deal with all crimes that come
under its jurisdiction. The International Criminal Court will
not have the capacity for that, and there will always be a
need for States to investigate and prosecute core crimes.
These States include, but are not limited to, national and
territorial States. Especially in the case of sham trials, there
will still be a need for third States to investigate and
prosecute.
This case was to be a test case, probably the first
opportunity for the International Court of Justice to address
a number of questions that have not been considered since
the famous "Lotus" case of the Permanent Court of
International Justice in 1927.In technical terms, the dispute
was about an arrest warrant against an incumbent Foreign
Minister.
The warrant was, however, based on charges of war
crimes and crimes against humanity, which the Court even
fails to mention in the dispositi$ In a more principled way,
the case was about how far States can or must go when
implementing modem international criminal law. It was
about the question what international law requires or allows
States to do as "agents" of the international community
when they are co~ifrontedwith complaints of victims of such
crimes, given the fact that international criminal courts will
not be able to judge all international crimes. It was about
balancing two divergent interests in modern international
(criminal) law: the need of iiiternational accountability for
such crimes as torture, terrorism, war crimes and crimes
against humanity and the principle of sovereign equality of
States, which presupposes a system of immunities.
Judge Van den Wyngaert regrets that the Court has not
addressed the dispute froni this perspective and has instead
focused on the very rzawow technical question of
iminilnities for incumbent Foreign Ministers. In failing to
address the dispute from a more principled perspective, the
International Court of Justice has missed an excellent
opportunity to contribute to the development of modern
international criminal law. In legal doctrine, there is a
plethora of recent scholarly writings on the subject. Major
schol.arlyorganizationsand non-governmentalorganizations
have taken clear positions on the subject of international
accoimtability.The latter may be seen as the opinion of civil
socieQ, an opinion that cannot be completely discounted in
the formation of customary international law today. She
highly regrets that the Court fails to acknowledge this
deve'lopment, and instead adopts a foimalistic reasoning,
examining whether there is, under customary international
law, an international crimes exception to the - wrongly
postulated - rule of immunity for incumbent Ministers
under customaryinternationallaw.
By adopting this approach, the Court implicitly
establishes a hierarchy between the rules on iiizntunity
(protecting incumbent former Ministers) and the rules on
iitterrzational accountability (calling for the investigation of
charges against incumbent Foreign Ministers suspected of
war crimes and crimes against humanity). By elevating the
former rules to the level of customary international law in
the first part of its reasoning, and finding that the latter have
failed to reach the same status in the second part of its
reasotiitig, the Court does iiot need to give finther
consideration to the legal status of the principle of
international accountability under international law. Other
courts, for example, the House of Lords in the Pinochet case
and the European Court of Human Rights in the Al-Adsani
case have given more thought and consideration to the
balancing of the relative normative status of iaternational
ius cogeiu crimes and immu:nities.
Judge Van den Wyngaert disagrees with the Court's
proposition that immunity does not lead to iir~punigof
incumbent Foreign Ministers. This may be true in theory,
but not in practice. It is, in theory, true that an incumbent or
former Foreign Minister can always be prosecuted in his
own country or in other States if the State whom he
represents waves immunity, as the Court assert:;. However,
this is precisely the core of ithe problem of iniptnity: where
national authorities are not willing or able to investigate or
prosecute, the crime goes unpunished. And this is what
happened in the present case. The Congo accused Belgium
of exercising universal jurisdiction in ubsenticl against an
incumbent Foreign Minister, but it had itself omitted to
exercise its jurisdiction in pi-esentia in the case of Mr.
Yeroclia, thus infringing the Geneva Conventions and not
complying with a host of Uinited Nations resolutions to this
effect. The Congo did not come to the Court with clean
hands: it blamed Belgium for investigating and prosecuting
allegations of international crimes that it was obliged to
investigate and prosecute itself,
In addition,Judge Van den Wyngaert finds the Judgment
highly unsatisfactory where it states that immunity does not
lead to implrnity offoniter ~ForeigrrMinistei-s:according to
the Court, the lifting of full immunity, in this case, is only
for ac:ts committed prior or subsequent to his or her period
of office and for acts committed during that period of office
in a private capacity. Whether war crimes and crimes
against humanity fall into this category the Coi~rtdoes not
say. Judge Van den Wyngaert finds it extremely regrettable
that the InternationalCourt of Justice has not, like the House
of Lords in the Pinochet case, qualified this statement. It
could and indeed should have added that war crimes and
crimes against humanity can never fall into this category.
Some crimes under international law (e.g., certain acts of
genocide and of aggressio:n) can, for practical purposes,
only be committed with the means and mechanisms of a
State and as part of a State policy. They cannot, from that
perspective,be anything other than "official" acts. Immunity
should never apply to crimes under international law,
neither before internationalcourts nor national courts.
Kctims of such violations bringing legal action against
such persons in third States would face the obstacle oj'
immunity from jurisdiction. Today, they may, by virtue of
the ?pplication of the 1969 Special Missions Convention,
face the obstacle of immunity from executio~lwhile the
Minister is on an official visit, but they would not be barred
from bringing an action altogether. Judge Van den
Wyngaert feels that taking immunities further than this may
even lead to coirjlict with iiiterizationul huinun riglrts rules,
partic:ularlythe right of access to court, as appe.3rsfrom the
recent Al-Adsrmi case of the European Court of Human
Righ1.s.
According to Judge Van den Wyngaert, an implicit
consideration behind this Judgment may have beell a
concer~zjor rrbirse and chaos, arising from the risk of States
asserting unbridled universal jurisdiction and engaging in
abusive prosecutions against incumbent Foreign Ministers
of other States and thus paralysing the functioning of these
States. In the present dispute, however, there was no
allegation of abuse of process on the part of Belgium.
Criminal proceediligs against Mr. Yerodia were not
frivolous or abusive. The warrant was issued after two years
of criminal investigations and there were no allegations that
the investigatingjudge who issued it acted on false factual
evidence. The accusation that Belgium applied its War
Crimes Statute in an offensive and discriminatory manner
against a Congolese Foreign Minister was manifestly illfounded.
Belgium, rightly or wrongly, wishes to act as an
agent of the world coinmunity by allowing con~plaints
brought by foreign victims of serious human rights abuses
committed abroad. Since the infamousDzttroiuc case (a case
of child molestation attracting great inedia attention in the
late 1990s), Belgium has amended its laws in order to
improve victims' procedural rights, without discriminating
between Belgian and foreign victims. In doing so, Belgiuin
has also opened its courts to victims bringing charges based
on war crimes and crimes against humanity committed
abroad. This new legislation has been applied, not only in
the case against Mr. Yerodia but also in cases against Mr.
Pinochet, Mr. Sharon, Mr. Rafzanjani, Mr. Hissen Habre,
Mr. Fidel Castro, etc. It would therefore be wrong to say
that the War Crimes Statute has been applied against a
Congolesenational in a discriminatoryway.
In the abstract, the chaos arguirzent may be pertinent.
This risk may exist, and the Court could have legitimately
warned against it in its Judgment without necessarily
reaching the conclusion that a rule of customary
internationallaw exists to the effect of granting immunity to
Foreign Ministers. Judge Van den Wyngaert observes that
granting immunities to incumbent Foreign Ministers inay
opeit the door to other sorts of abuse. It drainatically
increases the number of persons that enjoy international
iininunity from jurisdiction. Recognizing immunities for
other members of government is just one step further: in
present-day society, all cabinet members represent their
countries in various meetings. If Foreign Ministers need
immunities to perforni their functions, why not grant
immunities to otlier cabinet members as well? The
International Court of Justice does not state this, but doesn't
this flow from its reasoning leading to the conclusioii that
Foreign Ministers are immune? The rationale for
assimilating Foreign Ministers with diplomatic agents and
Heads of State, which is at the centre of the Court's
reasoning, also exists for otlier Ministers who represent the
State officially, for example, Ministers of Education who
have to attend UNESCO conferences in New York or other
Ministersreceiving lioiiorary doctoratesabroad.Malepa'e
governments may appoint persons to cabinet posts in 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 impunity to an increasingnumber of governlllent ot'ficials.