Legal Brief: Democratic Republic of Congo versus Belgium [2002], International Court of Justice 1 Issue

The overarching issue involved in this case concerns the ability of one sovereign nation to issue an arrest warrant against a foreign official for breaking customary international laws. In sum, the issue involved the issuance of an international arrest warrant in absentia for an African foreign affairs minister by a Belgian judge in response to public speeches that were purportedly responsible for genocidal acts against an ethnic minority. Although the Belgian judge issued the international arrest warrant for violations of the sovereignty of another country which were also violative of customary international law, another issue concerns whether this issuance constituted yet another violation of customary international law. A final issue concerned whether States were obligated to enforce the international arrest warrant under these circumstances.

The subject case began on 11 April 2000, when the then-acting Congolese foreign affairs minister, Abdoulaye Yerodia Ndombasi, had an international arrest warrant against him issued by a Belgian examining judge for allegedly inciting ethnic hatred in August 1998.[footnoteRef:2] The specific charges alleged in the arrest warrant included serious violations of international humanitarian law for Ndombasi’s inflammatory public speeches that advocated violence against the Congolese Tutsi ethnic group.[footnoteRef:3] The public addresses were specifically cited in the arrest warrant as being directly responsible for the murders of several hundred members of the Tutsi ethnic group, together with charges alleging their improper imprisonment, summary executions, arbitrary arrests and kangaroo-court-style trials.[footnoteRef:4] The international arrest warrant was subsequently delivered to the Democratic Republic of the Congo (DRC) on 12 July 2000 together with all other States requesting that Ndombasi be detained, arrested and extradited to Belgium.[footnoteRef:5] Although Ndombasi was subsequently appointed Congolese education minister, he was not holding a ministerial position when the warrant was issued.[footnoteRef:6] [2: Jeanne M. Haskin (2005). The Tragic State of the Congo: From Decolonization to Dictatorship. New York: Algora, p. 85.] [3: Abdoulaye Yerodia Ndombasi (2016). Trial International. [online] available: https://trialinternational.org/latest-post/abdoulaye-yerodia-ndombasi/, p. 1.] [4: Abdoulaye Yerodia Ndombasi, p. 2.] [5: Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium). Public International Law. [online] available: https://ruwanthikagunaratne.wordpress.com/2012/07/27/belgian-arrest-warrant-case-summary/, p. 3.] [6: Belgian Arrest Warrant Case (2008). Ruwanthika Gunaratne and Public International Law. [online] available: https://ruwanthikagunaratne.wordpress.com/2012/07/27/belgian-arrest-warrant-case-summary/, p. 4.]

In response to the Belgian judge’s international arrest warrant, the Democratic Republic of the Congo (DRC) filed an application on 17 October 2000 calling for “an order for the immediate discharge of the disputed arrest warrant” by the International Court of Justice (ICJ).[footnoteRef:7] Subsequently, Belgium called for the rejection of the Congolese application due to lack of jurisdiction and for the removal of the case from the ICJ general list of cases. In response to Belgium’s objection concerning a lack of jurisdiction on the part of the ICJ, the Court held that: “Jurisdiction of the Court -- Statute of the Court, Article 36, paragraph 2 -- Existence of a ‘legal dispute’ between the Parties at the time of filing of the Application instituting proceedings -- Events subsequent to the filing of the Application do not deprive the Court of jurisdiction.”[footnoteRef:8] Consequently, in an order entered on 8 December 2000, the ICJ rejected Belgium’s request for the removal of the case from its list of cases, noting 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.”[footnoteRef:9] [7: As cited in Arrest Warrant of 11 April 2000, p. 3.] [8: Case Concerning the Arrest Warrant of 11 April 2000 (2002, February 14): 2002 I.C.J. 3] [9: As cited in Arrest Warrant of 11 April 2000, p. 4.]

Thereafter, in a judgment issued on 14 February 2002, the ICJ also rejected Belgium’s other objections concerning the mootness of the case (“Fact that the person concerned had ceased to hold office as Minister for Foreign Affairs does not put an end to the dispute between the Parties and does not deprive the Application of its object”) and admissibility (“Facts underlying the Application instituting proceedings not changed in a way that transformed the dispute originally brought before the Court into another which is different in character”).[footnoteRef:10]

In addition, concerning the merits of...

3.] [11: As cited in Arrest Warrant of 11 April 2000, p. 4.]
The Court then observed that, in customary international law, the immunities accorded to Ministers for Foreign Affairs are not granted for their personal benefit, but to ensure the effective performance of their functions on behalf of their respective States. The Court held that the functions exercised by a Minister for Foreign Affairs were such that, throughout the duration of his or her office, a Minister for Foreign Affairs when abroad enjoyed full immunity from criminal jurisdiction and inviolability. Inasmuch as the purpose of that immunity and inviolability was to prevent another State from hindering the Minister in the performance of his or her duties, no distinction could be drawn between acts performed by the latter in an “official” capacity and those claimed to have been performed in a “private capacity” or, for that matter, between acts performed before assuming office as Minister for Foreign Affairs and acts committed during the period of office. The Court then observed that, contrary to Belgium’s arguments, it had been unable to deduce from its examination of State practice that there existed under customary international law any form of exception to the rule according immunity from criminal jurisdiction and inviolability to incumbent Ministers for Foreign Affairs when they were suspected of having committed war crimes or crimes against humanity.[footnoteRef:12] [12: Arrest Warrant of 11 April 2000, p. 4.]

The Court further observed that the rules governing the jurisdiction of national courts must be carefully distinguished from those governing jurisdictional immunities. The immunities under customary international law, including those of Ministers for Foreign Affairs, remained opposable before the courts of a foreign State, even where those courts exercised an extended criminal jurisdiction on the basis of various international conventions on the prevention and punishment of certain serious crimes. However, the Court emphasized that the immunity from jurisdiction enjoyed by incumbent Ministers for Foreign Affairs did not mean that they enjoyed impunity in respect of any crimes they might have committed, irrespective of their gravity.[footnoteRef:13] While jurisdictional immunity was procedural in nature, criminal responsibility was a question of substantive law. Jurisdictional immunity might well bar prosecution for a certain period or for certain offences ; it could not exonerate the person to whom it applied from all criminal responsibility. The Court then spelled out the circumstances in which the immunities enjoyed under international law by an incumbent or former Minister for Foreign Affairs did not represent a bar to criminal prosecution.[footnoteRef:14] [13: Arrest Warrant of 11 April 2000, p. 5.] [14: Arrest Warrant of 11 April 2000, p. 5.]

After examining the terms of the arrest warrant of 11 April 2000, the Court noted that the issuance, as such, of the disputed arrest warrant represented 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. It found that, given the nature and purpose of the warrant, its mere issuance constituted a violation of an obligation of Belgium towards the DRC, in that it had failed to respect the immunity which Mr. Yerodia enjoyed as incumbent Minister for Foreign Affairs. The Court also declared that the international circulation of the disputed arrest warrant from June 2000 by the Belgian authorities constituted a violation of an obligation of Belgium towards the DRC, in that it had failed to respect the immunity of the incumbent Minister for Foreign Affairs. Finally, the Court considered that its findings constituted a form of satisfaction which would make good the moral injury complained of by the DRC. However, the Court also held that, in order to re-establish “the situation which would, in all probability have existed if [the illegal act] had not been committed”, Belgium must, by means of its own choosing, cancel the warrant in question and so inform the authorities to whom it had been circulated.[footnoteRef:15] [15: Arrest Warrant of 11 April 2000, p. 5.]

Rule

The arrest warrant against Ndombasi was issued pursuant to the provisions of Belgian Law of 16 June 1993 “concerning the Punishment of Grave Breaches of the International Geneva Conventions of 12 August 1949 and of Protocols I and II of 8 June 1977 Additional Thereto,” as subsequently amended by the Law of 10 February 1999 “concerning the Punishment of Serious Violations of International Humanitarian Law,” which was…