Arrest Warrant of 11th April 2000: Belgium v. Congo

 

Full text of the International Court of Justice summary can be found here

Background

  • Belgian law had in place a law of universal jurisdiction passed in 1993, which allowed the court to investigate those accused of war crimes, crimes against humanity and genocide (it was repealed in 2003).
  • On April 11th 2000, a judge in the Brussels tribunal issued an arrest warrant for Mr. Abdulaye Yerodia Ndombasi of the Democratic Republic of Congo for offences concerning grave breaches of the Geneva Conventions of 1949 and Additional Protocols and crimes against humanity.
  • The specific crime accused was broadcasting speeches inciting racial hatred against Tutsi residents in the Congo. Those speeches led to widespread slaughtering of Tutsi’s. Tutsi’s are a population division which were massacred in the Rwandan genocide of 1994. The arrest warrant was circulated through Interpol.
  • At the time of the arrest warrant, Mr. Abdulaye Yerodia Ndombasi was the incumbent Minister of Foreign Affairs for DR Congo.

 

Case

  • On 17th October 2000 the Democratic Republic of Congo filed an application to take Belgium to the International Court of Justice over the legal validity of the arrest warrant for the incumbent Minister of Foreign Affairs, Mr. Abdulaye Yerodia Ndombasi. It was Congo’s intention to get the arrest warrant annulled.
  • After the application was filed, the Minister of Foreign Affairs Mr. Yerodia stepped down from his position and also ceased to hold any ministerial office.
  • Congo argued two legal grounds in this application:
  1. Universal jurisdiction under Belgian law violates the principle of sovereign equality based on the United Nations Charter, meaning no state can exercise its authority over another state.
  2. The diplomatic immunity expressed through the Vienna Convention on Diplomatic Relations 1961 allows immunity of the Minister of Foreign Affairs in a sovereign state, meaning the arrest warrant is invalid. In their final submissions however, Congo support this point with the arrest warrant being a violation of customary international law, rather than invoking a specific provision in the Vienna Convention on Diplomatic Relations 1961. "The rule of customary international law concerning the absolute inviolability and immunity from criminal process of incumbent foreign ministers”.
  • Congo also noted in the application that the International Court of Justice has jurisdiction to preside over this matter. This is because Belgium is a member state of the United Nations, which adheres to the UN Charter. The UN Charter expresses that the International Court of Justice is the principal judicial organ of the United Nations.
  • Following the final submissions, at the oral proceedings in court, Congo noted:
  1. Issuing an arrest warrant is a violation of customary international law in that members of government have immunity over criminal jurisdiction, violating the principle of sovereign equality.
  2. Congo must have a form of reparation for the unlawful act for it to be satisfied from the moral injury caused.
  3. The violation of international law means that any state, including Belgium, cannot execute the arrest warrant.
  4. Belgium is required to cancel the arrest warrant and inform the foreign authorities who circulated it.
  • Following the final submissions, at the oral proceedings in court, Belgium noted:
  1. The Court should find this case lacks jurisdiction and/or the Court should find Congo’s application inadmissible.
  2. If the Court should conclude that it does have jurisdiction and Congo’s application is admissible, the Court should reject the submissions of Congo and dismiss the application.
  • What were Belgium’s reasons for objecting the application made by Congo to the International Court of Justice? What was the Court’s response to these objections?

Belgium’s first objection: Mr. Abdulaye Yerodia Ndombasi is no longer the Minister of Foreign Affairs for DR Congo and does not occupy any other position in government- therefore there is no dispute between two states.

What did the Court say? Jurisdiction must be determined at the time the application was filed. At the time of the application filed by Congo, Mr. Yerodia was the incumbent Minister of Foreign Affairs. The Court rejected the first objection by Belgium.

Belgium’s second objection: As Mr. Abdulaye Yerodia Ndombasi is no longer the Minister of Foreign Affairs and does not occupy a position in government, the Court does not have jurisdiction to proceed to judgment. The International Court of Justice only have jurisdiction with judgments over disputes between states (note that the Court are also able to give non-binding advisory opinions on questions in international law).

What did the Court say? The change of position (ceasing to be a member of government) by Mr. Yerodia has not affected the status of the arrest warrant. Congo say the arrest warrant issued was and remains unlawful. The Court rejected the second objection by Belgium.

Belgium’s third objection: The situation as it is now (with him being out of office) is different from when Congo first filed the application (when the application was filed, he was still the current Minister of Foreign Affairs), therefore the Court lacks jurisdiction and/or the case is inadmissible.

What did the Court say? The facts underlying the application submitted by Congo have not changed in a way as to completely transform the dispute. The Court rejected the third objection by Belgium.

Belgium’s fourth objection: As the situation with Mr. Yerodia has changed, he is assumed protected by Congo and local remedies to resolve the situation have not yet been exhausted, therefore the Court lacks jurisdiction and/or the case is inadmissible.

What did the Court say? Despite the change in situation, the character of the dispute has not changed. The dispute is about the lawfulness of the arrest warrant. Belgium cannot rely upon the rules of exhausting local remedies. The Court rejected the fourth objection by Belgium.

Belgium’s subsidiary objection: The last objection by Belgium is a subsidiary objection based on non ultra petita (not beyond the request) which means the Court cannot answer a question that Congo did not ask of it, namely whether or not the Belgian judge issuing the arrest warrant based on universal jurisdiction complied with the rules and principles of international law.

What did the Court say? Belgium’s subsidiary objection does not mean the Court cannot deal with aspects of the question and addressing legal points in its reasoning of a judgment. The Court rejected the subsidiary objection by Belgium.

 

Judgment

  • By 13 votes to 3, the Court found that the arrest warrant of Mr. Abdulaye Yerodia Ndombasi constituted violations of the legal obligation of Belgium against the Congo with respect to the immunity given to an incumbent minister of a government.
  • By 10 votes to 6, the Court found that Belgium must cancel the arrest warrant and inform the authorities who issued the arrest warrant.
  • By 15 votes to 1, the Court found it had jurisdiction to reach these findings on this matter, and that this case was admissible by the Court.

 

 

References and further reading

United Nations Press Release

International Court of Justice

Louisiana State University Law Review