Case concerning the Arrest Warrant of 11 April 2002 (Democratic Republic of the Congo v. Belgium)

Court	International Court of Justice, The Netherlands
Case number	121
Decision title	Judgment
Decision date	14 February 2002
Parties	Democratic Republic of the Congo Kingdom of Belgium
Other names	Arrest Warrant case
Categories	Crimes against humanity
Keywords	Crimes against humanity; immunity; arrest warrant; extradition; racial hatred.
Links	Judgment and separate/dissenting opinions

Summary

On 11 April 2000, a Belgian investigating judge of the Brussels Tribunal of First Instance issued an arrest warrant in absentia against the incumbent Minister for Foreign Affairs of the Democratic Republic of Congo (DRC), Abdulaye Yerodia Ndombasi, charging him with offences constituting grave breaches of the Geneva Conventions I–IV (1949); Geneva Conventions Additional Protocol I (1977); Geneva Conventions Additional Protocol II (1977), and crimes against humanity. In the warrant, Mr Yerodia was accused of inciting racial hatred in various speeches in the DRC in August 1998, which had contributed to the massacre of several hundred persons and, thus, he was charged as perpetrator or co-perpetrator of these crimes. The arrest warrant, which asked States to arrest, detain, and extradite Mr Yerodia to Belgium, was transmitted to the DRC in June 2000 and simultaneously circulated internationally through Interpol. On 14 February 2002, the International Court of Justice ruled that the issuance and circulation of the arrest warrant violated Belgium’s international obligations towards the DRC in that Belgium failed to respect, and infringed, Mr Yerodia’s immunity as Minister for Foreign Affairs and the inviolability enjoyed by him under international law. The Court required Belgium to cancel the arrest warrant and inform as such the authorities to whom it was circulated.

Procedural history

On 17 October 2000, the Democratic Republic of the Congo (DRC) filed in the Registry of the Court an application instituting proceedings against the Kingdom of Belgium in respect of a dispute concerning the international arrest warrant issued on 11 April 2000 against Mr Yerodia. The DRC contended that Belgium had violated the principle that a State may not exercise its authority on the territory of another State, the principle of equality among all Members of the United Nations (UN), as laid down in Article 2(1) of the UN Charter, as well as the diplomatic immunity of the Minister for Foreign Affairs of a sovereign State as recognised in Article 41(2) of the 1961 Vienna Convention on Diplomatic Relations. The same day, the DRC also filed in the Registry of the Court a request for the indication of a provisional measure based on Article 41 of the ICJ Statute. By Order of 8 December 2000 the Court, on the one hand, rejected Belgium’s request that the case be removed from the List, but on the other, held that the circumstances were not such as to indicate provisional measures. The Memorial of the DRC and the Counter-Memorial of Belgium were filed respectively on 16 May 2001 and 28 September 2001. Public hearings were held from 15 to 19 October 2001.

Related developments

This judgment is of lasting significance for the issues of universal jurisdiction and immunities.

In 2003 the Belgian Court of Cassation dismissed a case against Israeli Prime Minister Ariel Sharon on the basis that it violated the personal immunity granted by customary international law to incumbent Heads of Government [Cour de Cassation, Sharon, 12 February 2003, 42 ILM 596]. Later that year, Belgium’s so-called genocide law, providing for universal jurisdiction over the gravest international crimes, was repealed under the pressure of the United States. The new law provides jurisdiction only when the defendant or the victim are Belgian citizens or residents. Furthermore, the prosecutor may dismiss the case if it can be brought before a more appropriate national or international tribunal, provided that it has jurisdiction and that it is independent, impartial and fair.

The International Law Commission has been working on ‘Immunity of State officials from foreign criminal jurisdiction’ since 2007. Five articles had been provisionally adopted in 2015.

Legally relevant facts

The Belgian authorities initiated proceedings under the Belgian Law of 16 June 1993 Concerning the Punishment of Grave Breaches of the Geneva Conventions of 12 August 1949 and Additional Protocols I and II of 8 June 1977 (as amended in 1999), which provided for universal jurisdiction in respect of the crimes for which Mr Yerodia was accused, regardless of where they were committed, the presence of the accused in Belgium, or the nationality or legal status of either the victim/complainant or the accused. The law further provided that immunity attached to the official capacity of a person should not be recognised in application of the law [at paragraph 15].

In this case, it was uncontested that the alleged crimes were committed outside of Belgium, Mr Yerodia was neither Belgium nor on the territory of Belgium when the warrant was issued, and no Belgium nationals were a direct victim of the alleged crimes [at paragraph 15].

In November 2000, Mr Yerodia ceased being the Foreign Minister of the DRC and became the Minister of Education. From mid-April 2001, and so at the time of the judgment, he no longer held any ministerial office [at paragraphs 18 and 19].

Core legal questions

Whether the Court has jurisdiction to deal with the case?
In light of the fact that Mr Yerodia is currently not a Minister occupying any position in the Government of the DRC, whether the case is now without object?
Whether the issue and circulation of the arrest warrant by the Belgian judicial authorities against a person who was at the time the Minister for Foreign Affairs of the DRC were contrary to international law concerning the absolute immunity and inviolability from criminal jurisdiction of an incumbent Foreign Minister?
Whether the Court should order reparations to the DRC?

Specific legal rules and provisions

Vienna Convention on Diplomatic Relations of 18 April 1961, Article 32.

New York Convention on Special Missions of 8 December 1969, Article 21, paragraph 2.

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 amended by the Law of 10 February 1999 "concerning the Punishment of Serious Violations of International Humanitarian Law", Article 7; Article 5, paragraph 3.

Court's holding and analysis

Given the nature and purpose of the arrest warrant, the Court concluded that the mere issuance and circulation of the warrant, regardless of whether it significantly interfered with Mr Yerodia’s diplomatic activities or not, constituted a violation of Belgium’s obligation towards the DRC, in that it failed to respect the Minister’s immunity, particularly the immunity from criminal jurisdiction, and the inviolability enjoyed by the Minister under international law as the issuing of the arrest warrant represents the Belgian judicial authorities’ intention to enable arrest of the Minister [at paragraphs 70 and 71].

The Court considered that its finding that Mr Yerodia's immunity as Foreign Minister had been violated constitutes a form of remedy in itself to the moral injury of which the DRC complained [paragraph 75]. However, international law also requires the reestablishment of the situation which would have existed if the illegal act had not been committed [at paragraph 76]. Thus, the Court held that Belgium must, by means of its own choosing, cancel the disputed arrest warrant and so inform the authorities to whom the warrant had been circulated [at paragraph 76].

Further analysis

M.C. Bassiouni, ‘Universal Jurisdiction Unrevisited: The International Court of Justice Decision in Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium)’, 12 Pal. YIL 27 (2002–2003).
A. Cassese, ‘When May Senior State Officials Be Tried for International Crimes? Some Comments on the Congo v Belgium Case’, 13 EJIL 853 (2002).
A. Cassese, ‘Is the Bell Tolling for Universality? A Plea for a Sensible Notion of Universal Jurisdiction’, 1 J. Int’l Crim. Just. 589 (2003).
J. Foakes, ‘Immunity for International Crimes? Developments in the Law on Prosecuting Heads of States in Foreign Courts’, Chatham House Briefing Paper, November 2011.
K.R. Gray, ‘Case concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium)’, 13 EJIL 723 (2002).
S. Metille, ‘L’immunité des chefs d’Etat au XXIème siècle : les conséquences de l’Affaire du mandat d’arrêt du 11 avril 2000’ (2004) 82 Revue de droit international de sciences diplomatiques et politiques 29.
A. Orakhelashvili, ‘Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium)’, 96 AJIL 677 (2002).
R. Pedretti, Immunity of Heads of State and State Officials for International Crimes (2013).
B. Schlütter, Development in Customary International Law (2010), 157.
P. Webb, ‘Immunities and Human Rights: Dissecting the Dialogue in National and International Courts’, in O.K. Fauchald and A. Nollkaemper (ed.), The Practice of International and National Courts and the (De-)Fragmentation of International Law (2012), 245.
J. Wouters and L. de Smet, ‘The ICJ Judgment in the Case Concerning the Arrest Warrant of 11 April 2000: Some Critical Observations’, 4 YIHL 373 (2004).

Instruments cited

Vienna Convention on Diplomatic Relations of 18 April 1961.

Vienna Convention on Consular Relations of 24 April 1963.

New York Convention on Special Missions of 8 December 1969.

Geneva Convention (I), 1949.

Geneva Convention (II), 1949.

Geneva Convention (III), 1949.

Geneva Convention (IV), 1949.

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3.

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 609.

Belgian Law of 16 June 1993 Concerning the Punishment of Grave Breaches of the Geneva Conventions of 12 August 1949 and Additional Protocols I and II of 8 June 1977 (as amended in 1999)