AMITY UNIVERSITY UTTAR PRADESH

NOIDA (U.P.)

PIL PROJECT
SUBMITTED ON

THE TOPIC:
‘DEMOCRATIC REPUBLIC OF CONGO V/S BELGIUM’

Submitted by:

GEETIKA SINGH, Enrollment No-A3256116147

SUBMITTED TO :RITIKA BEHL MAM

Citation. I.C.J. 2002 I.C.J. 3.

Judges: 14 Judges of the International Court of Justice, plus two ad hoc judges appointed
by Belgium and
Congo

OVERVIEW OF THE CASE

FACTS OF THE CASE :On 17 October 2000, the Democratic Republic of the Congo
(DRC) filed an Application instituting proceedings against Belgium concerning a dispute over an
international arrest warrant issued on 11 April 2000 by a Belgian examining judge against the
acting Congolese Minister for Foreign Affairs, Mr. Abdoulaye Yerodia Ndombasi, seeking his
detention and subsequent extradition to Belgium for alleged crimes constituting “grave violations
of international humanitarian law”. The arrest warrant was transmitted to all States, including the
DRC, which received it on 12 July 2000.

The DRC also filed a request for the indication of a provisional measure seeking “an order for the
immediate discharge of the disputed arrest warrant”. Belgium, for its part, called for that request
to be rejected and for the case to be removed from the List. In its Order made on 8 December 2000,
the Court, rejecting Belgium’s request for the case to be removed from the List, stated 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”.

The Memorial of the DRC was filed within the prescribed time-limits. For its part, Belgium filed,
within the prescribed time-limits, a Counter-Memorial addressing both issues of jurisdiction and
admissibility and the merits

Brief Fact Summary. Belgium’s (D) international arrest warrant against the Democratic Republic
of Congo’s (D.R.C.) (P) foreign minister was contended by the D.R.C. (P) on the ground that the
arrest contravened international law by purporting to exercise jurisdiction over another state’s
foreign minister and an order of provisional measures of protection on the ground that the warrant
effectively prevented the foreign minister from leaving the D.R.C. (P) was sought by the defendant

Synopsis of Rule of Law :Where a foreign minister is suspected of humanitarian violations, such
a minister enjoys full immunity from criminal jurisdiction in another state’s court.

Facts : The Belgian law provides for universal jurisdiction in the case of grave breaches of the
Geneva Conventions, crimes against humanity and other serious offenses. Relying on this law, a
Belgian judge issued an international arrest warrant for the foreign minister of the D.R.C (P) on
the premise of grave violations of humanitarian laws to be tried in Belgium. The Belgium law also
denotes that any immunity which is conferred by an individual’s official capacity does not curtail
the application of universal jurisdiction.
The arrest warrant was circulated internationally and the International Criminal Police
Organization (Interpol) was also notified. This action of Belgium was therefore the basis of D.R.C.
(P) suit against it at the International Court of Justice (I.C.J.). The D.R.C. (P) asserted that the
warrant against its foreign minister was a clear violation of international law because Belgium
purported by this act to exercise jurisdiction over its foreign minister.
D.R.C. (P) also claimed that its minister should also enjoy immunity equivalent to that enjoyed by
diplomats and heads of states. In addition to this, the plaintiff also sought an order of provisional
measures of protection on the ground that the warrant effectively curtailed the foreign minister
from leaving the D.R.C. (p). The I.C.J. thus gave its judgment on this case.

Issue: Where a foreign minister is suspected of humanitarian violations, does such a minister enjoy
full immunity from criminal jurisdiction in another state’s court?
Held: (Judge not identified in casebook excerpt) Yes. Where a foreign minister is suspected of
humanitarian violations and even war crimes, such a minister enjoys full immunity from criminal
jurisdiction in another state’s court. Acting as the state’s representative in international meeting
and negotiations, travelling internationally and overseeing the smooth running of the state’s
diplomatic activities are duties which a foreign minister performs. The foreign minister also has
the power to bind the state in the course of his duties and he must be in constant communication
with his state and its diplomatic missions around the world as well as with representatives of other
states. Hence, because of the office he holds and not because of his person, a minister is recognized
under international law as a representative of the state.
Drawing from this submission, it can therefore be established that an acting Minister of Foreign
Affairs enjoys full immunity from criminal jurisdiction and inviolability so that he or she may not
be hindered in the discharge of his or her duties. The safety nest provided by this immunity is
regardless of whether the purported crimes were committed in the minister’s “official or private”
capacity and regardless of when the offense occurred. Hence on this premise, the argument of
Belgium that immunities is not applicable to foreign ministers when they are accused of
committing war crimes or crimes against humanity is nullified
However and with much emphasis, immunity from jurisdiction which a serving minister enjoys
does not imply that such minister take pleasure for the crimes he or she commits of have
committed. As jurisdictional immunity is procedural, so too is criminal responsibility a matter of
substantive law, so that jurisdictional immunity does not operate to exempt the minister who may
under certain circumstances, be held accountable for his crimes.
The minister may thus be brought before the courts in his/her own state and may lose his/her
immunity once his/her state waives it. The minister also do not enjoy such immunity after he
vacates office and may subsequently be charged for acts committed prior to or subsequent to the
time he/she was in office as well as in respect of acts committed during the time he/she was in
office in a private capacity. The International criminal courts may also try the minister where they
have the jurisdiction to do so

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.

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. 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.

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.

Discussion: The tenability of the claim of universal jurisdiction by domestic courts was not
decided in this case although some of the judges in a separate opinion expressed the belief that
universal jurisdiction is allowed in the cases of those offenses considered the most heinous by the
international community, so that the warrant for the arrest of the plaintiffs foreign minister did not
as such contravene international law.
It therefore shows that there is no common ground amongst the judges on the issue of universal
jurisdiction as exercised by domestic/local courts. In any event therefore, there is always a
precedent when a domestic court exercises universal jurisdiction. For instance, Israel claimed
universal jurisdiction when it kidnapped the former Nazi Adolf Eichmann from Argentina in 1961
and tried him in an Israeli court and executed him.

Questions before the Court:

Did Belgium violate principles of customary international law concerning the absolute
inviolability and immunity from criminal process of an incumbent Foreign Minister, when it issued
and internationally circulated the arrest warrant? If yes, did it violate the principle of sovereign
equality amongst States; does this alleged unlawfulness preclude States who received the warrant
from exercising it; should the Court order reparations; and should Belgium recall and cancel its
arrest warrant?

Belgium‘s Objections:

Belgium raised four objections to the jurisdiction of the Court. One argument was that there was
no longer a legal dispute because Yerodia was no longer the Foreign Minister. The Court rejected
all four objections

The issuance and circulation of the arrest warrant violated Belgium’s international obligations
towards the Congo. Belgium failed to respect, and infringed, Yerodia’s immunity and the
inviolability enjoyed by him under international law.

Relevant Findings of the Court:

1. It is an established principle of international law that Heads of States and Governments, Foreign
Ministers and Diplomatic and Consular agents enjoys immunities from civil and criminal
jurisdictions of other States.

2. In the absence of treaty law, customary international law determines the immunities of Ministers
of Foreign Affairs. These immunities “…are not given for their personal benefit; but to ensure the
effective performance of their functions of behalf of their…States”. The functions of the Foreign
Minister require frequent travel to other countries. International law recognizes him as a
representative of the State solely by virtue of his office. The functions of a Foreign Minister are
such that – during his tenure – he enjoys absolute immunity from criminal jurisdiction and
inviolability when he is abroad.

3. As the incumbent Foreign Minister, Yerodia enjoys immunity (during his tenure) for acts
performed, both, in an official capacity and in a private capacity. The immunity applies regardless
of whether the Minister is on foreign territory in an official or private visit. This immunity extends
not only to his actions during his tenure; but, also to his actions before he became Foreign Minister.
“Thus, if a Minister for Foreign Affairs is arrested in another State on a criminal charge, he or she
is thereby prevented from exercising the functions of his or her office. The consequences of such
impediment to the exercise of those official functions are equally serious…. Furthermore, even the
mere risk that, by travelling to or transiting another State a Minister for Foreign Affairs might be
exposing himself or herself to legal proceedings could deter the Minister from travelling
internationally when required to do so for the purposes of the performance of his or her official
functions.”

4. The Court rejected Belgium’s argument that the Minister does not enjoy immunity because he
is accused of having committed war crimes or crimes against humanity. (Belgium relied on the
Pinochet Case (decided by the House of Lords, UK), the Qaddafi Case (decided by the French
Court of Cassation) and Statutes of International Criminal Court and Tribunals.) The Court held
that there was no exception in customary international law to the absolute immunity of an
incumbent Foreign Minister.

” It (the Court) has been unable to deduce from this practice that there exists under customary
international law any form of exception to the rule according immunity from criminal jurisdiction
and inviolability to incumbent Ministers of Foreign Affairs, when they are suspected of having
committed war crimes or crimes against humanity…The Court has also examined the rules
concerning the immunity or criminal responsibility of persons having an official capacity
contained in the legal instruments creating international criminal tribunals, and which are
specifically applicable … It finds that these rules likewise do not enable it to conclude that any
such an exception exists in customary international law in regard to national courts.”

5. International Conventions give jurisdiction to national Courts over various crimes and, at times,
requires them to exercise this jurisdiction [for example, the Torture Convention]. This requirement
does not affect the immunities given to Foreign Ministers under international law. Despite
international conventions establishing domestic jurisdiction, Foreign Ministers are immune before
foreign courts.

6. Immunity does not mean impunity. The person continues to be individually responsible for the
crime he committed.
“While jurisdictional immunity is procedural in nature, criminal responsibility is a question of
substantive law. 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….”

7. The Court set out four situations where an incumbent or former Foreign Minister could be
prosecuted:

a. Prosecution in his own country according to the domestic law (the international law of immunity
is not recognized before a person’s national courts);

b. If his country waives his immunity, then prosecution before a foreign court;

c. Once he ceases to be the Foreign Minister, he no longer enjoys immunity before foreign courts
for private acts committed during his tenure as Foreign Minister; and for all acts committed before
or after his tenure in office; and

d. Prosecution before an international criminal body, with the necessary jurisdiction (for example
the ICC).

8. The ICJ concluded that the issuance and circulation of the arrest warrant violated Belgium’s
obligations towards Congo, “in that it failed to respect the immunity of that Minister and, more
particularly infringed the immunity from criminal jurisdiction and the inviolability enjoyed by him
under international law.” It did not matter that Yerodia was never arrested.

“Since Mr. Yerodia was called upon in that capacity to undertake travel in the performance of his
duties, the mere international circulation of the warrant… could have resulted, in particular, in his
arrest while abroad. The Court observes… Mr. Yerodia, “on applying for a visa to go to two
countries, [apparently] learned that he ran the risk of being arrested as a result of the arrest warrant
issued against him by Belgium”… the arrest warrant ‘sometimes forced Minister Yerodia to travel
by roundabout routes”‘.

9. Congo asked the Court to rule that the unlawfulness of the arrest warrant precludes States who
received the warrant from exercising it. The Court refused to indicate what the judgment’s
implications might be for third States. Its determination is limited to Congo and Belgium. [NB:
the Statute of the ICJ requires that its rulings should not create binding obligations on States who
are not parties to the dispute.]

10. On reparation, the Court held that the issuance and circulation of the arrest warrant engaged
Belgium’s international responsibility. “The Court… considers that Belgium must, by means of
its own choosing, cancel the warrant in question and so inform the authorities to whom it was
circulated.” The Court did not order any other reparations.