court: icj

doctype: dom

decisionType: judgment

publisher: International Court of Justice

reportsCitation: I.C.J. Reports 2002, p. 3

title: Judgment of 14 February 2002

text: Geneva Conventions

text: Geneva Conventions

text: Geneva Conventions

text: Geneva Conventions

text: Additional Protocols

text: Additional Protocols, article 1

text: Additional Protocols

text: Additional Protocols, article 1

text: Vienna Convention on the Law of Treaties, article 7

text: INTEIRNATIONAL COURT O F .IUSTICE

type: rubrik

text: Y EAR 2002 2002

text: 14 February General List

type: stycke

text: 14 February 2002 No. 121

text: CASE CONCERNING THE ARREST WARRANT OF 11 APRIL 2000

text: (DEMOCRATIC REPUBLIC O F THE CONGO v. BELGIUM)

text: Fuct.7 of the case - Issue hy a Belgiun investigatiny magistrate itf'"an internutionul arrest ivurrunt in absentia" uguinst the irzcumbent Minister,fir Foreign A,ffair.s of the Congo, ulleging grave hreaclzes i f th? Ceneva convention.^ of 1949 und of' the Additional Protocols thereto and cr,mes against lzuwiunitj~ - Internutionul circzilutiorî of' urrext tvcwrunt through Interpol - Person (.oni.crt1c.d slrhsequerzt~ ceusing to hold office us Mini.ste.,for Foreign Afjcairs.

text: First objection of Belgium - Juris~l'iction of the Court - Statute of' the Court, Article 36, paragruplî 2 - Euistence ( ? f a "li~gal dispute" betiveen the Parties crt the tiine of',filing of' the Appliccltiori N1,stituting procerdings - Events s~lhsrq~retzt to the ,filing f' the. Apl~lic.ution do not clep +*ive the Court of',juri.stliction. Second objection of Belgizirn - i2footrie.s.c. - Fuct thut the person conc,c.med had cru.seri to hole/ ofji'ce us Minister for Foreign Affi irs does rlot put un end to the dixpute hetii3eetz the Parties und ciues not cleprlve the Applicutiorî of' i f s objc7ct. Third objection of i5elgiuni - Adrnissihility - Facfs underlying the Application instituting procet,ding.~ rzot chringed in (1 tvay t h & / trun.-fi~rrîzed the dispute originull~~ hrought h ~ f i r e the Court into unother rchic.i is d$rercnt in churuc,ter.

text: Fourth ohjection of' Belgiuni - Admis.sihility - Ccngo not acting in the corzt e s t o f ' protection of' one c!f' its nationuls - Inupplic~~hilitj, of' rules reluting to eshc~~rstiotz of' loccil rc-riiedirs. S ~ r h . ~ i d i u r ~ . nrgurîzent of Belginnz - Non ultra peti a rule - Cluim in Applic.cztion irlstituting proceeeling.~ that Belgiui?z'.s cluirn to esercisr LI ur~ii,~rstrl jurisdiction in i.ssuing the arrest it.arrunt i.s corztrury to ir terncrtionrrl 1u1v - Cluim r ~ o t nicrcic iii ,fïrzrll .s~~hr~ii.s.siorz~ of' the Congo - Court ~rrzahle tu rule on tlîat quesrepresented by H.E. Mr. Jacques Masangu-a-Mwanza. Ambassldor Extraordinary and Plenipotentiary of the Democratic Republic of the Congo t o the Kingdom of the Netherlands. as Agent; H.E. Mr. Ngele Masudi, Minister of Justice and Keeper of the Seals, Maître Kosisaka Kombe, Legal Adviser to the Pr~:sidency of the Republic, Mr. François Rigaux, Professor Emeritus at the Catholic University of Louvain, Ms Monique Chemillier-Gendreau. Professor at the University of Paris VI1 (Denis Diderot), Mr. Pierre d'Argent, Chargé de cours, Catholic Uiiiversity of Louvain, Mr. Moka N'Golo, Bâtonnier, Mr. Djeina Wembou, Professor at the University of Abidjan, as Counsel and Advocates; Mr. Mazyambo Mirkengo, Legal Adviser to the Ministry of Justice, as Counsellor,

text: the Kingdom of Belgium, represented by Mr. Jan Devadder, Director-General, Legal Matters, Ministry of Foreign Affairs. as Agent; Mr. Eric David, Professor of Public International Law, Université libre de Bruxelles, Mr. Daniel Bethlehem, Barrister, Bar of England aiid Wales, Fellow of Clare Hall and Deputy Director of the Lauterpacht Research Centre for International Law, Uiniversity of Cambridge, as Counsel and Advocates; H.E. Baron Olivier Gillès de Pélichy. Permanent Representative of the Kingdom of Belgium to the Organization for the Prohibition of Chemical Weapons. responsible for relations with the International Court of Justice, Mr. Claude Debrulle, Director-General. Criminal Legislation and Human Rights, Ministry of Justice, Mr. Pierre Morlet, Advocate-General, Brussels Cour d'Appel, Mr. Wouter Detavernier, Deputy Counsellor, Cirectorate-General Legal Matters, Ministr:y of Foreign Affairs, Mr. Rodney Neufeld, Research Associate, Lauterpacht Research Centre for International Law. University of Cambridge, Mr. Tom Vanderhaeghe. Assistant at the Universi é libre de Bruxelles,

text: T H E COUKT.

text: composed as above, after deliberation,

text: tlrlivrrs tllr ,fi)lloiviilg Judgnient :

text: On 17 October 2000 the Democratic Republic c~f the Congo (hereinafter referred to as "the Congo") filed in the Registry of !.he Court an Application instituting proceedings against the Kingdom of Belgi~~m (hereinafter referred to as "Belgium") 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 Iielgium had violated the "principle that a State may not exercise its authority on the territory of another State", the "principle of sovereign equality among al1 Members of the United Nations, as laid dowii 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 Coiigo invoked in the aforementioned Application the fact that "Belgium ha[d] a(:cepted the jurisdiction of the Court and, in so Far as may be required, the [aforementioned] Application signifie[d] acceptance of that jurisdiction by the De:nocratic Republic of the Congo".

text: Pursuant to Article 40, paragraph 2, of the Starute, the Application was forthwith communicated to the Government of Belgiiim by the Registrar; and, in accordance with paragraph 3 of that Article, al1 States entitled to appear before the Court were notified of the Application.

text: Since the Court included upon the Bench no jiidge of the nationality of either of the Parties, each Party proceeded to exercise the right conferred by Article 31, paragraph 3, of the Statute to choose a judge ad hoc to sit in the case; the Congo chose Mr. Sayeman Bula-Bula, and Belgium Ms Christine Van den Wyngaert.

text: On 17 October 2000, the day on which the P pplication was filed, the Government of the Congo also filed in the Registry of the Court a request for the indication of a provisional measure based on AI tide 41 of the Statute of the Court. At the hearings on that request, Belgium, l'or its part, asked that the case be removed froni the List. By Order of 8 December 2000 the Court, on the ont: hand, rejected Belgium's request that the case be removed from the List and, c,n the other, held that the circumstances, as they then presented themselves to tl-e Court, were not such as to require the exercisi: of its power under Article 41 of the Statute to indicate provisional measures. In the same Order, the Cour. also held that "it [was] desirable that the issues before the Court should be d':termined as soon as possible" and that "it [was] therefore appropriate to ensiire that a decision on the Congo's Application be reached with al1 expedition"

text: By Order of 1:3 December 2000, the President of the Court, taking account of the agreement of the Parties as expresse1 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 Belgiun, addressing both issues of jurisdiction and admissibility and the merits. By Orders of 14 March 2001 and 12 April 2001, thi:se time-limits, taking account of the reasons given by the Congo and the agreement of the Parties, were successively extended. The Memorial of the Congo was filed on 16 May 2001 within the time-limit thus finally prescribed.

text: By Order of 27 .rune 2001, the Court, on the o n i hand, rejected a request by Belgium for authorization, in derogation from th: previous Orders of the President of the Court, to submit preliminary objecti sns involving suspension of the proceedings on the merits and, on the other, exiended the time-limit prescribed in the Order of 12 April 2001 for the filing by Belgium of a Counter- Memorial addressing both questions of jurisdiction and admissibility and the merits. The Counter-Memorial of Belgium was filed on 28 September 2001 within the time-limit thus extended.

text: Pursuant to Article 53, paragraph 2, of the Rules, the Court, after ascertaining the views of the Parties, decided that copies oi'the pleadings and documents annexed would be made available to the public it the opening of the oral proceedings.

text: Public hearings vtere held from 15 to 19 October 2001, at which the Court heard the oral arguments and replies of: For tlîe Congo: H.E Mr. Jacques Masangu-a-Mwanza, H.E Mr. Ngele Masudi, Maître Kosisaka Kombe, Mr. François Rigaux, Ms IMonique Chemillier-Gendreau, Mr. Pierre d'Argent. For Belgiunî: Mr. Jan Devadder, Mr. Daniel Bethlehem, Mr. Eric David.

text: At the hearings, Members of the Court put cuestions to Belgium, to which replies were given orally or in writing, in accsrdance with Article 61, paragraph 4, of the Rules of Court. The Congo provided its written comments on the reply that was given in writing to one of the:e questions, pursuant to Article 72 of the Rules of Court.

text: In its Application, the Congo formulated the decision requested in the following terms : "The Court is requested to declare that the Kingdom of Belgium shall annul the international arrest warrant issued on 1 I April2000 by a Belgian investigating jud,ge, Mr. Vandermeersch, of tkie Brussels Tribunal de première instance against the Minister for Foreign Affairs in office of the Democratic Repiiblic of the Congo, Mr. Abdu aye Yerodia Ndombasi, seeking his provisional detention pending a requc st for extradition to Belgium for alleged crimes constituting 'serious vislations of international humanitarian law', that warrant having been circulated by the judge to al1 States, including ithe Democratic Republic of the Congo, which received it on 12 July 2000." 1 1 . In the course of the written proceedings, the fo lowing submissions were presented by the Parties: On hehalf' of' the Governrnetzt of' tlze Congo. in the Memorial : "In light of the facts and arguments set out al)ove, the Government of the Democratic R.epublic of the Congo requests ihe Court to adjudge and declare that :

text: 1. by issuing and internationally circulating the rrest warrant of 11 April 2000 against Mr. Abdulaye Yerodia Ndombasi, Belgium committed a violation in regard to the D R C of the rule of customary international law concerning the absolute inviolability and immunity from criminal process of inciumbent foreign ministers; 2. a formal finding by the Court of the unlawfiilness of that act constitutes a n appropriate form of satisfaction, providing reparation for the consequent moral injury t o the D R C ; 3. the violation o'f international law underlying the issue and international

text: circulation of the arrest warrant of 11 April 2 000 precludes any State,

text: including Belgium, from executing it; 4. Belgium shall be required to recall and cantel the arrest warrant of 11 April 2000 and to inform the foreign auth ~ r i t i e s to whom the warrant was circulated that, following the Coitrt's Judgment, Belgium renounces its request for their CO-operation i l executing the unlawful warrant." On behaif qf the Governnlent of' Brlgiurn,

text: in the Counter-Memorial: "For the reasons stated in Part II of this Co~~nter-Memorial, Belgium requests the Couirt. as a preliminary matter, to iidjudge and declare that the Court lacks jiirisdiction in this case andlor that the application by the Democratic Repuiblic of the Congo against Belgium is inadmissible. If, contrary to the preceding submission, the Court concludes that it does have jurisdiction in this case and that the application by the Democratic Republic of the Congo is admissible, Belgiiim requests the Court to reject the submisisions of the Democratic Repuhlic of the Congo on the merits of the case and to dismiss the application."

text: At the oral proceedings, the following submissiclns were presented by the Parties :

text: On hehcilf of the Governnlent o f t h e 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 aiid internationally circulating the arrest warrant of 11 April 2000 against Mr. Abdulaye Yerodia IJdombasi, Belgium committed a violaition in regard to the Democrati: Republic of the Congo of the rule of customary international law concerning the absolute inviolability and immunity from criminal process of incumbent foreign ministers; in so doing, it violated the princi1)le of sovereign equality among States; 2. a foi-mal finding by the Court of the unlawfiilness of that act constitutes an apprc~priate form of satisfaction, providing reparation for the consequent moral injury to the Democratic Republic of the Congo;

text: 3. the violations of international law underlyin4 the issue and international circulatiion 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 11 April 2000 and to inform the foreign authorities t o whom the warrant was circ~ilated that Belgium renounces its request for their cooperation in executing the unlawful warrant." On hrhulf i f ' t l i ~ Governnîmt of' Belgiuni, "For the reasons stated in the Counter-Memorial of Belgium and in its oral submissions, Belgium requests the Court, as a preliminary matter, to adjudge and declare that the Court lacks jurisdi':tion in this case andlor that the Application by the Democratic Repubtic of the Congo against Belgium is inadmissible. If, contrary to the submissions of Belgium wiih regard to the Court's jurisdiction and tlhe admissibility of the Applicat on, the Court concludes that it does have jurisdiction in this case and that the Application by the Democratic Republic of the Congo is admissib e, Belgium requests the Court to reject the submissions of the Democratii Republic of the Congo on the merits of the case and to dismiss the Appication."

text: O n 11 April 2!000 a n investigating judge 01' the Brussels Tribunal de première instance issued "an international arrest warrant in absentiu" against Mr. Abdulaye Yerodia Ndombasi, charging him, as perpetrator o r co-perpetrator, with offences constituting grave breaches of the Geneva Conventions of 1949 and of the Additional Protocols thereto, and with crimes against humanity. At the tiine when the arrest warrant was issued Mr. Yerodia was the Minister for Foreign. Affairs of the Congo.

text: The arrest warrant was transmitted to the Congo on 7 June 2000, being received by the Congolese authorities on l:! July 2000. According to Belgium, the warrant was at the same time trinsmitted to the International Criminal Police Organization (Interl,ol), an organization whose function is ta' enhance and facilitate cross.border criminal police co-operation worldwide; through the latter, it \vas circulated internationally.

text: In the arrest warrant, Mr. Yerodia is accused of having made various speeches inciting, racial hatred during the month of August 1998. 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 Conventions of 12 August 1949 and of Protocols 1 and II of 8 June 1977 A~iditional Thereto", as amended by the Law of 10 February 1999 "concerning the Punishment of Serious Violations of International Humanitarian Law" (hereinafter referred to as the "Elelgian Law"). Article 7 of the B,elgian Law provides that "The Belgian courts shall have jurisdiction in respect of the offences provlded for in the present Law. wheresoever they may have been cornmittecl". In the present case, according to Belgium. the complaints that initiated the proceedings as a result of which the arrest warrant was issued emanated from 12 individuals al1 resident in Belgium, five of whom were of Belgian nationality. It is not contested by Belgiun~, however, that th: alleged acts to which the arrest warrant relates were committed outside Belgian territory, that Mr. Yerodia was ncit a Belgian national at the time of those acts, and that Mr. Yerodia wals not in Belgian territory at i he time that the arrest warrant was issued and circulated. That no Belgian nationals were victims of the violence that was said to have resultrd from Mr. Yerodia's alleged offences was also uncontested. Article 5, paragraph 3, of the Belgian Law further provides that "[ilmmunity attaching to the official capacity of ;t person shall not prevent the application of the present Law".

text: At the hearing,~, Belgium further claimed th it it offered "to entrust the case to the comptent authorities [of the Gong>] for enquiry and possible prosecution", and referred to a certain nu~nber of steps which it claimed to have taken in this regard from September 2000, that is, before the filing of the Application instituting proceedings. The Congo for its part stated the following: "We have scant infornation concerning the form [of these Belgian proposals]." It added tha "these proposals . . . appear to have been made very belatedly, namely ujter an arrest warrant against Mr. Yerodia had been issued".

text: On 17 October 2000, the Congo filed in the Registry an Application instituting the present proceedings (see paragi aph 1 above), in which the Court was requested "to declare that the Kingdom of Belgium shall annul the international arrest warrant issued o ~ i 11 April 2000". The Congo relied in its ,4pplication on two separate legal grounds. First, it claimed that "[tlhe universal jurisdiction that the 13elgian 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 anothei- State and of the principle of sovereign equality among al1 Members of the United hations, as laid down in Article 2, paragraph 1, of the Charter of the United Nations".

text: Secondly, it claimed that "[tlhe non-recognition, on the basis of Article 5 . . . of the Belgian Law, of the immunit) of a Minister for Foreign Affairs in officc" constituted a "[v]iolation of the diplomatic immunity of the Minister for Foreign Affairs of a so~ereign State, as recognized by the jurispriudence of the Court and foll3wing from Article 41, paragraph 2, of the Vienna Convention of 18 A ~ r i l 1961 on Diplomatic Relations".

text: On the same day that it filed its Application instituting proceedings, the Congo submitted a request to the Court for the indication of a provisional measure under Article 41 of the Statute of the Court. During the hearings devoted to consideration of that request, the Court was informed that in November 2000 a ministerial rejhuffle had taken place in the Congo, folloviiing which Mr. Yerodia had zeased to hold office as Minister for Foreign Affairs and had been entrusted with the portfolio of Minister of Education. Belgium accordingly da~med that the Congo's Application had become moot and asked the Coiirt, as has already been recalled, to remove the case from the List. By Order of 8 December 2000, the Court rejected both Belgium's submissions to that effect and also the Congo's request for the indication of provisional measures (see paragraph 4 above).

text: From mid-April2001, with the formation of a new Government in the Congo, Mr. Yerodia ceased to hold the post ~f Minister of Education. He no longer holds any ministerial office today.

text: On 12 September 2001, the Belgian National Central Bureau of Interpol requested the Interpol General Secretariat to issue a Red Notice in respect of Mr. Yerodia. Such notices concern infiividuals whose arrest is requested with a view to extradition. On 19 October 2001, at the public sittings held to hear the oral arguments of the Parti-s in the case, Belgium informed the Court that Interpol had responded on 27 September 2001 with a request for additional information, and that no Red Notice had yet been circulated.

text: Although the ,4pplication of the Congo ortginally advanced two separate legal groundls (see paragraph 17 above), I he submissions of the Congo in its Memorial and the final submissions which it presented at the end of the oral proceedings refer only to a violatio 1 "in regard to the . . . Congo of the rule of customary international law cl~ncerning the absolute inviolability and immunity from criminal process of incumbent foreign ministers" (see paragraphs 1 1 and 12 above).

text: In their written pleadings, and in oral argument, the Parties addressed issues of jurisdiction and admissibility as well as the merits (see paragraphs 5 and 6 above). In this connection, 13elgium raised certain objections which the Court will begin by addressiiig.

text: The first objection presented by Belgium reiids as follows: "That, in the light of the fact that Mr. Yerodia Ndombasi is no longer either Minister for Foreign Affairs of the [Congo] or a minister occupying any other position in the . . . Government [of the Congo], there iij no longer a 'legal dispute' between the Parties within the meanung of this term in the Optionil Clause Declarations of the Parties and that the Court accordingly lacks jurisdiction in this case."

text: Belgium does not deny that such a legal d spute existed between the Parties at the t i n ~ e when the Congo filed its Application instituting proceedings, and that the Court was properly seised by that Application. However, it contends that the question is not whether a legal dispute existed at that time, but whether a legal dispute exijts at the present time. Belgium refers in this respect inter alia to the Nor, herrz Cameroons case, in which the Court found that it "may pronounce iudgment only in connection with concrete cases where there exists at th: time of the adjudication an actual controversy involving a conflict of legal interests between the parties" (I.C.J. Reports 1963, pp. 33-34), as well as to the Nucleur Tests cases ('Austrulitz v. France)(New Zealurzd v. France), in which the Court stated the following: "The Court, as a court of law, is called upon to resolve existing disputes between States . . . The dispute brought before it must therefore continue to exist at the time when the Court makes its decision" (1. C. J Reports 1974, pp. 270- 27 1, para. 55; p. 476, para. 58). Belgium argues that the position of M I . Yerodia as Minister for Foreign Affairs was central to the Congo's Application instituting proceedings. and emphasizes that there has now be:n a change of circumstances at the very heart of the case, in view of the fact that Mr. Yerodia was relieved of his position as Minister for Foreign Affairs in November 2000 and that, since 15 April2001, he has occupied no position in the Government of the Congo (see paragraphs 18 and 19 above). According to Belgium, while there may still be a difference cf opinion between the Parties on the scope and content of internatioral law governing the immunities of a Minister for Foreign Affairs, thai difference of opinion has now become a matter of abstract, rather than of practical, concern. The result, in Belgiurn's view, is that the case has become an attempt by the Congo to "[seek] an advisory opinion from the Court", and no longer a "concrete case" involving an "actual controvers) " between the Parties, and that the Court accordingly lacks jurisdiction in the case.

text: The Congo rej~ects this objection of Belgium It contends that there is indeed a legal dispute between the Parties, in ihat the Congo claims that the arrest warrant was issued in violation of the immunity of its Minister for Foreign Affairs, that that warrant v/as unlawful ah initio, and that this legal defect persists despite the sub'equent changes in the position occupied by the individual concerned, while Belgium maintains that the issue and circulation of the arrest warrant were not contrary to international law. The Congo adds that the termination of Mr. Yerodia's official duties in no way operated to efface the wrongful act and the injury that flowed from it, for which the Congo CO ltinues to seek redress.

text: The Court recalls that, according to its settled jurisprudence, its jurisdiction must be determined at the time that he act instituting proceedings was filed. Thus, if the Court has jurisdiction on the date the case is referred to it, it continues to d o so regardless of subsequent events. Such events might lead to a finding that an application has subsequently

text: of the case it had jurisdiction to deal with it. and that it still has such jurisdiction. Belgium's first objection must therefore be rejected.

text: 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 Affairs 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 rrerits of the case."

text: Belgium also ri:lies in support of this objection on the Nortlzern Cumeroon.~ case, in which the Court considered that it would not be a proper discharge of ils duties to proceed further iii a case in which any judgment that the Court might pronounce would be "without object" (I. C. J. Reports 1963, p. 38), and on the Nucleur T e ~ t s cases, in which the Court saw "no reason to allow the continuance of proceedings which it knows are bound to be fruitless" ( I . C.J. Reports 1974, p. 271, para. 58; p. 477, para. 61). Belgium maintains that the decllrations requested by the Congo in its first and second submissions would clearly fall within the principles enunciated by the Court in those cases, since a judgment of the Court on the merits in this case could onlv be dire< ted towards the clarification of the law in this area for the futire, or be designed to reinforce the position of one or other Party. It relies in support of this argument on the fact that the Congo does not allege any material injury and is not seeking compensatory damages. It adds that the issue and transmission of the arrest warrant were not predicated on the ministerial status of the person concerned, that he is no longer a minister, and that the case is accordingly now devoid of object.

text: The Congo contests this argument of Belgium, and emphasizes that the aim of the Congo - to have the disputed arrest warrant annulled and to obtain redress for the moral injury suffered - remains unachieved at the point in time when the Court is called upon to decide the dispute. According to the Congo, in order for the case to have become devoid of ob-ject during the proceedings, the cause of the violation of the right would have had to disappear, a l d the redress sought would have to have been obtained.

text: The Court has already affirmed on a number csf occasions that events occurring subsequent ito the filing of an application rlay render the application without object such that the Court is not called lpon to give a decision thereon (see Qurstiorzc, oflnterprrtrition und Applplicution of tlzc 1971 Montreul Convention urising,fi.om the Aeviul Incident ut Lockerbie ( L i h y u ~ Arub Jumalziriyu v. United Kingdom), Prelitninury Ohjections, Judgment, I. C. J. Reports 1998, p. 26, para. 46; and Questions of Inte.pretution und Application of the 1971 Montreal Convention urising from the Aeriul Incident ut Lockerhie (Lihyan Aruh Jumuhiriyu v. United Stute.; of Americu), Preliminu- Objections, Judgment, 1. C. J. Reports 1998, p. 131, para. 45). However. it considlers that this is not such a case. 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 deprilied 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 unl,iwful, thus providing redress for the moral injury which the warrant alleyedly caused to it. The Congo also continues to seek the cancellation ol' the warrant. For its part, Belgium contends that it did not act in violation of international law and it disputes the Congo's submissions. In th: view of the Court. it follows from the foregoing that the Application of the Congo is not now without object and that accordingly the case is not moot. Belgium's second objection must accordingly be rejected.

text: The third Belgian objection is put as follows "That the case as it now stands is materialiy different to that set out in the [Congol's Application instituting prlxeedings and that the Court accordingly lacks jurisdiction in the case andlor that the application is inadmissible."

text: According to Belgium, it would be contrarJ1 to legal security and the sound administration of justice for an applicant State to continue proceedings in circumstances in which the factua dimension on which the Application was based has changed fundamentally, since the respondent State would in those circumstances be uncertain, until the very last moment, of the substance of the claims against it. Belgium argues that the prejudice suffered by the respondent State in ihis situation is analogous to the situation in which an applicant State lormulates new claims during the course of the proceedings. It refers to tl-e jurisprudence of the Court holding inadmissible new claims formulated during the course of the proceedings which, had they been entertained. would have transformed the subject ol' the dispute originally brought before it under the terms of the Application (see Fislzeric~s J~vi~sdiction (Spciin v. Crinadu), Jurisdic.tiotz of' th@ Court, Judgm~tzt, I. CI J. R e p o ~ ts 1998, pp. 447-448, para. 29). In the circumstances, Belgium contends that, if the Congo wishes to maintain its claims, it should be required to initiate proceedings afresh or, at the very least, apply to the Court for p:rmission to amend its initial Application.

text: In response, the Congo denies that there has been a substantial amendment of the terms of its Application, and nsists that it has presented no new claim, whether of substance or of iorm, that would have transformed the subject-matter of the dispute. The Congo maintains that it has done nothing through the various stages i 1 the proceedings but "condense and refine" its claims, as do most States that appear before the Court, and that it is simply making use of the right of parties to amend their submissions until the end of the oral proceec ings.

text: The Court notes that, in accordance with settled jurisprudence, it "cannot, in principle, allow a dispute brought befctre it by application to be transformed by amendments in the submissions into another dispute which is different in character" (Société commerciale de Belgique, Judgment, 1939, P. C. I. J., Series AIB, No. 78, p. 173 ; 4:f. Militury and Paramilitary Actiiities in arzci uguinst Nicaragua (Nica,agua v. United States of' America), Jurisdiction and Adnzissihility, J u d ~ m e n t , 1. C. J. Reports 1984, p. 427, para. 80; see also Certain Phospjzate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, 1. C. J. Reports 1992, pp. 264-267, ini particular paras. 69 and 70:l. However, the Court considers that in the present case the facts undeilying the Application have 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 wlho was at that time the Minister for Foreign Affairs of the Congo were coiîtrary to international law. The Congo's final submissions arise "directly out of the question which is the subject-matter of that Application" (Fisheries Jurisdiction (Federal Republic qf' Gerrnuny v. Iceland), Me.-its, Judgment, 1. C. J. Reports 1974, p. 203, para. 72; see also Temple of Preuh Vilzear, Merits, Judgmen t, 1. C. J. Reports 1962, p. 36).

text: In these circumst;~nces, the Court considers that Belgium cannot validly maintain thai; 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 objection must accordingly be rejccted.

text: The fourth Bel.gian objection reads as follo~vs: "That, in the light of the new circumstances concerning Mr. Yerodia Ndombasi, the case has assumed the character of an action of diplomatic protection but one in which the individual being protected has failed to exhaust local remedies, and that the Court accordingly lacks jurisdiction in the case andlor that the application is inadmissible."

text: In this respect, Belgium accepts that, when the case was first instituted, the Congo had a direct legal interest in the niatter, and was asserting a claim in its own name in respect of the allegetl violation by Belgium of the immunity of the Congo's Foreign Minister. 1-Iowever, according to Belgium, the case was radically transformed aftei the Application was filed, iiamely on 15 April 2001. when Mr. Yerodia ceased to be a member of the Congolese Government. Belgium maintains that two of the requests made of the Court in the Congo's final submissions in practice now con- Cern the legal effect of an arrest warrant issued aga nst a private citizen of the Congo, and that 1 hese issues fall within the rea m of an action of diplomatic protection. It adds that the individual concerned has not exhausted al1 available remedies under Belgian law a necessary condition before the Congo can espouse the cause of one 01' its nationals in international proceedings

text: The Congo, on the other hand, denies that this is an action for diplomatic protection. It maintains that it is brin:$& these proceedings in the name of the Congolese State, on account of the violation of the immunity of its Minister for Foreign Affairs. The Congo further denies the availability of rennedies under Belgian law. It p i n t s out in this regard that it is only when the Crown Prosecutor has betome seised of the case file and makes submissions to the Chambre du conseil that the accused can defend himself before the Chambre and seek i O have the charge dismissed.

text: 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 still concerns the lawfulness of the arr:st warrant issued on 11 April 2000 against a person who was at the tine 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. As the Congo is not acting in the context of protection of one of its nationals, Belgium cannot rely upon the rules relating to the exhaustion of local remedies.

text: In any event, the Court recalls that an objectior, based on non-exhaustion of local remedies relates to the admissibility of the application (see Interlzundel, Preliminary Objections, Judgment, 1. C. J. Reports 1959, p. 2 6 ; Elettrunica Siculu S.p. A. ( E L S I ) , Judgment, 1. C J. Reports 1989, p. 42, para. 49). Under settled jurisprudence, the critical date for determining the admissibility of an application is the (late on which it is filed

text: (see Questions of' Interpretation and Applicution of' the 1971 Montreal Converztion un.singjkorn the Aeriul Incident ut Lockerbie (Libyun Arub Jamahirij~u v. United Kingdom), Preliminary Objections, Judgment, 1. C. J. Reports 1998, pp. 25-26, paras. 43-44; and Questions of Interpretation und Applicution of the 1971 Montreal Convention clrising.from the Aerial Incident ut Lockerhie (Libyun Arab Jarnuhiriy~ v. United States qf Anzerica), Prelimincrry Objections, Judgtrzetzt, L C. J. Reports 1998, pp. 130-1 31, paras. 4.2-43). Belgium accepts that, on the date on which the Congo filed the A.pplication instituting proceecings, the Congo had a direct legal interest i n the matter, and was asserting a claim in its own name. Belgium's fourth objection must accordingly be rejected.

text: As a subsidiary argument, Belgium further contends that "[iln the event that the Court t-lecides that it does have jurisdiction in this case and that the application iij admissible, . . . the non ultra petita rule operates to limit the jurisdiction of the Court to those issues that are the subject of the [Congol's final isubmissions". Belgium points out that, while 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, the Congo no longer claims in its final submissions that Belgium wrongly conferred upon itself universal jurisdiction in ubse~ltia. According to Belgium, the Congo novi confines itself to arguing that the arrest warrant of 11 April 2000 was unlawful because it violated th<. immunity from jurisdiction of its Minister for Foreign Affairs, and that the Court consequently cannot rule on the issue of universal juristiiction in any decision it renders on the merits of the case.

text: The Congo, for its part, states that its intt:rest in bringing these proceedings is to obtilin a finding by the Court that it has been the victim of an internationally wrongful act, the question whether this case involves the "exercise of an excessive universal jurisdiction ' being in this connection only a secondary consideration. The Congo asserts that any consideration by the Court of the issues of international aw raised by universal jurisdiction would be undertaken not at the request of the Congo but, rather, by virtue of the defence strategy adopttd by Belgium, which appears to maintain 1 hat the exercise of such jurisdiction can "represent a valid counterweight ito the observance of immunities".

text: The Court would recall the well-established principle that "it is the duty of the Court not only to reply to the questions as stated in the final submissions of the parties, but also to abstain frc'm deciding points not included in those submissions" (Asylunz, Judgment. 1. C. J. Reports 1950, p. 402). While the Court is thus not entitled to decide upon questions not asked of it, the noui ultvu petitu rule nonetheless cannot preclude the Court from 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 tl-iat regard with the rules anci principles of international law governinj; 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, shoulc it deem this necessary or desirable.

text: The Court coincludes from the foregoing that it has jurisdiction to entertain the Congol's Application, that the Application is not without object and that accordingly the case is not moot and that the Application is admissible. T'hus. the Court now turns to the merits of the case.

text: As indicated above (see paragraphs 41 to 4: above), in its Application instituting these proceedings, the Congo originally challenged the legality of the arrest warrant of 11 April 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 invokes only the latter grouiid.

text: As a matter alf 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 has jui-isdiction 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 will address first .a the question whether, assuming that it had jurijdiction under international law to issue and circulate the arrest warrant of 11 A ~ r i i 2000. Belgium in so doing violated the immunities of the then Minister for Foreign Affairs of the Cong~o.

text: The Congo maintains that, during his or her term of office, a Minister for Foreign Affairs of a sovereign State is entitled to inviolability and to immunity fr'om criminal process being "ibsolute or complete", that is to say, they are subject to no exception. P~ccordingly, the congo contends that no criininal prosecution may be brought against a Minister for Foreign Affairs in a foreign court as long a i he or she remains in office, and that any fi nding of criminal responsibility by a domestic court in a foreign country, or any act of investigation iindertaken with a view to bringing him or her to court, would contravene the principle of immunity from jurisdiction. According to the Congo, th? basis of such criminal immunity is purely hnctional, and immunity is azcorded under customary international law simply in order to enable the foreign State representative enjoying siich immunity to perform his or her functions freely and without let or tiindrance. The Congo adds that the immunity thus accorded to Ministers for Foreign Affairs when i 1 office coverç al1 their acts, including any ccsmmitted before they took of ice, and that it is irrelevant whether the act:s done whilst in office may be characterized or not as "official acts".

text: The Congo states further that it does not ileny the existence of a principle of international criminal law, deriving fr2m the decisions of the Nuremberg and Tokyo international military tribunals, that the accused's official capacity at the time of the acts cannot, before any court, whether domestic or international, constitute a "ground 2f exemption from his criminal responsibiliity or a ground for mitigation of sentence". The Congo then stresses ithat the fact that an immunitb might bar prosecution before a specific court or over a specific period coes not mean that the same prosecution cannot be brought, if appropriate, before another court which is not bound by that immunity, or at anothc r time when the immunity need no longer be taken into account. It concludes that immunity does not mean impunity.

text: Belgium maintains for its part that, while Ministers for Foreign Affairs in office generally enjoy an immunity from jurisdiction before the courts of a foreign State, such immunity applies only to acts carried out in the course of theii- official functions, and cannot protect such persons in respect of private acts or when they are acting otherwise than in the performance of their official functions.

text: Belgium further states that, in the circumstances of the present case, Mr. Yerodia enjoyed no immunity at the t i r e when he is alleged to have committed the acts of which he is accused, and that there is no evidence that he was then acting in any official capacity. It observes that the arrest warrant was iijsued against Mr. Yerodia personally.

text: The Court would observe at the outset thaf in international law it is firmly established that, as also diplomatic and consular agents, certain holders of high-ranking office in a State, such as ttle Head of State, Head of Government and Minister for Foreign Affairs, enjoy immunities from jurisdiction in other States, both civil and crimin;il. For the purposes of the present case, it is only the immunity from criminal jurisdiction and the inviolability of an incumbent Minister for Foribign Affairs that faIl for the Court to consider.

text: A certain numiber of treaty instruments wer: cited by the Parties in this regard. These included, first, the Vienna Convention on Diplomatic Relations of 18 April 1961, which states in its pre imble that the purpose of diplomatic privileges and immunities is "to e lsure the efficient performance of the func;tions of diplomatic missions as representing States". It provides in Article 32 that only the sending State may waive such immunity. On these points, the Vienna Conventicn on Diplomatic Relations, to which both the Congo and Belgium are parties, reflects customary international lavi. The same applies to the corresponding provisions of the Vienna Convention on Consular Relations of 24 April 1963. to which the Congo and Belgium are also parties.

text: The Congo and I3elgium further cite the Ne- York Convention on Special Missions of 8 December 1969, to which ~ h e y are not, however. parties. They recall ihat under Article 21, paragrilph 2, of that Convention : "The Head of the Government, the Minis~er for Foreign Affairs and other persoils of high rank, when they tal.e part in a special mission of the sending State, shall enjoy in the receiving State or in a third State, in alddition to what is granted by the present Convention, the facilities, privileges and immunitier, accorded by international law." These conventions, provide useful guidance on certain aspects of the question of immuniities. They do not, however, 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 relatin;: to the immunities of such Ministers raised in the present case.

text: In customary international law, the immunities accorded to Ministers for Foreign Afjàirs are not granted for their oersonal 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, the Court must therefore first consider the nature of the functions exercised by a Minister for Foreign Affairs. He or sh: is in charge of his or her Government's diplomatic activities and generally acts as its representative in internatilonal negotiations and intergovernmental meetings. Ambassadors and oither diplomatic agents carry out their duties under his or her authority. His or her acts may bind the State represented, and there is a presumptioln that a Minister for Foreign Affairs, simply by virtue of that office, has full powers t o act on behalf of the State (see, for example,

text: Article 7

text: , paragraph 2 ( u ) , of the 1969

text: Vienna Convention on the Law of Treaties

text: ). In the performance of thesr: functions, he or she is frequently required to travel internationally, and thus must be in a position freely to do so whenever the need should arise. He or she must also be in constant communication with the Government, and with its diplomatic missions around the world, and be capable at any time of communicating with represi:ntatives of other States. The Court further observes that a Minister for Foreign Affairs, responsible for the conduct of his or her State's relations with al1 other States, occupii:~ a position such that, like the Head of State or the Head of Governmt:nt, he or she is recognized under international law as representative of the State solely by virtue of his or her office. He or she does not halle to present letters of credence: to the contrary, it is generally the Minister who determines the authority to be conferred upon diplomatic agents and countersigns their letters of credence. Finally, it is to the Minister f3r Foreign Affairs that chargés d'affaires are accredited.

text: The Court accordingly concludes that the 'unctions of a Minister for Foreign Affairs (are such that, throughout the duration of his or her office, he or she when abroad enjoys full immun ty from criminal jurisdiction and inviolability. That immunity and that lnviolability protect the individual concerned against any act of authority of another State which would hinder him 01- her in the performance of his or her duties.

text: In this respect, no distinction can be drawn between acts performed by a Minister for Foreign Affairs in an "official" capacity, and those claimed to have been performed in a "privat~: capacity", or, for that matter, between acts performed before the person concerned assumed office as Minister for Foreign Affairs and acts committed during the period of office. Thus, if a Minister for Foreigr~ Affairs is arrested in another State on a ci-iminal charge, he or she is cli,arly thereby prevented from exercising the functions of his or her office. The consequences of such impediment to the exercise of those officia functions are equally serious, regardless of whether the Minister for Foreign Affairs was, at the time of arrest, preseilt in the territory of the arre:,ting State on an "official" visit or a "private" visit, regardless of whether the arrest relates to acts allegedly perforined before the person becam: the Minister for Foreign Affairs or to acts performed while in office, and regardless of whether the arrest relates to alleged acts performed in an "official" capacity or a "private" capacity. 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.

text: The Court will now address Belgium's argument that immunities accorded to incumbent Ministers for Foreign Affi~irs can in no case protect them where the:y are suspected of having coinmitted war crimes or crimes against humanity. In support of this position, Belgium refers in its Counter-Memorial 1:o various legal instruments creating international criminal tribunals, to examples from national legislation, and to the jurisprudence of national and international courts.

text: Belgium begins by pointing out that certain piovisions of the instruments creating international criminal tribunals state expressly that the official capacity of a person shall not be a bar to the exercise by such tribunals of their jurisdiction. Belgium also places emphasis on certain decisions of national courts, and in particular on the judgments rendered on 24 March 1999 by the House of Lords in the United Kingdom and on 13 March 2001 by the Court of Cassation in France in the Pinochet and Qudduji cases respectively, in which it cclntends that an exception to the immunity rule was accepted in the case of serious crimes under inernational law. Thus, according to Belgium, the Pinochet decision recognizes an exception to the immunity rule when Lord Millett stated that "(ilnternational law cannot be supposed to have established a crime having the character of a jus cogens and at the saime time to have provided an immunity which is coextensive with the obligation it seeks to impose", or when Lord Phillips of Worth Matravers said that "no established rule of international law requires state immuinity vatione muteriue to be t~ccorded in respect of prosecution for an international crime". As to the French Court of Cassation, Belgium contends that, in holding that, "under international law as it currently stands, the crime alleged [acts of terrorism], irrespective of its gravity, does not come within the exceptions to the principle of immunity from jurisdiction for incumbent foreign Heads of State", the Court explicitly recognized the existence of such exceptions.

text: The Congo, for its part, States that, under international law as it currently stands, there is no basis for asserting tha there is any exception to the principle of absolute immunity from crimin;tl process of an incumbent Minister for Foreign Affairs where he or she is accused of having committed crimes under international law. In support of this contention, the Congo refers to State practice, giving particular consideration in this regard to the Pinochet and Qudduji cases, and concluding that such practice does not correspond to that which Belgium claims but, on the contrary, confirms the ;~bsolute nature of the immunity from criminal process of Heads of State and Ministers for Foreign Affairs. Thus, in the Pinoclzet case, the Congo cites Lord Browne- Wilkinson's statemenit that "[tlhis immunity enjoyed by a head of state in power and an ambasisador in post is a complete immunity attached to the person of the head of state or ambassador and rendering him immune from al1 actions or prosecutions . . .". Accordil~g to the Congo, the

text: French Court of Cassation adopted the same position in its Qudduj judgment, in affirming that "international custom birs the prosecution of incumbent Heads of State, in the absence of any contrary international provision binding on the parties concerned, before: the criminal courts of a foreign State". As regards the instruments creating internaticmal criminal tribunals and the latter's jurisprudence, these, in the Congo's view, concern only those tribunals, and no inference can be drawn from them in regard to criminal proceedingij before national courts against persons enjoying immunity under international law.

text: The Court has carefully examined State practice, including national legislation and those few decisions of national higher courts, such as the House of Lords or the French Court of Cassation. It has been unable to deduce from this practice that there exists under c lstomary international law any form of exception to the rule according irilmunity from criminal jurisdiction and inviolability to incumbent Ministc rs for Foreign Affairs, where they are susgected of having committed war crimes or crimes against humanity. The Court has also examined the rules conceining the immunity or criminal responsibility of persons having an official capacity contained in the legal instruments creating international criminiil tribunals, and which are specifically applicable to the latter (see Chartlx of the International Military Tribunal of Nuremberg, Art. 7; Charter of the International Military Tribunal of Tokyo, Art. 6; Statute of the International Criminal Tribunal for the former Yugoslavia, Art. 7, para. Z; Statute of the International Criminal Tribunal for Rwanda, Art. 6, para. 2; Statute of the International Criminal Court, Art. 27). 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. Finally, none of the decisions of the Nuremberg and Tokyo international military tribunals, or of the lnternational Criminal Tribunal for the former Yugoslavia, cited by Belgium deal with the question of the immunities of incumbent Ministers for Foreign Affairs before national courts where they are accused of having committed war crimes or crimes against humanity. The Court accordingly notes that those decisions are in no way at variance with the findings it has reac hed above.

text: In view of the foregoing, the Court accordingly cannot accept Belgium's argument in this regard.

text: It should further be noted that the rules go\ erning the jurisdiction of national courts must be carefully distinguished from those governing jurisdictional immunities: jurisdiction does not irriply absence of immunity, while absence of immunity does not imply jurisdiction. Thus, although various international conventions or the prevention and punishment of certain serious crimes impose or States obligations of prosecution or extradition, thereby requiring them to extend their criminal jurisdiction, such extension of jurisdiction in no way affects immunities under customary international law, including those of Ministers for Foreign Affairs. These remain opposable before he courts of a foreign State, even where those courts exercise such a jurisdiction under these conventions.

text: The Court emphasizes, however, that the i~nmunity from jurisdiction enjoyed by incumbent Ministers for Foreign Affairs does not mean that they enjoy impunity in respect of any crimes they might have committed, irrespective of their gravity. Immunity from criminal jurisdiction and individual crimiinal responsibility are quite separate concepts. While jurisdictional immunity is procedural in nature, criminal responsibility is a question of substantive law. Jurisdictional i~nmunity may well bar prosecution for a certain period or for certain offences; it cannot exonerate the person to whom it applies from al1 criminal responsibility.

text: Accordingly, the immunities enjoyed under Bnternational law by an incumbent or former Minister for Foreign Affairs do not represent a bar to criminal prosecution in certain circumstances.

text: First, such persons enjoy no criminal immunity under international law in their own countries, and may thus be tried by those countries' courts in accordance with the relevant rules of dcmestic law.

text: Secondly, they will cease to enjoy immunity from foreign jurisdiction if the State which they represent or have represente~l decides to waive that immunity. Thirdly, after a person ceases to hold the office of Minister for Foreign Affairs, he or she will no longer enjoy al1 of the iinmunities accorded by international law in other States. Provided that it has jurisdiction under international law, a court of one State may try a former Minister for Foreign Affairs of another State in respect of acts committed prior or subsequent to his oir her period of office, as we 1 as in respect of acts committed during that period of office in a private capacity.

text: Fourthly, an incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction. Examples inAude the International Criminal Tribunal for the former Yugoslavia, and the International Criminal Tribunal for Rwanda, established pursuant to Security Council resolutions under Clnapter VI1 of the United Nations Charter, and the future International Criminal Court created by tl-e 1998 Rome Convention. The latter's Statute expressly provides, in Article 27, paragraph 2, that "[i]mmunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its ju-isdiction over such a person".

text: Given the conclusions it has reached above concerning the nature and scope of the rules governing the immunity frcm criminal jurisdiction enjoyed by incumbent Ministers for Foreign Affairs, the Court must now consider whether in the present case the issue 01' the arrest warrant of 11 April 2000 and ils international circulation violated those rules. The Court recalls in this regard that the Congo requests it, in its first final submission, to adjudge and declare that: "[Bly issuing and internationally 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 the rule of customary internatior~al law concerning the absolute inviolability and immunity from crirlinal process of incumbent foreign ministers; in so doing, it viclated the principle of sovereign equaliity among States."

text: In support of this submission, the Congo maintains that the arrest warrant of I I April 2000 as such represents a "ccercive legal act" which violates the Congo's immunity and sovereign righis, inasmuch as it seeks to "subject to an organ of domestic criminal juri:diction a member of a foreign government who is in principle beyond its reach" and is fully enforceable without special formality in Belgium. The Congo considers that the mere issuance of the warrant thus constituted a coercive measure taken against the persan of Mr. Yerodia, even if it was not executed.

text: As regards the international circulation of i he said arrest warrant, this, in the Congo's view, not only involved further violations of the rules referred to above, but also aggravated the moral injury which it suffered as a result of the opprobrium "thus cast upon one of the most prominent members of its Government". The Congo further argues that such circulation was a fundaniental infringement of its sokereign rights in that it significantly restricted the full and free exercise, t y its Minister for Foreign Affairs, of the international negotiation and representation functions entrusted to him by the Congo's former President. In the Congo's view, Belgium "[thus] manifests an intention to h.tve the individual concerned arrested at the place where he is to be fouiid, with a view to procuring his extraditilon". The Congo emphasizej moreover that it is necessary to avoid any confusion between the arguments concerning the legal effect of the ari-est warrant abroad and the ciuestion of any responsibility of the foreign authorities giving effect to it. It points out in this regard that no State has acted on the arrest warrart, and that accordingly

text: "no further consideration need be given to the specific responsibility which a State executing it might incur, or to the way in which that responsibility should be related" to that of the Belgian State. The Congo observes that, in such circumstances, "there [woiild bel a direct causal relationship between the arrest warrant issued in Relgium and any act of enforcement carried out elsewhere".

text: Belgium rejects the Congo's argument on the ground that "the character of the arrest warrant of 1 1 April 2000 is :;uch that it has neither infringed the sovereignty of, nor created any obligation for, the [Congo]".

text: With regard to the legal effects under Belgian l a ~ v of the arrest warrant of 1 1 April 2000, Belgium contends that the clear purpose of the warrant was to procure that, if found in Belgium, Mr. Yerctdia would be detained by the relevant Belgian authorities with a view to bis prosecution for war crimes and crimes against humanity. According to Belgium, the Belgian investigating judge did, however, draw an explicit distinction in the warrant between, on the one hand, inlmunity from j~irisdiction and, on the other hand, immuniity from enforcement as regards representatives of foreign States who visit Belgium on the basis of an official invitation, making it clear that such persons would be immune from enforcement of an arrest warrant in Belgium. Belgium further coniends that, in its effect, the disputed arrest warrant is national in charactcr, since it requires the arrest of Mr. Yerodia if he is found in Belgium b~ t it does not have this effect outside Belgium.

text: In respect of thie legal effects of the arrest warrant outside Belgium, Belgium maintains that the warrant does not creite any obligation for the authorities of any other State to arrest Mr. Ye*.odia in the absence of some further step by Belgium completing or validating the arrest warrant (such as a request for the provisional detention O ' Mr. Yerodia), or the issuing of an arrest warrant by the appropriate authorities in the State concerned following a request to d o so, or the issuing of an Interpol Red Notice. Accordingly, outside Belgium, while the Furpose of the warrant was admittedly "to establish a legal basis for the arvest of Mr. Yerodia . . . and his subsequent extradition to Belgium", the warrant had no legal effect unless it was validated or completed by sonie prior act "requiring the arrest of Mr. Yerodia by the relevant authorities in a third State". Belgium further argues that "[ilf a State had executed the arrest warrant, it might infringe Mr. [Yerodia's] criminal immunit q", but that "the Party directly responsible for that infringement would have been that State and not Belgium".

text: The Court will first recall that the "international arrest warrant in cth.serztin", issued on 1 1 April 2000 by an investigating judge of the Brussels Tribunal de première instance, is directec against Mr. Yerodia,

text: stating that he is "currently Minister for Foreign Affairs of the Democratic Republic of the Congo, having his business ziddress at the Ministry of Foreign Affairs in Kinshasa". The warrant statrs that Mr. Yerodia is charged with being "the perpetrator or CO-perpetritor" of:

text: "- Crimes under international law constiiuting grave breaches causing harm by act or omission to perssns and property protected by the Conventions signed at Geni:va on 12 August 1949 and by Additional Protocols 1 and II to those Conventions (Article 1, paragraph 3, of the Law of 16 .lune 1993, as amended by the Law of 10 February 1999 concerning the punishment of serious violations of international humaiiitarian law) - Crimes against humanity (Article 1, paragraph 2, of the Law of 16 June 1993, as amended by the Law of 10 February 1999 concerning the punishment of serious violations of international humanitarian law)."

text: The warrant refers to "various speeches inciting racial hatred" and to "particularly virulent remarks" allegedly made b : ~ Mr. Yerodia during "public addresses reported by the media" on 4 August and 27 August 1998. It adds:

text: "These speeches allegedly had the effect of inciting the population to attack Tutsi residents of Kinshasa: there were dragnet searches, manhunts (the Tutsi enemy) and lynchings.

text: The speeches inciting racial hatred thus arc: said to have resulted

text: in several hundred deaths, the internment of 7 utsis, summary executions, arbitrary arrests and unfair trials."

text: The warrant fiirther states that "the position of Minister for Foreign Affairs currently held by the accused does not entail immunity from jurisdiction and enfc)rcement". The investigating judge does, however, observe in the warrant that "the rule concerning the absence of immunity under humanitarian law would appear . . . to reqiiire some qualification in respect of immuni ty from enforcement" and ex Aains as follows :

text: "Pursuant to the general principle of fairnt ss in judicial proceedings, immunity from enforcement must, in Our view, be accorded to al1 State representatives welcomed as such onco the territory of Belgium (on 'officia1 visits'). Welcoming such foreign dignitaries as official representatives of sovereign States i~ivolves not only relations between individuals but also relations between States. This implies that suchi welcome includes an undertaking by the host State and its various components to refrain froni taking any coercive measures against its guest and the invitation cannot become a pretext for ensnaring the individual concerned in what would then have to be labelled a trap. In the contrary case, failure to respect this undertaking could give rise to the host State':. international responsibility."

text: The arrest warrant concludes with the following order

text: "We instruct and order al1 bailiffs and ageiits of public authority who may be so required to execute this arrest warrant and to conduct the accused to the detention centre in Forest; We order the warden of the prison to receive the accused and to keep him (her) in custody in the detention c:ntre pursuant to this arrest warrant; We require al1 those exercising public authority t o whom this warrant shall be shown to lend al1 assistance in e ~ e c u t i n g it."

text: The Court notes that the issuance, as such, of the disputed arrest warrant represents ari act by the Belgian judicial kuthorities intended to enable the arrest on Belgian territory of an incuml~ent Minister for Foreign Affairs on charges of war crimes and crimes against humanity. The fact that the warrant is enforceable is clearly apparent from the order given to "al1 bailiffs and agents of public authority . . . to execute this arrest warrant" (see paragraph 69 above) and f r o n the assertion in the warrant that "the position of Minister for Foreign Affairs currently held by the accused does not entail iminunity from jurisdiction and enforcement". The Court notes that the warrant did admittedly make an exception for the case of all official visit by Mr. Yerodi;,. to Belgium, and that Mr. Yerodia never suffered arrest in Belgium. The Court is bound, however, to find that, given the nature and purpose of' the warrant, its mere issue violated the immunity which Mr. Yerodia eiijoyed as the Congo's incumbent Minister for Foreign Affairs. The Court accordingly concludes that the issue csf the warrant constituted a lriolation of an obligation of Belgiuin towards the Congo, in that it failed to respect the immunity of that Minister and, more particularly, infringed the immunity from criminal jurisdiction and the inviolability then eîjoyed by him under international law.

text: The Court also notes that Belgium admit: that the purpose of the international circ~ulution of the disputed arrest ~varrant was "to establish a legal basis for the arrest of Mr. Yerodia . . . abroad and his subsequent extradition to Belgium". The Respondent maintains, however, that the enforcement of the warrant in third Statr:s was "dependent on some further prelimiiiary steps having been taken" and that, given the "inchoate" quality of the warrant as regards thirci States, there was no "infringe[ment of] thie sovereignty of the [Cong~~]". It further points out that no Interpol Red Notice was requestetl until 12 September 2001, when Mr. Yeraldia no longer held ministerial office.

text: The Court cannot subscribe to this view. As ir the case of the warrant's issue, its international circulation from Juni: 2000 by the Belgian authorities, given its nature and purpose, effectively infringed Mr. Yerodia's immunity as tht: Congo's incumbent Minister for Foreign Affairs and was furthermore liable to affect the Congo's conduct of its international relations. Since: Mr. Yerodia was called upon in that capacity to undertake travel in the performance of his duties, ihe mere international circulation of the warrant, even in the absence of "further steps" by Belgium, could have resiilted, in particular, in his arrest while abroad. The Court observes in this respect that Belgium itself cites information to the effect that Mr. Yerodia, "on applying for a visa tcl 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", adding that "[tlhis, moreover, is what the [Congo] . . . hints when it writes that the arrest warrant 'sometimes forced Minister Yerodia to travel by roundabout routes"'. Accordingly, the Court concludes that ihe circulation of the warrant, whether or not it significantly interfered with Mr. Yerodia's diplomatic activity, con:;tituted a violation of an obligation of Belgium towards the Congo, in that it failed to respect the inimunity of the incumbent Minister for Foreign Affairs of the Congo and, more particularly, infringed the immunity from criminal jurisdiction and the inviolability then enjoyed by him i~nder international law.

text: The Court will i ~ o w address the issue of the remedies sought by the Congo on account of Belgium's violation of the above-mentioned rules of international law. In its second, third and fourth submissions, the Congo requests the Court to adjudge and declare that:

text: "A formal finding by the Court of the unlawfulness of [the issue and international circulation of the arrest w;irrant] constitutes an appropriate form of satisfaction, providing reparation for the consequent moral injury to the Democratic Repu1)lic of the Congo;

text: The violations of international law underlying the issue and international circulation of the arrest warrant of 1 April 2000 preclude any State. including Belgium, from executing it; Belgium shall be required to recall and cancel the arrest warrant of 11 April 2000 and to inform the foreign authorities t o whom the warrant was circiilated that Belgium renouncez its request for their co-operation in executing the unlawful warrant."

text: In support of tl-iose submissions, the Congo :isserts that the termination of the official duties of Mr. Yerodia in no way operated to efface the wrongful act and the injury flowing from it, which continue to exist. It argues that the warrant is unlawful al? initio, that "[ilt is fundamentally flawed" and that it cannot therefore have any legal i:ffect today. It points

text: ARREST WARRANT (JUDGMENT) 3 1

text: out that the purpose of its request is reparation for the injury caused, requiring the restoration of the situation which would in al1 probability have existed if the said act had not been comnitted. It States that, inasmuch as the wrongful act consisted in an intr:mal legal instrument, only the "withdrawal" and "cancellation" of the latter can provide appropriate reparation. The Congo further emphasizes that in no way is it asking the Court itself to withdraw or cancel the warrant, nor to determine the means whereby Belgium is tes comply wit1.i its decision. It :xplains that the withdrawal and cancellation of the warrant, by the means that Belgium deems most suitable. "are not means of enforcement oi' the judgment of the Court but the requeijted measure of legal repara ion/restitution itself". The Congo maintains that the Court is consequently only being requested to declare that Belgium, by way of reparation for i he injury to the rights of the Congo, be recluired to withdraw and canc~:l this warrant by the means of its choice.

text: Belgium for its part maintains that a findinp by the Court that the immunity enjoyed by Mr. Yerodia as Minister for Foreign Affairs had been violated would in no way entail an obligaticn to cancel the arrest warrant. It points out that the arrest warrant is s ill operative and that "there is no suggestion that it presently infringes the immunity of the Congo's Minister for Foreign Affairs". Belgium considers that what the Congo is in reality asking of the Court in its third and fourth final submissions is that the Court should direct Belgium as to the method by which it should give effect to a judgment of the Court finding that the warrant had infringed the immunity of the Congo'; Minister for Foreign Affairs.

text: The Court has already concluded (see parapraphs 70 and 71) that the issue and circulation of the arrest warrant of 11 April 2000 by the Belgian authorities failed to respect the immunity c<f the incumbent Minister for Foreign Affairs of the Congo and, more particularly, infringed the immunity from criminal jurisdiction and the involability then en-joyed 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 whic h will make good the moral injury complaii~ed of by the Congo.

text: However, as the Permanent Court of Interr ational Justice stated in its Judgment of 13 September 1928 in the case concerning the Fcrctoi at C'horzciw : "[tlhe essential pi-inciple contained in the actuil notion of an illegal act - a principle which seems to be estab1i;hed by international practice and in particular by the decisions of 2 rbitral tribunals - is that reparation inust, as far as possible, wipe out al1 the consequences of the illegal act and reestablish the :situation which would, in al1 probabilit:~, have existed if that act had not been committed"

text: (P.C. I.J., Series A, No. 17, p. 47).

text: In the present case, "the situation which would, in al1 probability, have existed if [the illegal act] had not been committed" cannot be re-established merely by a fiinding by the Court that the arrest warrant was unlawful under international law. The warrant is still extant, a n d remains unlawful, notwithstanding the fact that Mr. Yersdia has ceased to be Minister for Foreign Affairs. The Court accordin:ly considers that Belgium must, by means of its own choosing, cancel the warrant in question and so inform the auithorities to whom it was circulated.

text: The Court seel, n o need for any further rerredy: in particular, the Court cannot, in a judgment ruling o n a dispute bitween the Congo and Belgium, indicate wkiat that judgment's implications might be for third States, and the Court cannot therefore accept the Congo's submissions o n this point.

text: F o r these reasons,

text: (1) ( A ) By fifteen votes t o one, Rejects the objections of the Kingdom of B e l g i ~ m relating t o jurisdiction, mootness and admissibility; I N FAVOUR: Presidenl Guillaume: Vice- Puesident Shi ; Judges Ranjeva, Herczegh. Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans. Rezek, Al-Khasawneh, Buergenthal; Jucfgrs ad hoc Bula- Bula. Van den Wyngaert; A G A I N S T : Jirdge Oda :, (B) By fifteen votes t o one, Find.~ that it has jurisdiction t o entertain the Application filed by the Democratic Republic of the Congo o n 17 October 2000; I N ~ A V O U R : President Guillaume; Vicc-Presiderzt Shi Judges Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek., Al-Khasawneh, Buergenthal Jirdges ad hoc Bula- Bula, Van den Wyngaert; AGAINST: Jtrdge Oda; ( C ) By fifteen votes to one, Finds that the Application of the Democratic R e ~ u b l i c of the Congo is not without object and that accordingly the case i: not m o o t ;

text: I N FAVOUK: President Guillaume; Vice-President Shi. J u d g ~ s Ranjeva. Herczegh, Fleischhauer, Koroma, Vereshchetin, Hig:ins, Parra-Aranguren,

text: Kooijmans, Rezek, Al-Khasawneh, Buergenthal; Judges ad hoc Bula- Bula, Van den Wyngaert; AGAINST : Judge Oda ;

text: ( D ) By fifteen votes t o one,

text: Fin& that the Application of the Democratic Republic of the Congo is admissible;

text: I N F A V O U K : President Guillaume; Vice-President Shi; Judges Ranjeva, Herczegh. Fleischhauer, Koroma, Vereshchetin, Higgins. Parra-Aranguren, Kooijmans, Rezelc, Al-Khasawneh. Buergenthal; Judges ad hoc Bula- Bula, Van den Wyngaert; A G A I N S T : Jz~nge Oda ;

text: (2) By thirteen votes to three,

text: Finds that the issue against Mr. Abdulaye Yerodia Ndombasi of the arrest warrant of 11 ,4pril 2000, a n d its internatio~ial circulation, constituted violations of a legal obligation of the Kingdom of Belgium towards the Democratic Repuiblic of the Congo, in that thvy failed t o respect the immunity from crimirial jurisdiction and the inviola Aity which the incumbent Minister for Foreign Affairs of the Democratic Republic of the Congo enjoyed under international law;

text: r N F A V O C R : President Guillaume; Vice-President Shi, Judges Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Buergenthal ; Judge ad hoc Biila-Bula ;

text: AGAIN\T: Jirc1ge.c Oda, Al-Khasawneh; Judge ad hoc Van den Wyngaert;

text: (3) By ten votes t o six,

text: Finds that the Kingdom of Belgium must, t'y means of its own choosing, cancel the arrest warrant of 11 April 2Ci00 and so inform the authorities to whom lhat warrant was circulated. FAVOIJR : Presi~i'ent Guillaun~e; Vice-Pre.~ident Shi Judge., Ranjeva, Herczegh, Fleischhauer, Koroma. Vereshchetin, Parra-Aranguren, Rezek; Judgb'e ad hoc Bula-Bula ; AGAINST: J u ~ / g e . ~ Oda, Higgins, Kooijmans, Al-Khasawneh, Buergenthal; Jutlge ad hoc Van den Wyngaert.

text: Done in French anid in English, the French text I~eing authoritative, a t the Peace Palace, The Hague, this fourteenth day of February, two thousand and two, in three copies, one of which will be placed in the archives of the Court and the others transmitted t o the Govc:rnment of the Democratic Republic of the Congo and the Government of the Kingdom of Belgium, respectively.

text: (Signed) Gilbert GUILLAUME, President.

text: (Signed) Philippe COUVREUR, Registrar.

text: President G U I L L A U M E appends a separate opinion to the Judgment of the Court; Judge ODA appends a dissenting opinion to the Judgment of the Court; Judge RAN.IEVA appends a declaration I O the Judgment of the Court; Judge KOROMA appends a separate opinic~n to the Judgment of the Court; ~ u d g e s HIGGINS, KOOIJMANS and BCERGENTHAL append a joint separate opinion to the Judgment of the Court; Jiidge REZEK appends a separate opinion to ithe Judgment of the Court; ludge AL-KHASAWNEH appends a dissenting opinion to the Judgment of the Court; Judge ad hoc BULA-BULA appends a separate opinion to the Judgment of the Court; Judge nd hoc VAN D E N WYNGAERT appends a dissenting opinion to the Judgment of tlhe Court.

text: (Znitiulled) G.G. (Znitiulled) Ph.C.