CASE COMMENT- THE ARREST WARRANT OF 11 APRIL 2000

(DEMOCRATIC REPUBLIC OF THE CONGO V. BELGIUM) ICJ,

3.1 International Law

Submitted By: Nitish Joshi

UID - UG2017-066

Semester III,

Academic Year 2018-19

Submitted To: Ms Shreya Mishra

Assistant Professor of Law

Maharastra National Law University, Nagpur.

Table of Contents
Introduction ................................................................................................................................. 1
Objectives .................................................................................................................................... 1
Research Methodology................................................................................................................ 1
Facts of the Case ......................................................................................................................... 2
Legal Issues ................................................................................................................................. 2
Basic consideration ..................................................................................................................... 3
Court‟s Answer to the Parties Arguments ................................................................................... 3
Findings of the Court................................................................................................................... 4
Court‟s Ruling ............................................................................................................................. 5
Pinochet case and Arrest warrant of April 2000 ......................................................................... 6
Analysis of Universal Jurisdiction .............................................................................................. 6
Dissenting Opinion and its analysis ............................................................................................ 7
Conclusion................................................................................................................................... 8
Webliography ............................................................................................................................ 10

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 Introduction
On declining to make an order for provisional measures in the case concerning the Arrest
Warrant of 11 April 2000, the International Court of Justice nevertheless indicated that it was
desirable that the Court should deal with the issues raised by the case 'as soon as possible', and
that it was appropriate therefore to seek to determine the application 'with all expedition' In the
event, questions of admissibility and the merits were taken together and the Parties agreed to file
a single set of written pleadings each, enabling the Court to hold oral hearings in October 2001
and to render a final judgment on 14 February 2002 (ie, only about 16 months after the original
application by the Democratic Republic of the Congo (DRC)). Despite the speed with which the
Court dealt with the case, its judgment has come in for considerable comment and criticism from
a number of quarters' as much for what is not said, as for what is in fact contained in the rather
spare terms of the judgment. It will be suggested here that the ratio decidendi of the case is in
fact rather confined, and that caution should be adopted in seeking to draw wider implications
from what was said or left unsaid.

Objectives
1. To analyze the features of legal system

2. To attempt to supplement and update the existing legal literature to promote more intensive
research in this area of law under study

Research Methodology
In order to achieve the prescribed objectives of the study, doctrinal method of research
methodology is adopted and the issues under study are examined in a comprehensive manner.
The doctrinal adopted for the research work and the study on the concerned concepts is both
analytical as well as descriptive. The researcher has put efforts to critically examine the primary
sources like books, articles, journals and case laws and e-resources. Also, the latest information

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in the field of International Law has helped the researcher to explore the subject through various
dimensions and taken into consideration the dynamism of this area.

Facts of the Case

On 11 April 2000 the Government of Belgium issued an international arrest warrant against the
Minister of Foreign Affairs of Congo Abdoulaye Yerodia Ndombasi.

The Letter of Arrest is based on the allegation of serious violations of the Geneva Convention
and Additional Protocol.

The offense is related to the Speech conducted by Abdoulaye Yerodia Ndombasi in August
2008. The speech allegedly provoked racial conflict in Congo that resulted in the killing of
hundreds of tutsi residents.

In the alleged crimes perpetrated by Abdoulaye Yerodia Ndombasi, the act did not take place in
the Belgian region and no Belgian citizens were victims. Even where the speech is located
outside the jurisdiction of the Belgian State.

On 7 June 2000 Interpol sent an arrest warrant to Congo and the dispatch of this arrest warrant
was distributed globally. This arrest warrant was later received by the authorities in the Congo.
Furthermore, the Congo responded to this arrest warrant by registering the registration to the
International Court of Justice on October 17, 2000. This registration by the Congo requested the
International Court of Justice to cancel an international arrest warrant addressed by Belgium on
11 June 2000 to Abdoulaye Yerordia.

Legal Issues
1. Does Belgium have Legal Jurisdiction related to allegations against crimes committed by
Abdoulaye Yerordia?
2. Is the Minister of Foreign Affairs Abdoulaye Yerodia Ndombasi has the right immunity
against the Crimes of War and the crimes against humanity (Universal Jurisdiction)?

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 Basic consideration
The Court relied on the provisions of the Vienna Convention on Diplomatic and Consular
Relations, and the 1969 New York Convention on Special Missions. In this Convention contains
provisions and agreements of the parties therein, there are state officials who have diplomatic
immunity even though they are not stated it is clear whether it includes the Minister of Foreign
Affairs.

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, 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).

Court’s Answer to the Parties Arguments

The Court rejected Belgium‟s argument1 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.2

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Belgium's argument that immunities accorded to incumbent Ministers for Foreign Affairs can in no case protect
them where they are suspected of having committed war crimes or crimes against humanity. In support of this
position, Belgium refers in its Counter-Memorial to various legal instruments creating international criminal
tribunals, to examples from national legislation, and to the jurisprudence of national and international courts. Given
in Page 20, Paragraph 56 of case concerning the Arrest Warrant of April 2000, Read from Westlaw, dated 7 August.
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Judgement Page 25, Paragraph 58 states that-“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

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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.3

Findings of the Court

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.

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.

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 visit or private visit. This
immunity extends not only to his actions during his tenure; but, also to his actions before he
became Foreign Minister.4

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

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.”
3
The Statute of the ICJ requires that its rulings should not create binding obligations on States who are not parties to
the dispute.
4
Judgement Page 23, Paragraph 55 states that-“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.”

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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.

Immunity does not mean impunity. The person continues to be individually responsible for the
crime he committed.5

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.6

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.

Court’s Ruling
The International Court of Justice votes 13 to 3 decides that Belgium does not respect the
immunity of Abdoulaye and violates the right of immunity legally recognized by International
Law as the Congolese Foreign Minister.

The International Court of Justice 10 to 6, ordered Belgium to cancel the arrest warrant and
inform all parties who received the letters.

In this case the tribunal ruled that the basis of Belgium did not fulfill such matters and there was
not even any decision of other courts (ICTY7, ICTR8) discussing the acquisition of Immunity of
the Minister of Foreign Affairs.

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Judgement Page 26, Paragraph 60 states that - “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….”
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Judgement Page 30, Paragraph 71- “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”.
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International Criminal Tribunal for the former Yugoslavia

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 Pinochet case and Arrest warrant of April 2000
On 11 September 1973, General Augusto Pinochet Ugarte assumed power in Chile as a result of
a military coup that overthrew the then government of President Allende. His regime was known
for its systematic and widespread violations of human rights, with allegations of murder, torture
and hostage taking of political opponents. In 1998, during a visit to the United Kingdom for
medical treatment, Pinochet was arrested by the English authorities with a view to extraditing
him to Spain where a Spanish judge had issued an international arrest warrant. His extradition
was, however, not to proceed smoothly as Pinochet applied to have the arrest warrant quashed on
the grounds that as a former Head of State he enjoyed immunity from criminal proceedings.
These facts somehow connect to those of Arrest Warrant of April 2000 as in both cases
enjoyment of immunity is talked about but there cases of the judgment differ to each other, in
Pinochet case, Pinochet Ugarte was allowed to be extradited while in the other case it was seen
that Ex Foreign Minister enjoyed his immunity and the arrest warrant was cancelled, Because in
judgment It was said that acts of torture and hostage taking are not functions of a Head of State
and therefore no immunity can attach to them in respect of criminal proceedings9. By a majority
of 3:2 (Lords Hoffman, Nicholls and Steyn), their Lordships allowed the appeal and held that the
Respondent was not entitled to immunity10

Analysis of Universal Jurisdiction

For a long time the concept of universal jurisdiction and the possibility of national courts to
punish human rights violations committed outside the territorial jurisdiction were almost
unknown. This was true until there was the extradition of Pinochet in 1998. Until then, the heads
of state, former presidents and dictators could live peacefully in almost anywhere in the world
without having to worry about the crimes they had committed or treaties or conventions that
were signed and that establish the obligation to punish international crimes human rights and
humanitarian law. In this context, the concept of universal jurisdiction and its application were
virtually unknown.

8
International Criminal Tribunal for Rwanda
9
Page 47 of the case
10
Page 49, 56 of the case.

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Universal jurisdiction to national jurisdiction difference gives the courts of any country the
power to punish international crimes including crimes against genocide and war crimes,
humanity regardless of the territory where the offense was committed and the nationality of
perpetrator or victim. Universal jurisdiction is therefore, as a concept applied to a relatively
recent phenomenon unknown to the majority.

States are also different ways to implement their international obligations. Other examples are
Germany and Spain, where general provisions have been adopted by which the national criminal
law can also be applied to acts committed abroad when there is an international obligation to
punish. The lack of precision and clarity in the definition of international crimes is a major
constraint in the implementation of universal jurisdiction. The result is a newly developed
concept and little known, the states lack the experience and in many cases the political will to
exercise it, especially when this could cause tensions in foreign relations with other states. In this
perspective some legal systems, such as Germany, have introduced special limitations on the
exercise of universal jurisdiction. In this case, it requires establishing a link with Germany before
applying universal jurisdiction.

The fight against impunity has been at the heart of the fight for a fairer world. Long this struggle
has been reserved to the States, the traditional subjects of international law, each with its national
criminal law, passed laws which it deemed necessary to achieve the greatest degree of justice.
Today a national struggle against impunity, we went to an international struggle, with the
development of international criminal law.

Dissenting Opinion and its analysis

Judge ad hoc Van den Wyngaert, for example, favoured universal jurisdiction even in absentia
over genocide, crimes against humanity and war crimes.66 Judges Higgins, Kooijmans and
Buergenthal seemed to accept that universal jurisdiction in absentia for the most heinous
international crimes is permitted under international law, provided certain safeguards are met:67
(i) the exercise of universal jurisdiction may in no way infringe the inviolability or immunity of
the person involved; (ii) the national state of the accused person should first have the opportunity
to act upon the charges concerned; and (iii) charges based on universal jurisdiction may only be
brought by a prosecutor who acts in full independence. Courts missed a great opportunity to
clarify a very controversial but increasingly important issue of international law. It justified this
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decision by reference to the request of both parties to limit its decision to the question of
immunity. Although the Congo claimed that Article 7 of the Law, granting universal jurisdiction
in absentia to the national courts, and the arrest warrant issued on the basis of that provision
breached international law, this claim cannot be found in its final submissions.I agree to the
dissenting opinion of Judges Higgins, Kooijmans and Buergenthal as the one who commits the
most heinous crimes needs to be punished as there is nothing more important than life or rights
of the people.

Conclusion
In International Law, known as Universal Jurisdiction / criminal jurisdiction is a principle of
international law in which a country may use criminal jurisdiction to a person accused of a crime
outside the claimant state, regardless of nationality, country of residence, or other relationship
with the claimant state. This concept is related to the principle of international law ie erga omnes
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and the concept of jus cogens12 that certain international legal obligations are binding on all
countries and can not be changed by agreement.

Universal Criminal Jurisdiction is a Jurisdiction over Criminal acts considered to be crimes

against all human beings, so that every state has the authority to adjudicate such acts. The biased
parameters of Universal Jurisdiction made the basis for the establishment of the International
Criminal Court (ICC) in 2002. The establishment of the ICC is expected to reduce the need to
create universal legal jurisdiction claimed by a country.

Belgium based its arrest warrant with Universal Jurisdiction, so Belgium considers that its
country has the right to issue an international arrest warrant under its 1993 national law which
states that wherever the crime is committed the Belgian courts are entitled to judge. However,
the International Court of Justice is of the opinion that Universal Jurisdiction cannot be applied
in this case in accordance with the consideration of the above verdict.

In international customary law the immunity of the Minister of Foreign Affairs is not provided
for personal gain, but to ensure that they can work effectively for the interests of the country they
represent. Immunity from the jurisdiction of the courts does not mean the holder also has

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Law or legal act applies as against every individual, person or state without distinction.
12
Refers to certain fundamental, overriding principles of international law, from which no derogation is ever
permitted

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immunity from the national law of his own country, the obligations of his national law remain
binding on him. In the case where Yerodia is proven guilty the right to try Yerodia is its own
country of Congo. In this case there is a Dissenting Opinion of some judges who argue that the
court has created the Pandora's box, which indirectly gives immunity to alleged war crimes and
crimes against humanity.

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 Webliography

1. www.icj-cij.org
2. ruwanthikagunaratne.wordpress.com
3. www.ilsa.org
4. opil.ouplaw.com

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