Democratic Republic of Congo versus Belgium Case

Legal Brief: Democratic Republic of Congo versus Belgium [2002], International Court of Justice 1
Issue
The overarching issue involved in this case concerns the ability of one sovereign nation to issue an arrest warrant against a foreign official for breaking customary international laws. In sum, the issue involved the issuance of an international arrest warrant in absentia for an African foreign affairs minister by a Belgian judge in response to public speeches that were purportedly responsible for genocidal acts against an ethnic minority. Although the Belgian judge issued the international arrest warrant for violations of the sovereignty of another country which were also violative of customary international law, another issue concerns whether this issuance constituted yet another violation of customary international law. A final issue concerned whether States were obligated to enforce the international arrest warrant under these circumstances.
The subject case began on 11 April 2000, when the then-acting Congolese foreign affairs minister, Abdoulaye Yerodia Ndombasi, had an international arrest warrant against him issued by a Belgian examining judge for allegedly inciting ethnic hatred in August 1998.[footnoteRef:2] The specific charges alleged in the arrest warrant included serious violations of international humanitarian law for Ndombasi’s inflammatory public speeches that advocated violence against the Congolese Tutsi ethnic group.[footnoteRef:3] The public addresses were specifically cited in the arrest warrant as being directly responsible for the murders of several hundred members of the Tutsi ethnic group, together with charges alleging their improper imprisonment, summary executions, arbitrary arrests and kangaroo-court-style trials.[footnoteRef:4] The international arrest warrant was subsequently delivered to the Democratic Republic of the Congo (DRC) on 12 July 2000 together with all other States requesting that Ndombasi be detained, arrested and extradited to Belgium.[footnoteRef:5] Although Ndombasi was subsequently appointed Congolese education minister, he was not holding a ministerial position when the warrant was issued.[footnoteRef:6] [2: Jeanne M. Haskin (2005). The Tragic State of the Congo: From Decolonization to Dictatorship. New York: Algora, p. 85.] [3: Abdoulaye Yerodia Ndombasi (2016). Trial International. [online] available: https://trialinternational.org/latest-post/abdoulaye-yerodia-ndombasi/, p. 1.] [4: Abdoulaye Yerodia Ndombasi, p. 2.] [5: Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium). Public International Law. [online] available: https://ruwanthikagunaratne.wordpress.com/2012/07/27/belgian-arrest-warrant-case-summary/, p. 3.] [6: Belgian Arrest Warrant Case (2008). Ruwanthika Gunaratne and Public International Law. [online] available: https://ruwanthikagunaratne.wordpress.com/2012/07/27/belgian-arrest-warrant-case-summary/, p. 4.]

In response to the Belgian judge’s international arrest warrant, the Democratic Republic of the Congo (DRC) filed an application on 17 October 2000 calling for “an order for the immediate discharge of the disputed arrest warrant” by the International Court of Justice (ICJ).[footnoteRef:7] Subsequently, Belgium called for the rejection of the Congolese application due to lack of jurisdiction and for the removal of the case from the ICJ general list of cases. In response to Belgium’s objection concerning a lack of jurisdiction on the part of the ICJ, the Court held that: “Jurisdiction of the Court -- Statute of the Court, Article 36, paragraph 2 -- Existence of a ‘legal dispute’ between the Parties at the time of filing of the Application instituting proceedings -- Events subsequent to the filing of the Application do not deprive the Court of jurisdiction.”[footnoteRef:8] Consequently, in an order entered on 8 December 2000, the ICJ rejected Belgium’s request for the removal of the case from its list of cases, noting that “the circumstances, as they [then] presented themselves to the Court, [were] not such as to require the exercise of its power, under Article 41 of the Statute, to indicate provisional measures.”[footnoteRef:9] [7: As cited in Arrest Warrant of 11 April 2000, p. 3.] [8: Case Concerning the Arrest Warrant of 11 April 2000 (2002, February 14): 2002 I.C.J. 3] [9: As cited in Arrest Warrant of 11 April 2000, p. 4.]

Thereafter, in a judgment issued on 14 February 2002, the ICJ also rejected Belgium’s other objections concerning the mootness of the case (“Fact that the person concerned had ceased to hold office as Minister for Foreign Affairs does not put an end to the dispute between the Parties and does not deprive the Application of its object”) and admissibility (“Facts underlying the Application instituting proceedings not changed in a way that transformed the dispute originally brought before the Court into another which is different in character”).[footnoteRef:10]
In addition, concerning the merits of the case, the ICJ noted that “ it was only questions of immunity from criminal jurisdiction and the inviolability of an incumbent Minister for Foreign Affairs that it had to consider, on the basis, moreover, of customary international law.”[footnoteRef:11] [10: Case Concerning the Arrest Warrant of 11 April 2000: 2002 I.C.J. 3.] [11: As cited in Arrest Warrant of 11 April 2000, p. 4.]

The Court then observed that, in customary international law, the immunities accorded to Ministers for Foreign Affairs are not granted for their personal benefit, but to ensure the effective performance of their functions on behalf of their respective States. The Court held that the functions exercised by a Minister for Foreign Affairs were such that, throughout the duration of his or her office, a Minister for Foreign Affairs when abroad enjoyed full immunity from criminal jurisdiction and inviolability. Inasmuch as the purpose of that immunity and inviolability was to prevent another State from hindering the Minister in the performance of his or her duties, no distinction could be drawn between acts performed by the latter in an “official” capacity and those claimed to have been performed in a “private capacity” or, for that matter, between acts performed before assuming office as Minister for Foreign Affairs and acts committed during the period of office. The Court then observed that, contrary to Belgium’s arguments, it had been unable to deduce from its examination of State practice that there existed under customary international law any form of exception to the rule according immunity from criminal jurisdiction and inviolability to incumbent Ministers for Foreign Affairs when they were suspected of having committed war crimes or crimes against humanity.[footnoteRef:12] [12: Arrest Warrant of 11 April 2000, p. 4.]

The Court further observed that the rules governing the jurisdiction of national courts must be carefully distinguished from those governing jurisdictional immunities. The immunities under customary international law, including those of Ministers for Foreign Affairs, remained opposable before the courts of a foreign State, even where those courts exercised an extended criminal jurisdiction on the basis of various international conventions on the prevention and punishment of certain serious crimes. However, the Court emphasized that the immunity from jurisdiction enjoyed by incumbent Ministers for Foreign Affairs did not mean that they enjoyed impunity in respect of any crimes they might have committed, irrespective of their gravity.[footnoteRef:13] While jurisdictional immunity was procedural in nature, criminal responsibility was a question of substantive law. Jurisdictional immunity might well bar prosecution for a certain period or for certain offences ; it could not exonerate the person to whom it applied from all criminal responsibility. The Court then spelled out the circumstances in which the immunities enjoyed under international law by an incumbent or former Minister for Foreign Affairs did not represent a bar to criminal prosecution.[footnoteRef:14] [13: Arrest Warrant of 11 April 2000, p. 5.] [14: Arrest Warrant of 11 April 2000, p. 5.]

After examining the terms of the arrest warrant of 11 April 2000, the Court noted that the issuance, as such, of the disputed arrest warrant represented an act by the Belgian judicial authorities intended to enable the arrest on Belgian territory of an incumbent Minister for Foreign Affairs, on charges of war crimes and crimes against humanity. It found that, given the nature and purpose of the warrant, its mere issuance constituted a violation of an obligation of Belgium towards the DRC, in that it had failed to respect the immunity which Mr. Yerodia enjoyed as incumbent Minister for Foreign Affairs. The Court also declared that the international circulation of the disputed arrest warrant from June 2000 by the Belgian authorities constituted a violation of an obligation of Belgium towards the DRC, in that it had failed to respect the immunity of the incumbent Minister for Foreign Affairs. Finally, the Court considered that its findings constituted a form of satisfaction which would make good the moral injury complained of by the DRC. However, the Court also held that, in order to re-establish “the situation which would, in all probability have existed if [the illegal act] had not been committed”, Belgium must, by means of its own choosing, cancel the warrant in question and so inform the authorities to whom it had been circulated.[footnoteRef:15] [15: Arrest Warrant of 11 April 2000, p. 5.]

Rule
The arrest warrant against Ndombasi was issued pursuant to the provisions of Belgian Law of 16 June 1993 “concerning the Punishment of Grave Breaches of the International Geneva Conventions of 12 August 1949 and of Protocols I and II of 8 June 1977 Additional Thereto,” as subsequently amended by the Law of 10 February 1999 “concerning the Punishment of Serious Violations of International Humanitarian Law,” which was regarded as the rule of universal jurisdiction at the time.[footnoteRef:16] Pursuant to Article 7 of the Belgian Law of 16 June 1999: “The Belgian courts shall be competent to deal with breaches provided for in the present Act, irrespective of where such breaches have been committed.”[footnoteRef:17] [16: “Abdoulaye Yerodia Ndombasi” (2016), p. 2.] [17: Belgium: Act of 1999 Concerning the Punishment of Grave Breaches of International Humanitarian Law. United Nations Refugee Agency. [online] available: http://www.refworld.org/docid/3ae6b5934.html.]

The thrust of Article 7 means that irrespective of nationality, country of residence or any other relation with Belgium, the Belgian courts were deemed by Belgian law to be courts of competent jurisdiction based solely on the fact that the crime was considered a violation of customary international law.[footnoteRef:18] The findings of the ICJ also included the following issues: [18: Abdoulaye Yerodia Ndombasi, p. 2.]

1. An established principle of international law is that heads of states and governments, foreign ministers as well as consular and diplomatic officials enjoy broad immunities from civil and criminal jurisdictions of other states.[footnoteRef:19] [19: Belgian Arrest Warrant Case, p. 5.]

2. Customary international law prescribes the immunities of ministers of foreign affairs when there is no controlling treaty law. In this regard, the Court held that: “These immunities…are not given for their personal benefit; but to ensure the effective performance of their functions of behalf of their…States.”[footnoteRef:20] These immunities also extend beyond a nation’s geographical borders: “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.”[footnoteRef:21] [20: As cited in Belgian Arrest Warrant Case, p. 5.] [21: As cited in Belgian Arrest Warrant Case, p. 6.]

Moreover, these immunities remain applicable irrespective of whether a foreign minister is traveling on official business or for private reasons. The Court reasoned that such immunities were essential for the conduct of international affairs:
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.[footnoteRef:22] [22: As cited in Belgian Arrest Warrant Case, p. 6.]

3. In response to Belgium’s argument that the Congolese foreign affairs minister was not entitled to immunity due to the gravity of the charges against him, the Court held that there mere assertion of these was insufficient to revoke Ndombasi’s immunities from Belgium’s jurisdiction under customary international law as follows:.
It (the Court) has been unable to deduce from this practice that there exists under customary international law any form of exception to the rule according immunity from criminal jurisdiction and inviolability to incumbent Ministers of Foreign Affairs, when they are suspected of having committed war crimes or crimes against humanity…The Court has also examined the rules concerning the immunity or criminal responsibility of persons having an official capacity contained in the legal instruments creating international criminal tribunals, and which are specifically applicable … It finds that these rules likewise do not enable it to conclude that any such an exception exists in customary international law in regard to national courts.[footnoteRef:23] [23: As cited in Belgian Arrest Warrant Case, p. 6]

4. Although various international conventions provide a state’s courts with jurisdiction over some types of crimes that mandate the application of such jurisdiction, these considerations do not apply to the otherwise-absolute immunities afforded foreign ministers.
5. While foreign affairs ministers and other state officials enjoy immunities in other state’s courts, this does not mean they also enjoy absolute impunity for their criminal actions. In this regard, the Court held 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….”[footnoteRef:24] [24: As cited in Belgian Arrest Warrant Case, p. 7.]

The Court also identified four specific situations wherein current or former foreign ministers were subject to prosecution in another state’s courts: (a) prosecution in their own country according to the domestic law (the international law of immunity is not recognized before a person’s national courts); (b) in the event their countries waive their immunity; (c) after leaving office, foreign ministers no longer enjoy immunity before foreign courts for private acts that were committed during their time in office as well as for all acts that were committed before or after their time in office; and (d) prosecution before an international criminal body that has the requisite jurisdiction such as the International Criminal Court.
6. The Court held that the issuance of the international arrest warrant in absentia and its distribution to all States were violative of Belgium’s responsibilities under customary international law with respect to Congo: “[I]n 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.”[footnoteRef:25] Furthermore, Belgium was also held to be in violation of its obligation to Congo by creating a situation in which the foreign minister could have been detained and arrested in a foreign country even during the performance of his official duties: [25: As cited in Belgian Arrest Warrant Case, p. 7]

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.[footnoteRef:26] [26: As cited in Belgian Arrest Warrant Case, p. 7]

7. The ICJ, though, did not issue a ruling concerning Congo’s argument that the illegality of the international arrest warrant preventing foreign countries from executing it, noting that the Statute of the ICJ precludes the Court from issuing any binding requirements on states that are not party to the dispute.[footnoteRef:27] Further, although the ICJ held that Belgium was responsible for cancelling the arrest warrant and notifying all states where it was distributed concerning its revocation, no other reparations were ordered.[footnoteRef:28] [27: Belgian Arrest Warrant Case, p. 8.] [28: Belgian Arrest Warrant Case, p. 8.]

In sum, the ICJ held that the issuance and circulation of the arrest warrant violated Belgium’s obligations to Congo under customary international law. For instance, according to Teitel, in those cases where foreign ministers are charged with violations of humanitarian laws, such ministers still enjoy complete immunity from criminal jurisdiction and prosecution in other states’ courts.[footnoteRef:29] [29: Arrest Warrant of 11 April 2000. (2017). Casebriefs LLC. [online] available: http://www.casebriefs.com/blog/law/international-law/international-law-keyed-to-damrosche/chapter-12/arrest-warrant-of-11-april-2000-democratic-republic-of-the-congo-v-belgium/, p. 3.]

Application
A nation’s sovereignty has long been recognized as being an inviolable shield against foreign intrusion into a country’s internal affairs. For instance, according to the definition provided by Black’s Law Dictionary, sovereignty means “the supreme, absolute, and uncontrollable power by which any independent state is governed; the international independence of a state, combined with the right and power of regulating its internal affairs without foreign dictation.”[footnoteRef:30] While the notion of national sovereignty has long been recognized in the international community, there have been some changes in this definition over the years. For instance, according to White: [30: Black’s Law Dictionary (1990). St. Paul, MN: West Publishing Co., p. 1396.]

In the nineteenth century, sovereignty meant having a monopoly on decision-making within a given territory. In legal terms, sovereignty is now defined by accepting responsibility for one's contracts and by retaining the right to pull out of a contract or international organization. Thus, no law or regulation can be imposed upon a particular Member State without that state's expressed consent.[footnoteRef:31] [31: John White (2009, Autumn). “Where National Sovereignty Lies.” The New Presence: The Prague Journal of Central European Affairs, vol. 12, no. 4, p. 40.]

Certainly, there have been several instances where a country’s sovereignty has been violated for humanitarian reasons, such as the interventions by the United Nations in response to genocidal acts in Haiti Iraq, Somalia, Yugoslavia, and East Timor, but these remain the rare exceptions to this longstanding principle.[footnoteRef:32] [32: Klinton W. Alexander (2000, Spring). NATO'S Intervention in Kosovo: The Legal Case for Violating Yugoslavia's National Sovereignty in the Absence of Security Council Approval. Houston Journal of International Law, vol. 22, no. 3, p. 403.]

Finally, it is reasonable to posit that Belgium’s long and contentious relationship with the DRC had some influence on the judge’s decision to issue an international arrest warrant against the foreign affairs minister for his outrageous public addresses, but the judge’s indignation is no substitute for asserting competent jurisdiction in this case. The fact that the Belgian judge singled out the Congolese foreign affairs minister for violating Belgium’s Law of 16 June 1993 “concerning the Punishment of Grave Breaches of the International Geneva Conventions of 12 August 1949 and of Protocols I and II of 8 June 1977 Additional Thereto” during a period in world history when factions in several other countries, including Rwanda, Sudan and East Timor, were engaging in genocidal acts supports this assertion.
If Belgium’s arguments had been upheld by the ICJ, the potential for adversarial states to interfere with each other’s foreign affairs would become pronounced. For example, North Korean courts could easily issue international arrest warrants for the current and past living U.S. presidents and their cabinet members and distribute these to all states, threatening the disruption of normal diplomatic operations under customary international laws. Likewise, the same holds true for other countries that are currently or may become at odds over various trade, political or military issues such as between Pakistan and India or Russia and Ukraine. Furthermore, the few exceptions to the immunities enjoyed by foreign affairs ministers from prosecution in foreign courts identified by the ICJ in this case also underscore the centrality and importance of these immunities for the operations of the international community. Indeed, if the ICJ held to the contrary, the potential for a flurry of international arrest warrants issuing from dozens of countries would make diplomatic travel impossible and bring normal diplomatic relationships to a halt.
Conclusion
After Foreign Affairs Minister Abdoulaye Yerodia Ndombasi made a series of inflammatory public addresses in which he advocated violence against an ethnic group, several hundred Tutsis were murdered and these genocidal acts outraged the Belgian judge to the point where he felt compelled to issue an international arrest warrant in absentia in response. The research was consistent in showing, though, that the arrest warrant was unlawful despite conforming to prevailing Belgian law at the time. The several objections made by Belgium in response to the ICJ’s claiming jurisdiction of the case and their summary rejection by the Court were also congruent with the conventions of customary international law and the principle of national sovereignty. It is reasonable to conclude that the Belgian judge who issued the international arrest warrant in absentia against this Congolese foreign affairs minister in April 2000 could not foresee the firestorm of controversy that would result or the implications of this case had the International Court of Justice held otherwise. If the ICJ had upheld the legitimacy of the Belgian international arrest warrant, the potential for adversarial states to engage in a veritable war of such warrants would likely ensue, and the normal operations of the international community’s diplomatic corps would grind to a halt. Finally, although no reparations beyond cancelling the arrest warrant and notifying all states where it was distributed were ordered by the Court, the decision in this case provides substantive precedential guidance for any future such incident.


References
Abdoulaye Yerodia Ndombasi (2016). Trial International. [online] available: https://trialinternational.org/latest-post/abdoulaye-yerodia-ndombasi/.
Alexander, Klinton W. (2000, Spring). NATO'S Intervention in Kosovo: The Legal Case for Violating Yugoslavia's National Sovereignty in the Absence of Security Council Approval. Houston Journal of International Law, vol. 22, no. 3, pp. 403-410.
Arrest Warrant of 11 April 2000. (2017). Casebriefs LLC. [online] available: http://www.casebriefs.com/blog/law/international-law/international-law-keyed-to-damrosche/chapter-12/arrest-warrant-of-11-april-2000-democratic-republic-of-the-congo-v-belgium/.
Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium). Public International Law. [online] available: https://ruwanthikagunaratne.wordpress.com/2012/ 07/27/belgian-arrest-warrant-case-summary/..
Belgian Arrest Warrant Case (2008). Ruwanthika Gunaratne and Public International Law. [online] available: https://ruwanthikagunaratne.wordpress.com/2012/07/27/belgian-arrest-warrant-case-summary/.
Belgium: Act of 1999 Concerning the Punishment of Grave Breaches of International Humanitarian Law. United Nations Refugee Agency. [online] available: http://www.refworld.org/docid/3ae6b5934.html.
Black’s Law Dictionary. (1990). St Paul, MN: West Publishing Co.
Case Concerning the Arrest Warrant of 11 April 2000 (2002, February 14): 2002 I.C.J. 3.
Haskin, Jeanne M. (2005). The Tragic State of the Congo: From Decolonization to Dictatorship. New York: Algora
Teitel, Ruti (2011). Humanity's Law. New York: Oxford University Press.
White, John (2009, Autumn). “Where National Sovereignty Lies.” The New Presence: The Prague Journal of Central European Affairs, vol. 12, no. 4, pp. 40-44.