Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v.

Belgium)

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

In that Application the Congo contended that Belgium had violated the “principle that a State may not
exercise its authority on the territory of another State”, the “principle of sovereign equality among all
Members of the United Nations, as laid down 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”

The DRC also filed a request for the indication of a provisional measure seeking “an order for the
immediate discharge of the disputed arrest warrant”. Belgium, for its part, called for that request to be
rejected and for the case to be removed from the List. In its Order made on 8 December 2000, the Court,
rejecting Belgium’s request for the case to be removed from the List, stated that “the circumstances, as
they [then] presented themselves to the Court, [were] not such as to require the exercise of its power,
under Article 41 of the Statute, to indicate provisional measures”.

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

In its submissions presented at the public hearings, the DRC requested the Court to adjudge and
declare that Belgium had violated the rule of customary international law concerning the inviolability
and immunity from criminal process of incumbent foreign ministers and that it should be required to
recall and cancel that arrest warrant and provide reparation for the moral injury to the DRC. Belgium
raised objections relating to jurisdiction, mootness and admissibility.

In its Judgment of 14 February 2002, the Court rejected the objections raised by Belgium and declared
that it had jurisdiction to entertain the application of the DRC. With respect to the merits, the Court
observed that, in the case, 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.

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

The Court further observed that the rules governing the jurisdiction of national courts must be carefully
distinguished from those governing jurisdictional immunities. The immunities under customary
international law, including those of Ministers for Foreign Affairs, remained opposable before the
courts of a foreign State, even where those courts exercised an extended criminal jurisdiction on the
basis of various international conventions on the prevention and punishment of certain serious
crimes.

However, the Court emphasized that the immunity from jurisdiction enjoyed by incumbent Ministers for
Foreign Affairs did not mean that they enjoyed impunity in respect of any crimes they might have
committed, irrespective of their gravity. While jurisdictional immunity was procedural in nature, criminal
responsibility was a question of substantive law. Jurisdictional immunity might well bar prosecution for
a certain period or for certain offences; it could not exonerate the person to whom it applied from all
criminal responsibility. The Court then spelled out the circumstances in which the immunities enjoyed
under international law by an incumbent or former Minister for Foreign Affairs did not represent a bar to
criminal prosecution.

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