ASIL Insights

On October 17, 2000, the Democratic Republic of the Congo (DRC) instituted proceedings before the International Court of Justice (ICJ or Court) against the Kingdom of Belgium over an alleged dispute concerning an international arrest warrant issued on April 11, 2000 by Judge Damien Vandermeersch of the Brussels court of first instance against Mr. Yerodia Abdoulaye Ndombasi (Ndombasi).  Ndombasi is the DRC's acting Minister for Foreign Affairs.  The ICJ, which is the principal judicial organ of the United Nations entrusted with settling legal disputes between sovereign states, consists of 15 judges elected to nine-year terms by the UN General Assembly and Security Council.  The Court has its seat at the Peace Palace in The Hague, The Netherlands.

The arrest warrant, which was transmitted to all States (including the DRC), seeks Ndombasi's detention and subsequent extradition to Belgium for alleged "crimes of international law committed by action or omission against persons or property protected by the Geneva Conventions of 12 August 1949 and the Additional Protocols I and II to those Conventions" and crimes against humanity by inciting the Congolese population to kill Tutsis at the beginning of the rebellion against Congolese President Laurent-Desire Kabila in August 1998.  The Geneva Conventions and their Protocols have been held by the ICJ to form a well-established part of the body of international humanitarian law. 

Although international tribunals have been set up to deal with crimes in the former Yugoslavia and Rwanda, no criminal court with general jurisdiction currently exists at the international level.  The 1998 Rome Statute providing for the creation of the International Criminal Court (ICC), which would fill this gap for future crimes, has not yet entered into force.  The former prime minister of Rwanda, Jean Kambanda, was found guilty by an international court, the International Criminal Tribunal for Rwanda in Arusha (Tanzania), on September 4, 1998, on counts of genocide and crimes against humanity arising from the murder and extermination of Rwandan civilians in 1994.  Kambanda's life sentence was upheld on appeal on October 19, 2000. 

The DRC's Application requests the Court to declare that Belgium must annul the international arrest warrant issued against Ndombasi.  The DRC is directly challenging the legality of a Belgian statute of June 16, 1993 (amended on February 10, 1999) pertaining to the punishment of "grave violations of international humanitarian law" to which the arrest warrant refers.  Article 5 of the Belgian statute prescribes that "the immunity conferred by a person's official capacity does not prevent application of this Law."  In the DRC's view, this provision and the arrest warrant contravene international law by derogating from the diplomatic immunity of the Minister for Foreign Affairs of a sovereign State based on Article 41(2) of the 1961 Vienna Convention on Diplomatic Relations, according to which "[a]ll official business with the receiving State entrusted to the mission by the sending State shall be conducted with or through the Ministry for Foreign Affairs of the receiving State or such other ministry as may be agreed." 

The Application also asserts that Article 7 of the Belgian statute, which establishes its universal applicability and the universal jurisdiction of Belgian courts in relation to "grave violations of international humanitarian law," without the accused having to be present on Belgian territory, violates the principle of the territorial integrity and sovereign equality of all United Nations member States laid down in Article 2(1) of the UN Charter.  The Application points out that the arrest warrant affirms the judge's competence to deal with facts allegedly committed on the territory of the DRC by a national of that State, without it being alleged that the victims are of Belgian nationality, or that the facts constitute violations of the security or dignity of the Kingdom of Belgium. 

The question of universal jurisdiction over the most heinous crimes has come into the international spotlight in connection with the recent arrest and detention by the United Kingdom of the former Chilean leader General Augusto Pinochet.  After Judge Vandermeersch unsuccessfully demanded Pinochet's extradition from the UK to Belgium, he relied on the Belgian statute now challenged by the DRC to probe human rights charges against former Iranian president Akbar Hashemi Rafsanjani, which strained diplomatic relations between Iran and Belgium in March 2000.  Under present international law, only certain universally-condemned acts may be prosecuted without regard to where they were committed or to the nationality of the perpetrator or the victim.  Genocide, war crimes and crimes against humanity are among those acts.  Several U.S. courts have held that there is universal jurisdiction over such acts permitting the United States to provide a remedy for violations of international law through its courts, even where the conduct complained of took place entirely outside the United States. 

In support of the Belgian law at issue in this case, Article 27 of the ICC Statute provides that official capacity as a member of a Government does not exempt a person from criminal responsibility under the Statute.  It also provides that immunities that may attach to the official capacity of a person do not bar the ICC, once it is in existence, from exercising its jurisdiction over such a person for genocide, crimes against humanity or war crimes.  Although the Brussels court is not an international court to which the ICC Statute applies, it might adopt a similar approach to an official's asserted immunity when the charges involve crimes against humanity and war crimes. 

The Vienna Convention on Diplomatic Relations invoked by the DRC in this case shields "diplomatic agents" with immunity from criminal prosecution and, with limited exceptions, immunity from civil suit.  However, based on the express provisions of the Vienna Convention, and absent fulfillment of certain procedural rules (including official accreditation of the diplomat concerned with the receiving State), cabinet ministers cannot automatically be categorized as immunized "diplomatic agents."  By its terms, "the purpose of [the immunities provided in the Vienna Convention] is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions [i.e., embassies] as representing States." 

Simultaneously with the filing of the Application, the DRC submitted a request for the indication of provisional measures of protection, requesting the ICJ to order the immediate withdrawal of the arrest warrant.  Article 41 of the ICJ Statute, which forms an integral part of the UN Charter, gives the Court the power to indicate provisional measures (a form of injunctive relief) in order to preserve the respective rights of the parties pending its final decision.  In order to issue an Order for the indication of provisional measures, the Court only needs to satisfy itself that prima facie jurisdiction exists in the case, and that unless such an Order were issued, there would be a risk of irremediable harm to the subject-matter of the case.  Such an Order can never be taken itself as establishing jurisdiction in the case and, therefore, does not preclude a subsequent finding that the Court lacks jurisdiction or that the Application is inadmissible.  Requests for provisional measures take priority over all pending cases.  In support of the urgency of its request, the DRC has pointed out that the Belgian arrest warrant in effect prevents its Foreign Minister from leaving the DRC, hampering him in his official duties. 

As the basis of the Court's jurisdiction, the DRC is relying on the declarations made by the DRC and Belgium on February 8, 1989 and June 17, 1958, respectively, accepting the Court's compulsory jurisdiction under Article 36(2) of the ICJ Statute. That provision, known as the "Optional Clause," provides that States Parties to the ICJ Statute (currently all the 188 UN Member States and Switzerland) may at any time file with the UN Secretary-General declarations stating that they recognize as compulsory, without special agreement, in relation to any other State accepting the same obligation, the Court's jurisdiction over all legal disputes concerning the interpretation of a treaty, any question of international law, the existence of any fact which, if established, would constitute a breach of an international obligation, or the nature or extent of the reparation to be made for the breach of an international obligation.  Given that the declarations of both parties to this case are unqualified (i.e., without reservations), it is likely that there exists prima facie jurisdiction over the case. 

The ICJ is to hear both parties on the DRC's request for provisional measures at public hearings scheduled for November 20-21, 2000.

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ASIL Insights are intended to identify international law issues in order to provide a basis for informed discussion of current events. They are not intended to be definitive, and they do not necessarily reflect the views of all members of The American Society of International Law. The Society itself takes no position on these issues.