ASIL Insights

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On February 14, 2002, the International Court of Justice (ICJ or Court), the principal judicial organ of the United Nations located in The Hague, The Netherlands, ruled that Belgium has violated international law by allowing a Belgian judge to issue and circulate an arrest warrant in absentia against the then Foreign Minister of the Democratic Republic of the Congo (DRC). The ICJ held, by 13 votes to three, that Belgium thereby failed to respect the immunity from criminal jurisdiction and the inviolability which the incumbent Foreign Minister enjoyed under customary international law. By way of remedy, the Court found, by 10 votes to six, that Belgium must, by means of its own choosing, cancel the arrest warrant and so inform all the authorities to whom that warrant was circulated.

A dispute arose between the DRC and Belgium when, on April 11, 2000, Judge Damien Vandermeersch of the Brussels court of first instance issued an international arrest warrant for the detention of Mr. Abdulaye Yerodia Ndombasi (Yerodia), who at that time was the DRC Minister for Foreign Affairs. The warrant accused Yerodia of having committed grave breaches of the 1949 Geneva Conventions and crimes against humanity while serving in a non-ministerial post by making speeches in August 1998 that allegedly incited the massacre of Tutsi residents of Kinshasa.

The arrest warrant was issued under a Belgian law (Belgian Law) that establishes its universal applicability and the universal jurisdiction of the Belgian courts in relation to alleged grave violations of international humanitarian law regardless of where they were committed, the presence of the accused in Belgium, or the nationality or legal status of either the victim/complainant or the accused. The Belgian Law does not recognize any immunities that defendants might enjoy due to their "official capacity." In this case, it was uncontested that (i) the arrest warrant referred to acts committed outside of Belgium; (ii) Yerodia was the DRC Foreign Minister at the time the warrant was issued; (iii) the accused was neither Belgian nor had he been present in Belgium when the warrant was issued; and (iv) no Belgian national was a direct victim of the alleged crimes. After November 2001, Yerodia ceased being the DRC Foreign Minister. At the time of the judgment, he no longer held any ministerial office.

On October 17, 2000, the DRC instituted proceedings against Belgium before the ICJ based on their declarations accepting the Court's compulsory jurisdiction and requested the Court to declare that Belgium must annul the arrest warrant issued against Yerodia, because it violates the principle of sovereign equality among States. Public hearings were held on October 15-19, 2001.

The DRC initially also challenged the legality of the Belgian Law itself, raising broader questions about the permissible scope of jurisdiction by national criminal courts over international crimes committed outside the territory of the prosecuting court. However, the DRC later condensed and refined its claim, leaving the ICJ with the following question: Did the issue and circulation of an arrest warrant by a Belgian judge against a person who was at the time the Congolese Foreign Minister, but who no longer holds government office, violate his immunity from criminal process and make the arrest warrant unlawful under international law? Thus, the case before the Court was about whether ministerial immunity affected the lawfulness of the Belgian arrest warrant, and did not deal with the question whether the disputed warrant, issued in an exercise of purported universal jurisdiction, complied with the rules and principles of international law governing the jurisdiction of national courts. Given that the DRC had dropped its challenge to the legality of the arrest warrant based on Belgium's claim to exercise universal jurisdiction, the Court assumed solely for the purpose of this case that Belgium had jurisdiction under international law to issue and circulate the warrant.

After rejecting Belgium's objections relating to jurisdiction, mootness and admissibility by 15 votes to one, the Court found that the issue against Yerodia of the arrest warrant and its international circulation constituted violations of a legal obligation of Belgium against the DRC, in that they failed to respect the immunity from criminal jurisdiction and the inviolability that the incumbent Congolese Minister for Foreign Affairs enjoyed under international law.

The Court found that there are no treaties that specifically define the immunities enjoyed by ministers for foreign affairs. Whereas Belgium claimed that no immunity attaches under international law for serious crimes under international law or for acts done in a private capacity or other than in the performance of official functions, the DRC argued that a sitting foreign minister's immunity is subject to no exception. The ICJ agreed with the DRC that, under customary international law, sitting foreign ministers when abroad enjoy full immunity from criminal jurisdiction as well as inviolability protecting them from "any act of authority" by another State which would hinder them in the performance of their duties. The Court could not discern any exception to this rule in State practice. Thus, it does not matter whether a foreign minister was, at the time of arrest, present in the territory of the arresting State on an "official" or a "private" visit, or whether the arrest relates to acts allegedly committed before the foreign minister took office or while in office. It also is immaterial whether or not the arrest relates to alleged acts performed in an "official" capacity or a "private" capacity. Moreover, there is no exception to an incumbent foreign minister's absolute immunity from criminal process where that person is accused of having committed crimes under international law.

The Court, which includes two judges who had formerly served as foreign ministers, emphasized that this immunity from jurisdiction does not affect their individual criminal responsibility: immunity does not mean impunity. Thus, a foreign minister's State may itself prosecute him or her or may waive immunity to prosecution by another State. In addition, after a foreign minister ceases to hold public office, a court of one State may, provided it has jurisdiction under international law, try the former foreign minister of another State for any acts committed prior or subsequent to the minister's period of office, as well as for private acts committed during his or her tenure. Finally, incumbent or former foreign ministers may be tried by international criminal tribunals having jurisdiction over the alleged crimes.

In this case, the Court found that the issuance of the disputed arrest warrant constituted an unlawful coercive measure by Belgium violating the immunity of the then Congolese Foreign Minister, even though it was never executed against him. It infringed his immunity as the DRC Foreign Minister by hampering him in his foreign travels and exposing him to arrest while abroad.

The Court considered that its finding that Yerodia's immunity as Foreign Minister had been violated itself constitutes a form of remedy to the moral injury of which the DRC complained. But international law also requires the reestablishment of the situation which would have existed if the illegal act had not been committed. Thus, the ICJ found that Belgium must, by means of its own choosing, cancel the disputed arrest warrant and so inform the authorities to whom the warrant had been circulated. The Court did not rule that third States are precluded from executing the arrest warrant, given that such States fall outside the Court's jurisdiction over this case between the DRC and Belgium.

Although the decision is limited by its terms to sitting foreign ministers and, by virtue of Article 59 of the ICJ Statute, is binding only on the DRC and Belgium and only with regard to this particular case, its impact is potentially much broader. The judgment indicates that the ICJ would apply a similar analysis to other high-ranking officials who, like foreign ministers, represent the State in international affairs and must travel to carry out their duties. In light of this decision, Belgium is reviewing the human rights probe against incumbent Israeli Prime Minister Ariel Sharon for alleged crimes committed by him in Palestinian refugee camps while he was Israeli Army chief. If the Court's analysis regarding Yerodia is found to apply to Sharon's circumstances, the Sharon warrant likewise violates international law and Belgium must cancel that warrant and reissue it after Sharon leaves office.

The decision also is significant for what it did not decide. For example, it leaves unaffected the Belgian Law on which the Brussels magistrate based his arrest warrant in this and other prominent cases where the accused is a non-Belgian dignitary (including human rights probes involving the presidents of the Congo, Cuba, Iran and Ivory Coast). Given that the ICJ necessarily assumed for purposes of this case that Belgium had jurisdiction under international law to issue its arrest warrant, the Court did not reach the issue of whether a nation (including Belgium) may adopt "long-arm" statutes allowing its domestic courts to hear cases involving alleged crimes under international law against any State, person or company where neither the alleged criminal acts took place in the territory in which these courts sit, nor the victims/complainants and defendants were present in that nation. Even though the potential long-arm reach of domestic courts with regard to alleged violations of international law was not addressed in this case, it is very much alive, especially in light of the Court's pronouncement that immunity does not mean impunity.

The decision is confusing in that it is unclear how broadly or easily States may designate (so as to create bases for claims of immunity) present and former officials as carrying-out "foreign minister"-type duties. The judgment suggests that former foreign ministers may never be tried abroad for "official" acts committed during their tenure, even though under international law certain crimes (e.g., genocide) cannot be defended as having been "official" acts.

The Court's conclusion that incumbent foreign ministers are protected from "any act of authority" by another State that would hinder them in the performance of their duties presumably refers not only to criminal warrants, but also to civil subpoenas and other forms of process that could hinder a minister's performance because of the threat of judicial compulsion or enforcement. Thus, although the decision only addresses an incumbent foreign minister's immunity from criminal process and does not bind third States, it may affect how countries like the United States apply laws allowing private plaintiffs to sue foreign States, persons and companies in national courts for alleged violations of the law of nations (e.g., under the U.S. Alien Tort Claims Act). Civil deposition subpoenas issued in such cases carry the possibility of compulsion by a national court, including in the form of contempt sanctions. Even though the U.S. Government regularly has intervened in U.S. cases to suggest immunity for foreign Heads of State and other high-ranking officials, which suggestion the courts have routinely adopted, a broad range of incumbent and former officials remain subject to suit under the Court's narrow reasoning.

The full text of the Court's decision and press communiqué on this case is available on its Web site: <www.icj-cij.org>.

For further discussion of these and related issues, please see the previous ASIL Insights [http://www.asil.org/insights.htm], "Belgian Jury to Decide Case Concerning Rwandan Genocide," May 2001, "Pinochet Arrest in Chile," Dec. 2000, "The Democratic Republic of the Congo Requests the World Court to Order Belgium to Annul an Arrest Warrant issued against the Congo's Foreign Minister," Oct. 2000, "Alien Tort Claims Act Proceeding Against Robert Mugabe," Sept. 2000; "Possible Indictment of Pinochet in the United States," March 2000; "The Indictment in Senegal of the Former Chad Head of State," Feb. 2000; "Request for Extradition of Miguel Cavallo from Mexico to Spain for Alleged Torture in Argentina," Sept. 2000; and "The Pinochet Arrest and Possible Extradition to Spain," Oct. 1998.

About the Author
Pieter H.F. Bekker, Ph.D. practices international law and arbitration at White & Case LLP in New York City, and formerly served as a staff lawyer at the ICJ in The Hague. He has written two books ("Commentaries on World Court Decisions (1987-1996)" and "World Court Decisions at the Turn of the Millennium (1997-2001)," both with Kluwer) and numerous articles and notes on the ICJ. He co-chaired the 94^th Annual Meeting of the American Society of International Law in April 2000.
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