World Court Orders
Belgium to Cancel an Arrest Warrant Issued Against the Congolese
by Pieter H.F. Bekker
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
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
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
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
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
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"
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
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 94th Annual Meeting of
the American Society of International Law in April 2000.
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