COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE AU MANDAT D’ARRET
DU 11 AVRIL 2000

(REPUBLIQUE DEMOCRATIQUE DU CONGO c. BELGIQUE)

ARRET DU 14 FEVRIER 2002

2002

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING THE ARREST WARRANT
OF 11 APRIL 2000

(DEMOCRATIC REPUBLIC OF THE CONGO ». BELGIUM)

JUDGMENT OF 14 FEBRUARY 2002
Mode officiel de citation:

Mandat d'arrêt du 11 avril 2000 ( République démocratique
du Congo c. Belgique), arrêt,
CLS. Recueil 2002, p. 3

Official citation:

Arrest Warrant of 11 April 2000 (Democratic Republic
of the Congo v. Belgium), Judgment,
LC J. Reports 2002, p. 3

ISSN 0074-4441
ISBN 92-1-070940-3

N° de vente:
Sales number

837

14 FEVRIER 2002

ARRET

MANDAT D’ARRET DU 11 AVRIL 2000
(RÉPUBLIQUE DÉMOCRATIQUE DU CONGO c. BELGIQUE)

ARREST WARRANT OF 11 APRIL 2000
(DEMOCRATIC REPUBLIC OF THE CONGO y. BELGIUM)

14 FEBRUARY 2002

JUDGMENT
INTERNATIONAL COURT OF JUSTICE

YEAR 2002

14 February 2002

CASE CONCERNING THE ARREST WARRANT
OF 11 APRIL 2000

(DEMOCRATIC REPUBLIC OF THE CONGO y. BELGIUM)

Facts of the case — Issue by a Belgian investigating magistrate of “an inter-
national arrest warrant in absentia” against the incumbent Minister for Foreign

Affairs of the Congo, alleging grave breaches of the Geneva Conventions of

1949 and of the Additional Protocols thereto and crimes against humanity
International circulation of arrest warrant through Interpol — Person con-
cerned subsequently ceasing to hold office as Ministe. for Foreign Affairs.

* *

First objection of Belgium — 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 jurisdic-
tion.

Second objection of Belgium — Mootness — Fact that the person concerned
had ceased to hold office as Minister for Foreign Affcirs does not put an end to
the dispute between the Parties and does not deprive the Application of its
object.

Third objection of Belgium — Admissibility — Facts underlying the Applica-
tion instituting proceedings not changed in a way that transformed the dispute
originally brought before the Court into another whic. is different in character.

Fourth objection of Belgium — Admissibility — Ccngo not acting in the con-
text of protection of one of its nationals — Inapplicability of rules relating to
exhaustion of local remedies.

Subsidiary argument of Belgium — Non ultra petia rule — Claim in Appli-
cation instituting proceedings that Belgium’s claim to exercise a universal juris-
diction in issuing the arrest warrant is contrary to irternational law — Claim
not made in final submissions of the Congo — Court unable to rule on that ques-

4

2002
14 February
General List
No. 121
ARREST WARRANT (JUDGMEN"‘} 4

tion in the operative part of its Judgment but not prevented from dealing with
certain aspects of the question in the reasoning of its Judgment.

* *

Immunity from criminal jurisdiction in other States and also inviolability of
an incumbent Minister for Foreign Affairs — Vienna Convention on Diplomatic
Relations of 18 April 1961, preamble, Article 32 — Vienna Convention on Con-
sular Relations of 24 April 1963 — New York Convention on Special Missions
of 8 December 1969, Article 21, paragraph 2 — Customary international law
rules — Nature of the functions exercised by a Minister for Foreign Affairs —
Functions such that, throughout the duration of his or her office, a Minister for
Foreign Affairs when abroad enjoys full immunity from criminal jurisdiction and
inviolability — No distinction in this context between acts performed in an
“official” capacity and those claimed to have been performed in a “private
capacity”.

No exception to immunity from criminal jurisdiction and inviolability where
an incumbent Minister for Foreign Affairs suspected of having committed war
crimes or crimes against humanity — Distinction between jurisdiction of national
courts and jurisdictional immunities — Distinction between immunity from
Jurisdiction and impunity.

Issuing of arrest warrant intended to enable the arrest on Belgian territory of
an incumbent Minister for Foreign Affairs — Mere issuing of warrant a failure
to respect the immunity and inviolability of Minister for Foreign Affairs — Pur-
pose of the international circulation of the arrest warrant to establish a legal
basis for the arrest of Minister for Foreign Affairs abroad and his subsequent
extradition to Belgium — International circulation of the warrant a failure to
respect the immunity and inviolability of Minister for Foreign Affairs.

*

Remedies sought by the Congo — Finding by the Court of international
responsibility of Belgium making good the moral injury complained of by the
Congo — Belgium required by means of its own choosing to cancel the warrant
in question and so inform the authorities to whom it was circulated.

JUDGMENT

Present: President GUILLAUME; Vice-President Sui. Judges Opa, RANIJEVA,
HERCZEGH, FLEISCHHAUER, KOROMA, VERESHCHETIN, HIGGINS, PARRA-
ARANGUREN, KOONMANS, REZEK, AL-KHASAWNEH, BUERGENTHAL;
Judges ad hoc Buta-Buta, VAN DEN Wyncarrt; Registrar COUVREUR.

In the case concerning the arrest warrant of 11 April 2000,
between

the Democratic Republic of the Congo,
ARREST WARRANT (JUDGMENT) 5

represented by

H.E. Mr. Jacques Masangu-a-Mwanza, Ambassador Extraordinary and
Plenipotentiary of the Democratic Republic of the Congo to the Kingdom
of the Netherlands,

as Agent;

H.E. Mr. Ngele Masudi, Minister of Justice and Keeper of the Seals,

Maitre Kosisaka Kombe, Legal Adviser to the Presidency of the Republic,

Mr. Frangois Rigaux, Professor Emeritus at the Catholic University of Lou-
vain,

Ms Monique Chemillier-Gendreau, Professor at the University of Paris VII
(Denis Diderot),

Mr. Pierre d'Argent, Chargé de cours, Catholic University of Louvain,

Mr. Moka N’Golo, Batonnier,

Mr. Djeina Wembou, Professor at the University of Abidjan,

as Counsel and Advocates;
Mr. Mazyambo Makengo, Legal Adviser to the Ministry of Justice,
as Counsellor,

and

the Kingdom of Belgium,
represented by

Mr. Jan Devadder, Director-General, Legal Matters, Ministry of Foreign
Affairs,

as Agent;

Mr. Eric David, Professor of Public International Law, Université libre de
Bruxelles,

Mr. Daniel Bethlehem, Barrister, Bar of England atid Wales, Fellow of Clare
Hall and Deputy Director of the Lauterpacht Research Centre for Inter-
national Law, University of Cambridge,

as Counsel and Advocates;

H.E. Baron Olivier Gillés de Pélichy, Permanent Representative of the King-
dom of Belgium to the Organization for the Prohibition of Chemical
Weapons, responsible for relations with the International Court of Justice,

Mr. Claude Debrulle, Director-General, Criminal Legislation and Human
Rights, Ministry of Justice,

Mr. Pierre Morlet, Advocate-General, Brussels Cour d’Appel,

Mr. Wouter Detavernier, Deputy Counsellor, Directorate-General Legal
Matters, Ministry of Foreign Affairs,

Mr. Rodney Neufeld, Research Associate, Lauterpacht Research Centre for
International Law, University of Cambridge,

Mr. Tom Vanderhaeghe, Assistant at the Universi libre de Bruxelles,

THE Court,
composed as above,
after deliberation,

delivers the following Judgment:
ARREST WARRANT (JUDGMENT) 6

1. On 17 October 2000 the Democratic Republic of the Congo (hereinafter
referred to as “the Congo”) filed in the Registry of the Court an Application
instituting proceedings against the Kingdom of Belgium (hereinafter referred to
as “Belgium”) in respect of a dispute concerning an “international arrest war-
rant issued on 11 April 2000 by a Belgian investigating judge . . . against the
Minister for Foreign Affairs in office of the Democratic Republic of the Congo,
Mr. Abdulaye Yerodia Ndombasi”.

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”.

In order to found the Court’s jurisdiction the Congo invoked in the afore-
mentioned Application the fact that “Belgium ha[d] accepted the jurisdiction of
the Court and, in so far as may be required, the [aforementioned] Application
signifie[d] acceptance of that jurisdiction by the Democratic Republic of the
Congo”.

2. Pursuant to Article 40, paragraph 2, of the Statute, the Application was
forthwith communicated to the Government of Belgium by the Registrar; and,
in accordance with paragraph 3 of that Article, all States entitled to appear
before the Court were notified of the Application.

3. Since the Court included upon the Bench no judge of the nationality of
either of the Parties, each Party proceeded to exercise the right conferred by
Article 31, paragraph 3, of the Statute to choose a judge ad hoc to sit in the
case; the Congo chose Mr. Sayeman Bula-Bula, and Belgium Ms Chris-
tine Van den Wyngaert.

4. On 17 October 2000, the day on which the Application was filed, the
Government of the Congo also filed in the Registry of the Court a request for
the indication of a provisional measure based on Aiticle 41 of the Statute of
the Court. At the hearings on that request, Belgium, for its part, asked that the
case be removed from the List.

By Order of 8 December 2000 the Court, on the one hand, rejected Belgium’s
request that the case be removed from the List and, cn the other, held 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. In the same Order, the Cour: also held that “it [was]
desirable that the issues before the Court should be d2termined as soon as pos-
sible” and that “it [was] therefore appropriate to ensure that a decision on the
Congo’s Application be reached with all expedition”

5. By Order of 13 December 2000, the President of the Court, taking
account of the agreement of the Parties as expressel at a meeting held with
their Agents on 8 December 2000, fixed time-limits for the filing of a Memorial
by the Congo and of a Counter-Memorial by Belgiu n, addressing both issues
of jurisdiction and admissibility and the merits. By Orders of 14 March 2001
and 12 April 2001, these time-limits, taking account of the reasons given by the
Congo and the agreement of the Parties, were successively extended. The
Memorial of the Congo was filed on 16 May 2001 within the time-limit thus
finally prescribed.

6. By Order of 27 June 2001, the Court, on the onz hand, rejected a request

7
ARREST WARRANT (JUDGMEN”™) 7

by Belgium for authorization, in derogation from the previous Orders of the
President of the Court, to submit preliminary objections involving suspension
of the proceedings on the merits and, on the other, extended the time-limit pre-
scribed in the Order of 12 April 2001 for the filing by Belgium of a Counter-
Memorial addressing both questions of jurisdiction and admissibility and the
merits. The Counter-Memorial of Belgium was filed on 28 September 2001
within the time-limit thus extended.

7. Pursuant to Article 53, paragraph 2, of the Rules, the Court, after ascer-
taining the views of the Parties, decided that copies of the pleadings and docu-
ments annexed would be made available to the public at the opening of the oral
proceedings.

8. Public hearings were held from 15 to 19 October 2001, at which the Court
heard the oral arguments and replies of:

For the Congo: H.E. Mr. Jacques Masangu-a-Mwanza,
H.E. Mr. Ngele Masudi,
Maitre Kosisaka Kombe,
Mr. Francois Rigaux,
Ms Monique Chemillier-Gendreau,
Mr. Pierre d’Argent.

For Belgium: Mr. Jan Devadder,
Mr. Daniel Bethlehem,
Mr. Eric David.

9. At the hearings, Members of the Court put cuestions to Belgium, to
which replies were given orally or in writing, in accordance with Article 61,
paragraph 4, of the Rules of Court. The Congo provided its written comments
on the reply that was given in writing to one of these questions, pursuant to
Article 72 of the Rules of Court.

*

10. In its Application, the Congo formulated the decision requested in the
following terms:

“The Court is requested to declare that the Kingdom of Belgium shall
annul the international arrest warrant issued on 11 April 2000 by a Belgian
investigating judge, Mr. Vandermeersch, of the Brussels Tribunal de
première instance against the Minister for Foreign Affairs in office of the
Democratic Republic of the Congo, Mr. Abdu aye Yerodia Ndombasi,
seeking his provisional detention pending a request for extradition to Bel-
gium for alleged crimes constituting ‘serious violations of international
humanitarian law’, that warrant having been circulated by the judge to all
States, including the Democratic Republic of the Congo, which received it
on 12 July 2000.”

11. In the course of the written proceedings, the fo lowing submissions were
presented by the Parties:
On behalf of the Government of the Congo,
in the Memorial:

“In light of the facts and arguments set out above, the Government of
the Democratic Republic of the Congo requests the Court to adjudge and
declare that:
ARREST WARRANT (JUDGMEN7) 8

1. by issuing and internationally circulating the arrest warrant of 11 April
2000 against Mr. Abdulaye Yerodia Ndombasi, Belgium committed a
violation in regard to the DRC of the rule of customary international
law concerning the absolute inviolability and immunity from criminal
process of incumbent foreign ministers;

2. a formal finding by the Court of the unlawfulness of that act consti-
tutes an appropriate form of satisfaction, providing reparation for the
consequent moral injury to the DRC;

3. the violation of international law underlying the issue and international
circulation of the arrest warrant of 11 April 2000 precludes any State,
including Belgium, from executing it;

4. Belgium shall be required to recall and cancel the arrest warrant of
11 April 2000 and to inform the foreign auth drities to whom the war-
rant was circulated that, following the Court’s Judgment, Belgium
renounces its request for their co-operation i1 executing the unlawful
warrant.”

On behalf of the Government of Belgium,
in the Counter-Memorial:

“For the reasons stated in Part II of this Counter-Memorial, Belgium
requests the Court, as a preliminary matter, to udjudge and declare that
the Court lacks jurisdiction in this case and/or that the application by the
Democratic Republic of the Congo against Belgium is inadmissible.

If, contrary to the preceding submission, the Court concludes that it
does have jurisdiction in this case and that the application by the Demo-
cratic Republic of the Congo is admissible, Belgium requests the Court to
reject the submissions of the Democratic Reputlic of the Congo on the
merits of the case and to dismiss the application.”

12. At the oral proceedings, the following submissions were presented by the
Parties:

On behalf of the Government of the Congo,

“In light of the facts and arguments set out during the written and oral
proceedings, the Government of the Democratic Republic of the Congo
requests the Court to adjudge and declare that:

1. by issuing and internationally circulating the arrest warrant of
11 April 2000 against Mr. Abdulaye Yerodia Ndombasi, Belgium com-
mitted a violation in regard to the Democrati: Republic of the Congo
of the rule of customary international law concerning the absolute
inviolability and immunity from criminal process of incumbent foreign
ministers; in so doing, it violated the principle of sovereign equality
among States;

2. a formal finding by the Court of the unlawfulness of that act consti-
tutes an appropriate form of satisfaction, providing reparation for the
consequent moral injury to the Democratic Republic of the Congo;

3. the violations of international law underlying the issue and interna-
tional circulation of the arrest warrant of 11 April 2000 preclude any
State, including Belgium, from executing it;

4. Belgium shall be required to recall and cancel the arrest warrant of
11 April 2000 and to inform the foreign authorities to whom the war-

9
ARREST WARRANT (JUDGMENT) 9

rant was circulated that Belgium renounces its request for their co-
operation in executing the unlawful warrant.”

On behalf of the Government of Belgium,

“For the reasons stated in the Counter-Memorial of Belgium and in its
oral submissions, Belgium requests the Court, as a preliminary matter, to
adjudge and declare that the Court lacks jurisdiction in this case and/or
that the Application by the Democratic Republic of the Congo against
Belgium is inadmissible.

If, contrary to the submissions of Belgium with regard to the Court’s
jurisdiction and the admissibility of the Applicat on, the Court concludes
that it does have jurisdiction in this case and that the Application by the
Democratic Republic of the Congo is admissib'e, Belgium requests the
Court to reject the submissions of the Democratiz Republic of the Congo
on the merits of the case and to dismiss the App'ication.”

* * *

13. On 11 April 2000 an investigating judge of the Brussels Tribunal
de premiére instance issued “an international arrest warrant in absentia”
against Mr. Abdulaye Yerodia Ndombasi, charging him, as perpetrator
or co-perpetrator, with offences constituting grave breaches of the Geneva
Conventions of 1949 and of the Additional Protocols thereto, and with
crimes against humanity.

At the time when the arrest warrant was issued Mr. Yerodia was the
Minister for Foreign Affairs of the Congo.

14. The arrest warrant was transmitted to the (Congo on 7 June 2000,
being received by the Congolese authorities on 1”. July 2000. According
to Belgium, the warrant was at the same time transmitted to the Inter-
national Criminal Police Organization (Interpol), an organization
whose function is to enhance and facilitate cross-border criminal police
co-operation worldwide; through the latter, it was circulated interna-
tionally.

15. In the arrest warrant, Mr. Yerodia is accused of having made vari-
ous speeches inciting racial hatred during the month of August 1998. The
crimes with which Mr. Yerodia was charged were punishable in Belgium
under the 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 Il of 8 June 1977 Additional Thereto”, as
amended by the Law of 10 February 1999 “concerning the Punishment of
Serious Violations of International Humanitarian Law” (hereinafter
referred to as the “Belgian Law”).

Article 7 of the Belgian Law provides that “The Belgian courts shall
have jurisdiction in respect of the offences provided for in the present
Law, wheresoever they may have been committed”. In the present case,
according to Belgium, the complaints that initiated the proceedings as a
result of which the arrest warrant was issued emanated from 12 indivi-
duals all resident in Belgium, five of whom were of Belgian nationality.
It is not contested by Belgium, however, that th2 alleged acts to which

10
ARREST WARRANT (JUDGMENT) 10

the arrest warrant relates were committed outside Belgian territory, that
Mr. Yerodia was not a Belgian national at the time of those acts, and
that Mr. Yerodia was not in Belgian territory at the time that the arrest
warrant was issued and circulated. That no Belgian nationals were vic-
tims of the violence that was said to have resulted from Mr. Yerodia’s
alleged offences was also uncontested.

Article 5, paragraph 3, of the Belgian Law further provides that
“fijmmunity attaching to the official capacity of a person shall not pre-
vent the application of the present Law”.

16. At the hearings, Belgium further claimed that it offered “to entrust
the case to the competent authorities [of the Cong ] for enquiry and pos-
sible prosecution”, and referred to a certain number of steps which it
claimed to have taken in this regard from September 2000, that is, before
the filing of the Application instituting proceedings. The Congo for its
part stated the following: “We have scant information concerning the
form [of these Belgian proposals].” It added tha: “these proposals . . .
appear to have been made very belatedly, namely after an arrest warrant
against Mr. Yerodia had been issued”.

17. On 17 October 2000, the Congo filed in the Registry an Applica-
tion instituting the present proceedings (see paragraph | above), in which
the Court was requested “to declare that the Kingdom of Belgium shall
annul the international arrest warrant issued on 11 April 2000”. The
Congo relied in its Application on two separate legal grounds. First, it
claimed that “[t]he universal jurisdiction that the Belgian State attributes
to itself under Article 7 of the Law in question” constituted a

“Ivjiolation of the principle that a State may not exercise its author-
ity on the territory of another State and of 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”.

Secondly, it claimed that “[t]he non-recognition, on the basis of
Article 5... of the Belgian Law, of the immunity of a Minister for For-
eign Affairs in office” constituted a “[vliolation of the diplomatic immu-
nity of the Minister for Foreign Affairs of a sovereign State, as recog-
nized by the jurisprudence of the Court and following from Article 41,
paragraph 2, of the Vienna Convention of 18 April 1961 on Diplomatic
Relations”.

18. On the same day that it filed its Application instituting proceed-
ings, the Congo submitted a request to the Court for the indication of a
provisional measure under Article 41 of the Statute of the Court. During
the hearings devoted to consideration of that request, the Court was
informed that in November 2000 a ministerial reshuffle had taken place
in the Congo, following which Mr. Yerodia had zeased to hold office as
Minister for Foreign Affairs and had been entrusted with the portfolio of
Minister of Education. Belgium accordingly claimed that the Congo’s
Application had become moot and asked the Court, as has already been

11
ARREST WARRANT (JUDGMENT, 11

recalled, to remove the case from the List. By Order of 8 December 2000,
the Court rejected both Belgium’s submissions to that effect and also the
Congo’s request for the indication of provisional measures (see para-
graph 4 above).

19. From mid-April 2001, with the formation of a new Government in
the Congo, Mr. Yerodia ceased to hold the post of Minister of Educa-
tion. He no longer holds any ministerial office today.

20. On 12 September 2001, the Belgian National Central Bureau of
Interpol requested the Interpol General Secretariat to issue a Red Notice
in respect of Mr. Yerodia. Such notices concern individuals whose arrest
is requested with a view to extradition. On 19 October 2001, at the public
sittings held to hear the oral arguments of the Partizs in the case, Belgium
informed the Court that Interpol had responded on 27 September 2001
with a request for additional information, and that no Red Notice had
yet been circulated.

21. Although the Application of the Congo originally advanced two
separate legal grounds (see paragraph 17 above), the submissions of the
Congo in its Memorial and the final submissions which it presented at the
end of the oral proceedings refer only to a violation “in regard to the...
Congo of the rule of customary international law concerning the absolute
inviolability and immunity from criminal process of incumbent foreign
ministers” (see paragraphs 11 and 12 above).

x * x

22. In their written pleadings, and in oral argument, the Parties
addressed issues of jurisdiction and admissibility as well as the merits (see
paragraphs 5 and 6 above). In this connection, Belgium raised certain
objections which the Court will begin by addressing.

* *

23. The first objection presented by Belgium reads as follows:

“That, in the light of the fact that Mr. Yerodia Ndombasi is no
longer either Minister for Foreign Affairs of the [Congo] or a min-
ister occupying any other position in the . . . Government [of the
Congo], there is no longer a ‘legal dispute’ between the Parties
within the meaning of this term in the Optional Clause Declarations
of the Parties and that the Court accordingly lacks jurisdiction in
this case.”

24. Belgium does not deny that such a legal dispute existed between
the Parties at the time when the Congo filed its Application instituting
proceedings, and that the Court was properly seised by that Application.
However, it contends that the question is not whether a legal dispute

12
ARREST WARRANT (JUDGMENT: 12

existed at that time, but whether a legal dispute exists at the present time.
Belgium refers in this respect inter alia to the Northern Cameroons case,
in which the Court found that it “may pronounce judgment only in con-
nection with concrete cases where there exists at the time of the adjudica-
tion an actual controversy involving a conflict of legal interests between
the parties” (1 C.J. Reports 1963, pp. 33-34), as well as to the Nuclear
Tests cases { Australia v. France) (New Zealand v. France), in which the
Court stated the following: “The Court, as a court of law, is called upon
to resolve existing disputes between States . . . The dispute brought
before it must therefore continue to exist at the time when the Court
makes its decision” (Z C.J. Reports 1974, pp. 270-271, para. 55; p. 476,
para. 58). Belgium argues that the position of Mr. Yerodia as Minister
for Foreign Affairs was central to the Congo’s Application instituting
proceedings, and emphasizes that there has now bezn a change of circum-
stances at the very heart of the case, in view of the fact that Mr. Yerodia
was relieved of his position as Minister for Foreign Affairs in Novem-
ber 2000 and that, since 15 April 2001, he has occupied no position in the
Government of the Congo (see paragraphs 18 and 19 above). According
to Belgium, while there may still be a difference cf opinion between the
Parties on the scope and content of internatioral law governing the
immunities of a Minister for Foreign Affairs, thai difference of opinion
has now become a matter of abstract, rather than of practical, concern.
The result, in Belgium’s view, is that the case has become an attempt by
the Congo to “[seek] an advisory opinion from the Court”, and no longer
a “concrete case” involving an “actual controversy” between the Parties,
and that the Court accordingly lacks jurisdiction in the case.

25. The Congo rejects this objection of Belgium It contends that there
is indeed a legal dispute between the Parties, in that the Congo claims
that the arrest warrant was issued in violation of the immunity of its
Minister for Foreign Affairs, that that warrant was unlawful ab initio,
and that this legal defect persists despite the subsequent changes in the
position occupied by the individual concerned, while Belgium maintains
that the issue and circulation of the arrest warrant were not contrary to
international law. The Congo adds that the termination of Mr. Yerodia’s
official duties in no way operated to efface the wrongful act and the
injury that flowed from it, for which the Congo continues to seek redress.

*

26. The Court recalls that, according to its settled jurisprudence, its
jurisdiction must be determined at the time that ‘he act instituting pro-
ceedings was filed. Thus, if the Court has jurisdiction on the date the case
is referred to it, it continues to do so regardless of subsequent events.
Such events might lead to a finding that an application has subsequently

13
ARREST WARRANT (JUDGMENT = 13

become moot and to a decision not to proceed to judgment on the merits,
but they cannot deprive the Court of jurisdiction (see Nottebohm,
Preliminary Objection, Judgment, C.J. Reports /953, p. 122; Right of
Passage over Indian Territory, Preliminary Objections, Judgment, 1 CJ.
Reports 1957, p. 142; Questions of Interpretation and Application of the
1971 Montreal Convention arising from the Aerial Incident at Lockerbie
(Libyan Arab Jamahiriya v. United Kingdom), Preliminary Objections,
Judgment, I.C.J. Reports 1998, pp. 23-24, para. 38; and Questions of
Interpretation and Application of the 1971 Montreal Convention arising
from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United
States of America), Preliminary Objections, Judzment, C.J. Reports
1998, p. 129, para. 37).
27. Article 36, paragraph 2, of the Statute of the Court provides:

“The States parties to the present Statute may at any time declare
that they recognize as compulsory ipso facto and without special
agreement, in relation to any other State accepting the same obliga-
tion, the jurisdiction of the Court in all legal disputes concerning:

(a) the interpretation of a treaty;

(6) any question of international law;

(c} the existence of any fact which, if established, would constitute
a breach of an international obligation;

(d) the nature or extent of the reparation to be made for the breach
of an international obligation.”

On 17 October 2000, the date that the Congo’s Application instituting
these proceedings was filed, each of the Parties was bound by a declara-
tion of acceptance of compulsory jurisdiction, filed in accordance with
the above provision: Belgium by a declaration of 17 June 1958 and the
Congo by a declaration of 8 February 1989. Those declarations con-
tained no reservation applicable to the present case.

Moreover, it is not contested by the Parties that at the material time
there was a legal dispute between them concerning the international law-
fulness of the arrest warrant of 11 April 2000 and the consequences to be
drawn if the warrant was unlawful. Such a dispute was clearly a legal dis-
pute within the meaning of the Court’s jurisprudence, namely “a dis-
agreement on a point of law or fact, a conflict of legal views or of interests
between two persons” in which “the claim of cne party is positively
opposed by the other” (Questions of Interpretation and Application of the
1971 Montreal Convention arising from the Aeriar Incident at Lockerbie
(Libyan Arab Jamahiriya v. United Kingdom), Preliminary Objections,
Judgment, C.J. Reports 1998, p. 17, para. 22; and Questions of Inter-
pretation and Application of the 1971 Montreal Convention arising from
the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United
States of America), Preliminary Objections, Juagment, C.J. Reports
1998, pp. 122-123, para. 21).

28. The Court accordingly concludes that at the time that it was seised

14
ARREST WARRANT (JUDGMENT) 14

of the case it had jurisdiction to deal with it, and that it still has such
jurisdiction. Belgium’s first objection must therefore be rejected.

* Ox

29. The second objection presented by Belgium is the following:

“That in the light of the fact that Mr. Yerodia Ndombasi is no
longer either Minister for Foreign Affairs of the [Congo] or a min-
ister occupying any other position in the .. Government [of the
Congo], the case is now without object and the Court should accord-
ingly decline to proceed to judgment on the merits of the case.”

30. Belgium also relies in support of this objection on the Northern
Cameroons case, in which the Court considered that it would not be a
proper discharge of its duties to proceed further in a case in which any
judgment that the Court might pronounce would be “without object”
(C.J. Reports 1963, p. 38), and on the Nuclear Tests cases, in which the
Court saw “no reason to allow the continuance of proceedings which it
knows are bound to be fruitless” (C.J. Reports 1974, p. 271, para. 58:
p. 477, para. 61). Belgium maintains that the declarations requested by
the Congo in its first and second submissions would clearly fall within the
principles enunciated by the Court in those cases, since a judgment of the
Court on the merits in this case could only be directed towards the clari-
fication of the law in this area for the future, or be designed to reinforce
the position of one or other Party. It relies in support of this argument on
the fact that the Congo does not allege any material injury and is not
seeking compensatory damages. It adds that the issue and transmission
of the arrest warrant were not predicated on the ministerial status of the
person concerned, that he is no longer a minister, and that the case is
accordingly now devoid of object.

31. The Congo contests this argument of Belgium, and emphasizes
that the aim of the Congo — to have the disputed arrest warrant
annulled and to obtain redress for the moral injury suffered — remains
unachieved at the point in time when the Court is called upon to decide
the dispute. According to the Congo, in order for the case to have
become devoid of object during the proceedings, the cause of the viola-
tion of the right would have had to disappear, aid the redress sought
would have to have been obtained.

%

32. The Court has already affirmed on a number cf occasions that events
occurring subsequent to the filing of an application may render the applica-
tion without object such that the Court is not called 1pon to give a decision
thereon (see Questions of Interpretation and Application of the 1971 Mont-

LS
ARREST WARRANT (JUDGMENT) 15

real Convention arising from the Aerial Incident at Lockerbie (Libyan Arab
Jamahiriya v. United Kingdom), Preliminary Objections, Judgment, 1 CJ.
Reports 1998, p. 26, para. 46; and Questions of Interpretation and Applica-
tion of the 1971 Montreal Convention arising from the Aerial Incident at
Lockerbie (Libyan Arab Jamahiriya v. United States of America), Prelimi-
nary Objections, Judgment, L C.J. Reports 1998, p. 131, para. 45).

However, it considers that this is not such a case. The change which
has occurred in the situation of Mr. Yerodia has not in fact put an end to
the dispute between the Parties and has not deprived the Application of
its object. The Congo argues that the arrest warrant issued by the Belgian
judicial authorities against Mr. Yerodia was and remains unlawful. It
asks the Court to hold that the warrant is unlawful, thus providing
redress for the moral injury which the warrant allegedly caused to it. The
Congo also continues to seek the cancellation of the warrant. For its
part, Belgium contends that it did not act in violation of international
law and it disputes the Congo’s submissions. In the view of the Court, it
follows from the foregoing that the Application of the Congo is not now
without object and that accordingly the case is not moot. Belgium’s
second objection must accordingly be rejected.

*# *

33. The third Belgian objection is put as follows:

“That the case as it now stands is materially different to that set
out in the [Congo]’s Application instituting proceedings and that the
Court accordingly lacks jurisdiction in the case and/or that the appli-
cation is inadmissible.”

34. According to Belgium, it would be contrarv to legal security and
the sound administration of justice for an applicant State to continue
proceedings in circurnstances in which the factua’ dimension on which
the Application was based has changed fundamentally, since the respond-
ent State would in those circumstances be uncertain, until the very last
moment, of the substance of the claims against it. Belgium argues that
the prejudice suffered by the respondent State in this situation is analo-
gous to the situation in which an applicant State formulates new claims
during the course of the proceedings. It refers to the jurisprudence of the
Court holding inadmissible new claims formulated during the course of
the proceedings which, had they been entertained, would have trans-
formed the subject of the dispute originally brought before it under the
terms of the Application (see Fisheries Jurisdiction (Spain v. Canada),
Jurisdiction of the Court, Judgment, 1 C.J. Reports 1998, pp. 447-448,
para. 29). In the circumstances, Belgium contends that, if the Congo
wishes to maintain its claims, it should be required to initiate proceedings
afresh or, at the very least, apply to the Court for permission to amend its
initial Application.

16

ARREST WARRANT (JUDGMENT) 16

35. In response, the Congo denies that there has been a substantial
amendment of the terms of its Application, and :nsists that it has pre-
sented no new claim, whether of substance or of form, that would have
transformed the subject-matter of the dispute. The Congo maintains that
it has done nothing through the various stages 11 the proceedings but
“condense and refine” its claims, as do most States that appear before the
Court, and that it is simply making use of the right of parties to amend
their submissions until the end of the oral proceec ings.

*

36. The Court notes that, in accordance with settled jurisprudence, it
“cannot, in principle, allow a dispute brought before it by application to
be transformed by amendments in the submissions into another dispute
which is different in character” (Société commerciale de Belgique, Judg-
ment, 1939, P.C.I.J., Series AIB, No. 78, p. 173; cf. Military and Para-
military Activities in and against Nicaragua ( Nica-agua v. United States
of America), Jurisdiction and Admissibility, Judzment, 1 C.J. Reports
1984, p. 427, para. 80; see also Certain Phosphate Lands in Nauru
(Nauru v. Australia), Preliminary Objections, Judgment, I.C.J. Reports
1992, pp. 264-267, in particular paras. 69 and 70:. However, the Court
considers that in the present case the facts underlying the Application
have not changed in a way that produced such a transformation in the
dispute brought before it. The question submitted to the Court for deci-
sion remains whether the issue and circulation of the arrest warrant by
the Belgian judicial authorities against a person who was at that time the
Minister for Foreign Affairs of the Congo were coatrary to international
law. The Congo’s final submissions arise “directly out of the question
which is the subject-matter of that Application” (Fisheries Jurisdiction
(Federal Republic of Germany v. Iceland), Me‘its, Judgment, CJ.
Reports 1974, p. 203, para. 72; see also Temple of Preah Vihear, Merits,
Judgment, LCI. Reports 1962, p. 36).

In these circumstances, the Court considers that Belgium cannot
validly maintain that the dispute brought before the Court was trans-
formed in a way that affected its ability to prepare its defence, or that
the requirements of the sound administration of justice were infringed.
Belgium’s third objection must accordingly be rejected.

* ok

37. The fourth Belgian objection reads as follows:

“That, in the light of the new circumstances concerning Mr. Yero-
dia Ndombasi, the case has assumed the character of an action of
diplomatic protection but one in which the individual being pro-

17
ARREST WARRANT (JUDGMENT) 17

tected has failed to exhaust local remedies, and that the Court
accordingly lacks jurisdiction in the case and/or that the application
is inadmissible.”

38. In this respect, Belgium accepts that, when the case was first insti-
tuted, the Congo had a direct legal interest in the matter, and was assert-
ing a claim in its own name in respect of the alleged violation by Belgium
of the immunity of the Congo’s Foreign Minister. However, according to
Belgium, the case was radically transformed after the Application was
filed, namely on 15 April 2001, when Mr. Yerodia ceased to be a member
of the Congolese Government. Belgium maintains that two of the requests
made of the Court in the Congo’s final submissions in practice now con-
cern the legal effect of an arrest warrant issued aga:nst a private citizen of
the Congo, and that these issues fall within the rea m of an action of dip-
lomatic protection. It adds that the individual concerned has not
exhausted all available remedies under Belgian law a necessary condition
before the Congo can espouse the cause of one of its nationals in inter-
national proceedings.

39. The Congo, on the other hand, denies that this is an action for
diplomatic protection. It maintains that it is bringing these proceedings
in the name of the Congolese State, on account of the violation of the
immunity of its Minister for Foreign Affairs. The Congo further denies
the availability of remedies under Belgian law. [t points out in this regard
that it is only when the Crown Prosecutor has become seised of the case
file and makes submissions to the Chambre du conseil that the accused
can defend himself before the Chambre and seek 10 have the charge dis-
missed.

*

40. The Court notes that the Congo has never sought to invoke before
it Mr. Yerodia’s personal rights. It considers that, despite the change in
professional situation of Mr. Yerodia, the character of the dispute sub-
mitted to the Court by means of the Application has not changed: the
dispute still concerns the lawfulness of the arrest warrant issued on
11 April 2000 against a person who was at the time Minister for Foreign
Affairs of the Congo, and the question whether the rights of the Congo
have or have not been violated by that warrant. As the Congo is not act-
ing in the context of protection of one of its nationals, Belgium cannot
rely upon the rules relating to the exhaustion of local remedies.

In any event, the Court recalls that an objection based on non-exhaus-
tion of local remedies relates to the admissibility of the application (see
Interhandel, Preliminary Objections, Judgment, C.J. Reports 1959,
p. 26; Elettronica Sicula S.p.A. (ELSI), Judgment, 1 C.J. Reports 1989,
p. 42, para. 49). Under settled jurisprudence, the critical date for deter-
mining the admissibility of an application is the date on which it is filed

18
ARREST WARRANT (JUDGMENT) 18

(see Questions of Interpretation and Application of the 1971 Montreal
Convention arising from the Aerial Incident at Lockerbie (Libyan Arab
Jamahiriya v. United Kingdom), Preliminary Objections, Judgment, L CJ.
Reports 1998, pp. 25-26, paras. 43-44; and Questions of Interpretation
and Application of the 1971 Montreal Convention arising from the Aerial
Incident at Lockerbie (Libyan Arab Jamahiriye v. United States of
America}, Preliminary Objections, Judgment, LCJ. Reports 1998,
pp. 130-131, paras. 42-43). Belgium accepts that, on the date on which
the Congo filed the Application instituting proceecings, the Congo had a
direct legal interest in the matter, and was asserting a claim in its own
name. Belgium’s fourth objection must accordingly be rejected.

* *

41. As a subsidiary argument, Belgium further contends that “[iJn the
event that the Court decides that it does have jurisdiction in this case and
that the application is admissible, . . . the non ultra petita rule operates to
limit the jurisdiction of the Court to those issues that are the subject of
the [Congo]’s final submissions”. Belgium points out that, while the
Congo initially advanced a twofold argument, based, on the one hand,
on the Belgian judge’s lack of jurisdiction, and, on the other, on the
immunity from jurisdiction enjoyed by its Minister for Foreign Affairs,
the Congo no longer claims in its final submissions that Belgium wrongly
conferred upon itself universal jurisdiction in absentia. According to Bel-
gium, the Congo now confines itself to arguing that the arrest warrant of
11 April 2000 was unlawful because it violated the immunity from juris-
diction of its Minister for Foreign Affairs, and that the Court conse-
quently cannot rule on the issue of universal jurisdiction in any decision
it renders on the merits of the case.

42. The Congo, for its part, states that its interest in bringing these
proceedings is to obtain a finding by the Court that it has been the victim
of an internationally wrongful act, the question whether this case involves
the “exercise of an excessive universal jurisdiction’ being in this connec-
tion only a secondary consideration. The Congo asserts that any consid-
eration by the Court of the issues of international aw raised by universal
jurisdiction would be undertaken not at the request of the Congo but,
rather, by virtue of the defence strategy adopted by Belgium, which
appears to maintain that the exercise of such jurisdiction can “represent a
valid counterweight to the observance of immunities”.

*

43. The Court would recall the well-established principle that “it is the
duty of the Court not only to reply to the questions as stated in the final
submissions of the parties, but also to abstain frem deciding points not
included in those submissions” (Asylum, Judgment, C.J. Reports 1950,

19
ARREST WARRANT (JUDGMENT) 19

p. 402). While the Court is thus not entitled to decide upon questions not
asked of it, the non ultra petita rule nonetheless cannot preclude the
Court from addressing certain legal points in its reasoning. Thus in the
present case the Court may not rule, in the operative part of its Judg-
ment, on the question whether the disputed arrest warrant, issued by the
Belgian investigating judge in exercise of his purported universal jurisdic-
tion, complied in that regard with the rules and principles of interna-
tional law governing the jurisdiction of national courts. This does not
mean, however, that the Court may not deal with certain aspects of that
question in the reasoning of its Judgment, shoulc it deem this necessary
or desirable.

k Ox

44. The Court concludes from the foregoing that it has jurisdiction to
entertain the Congo’s Application, that the Application is not without
object and that accordingly the case is not moot and that the Applica-
tion is admissible. Thus, the Court now turns to the merits of the case.

x * 4

45. As indicated above (see paragraphs 41 to 42 above), in its Applica-
tion instituting these proceedings, the Congo originally challenged the
legality of the arrest warrant of 11 April 2000 on two separate grounds:
on the one hand, Belgium’s claim to exercise a universal jurisdiction and,
on the other, the alleged violation of the immunities of the Minister for
Foreign Affairs of the Congo then in office. However, in its submissions
in its Memorial, and in its final submissions at the close of the oral pro-
ceedings, the Congo invokes only the latter ground.

46. As a matter of logic, the second ground should be addressed only
once there has been a determination in respect of the first, since it is only
where a State has jurisdiction under international law in relation to a par-
ticular matter that there can be any question of immunities in regard to
the exercise of that jurisdiction. However, in the present case, and in view
of the final form of the Congo’s submissions, the Court will address first
the question whether, assuming that it had jurisdiction under interna-
tional law to issue and circulate the arrest warrant of 11 April 2000, Bel-
gium in so doing violated the immunities of the then Minister for Foreign
Affairs of the Congo.

ko

47. The Congo maintains that, during his or her term of office, a Min-
ister for Foreign Affairs of a sovereign State is entitled to inviolability

20
ARREST WARRANT (JUDGMEN’’) 20

and to immunity from criminal process being “absolute or complete”,
that is to say, they are subject to no exception. Accordingly, the Congo
contends that no criminal prosecution may be brought against a Minister
for Foreign Affairs in a foreign court as long as he or she remains in
office, and that any finding of criminal responsibility by a domestic court
in a foreign country, or any act of investigation undertaken with a view
to bringing him or her to court, would contravene the principle of immu-
nity from jurisdiction. According to the Congo, the basis of such criminal
immunity is purely functional, and immunity is accorded under custom-
ary international law simply in order to enable the foreign State repre-
sentative enjoying such immunity to perform his or her functions freely
and without let or hindrance. The Congo adds that the immunity thus
accorded to Ministers for Foreign Affairs when ia office covers all their
acts, including any committed before they took office, and that it is irrele-
vant whether the acts done whilst in office may be characterized or not as
“official acts”.

48. The Congo states further that it does not deny the existence of a
principle of international criminal law, deriving from the decisions of the
Nuremberg and Tokyo international military tribunals, that the accused’s
official capacity at the time of the acts cannot, before any court, whether
domestic or international, constitute a “ground of exemption from his
criminal responsibility or a ground for mitigation of sentence”. The
Congo then stresses that the fact that an immunity might bar prosecution
before a specific court or over a specific period coes not mean that the
same prosecution cannot be brought, if appropriate, before another court
which is not bound by that immunity, or at another time when the immu-
nity need no longer be taken into account. It concludes that immunity
does not mean impunity.

49. Belgium maintains for its part that, while Ministers for Foreign
Affairs in office generally enjoy an immunity from jurisdiction before the
courts of a foreign State, such immunity applies only to acts carried out
in the course of their official functions, and cannot protect such persons
in respect of private acts or when they are acting: otherwise than in the
performance of their official functions.

50. Belgium further states that, in the circumstances of the present
case, Mr. Yerodia enjoyed no immunity at the time when he is alleged to
have committed the acts of which he is accused, and that there is no evi-
dence that he was then acting in any official capacity. It observes that the
arrest warrant was issued against Mr. Yerodia personally.

*

51. The Court would observe at the outset that in international law it
is firmly established that, as also diplomatic and consular agents, certain

21
ARREST WARRANT (JUDGMEN™’) 21

holders of high-ranking office in a State, such as tie Head of State, Head
of Government and Minister for Foreign Affairs, enjoy immunities from
jurisdiction in other States, both civil and criminal. For the purposes of
the present case, it is only the immunity from criminal jurisdiction and
the inviolability of an incumbent Minister for Foreign Affairs that fall for
the Court to consider.

52. A certain number of treaty instruments wer? cited by the Parties in
this regard. These included, first, the Vienna Convention on Diplomatic
Relations of 18 April 1961, which states in its preamble that the purpose
of diplomatic privileges and immunities is “to ensure the efficient per-
formance of the functions of diplomatic missions iis representing States”.
It provides in Article 32 that only the sending State may waive such
immunity. On these points, the Vienna Conventicn on Diplomatic Rela-
tions, to which both the Congo and Belgium are parties, reflects custom-
ary international law. The same applies to the corresponding provisions
of the Vienna Convention on Consular Relations of 24 April 1963, to
which the Congo and Belgium are also parties.

The Congo and Belgium further cite the New York Convention on
Special Missions of 8 December 1969, to which they are not, however,
parties. They recall that under Article 21, paragraph 2, of that Conven-
tion:

“The Head of the Government, the Minister for Foreign Affairs
and other persons of high rank, when they take part in a special mis-
sion of the sending State, shall enjoy in the receiving State or in a
third State, in addition to what is granted by the present Conven-
tion, the facilities, privileges and immunities accorded by interna-
tional law.”

These conventions provide useful guidance on certain aspects of the
question of immunities. They do not, however, contain any provision
specifically defining the immunities enjoyed by Ministers for Foreign
Affairs. It is consequently on the basis of customnary international law
that the Court must decide the questions relating to the immunities of
such Ministers raised in the present case.

53. In customary international law, the immunities accorded to Min-
isters 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. In order to determine the extent of these immunities,
the Court must therefore first consider the nature of the functions exer-
cised by a Minister for Foreign Affairs. He or sh: is in charge of his or
her Government’s diplomatic activities and generally acts as its repre-
sentative in international negotiations and intergovernmental meetings.
Ambassadors and other diplomatic agents carry out their duties under
his or her authority. His or her acts may bind the State represented, and
there is a presumption that a Minister for Foreign Affairs, simply by vir-
tue of that office, has full powers to act on behalf of the State (see, for

22
ARREST WARRANT (JUDGMENT) 22

example, Article 7, paragraph 2 (a), of the 1969 Vienna Convention on
the Law of Treaties). In the performance of these functions, he or she is
frequently required to travel internationally, and thus must be in a posi-
tion freely to do so whenever the need should arise. He or she must also
be in constant communication with the Government, and with its diplo-
matic missions around the world, and be capable at any time of commu-
nicating with representatives of other States. The Court further observes
that a Minister for Foreign Affairs, responsible for the conduct of his or
her State’s relations with all other States, occupies a position such that,
like the Head of State or the Head of Government, he or she is recog-
nized under international law as representative of the State solely by vir-
tue of his or her office. He or she does not have to present letters of
credence: to the contrary, it is generally the Minister who determines the
authority to be conferred upon diplomatic agents and countersigns their
letters of credence. Finally, it is to the Minister for Foreign Affairs that
chargés d’affaires are accredited.

54. The Court accordingly concludes that the unctions of a Minister
for Foreign Affairs are such that, throughout the duration of his or her
office, he or she when abroad enjoys full immun:ty from criminal juris-
diction and inviolability. That immunity and that nviolability protect the
individual concerned against any act of authority of another State which
would hinder him or her in the performance of his or her duties.

55. In this respect, no distinction can be drawn between acts per-
formed by a Minister for Foreign Affairs in an “official” capacity, and
those claimed to have been performed in a “private capacity”, or, for that
matter, between acts performed before the person concerned assumed
office as Minister for Foreign Affairs and acts committed during the
period of office. Thus, if a Minister for Foreigr Affairs is arrested in
another State on a criminal charge, he or she is clearly thereby prevented
from exercising the functions of his or her office. The consequences of
such impediment to the exercise of those officia. functions are equally
serious, regardless of whether the Minister for Foreign Affairs was, at the
time of arrest, present in the territory of the arresting State on an “offi-
cial” visit or a “private” visit, regardless of whether the arrest relates to
acts allegedly performed before the person became the Minister for For-
eign Affairs or to acts performed while in office, and regardless of
whether the arrest relates to alleged acts performed in an “official” capa-
city or a “private” capacity. 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.

kx

23
ARREST WARRANT (JUDGMENT) 23

56. The Court will now address Belgium’s argument that immunities
accorded to incumbent Ministers for Foreign Affairs can in no case pro-
tect them where they are suspected of having committed war crimes or
crimes against humanity. In support of this position, Belgium refers in its
Counter-Memorial to various legal instruments creating international
criminal tribunals, to examples from national legislation, and to the juris-
prudence of national and international courts.

Belgium begins by pointing out that certain provisions of the instru-
ments creating international criminal tribunals state expressly that the
official capacity of a person shall not be a bar to the exercise by such
tribunals of their jurisdiction.

Belgium also places emphasis on certain decisions of national courts,
and in particular on the judgments rendered on 24 March 1999 by the
House of Lords in the United Kingdom and on 13 March 2001 by the
Court of Cassation in France in the Pinochet and Qaddafi cases respec-
tively, in which it contends that an exception to the immunity rule was
accepted in the case of serious crimes under international law. Thus,
according to Belgium, the Pinochet decision recognizes an exception to
the immunity rule when Lord Millett stated that “|i]nternational law can-
not be supposed to have established a crime having the character of a jus
cogens and at the same time to have provided an immunity which is co-
extensive with the obligation it seeks to impose”, or when Lord Phillips
of Worth Matravers said that “no established rule of international law
requires state immunity ratione materiae to be accorded in respect of
prosecution for an international crime”. As to the French Court of Cas-
sation, Belgium contends that, in holding that, “under international law
as it currently stands, the crime alleged [acts of terrorism], irrespective of
its gravity, does not come within the exceptions to the principle of immu-
nity from jurisdiction for incumbent foreign Heads of State”, the Court
explicitly recognized the existence of such exceptions.

57. The Congo, for its part, states that, under international law as it
currently stands, there is no basis for asserting tha: there is any exception
to the principle of absolute immunity from criminal process of an incum-
bent Minister for Foreign Affairs where he or she is accused of having
committed crimes under international law.

In support of this contention, the Congo refers to State practice, giving
particular consideration in this regard to the Pinochet and Qaddafi cases,
and concluding that such practice does not correspond to that which Bel-
gium claims but, on the contrary, confirms the absolute nature of the
immunity from criminal process of Heads of State and Ministers for For-
eign Affairs. Thus, in the Pinochet case, the Congo cites Lord Browne-
Wilkinson’s statement that “[t]his immunity enjoyed by a head of state in
power and an ambassador in post is a complete immunity attached to the
person of the head of state or ambassador and rendering him immune
from all actions or prosecutions . . .”. According to the Congo, the

24
ARREST WARRANT (JUDGMENT) 24

French Court of Cassation adopted the same position in its Qaddafi judg-
ment, in affirming that “international custom bars the prosecution of
incumbent Heads of State, in the absence of any contrary international
provision binding on the parties concerned, before the criminal courts of
a foreign State”.

As regards the instruments creating international criminal tribunals
and the latter’s jurisprudence, these, in the Congo’s view, concern only
those tribunals, and no inference can be drawn from them in regard to
criminal proceedings before national courts against persons enjoying
immunity under international law.

*

58. The Court has carefully examined State practice, including national
legislation and those few decisions of national higher courts, such as the
House of Lords or the French Court of Cassation. It has been unable to
deduce from this practice that there exists under cistomary international
law any form of exception to the rule according iramunity from criminal
jurisdiction and inviolability to incumbent Ministers for Foreign Affairs,
where 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 to the latter (see Chartzr of the International
Military Tribunal of Nuremberg, Art. 7; Charter of the International
Military Tribunal of Tokyo, Art. 6; Statute of the International Criminal
Tribunal for the former Yugoslavia, Art. 7, para. 2; Statute of the Inter-
national Criminal Tribunal for Rwanda, Art. 6, para. 2; Statute of the
International Criminal Court, Art. 27). It finds that these rules likewise
do not enable it to conclude that any such an exception exists in custom-
ary international law in regard to national courts.

Finally, none of the decisions of the Nuremberg and Tokyo interna-
tional military tribunals, or of the International Criminal Tribunal for
the former Yugoslavia, cited by Belgium deal with the question of the
immunities of incumbent Ministers for Foreign Affairs before national
courts where they are accused of having committed war crimes or crimes
against humanity. The Court accordingly notes that those decisions are
in no way at variance with the findings it has reached above.

In view of the foregoing, the Court accordingly cannot accept Bel-
gium’s argument in this regard.

59. It should further be noted that the rules governing the jurisdiction
of national courts must be carefully distinguished from those governing
jurisdictional immunities: jurisdiction does not imply absence of immu-
nity, while absence of immunity does not imply jurisdiction. Thus,

25
ARREST WARRANT (JUDGMENT) 25

although various international conventions or the prevention and
punishment of certain serious crimes impose or States obligations of
prosecution or extradition, thereby requiring them to extend their criminal
jurisdiction, such extension of jurisdiction in no way affects immunities
under customary international law, including those of Ministers for
Foreign Affairs. These remain opposable before «he courts of a foreign
State, even where those courts exercise such a jurisdiction under
these conventions.

60. The Court emphasizes, however, that the inmunity from jurisdic-
tion enjoyed by incumbent Ministers for Foreign Affairs does not mean
that they enjoy impunity in respect of any crimes they might have com-
mitted, irrespective of their gravity. Immunity from criminal jurisdiction
and individual criminal responsibility are quite separate concepts. 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 exoner-
ate the person to whom it applies from all criminal responsibility.

61. Accordingly, the immunities enjoyed under international law by an
incumbent or former Minister for Foreign Affairs do not represent a bar
to criminal prosecution in certain circumstances.

First, such persons enjoy no criminal immunity under international
law in their own countries, and may thus be tried by those countries’
courts in accordance with the relevant rules of dcmestic law.

Secondly, they will cease to enjoy immunity frorn foreign jurisdiction if
the State which they represent or have represented decides to waive that
immunity.

Thirdly, after a person ceases to hold the office of Minister for Foreign
Affairs, he or she will no longer enjoy all of the nmnmunities accorded by
international law in other States. Provided that it has jurisdiction under
international law, a court of one State may try a former Minister for
Foreign Affairs of another State in respect of acts committed prior or
subsequent to his or her period of office, as wel as in respect of acts
committed during that period of office in a private capacity.

Fourthly, an incumbent or former Minister for Foreign Affairs may be
subject to criminal proceedings before certain international criminal
courts, where they have jurisdiction. Examples include the International
Criminal Tribunal for the former Yugoslavia, and the International
Criminal Tribunal for Rwanda, established pursuant to Security Council
resolutions under Chapter VII of the United Nations Charter, and the
future International Criminal Court created by the 1998 Rome Conven-
tion. The latter’s Statute expressly provides, in Article 27, paragraph 2,
that “[i]Jmmunities or special procedural rules which may attach to the

26
ARREST WARRANT (JUDGMENT) 26

official capacity of a person, whether under national or international law,
shall not bar the Court from exercising its jurisdiction over such a
person”.

x * x

62. Given the conclusions it has reached above concerning the nature
and scope of the rules governing the immunity from criminal jurisdiction
enjoyed by incumbent Ministers for Foreign Affairs, the Court must now
consider whether in the present case the issue of the arrest warrant of
11 April 2000 and its international circulation violated those rules. The
Court recalls in this regard that the Congo requests it, in its first final
submission, to adjudge and declare that:

“TBly issuing and internationally circulating the arrest warrant of
11 April 2000 against Mr. Abdulaye Yerodia Ndombasi, Belgium
committed a violation in regard to the Democratic Republic of the
Congo of the rule of customary international law concerning the
absolute inviolability and immunity from cririinal process of incum-
bent foreign ministers; in so doing, it viclated the principle of
sovereign equality among States.”

63. In support of this submission, the Congo maintains that the arrest
warrant of 11 April 2000 as such represents a “ccercive legal act” which
violates the Congo’s immunity and sovereign rights, inasmuch as it seeks
to “subject to an organ of domestic criminal jurisdiction a member of a
foreign government who is in principle beyond its reach” and is fully
enforceable without special formality in Belgium.

The Congo considers that the mere issuance of the warrant thus con-
stituted a coercive measure taken against the person of Mr. Yerodia, even
if it was not executed.

64. As regards the international circulation of the said arrest warrant,
this, in the Congo’s view, not only involved further violations of the rules
referred to above, but also aggravated the moral injury which it suffered
as a result of the opprobrium “thus cast upon one of the most prominent
members of its Government”. The Congo further argues that such circu-
lation was a fundamental infringement of its sovereign rights in that it
significantly restricted the full and free exercise, ty its Minister for For-
eign Affairs, of the international negotiation and representation func-
tions entrusted to him by the Congo’s former President. In the Congo’s
view, Belgium “[thus] manifests an intention to have the individual con-
cerned arrested at the place where he is to be found, with a view to pro-
curing his extradition”. The Congo emphasizes moreover that it is
necessary to avoid any confusion between the arguments concerning the
legal effect of the arrest warrant abroad and the question of any respon-
sibility of the foreign authorities giving effect to it. It points out in this
regard that no State has acted on the arrest warrarit, and that accordingly

27

ARREST WARRANT (JUDGMENT) 27

“no further consideration need be given to the specific responsibility
which a State executing it might incur, or to the way in which that
responsibility should be related” to that of the Belgian State. The Congo
observes that, in such circumstances, “there [would be] a direct causal
relationship between the arrest warrant issued in Relgium and any act of
enforcement carried out elsewhere”.

65. Belgium rejects the Congo’s argument on the ground that “the
character of the arrest warrant of 11 April 2000 is such that it has neither
infringed the sovereignty of, nor created any obligation for, the [Congo]”.

With regard to the legal effects under Belgian law of the arrest warrant
of 11 April 2000, Belgium contends that the clear purpose of the warrant
was to procure that, if found in Belgium, Mr. Yercdia would be detained
by the relevant Belgian authorities with a view to his prosecution for war
crimes and crimes against humanity. According to Belgium, the Belgian
investigating judge did, however, draw an explicit distinction in the war-
rant between, on the one hand, immunity from jurisdiction and, on the
other hand, immunity from enforcement as regards representatives of
foreign States who visit Belgium on the basis of an official invitation,
making it clear that such persons would be immune from enforcement of
an arrest warrant in Belgium. Belgium further contends that, in its effect,
the disputed arrest warrant is national in character, since it requires the
arrest of Mr. Yerodia if he is found in Belgium but it does not have this
effect outside Belgium.

66. In respect of the legal effects of the arrest warrant outside Belgium,
Belgium maintains that the warrant does not create any obligation for
the authorities of any other State to arrest Mr. Yerodia in the absence of
some further step by Belgium completing or validating the arrest warrant
(such as a request for the provisional detention o° Mr. Yerodia), or the
issuing of an arrest warrant by the appropriate authorities in the State
concerned following a request to do so, or the issuing of an Interpol Red
Notice. Accordingly, outside Belgium, while the purpose of the warrant
was admittedly “to establish a legal basis for the arrest of Mr. Yerodia...
and his subsequent extradition to Belgium”, the warrant had no legal
effect unless it was validated or completed by some prior act “requiring
the arrest of Mr. Yerodia by the relevant authorities in a third State”.
Belgium further argues that “[i]f a State had executed the arrest warrant,
it might infringe Mr. [Yerodia’s] criminal immunity”, but that “the Party
directly responsible for that infringement would have been that State and
not Belgium”.

+

67. The Court will first recall that the “international arrest warrant
in absentia”, issued on 11 April 2000 by an investigating judge of the
Brussels Tribunal de première instance, is directec against Mr. Yerodia,

28

ARREST WARRANT (JUDGMENT) 28

stating that he is “currently Minister for Foreign Affairs of the Demo-
cratic Republic of the Congo, having his business address at the Ministry
of Foreign Affairs in Kinshasa”. The warrant states that Mr. Yerodia is
charged with being “the perpetrator or co-perpetrator” of:

“— Crimes under international law constituting grave breaches
causing harm by act or omission to persons and property pro-
tected by the Conventions signed at Geneva on 12 August 1949
and by Additional Protocols I and II to those Conventions
(Article 1, paragraph 3, of the Law of 16 June 1993, as amended
by the Law of 10 February 1999 concerning the punishment of
serious violations of international humanitarian law)

— Crimes against humanity (Article 1, paragraph 2, of the Law of
16 June 1993, as amended by the Law of 10 February 1999 con-
cerning the punishment of serious violations of international
humanitarian law).”

The warrant refers to “various speeches inciting racial hatred” and to
“particularly virulent remarks” allegedly made by Mr. Yerodia during
“public addresses reported by the media” on 4 August and 27 August
1998. It adds:

“These speeches allegedly had the effect of inciting the population
to attack Tutsi residents of Kinshasa: there were dragnet searches,
manhunts (the Tutsi enemy) and lynchings.

The speeches inciting racial hatred thus are said to have resulted
in several hundred deaths, the internment of Tutsis, summary execu-
tions, arbitrary arrests and unfair trials.”

68. The warrant further states that “the position of Minister for For-
eign Affairs currently held by the accused does not entail immunity from
jurisdiction and enforcement”. The investigating judge does, however,
observe in the warrant that “the rule concerning the absence of immunity
under humanitarian law would appear . . . to require some qualification
in respect of immunity from enforcement” and ex lains as follows:

“Pursuant to the general principle of fairness in judicial proceed-
ings, immunity from enforcement must, in our view, be accorded to
all State representatives welcomed as such onto the territory of Bel-
gium (on ‘official visits’). Welcoming such foreign dignitaries as
official representatives of sovereign States involves not only rela-
tions between individuals but also relations between States. This
implies that such welcome includes an undertaking by the host State
and its various components to refrain from taking any coercive
measures against its guest and the invitation cannot become a pre-
text for ensnaring the individual concerned in what would then have
to be labelled a trap. In the contrary case, failure to respect this

29
ARREST WARRANT (JUDGMENT) 29

undertaking could give rise to the host State’s international respon-
sibility.”

69. The arrest warrant concludes with the following order:

“We instruct and order all bailiffs and agents of public authority
who may be so required to execute this arrest warrant and to con-
duct the accused to the detention centre in Forest;

We order the warden of the prison to receive the accused and to
keep him (her) in custody in the detention c2ntre pursuant to this
arrest warrant;

We require all those exercising public authority to whom this war-
rant shall be shown to lend all assistance in executing it.”

70. The Court notes that the issuance, as such, of the disputed arrest
warrant represents an act by the Belgian judicial zuthorities intended to
enable the arrest on Belgian territory of an incumbent Minister for For-
eign Affairs on charges of war crimes and crimes against humanity. The
fact that the warrant is enforceable is clearly apparent from the order
given to “all bailiffs and agents of public authority . . . to execute this
arrest warrant” (see paragraph 69 above) and from the assertion in the
warrant that “the position of Minister for Foreign Affairs currently held
by the accused does not entail immunity from jurisdiction and enforce-
ment”. The Court notes that the warrant did admittedly make an excep-
tion for the case of an official visit by Mr. Yerodia to Belgium, and that
Mr. Yerodia never suffered arrest in Belgium. The Court is bound, how-
ever, to find that, given the nature and purpose of the warrant, its mere
issue violated the immunity which Mr. Yerodia enjoyed as the Congo’s
incumbent Minister for Foreign Affairs. The Court accordingly con-
cludes that the issue of the warrant constituted a violation of an obliga-
tion of Belgium towards the Congo, in that it failed to respect the immu-
nity of that Minister and, more particularly, infringed the immunity from
criminal jurisdiction and the inviolability then evyoyed by him under
international law.

71. The Court also notes that Belgium admit: that the purpose of
the international circulation of the disputed arrest warrant was “to estab-
lish a legal basis for the arrest of Mr. Yerodia . . . abroad and his subse-
quent extradition to Belgium”. The Respondent maintains, however,
that the enforcement of the warrant in third States was “dependent on
some further preliminary steps having been taken” and that, given the
“inchoate” quality of the warrant as regards third States, there was no
“infringe[ment of] the sovereignty of the [Congo]’. It further points
out that no Interpol Red Notice was requested until 12 September
2001, when Mr. Yerodia no longer held ministerial office.

The Court cannot subscribe to this view. As ir the case of the war-
rant’s issue, its international circulation from June 2000 by the Belgian
authorities, given its nature and purpose, effectively infringed Mr. Yero-

30
ARREST WARRANT (JUDGMENT) 30

dia’s immunity as the Congo’s incumbent Minister for Foreign Affairs
and was furthermore liable to affect the Congo’s conduct of its interna-
tional relations. 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, even in the absence of “further steps” by Bel-
gium, could have resulted, in particular, in his arrest while abroad. The
Court observes in this respect that Belgium itself cites information to the
effect that 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’, adding that “[t]his,
moreover, is what the [Congo] . . . hints when it writes that the arrest
warrant ‘sometimes forced Minister Yerodia to travel by roundabout
routes’”. Accordingly, the Court concludes that the circulation of the
warrant, whether or not it significantly interfered with Mr. Yerodia’s dip-
lomatic activity, constituted a violation of an obligation of Belgium
towards the Congo, in that it failed to respect the inimunity of the incum-
bent Minister for Foreign Affairs of the Congo and, more particularly,
infringed the immunity from criminal jurisdiction and the inviolability
then enjoyed by him under international law.

x *

72. The Court will now address the issue of the remedies sought by the
Congo on account of Belgium’s violation of the above-mentioned rules of
international law. In its second, third and fourth submissions, the Congo
requests the Court to adjudge and declare that:

“A formal finding by the Court of the unlawfulness of [the issue
and international circulation of the arrest warrant] constitutes an
appropriate form of satisfaction, providing reparation for the con-
sequent moral injury to the Democratic Republic of the Congo;

The violations of international law underlying the issue and inter-
national circulation of the arrest warrant of 1: April 2000 preclude
any State, including Belgium, from executing it;

Belgium shall be required to recall and cancel the arrest warrant
of 11 April 2000 and to inform the foreign authorities to whom the
warrant was circulated that Belgium renounces its request for their
co-operation in executing the unlawful warrant.”

73. In support of those submissions, the Congo asserts that the termi-
nation of the official duties of Mr. Yerodia in no way operated to efface
the wrongful act and the injury flowing from it, which continue to exist.
It argues that the warrant is unlawful ab initio, that “[ijt is fundamentally
flawed” and that it cannot therefore have any legal effect today. It points

31
ARREST WARRANT (JUDGMENT) 31

out that the purpose of its request is reparation for the injury caused,
requiring the restoration of the situation which would in all probability
have existed if the said act had not been comnitted. It states that,
inasmuch as the wrongful act consisted in an internal legal instrument,
only the “withdrawal” and “cancellation” of the latter can provide appro-
priate reparation.

The Congo further emphasizes that in no way is it asking the Court
itself to withdraw or cancel the warrant, nor to determine the means
whereby Belgium is to comply with its decision. It 2xplains that the with-
drawal and cancellation of the warrant, by the means that Belgium deems
most suitable, “are not means of enforcement of the judgment of the
Court but the requested measure of legal repara:ion/restitution itself”.
The Congo maintains that the Court is consequently only being requested
to declare that Belgium, by way of reparation for the injury to the rights
of the Congo, be required to withdraw and cancel this warrant by the
means of its choice.

74. Belgium for its part maintains that a finding by the Court that the
immunity enjoyed by Mr. Yerodia as Minister for Foreign Affairs had
been violated would in no way entail an obligaticn to cancel the arrest
warrant. It points out that the arrest warrant is s:ill operative and that
“there is no suggestion that it presently infringes the immunity of the
Congo’s Minister for Foreign Affairs”. Belgium considers that what the
Congo is in reality asking of the Court in its third and fourth final sub-
missions is that the Court should direct Belgium as to the method by
which it should give effect to a judgment of the Court finding that the
warrant had infringed the immunity of the Congo’s Minister for Foreign
Affairs.

%

75. The Court has already concluded (see paragraphs 70 and 71) that
the issue and circulation of the arrest warrant of 11 April 2000 by the
Belgian authorities failed to respect the immunity cf the incumbent Min-
ister for Foreign Affairs of the Congo and, more particularly, infringed
the immunity from criminal jurisdiction and the inviolability then enjoyed
by Mr. Yerodia under international law. Those acts engaged Belgium’s
international responsibility. The Court considers that the findings so
reached by it constitute a form of satisfaction which will make good the
moral injury complamed of by the Congo.

76. However, as the Permanent Court of Interrational Justice stated
in its Judgment of 13 September 1928 in the case concerning the Factory
at Chorzow:

“[tJhe essential principle contained in the actual notion of an illegal
act — a principle which seems to be established by international
practice and in particular by the decisions of ¢rbitral tribunals — is
that reparation must, as far as possible, wipe out all the conse-

32
ARREST WARRANT (JUDGMENT) 32

quences of the illegal act and reestablish the situation which would,
in all probability, have existed if that act had not been committed”
(P.C.LJ., Series A, No. 17, p. 47).

In the present case, “the situation which would, in all probability, have
existed if [the illegal act] had not been committed” cannot be re-estab-
lished merely by a finding by the Court that the arrest warrant was un-
lawful under international law. The warrant is still extant, and remains
unlawful, notwithstanding the fact that Mr. Yerodia has ceased to be
Minister for Foreign Affairs. The Court accordingly considers that Bel-
gium must, by means of its own choosing, cancel the warrant in question
and so inform the authorities to whom it was circulated.

77. The Court sees no need for any further remedy: in particular, the
Court cannot, in a judgment ruling on a dispute between the Congo and
Belgium, indicate what that judgment’s implications might be for third
States, and the Court cannot therefore accept the Congo’s submissions
on this point.

78. For these reasons,

THE COURT,
(1) (A) By fifteen votes to one,

Rejects the objections of the Kingdom of Belgium relating to jurisdic-

tion, mootness and admissibility ;

IN FAVOUR: President Guillaume; Vice-President Shi, Judges Ranjeva, Herc-
zegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren,
Kooijmans, Rezek, Al-Khasawneh, Buergenthal; Judges ad hoc Bula-
Bula, Van den Wyngaert;

AGAINST: Judge Oda,

(B) By fifteen votes to one,

Finds that it has jurisdiction to entertain the Application filed by the
Democratic Republic of the Congo on 17 October 2000;

IN FAVOUR: President Guillaume; Vice-President Shi Judges Ranjeva, Herc-
zegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren,
Kooijmans, Rezek, Al-Khasawneh, Buergenthal Judges ad hoc Bula-
Bula, Van den Wyngaert;

AGAINST: Judge Oda;

(C) By fifteen votes to one,

Finds that the Application of the Democratic Republic of the Congo is
not without object and that accordingly the case is. not moot;

iN FAVOUR: President Guillaume; Vice-President Shi: Judges Ranjeva, Herc-
zegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren,

33
ARREST WARRANT (JUDGMENT) 33

Kooïjmans, Rezek, Al-Khasawneh, Buergenthal; Judges ad hoc Bula-
Bula, Van den Wyngaert;

AGAINST: Judge Oda;
(D) By fifteen votes to one,

Finds that the Application of the Democratic Republic of the Congo
is admissible;

IN FAVOUR: President Guillaume; Vice-President Shi; Judges Ranjeva, Herc-
zegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren,
Kooijmans, Rezek, Al-Khasawneh, Buergenthal; Judges ad hoc Bula-
Bula, Van den Wyngaert;

AGAINST: Judge Oda;
(2) By thirteen votes to three,

Finds that the issue against Mr. Abdulaye Yerodia Ndombasi of the
arrest warrant of 11 April 2000, and its international circulation, consti-
tuted violations of a legal obligation of the Kingdom of Belgium towards
the Democratic Republic of the Congo, in that they failed to respect the
immunity from criminal jurisdiction and the inviolaility which the incum-
bent Minister for Foreign Affairs of the Democratic Republic of the
Congo enjoyed under international law;

IN FAVOUR: President Guillaume; Vice-President Shi; Judges Ranjeva, Herc-
zegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren,
Kooijmans, Rezek, Buergenthal: Judge ad hoc Bula-Bula:

AGAINST: Judges Oda, Al-Khasawneh; Judge ad hoc Van den Wyngaert;

(3) By ten votes to six,

Finds that the Kingdom of Belgium must, ty means of its own
choosing, cancel the arrest warrant of 11 April 2000 and so inform the
authorities to whom that warrant was circulated.

IN FAVOUR: President Guillaume; Vice-President Shi Judges Ranjeva, Herc-
zegh, Fleischhauer, Koroma, Vereshchetin, Pacra-Aranguren, Rezek;
Judge ad hoc Bula-Bula;

AGAINST: Judges Oda, Higgins, Kooijmans, Al-Khasawneh, Buergenthal;
Judge ad hoc Van den Wyngaert.

Done in French and in English, the French text being authoritative, at
the Peace Palace, The Hague, this fourteenth day of February, two thou-
sand and two, in three copies, one of which will be placed in the archives
of the Court and the others transmitted to the Government of the Demo-

34
ARREST WARRANT (JUDGMENT) 34

cratic Republic of the Congo and the Government of the Kingdom of
Belgium, respectively.

(Signed) Gilbert GUILLAUME,
President.

(Signed) Philippe COUVREUR,
Registrar.

President GUILLAUME appends a separate opinion to the Judgment of
the Court; Judge ODA appends a dissenting opinion to the Judgment of
the Court; Judge RANJEVA appends a declaration 10 the Judgment of the
Court; Judge Koroma appends a separate opinion to the Judgment of
the Court; Judges Hiccins, KoouMANS and BUERGENTHAL append a joint
separate opinion to the Judgment of the Court; Judge REZEK appends a
separate opinion to the Judgment of the Court; Judge AL-KHASAWNEH
appends a dissenting opinion to the Judgment of the Court; Judge
ad hoc BuLA-BULA appends a separate opinion to the Judgment of the
Court; Judge ad hoc VAN DEN WYNGAERT appends a dissenting opinion
to the Judgment of the Court.

(Initialled) G.G.
(Initialled) Ph.C.

35