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)

DEMANDE EN INDICATION DE MESURES
CONSERVATOIRES

ORDONNANCE DU 8 DECEMBRE 2000

2000

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)

REQUEST FOR THE INDICATION OF PROVISIONAL
MEASURES

ORDER OF 8 DECEMBER 2000

Mode officiel de citation:
Mandat d'arrêt du 11 avril 2000 (République démocratique du Congo
c. Belgique), mesures conservatoires, ordonnance du 8 décembre 2000,
C.LJ. Recueil 2000, p. 182

Official citation:
Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo
v. Belgium), Provisional Measures, Order of 8 December 2000,
LC J. Reports 2000, p. 182

N° de vente:
ISSN 0074-4441 Sales number 803
ISBN 92-1-070880-6

8 DÉCEMBRE 2000

ORDONNANCE

MANDAT D'ARRÊT DU 11 AVRIL 2000
(RÉPUBLIQUE DÉMOCRATIQUE DU CONGO c. BELGIQUE)

DEMANDE EN INDICATION DE MESURES
CONSERVATOIRES

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

REQUEST FOR THE INDICATION OF PROVISIONAL
MEASURES

8 DECEMBER 2000

ORDER
182

INTERNATIONAL COURT OF JUSTICE

YEAR 2000 2000
8 December
General List
8 December 2000 No. 121

CASE CONCERNING THE ARREST WARRANT
OF 11 APRIL 2000

(DEMOCRATIC REPUBLIC OF THE CONGO vy. BELGIUM)

REQUEST FOR THE INDICATION OF PROVISIONAL
MEASURES

ORDER

Present: President GUILLAUME; Vice-President Sui; Judges Opa,
BEDJAOUI, RANJEVA, HERCZEGH, FLEISCHHAUER, KOROMA,
VERESHCHETIN, HIGGINS, PARRA-ARANGUREN, KOOUMANS,
REZEK, AL-KHASAWNEH, BUERGENTHAL; Judges ad hoc BuLa-
BULA, VAN DEN WYNGAERT; Registrar COUVREUR.

The International Court of Justice,

Composed as above,

After deliberation,

Having regard to Articles 41 and 48 of the Statute of the Court and to
Articles 73 and 74 of the Rules of Court,

Makes the following Order:

1. Whereas, by Application filed in the Registry of the Court on
17 October 2000, the Democratic Republic of the Congo (hereinafter
“the Congo”) instituted proceedings against the Kingdom of Belgium
(hereinafter “Belgium”) for
ARREST WARRANT (ORDER 8 XII 00) 183

“violation of the principle that a State may not exercise its authority
on the territory of another State and of the principle of sovereign
equality among all Members of the Organization of the United
Nations, as laid down in Article 2, paragraph 1, of the Charter of the
United Nations”

and for

“violation of 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”;

2. Whereas, in that Application, the Congo relies, as basis for the
Court’s jurisdiction, on the fact that “Belgium has accepted the jurisdic-
tion of the Court and [that], in so far as may be required, the present
Application signifies acceptance of that jurisdiction by the Democratic
Republic of the Congo”;

3. Whereas, in the above-mentioned Application, the Congo refers
to an

“international arrest warrant 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 . . ., seeking his
provisional detention pending a request for extradition to Belgium
for alleged crimes constituting ‘serious violations of international

CRE]

humanitarian law’”;
and whereas the Congo points out that,

“under the very terms of the arrest warrant, the investigating judge
claims jurisdiction in respect of offences purportedly committed on
the territory of the Democratic Republic of the Congo by a national
of that State, without any allegation that the victims were of Belgian
nationality or that these acts constituted violations of the security or
dignity of the Kingdom of Belgium”:

4, Whereas the Congo refers in its Application to certain provisions of
the Belgian “Law of 16 June 1993, as amended by the Law of 10 Febru-
ary 1999, concerning the punishment of serious violations of interna-
tional humanitarian law”; whereas the Congo contends that

“Article 5, paragraph 2, .. . is manifestly in breach of international
law in so far as it claims to derogate from diplomatic immunity, as is
the arrest warrant issued pursuant thereto against the Minister for
Foreign Affairs of a sovereign State”;

and whereas it further contends that Article 7 “establishes the universal
applicability of the Law and the universal jurisdiction of the Belgian
courts in respect of ‘serious violations of international humanitarian law’,
without even making such applicability and jurisdiction conditional on

5
ARREST WARRANT (ORDER 8 XII 00) 184

the presence of the accused on Belgian territory”, and that this Article,
and “the arrest warrant issued by the Belgian investigating judge . . []
are in breach of international law”;

,

5. Whereas, in that same Application, the Congo refers to

“a number of multilateral conventions for the suppression of specifi-
cally defined offences (torture and other cruel, inhuman or degrad-
ing treatment or punishment; terrorism; breaches of the rules on the
physical protection of nuclear materials; unlawful acts against the
safety of maritime navigation; unlawful seizure of aircraft; unlawful
acts of violence at airports) [which] provide for universal jurisdiction
of the States parties to them”;

and whereas the Congo points out that those conventions “make [such
universal] jurisdiction conditional on the perpetrator’s presence on the
territory of the prosecuting State” ; and whereas it concludes that “[tjhese,
then, are exceptional heads of jurisdiction, which derive their compliance
with international law solely from the treaties which provide for them
[, and which] are not part of general international law”;

6. Whereas the Congo contends in that Application that “[t]here is
nothing in [general international law], as it currently stands, to admit of
the notion that a further exception has to be generally recognized, in regard
to war crimes or crimes against humanity”; whereas the Congo explains that

“(djoubtless certain States, in adopting laws designed to bring their
legislation into line with United Nations Security Council resolutions
827 of 25 May 1993 and 955 of 8 November 1994, establishing inter-
national tribunals for the prosecution of, respectively, persons respon-
sible for serious violations of international humanitarian law commit-
ted in the territory of the former Yugoslavia since 1991 and persons
responsible for acts of genocide or other serious violations of inter-

national humanitarian law committed in 1994 in the territory of

Rwanda and as far as Rwandan citizens are concerned, responsible
for such violations committed in the territory of neighbouring States,
extended their jurisdiction in respect of the crimes thus defined to
cases other than those where either the persons responsible or the
victims were their own nationals”,

but adds that “such provisions are in no way materially comparable with
Article 7 of the Belgian Law”; and whereas the Congo contends that

“the above-mentioned Security Council resolutions constitute inter-
ference in the affairs of sovereign States whose sole justification is
the mission of maintaining peace and international security vested in
the United Nations, to which, moreover, the preamble to those reso-
lutions expressly refers, and which, of course, no State may usurp”,

and that, “while the Security Council attributes to national courts juris-
diction concurrent with that of the international tribunals — subject to

6
ARREST WARRANT (ORDER 8 XII 00) 185

the primacy of the latter — to try the crimes which it defines, it lays down
no criterion for such jurisdiction”, and “establishes no derogation from
the rules of criminal jurisdiction recognized by international law”:

7. Whereas in Section il of the Application the decision requested of
the Court by the Congo reads as follows:

“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. Abdulaye
Yerodia Ndombasi, seeking his provisional detention pending a
request for extradition to Belgium 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” ;

8. Whereas on 17 October 2000, immediately after the filing of the
Application, the Congo submitted to the Court a request for the indica-
tion of a provisional measure, citing paragraph | of Article 41 of the
Statute of the Court;

9. Whereas, in that request for the indication of a provisional measure,
the Congo states that “the disputed arrest warrant effectively bars the
Minister for Foreign Affairs of the Democratic Republic of the Congo
from leaving that State in order to go to any other State which his duties
require him to visit and, hence, from carrying out those duties”;

10. Whereas, in the said request for the indication of a provisional
measure, the Congo contends that “[t]he two essential conditions for the
indication of a provisional measure according to the jurisprudence of the
Court, namely urgency and the existence of irreparable prejudice, are
clearly satisfied in this case”:

11. Whereas the Congo specifies in its request that it “seeks an order
for the immediate discharge of the disputed arrest warrant”;

12. Whereas on 17 October 2000, the date on which the Application
and the request for the indication of a provisional measure were received
in the Registry, the Registrar notified the Belgian Government of the fil-
ing of those documents; and whereas on 18 October 2000 the Registrar
sent the Belgian Government certified copies of the Application and of
the request in accordance with Article 40, paragraph 2, of the Statute,
and Articles 38, paragraph 4, and 73, paragraph 2, of the Rules of Court;

13. Whereas, pending the notifications required by Article 40, para-
graph 3, of the Statute and Article 42 of the Rules of Court, by trans-
mittal of the printed bilingual version of the Application both to the
member States of the United Nations and to the other States entitled to
appear before the Court, the Registrar on 20 October 2000 informed

7
ARREST WARRANT (ORDER 8 XII 00) 186

those States of the filing of the Application and of its subject-matter, and
of the filing of the request for the indication of a provisional measure;

14. Whereas, on 20 October 2000, the Registrar informed the Parties
that the President of the Court had fixed 20 November 2000 as the date
for the opening of the oral proceedings provided for in Article 74, para-
graph 3, of the Rules of Court, during which they could submit their
observations on the request for the indication of a provisional measure;

15. Whereas, by a letter dated 30 October 2000, Belgium appointed an
agent and added that it

“reserve[d] the right to raise any objections, in due time, to admissi-
bility or to the Court’s jurisdiction, in accordance with the relevant
procedure and with Article 79 of the Rules of Court, and nothing in
the procedural conduct of Belgium concerning the request for indi-
cation of provisional measures should be construed as implying any
waiver of this right or confirmation of the Court’s jurisdiction” ;

16. Whereas, since the Court includes upon the Bench no judge of the
nationality of the Parties, each of the latter proceeded, in the exercise of
the right conferred upon it by Article 31, paragraph 3, of the Statute, to
choose a judge ad hoc in the case; whereas the Congo chose for that
purpose Mr. Sayeman Bula-Bula, and Belgium Ms Christine Van den
Wyngaert:

17. Whereas, at the four public hearings held on 20, 21, 22 and
23 November 2000, oral observations were submitted on the request for
the indication of a provisional measure:

On behalf of the Congo:

by H.E. Mr. Jacques Masangu-a-Mwanza, Agent,
Mr. Jacques Verges,
H.E. Mr. Ntumba Luaba Lumu;

On behalf of Belgium:
by Mr. Jan Devadder, Agent,
Mr. Daniel Bethlehem,
Mr. Eric David:

and whereas at the hearings a question was asked on behalf of the Court
by the President, to which an oral reply was given;

* *

18. Whereas, at the hearing of 20 November 2000, the Congo essen-
tially reiterated the line of argument developed in its Application and in
its request for the indication of a provisional measure; whereas it referred
also to Article 12 of the Preliminary Title of the Belgian Code of Crimi-
nal Procedure (entitled “Prosecution for crimes or offences (délits) com-
mitted outside the territory of the Kingdom”) and pointed out that,

8

ARREST WARRANT (ORDER 8 XII 00) 187

according to that provision, “prosecution of the violations dealt with in
this chapter shall take place only if the accused is found in Belgium”;
whereas it maintained that the Belgian investigating judge, in an order
rendered in another case, had

“considered that Article 7 of the Law of 16 June 1993 derogate[d]
from Article 12 of the Preliminary Title of the Code of Criminal Pro-
cedure and [did] not therefore make the jurisdiction of Belgian
courts conditional on the person in question being found on the
territory of the Kingdom”:

whereas the Congo stated that

“{ijt [was] clearly this unlimited jurisdiction which the Belgian State
would confer upon itself if this judge’s interpretation of the Law
were correct which explain[ed] the issue of the arrest warrant against
H.E. Mr. Yerodia Ndombasi, against whom it [was] patently evident
that no basis of territorial or ia personam jurisdiction, nor any juris-
diction based on the protection of the security or dignity of the
Kingdom of Belgium, could have been invoked”:

and whereas the Congo observed that “[slince the issue of the warrant,
the Belgian Government ha[d] not disavowed this interpretation” ;

19. Whereas at the hearings the Congo stressed that neither its Appli-
cation instituting proceedings nor its request for the indication of a pro-
visional measure had sought “to make any claim whatever on the basis of
the diplomatic protection of one of its nationals”, but rather “to make
good the breaches of international law affecting the Congolese State in the
exercise of its sovereign prerogatives in diplomatic matters”; and whereas
it explained that “[t]he Congo [was] attacking the arrest warrant issued by
the Belgian judge because it [was] directed not at Mr. Yerodia Ndombasi
in his personal capacity, but at the office of Minister for Foreign Affairs” ;

20. Whereas at the hearings the Congo stated that “[t]he object of pro-
visional measures [was], according to the Court’s case-law, ‘to preserve
the respective rights of the parties pending the decision of the Court’”
and that “the need for such preservation [was] subject to two essential
conditions, namely urgency and the existence of irreparable prejudice” ;
whereas the Congo argued, with regard to the requirement of urgency,
that “while certain States consider[ed] that this warrant [could not] be
enforced ... and the Minister for Foreign Affairs ha[d] in fact been able
to travel to certain of those States, and to the headquarters of the United
Nations, this [did] not apply to other States”, and that “he thus [could
not] visit any State to which his duties [might] call him and, as a result...
[was] unable to carry out those duties in a proper manner”; and whereas
it contended, with regard to the requirement of irreparable prejudice,
that “[t]he consequences of excluding the qualified representative of the
Democratic Republic of the Congo from the international arena for an
undetermined period of time [were], by their very nature, consequences
which are irreparable” and that
ARREST WARRANT (ORDER 8 XII 00) 188

“the request of the Democratic Republic of the Congo relie[d] on the
precedent constituted . .. by the Order of 15 December 1979 ( United
States Diplomatic and Consular Staff... in Tehran), in which the
Court held that the violation of diplomatic immunity created a situa-
tion requiring the indication of a provisional measure”;

21. Whereas at the hearings the Congo also pleaded the “seriousness
of the substantive legal grounds of the Application”; and whereas, to
that end, it reiterated the arguments put forward in its Application; and
whereas it added that

“(t]he Court [was] not asked at present to determine the merits of
these grounds of law, but to note that they [were] serious and [that
they] justiflied] steps to ensure that the capitis deminutio which a
Belgian judge ha[d] sought to inflict on the Democratic Republic of
the Congo, and for which the Kingdom of Belgium [was] answer-
able, should cease”;

*

22. Whereas, at the hearing of 21 November 2000, the Agent of Bel-
gium, in his preliminary statement, made the following observation:
“[a]ccording to our information, Mr. Yerodia is today no longer Minister
for Foreign Affairs of the Congo”;

23. Whereas at the hearings Belgium referred to what it considers to
be “the historical context of the events which took place in the Demo-
cratic Republic of the Congo and the reactions of the international com-
munity”; whereas it cited in this connection, on the one hand, the
“massive and systematic violations of human rights and international
humanitarian law” that had characterized the events that took place
in the Great Lakes region and, on the other, the relevant resolutions
adopted by the United Nations Security Council; whereas it cited in par-
ticular resolution 1291 (2000) of 24 February 2000, pursuant to which
the Council:

“14. Condemns all massacres carried out in and around the terri-
tory of the Democratic Republic of the Congo, and urges that an
international investigation into all such events be carried out with a
view to bringing to justice those responsible”

and

“15. Calls on all parties to the conflict in the Democratic Republic
of the Congo to protect human rights and respect international
humanitarian law and the Convention on the Prevention and Pun-
ishment of the Crime of Genocide of 1948, and calls on all parties to
refrain from or cease any support to, or association with, those sus-
pected of involvement in the crime of genocide, crimes against
humanity or war crimes, and to bring to justice those responsible,

10
ARREST WARRANT (ORDER 8 XII 00) 189

and facilitate measures in accordance with international law to
ensure accountability for violations of international humanitarian
law”;

and whereas Belgium observed that “[Jludge [Vandermeersch] was acting
within the framework of action urged on the international community by
the Security Council”;

24. Whereas at the hearings Belgium contended that “the [Belgian]
Law of 1993 and its 1999 amendments merely adapt[ed] Belgian domestic
law to the obligations undertaken by Belgium at international level”;
whereas it stated that “Article 7 of the Law . . . enshrine[d] the universal
jurisdiction of the Belgian courts” and that “[t]his jurisdiction . . . [was]
entirely consistent with the second paragraph of the Article common to
the four 1949 Geneva Conventions (Articles 49, 50, 129 and 146 respec-
tively)”; whereas it observed that

“[the amendments made on 10 February 1999 to the 1993 Law
{were] largely confined to bringing two offences within the scope
ratione materiae of the law: crimes against humanity and genocide” ;

and whereas Belgium explained that

“the extension to crimes against humanity and the crime of genocide
of the universal jurisdiction already provided for in Article 7 of the
1993 Law . .. merely represent[ed] the incorporation into domestic
law of an obligation long recognized in general international law”;

and whereas Belgium referred to an “element introduced by the Law of
1999 .. . [namely] the refusal of any immunity for the representative of
the State, whatever his or her rank, if he or she is implicated in one of the
crimes provided for in the Law”; whereas it contended that

“the lawmakers [had] merely transcribe[d] into legislation a rule
dating back to the Statute of the Nuremberg Tribunal . . ., or
even to the Treaty of Versailles regarding committal for trial of the
former Emperor of Germany and of the perpetrators of war crimes
in 1914-1918”;

and whereas Belgium argued that

“[tlhis rule [had] subsequently [been] confirmed by the Nuremberg
Tribunal itself in its Judgment of 1946, then in the statute of the
Tokyo Tribunal .. ., then in the Convention on the Prevention and
Punishment of the Crime of Genocide . . ., by the International Law
Commission, both in their formulation of the Nuremberg principles
and in the 1996 Draft Code of Offences against the Peace and Secu-
rity of Mankind . . .. not to mention the Statutes of the International
Criminal Tribunals. .., of the International Criminal Court... and,
very recently, of the Special Court for Sierra Leone”;
ARREST WARRANT (ORDER 8 XII 00) 190

25. Whereas at the hearings Belgium stated that “the arrest warrant
[had] not [been] issued simply on the personal initiative of the judge”;
whereas it explained that “the investigating judge had been seised, on the
one hand, of an application by the Brussels Public Prosecutor and, on the
other, of complaints from private individuals”; whereas Belgium stated
that “[i]t appear[ed] from information obtained from the Brussels Public
Prosecutor’s office that, of the 12 complainants, five [were] of Belgian
nationality and seven of Congolese nationality”, and that “{a]ll [were]
resident in Belgium”; and whereas Belgium stressed that “there exist[ed]
clear and reasonable links between the acts in question and Belgium,
through the nationality or residence of the victims of those acts”:

26. Whereas at the hearings Belgium referred to the fact that

“[Uhe warrant state[d] that, on 4 and 27 August 1998, Mr. Yerodia
Ndombasi, then President Kabila’s Principal Private Secretary, [had]
made various public speeches broadcast by the media and inciting
racial hatred, which speeches are alleged to have contributed to the
massacre of several hundred persons, mainly of Tutsi origin”,

and that “[t]hose facts [were] cited in . .. United Nations reports”; and
whereas Belgium further stated that “the investigating judge [had taken]
full account of the context in which the words of Mr. Yerodia Ndombasi
[had been] spoken”;

27. Whereas at the hearings Belgium observed as follows:

“Tt]he investigating judge . . . took account of the issues of immunity
arising from the indictment of a Minister by dispelling any notion
that Mr. Yerodia Ndombasi would be arrested immediately if he
came to Belgium at the official invitation of the Belgian Govern-
ment: the invitation would in fact imply that Belgium waived the
right to have the warrant enforced for the duration of the official
stay, and the judicial authorities could not disregard that without

CE]

incurring the international responsibility of the Belgian State . . .”:

and whereas it added that, “//utatis mutandis, the same would be the
case if Mr. Yerodia Ndombasi were to visit or pass through Belgium in
response to an invitation addressed to him by an international organiza-
tion of which Belgium was a member”;

28. Whereas at the hearings Belgium acknowledged that if Mr. Yerodia
Ndombasi were arrested, “his right to personal liberty would . . . be
affected”: whereas it argued that “[h]owever, since the violation of
Mr. Yerodia Ndombasi’s right would occur in the course of ordinary crimi-
nal proceedings, this would be an exception to that right admitted by all
the various instruments for the safeguard of the rights of the individual”;
whereas Belgium accordingly concluded that “[s]ince no right has been
violated, the Congo cannot claim that the infringement of Mr. Yerodia
Ndombasi’s liberty is a violation of international law which directly
affects the Congo”; and whereas it added that Mr. Yerodia Ndombasi’s

12
ARREST WARRANT (ORDER 8 XII 00) 191

status as Minister “[did] nothing to change this conclusion”, since “[tJhe
fact that an individual ha[d] the status of representative of a State [did
not entitle him to] violate the law, whether it be domestic or interna-
tional”;

29. Whereas at the hearings Belgium stated that “an international
arrest warrant . . . [could] only produce compulsory effects on the terri-
tory of a foreign State if the latter agree[d] to assist in its enforcement” ;
that “the two States [were] not bound by any specific bilateral treaty on
extradition or judicial co-operation”, and that “[t]he extraterritorial
effects of the warrant [were] thus entirely conditiona! on the willingness
of the requested State, in this case the Congo, to act upon it or not”; and
whereas Belgium argued that “the issue of the arrest warrant [was] a
means of helping the Congo to exercise a right which . . . [was] also
an obligation for the Congo, namely that of arresting and prosecuting
Mr. Yerodia Ndombasi in the Congolese courts on account of the acts
with which he [was] charged”:

30. Whereas at the hearings Belgium argued as follows:

“the Belgian arrest warrant is no more enforceable directly on the
territory of a third State than it is on the territory of the Congo. In
both cases, the assistance of the authorities of the country concerned
is indispensable; the arrest warrant is enforceable against the person
concerned abroad only if the host State agrees to execute it. In such
a case it would therefore not be Belgium which would be infringing
Mr. Yerodia Ndombasi’s liberty, but the requested third State”;

31. Whereas Belgium stated at the hearings that “a request for the
indication of provisional measures . . . is an exceptional procedure”, that
it implies that the Court has prima facie jurisdiction, and that

“i]t is, as the jurisprudence of the Court makes clear, a question of
whether provisional measures are necessary in the circumstances —
whether there is a serious risk of irreparable damage to the rights
which may subsequently be adjudged by the Court to belong to
either Party”;

32. Whereas, at the hearings, Belgium argued with regard to the ques-
tion of the Court’s jurisdiction that the Application

“ma[de] no reference to any specific basis of jurisdiction[,] [did] not
refer to any bilateral or multilateral treaty providing for the jurisdic-
tion of the Court pursuant to Article 36, paragraph 1, of the Statute
[and] {did] not advance optional clause declarations by the Parties as
a basis of jurisdiction” ;

and whereas Belgium accordingly concluded that “the Court should
reject the Democratic Republic of the Congo’s request for provisional
measures”; and whereas it added that, “in the light of the Democratic
Republic of the Congo’s formulation on jurisdiction and for the avoid-

13
ARREST WARRANT (ORDER 8 XII 00) 192

ance of doubt, [it] . . . reserve[d] fits] position on the question of jurisdic-
tion and admissibility” ;

33. Whereas, with regard to the question of the rights to be preserved,
Belgium argued at the hearings that “[tJhe prerequisite . . . [was] that the
rights which the applicant [sought] to preserve through the provisional
measure procedure must not be illusory, must be the subject of the dis-
pute in the proceedings on the merits and must in some manner be under
threat by the action of which the applicant complains”; whereas it stated
that in the present case “the ‘right’ claimed to be in need of preservation
by the indication of provisional measures [was] the ‘right’ of the Demo-
cratic Republic of the Congo’s Foreign Minister to travel abroad on
governmental business”; whereas it added the following:

“Diplomatic discourse of course requires that representatives of
States have the ability to travel abroad in the conduct of affairs of
State. The point is that foreign travel is not a right. It is a func-
tion .. . of diplomatic discourse . . . It requires the consent of the
receiving State”;

and whereas it concluded that

“[t]he Democratic Republic of the Congo ha[d] not made out a case
for the existence of a right [the preservation of which, it was claimed,]
require[d] the indication of provisional measures . . . [and that] the
Court should dismiss, on this ground . . . the Democratic Republic
of the Congo’s Application for provisional measures”;

34. Whereas, with regard to the requirement of irreparable prejudice,
Belgium asserted inter alia at the hearings that “the test [was] . . . not
inconvenience, not hardship, not irritation”, that “[t]he issue . . . [was]
whether there [was] a real risk of irreparable prejudice to the rights of the
Democratic Republic of the Congo”, and that “[t]he events of the past
24 hours, during the course of which Mr. Yerodia Ndombasi ceased to be
the Foreign Minister, indicate[d] firmly that there [was] no risk of irrepa-
rable prejudice to [those] rights”; whereas it maintained that “[w]e [were]
presented with virtually no evidence of any prejudice having occurred
to the rights of the Democratic Republic of the Congo since 11 April
(or 12 July) 2000” and that “{tJhere [was] not even any suggestion that
Mr. Ndombasi [had] been much inconvenienced”; and whereas it sub-
mitted, accordingly, that the Court “should dismiss the Democratic

Republic of the Congo’s request for provisional measures . . . on this
ground”;

35. Whereas, with regard to the requirement of urgency, Belgium con-
tended at the hearings that “[e]ven before the cabinet reshuffle . .., which

saw Mr. Ndombasi moved to the education portfolio, there was no issue
of urgency”; and whereas it stated the following:

“The reality was that the arrest warrant was issued on 11 April
2000. The Democratic Republic of the Congo has known about it
since at least 12 July 2000. To the point of the filing of the Demo-

14
ARREST WARRANT (ORDER 8 XII 00) 193

cratic Republic of the Congo’s Application on 17 October 2000, there
was no suggestion of any urgency . .. Belgium would have contended
yesterday that the request for provisional measures did not meet the
requirement of urgency: this is even clearer today, in circumstances
in which Mr. Ndombasi is no longer the Foreign Minister” ;

and whereas it accordingly requested the Court “to dismiss the request
on this ground”;

36. Whereas at the hearings Belgium further stated that “the relief
sought by the Democratic Republic of the Congo brought by way of pro-
visional measures [was] identical to the relief which it [sought] on the
merits of its claim, namely, the immediate cancellation of the arrest war-
rant”; and whereas it referred to the Order made by the Permanent Court
of International Justice on 21 November 1927 in the case concerning the
Factory at Chorzow (P.C.LJ., Series A, No. 12, p. 10), in order to
support its argument that “[t]he exceptional nature of the provisional
measures procedure [did] not admit of an interim judgment granting
the relief requested in the Application”;

37. Whereas at the hearings Belgium stated that it “[did] not see any
risk of a significant deterioration in relations between Belgium and
the Democratic Republic of the Congo such as to warrant provisional
measures [being indicated propriu motu]”;

38. Whereas at the hearings Belgium observed that “there [was] a long
history of Security Council and wider United Nations involvement in the
Democratic Republic of the Congo in respect of the type of circum-
stances that [were] the subject of the arrest warrant” and that “the whole
thrust of [the United Nations] involvement . . . in the relevant events in
the Democratic Republic of the Congo militate[d] very strongly indeed
against any indication of provisional measures along the lines requested
by [the Congo]”;

39. Whereas Belgium nevertheless concluded its first round of oral
argument by stating that it

“would not object were the Court to decide, in exercise of its power
under either paragraph 1 or paragraph 2 of Article 75 of the Court’s
Rules, to indicate provisional measures which called upon the Parties
jointly, in good faith, to address the difficulties caused by the issu-
ance of the arrest warrant with a view to achieving a resolution to
the dispute in a manner that [was] consistent with their obligations
under international law, including Security Council resolutions 1234
(1999) and 1291 (2000)”:

*

40. Whereas, at the hearing of 22 November 2000, in its second round
of oral argument, the Congo contended that “[t]he international status of
the Minister for Foreign Affairs [was] governed by the principle that he
should be assimilated to a foreign Head of State in so far as immunity

[5
ARREST WARRANT (ORDER 8 XII 00) 194

and inviolability [were] concerned” and that “any minister sent by his or
her State to represent it abroad, deal with other States or international
organizations and, where necessary, enter into commitments on behalf of
that State, also enjoy[ed], sensu lato, privileges and immunities”: whereas
it pointed out that

“[wlith regard to Mr. Yerodia, yesterday Minister for Foreign
Affairs, today Minister of Education in the new Congolese Govern-
ment, . . . he [would] be called upon to travel, to respond to invita-
tions from abroad, to attend international meetings . . .”

and that “[hJe [would] often be called upon to be sent as the plenipoten-
tiary personal representative of the Head of State to represent him
abroad”; and whereas the Congo added that in this capacity Mr. Yerodia
Ndombasi “[would] undoubtedly be entitled to benefit from the principle
of assimilation to the Head of State, the Head of Government or the
Minister for Foreign Affairs, as [might] be presumed from Article 7, para-
graph 2 (c}, of the 1969 Vienna Convention on the Law of Treaties”;

41. Whereas, at that hearing, the Congo claimed that “the interna-
tional arrest warrant in dispute contravene{d] the ‘principle of non-retro-
activity’”; whereas in support of this claim it cited Article 2, paragraph 1,
of the Belgian Penal Code, and also the 1966 International Covenant on
Civil and Political Rights and the 1950 European Convention for the
Protection of Human Rights and Fundamental Freedoms;

42. Whereas, at that same hearing, the Congo contended that “[p]rima
facie, the Court’s jurisdiction [could] not be contested” and

“derive[d] clearly from the optional declarations recognizing as com-
pulsory the jurisdiction of the Court made by the Kingdom of Bel-
gium and the Democratic Republic of the Congo on 3 April 1958
and 8 February 1989, respectively, . . . and which appear[ed] to con-
tain no reservation”;

43. Whereas, at the said hearing, the Congo made the following state-
ment:

“the Democratic Republic of the Congo requests the Court to order
Belgium to comply with international law; to cease and desist from
any conduct which might exacerbate the dispute with the Demo-
cratic Republic of the Congo; specifically, to discharge the interna-
tional arrest warrant issued against Minister Yerodia.

Generally, the Democratic Republic of the Congo requests the
Court, on the basis of Article 75, paragraphs | and 2, of the Rules of
Court, to indicate measures which consist, inter alia, in urging both
Parties — Belgium in particular, and the Democratic Republic of the
Congo — to adopt a course of conduct which will prevent the con-
tinuation, aggravation and extension of the dispute, in particular by
eliminating the main cause of this dispute”;

16
ARREST WARRANT (ORDER 8 XII 00) 195

44. Whereas, at the conclusion of its second round of oral argument,
the Congo asked the Court

“to decide this case, having regard to the readiness of both Parties to
seek a friendly settlement by diplomatic means, and .. . by persuad-
ing the Belgian judge, Mr. Vandermeersch, to withdraw his interna-
tional arrest warrant”;

*

45, Whereas, at the hearing of 23 November 2000, in its second round
of oral argument, Belgium stated that it objected “to the invocation of a
basis of Jurisdiction . . . in the second round of oral arguments”; and
whereas, citing the jurisprudence of the Court, it observed that “such
action at this late stage, when it is not accepted by the other party, seri-
ously jeopardizes the principle of procedural fairness and the sound
administration of justice”;

46. Whereas, at that hearing, Belgium contended that “[I]t [was] not
accurate to characterize [its optional clause declaration] as ‘without limi-
tation’; whereas it pointed out that “[i]n its operative part, [the said dec-
laration] exclude[d] [the Court’s] jurisdiction in respect of disputes ‘to
which the parties have agreed or may agree to have recourse to another
method of pacific settlement’”; and whereas Belgium asserted that “the
issue of the arrest warrant was actively being discussed at the very highest
levels between [the two States] at the point at which the Foreign Minister
of the Democratic Republic of the Congo authorized Maitre Vergès to
bring the claim”;

47. Whereas, at that same hearing, Belgium argued, with regard to the
conditions of irreparable prejudice and urgency, that

“{t}he Cabinet reshuffle which [had] led to the appointment of a new
Minister for Foreign Affairs comprehensively undermine[d] any
residual claim . . . to irreparable prejudice based on constraints on
travel by the Foreign Minister”,

and that “the [said] Cabinet reshuffle . . . also comprehensively under-
mine[d] any residual claim that there [might] have been concerning urgency” ;

48. Whereas, at the said hearing, Belgium, referring to the above-
mentioned Cabinet reshuffle, claimed that this change in circumstances
rendered the request for a provisional measure without object and
should lead the Court, in the interests of the sound administration of
justice, to remove the case from the List;

49. Whereas, at that hearing, Belgium again referred to what it had
said in its first round of oral argument concerning a call by the Court to
the Parties (see paragraph 39 above); and whereas it observed in this
connection that “[t]he statements of the Vice-Minister of Justice and
Parliamentary Affairs of the Democratic Republic of the Congo seemed
... to support such an approach”; and whereas Belgium added that it

17
ARREST WARRANT (ORDER 8 XII 00) 196

“regret[ted] any impression, which might be created by these proceedings
before the Court, that [it was] in a situation of conflict with the Demo-
cratic Republic of the Congo”; and whereas it asserted that “there [was]
no risk of a deterioration of relations between the two countries”;

50. Whereas, at the conclusion of its second round of oral argument,
Belgium made the following submissions:

“The Kingdom of Belgium asks that it may please the Court to
refuse the request for the indication of provisional measures submitted
by the Democratic Republic of the Congo in the case concerning the
Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo
v. Belgium) and not indicate the provisional measures which are the
subject of the request by the Democratic Republic of the Congo.

The Kingdom of Belgium asks that it may please the Court to
remove from its List the case concerning the Arrest Warrant of
11 April 2000 (Democratic Republic of the Congo v. Belgium)
brought by the Democratic Republic of the Congo against Belgium
by Application dated 17 October 2000”;

* * *

51. Whereas in the course of the present proceedings, the Court was
informed by Belgium that on 20 November 2000 a Cabinet reshuffle had
taken place in the Congo, as a result of which Mr. Yerodia Ndombasi,
the subject of the arrest warrant of 11 April 2000, had ceased to exercise
the functions of Minister for Foreign Affairs and had been charged with
those of Minister of Education; and whereas this information was con-
firmed by the Congo;

52. Whereas Belgium contended that, because of this, the Congo’s
request for the indication of provisional measures, the entire basis of
which was the fact that it was effectively impossible for the Minister for
Foreign Affairs to “leav[e] that State in order to go to any other State
which his duties require him to visit and, hence, [to carry] out those
duties”, had been rendered without object and should therefore be
refused; and whereas it further contended that “such a fundamental
change of circumstances affect[ed] the Application . . . to such an extent
as to vitiate all future proceedings based on that Application”, and it
requested the Court to order that the case be removed from its List;

53. Whereas, anticipating the argument by Belgium that the Applica-
tion is without object, the Congo emphasized that in any event Belgium
had violated the immunities of the Minister for Foreign Affairs at the
time of the issue of the warrant and that, in view of “the technical nature
and the growing complexity of international relations”, “any minister
sent by his or her State to represent it abroad . . . enjoy[ed], sensu lato,
.. . [such] immunities” ;

54. Whereas it falls to the Court first of all to address the question of
whether, as a result of the said ministerial reshuffle, the Application of

18

ARREST WARRANT (ORDER 8 XII 00) 197

the Congo has been deprived of its object and must therefore be removed
from the List; and whereas the Court will then, if necessary, examine the
separate question of whether, as a result of this reshuffle, the request for
the indication of provisional measures by the Congo has been rendered
without object and must consequently be rejected:

55. Whereas the Court has the power to remove from its List in limine
“a case upon which it appears certain [that it] will not be able to adjudi-
cate on the merits” (Legality of Use of Force ( Yugoslavia v. Spain), Pro-
visional Measures, Order of 2 June 1999, I.C.J. Reports 1999, para. 35);
whereas

“[dhe Court has already acknowledged, on several occasions in the
past, that events subsequent to the filing of an application may
‘render [the] application without object’ (Border and Transborder
Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissi-
bility, Judgment, L CJ. Reports 1988, p. 95, para. 66) and ‘therefore
the Court is not called upon to give a decision thereon’ ( Nuclear
Tests (Australia v. France), Judgment, 1 C.J. Reports 1974, p. 272,
para. 62) (cf. Northern Cameroons, Judgment, 1. C.J. Reports 1963,
p. 38)” (Questions of Interpretation and Application of the 1971
Montreal Convention urising from the Aerial Incident at Lockerbie
(Libyan Arab Jamahiriya v. United Kingdom}, Preliminary Objec-
tion, Judgment, I.C.J. Reports 1998, p. 26, para. 46);

and whereas mootness of the Application is one of the grounds which
may lead the Court to remove a case from its List without further con-
sideration;

56. Whereas, in order to determine whether the Congo’s Application
has been rendered without object, the claim which it contains has to be
ascertained; whereas, in the Application, “[t]he Court is requested to
declare that . . . Belgium shall annul the international arrest warrant
issued on 11 April 2000... against the Minister for Foreign Affairs in
office of the Democratic Republic of the Congo, Mr. Abdulaye Yerodia
Ndombasi”; whereas, to date, the aforesaid warrant has not been with-
drawn and still relates to the same individual, notwithstanding the new
ministerial duties that he is performing; and whereas at the hearings the
Congo maintained its claim on the merits, together with the various
grounds relied on in support thereof;

57. Whereas, in view of the foregoing, the Court concludes that the
Congo’s Application has not at the present time been deprived of its
object; and whereas it cannot therefore accede to Belgium’s request for
the case to be removed from the List at this stage of the proceedings;

58. Whereas this finding does not however resolve the separate ques-
tion of whether or not the request for the indication of provisional meas-
ures would have been deprived of its object after 20 November 2000; and
whereas Belgium claims that that request is now without object;

59. Whereas the request for the indication of a provisional measure
submitted by the Congo following the filing of its Application “seeks an

19
ARREST WARRANT (ORDER 8 XII 00) 198

order for the immediate discharge of the disputed arrest warrant”;
whereas, as has just been pointed out (see paragraph 56 above), that
arrest warrant continues to be in the name of Mr. Yerodia Ndombasi;
whereas at the hearings the Congo maintained its original request,
presenting it as follows:

“Consequently, the Democratic Republic of the Congo requests
the Court to order Belgium to comply with international law; to
cease and desist from any conduct which might exacerbate the dis-
pute with the Democratic Republic of the Congo; in particular, to
discharge the international arrest warrant issued against Minister
Yerodia”;

whereas the Congo considers that Mr. Yerodia Ndombasi continues to
enjoy immunities which render the arrest warrant unlawful; and whereas
it furthermore maintained its argument, based on urgency and the risk of
irreparable prejudice, put forward in support of its request;

60. Whereas the Court concludes from the foregoing that the request
by the Congo for the indication of provisional measures has not been
deprived of its object by reason of Mr. Yerodia Ndombasi’s appointment
as Minister of Education on 20 November 2000;

* Ox

61. Whereas each of the Parties has made a declaration recognizing
the compulsory jurisdiction of the Court in accordance with Article 36,
paragraph 2, of the Statute of the Court; whereas Belgium’s declaration,
deposited with the Secretary-General of the United Nations on 17 June
1958. is worded as follows:

“I declare on behalf of the Belgian Government that I recognize as
compulsory ipso facto and without special agreement, in relation to
any other State accepting the same obligation, the jurisdiction of the
International Court of Justice, in conformity with Article 36, para-
graph 2, of the Statute of the Court, in legal disputes arising after
13 July 1948 concerning situations or facts subsequent to that date,
except those in regard to which the parties have agreed or may agree
to have recourse to another method of pacific settlement.

This declaration is made subject to ratification. It shall take effect
on the day of deposit of the instrument of ratification for a period of
five years. Upon the expiry of that period, it shall continue to have
effect until notice of its termination is given”;

and whereas the declaration of the Congo (then Zaire), deposited with
the Secretary-General on 8 February 1989, reads as follows:

“in accordance with Article 36, paragraph 2, of the Statute of the
International Court of Justice:

The Executive Council of the Republic of Zaire recognizes as
compulsory ipso facto and without special agreement, in relation to

20
ARREST WARRANT (ORDER 8 XII 00) 199

any other State accepting the same obligation, the jurisdiction of the
Court in all legal disputes concerning:

(a) the interpretation of a treaty;

(b) 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.

It is understood further that this declaration will remain in force
until notice of its revocation is given”;

62. Whereas, relying on the Order made by the Court on 2 June 1999
in the case concerning Legality of Use of Force ( Yugoslavia v. Belgium)
(LCS. Reports 1999, para. 44), Belgium contended in the course of the
present proceedings that, since the Congo had not expressly invoked both
of the above-mentioned declarations until a late stage, in the second
round of oral argument, the Court could not take them into considera-
tion for the purposes of deciding whether or not it could indicate provi-
sional measures in the present case (see paragraph 42 above);

63. Whereas, notwithstanding a certain lack of precision in the terms
whereby, in its Application, the Congo set out the bases on which it
sought to found the jurisdiction of the Court, the Application does none-
theless refer to the acceptance of the Court’s jurisdiction by Belgium;
whereas, in accordance with Article 38, paragraph 2, of the Rules of
Court, “[t]he application shall specify as far as possible the legal grounds
upon which the jurisdiction of the Court is said to be based” (emphasis
added), and whereas it is in any event for the Court to ascertain in each
case whether it has jurisdiction; whereas, as recalled above (see para-
graph 61), the declarations whereby Belgium and the Congo recognized
the compulsory jurisdiction of the Court were duly deposited with the
Secretary-General of the United Nations, who, in accordance with Ar-
ticle 36, paragraph 4, of the Statute, transmitted copies thereof to the
Court and to all the States parties to the Statute: whereas these declara-
tions were reproduced in the Yearbook of the Court; whereas the decla-
rations in question are therefore within the knowledge both of the Court
and of the Parties to the present case, who cannot but be aware that “the
Court's jurisdiction . . . is based on the consent of States, expressed in
a variety of ways including declarations made under Article 36, para-
graph 2, of the Statute” (Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America), Merits,
Judgment, 1 C.J. Reports 1986, p. 32, para. 44); whereas, having regard
to the terms in which the Application was formulated and to the submis-
sions presented by the Congo, Belgium could readily expect that the dec-
larations made by the two Parties would be taken into consideration as
a basis for the jurisdiction of the Court in the present case; whereas

21
ARREST WARRANT (ORDER 8 XII 00) 200

Belgium was therefore in a position to prepare and put forward any such
argument as it thought fit in this regard; and whereas the fact that the
Congo invoked those declarations in the second round of oral argument
on the request for the indication of provisional measures was not likely to
“seriously jeopardize the principle of procedural fairness and the sound
administration of justice” (Legality of Use of Force ( Yugoslavia v. Bel-
gium), Provisional Measures, Order of 2 June 1999, 1 C.J. Reports 1999,
para. 44);

64. Whereas, in view of the foregoing, the Court considers that there is
nothing to prevent it, for purposes of deciding whether or not it can indi-
cate provisional measures in the present case, from taking account of the
declarations whereby the Parties have accepted its compulsory jurisdic-
tion;

65. Whereas, however, in the final version of its argument in the
present proceedings, Belgium further observed that by the terms of its
declaration it had excluded the compulsory jurisdiction of the Court con-
cerning situations or facts “in regard to which the parties have agreed or
may agree to have recourse to another method of pacific settlement” ; and
whereas it stated that negotiations at the highest level regarding the arrest
warrant issued on 11 April 2000 were in fact in progress when the Congo
seised the Court (see paragraph 46 above);

66. Whereas Belgium has not, however, provided the Court with any
further details of those negotiations, in particular with regard to the way in
which they have been carried out, or to their duration, scope or state of
progress at the time of filing of the Congo’s Application; whereas the
Court is not in a position to determine whether, in the present case, the
Parties had agreed temporarily to exclude any recourse to the Court on
account of, and for the duration of, the ongoing negotiations; whereas Bel-
gium, moreover, has not explained to the Court the precise consequences
which it considered the holding of those negotiations, or the holding of
negotiations generally, would have in regard to the Court’s jurisdiction,
and in particular its jurisdiction to indicate provisional measures;

67. Whereas, when the Court has before it a request for the indication
of provisional measures, it has no need, before deciding whether or not to
indicate such measures, to satisfy itself beyond doubt that it has jurisdic-
tion on the merits of the case, but whereas it cannot nevertheless indicate
those measures unless the provisions invoked appear prima facie to con-
stitute a basis on which its jurisdiction could be founded;

68. Whereas the Court concludes that the declarations made by the
Parties pursuant to Article 36, paragraph 2, of its Statute constitute
prima facie a basis on which its jurisdiction could be founded in the
present case; and whereas such jurisdiction cannot be excluded, at the
present stage of the proceedings, solely by reason of the negotiations
referred to by Belgium;

22
ARREST WARRANT (ORDER 8 XII 00) 201

69. Whereas the power of the Court to indicate provisional measures
under Article 41 of the Statute of the Court has as its object to preserve
the respective rights of the parties pending the decision of the Court, and
presupposes that irreparable prejudice should not be caused to rights
which are the subject of dispute in judicial proceedings; whereas it fol-
lows that the Court must be concerned to preserve by such measures the
rights which may subsequently be adjudged by the Court to belong either
to the Applicant or to the Respondent; and whereas such measures are
justified solely if there is urgency;

70. Whereas in its Application the Congo requested the Court to annul
the international arrest warrant issued against Mr. Yerodia Ndombasi by
a Belgian investigating judge on 11 April 2000; whereas it contended that
this warrant was in breach of international law in regard to the jurisdic-
tion of national criminal courts and to the immunity of Heads of State
and members of governments; whereas in requesting, as a provisional
measure, the discharge of the arrest warrant, the Congo seeks to preserve
its rights under both of those categories;

71. Whereas the circumstances relied on by the Congo, which in its
view require the indication of such discharge, are set out as follows in the
request submitted on 17 October 2000:

“[t]he disputed arrest warrant effectively bars the Minister for For-
eign Affairs of the Democratic Republic of the Congo from leaving
that State in order to go to any other State which his duties require
him to visit and, hence, from carrying out those duties”;

72. Whereas, following the Cabinet reshuffle of 20 November 2000,
Mr. Yerodia Ndombasi ceased to exercise the functions of Minister for
Foreign Affairs and was charged with those of Minister of Education,
involving less frequent foreign travel; and whereas it has accordingly not
been established that irreparable prejudice might be caused in the imme-
diate future to the Congo’s rights nor that the degree of urgency is such
that those rights need to be protected by the indication of provisional
measures ;

73. Whereas, in view of the conclusion thus reached by the Court, it is
unnecessary for it to examine each of the further arguments submitted by
Belgium seeking rejection of the request for provisional measures, and in
particular the argument that the measure relating to the discharge of the
arrest warrant, sought by the Congo on a provisional basis, is identical to
that sought by it on the merits;

74. Whereas in its second round of oral argument the Congo asked the
Court to call upon the two Parties “to adopt a course of conduct which
will prevent the continuation, aggravation and extension of the dispute,
in particular by eliminating the main cause of this dispute”; whereas it
also asked the Court to “[have] regard to the readiness of both Parties to
seek a friendly settlement by diplomatic means, and . . . [persuade] the

23
ARREST WARRANT (ORDER 8 XII 00) 202

Belgian judge, Mr. Vandermeersch, to withdraw his international arrest
warrant” ;

75. Whereas in the course of its oral argument Belgium stated that it
would have no objection to the Court’s requesting the Parties to examine
jointly, in good faith, the difficulties raised by the arrest warrant, with a
view to finding a solution that was consistent with their obligations under
international law (see paragraphs 39 and 49 above):

76. Whereas, while the Parties appear to be willing to consider seeking
a friendly settlement of their dispute, their positions as set out before the
Court regarding their respective rights are still a long way apart; whereas,
while any bilateral negotiations with a view to achieving a direct and
friendly settlement will continue to be welcomed, the outcome of such
negotiations cannot be foreseen; whereas it is desirable that the issues
before the Court should be determined as soon as possible; whereas it is
therefore appropriate to ensure that a decision on the Congo’s Applica-
tion be reached with all expedition;

x OX

71. Whereas the decision given in the present proceedings in no way
prejudges the question of the jurisdiction of the Court to deal with the
merits of the case or any questions relating to the admissibility of the
Application, or relating to the merits themselves; and whereas it leaves
unaffected the right of the Governments of the Congo and Belgium to
submit arguments in respect of those questions;

%
* *

78. For these reasons,

THE Court,

(1) Unanimously,

Rejects the request of the Kingdom of Belgium that the case be
removed from the List;

(2) By fifteen votes to two,

Finds that the circumstances, as they now present themselves to
the Court, are not such as to require the exercise of its power under
Article 41 of the Statute to indicate provisional measures.

IN FAVOUR: President Guillaume; Vice-President Shi, Judges Oda, Bedjaoui,
Ranjeva, Herezegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-
Aranguren, Kooijmans, Al-Khasawneh, Buergenthal; Judge ad hoc Van
den Wyngaert;

AGAINST: Judge Rezek; Judge ad hoc Bula-Bula.

Done in French and in English, the French text being authoritative, at
the Peace Palace, The Hague, this eighth day of December, two thou-

24
ARREST WARRANT (ORDER 8 XII 00) 203

sand, in three copies, one of which will be placed in the archives of the
Court and the others transmitted to the Government of the Democratic
Republic of the Congo and the Government of the Kingdom of Belgium,
respectively.

(Signed) Gilbert GUILLAUME,
President.

(Signed) Philippe COUVREUR,
Registrar.

Judges ODA and RANJEVA append declarations to the Order of the
Court; Judges KoroMA and PARRA-ARANGUREN append separate
opinions to the Order of the Court; Judge Rezex and Judge ad hoc
BULA-BuLa append dissenting opinions to the Order of the Court; Judge
ad hoc VAN DEN WYNGAERT appends a declaration to the Order of the
Court.

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

25


174

SEPARATE OPINION OF JUDGE RUDA

1. I have voted in favour of the decisions adopted by the Court in the
operative part, with the exception of subparagraph (1), relating to the
application of the reservation made by the United States of America, at the
time of the acceptance of the jurisdiction of the Court, under Article 36,
paragraph 2, of the Statute, which is known as the “Vandenberg Reser-
vation”.

2. This favourable vote does not mean that I share all and every part of
the reasoning followed by the Court in reaching the same conclusions.
Nevertheless, I feel it necessary to state my views only on certain subjects
which are important enough to deserve a separate opinion and on which |
think that the Court should have taken a different approach.

I. THE UNITED STATES AGENT’S LETTER OF
18 JANUARY 1985

3. In his letter of 18 January 1985, the Agent of the United States
conveyed the position of his Government on the Court’s Judgment on
jurisdiction and admissibility, given on 26 November 1984. The letter
states in its final part :

“Accordingly, it is my duty to inform you that the United States
intends not to participate in any further proceedings in connection
with this case, and reserves its rights in respect of any decision by the
Court regarding Nicaragua’s claims.”

4. I fully agree with the statement of the Court in paragraph 27 that a
State party to proceedings before the Court may decide not to participate
in them. But I do not think that the Court should pass over in silence a
statement whereby a State reserves its rights in respect of a future decision
of the Court.

5. Article 94, paragraph 1, of the United Nations Charter says in a clear
and simple way : “Each Member of the United Nations undertakes to
comply with the decision of the International Court of Justice in any case
to which it is a party.”

6. Noreservation made by a State, at any stage of the proceedings, could
derogate from this solemn obligation, freely entered into, which is, more-
over, the cornerstone of the system, centred upon the Court, for the judicial
settlement of international disputes. The United States, like any other
party to the Statute, is bound by the decisions taken by the Court and there

164
176 MILITARY AND PARAMILITARY ACTIVITIES (SEP. OP. RUDA)

another State and to refrain in international relations from the threat or
use of force against the territorial integrity or political independence of
another State. But here the question to be decided in regard to the plea of
the United States is whether the justification of self-defence in the case of
assistance to rebels is valid or not under customary international law. My
reply, just like the one given by the Court, is in the negative.

12. If, juridically, assistance to rebels cannot, per se, be justified on
grounds of self-defence, I do not see why the Court feels bound to analyse
in detail the facts of the case relating to such assistance. Neither do I
perceive the need for entering, in the Judgment, into the questions of the
requirements, in the case of collective self-defence, of a request by a State
which regards itself as the victim of an armed attack, or a declaration by
that State that it has been attacked or of its submission of an immediate
report on the measure taken in the exercise of this right of self-
defence.

13. From my point of view it would have been sufficient to say, just as
the Court does in its conclusions, that even if there was such assistance and
flow of arms, that is not a sufficient excuse for invoking self-defence
because, juridically, the concept of “armed attack” does not include assis-
tance to rebels.

14. Therefore, I have a different method of approach from that of the
Court, even though I reach the same conclusions.

15. Following the logic of my reasoning, I pass no judgment as to what
the Court says on such facts as may underlie the claimed justification of
collective self-defence. I share, however, the findings of fact and law of the
Court on the transborder incursions in the territory of Honduras and
Costa Rica.

IV. THE 1956 TREATY OF FRIENDSHIP, COMMERCE AND NAVIGATION

16. 1 voted in the 1984 Judgment, together with another judge, against
accepting the 1956 Treaty of Friendship, Commerce and Navigation as a
basis for the jurisdiction of the Court to entertain the dispute and I have
expressed my reasoning in a separate opinion. However, I consider that in
regard to the present Judgment I was obliged to vote on the question
whether the United States has acted in breach of this Treaty. The question
of jurisdiction and that of the breach of a treaty are of a different juridical
nature ; the Court could be incompetent for lack of consent to go into the
merits of a dispute, but that does not mean that the States in the contro-
versy might have not violated a rule of international law. Once the Court
has established its competence, a judge is bound to decide on the merits of
the case, even if he was in the minority on the question of jurisdiction.
Otherwise, in the event that a judge had voted against both sources of

166
177 MILITARY AND PARAMILITARY ACTIVITIES (SEP. OP. RUDA)

Jurisdiction, as has happened in this case, that judge would have no
standing for participating in the merits stage, which would be an absurd
proposition.

17. For these reasons, I participated in the discussions and voted on the
question whether the United States had acted in breach of the 1956 Treaty
of Friendship, Commerce and Navigation.

(Signed) J. M. Rubs.

167


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING
LEGALITY OF USE OF FORCE

(YUGOSLAVIA v. BELGIUM)

ORDER OF 8 SEPTEMBER 2000

2000

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE A LA LICEITE
DE L’EMPLOI DE LA FORCE

(YOUGOSLAVIE c. BELGIQUE)

ORDONNANCE DU 8 SEPTEMBRE 2000
Official citation:

Legality of Use of Force ( Yugoslavia v. Belgium),

Order of 8 September 2000, 1.C.J. Reports 2000, p. 149

Mode officiel de citation:

Licéité de l'emploi de la force ( Yougoslavie c. Belgique),
ordonnance du 8 septembre 2000, C.J. Recueil 2000, p. 149

ISSN 0074-4441
ISBN 92-1-070868-7

Sales number
N° de vente:

792

8 SEPTEMBER 2000

ORDER

LEGALITY OF USE OF FORCE
(YUGOSLAVIA v. BELGIUM)

LICÉITÉ DE L'EMPLOI DE LA FORCE
(YOUGOSLAVIE c. BELGIQUE)

8 SEPTEMBRE 2000

ORDONNANCE

2000
8 September
General List
No. 105

149

INTERNATIONAL COURT OF JUSTICE

YEAR 2000

8 September 2000

CASE CONCERNING
LEGALITY OF USE OF FORCE

(YUGOSLAVIA v. BELGIUM)

ORDER

The Vice-President of the International Court of Justice, Acting Presi-
dent,

Having regard to Article 48 of the Statute of the Court and to
Articles 31 and 79 of the Rules of Court,

Having regard to the Order of 30 June 1999, whereby the Court fixed
5 January 2000 and 5 July 2000 as the time-limits for the filing, respec-
tively, of a Memorial by the Federal Republic of Yugoslavia and of a
Counter-Memorial by the Kingdom of Belgium;

Whereas on 5 July 2000 Belgium filed certain preliminary objections to
jurisdiction and admissibility ;

Whereas accordingly, by virtue of Article 79, paragraph 3, of the Rules
of Court, the proceedings on the merits are suspended and a time-limit
has to be fixed for the presentation by the other Party of a written state-
ment of its observations and submissions on the preliminary objections;

Whereas, at a meeting between the Vice-President, Acting President,
and the Agents of the Parties, held on 6 September 2000, Yugoslavia
indicated that it would require nine months for the preparation of that
written statement; and whereas Belgium did not object to such a time-
limit being fixed, but stressed that it expected that Yugoslavia would pro-
vide specific answers to the preliminary objections made by the Belgian
Government.

4
150 LEGALITY OF USE OF FORCE (ORDER 8 IX 00)

Taking account of the views of the Parties and the special circum-
stances of the case,

Fixes 5 April 2001 as the time-limit within which the Federal Republic
of Yugoslavia may present a written statement of its observations and
submissions on the preliminary objections made by the Kingdom of
Belgium; and

Reserves the subsequent procedure for further decision.

Done in English and in French, the English text being authoritative, at
the Peace Palace, The Hague, this eighth day of September, two thou-
sand, in three copies, one of which will be placed in the archives of the
Court and the others transmitted to the Government of the Federal
Republic of Yugoslavia and the Government of the Kingdom of Bel-
gium, respectively.

(Signed) Sui Jiuyong,
Vice-President.

(Signed) Philippe COUVREUR,
Registrar.


COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DE LA FRONTIERE TERRESTRE
ET MARITIME ENTRE LE CAMEROUN
ET LE NIGERIA

(CAMEROUN c. NIGERIA)

ORDONNANCE DU 3 MARS 1999

1999

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING
THE LAND AND MARITIME BOUNDARY
BETWEEN CAMEROON AND NIGERIA

(CAMEROON ». NIGERIA)

ORDER OF 3 MARCH 1999
Mode officiel de citation:

Frontière terrestre et maritime entre le Cameroun et le Nigéria,
ordonnance du 3 mars 1999, C.LJ. Recueil 1999, p. 24

Official citation:

Land and Maritime Boundary between Cameroon and Nigeria,
Order of 3 March 1999, LC.J. Reports 1999, p. 24

N° de vente:
ISSN 0074-4441 Sales number 721

ISBN 92-1-070790-7

3 MARS 1999

ORDONNANCE

FRONTIERE TERRESTRE ET MARITIME
ENTRE LE CAMEROUN ET LE NIGERIA

(CAMEROUN c. NIGERIA)

LAND AND MARITIME BOUNDARY
BETWEEN CAMEROON AND NIGERIA

(CAMEROON »v. NIGERIA)

3 MARCH 1999

ORDER
24

INTERNATIONAL COURT OF JUSTICE

YEAR 1999 1999
3 March
General List
3 March 1999 No. 94

CASE CONCERNING
THE LAND AND MARITIME BOUNDARY
BETWEEN CAMEROON AND NIGERIA

(CAMEROON y. NIGERIA)

ORDER

Present: President SCHWEBEL; Vice-President WEERAMANTRY; Judges
ODA, GUILLAUME, RANJEVA, HERCZEGH, SHI, FLEISCHHAUER,
KOROMA, VERESHCHETIN, HIGGINS, PARRA-ARANGUREN, KOOU-
MANS, REZEK; Judges ad hoc MBAYE, AJIBOLA; Registrar
VALENCIA-OSPINA.

The International Court of Justice,

Composed as above,
After deliberation,

Having regard to Article 48 of the Statute of the Court and to
Article 44, paragraph 3, of the Rules of Court,

Having regard to the Judgment dated 11 June 1998, whereby the
Court, ruling on the preliminary objections submitted by the Govern-
ment of Nigeria, found that, on the basis of Article 36, paragraph 2, of
the Statute, it has jurisdiction to adjudicate upon the dispute and that the
Application filed by Cameroon on 29 March 1994, as amended by the
Additional Application of 6 June 1994, is admissible,

Having regard to the Order dated 30 June 1998, whereby the Court
fixed 31 March 1999 as the time-limit for the filing of the Counter-
Memorial of Nigeria:
LAND AND MARITIME BOUNDARY (3 IIT 99) 25

Whereas, by a letter dated 23 February 1999, the Agent of Nigeria,
referring to the request for interpretation of the Judgment of the Court of
11 June 1998 submitted by his Government on 28 October 1998, stated that:

“Nigeria [would] not be in a position to complete its Counter-
Memorial until it [knew] the outcome of its request for interpreta-
tion as it [did] not at present know the scope of the case it [had] to
answer on State Responsibility” ;

and whereas he accordingly concluded that:

“In these circumstances Nigeria has no choice but to ask Cam-
eroon to consent to an extension of time for delivery of its Counter-
Memorial sufficient to enable Nigeria to complete the preparation of
its Counter-Memorial once judgment in the request for interpreta-
tion has been given.

Until the terms of the judgment are known Nigeria finds it diffi-
cult to predict the length of extension of time it will require in order
to complete its Counter-Memorial. In the first instance therefore
Nigeria requests an extension of two months from 31 March 1999
for delivery of its Counter-Memorial but reserves its position regard-
ing the making of a further request for an extension, depending on
the timing and outcome of the Court’s judgment in the request for
interpretation” ;

and whereas, on receipt of this letter, the Deputy-Registrar, in accor-
dance with Article 44, paragraph 3, of the Rules of Court, transmitted a
copy thereof to the Agent of Cameroon;

Whereas, by a letter dated 24 February 1999, the Agent of Cameroon
stated the following:

“In making [its request for interpretation of the Court’s Judgment
of 11 June 1998], Nigeria introduced a new case, which accordingly
cannot have any procedural consequences for the examination of the
Application submitted by Cameroon now almost five years ago”;

whereas he added that the Court,

“if it were to accede to Nigeria’s request, . . . would create a
precedent which in future would encourage parties, whenever they
wished to avoid or delay the Court’s decision in a case, to make
requests for interpretation or revision of judgments on preliminary
objections”;

whereas he recalled that Cameroon “[had] had occasion to point out
several times in the past that its dispute with Nigeria call[ed] for a rapid
decision”; and whereas he concluded his letter by stating that his
Government “[was] resolutely opposed to the granting of Nigeria’s
request”:
LAND AND MARITIME BOUNDARY (3 III 99) 26

Whereas a request for interpretation submitted pursuant to Article 60
of the Statute of the Court and to Article 98 of its Rules constitutes a new
case; whereas such a request cannot in itself suffice to justify the exten-
sion of a time-limit;

Whereas, however, given the circumstances of the case, the Court con-
siders that it should grant Nigeria an extension of the time-limit for the
filing of its Counter-Memorial,

Extends to 31 May 1999 the time-limit for the filing of the Counter-
Memorial of Nigeria; and
Reserves the subsequent procedure for further decision.

Done in French and in English, the French text being authoritative, at
the Peace Palace, The Hague, this third day of March, one thousand nine
hundred and ninety-nine, in three copies, one of which will be placed in
the archives of the Court and the others transmitted to the Government
of the Republic of Cameroon and the Government of the Federal Repub-
lic of Nigeria, respectively.

(Signed) Stephen M. SCHWEBEL,
President.

(Signed) Eduardo VALENCIA-OSPINA,
Registrar.


COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE A DES ACTIONS ARMEES
FRONTALIERES ET TRANSFRONTALIERES

(NICARAGUA c. COSTA RICA)

ORDONNANCE DU 21 JUILLET 1987

1987

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING BORDER AND
TRANSBORDER ARMED ACTIONS

(NICARAGUA v. COSTA RICA)

ORDER OF 21 JULY 1987
Mode officiel de citation :

Actions armées frontalières et transfrontaliéres
(Nicaragua c. Costa Rica), ordonnance du 21 juillet 1987,
C.LJ. Recueil 1987, p. 179.

Official citation :

Border and Transborder Armed Actions
(Nicaragua v. Costa Rica), Order of 21 July 1987,
LCJ. Reports 1987, p. 179.

N° de vente: 534
Sales number

179

INTERNATIONAL COURT OF JUSTICE
YEAR 1987

21 July 1987

CASE CONCERNING BORDER AND
TRANSBORDER ARMED ACTIONS

(NICARAGUA v. COSTA RICA)

ORDER

The Vice-President of the International Court of Justice,

Having regard to Article 48 of the Statute of the Court and to Articles 13
and 44 of the Rules of Court,

Having regard to the Application filed by the Republic of Nicaragua in
the Registry of the Court on 28 July 1986, instituting proceedings against
the Republic of Costa Rica,

Having regard to the Order made by the Court on 21 October 1986
fixing 21 July 1987 as time-limit for the filing of the Memorial of
Nicaragua and 21 April 1988 as time-limit for the filing of the Counter-
Memorial of Costa Rica,

Whereas by a telex message received in the Registry on 17 July 1987 the
Agent of Nicaragua requested that the time-limit for the filing of the
Memorial be extended, for the reasons therein stated;

Whereas the Agent of Costa Rica, having immediately been notified of
the request of Nicaragua, addressed a letter to the Registrar dated 21 July
1987 in which he expressed certain reservations as to the attitude of the
Government of Nicaragua, but indicated nevertheless that the Govern-
ment of Costa Rica did not oppose the extension of the time-limit
requested;

Extends to 10 August 1987 the time-limit for the filing of the Memorial
of the Republic of Nicaragua;

1987
21 July
General List
No. 73
ARMED ACTIONS (ORDER 21 VII 87) 180

Extends to 2 June 1988 the time-limit for the filing of the Counter-
Memorial of the Republic of Costa Rica;

And reserves the subsequent procedure for further decision.

Done in French and in English, the French text being authoritative, at
the Peace Palace, The Hague, this twenty-first day of July, one thousand
nine hundred and eighty-seven, in three copies, of which one will be
placed in the archives of the Court, and the others transmitted to the
Government of the Republic of Nicaragua, and to the Government of the
Republic of Costa Rica, respectively.

(Signed) Kéba MBAYE,
Vice-President,

(Signed) Eduardo VALENCIA-OSPINA,
Registrar.