100

SEPARATE OPINION OF JUDGE BULA-BULA

[Translation]

Establishment of the facts, mediate and immedia'e Decolonization —
Right of peoples to self-determination — Sovereign equality of States — Inter-
ference in domestic affairs — Armed aggression — International humanitarian
law — Immunities of a Minister for Foreign Affairs — Immunity and impu-
nity — Subject-matter and persistence of the dispute Admissibility of an
application -— Claim to universal jurisdiction — Non ultra petita rule — Inter-

national customary law — Exception — Opinio juris and international prac-
tice Internationally wrongful act — African conception — A people’s dig-
nity — International responsibility — Moral injury — Reparation — Good
faith — Development of international law — The international community —

Lessons of international law.

1. Given that the landmark Judgment of 14 February 2002 declares the
law and settles the dispute between the Democratic Republic of the Congo
(hereinafter “the Congo”) and the Kingdom of Belgium (hereinafter “Bel-
gium”); that this judicial decision is without precedent in the field and
codifies and develops contemporary international law; and that the Court
has thus imposed the force of law upon the law of force within the “inter-
national community” which it has been at pains to establish over the years:
I fully and unreservedly support the entire operativ2 part of the Judgment.

2. I would nonetheless like to emphasize here other grounds of fact and
law which seem to me to supplement and strengthen this collective deci-
sion. My opinion is also justified by the particular duty incumbent upon
me in my capacity as judge ad hoc. An “opinion” does not necessarily
obey rigid rules. Doubtless it must not address questions which bear no
relation to any part of the Judgment. Subject to this, the traditional prac-
tice would seem to be characterized by its freedom. Not only does the
length of opinions sometimes exceed that of the Judgment itself!, but also

' Compare the Judgment of 5 February 1970 in the case corcerning the Barcelona Trac-
tion, Light and Power Company, Limited (49 pages) with the opinions of Judges Ammoun
(48 pages), Tanaka (47 pages), Fitzmaurice (50 pages) and Jessup (61 pages); the Advisory
Opinion of 21 June 1971 in the South West Africa case (43 pages) with the opinion of
Judge Fitzmaurice (103 pages); the Judgment of 27 June 1986 in the case concerning Mili-
tary and Paramilitary Activities in and against Nicaragua (N.caragua v, United States of
America) (137 pages), with the opinion of Judge Schwebel (269 pages); the Judgment of
16 June 1992 in the case concerning Certain Phosphate Lands in Nauru ( Nauru v. Australia)
(30 pages) with the opinion of Judge Shahabuddeen (31 pages); the Judgment of 3 June 1993
in the case concerning Maritime Delimitation in the Area between Greenland and Jan Mayen
(Denmark v. Norway} (41 pages) with the opinion of Judge Shahabuddeen (81 pages); the
Judgment of 24 February 1982 in the case concerning the Contizental Shelf ( Tunisial Libyan
Arab Jamahiriya} (77 pages) with the opinion of Judge Oda ( 21 pages); the Judgment of
12 December 1996 in the case concerning Oùl Platforms (Islam’c Republic of Iran v. United
States of America} (19 pages) with the opinion of Judge Shahi-buddeen (20 pages).

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ARREST WARRANT (SEP. OP. BULA-BULA) 101

they can be written with a variety of aims in view“. Thus it is open to me,
without carrying matters to excess, to develop my argument to a reason-
able extent. On the one hand, it seems to me that :he summary version of
the facts presented by the opposing Parties reveals only the visible face of
the iceberg. It permits a superficial reading of a case forming part of a far
wider dispute. On the other, it was in part the immediate circumstances as
thus presented to it which led the Court not to examine in depth the fun-
damental issue of the independence of the Congo, Belgium’s former and
sole colony, vis-a-vis the latter. The reference to sovereign equality, suc-
cessively belaboured both at the provisional measures phase and then at
the merits stage by two of Congo’s counsel, bott members of the Gov-
ernment, is a call to examine the matter in depth. It is repeated in the final
submissions. And it surely underlies the choice of judges ad hoc, first by
the Respondent, then by the Applicant!

3. In doctrine, judges ad hoc have the particular duty of contributing
to an objective and impartial establishment of the facts and of presenting
the conception of the law held by each party to the dispute*. In Judge
Lauterpacht’s view, an ad hoc judge has an obligation to

“endeavour to ensure that, so far as is reasonable, every relevant
argument in favour of the party that has appointed him has been
fully appreciated in the course of collegial consideration and, ulti-
mately, is reflected — though not necessarily accepted — in any
separate or dissenting opinion that he may write”.

4. Fulfilment of such an obligation does not in any sense assimilate a
judge ad hoc to a representative of a State*. Further, his is in no sense a
national representation but a “national presence” ‘, which is, moreover, a
permanent one for the permanent members of the Security Council.
J. G. Merrills takes the view that the institution of judge ad hoc “provides
an important link between the parties and the Court”. In these circum-
stances, “the institution of the ad hoc judge reflecting, as it does, ‘the inci-
dence of metajuridical considerations in the functioning of international
adjudication’ is perhaps still too useful to be dispensed with”?.

5. Naturally I am in agreement, in my capacity as judge ad hoc, with

? See on this point, Charles Rousseau, Droit international public, Vol. V. “Les rapports
conflictuels”, 1983, p. 463.

3 Nguyen Quoc Dinh, Patrick Daillier and Alain Pellet, Droit international public,
1999, p. 855. para. 541: E. McWhinney, Les Nations Unies et la formation du droit, 1986,
p. 150.

+ Judge Lauterpacht, separate opinion appended to the Order of 17 December 1997 in
the case concerning Application of the Convention on the Prevention and Punishment of
the Crime of Genocide (Croatia v. Yugoslavia). C.J. Reports 1997, p. 278.

5 See the communication of E. Lauterpacht, “The Role of ad hoc Judges”, in Increasing
the Effectiveness of the International Court of Justice, 1997, p. 374.

6 See the commentary of Krzystof Skubiszewski, ibid., p. 278.

7 J. G. Merrills, International Dispute Settlement, 3rd ed., 1998, p. 139.

102
ARREST WARRANT (SEP. OP. BULA-BULA) 102

“at least the basic stance of the appointing State (jurisdiction, admissibil-
ity, fundamentals of the merits)” *. Otherwise, how could I have accepted
the proposed appointment? My consent of course means that “there is a
certain understanding . . . for the case that has been put in front of
him”?. Moreover, it seemed to me helpful, as judge ad hoc, to give an
opinion in both of the phases undergone by this case'®, thus, in my view,
making the reasoning more readily understandable.

6. Covering a great deal of ground, and out of regard for the Court
and its working methods, I will confine myself to recalling very concisely,
from Belgian, Congolese, transnational and international sources, certain
factual data, of both indirect and direct relevance, which make up the
background to the case concerning the Arrest Warrant of 11 April 2000.
Through these brief references, I seek both to exorcize the past and to
foster between the Applicant and the Respondent, States intimately
linked by history, effective implementation of th: principle of sovereign
equality between States.

7. Addressing the Congolese people at Kinshasa on 30 June 1991,
forty-first anniversary of the country’s independence, the Belgian Prime
Minister declared:

“You are an important part of our past. Special, particularly
strong links unite our two countries. Links based on a relationship
marked by pain, by promise, by prudence .. What unites us — you
know it, we know it — is reflected in the external mirror constituted
by our good or our bad conscience, the boundary between good and
evil, between good intentions and blunders . . . I wish to say to the
Congolese people, wheresoever they may be on this vast territory,
that we are aware of their pain and of the suffering they have
endured.”

Rarely have such views been publicly expressed by the head of the gov-
ernment of a former colonial power four decades after decolonization.
Wrongly or rightly, it is perhaps in the circumstances of a very particular
act of decolonization, whose consequences are still with us today, includ-
ing in the present case, that the justification for these views is to be
sought.

8. Rereading the account of the decolonization of the Congo!!

8 See the commentary of Krzystof Skubiszewski, /ncreasing the Effectiveness of the
International Court of Justice, loc. cit., p. 378.

° See the contribution of Hugh W. A. Thirlway, ibid., p. 293.

19 According to A. Pellet, ibid., “judges ad hoc are very appreciated if they express their
opinions during the various phases of the case”, p. 395.

Il The tragic events which marked the decolonization of the Congo led the United
Nations to involve the Court. See S. Rosenne, “La Cour nternationale de Justice en
1961”, Revue générale de droit international public, 3rd series, Vol. XXXIIT, October-
December 1962, No. 4. p. 703.

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ARREST WARRANT (SEP. OP. BULA-BULA) 103

prepared by one of the 40 or so political reconciliation conferences !?,
we learn the following:

“Following his victory in the legislative elections, Patrice Emery
Lumumba, after consulting the main parties and political personali-
ties at that time, formed a Government.

On 23 June 1960, he obtained the confidence of Parliament, even
before the latter’s election of Kasavubu as Head of State, thanks to
the Lumumba Party’s majority.

Less than a week on from 30 June 1960, on 4 July, the army and
police mutinied. Following the provocative statement by General
Janssens to the military — ‘after independence equals before inde-
pendence’ — the disturbances worsened. Katanga proclaimed its
secession on 11 July 1960 and South Kasai its autonomy on
8 August 1960. Territorial and military administration collapsed and
financial resourced dried up. The people’s sovereignty was under
threat.

Despite the co-operation agreements signed between the Kingdom
of Belgium and the young Republic on 29 June 1960, the crisis was
aggravated by the untimely intervention of Belgian troops. Faced
with this situation, on 15 July the Head of State Kasavubu, guaran-
tor of territorial integrity, and the Prime Minister and Minister of
Defence, Lumumba, jointly signed a telegram appealing for troops

from the United Nations in New York ... as a result of Belgian
diplomatic manœuvres, the United Nations hesitated to
intervene . . 13

9. Rightly or wrongly, the report also cites Belgium for its responsibi-
lity in the removal from office of Prime Minister :umumba:

“After our country had achieved independence . . . President
Kasavubu and Prime Minister Lumumba worked harmoniously
together. They had even toured Elisabethville together. I believe that
the Belgians were against this harmony. So they provoked this divi-
sive tension ... I telephoned Lumumba to tell him about it. He then
contacted President Kasavubu. I thought they had taken precau-
tions against those manœuvres. I was surprised to hear on the radio
around 5 September 1960 of the dismissal of Lumumba and on the
same day of that of Kasavubu by Lumumba.” "4

10. According to the report: “The Belgian ambe ssador in Leopoldville

'2 Known as the “Sovereign National Conference”, the forum was held from Novem-
ber 1991 to December 1992. It was organized by the then C-overnment, under pressure
from its principal partners, including Belgium, and financed by them.

13 Sovereign National Conference, Report of the Commission on Murders and Viola-
tions of Human Rights, pp. 18-19.

'4 Jbid., statement of Mr. Cléophas Kamitatu, then Provinoal President of Leopoldville
(Kinshasa).

104

ARREST WARRANT (SEP. OP. BULA-BULA) 104

was behind the creation of the autonomous State of South Kasai. By
8 August 1960, it was a fait accompli.” !$ In regard to the murder of
Prime Minister Lumumba and his companions, the report inter alia
states: “On 16 January 1961 there was a meeting £t Ndjili airport. Those
present included Messrs. Nendaka, Damien Kandolo, Ferdinand Kazadi,
Lahaye and the Sabena representatives.” A witness, Mr. Gabriel Kitenge,
stated the following:

“When the aircraft arrived, he recognized only one of the three
packages, Mr. Lumumba, who was covered in bruises and trying to
cling to a wall. All three were unloaded alive at Elisabethville. Soon
afterwards they were taken to the villa Brouwez a few kilometres
from the airport, where they had a talk with Messrs. Godefroid
Munongo and Jean-Baptiste Kibwe, who were together with some
white soldiers .. .

They were executed in the bush a kilometre from the villa. Under
the command of a white officer, the black soldiers shot Okito first
and finished off with Lumumba.

Those present were: Messrs. Munongo, Kitenge, Sapwe, Muke,
four Belgians... On the orders of a senior Belgian police officer, the
three prisoners were shot one after the other and thrown into a com-
mon grave which had already been dug.” !$

11. The conference report concluded with a proposal for “the opening
of proceedings”. It stated:

“The murders of Lumumba, Mpolo and Okito, although not fall-
ing within the categories currently defined by the United Nations,
should be assimilated to crimes against humanity, for these were acts
of persecution and murder for political reasons.”

This proposal may thus stimulate reflection on the part of writers who
note uncertainties in the notion of crime against humanity !’. The confer-
ence established responsibility on the part of a number of persons both
natural and legal, domestic and foreign. Of whom, for purposes of this
case it suffices to note the following:

“The Government of the Kingdom of Belgium as protecting power
for having failed to ensure bilateral security for an independence
deliberately rushed through by it in a perfunctory manner. The
ambiguous nature of the Basic Law is self-evicent. Despite the agree-
ment of 29 June 1960, Belgium did not provid: the lawful authorities

'S Op cit. footnote 13 supra, p. 26.

16 Jbid., p. 40.

17 See G. Abi Saab, “International Criminal Tribunals and the Development of Inter-
national Humanitarian and Human Rights Law”, Liber Articorum Judge Mohammed
Bedjaoui, 1999, p. 651. See also E. Roucounas, “Time Limitat ons for Claims and Actions
under International Law”, ibid, pp. 223-240.

105
ARREST WARRANT (SEP. OP. BULA-BULA) 105

established by it in the Congo with the military and technical assist-
ance which would have enabled the worst to be avoided.

The support of the Belgian Government for the secession of
Katanga through its official recognition as an independent State,
with the opening of a Consulate-General, represents an offence
against the rights of the Congolese people. Following the interven-
tion of the Belgian Minister for African Affairs, Mr. Harold Aspre-
mont, President Tshombe, on 16 January 1961, accepted transfer of
the packages.” !$

Reacting, as it were, in advance to the respondert State, the conference
decided to:

“Alert international opinion so that the very persons who teach us
respect for human rights and the rights of the citizen contained in
the United Nations Declaration may not in future repeat the same
mistakes, which do not sit well with world osinion.” !?

12. Six years earlier, the transnational group known as “The Perma-
nent Court of the Peoples [tribunal permanent des peuples]”, called upon
to deliver a ruling on the case of Zaire (Congo) stated:

“When the right of a people freely to pursue its economic, social
and cultural development is treated with con:empt by a State repre-
sented by collaborationist oligarchies, hostages or agents of foreign
powers, installed or maintained in place by its will, that State cannot
constitute a cover for the extinction of a people’s right to self-deter-
mination.” 2

Thus that “court” held:

“In such a case, we are faced with a phenomenon essentially simi-
lar to the colonial situation opposing an enslaved people to a foreign
power, with the government authorities playing the role of overseer,
seemingly differing little in their functions from the former colonial
agents (viceroys, governors, préfets, etc.) or local satraps in the
service of the metropole.”?!

The jury further stated:

“The violation of the right of the Zairian people perpetrated by an
alienated State raises the problem of the responsibility of other

18 Sovereign National Conference. Report of the Commission on Murders and Viola-
tions of Human Rights, pp. 55-56.

19 Jbid.

20 See Judgment of Permanent Court of the Peoples, Rotterdam, 20 September 1982,
p. 29.

2! Tid.

106
ARREST WARRANT (SEP. OP. BULA-BULA) 106

governments, and in particular of those who defend the interests for
whose benefit the Zairian people are deprived of their sovereignty.” 77

The jury thus established, inter alia, “the responsibility . . . of Bel-
gium” #, The operative part of the judgment finds that a number of the
charges “constitute crimes against the Zairian peosle” 2, Examining inter
alia the legal force of the decisions of this “court of public opinion”,
some writers have concluded that “such a condemnation is a first step
towards reparation’ ?>.

13. More recently, the United Nations Commission responsible for
investigating the illegal exploitation of the natural resources of the Congo
cited, among others, Belgian companies in occupied territories. Could it
not be that the purported “neutrality” of the local Belgian authorities in
the face of the armed aggression ? suffered by the Congo since 2 August
1998 is being undermined by the participation of private groups or Bel-
gian parastatal entities in the looting of the natural resources of the
Congo, as established by a United Nations investigation?’? All the more
so in that the investigation has established a lirk between that illegal
exploitation and the continuation of the war?®.

14. The immediate circumstances which gave rise to the issue of the
warrant were amply debated by the Parties. It would be pointless to go
over them again. Nonetheless, there are pertinent questions raised by this
case. Why is it that virtually all of those charged before the Belgian
courts, including Mr. Abdulaye Yerodia Ndomba ii, belong essentially to
a political tendency that was ousted in 1960 and, thanks to a variety of
circumstances, regained power in 1997? Why does the respondent State
not exercise its territorial jurisdiction by prosecuting Belgian companies
established on its territory suspected of illegal activities in areas of
foreign occupation within the Congo?

15. These are some of the facts emerging from « rapid survey covering
more than four decades whereby the respective conducts of the Parties to
the dispute before us may be judged. They should be compared with Bel-

22 Op. cit. footnote 20 supra, p. 30.

23 Jbid., p. 32.

#4 Thid., p. 34

= B. H. Weston, R. A. Falk and A. d’Amato, /nternaticnal Law and World Order,
2nd ed. p. 1286.

= Within the meaning of Article 51 of the United Nations Charter, as further defined
by Article 3 of resolution 3314 of 14 December 1974 and confirmed as a rule of customary
law by the Judgment of the Court of 27 June 1986 in Militar) and Paramilitary Activities
in and against Nicaragua (Nicaragua v. United States of America), para. 195.

77 See Report of the Panel of Experts on the Illegal Exploitation of Natural Resources
and Other Forms of Wealth of the Democratic Republic of the Congo. Those cited include
the following Belgian companies: Cogem, Muka-Enterprise and Transintra for cassiter-
ite; Chimie Pharmacie, Cogea, Tradement, Finiming Ltd., Cicle International, Specialty
Metal, for coltan; Soger, Sogem, Cogecom, Tradement, MDW, for cassiterite and coltan.
Source: http :/Avww.un.org/News/dh/latest/drcongo.htm.

8 See ibid., paras. 109 er seg. “Links between the exploitat on of natural resources and
the continuation of the conflict.”

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ARREST WARRANT (SEP. OP. BULA-BULA) 107

gium’s closing speech. Even as the respondent State brings its peroration
to a glowing close with an invocation of the democracy and human rights
which purportedly guided its conduct’, at the sarne time it reopens one
of the most shameful pages in the history of decolcnization. In the 1960s,
it appeared to grant the Congo its independence while, with the right
hand, it was at the same time virtually ensuring the destabilization of that
sovereignty and of the new-born Congolese democracy. The author
Joseph Ki-Zerbo was able to write that, in the Congo, “independence
was thrown like a bone to the natives in order the better to exploit their
divisions, . . . the model for poisoned grants of independence” *.

16. One of the points hotly debated by the Parties is Mr. Ndombasi’s
current loss of any governmental post. The Respondent relied on this fact
in order to secure dismissal of the case by the Cou-t, while the Applicant
contended that it has no effect on the proceedings.

17. In my view, the argument deriving from the loss (and not the
absence) of any current governmental function on Mr. Ndombasi’s part
is morally indecent. But the Court does not decide disputes on the basis
of international morality, so dear to Nicolas Polit:s*'. Legally, however,
this argument should rebound against the Respondent, who has raised a
mere corner of the veil over the cause of this situation, while exploiting its
effects — and only those effects — to the full. It is iuridically improper to
seek to ground one’s principal argument on a serious violation of inter-
national law (exercise of a right of censorship over the composition of the
Congolese Government amounts to interference in the internal affairs of
another State), which aggravates the original infringement of the criminal
immunities and inviolability of the person of the Minister for Foreign
Affairs. The Applicant’s written pleadings and oral arguments (during
both the “provisional” and the merits phase) deiounced this fact and
were not effectively rebutted by the Respondent. The Court was witness
to this dismissal of a representative of the Congolese State, which occurred
not only after the matter had been referred to the Court (17 Octo-
ber 2000), but, what is more, the demotion took place the day the hear-
ings opened in the provisional phase (20 November 2000), and Mr. Ndom-
basi left the Government altogether not long afterwards (14 April 2001).
Since that time his reappointment, although constantly announced in the
press, has been resisted, apparently because of unlawful pressure exerted
by the Respondent.

18. It is the duty of the Court, as guarantor of the integrity of inter-
national law#, to sanction this doubly unlawful conduct on the part of
the Respondent, denounced by the Applicant in its final submissions.

29 See Belgium’s oral argument, CR 2001/11, pp. 17-18, paras. 8, 9 and 11.

30 Joseph Ki-Zerbo, Preface to Ahamadou A. Dicko’s Jour.1al d'une défaite. Autour du
référendum du 28 Septembre 1958 en Afrique noire, 1992, p. XIV.

# Nicolas Politis, La morale internationale, 1943, p. 179.

32 Corfu Channel, C.J. Reports 1949, p. 35.

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ARREST WARRANT (SEP. OP. BULA-BULA) 108

19. There are two possible ways in which the notion of “organ respon-
sible for the integrity of international law” is generally understood. For
some, it involves a “duty to preserve the integrity cf law as a discipline —
distinct from considerations of politics, morality, expediency and so
on”, In my view, it ought also to mean that the Court is under an obli-
gation to ensure respect for international law in its totality. As regards
the specific nature of the task of a judicial organ by comparison with that
of a political organ, such as the Security Council, there is already plenti-
ful case law on this point.

20. [also share Manfred Lachs’s view that “the Court is the guardian
of legality for the international community as a whole” *.

21. It is difficult to see how the Court can focus its gaze so particularly
on Mr. Ndombasi’s current loss of government office while closing its
eyes to the obvious reasons for that situation in the light of events which
have been sufficiently argued before it right from the start of the provi-
sional measures phase up to the closing of the merits phase. This is par-
ticularly so in that the violation of the immunities in question is simply
evidence of a general disregard for the principle of sovereign equality of
a State decolonized by Belgium. On this point the Court made no mis-
take. More than once in its reasoning, in the politest of terms, it criticized
the Respondent’s unlawful conduct.

22. Quite aside from the attention devoted by the Court to the argu-
ment concerning the loss of official duties, made so much of by the
author of fundamentally unlawful conduct, there is the matter of the
non-existent legal effect which the Respondent seeks to infer from
Mr. Ndombasi’s new situation. From the moment the immunities of the
Minister for Foreign Affairs were breached, the viclation of international
law was complete. And the Congo began to insist -— and continued to do
so until the close of argument — that the Court should find that its rights
have been violated, and that it be granted reparation accordingly. The
Congo has never believed, and has never asserted, that one of its citizens
has been the victim of a Belgian wrongful act. The Applicant has always
been convinced, and has always declared, that Belgium was acting against
it as a sovereign entity wishing to organize itself freely, including in the
conduct of its foreign relations by a Minister of ns choosing. But it has
suffered, and continues to suffer, de facto interference resulting from the
issue, maintenance and circulation of the warrant, and from Belgium’s
attempts to give greater effect to that warrant.

33 See H. Mendelson, “Formation of International Law and the Observational Stand-
point”, in connection with “The Formation of Rules of Customary (General) Interna-
tional Law”, International Law Association, Report of the Si:ty-Third Conference, War-
saw, August 21st to August 27th 1988, p. 944.

# See M. Lachs, separate opinion appended to the Order of 14 April 1992 in the case
concerning Questions of Interpretation and Application of the 1971 Montreal Convention
arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United King-
dom), LC.J. Reports 1992, p. 26.

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ARREST WARRANT (SEP. OP. BULA-EULA) 109

23. The relevance of Mr. Ndombasi’s loss of governmental responsi-
bilities lies in the glaring light it throws on Belgium’s flagrant meddling in
the Congo’s internal affairs. Further evidence of this can be found in the
identity of certain Congolese complainants, meribers of a Congolese
opposition political party, whose names the Respondent obstinately
refused to reveal to the Court for so-called “security” reasons. Whichever
way you look at it, this case clearly demonstrates t1e Respondent’s inter-
ference in the Applicant’s internal affairs. And, ultimately, the serious
disregard for the sovereign equality of States underlying the violation of
the immunities of the Minister for Foreign Affairs. The loss of govern-
ment office is of no relevance in relation to Mr. Ndombasi’s personal
odyssey; he, strangely, unlike other accused Congclese high officials, and
other foreign authorities, had this unprecedented ‘warrant issued against
him as Minister for Foreign Affairs, charged with maintaining permanent
contact with the Congo’s principal foreign partner.

24. So long as there shall exist the authentic, independent State of the
Congo, born of decolonization — not to be confused with the fictional
State entity calling itself “The Congo Free State”, borne to the baptismal
font by the powers at Berlin — that debt will continue to exist. This is
not a debt due to one specific incumbent Government — a Government
bound, moreover, to pass on one day like every Government. What is at
stake here is a debt owed to the Congolese people, freely organized in a
sovereign State calling for its dignity to be respected.

25. But dignity has no price. It is one of those intangible assets, on
which it is impossible to put a price in money terms. When a person,
whether legal or natural, gives up his dignity, he loses the essence of his
natural or legal personality. The dignity of the Congolese people, victim
of the neocolonial chaos imposed upon it on the raorrow of decoloniza-
tion, of which the current tragic events largely represent the continued
expression, is a dignity of this kind.

26. The loss of office by one of its authorities could not put an end to
the unlawfulness of the Belgian warrant, any more than it could trans-
form it into a lawful act. To appreciate that the unlawfulness cannot be
extinguished as a result of Mr. A. Yerodia Ndombasi’s loss of govern-
ment office, I give two examples. When a representative of a foreign State

35 According to the Applicant, these are representatives of an opposition party operat-
ing in Brussels! (See verbatim record of the public hearing of 22 November 2000,
CR 2000/34, p. 20.) The Respondent, on the other hand, cites “security reasons” to the
Court (despite the fact that the Court can sit in closed session) in order not to disclose the
identity of the complainants of Congolese nationality (see verbatim record of the public
hearing of 21 November 2000, CR 2000/33, p. 23).

% The 14 colonial powers meeting at Berlin (14 November 1884-26 February 1885)
accorded their endorsement to the colonia! project of King Leopold II called “Congo Free
State”.

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ARREST WARRANT (SEP. OP. BULA-BULA) 110

is killed by the police in a particular country*’, that diplomat ceases by
the very fact of his death to hold office. Can it be claimed that the unlaw-
fulness of the act was extinguished by the death of the representative of
the foreign State? It seems to me that the unlawfulness persists. Let us
take another case. Suppose the diplomat was merely seriously wounded.
After being evacuated to his sending country, he is declared unfit for dip-
lomatic service. Can it be said that the unlawful act has disappeared,
since the victim of the assault no longer represents. his country abroad?
I think not.

27. The question of the lack of object of the Congolese claim could
have arisen if Belgium had adopted a diametrically opposite attitude, by
showing respect for the Congo’s independence. It should have admitted
its violation of international law and then cancelled the warrant and
hastened to request the foreign countries to which it had circulated the
instrument to discharge it. It would then have informed the Congo of
these various measures, which would have been taniamount to an expres-
sion of regret and an apology. Nothing of the sort occurred. The Congo’s
claim thus retained its object in fuil.

28. The Congo admits that “these requests differ to some extent from
those formulated in its Application instituting proceedings”, given
Mr. Ndombasi’s new situation. But it adds that, “since they are based on
the same facts as those referred to in the Application, this cannot pose
any problem’*®. The Court has correctly confirmed its established prac-
tice of according the Parties the freedom to refine their claim between the
date of filing of the Application instituting proceedings and the presenta-
tion of the final submissions at the close of oral argument. Thus there is
no basis for criticism here, since these subsequent changes are based on
the same facts as those already cited in the initial claim.

29. Moreover, in accordance with the Court’s settled jurisprudence,
the admissibility of the Congo’s Application is to be assessed on “the
only relevant date”, which is the date of its filing in the Registry of the
Court. It is irrelevant whether the Respondent might subsequently have
acted so as to empty the Application of its substance. The claim was
already filed as such on 17 October 2000. Furthermore, as its substance is
based on the violation of the Congo’s sovereignty by the issue of the war-
rant, which requires reparation, that substance remains intact.

30. The Respondent’s attempt to transform the international judicial

#7 This happened in Lomé (Togo) in October/November 1965, where a German diplo-
mat was killed by policemen at a roadblock in the early evening. The incident caused a
serious deterioration in relations between Germany and Togo.

38 Memorial of the Democratic Republic of the Congo, p. 6. para. 8.

+ See the case concerning Questions of Interpretation anc’ Application of the 1971
Montreal Convention arising front the Aerial Incident at Lockerbie (Libyan Arab Jama-
hiriya v. United States of America), C.J. Reports 1998, p. 150, para. 43.

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ARREST WARRANT (SEP. OP. BULA-RULA) 11

proceedings instituted and pursued by the Congo in its own right, follow-
ing the violation of the criminal immunities and inviolability of one of its
highest representatives, into the mere exercise of diplomatic protection of
one of its nationals deserves a polite dismissal calling for no further com-
ment on my part.

31. Did the Congo’s final submissions preclude the Court from ruling
on the question of so-called universal jurisdiction”

32. It is true that the Congo’s “final submissions” make no mention
whatever of this question. They seek to have the Court enforce the “rule
of international customary law concerning the absolute inviolability and
immunity from criminal process of incumbent foreign ministers: in so
doing [the Respondent] violated the principle of sovereign equality among
States” 4.

33. The issue here is one of judicial procedure. Did the Applicant’s
spectacular change of position on this point require the Court not to rule
on so-called universal jurisdiction in the operative part of its Judgment?
Most definitely. It would have been criticized for ruling ultra petita. That
is not the same as taking no collective position on the point. In any event,
in so far as the Judgment’s reasoning failed to address this question, the
opinions would do so.

34. Moreover, of the 64 pages of the Congo’s Memorial, 15 are
devoted to this question!. At the oral proceedings, the Congo stated,
through its counsel, Professor Rigaux, that “tha: [was] an area of no
interest to [it]”, even though it had raised it in its original Application *.
But, battle-weary, or for reasons of litigation strategy, it allowed that the
Court might examine the

“issues of international law raised by universal jurisdiction, but it will
not do so at the request of the Applicant: it will, in a sense, have the
issue forced upon it as a result of the defence strategy adopted by the
Respondent, since the Respondent appears to contend not only that
it is lawful to exercise such jurisdiction but that it is moreover
obligatory to do so, and therefore that the exercise of such jurisdic-
tion can represent a valid counterweight to the observance of immu-
nities”.
And counsel concludes:

“I accordingly believe that the Court will in any event be obliged
to adjudicate on certain aspects of universal jurisdiction, but I would
stress that this is not at the request of the Applicant, which is not
directly interested in the issue.” 4

4 See CR 2001/10, p. 26; emphasis added.

41 Memorial of the Democratic Republic of the Congo, pp. 47-61.
42 See CR 2001/10, p. 11.

4 Jbid.; emphasis added.

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ARREST WARRANT (SEP. OP. BULA-BULA) 112

And Counsel then refers to its forthcoming submissions. For her part, Pro-
fessor Chemillier-Gendreau, another of the Congo’s counsel, stated that:

“the extension of such jurisdiction to a case where the person con-
cerned is not within the territory has at present no confirmed legal
basis, which is very different from saying, as Professor David would
have us say, that we no longer challenge universal jurisdiction
in absentia”.

Congo’s counsel continued:

“In the light of this case, Belgium would like the Court, by finding
in favour of a universal jurisdiction which possesses those broader
bounds, to intervene in the lawmaking process and thereby endorse
the validity of its policy.”

She concluded:

“For our part, we contend that the point to which the Court
should confine its ruling in regard to universal jurisdiction is, as Pro-
fessor Rigaux has just said, its use where it infringes an immunity
from jurisdiction of an incumbent Minister for Foreign Affairs. And
we then request the Court to declare that its use in these circum-
stances, as embodied in Belgium’s action, is contrary to international
law.” #4

35. For its part, Belgium basically founded its defence strategy on so-
called universal jurisdiction, upon which its controversial statute and dis-
puted warrant are purportedly based. But, since the Congo ignored the
issue of such purported jurisdiction in its final submissions, Belgium
accordingly argued that the Court’s jurisdiction was thus limited, pursu-
ant to the non ultra petita rule, solely to those points in dispute appearing
in the final submissions. The Respondent cited the Court’s jurispru-
dence**: “It is the duty of the Court not only to reply to the questions as
stated in the final submissions of the parties, bu: also to abstain from
deciding points not included in those submissions.”

36. In its oral argument, the Respondent also stated that it was

“reluctant, not because it has doubts as to the legality of its position
or the soundness of its arguments, but rather i: would have preferred
the accusations against Mr. Yerodia Ndombasi to be dealt with by

44 See CR 2001/10, p. 17; emphasis added.

45 Case concerning Corfu Channel, Assessment of Amount of Compensation, Judgment,
LCJ. Reports 1949, p. 249: case concerning Request for Interpretation of the Judgment of
20 November 1950 in the Asylum Case, Judgment, 1 C.J. Reports 1950, p. 402.

46 Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case.
Judgment, L.C.J. Reports 1950, p. 402: Counter-Memoria of Belgium. paras. 0.25,
2.74, 2.79, 2.81, 10.2.

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ARREST WARRANT (SEP. OP. BULA-BULA) 113

the competent authorities in the Democratic Republic of the
Congo”.

It also asserted that “the principles of universal jurisdiction and the
absence of immunity in the case of allegations cf serious breaches of
international humanitarian law are well-founded in the law . . .”*.

37. In my view, this is a major point of dispute between the Parties
which the Court could decide were it not for the non ultra petita rule. On
pain of acting wltra vires, the Court could not rule ultra petita. It has
been correctly said that “while the Court is judge of its jurisdiction, it is
not its master”. The examination of points not included in the Congo’s
submissions would have exposed the Court to criticism on this score. In
its final submissions, which were silent on the point, the Congo did not,
however, show itself hostile to the Court’s taking a stance on the point in
its reasoning.

38. For its part, Belgium did not wish the Court to rule on the sub-
stance of its claims as above, which it did, however, consider established
in law:

“In the realm of law as process, the question is, if it ultimately
turns on the discretion of the Court, whether it would be desirable
for the Court to proceed to a judgment on the merits of this case.
Belgium, with the very greatest of respect for the role of the Court in
developing international law, contends that ‘¢ would not. In Bel-
gium’s contention, in the absence of a compelling reason to do so —
and a compelling reason to do so would be a subsisting concrete dis-
pute between two States which requires resolution — for the Court
to proceed to a judgment on the merits of these issues would risk
rigidity in the law just at the point at which States, principally
responsible for the development of the law, are groping towards solu-
tions of their own. In Belgium’s contention, this is not the point at
which rigidity in the law, whether expansive or restrictive, is desir-
able.” 0

39. It goes without saying that it is not for a litigant to tell the Court
how to do its job. The Respondent’s concern regarding the rigidifying
effects of an international judicial decision are unfo anded. Particularly in
international customary law, it is established that international jurispru-
dence does not have the effect of freezing the law for all time. To a cer-
tain extent, the same is true of treaty law, which is itself developed by
States. Finally, to say that States have the prime responsibility for devel-
oping the law is to recognize implicitly the responsibility of other organs

47 CR 2001/8, p. 8.

48 CR 2001/8, p. 31, para. 54.

4 Charles Rousseau, “Les rapports conflictuels”, Droit int2rnational public, Vol. V.
1983, p. 326.

50 CR 2001/8, p. 31, para. 54; emphasis added.

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ARREST WARRANT (SEP. OP. BULA-BULA) 114

or entities, including the Court, for performing other tasks. Legal
scholars are virtually unanimous in acknowledging this.

*

40. In short, how should so-called universal jurisdiction have been
treated, given the discretion shown in the Congo’s final submissions on
this subject and the lack of urgency demonstrated ty Belgium for a ruling
by the Court on the matter? The Congo’s extreme caution was not justi-
fied, since it was seeking to have the dispute coripletely resolved. The
resistance on Belgium’s part was unfounded too. The Respondent, which
was claiming to act under international law, had the opportunity to secure
a positive sanction for a practice which it considered lawful. In my view,
the Court’s primary responsibility was to decide v/hether or not, as the
Applicant claimed, the customary rules concerning the personal immuni-
ties and inviolability from criminal process of the Minister for Foreign
Affairs of the Congo, Mr. Yerodia Ndombasi, had been violated by the
Respondent. And since it was in the name of a so-cz Iled universal jurisdic-
tion, in my opinion ill-conceived and misapplied, that this infringement
took place, the operative part of the Judgment nonetheless implicitly con-
demns Belgium’s claim. But ought not the Court, as guarantor of the
integrity of international law, to have ruled in its reasoning equally clearly
on the validity ratione loci and ratione personae of such manifestly un-
lawful claims on Belgium’s part? Should the reascning of the Judgment
not have contained a relevant passage on one of the currently most con-
troversial questions in international law? Would the Court have been
criticized for stating the law on this point? The fact remains, however,
that the Court, in accord with the Parties, made its choice of “essential
reasons” >! in order to settle the dispute. It has taken the opportunity to
codify and develop the law of immunities. The vexed question of so-called
universal jurisdiction, as presented in this case, has also been settled.

41. There is not the slightest doubt that in custoraary international law
Ministers for Foreign Affairs enjoy immunities and inviolability of their
person in respect of criminal process before national courts. These are
restrictions imposed by international law on the operation of domestic
law. To be more specific, all national law ceases to prevail in the presence
of a higher organ of a foreign State. No sovereign entity can legally exer-
cise authority over any other equally sovereign government as so repre-
sented. That is the current state of positive international law, which a
worldwide survey would certainly confirm.

42. The Respondent has done its utmost to criate confusion in the

mind of the layman. It has been unable to do so in the minds of jurists.

5! See Tanaka, separate opinion appended to the Judgment of 24 July 1964 in the case
concerning Barcelona Traction, Light and Power Company, L'mited, Preliminary Objec-
tions, LC.J. Reports 1964, p. 65.

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ARREST WARRANT (SEP. OP, BULA-BULA) 115

Belgium went to great lengths in seeking to equate immunity with impu-
nity. No lawyer would be so misled as to believe that any proof was
required of proposition that the personal criminal responsibility of the
perpetrator of an alleged offence remains intact, notwithstanding the
immunities protecting him. Nor should we lose sight of the basics of
criminal law, to the point of forgetting the principle of the presumption
of the accused’s innocence! It might even have been thought that the
issue of a Minister’s immunities was a legal commonplace, had “certain
recent developments”*? not been cited. Wrongly. Those who defend
before this Court States’ rights to make law are seeking to transform the
proponents of a certain school of doctrine into leg:slators, having refused
that status to the Court.

43. There is no doubt that the immunities and their corollary, the
inviolability of the person of the Minister in question, have a functional
character. They are based on the importance of a high representative of
another State being able freely to discharge his duties, without let or hin-
drance and under conditions of equality. It is for tiis reason that the pre-
rogatives of the host State in regard, inter alia, to the maintenance of law
and order, defence and justice must be exercised in such a way as to make
it easier for the Minister for Foreign Affairs of another State to do his
Job. As certain writers have stated: “the immunity representatives of for-
eign States enjoy is a function of the nature of their office” ‘3,

44. American doctrine recalls that:

“According to the Restatement, immunity extended to :

(a) the State itself;

(b) its head of State;

(c) its government or any governmental agency;

(d) its head of government;

fe) its foreign minister:

(f) any other public minister, official, or agent of the State with
respect to acts performed in his official capacity if the effect of
exercising jurisdiction would be to enforce a rule of law against
the State.” “4

45. Although the Congo was not able to demonstrate sufficiently,
either in its written pleadings or in oral argument. the extent of the hin-
drance caused by Belgium to the free exercise of his duties by the Congo’s
Minister for Foreign Affairs, I can now give som: examples. Following
the issue of the warrant, the Congolese Minister for Foreign Affairs was
unable to attend ministerial meetings of the ACP States with the Euro-
pean Union in Brussels, since his criminal immunities and inviolability

*2 Counter-Memorial of Belgium. p. 109, para. 3.4.1.

$ Louis Henkin, Richard Crawford Pugh, Oscar Schachter and Hans Smit. International
Law, 1993, p. 1188.

4 Jbid., p. 1191.

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ARREST WARRANT (SEP. OP. BULA-BULA) 116

were not guaranteed. Nor was he able to participate in a meeting held in
Paris to evaluate the Francophone Summit. In October 2000, Mr. Ndom-
basi was unable to undertake an official visit to Tokyo (Japan), as the
Japanese authorities stated that they were unable to give an assurance
that his criminal immunities and inviolability would be guaranteed.

46. In addition to the official visits that he was unable to make, the
Minister was obliged, depending on the itinerary, to travel separately
from his Head of State arriving late at their common destination. This
resulted in increased travel costs, lost baggage, and late arrivals at inter-
national meetings, such as the Maputo Summit following a visit to China.
It is self-evident that, as a result of the official visits that he missed or
carried out under such difficult circumstances, the Minister for Foreign
Affairs was unable to perform his duties normally, whether alongside the
Head of State or otherwise. Finally, a combination of various factors,
particularly his undesirable character in the eyes of certain Belgian authori-
ties, led to his dismissal on 20 November 2000, the date of the opening of
the hearings in the provisional measures phase of “his case.

47. The Respondent contends that there is an exception to the rule of
the immunity and criminal inviolability of the person of the Minister for
Foreign Affairs in the case of “crimes under international law”. It has not
proved that contention. This is no more than an element of its defence
strategy. At times, it sought to circumvent the official status enjoyed at
the relevant time by Mr. Ndombasi by arguing that it was concerned with
him solely in his capacity as a private individual; £t others, it apparently
attempted to invent an exception which simply dovs not exist in custom-
ary international law.

48. The existence of a firmly established rule, obligatorily followed by
the majority of some 190 States from Africa, Asia, America, Europe and
Oceania, whereby an incumbent Minister for Foreign Affairs enjoys
absolute immunity and inviolability from criminal process is not open to
question. The doctrine confirms this°>.

49. Nonetheless, some dissenting voices, apparently moved by certain
moral concerns, claim that these appointed State representatives should
be stripped of such absolute legal protection where they have committed
certain international offences. In many regions of ‘he world, such provi-
sions can only be welcome in countries traditionally victims of crimes
against humanity. From its inception, the Permanent Court of Interna-
tional Justice, our predecessor, recognized that,

55 See inter alia Jean Salmon, Manuel de droit diplomatique. 1994, p. 539: the Minister
for Foreign Affairs enjoys “privileges and immunities analogous to those of the Head of
Government”; Joe Verhoeven, Droit international public, 2000, p. 123: “there is a ten-
dency, at least in the doctrine, to grant the Head of Governme it, and indeed the Minister
for Foreign Affairs, the protection accorded to the Head of State”.

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ARREST WARRANT (SEP. OP. BULA-BULA) 117

“in the fulfilment of its task of itself ascertaining what the interna-
tional law is, [the Court] has not confined itself to a consideration of
the arguments put forward, but has included in its researches all
precedents .. . and facts to which it had access and which might pos-
sibly have revealed the existence of one of the principles of interna-
tional law contemplated in the special agreernent”**.

50. It is in the area of customary law that the Eelgian claims and their
counterparts, the Congolese denials, lie. The Belgian Government possibly
anticipated that, as with the Truman Proclamation of 1945 on the con-
tinental shelf, its new claim, formulated at a tirae when humanitarian
ideas are undergoing a revival of interest, would be followed (massively)
by other States. It gives the impression of having overestimated its impor-
tance on the world chessboard. No matter. The main charge which can
be levied against the Respondent is of abusing the humanitarian argu-
ment for the purposes of political domination. As in the nineteenth cen-
tury*’! To the point of devising an exception to tke rules of international
law governing immunities which simply does not exist in international
law.

51. In short, the Belgian claim was bound, fro:n its inception, to rep-
resent violation of existing law. Despite the publicity enjoyed by the war-
rant of I! April 2000, no other State has followed Belgium’s example. No
member of the international community has offered Belgium assistance
in executing the warrant. In fact, on the contrary, several States, particu-
larly African States, have ignored it. The unfortunate Belgian precedent
has thus remained an isolated one. While Belgiu n is entitled to contri-
bute to the formation of general international law, it cannot, on its own,
create that law. Thus it does not have internationel practice behind it. By
contrast, the State which is the victim of this action, the Congo, has reso-
lutely opposed the application of the Belgian measure. On the ground
that it is unlawful.

52. Moreover, the Belgian Government has shown, by its conduct,
that it is unsure of the lawfulness of its disputed act. Its correspondence
with the Applicant while the proceedings were in progress demonstrates
this**. The Respondent claims that it is contemplating an amendment to
its controversial statute so as to respect the imriunities of high repre-
sentatives of foreign States. From all the many inccnsistencies and equivo-
cations fundamentally characterizing a practice both unilateral and soli-
tary — if we exclude the Yugoslav initiative of 21 September 2000, which
has strangely gone unremarked by Belgium — n> customary norm has

5¢ “Lotus”, Judgment No. 9, 1927, P.CI.J., Series A, No. 10, p. 31.

57 The Preamble to the General Act of Berlin of 26 February 1885 provides reassurance
as to the object and purpose of the Treaty: “the moral and material well-being of the
indigenous populations”.

58 See the Belgian communication of 14 February 2001, to which the Congo replied on
22 June 2001.

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ARREST WARRANT (SEP. OP. BULA- BULA) 118

emerged. Just as the Respondent’s own opinio juris is apparently far from
established.

53. In reality, the Respondent has sought to rely on a small number of
opinions of publicists in order to claim that a new derogative customary
norm has come into being. It has provided no evidence of its existence.
We know that doctrine represents a means for determining the rules of
law. It must be founded on a general practice corresponding to the opinio
juris sive necessitas. Nothing of the kind exists :oday. In my view, the
Court could readily find that the Respondent’s claims were unfounded. Is
it possible that the implementation of international humanitarian law
might be subject to a co-efficient of relative normutivity — to paraphrase
P. Weil? If not, how can there be any legal justification for suspending
proceedings against an organ of a Middle Eastern State whilst obsti-
nately persisting with proceedings against the forraer Congolese Minister
for Foreign Affairs?

54. Referring to the relationship between crimes and immunities, or
the extent to which the nature of the former impedes the exercise of the
latter, Pierre-Marie Dupuy writes, in light of the House of Lords ruling
in the Pinocher case:

“We should exercise caution in confirming the emergence of a new
customary rule as embodied in the House of Lords ruling, which is
based on considerations that are not entirely consistent and cannot,
of itself, result in the consolidation of such custom.” >?

Dupuy then recalled that

“custom emerges from the legal opinion of States as demonstrated
by their practice, which is, however, far frem unified, and in any
event shows that States are still reluctant to accept any reductions in
the immunities of their high officials” °.

There is no conduct “generally” adopted “by tie practice of States”.
As this Court has held,

“[the] presence [of customary norms] in the opinio juris of States can
be tested by induction based on the analysis of a sufficiently exten-
sive and convincing practice, and not by deduction from preconceived
ideas” °!.

These are few decisions — or at least any significant number — of courts

59 Pierre-Marie Dupuy, “Crimes et immunités, ou dans quelle mesure la nature des pre-
miers empêche l'exercice des secondes”, Revue générale de droit international public,
Vol. 103, No. 2, 1999, p. 293; emphasis added.

60 Ibid.

61 Delimitation of the Maritime Boundary in the Gulf of Maine Area, Judgment, 1 C.J.
Reports 1984, p. 299; emphasis added.

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ARREST WARRANT (SEP. OP. BULA-BULA) 119

and tribunals worldwide which have taken the Belgian view. Quite
the contrary. Just recently, the Court delivered an Opinion in the case
concerning the Difference Relating to Immunity from Legal Process
of a Special Rapporteur of the Commission on Human Rights, stating:
“the Malaysian courts had the obligation to deel with the question of
immunity from legal process as a preliminary issue to be expeditiously
decided” ®.
55. Previously, it had noted that

“The High Court of Kuala Lumpur did not pass upon. . . immu-
nity in limine litis, but held that it had jurisdiction to hear the case
before it on the merits, including making a determination of whether
Mr. Cumaraswamy was entitled to any immunity.” %

A similar obligation applies also, and above all, to States in their mutual
relations. Thus, by way of analogy, and a fortiori — since we are dealing
here with primary subjects of international law and with their highest
ranking representatives, namely Ministers for Foreign Affairs — this rule
as restated by the Court must be applied in the present case.

56. The successive changes in Mr. Ndombasi’s status have no serious
implications for the case, except to underline furtaer the violation of the
Congo’s sovereignty by Belgium on account of its continued interference
(see above).

57. Moreover, as the focus of this case is the violation of the immuni-
ties of the Minister for Foreign Affairs at the time of the issue and noti-
fication of the warrant, the previous and subsequent status of Mr. Ndom-
basi in no way affect the Congolese complaint. Civen that the unlawful
proceedings were instituted at a time when he had the status of a special-
ized organ responsible for the foreign relations of a State and, in conse-
quence, was protected by absolute immunity and personal inviolability
from criminal process, the violation of international law to the detriment
of the Congo continues to exist; in transgressing the rule of customary
international law governing inter-State relations, Belgium has incurred a
debt not to an individual but a State, the Congo, whose organ responsi-
ble for international relations has been subjected to a rash, vexatious and
unlawful measure, which calls for reparation. Yet, in response to these
well-founded claims of the Applicant, the Respondent claims not to have
violated the sovereign rights of its victim. On the contrary, Belgium
claims to be exercising a right conferred on it by international law or ful-
filling an obligation imposed on it by international law. That is why it

62 Difference Relating to Immunity from Legal Process of a Special Rapporteur of
the Commission on Human Rights, Advisory Opinion, LCI. Reports 1999 (I), p. 90,
para. 67 (2) (6); emphasis added.

63 Jbid., p. 72, para. 17.

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ARREST WARRANT (SEP. OP. BULA-BULA) 120

refuses to cancel the warrant and thus make reparation for the injury
suffered. Mr. Ndombasi’s personal odyssey in no sense marks the end of
the inter-State dispute.

58. It is significant that the Respondent implicitly acknowledges the
weakness of its defence in the following terms:

“Even were the Court to uphold, contrary to Belgium’s submis-
sions, the immunity of Mr. Yerodia Ndombasi gua Minister for For-
eign Affairs of the DRC in the circumstances in issue, it would not
follow that he would have been immune, even when in office, as
regards conduct of a private nature .. .”°

59. Unless one were to contend that Belgium’s offence became time-
barred after two years. There is in principle no such rule in international
law, even less so in the African conception of the law. In Africa, a dispute
does not disappear. It is transmitted, like a debt, from generation to gen-
eration. The same applies to the subject-matter of the dispute, which can-
not be effaced as long as there is no acknowledgment of the offence
committed or reparation for the injury suffered by the victim. The
Respondent’s unfounded denials prompt me to present a hypothetical
case.

60. Let us take the example of an individual carrying out the duties of
an Adviser on African Affairs to the President or Prime Minister of a
certain State. In that capacity, the individual orders the suppression of a
popular uprising or a student demonstration in à “friendly country”,
resulting in deaths. Subsequently, that Adviser is appointed Minister for
Foreign Affairs or Secretary of State of the country in question.

61. A third State then issues a warrant against the Minister or Sec-
retary of State on the grounds that he had given orders as Adviser
which, when implemented, led to wide-scale and systematic violations
of human rights. The question is whether such a warrant does or does
not affect the criminal immunities and personal inviolability of the
Minister or Secretary of State. In my opinion, the reply has to be in
the affirmative. It is the organ of the State, responsible for representing
that State internationally, which is the victim of that measure at that
point in time.

62. Following a change in administration or government, the Minister
for Foreign Affairs or Secretary of State loses his post (which is different

64 Counter-Memorial, p. 116, para. 3.4.15.

65 Jean-Pierre Cot, A l'épreuve du pouvoir. Le tiers-mondisme. Pour quoi faire ?, 1984,
p- 85. The author notes that, when he was Minister for Cc-operation, he issued orders
that French military advisers should not be involved in the suppression of the student
demonstration of June 1981 in Kinshasa.

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ARREST WARRANT (SEP. OP. BULA-BULA) 121

from the case of Mr. Ndombasi, where external pressures were exerted).
The State which issued the warrant continues proceedings. Does this
measure continue to affect the Adviser on African Affairs, the Minister
for Foreign Affairs or the Secretary of State, or does it affect the indi-
vidual now freed of all governmental responsibility? I consider that it is
the date of the issue of the warrant which establishes the precise moment
of the internationally wrongful act and the status at that time of the per-
son against whom the warrant is issued, naming him and violating his
moral integrity. It is the Minister for Foreign Affairs or the Secretary of
State on the day and at the time of the issue of the warrant who was
impugned. This is not an investigative measure di-ected against a private
individual, which the former Secretary of State cr Minister for Foreign
Affairs has become, nor is it a measure directed at the time against the
Adviser on African Affairs. Nothing can change the facts, which, like the
sphinx, remain unaffected.

63. The principle of jurisdiction which some call “universal” cannot be
seriously contested in terms of the relevant provisions of the Geneva
Conventions. However, I do have certain reservations about the some-
what unfortunate terminology used in international law. For, in my
opinion, the correct summa divisio should consist of (1) territorial juris-
diction, (2) personal jurisdiction and (3) jurisdiction in the public interest.

64. I would not describe the authority exercised by a State as “univer-
sal jurisdiction”, whether exercised with respect to its nationals abroad,
which comes under the head of its personal jurisdiction, or with respect
to foreign nationals on the high seas having committed acts of maritime
piracy, which falls under the head of jurisdiction in the public interest, or
with respect to any person in its territory havirg offended against its
ordre public, which thus falls within the scope of its territorial jurisdic-
tion. The same applies to the jurisdiction which States accord to them-
selves regarding the punishment of certain violations of treaty provisions.
It is readily conceivable that a worldwide entity, not yet in existence, or
the United Nations itself and its principal judicial organ, being of a
quasi-universal nature, might lay claim to universal legal jurisdiction. As
we know, under the specific treaties to which the" are parties, the mem-
bers of the quasi-universal community have the power to punish certain
offences committed outside their territory in well-defined circumstances.
Yet, in material terms, such legal power is not universal. Perhaps under
the unfortunate influence of the views of criminal law specialists®®, cer-
tain internationalists refer to it as the exercise of universal jurisdiction.
This expression does not seem appropriate in the present international

6 References to “universal jurisdiction” are relatively rare in the works of criminal
jurists themselves. See, for example, André Huet and René Koering-Joulin, Droit pénal
international, 1994.

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ARREST WARRANT (SEP. OP. BULA-BULA) 122

order®’. At a time when a large number of States are seeking to promote
an international criminal forum with worldwide jurisdiction, would the
promotion of “universal” jurisdiction not be a backward step in legal
terms?

65. As thus understood, the principle of “universal jurisdiction” is laid
down, in particular, in Article 49 of the First (Geneva Convention of
12 August 19498, But its conception, and especially its application by the
Respondent in the present case, do not accord with the law as it currently
stands.

66. According to the authorized interpretation of the above Article, the
system is based on three essential obligations incumbent on each high
contracting party, namely: “to promulgate special legislation; to search
for any individual accused of violating the Conve ition; to try such indi-
vidual or, if the contracting party prefers, to hand over the individual for
trial to another interested State” *?.

67. The Respondent is to be thanked for havinz, in principle, satisfied
the first obligation, subject to reservations as to “he scope of its special
legislation. Its apparent concern to search for anv individual accused of
having violated the relevant conventional provisions is also praiseworthy.

68. The congratulations due to the Respondent as regards the prin-
ciples nevertheless leave room for legitimate complaints on grounds of
the scope of its legislation and its implementing measures. The warrant
would appear to come under the latter category.

67 Tt is from international criminal law, an embryonic disc pline with sparse, fragmen-
tary rules, that what is inappropriately termed universal jurisciction derives. But it cannot
escape the marks of its original mould. Hence the somewhät nebulous character of an
ancient legal power, limited to a handful of historical curiosities such as the repression of
the slave trade, timidly extended in the mid-twentieth century to include the punishment
of violations of international humanitarian law. It is from the latter that the specialized
doctrine and jurisprudence (International Criminal Tribunal for the former Yugoslavia)
are seeking to make it autonomous. For the “universal jurisciction” claimed by Belgium
concerns coercive implementation of the humanitarian rules of Geneva. It is beyond dis-
pute that positive international law authorizes States to penalize offences committed out-
side their territory when certain conditions relating to the appurtenance to their territorial
sovereignty have been met. Nor is there any doubt that this senal jurisdiction should be
strictly interpreted, in conformity with the requirements of criminal law.

68 Article 49 states:

“Each high contracting party shall be obliged to sear:h for persons presumed to
have committed or ordered to have committed one or other of these offences, and
must bring them before their own courts, irrespective of their nationality.”

5° Jean Pictet (ed.), Commentary on the Geneva Convention for the Amelioration of the
Condition of the Wounded and Sick in Armed Forces in the Field, 1952, p. 407; emphasis
added.

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ARREST WARRANT (SEP. OP. BULA-BULA) 123

1. Special Legislation

69. Neither of the two States (Switzerland and Yugoslavia) cited in the
above-mentioned Commentary have adopted legislation with such uni-
versal geographical reach as the Belgian warrant. The passages in the
Commentary merely reflect a concern to punish oïfences. The Commen-
tary even warns that “no reference is made to the responsibility which
could be incurred by individuals who have not intervened to prevent an
offence or to halt it”. Given “the Convention’s silence, it must be accepted
that it is for national legislation to settle the matter” 7°.

2. Searching for and Prosecut.ng
the Perpetrators

70. Not only does the Commentary emphasize the punishment of the
accused irrespective of their nationality, it also endorses the territorial
link, which, under classical international law as thus codified at Geneva,
is in fact the norm:

“As soon as one of the contracting parties is aware of the fact that
an individual present on its territory has comraitted such an offence,
its duty is to ensure that the individual is arrested and prosecuted
quickly.” 7!

Thus, it is not only at the request of a State that the necessary
police investigations can be undertaken, but they may also be carried
out unprompted. Beyond the confines of national territory, where in prin-
ciple the exercise of State authority, whether legislative, executive or
judicial, must end, the Commentary — quite naturally in my view —
refers to the mechanism of judicial co-operation, that is to say extra-
dition, where “adequate charges are brought against the accused” ”?.
Not only is there no extradition treaty between the Parties concerned
regarding this matter, but the Congo also subscribes to the legal
principle that it cannot extradite its own nationals. It adds — an argu-
ment decisive of the matter — that it is unable to prosecute Mr. Ndom-
basi for lack of any charges against him, there being nothing it accuses
him of.

71. The exercise of “universal” jurisdiction thus. presupposes the exis-
tence of “adequate charges”, under the terms of the humanitarian con-
ventions *. Are there any in this case? The Applicant has rejected

7 Jean Pictet (ed.), Commentary on the Geneva Convention for the Amelioration of the
Condition of the Wounded and Sick in Armed Forces in the Field, 1952, p. 409: emphasis
added.

71 Ibid., p. 441; emphasis added.

7 Ibid. ,

73 See, for example, Article 129 (2) of the Third Geneva Convention of 12 August 1949.

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ARREST WARRANT (SEP. OP. BULA-BULA) 124

them”. Presidents of the Congolese Bar asserted before local media, the
day after notification of the warrant on 12 July 200, that “the case-file
was empty”. In its warrant, the Respondent failed to specify adequate
charges, apart from an unproven assertion that the accused “actively
and directly” participated in committing serious cffences under interna-
tional humanitarian law.

72. What, moreover is the objective criterion which would authorize a
State to exercise universal jurisdiction by default in various situations
where no jurisdiction has normally been exercised? Is it that these are
core crimes? There are said to be a number of them. Hence the legitimacy
of the territorial criterion, which allocates jurisdiction as between the
States concerned. Otherwise the political criterion of expediency would
hold sway. It is accordingly understandable that the consequences of the
tragic events in the Congo in August 1998 provided a pretext for the war-
rant of 11 April 2000, whereas the extermination of over two and a half
million Congolese since that date by Rwandan, Ugandan and Burundian
aggressors has so far gone unpunished.

73. The Respondent has done everything it can, in accordance with its
egregious approach, to criminalize the Applicant’s conduct. To the bitter
end it has done its utmost to try and prick the coascience of the judges.
Not only has it chosen the wrong forum — this Court not being one deal-
ing with matters of substance relating to possitle individual criminal
responsibility — it has failed, moreover, to provide proof of such respon-
sibility. It should be remembered that actori incumbit probatio, but also
that allegans probat.

74. Should the former model colony of the Belgian Congo, without
any proof, prosecute one of the Congolese leaders, who, like his fellow
countrymen, rose up against the foreign invaders and their Congolese
henchmen? The idea that a State could have the legal power to try
offences committed abroad, by foreigners agains: foreigners, while the
suspect himself is on foreign territory, runs counter to the very notion of
international law.

75. Article 129, paragraph 2, of the Third Geneva Convention, setting
out the principle aut dedere aut judicare with respect to criminal penal-
ties, lays down the requirement of “adequate charges”. In no wise has it
contemplated a so-called jurisdiction by default (in absentia). Thus the

74 Memorial of the Democratic Republic of the Congo, p. 38, para. 57,

“the Belgian authorities failed to place his [Mr. Yerodia’s] statements, notably those
made on 28 August 1998, in any historical or cultural context. They improperly inter-
preted them . .. but the causal connection between those words and certain unspeak-
able acts of violence ... is far from having been clearly vstablished.”

For its part the Counter-Memorial of the Kingdom of Belgium reiterates (p. 11, para. 1.10)
the facts as stated in the warrant of 11 April 2000, after announcing: “it is not necessary
to go into these facts at this point, although relevant aspects will be addressed briefly in
Part II] below”.

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ARREST WARRANT (SEP. OP. BULA-BULA) 125

Commentary on this provision expressly contemplates a situation where
the accused “is present on the territory” (of the State party).

76. In vain would one look, in recent practice, for a legislative text or
domestic jurisprudence as far-going as this. In its War Crimes Act 1945,
as amended in 1988, Australia states that “only an Australian citizen or
resident can be charged under the 1988 Act” (Section 11 of the above
Act). In Polyukhovich v. Commonwealth of Australia, the Australian
High Court had recognized that the Australian courts had the power to
exercise “a jurisdiction recognized by internationa law as universal juris-
diction” vis-à-vis war crimes”.

77. A territorial connection is also required by the Austrian Criminal
Code in relation to the prosecution of international crimes such as geno-
cide (see its application in the Dusko Cvjetkovic case of 13 July 1994). A
personal or territorial connection is also required by Article 7 of the
Canadian Criminal Code, as revised in 1985. It was applied in R v. Finta.
France, too, requires this connection: “where [the individual] is present in
France”, \t would be tiresome to list all the many examples.

78. If I may resort to reasoning by analogy, it is noteworthy that, in
the case concerning Military and Paramilitary Activities in and against
Nicaragua ( Nicaragua v. United States of America), Merits, the Court
held, specifically with respect to human rights, that:

“where human rights are protected by intesnational conventions,
that protection takes the form of such arrangements for monitoring
or ensuring respect for human rights as are provided for in the con-
ventions themselves” 77.

At the time of their adoption, the Geneva Conventions clearly circum-
scribed the rights and obligations of States on this point. The authors of
those instruments certainly in no way contemplated the excessively wide
interpretation adopted by Belgium. Moreover, there has been scant evi-
dence in the subsequent practice of any customary development of treaty
law in this direction. It could have been codified in the Rome Convention
of 17 July 1998, but was not. Thus, one year after the adoption of that
Convention, Belgium has introduced a radical innovation of its own.
Such concern for humanity!

79. In providing, in Article 7 of the Law of 16 June 1993, as amended
on 10 February 1999, that “Belgian courts have jurisdiction to try the
offences provided for in the present Law, irrespective of where such
offences have been committed’, Belgium adopted legislation that was
totally unprecedented. It set itself up, if not as the prosecutor for the

73 Polyukhovich v. Commonwealth of Australia (1991) 172 CLR 501, p. 562; emphasis
added.

76 Article 689-1 of the Code of Criminal Procedure.

7 EC J. Reports 1986, p. 134, para. 267.

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ARREST WARRANT (SEP. OP. BULA-BULA) 126

human race in the trans-temporal and trans-spatial sense attributed to
this term by R.-J. Dupuy, then at least as arbiter of transnational justice,
in accordance with the doctrine of “law without frontiers”. This approach
could even be said to transcend international law itself, since the latter
deals essentially with relations between structures with defined borders,
namely States. Yet even a cursory assessment shows that the Respondent
is violating international law. It is not entitled, as the law currently
stands, disdainfully to transcend it. Thus, Heads of States in office Lau-
rent Gbagbo (Côte d'Ivoire) on 26 June 2001, Saddam Hussein on
29 June 2001, Fidel Castro (Cuba) on 4 October 2001, Denis Sassou
Nguesso (Congo-Brazzaville) on 4 October 2001, Yasser Arafat on
27 November 2001, a Prime Minister, Ariel Sharon (Israel) on 1 July 2001,
an incumbent Minister for Foreign Affairs, Abdulaye Yerodia Ndombasi
on |i April 2000, are the subject of complaints or prosecutions before the
Belgian courts for various “international crimes”. The list ts still far from
exhaustive, the name of President Paul Biya (Cameroon) having been
added in December 2001. Joe Verhoeven” rightly feared that the result
would be chaos, by definition the opposite of an order already precarious
in the international arena. The Court must necessarily be called upon to
intervene.

80. It should be strongly emphasized that Mr. A. Yerodia Ndombasi
would appear to be the only person to have been served with an “inter-
national arrest warrant”. Most singular. It should also be emphasized
that the proceedings against Mr. Ariel Sharon, closely watched all over
the world, have apparently been quietly put on hold while Belgium seeks
an honourable way out for him through a form of a legal technicality;
that since then the highest political authorities in the land have been
queuing up at the universities (ULB) to give lectures abruptly denouncing
the absurdities of this law, and that, since the close of the oral argument
in November 2001, one of Belgium’s counsel has altered his teaching in
favour of a sine qua non territorial connection. Such is the showing of the
Belgian Law when put to the test of international Realpolitik. The
chances are that the proceedings instituted following a complaint
by “unrepentant subjects of law” against Mr. A. Sharon will be a dead
letter.

81. Belgium has neither any obligation — as discussed above — nor
any entitlement under international law to pose as prosecutor for all

78 Joe Verhoeven, “M. Pinochet, la coutume internationale et la compétence uni-
verselle”, Journal des tribunaux, 1999, p. 315, and, by the same author, “Vers un ordre
répressif universel? Quelques observations”, Annuaire français de droit international,
1999, p. 55. Also, “what would happen if a plaintiff prosecuted Mr. Chirac in the French
courts for having served in the Algerian War, when massacres were carried out by the
French army?” a senior Israeli official is said to have asked following the complaint filed
by Mr. Sharon, the Israeli Prime Minister. (The Washington Post, 30 April 2001, Wash-
ington Post Foreign Service, Karl Vick. p. 101: “Death Toll in Congo War May Approach
3 Million™.)

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ARREST WARRANT (SEP. OP. BULA-BULA) 127

mankind, in other words, to claim the right to redeem human suffering
across national borders and over generations. The State practice referred
to above also applies to my comments here. In no sense, however, is this
to argue the case for impunity, whether geographical or temporal, includ-
ing in wars of colonial conquest and neo-colonial reconquest in Africa,
America, Asia, Europe and Oceania.

82. As victims of the violence” of the aggressors and the series of grave
breaches of international humanitarian law, such as the occupation of the
Inga Dam and the severing of power and water supplies, particularly in
Kinshasa, a city of over 5 million people, resulting in numerous deaths, the
Congolese people have consistently called for the withdrawal of the regular
occupying forces from Uganda, Rwanda and Burundi. They have also
called for the setting up of an international criminal tribunal on the
Congo. This tribunal would try all persons, whether perpetrators, co-per-
petrators or accomplices, whether African or non-African, having commit-
ted war crimes and crimes against humanity, such as the extermination of
over two-and-a-half million Congolese *° in the regions under foreign occu-
pation since 2 August 1998. It would seem that those victims are (as yet) of
no concern to Belgium, sadly notorious — rightly or wrongly — for its
colonial®! and neo-colonial*? past in the field of human rights in the
Congo, where a situation of grave, systematic and massive human rights
violations persists which requires a response from international opinion.
To echo the very fitting words of the French Ambassador to Kinshasa:
“on such an issue, there must be no beating about the bush. Endless
semantics are not an option when an entire people is dying.” For “it is
war... the occupying armies are on Congolese soil despite the injunctions
of the international community”.

7 See S. Oda, declaration appended to the Order of 9 April 1998 in the case concerning
the Vienna Convention on Consular Relations, Provisional Measures, L.C.J. Reports 1998,
p. 260. para. 2, and the Order of 3 March 1999 in LaGrand (Germany v. United States of
America), Provisional Measures, C.J. Reports 1999 (1), p. 18, para. 2, on the need to
take account of the rights of the victims of violent attacks (an aspect often neglected).

86 Source: International Rescue Committee (USA), <http ://intranet.theirc.org/docs/
mortll_report_small.pdf.>
81 Adam Horschild, Le funtôme du Roi Léopold Un holocauste oublié. 1998. pp. 264-
274: Daniel Vangroenweghe, Du sang sur les lianes. Léopold I et son Congo, 1986,
pp. 18-123: Barbara Emerson. Léopold II. Le Royaume et l'Empire, 1980, pp. 248-251.
82 See CR 2000/34, p. 16. on the scathing argument of the Congo and Noam Chomsky.
Autopsie des terrorismes, 2001, pp. 12-13.
“The European Powers conquered a large part of the world with extreme brutality.
With very few exceptions. these Powers were not attacked by their victims in
return ... nor was Belgium attacked by the Congo...”
83 See the speech by Mr. Gildas Le Lidec. French Ambassador in Kinshasa, on
14 July 2001, on the occasion of the French national holiday. Le Palmarès, No. 2181, of
16 July 2001. p. 8.

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ARREST WARRANT (SEP. OP. BULA-BULA) 128

83. The views of a few legal writers will suffice to indicate the scale
of the dispute on this issue. According to P.-M. Dupuy, “still seldom
recognized in customary law, universal jurisdiction can thus only be
optional’ *4, The author cites in his support the fact that the French
Court of Cassation “has confirmed the refusal by the Appeal Court to see
the 1949 Geneva Conventions as providing any legal basis for invoking
such jurisdiction”#. He concludes that “the Rome Convention does
not... institute true universal jurisdiction, based as it is on the jurisdic-
tion of the State of nationality of the perpetrator and/or that of the State
where the offence was committed” ®*. As for François Rigaux, he prefers
not to commit himself “on a controversial, topical theme”*®’. Mario Bet-
tati, on the other hand, considers that “universal jurisdiction . . . provides
grounds for any State to prosecute crimes which are all the more serious
because they sometimes involve both crimes against the laws of war and
crimes against humanity” ®*. No proof is provided for this assertion. By
contrast, Nguyen Quoc Dinh, Patrick Dailler and Alain Pellet refer to it
as “a disputed principle” *’. Olivier T. Covey only accepts it if the author
of the offence “is later found on national territory” °°. The advocates of
universal jurisdiction recognize it provided the accused “is present on its
territory”°?!. Jean Combacau and Serge Sur, however, point out that
“States remain faithful to territorial and personal criteria and refrain
from any recourse to universal or in rem jurisdiction”. And
Philippe Weckel, while observing the reference to universal jurisdiction in
the Preamble to the Treaty of Rome of 28 July 1998, nevertheless notes
the ubiquitous presence of the “judicial sovereignty of States”; for, as
Belgian practice has already shown, “universal jurisdiction . . . would
ultimately seem to be exercised unilaterally” °*.

84. The warrant of 11 April 2000 produced legal effects both internally
in Belgium and internationally.

84 Pierre-Marie Dupuy, loc. cit., p. 293: emphasis added.

85 Jbid., p. 294.

86 Jbid.

8? Francois Rigaux, “Le concept de territorialité: un fantasme en quête de réalité”, in
Liber Amicorum Judge Mohammed Bedjaoui, 1999, p. 211.

88 Mario Bettati, Le droit d'ingérence. Mutation de l'ordre international, 1996, p. 269.

89 Nguyen Quoc Dinh, Patrick Dailler and Alain Pellet, Droit international public,
1999, p. 689.

% Olivier T. Covey, “La compétence des Etats”, Droit international. Bilan et perspec-
tives, 1991, p. 336.

°! Brigitte Stern, “A propos de la compétence universelle”, in Liber Amicorum
Judge Mohammed Bedjaoui, p. 748.

%? Jean Combacau and Serge Sur, Droit international public, 1993, p. 351.

°3 P. Weckel, “La Cour pénale internationale”, Revue générale de droit international
public, Vol. 102, No. 4, 1998, pp. 986, 989. According to one criminal expert from the
Congo, Nyabirungu Mwene Songa, Droit pénal general, Kinshasa, 1995, pp. 77 and 79,
the “so-called system of universal jurisdiction gives the court of the place of arrest the
power of trial” (emphasis added).

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ARREST WARRANT (SEP. OP. BULA-BULA) 129

85. To begin with the internal aspect. Juridically, it seems clear that
serving a warrant on a Minister for Foreign Affairs constitutes an unlaw-
ful act, as it breaches both his inviolability and his immunity from crimi-
nal jurisdiction. Formally, it is by nature an act of coercion. Materially,
its terms make no secret of the fate which awaits the Foreign Minister.
The agents of the Belgian authorities are required physically to appre-
hend a Minister for Foreign Affairs of another sovereign State! In terms
of its purpose, the warrant seeks to extinguish the freedom to come and
go as well as to destroy the inherent dignity of an organ of an indepen-
dent country. Organically, the investigating judge who acted against the
Minister concerned is not to be confused with an agent of State protocol.
Regarding the warrant, the Court rightly states:

“its mere issue violated ... immunity... The Court accordingly con-
cludes that the issue of the warrant constituted a violation of an
obligation of Belgium towards the Congo, in that it failed to respect
the immunity of that Minister . . . under international law.” (Judg-
ment, para. 70.)

86. These are the objective elements showing that this unprecedented
warrant produced legal effects. The fact that it was not physically imple-
mented is another matter. It could have been implemented. That the
Respondent may flout the rules of elementary courtesy between supposedly
civilized States with respect to another State is one thing in law. The war-
rant quite simply discredited the Congolese organs of State, treating them
in an altogether discourteous and unlawful manner. And that is not all.

87. At international level, our main focus of attention here, since we
are dealing with a flagrant breach of customary international law on
immunities, I need only refer to my analysis at the provisional measures
stage. Moreover, the reasoning of the Judgment does indeed appear to
underline the legal harm thus suffered **.

88. As I indicated at the preliminary measures stage, the disputed war-
rant caused prejudice to Congolese diplomacy. While the head of the dip-
lomatic corps was nevertheless able to travel unimpeded in the southern
hemisphere in order to attend diplomatic meetings aimed at bringing an
end to the armed conflict in the Congo, he was, on the other hand, unable
so to travel in other regions much more important for settlement of the
conflict. Even if the Congolese State was represented there, it was at a
lower level. The result was that the substance of the peace talks at foreign
ministerial level was adversely affected by virtue of the rule of diplomatic
precedence. Ultimately, the Congo’s international sovereignty preroga-
tives suffered prejudice °°.

°4 Judgment, paras. 70 and 71.

°5 See also S. Bula-Bula, dissenting opinion appended to the Order of 8 December 2000,
Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Pra-
visional Measures, L.C.J. Reports 2000, p. 222, para. 16.

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ARREST WARRANT (SEP. OP. BULA-BULA) 130

89. In particular, the regular and continuous operation of the coun-
try’s foreign service was disrupted by this politico-legal interference, the
head of the diplomatic corps having been subjected to “arbitrary quar-
antine”. The serving of the warrant also violated the political independ-
ence of the Congo. As indicated above, it obliged a weak State, further
weakened by armed aggression, to change the composition of its
Government — against its wishes according to counsel for the Congo, a
member of that country’s Government — to please the Respondent.
Belgium has not disputed this statement.

90. There is no doubt at all that Belgium’s conduct has discredited the
Congo. Its effect, as a result of a decision taken in an apparently sum-
mary manner, has been to put further pressure on a State already under
attack at a time when the Central African States. meeting in Libreville
(Gabon) on 24 September 1998, “condemned the aggression against the
DR of the Congo and the interference described above in the internal
affairs of that country”°®’. The criminal proceedings thus instituted against
an organ of a victim of aggression constitute accusations that degrade it
in the eyes of the “international community”. They had a deleterious
effect on the moral rights to honour and dignity of the Congolese people,
as represented by their State?®.

OI. The fact that, by issuing, circulating and maintaining the arrest
warrant of 1] April 2000, the Respondent committed an internationally
wrongful act has been demonstrated above. Belgium breached its inter-
national obligations under general international law.

92. At this point, the following view expressed by Paul Guggenheim
seems particularly instructive:

“Contrary to widely held opinion, it is not only when it is actually
implemented that domestic law may violate international law. The
very fact of the enactment — or non-enactment — of a general norm
capable of being applied directly and thereby causing injury, is an
international wrong. The enactment of a norm contrary to interna-
tional law is thus a sanctionable matter . . .”””

This is an argument applicable a fortiori to the warrant, a mere act —
indeed, in the view of Congo’s counsel, a wrongful act — of application.

93. On closer examination, the Belgian warrant does not, in interna-

°© See oral argument of 22 November 2000, CR 2000/34, p. 10.

°7 See Le Phare, No. 818 of 28 September 1988, p. 3.

% See also S. Bula-Bula, dissenting opinion appended to the Order of 8 December 2000,
Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Pro-
visional Measures, LC.J. Reports 2000, pp. 222-223. para. 17.

° P. Guggenheim, Traité de droit international public. Vol. 1. pp. 7-8, quoted by Krys-
tyna Marek, “Les rapports entre le droit international et le droit interne à la lumiére de la
jurisprudence de la Cour permanente de Justice internationale”, Revue générale de droit
international public. Vol. XXXIIL, 1962. p. 276: emphasis added.

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ARREST WARRANT (SEP. OP. BULA-BULA) 131

tional law, constitute a legal act. As noted by Congo’s counsel, it is an
internationally wrongful act. The proposition that: “[i]n the eyes of inter-
national law and of the Court which is its organ, domestic laws are
merely facts, manifestations of the will and the activity of States, just as
Judicial decisions or administrative measures are” '°°, is extremely appo-
site here.

94. The argument seeking to distinguish the instrumentum on the one
hand and the negotium on the other is thus invalid. Wrongfulness does
not cease to exist because the organ of State has changed. For, through
that organ. it is, of course, the State which is the target. This is even
clearer in the case at issue, in which various members of the Government
were on the list drawn up by the Belgian judge. the Head of State
included! Moreover, an unlawful warrant is not, ipso facto, void in law.
This is precisely the case here. Generally speaking, in international law,
there are national measures (human rights, law of the sea, etc.) enacted
perfectly legally, which are nevertheless unlawful. They engage the respon-
sibility of their authors. But the fact that it is adjudged unlawful by an
international organ does not of itself annul the national measure. It is for
the State transgressing international law to extinguish its unlawful act.

95. The Respondent violated international law on immunities on
11 April 2000 by issuing the warrant. It subsequently confirmed its un-
lawful conduct by circulating the warrant internationally. The unlawful
act was communicated to the Applicant on 12 July 2000. After the viola-
tion, which was complete on 11 April 2000, the Respondent claims to
have sought, on 15 September 2000, to transmit the case file to the Appli-
cant by diplomatic channels. Not only did it provide no proof of
this tardy act of repentance, which, moreover, is contested by Congo’s
counsel; the attempt to whitewash the wrongful act, rightly repudiated
by the Applicant, is devoid of all effect.

96. Worse, there is a major factor which demonstrates Belgium’s reso-
lutely wrongful conduct in the course of the proceedings. What other
word could be used to describe the Respondent’s request for a Red
Notice on 12 September 2001? Notwithstanding the international judicial
proceedings brought against it, Belgium persists in seeking to implement
its unilateral wrongful act by means of a Red Notice. In so doing, not
only has the Respondent provided eloquent proof of lack of good faith in
relation to the conduct of the international legal proceedings; but is it not
also guilty of “an encroachment on the functions of the Court” !°'?

*

100 Case concerning Certain German Interests in Polish Upper Silesia, Merits, Judg-
ment No. 7, 1926, P.C.L.J., Series A, No. 7, p. 19.

191 [ am here drawing on the views of Judge Tarazi, dissenting opinion appended to the
Judgment of 24 May 1980, case concerning United States Diplomatic and Consular Staff
in Tehran, C.J. Reports 1980, p. 64.

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ARREST WARRANT (SEP. OP. BULA-BULA) 132

97. While powerful States — a relative notion in terms of time and
geography — sometimes tend to invoke international law to justify their
conduct a posteriori, weak States — an equally relative concept in the
same terms — often tend to ensure that their conduct complies with
international law, since this is the only power they have.

98. Without regard for the criminal immunities and inviolability of the
Minister for Foreign Affairs of the Congo, the Kingdom of Belgium
issued an arrest warrant against this distinguished organ of a sovereign
State on the basis of allegations that “international crimes” had been
committed during the armed attack on the Congo of 2 August 1998.

99. Not only has the Congo demonstrated vis-a-vis the “international
community” its status as a subject of international law capable of appear-
ing before the Court, but this victim of aggression has conducted itself as
a State of law, in other words, an entity which respects international law.

100. The Congolese people, through the medium of their State, have
thus been able to express their international personality. They have also
affirmed that they are free. In this respect, has the Respondent mistaken
which generation and era it is dealing with? When in 1989 the ruling
Government in Kinshasa considered bringing the Belgo-Congolese dis-
pute before the Court, its initiative went no further than acceptance of
the Court’s compulsory jurisdiction. There followed the Rabat Agree-
ment of June 1989, which defused the quarrel between sovereigns States.
That is no longer the case today.

101. Whilst R. Aron maintained in 1984 that “the example of Congo
suggests that, in the masses, tribal awareness still prevails over national
awareness . . .”!°?, at the same time, Paul Reuter and Jean Combacau
had no hesitation in drawing the following parallel between the nation-
building process in “the most centralized European States of today” and
in the Congo: “this is the situation of a large and populous African State
such as Zaire, where a Zairian nation is daily being forged at the expense
of the ethnic communities, whose fate might otherwise have been differ-
ent” 1%, We, for our part, have taken the view that “for unacknowledged
reasons, the collective Zairian will to live, forged by years of sometimes
open, sometimes silent resistance to one of the most savage political
regimes the twentieth century has seen, is underestimated” 1%,

102. Like a two-headed Janus, the Judgment constitutes, on the one
hand, an act of repudiation of the unhealthy relations, supposedly of
friendship and co-operation, between a dominating and a dominated

192 Raymond Aron, Paix et guerre entre les nations, 1984, p. 389.

193 Paul Reuter and Jean Combacau, Institutions et relations internationales, 1988,
p. 24.

19% Sayeman Bula-Bula, “La doctrine d'ingérence humanitaire revisitée”, Revue afri-
caine de droit international et comparé (London), Vol. 9, No. 3, September 1997, p. 626,
footnote 109.

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State immediately following a botched process of decolonization; on the
other hand, it is an act which may well serve as the basis of mutually
beneficial healthy relations of friendship and lasting co-operation between
sovereign partners linked by history. Sooner or later such relations will
develop. The sooner the better. It is to be hoped that the Parties, and
especially the Respondent, grasp the fundamental significance of this
decision. The Court’s contribution to the peaceful settlement of the dis-
pute will have been most beneficial. Provided the Respondent adopts a
new mindset and jettisons its outmoded conceptions maintained by the
weight of history and unequal power relations. Thus, on the eve of the
formation of a government inspired by Belgium, academic advisers from
that country warned it that:

“Unless it ensures that it can play a decisive role in revitalizing the
national economy, unless it claims such a role for itself and succeeds
in playing it, Belgium risks relinquishing its leadership in Zaire and
losing its principal asset, as well as its most effective vehicle for
the expression of foreign policy. It is first and foremost Zaire that
enables us to play a role on the international stage and frequently
to sit at the table of the powerful.” !°

103. The African States particularly, which increasingly appear as
“ordinary” parties before the Court, have their own reasons for entrust-
ing their disputes to that body of eminent, independent and upright!
jurists. Here I am particularly thinking of complaints like the one against
Congo brought before a national judge, should the Respondent pursue
its policy of double standards. Especially as the large number of African,
Latin American and Asian leaders brought before Belgian justice might
wrongly — suggest that the presumed violations of international humani-
tarian law, in particular crimes against peace, crimes against humanity
and war crimes, are a monopoly of Africa, Latin America and Asia.

104. This is where “universal” jurisdiction shows its true colours as a
“variable geometry” jurisdiction, selectively exercised against some States
to the exclusion of others. It requires no great knowledge to be aware
that, at global level, it is not just the handful of prominent personalities
charged before the Brussels judge who are the subject of public rumours
of serious human rights violations.

105. It is clear that the Court’s task is to settle disputes between States

105 See Société nationale d'investissement et administration générale de la coopération
au développement, Zaire. secteur des parastataux, réuctivation de l'économie. Contribu-
tion d'entreprise du portefeuille de l'Etat, report by M. Moll, J.-P. Couvreur and M. Norro,
professors at the Université catholique de Louvain, 29 April 1994, p. 231.

106 See Article 2 of the Statute of the International Court of Justice.

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ARREST WARRANT (SEP. OP. BULA-BULA) 134

submitted to it by parties. It is not its task to teach the law. Yet the
settlement of disputes can provide valuable lessons. Indeed, at the end of
the oral argument, one of Belgium’s counsel revised his script. One of the
merits of the Judgment is that it has contributed to the teaching of inter-
national law. The fears we expressed when preliminary measures were
requested '*’ have not become groundless. The Court has drafted a new
chapter on the international law of immunities as it pertains to Ministers
for Foreign Affairs !®, As such, there is no doubt that it is a useful addi-
tion to the handbooks on public international law. Intervening at a time
when the doctrinal debate is at its height, as witness the proceedings of
the Institut de droit international at its Vancouver session in August 2001,
the Judgment casts a great deal of light on this issue.

106. The question of the “legal relationship between universal jurisdic-
tion and .. . immunities” !°°, which I was concerned to raise, has also
implicitly been settled in favour of immunities''!®. And without prejudice
to the established nature of the legal principle concerned, with the excep-
tion of the power to punish certain violations of conventional provisions
recognized as between States parties.

107. The Court has established the existence in customary interna-
tional law of the rules relating to the criminal immunity and inviolability
of Ministers for Foreign Affairs. It has applied them to this case because
Mr. A. Yerodia Ndombasi was Minister for Foreign Affairs at the time
of the events concerned. Given that the international dispute concerned
conflicting claims between the immunities in question and so-called uni-
versal jurisdiction, it follows that the Court, by virtue of its decision, has
implicitly rejected the claim to such jurisdiction in the present case!!!.
It has thus ruled that so-called universal jurisdiction, even if it were
established in international law, would in any event be inoperative as
regards the criminal immunities and inviolability of the Minister for
Foreign Affairs, whatever the alleged crimes. The Applicant has not
requested a declaratory judgment. The Court has been asked to settle a
concrete dispute by stating the law and effectively applying it to the
dispute. But a general, abstract, impersonal discussion of this disputed

17 See Sayeman Bula-Bula, dissenting opinion appended to the Order of 8 Decem-
ber 2000 delivered in the case concerning the Arrest Warrant of 11 April 2000 (Demo-
cratic Republic of the Congo v. Belgium), Provisional Measures, I.C.J. Reports 2000,
p. 219, para. 4.

18 According to Dominique Carreau, Droit international, Vol. I, 2001, p. 653, the
Court performs a “major role” in “the development of contemporary international law”.

1% Sayeman Bula-Bula, dissenting opinion appended to the Order of 8 December 2000
delivered in the case concerning the Arrest Warrant of 11 April 2000 (Democratic Repub-
lic of the Congo v. Belgium), Provisional Measures, I.C.J. Reports 2000, p. 220, para. 7.

119 Judgment, paras. 70 and 71.

111 See the cases concerning the North Sea Continental Shelf, C.J. Reports 1969, pp. 6
et seq.

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jurisdiction, having not been requested by the Applicant, was not
required !!2, even though, in my view, it would have been desirable for
the Congo to have maintained this claim also in its final written and
oral submissions. Since the Applicant asked the Court to state the law
and settle the dispute, should it not have sought to dispose of every
possible ground, whether “universal”, humanitarian or other? One thing
is certain, the argument seeking to qualify immunities was rejected in
the Judgment’s operative part. Any other argument founded on
other grounds of “trans-frontierism” is also virtually excluded in the
reasoning. Faced with the “sound judicial economy”!'? observed by our
institution, it was for the opinions to “illuminate the reasoning of the
Judgment in counterpoint”, so that “the decision’s full substance could
be extracted and the whole import of its contribution to the jurisprudence
could be apprehended” !"*.

108. In conclusion, it is clear that the Congo also seems to have
acted in accordance with the “functional duality” referred to by Georges
Scelle. It brought international legal proceedings not only on its own
behalf and for itself, but also for the benefit of the “international com-
munity”. It has given the Court the opportunity to reaffirm and
strengthen the legal mechanism of immunities, which facilitates legal
relations between States worldwide, irrespective of the arguments raised
against it.

109. There is every likelihood that the Judgment, small in size, yet
large in legal substance, will be favourably received by the “international
community”, if, of course, this is taken to mean ail States, international
organizations and other international public entities. Irrespective of the
divergence of interests, the disparity in the level of development and the
diversity of cultures, what has been reaffirmed here is a denominator
common to all.

110. The decision should also serve as a rebuke to the opinion manipu-
lators, who should be denied the de facto power to exploit “the misfor-
tunes of others” for unstated ends''*.

112 There are some who trace “universal jurisdiction” back to the Middle Ages. In this
respect, one should perhaps be wary of taking as universal what is probably merely
regional. Hence. according to E. Ogueri I] “the rules of conduct which, for example, gov-
erned relations between Ghana and Nigeria in West Africa, or between nations in other
parts of Africa and Asia, were regarded as ‘universally recognized customary laws’” prior
to colonization. See E. Ogueri II, Intervention, International Law Association Report.
Warsaw Session, 1988, p. 969.

113 See Manfred Lachs, separate opinion appended to the Judgment of 24 May 1980 in
the case concerning United States Diplomatic and Consular Staff in Tehran, LCJ.
Reports 1980, p. 47.

114 Mohammed Bedjaoui, “La ‘fabrication’ des arrêts de la Cour international de Jus-
tice”, Le droit international au service de la paix, de la justice et du développement,
Mélanges Michel Virally, 1991, p. 105.

"lS See Bernard Kouchner. Le mulheur des autres, 1991 (241 pages).

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111. Lastly, it should call for greater modesty from the new funda-
mentalist crusaders on behalf of humanitarianism, “skilled at presenting
problems in a false light in order to justify damaging solutions”!'®,
including a certain trend of legal militancy !7.

(Signed) Sayeman BULA-BULA.

116 See Aimé Césaire, Discours sur le colonialisme, 1995, p. 8.

117 On legal militancy, see J. Combacau and Serge Sur, Droit international public, 1993,
p. 46; Nguyen Quoc Dinh, Patrick Dallier and Alain Pellet, Droit international public,
1992, p. 79. The authors discern a western current of militancy, supposedly represented
by Georg Schwarzenberger and Rosalyn Higgins of the United Kingdom and
Myres S. McDougal, Richard Falk and M. Reisman of the United States; an Eastern
current, without indicating any authors, and an Ancient World current with Moham-
med Bedjaoui, Georges Abi-Saab and Taslim Olawale Elias in the vanguard. In reality,
there is always an ideological start, and hence militancy, in the work of any author. To
quote just a few, J. Combacau and S. Sur, in op. cit., Avertissement. while stressing their
“legal positivism”, nonetheless display their liberal tendency. Thus, at a time when the
number of ratifications required by the Convention on the Law of the Sea had been
reached, they still speculate: “always supposing it ever enters into force” (pp. 452-453);
see also the assertion that this Convention has inverted “on purely formal bases the real
balance between interests and power” (p. 446) or the assertion that this text is not “like
the Geneva Conventions of 1958, a convention of codification but one of progressive
development . . .” (p. 452). See also Nguyen Quoc Dinh er al, op. cit., p. 1093, who refer
to “the possible entry into force of the Convention”.

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