8 December 2000

 

General List No. 121

 
     

international Court of Justice

     
 

Arrest Warrant of 11 April 2000

 
     

Congo

 

v. 

Belgium

     
     
 

Order

 
     
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BEFORE: President: Guillaume
   
PermaLink: http://www.worldcourts.com/icj/eng/decisions/2000.12.08_arrest_warrant.htm
   
Citation: Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2000 I.C.J. 182 (Order of Dec. 8)
   
Represented By:

Congo: H.E. Mr. Jacques Masangu-a-Mwanza;
Mr. Jacques Verges;
H.E. Mr. Ntumba Luaba Lumu;

Belgium: Mr. Jan Devadder;
Mr. Daniel Bethlehem;
Mr. Eric David

 
     
 
 
     
 

[p.182]
The International Court of Justice,

Composed as above,

After deliberation.

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

Makes the following Order:

1. Whereas, by Application filed in the Registry of the Court on 17 October 2000, the Democratic Republic of the Congo (hereinafter "the Congo") instituted proceedings against the Kingdom of Belgium (hereinafter "Belgium") for [p 183]

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

and for

"violation of the diplomatic immunity of the Minister for Foreign Affairs of a sovereign State, as recognized by the jurisprudence of the Court and following from Article 41, paragraph 2, of the Vienna Convention of 18 April 1961 on Diplomatic Relations";

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

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

"international arrest warrant issued on 11 April 2000 by a Belgian investigating judge . . . against the Minister for Foreign Affairs in office of the Democratic Republic of the Congo . . ., seeking his provisional detention pending a request for extradition to Belgium for alleged crimes constituting 'serious violations of international humanitarian law'";

and whereas the Congo points out that,

"under the very terms of the arrest warrant, the investigating judge claims jurisdiction in respect of offences purportedly committed on the territory of the Democratic Republic of the Congo by a national of that State, without any allegation that the victims were of Belgian nationality or that these acts constituted violations of the security or dignity of the Kingdom of Belgium";
4. Whereas the Congo refers in its Application to certain provisions of the Belgian "Law of 16 June 1993, as amended by the Law of 10 February 1999, concerning the punishment of serious violations of international humanitarian law"; whereas the Congo contends that

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

and whereas it further contends that Article 7 "establishes the universal applicability of the Law and the universal jurisdiction of the Belgian courts in respect of 'serious violations of international humanitarian law', without even making such applicability and jurisdiction conditional on [p 184] the presence of the accused on Belgian territory", and that this Article, and "the arrest warrant issued by the Belgian investigating judge . . .[,] are in breach of international law";

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

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

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

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

"[d]oubtless certain States, in adopting laws designed to bring their legislation into line with United Nations Security Council resolutions 827 of 25 May 1993 and 955 of 8 November 1994, establishing international tribunals for the prosecution of respectively, persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991 and persons responsible for acts of genocide or other serious violations of international humanitarian law committed in 1994 in the territory of Rwanda and as far as Rwandan citizens are concerned, responsible for such violations committed in the territory of neighbouring States, extended their jurisdiction in respect of the crimes thus defined to cases other than those where either the persons responsible or the victims were their own nationals",

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

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

and that, "while the Security Council attributes to national courts jurisdiction concurrent with that of the international tribunals — subject to [p 185] the primacy of the latter — to try the crimes which it defines, it lays down no criterion for such jurisdiction", and "establishes no derogation from the rules of criminal jurisdiction recognized by international law";

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

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

8. Whereas on 17 October 2000, immediately after the filing of the Application, the Congo submitted to the Court a request for the indication of a provisional measure, citing paragraph 1 of Article 41 of the Statute of the Court;

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

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

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

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

13. Whereas, pending the notifications required by Article 40, paragraph 3, of the Statute and Article 42 of the Rules of Court, by transmittal of the printed bilingual version of the Application both to the member States of the United Nations and to the other States entitled to appear before the Court, the Registrar on 20 October 2000 informed [p 186] those States of the filing of the Application and of its subject-matter, and of the filing of the request for the indication of a provisional measure;

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

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

"reserve[d] the right to raise any objections, in due time, to admissibility or to the Court's jurisdiction, in accordance with the relevant procedure and with Article 79 of the Rules of Court, and nothing in the procedural conduct of Belgium concerning the request for indication of provisional measures should be construed as implying any waiver of this right or confirmation of the Court's jurisdiction";

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

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

On behalf of the Congo:

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

On behalf of Belgium:

by Mr. Jan Devadder, Agent,
Mr. Daniel Bethlehem,
Mr. Eric David;

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

**

18. Whereas, at the hearing of 20 November 2000, the Congo essentially reiterated the line of argument developed in its Application and in its request for the indication of a provisional measure; whereas it referred also to Article 12 of the Preliminary Title of the Belgian Code of Criminal Procedure (entitled "Prosecution for crimes or offences (délitsj committed outside the territory of the Kingdom") and pointed out that, [p 187] according to that provision, "prosecution of the violations dealt with in this chapter shall take place only if the accused is found in Belgium"; whereas it maintained that the Belgian investigating judge, in an order rendered in another case, had

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

whereas the Congo stated that

"[i]t [was] clearly this unlimited jurisdiction which the Belgian State would confer upon itself if this judge's interpretation of the Law were correct which explained] the issue of the arrest warrant against H.E. Mr. Yerodia Ndombasi, against whom it [was] patently evident that no basis of territorial or in personam jurisdiction, nor any jurisdiction based on the protection of the security or dignity of the Kingdom of Belgium, could have been invoked";

and whereas the Congo observed that "[s]ince the issue of the warrant, the Belgian Government ha[d] not disavowed this interpretation";

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

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

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

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

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

*

22. Whereas, at the hearing of 21 November 2000, the Agent of Belgium, in his preliminary statement, made the following observation: "[according to our information, Mr. Yerodia is today no longer Minister for Foreign Affairs of the Congo";

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

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

and

"15. Calls on all parties to the conflict in the Democratic Republic of the Congo to protect human rights and respect international humanitarian law and the Convention on the Prevention and Punishment of the Crime of Genocide of 1948, and calls on all parties to refrain from or cease any support to. or association with, those suspected of involvement in the crime of genocide, crimes against humanity or war crimes, and to bring to justice those responsible, [p 189] and facilitate measures in accordance with international law to ensure accountability for violations of international humanitarian law";

and whereas Belgium observed that "[J]udge [Vandermeersch] was acting within the framework of action urged on the international community by the Security Council";

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

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

and whereas Belgium explained that

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

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

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

and whereas Belgium argued that

"[t]his rule [had] subsequently [been] confirmed by the Nuremberg Tribunal itself in its Judgment of 1946, then in the statute of the Tokyo Tribunal . . ., then in the Convention on the Prevention and Punishment of the Crime of Genocide . . ., by the International Law Commission, both in their formulation of the Nuremberg principles and in the 1996 Draft Code of Offences against the Peace and Security of Mankind . . ., not to mention the Statutes of the International Criminal Tribunals . . ., of the International Criminal Court . . . and, very recently, of the Special Court for Sierra Leone"; [p 190]

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

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

"[t]he warrant state[d] that, on 4 and 27 August 1998, Mr. Yerodia Ndombasi, then President Kabila's Principal Private Secretary, [had] made various public speeches broadcast by the media and inciting racial hatred, which speeches are alleged to have contributed to the massacre of several hundred persons, mainly of Tutsi origin",

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

27. Whereas at the hearings Belgium observed as follows:

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

and whereas it added that, "[mjutatis mutandis, the same would be the case if Mr. Yerodia Ndombasi were to visit or pass through Belgium in response to an invitation addressed to him by an international organization of which Belgium was a member";

28. Whereas at the hearings Belgium acknowledged that if Mr. Yerodia Ndombasi were arrested, "his right to personal liberty would ... be affected"; whereas it argued that "[h]owever, since the violation of Mr. Yerodia Ndombasi's right would occur in the course of ordinary criminal proceedings, this would be an exception to that right admitted by all the various instruments for the safeguard of the rights of the individual"; whereas Belgium accordingly concluded that "[s]ince no right has been violated, the Congo cannot claim that the infringement of Mr. Yerodia Ndombasi's liberty is a violation of international law which directly affects the Congo"; and whereas it added that Mr. Yerodia Ndombasi's [p 191] status as Minister "[did] nothing to change this conclusion", since "[t]he fact that an individual ha[d] the status of representative of a State [did not entitle him to] violate the law, whether it be domestic or international";

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

30. Whereas at the hearings Belgium argued as follows:

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

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

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

32. Whereas, at the hearings, Belgium argued with regard to the question of the Court's jurisdiction that the Application

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

and whereas Belgium accordingly concluded that "the Court should reject the Democratic Republic of the Congo's request for provisional measures"; and whereas it added that, "in the light of the Democratic Republic of the Congo's formulation on jurisdiction and for the avoid-[p 192]ance of doubt, [it] . . . reserve[d] [its] position on the question of jurisdiction and admissibility";

33. Whereas, with regard to the question of the rights to be preserved, Belgium argued at the hearings that "[t]he prerequisite . . . [was] that the rights which the applicant [sought] to preserve through the provisional measure procedure must not be illusory, must be the subject of the dis-pute in the proceedings on the merits and must in some manner be under threat by the action of which the applicant complains"; whereas it stated that in the present case "the 'right' claimed to be in need of preservation by the indication of provisional measures [was] the 'right' of the Democratic Republic of the Congo's Foreign Minister to travel abroad on governmental business"; whereas it added the following:
"Diplomatic discourse of course requires that representatives of States have the ability to travel abroad in the conduct of affairs of State. The point is that foreign travel is not a right. It is a function ... of diplomatic discourse ... It requires the consent of the receiving State";

and whereas it concluded that

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

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

35. Whereas, with regard to the requirement of urgency, Belgium contended at the hearings that "[e]ven before the cabinet reshuffle . . ., which saw Mr. Ndombasi moved to the education portfolio, there was no issue of urgency"; and whereas it stated the following:

"The reality was that the arrest warrant was issued on 11 April 2000. The Democratic Republic of the Congo has known about it since at least 12 July 2000. To the point of the filing of the Demo-[p 193]cratic Republic of the Congo's Application on 17 October 2000, there was no suggestion of any urgency . . . Belgium would have contended yesterday that the request for provisional measures did not meet the requirement of urgency: this is even clearer today, in circumstances in which Mr. Ndombasi is no longer the Foreign Minister";

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

36. Whereas at the hearings Belgium further stated that "the relief sought by the Democratic Republic of the Congo brought by way of provisional measures [was] identical to the relief which it [sought] on the merits of its claim, namely, the immediate cancellation of the arrest warrant"; and whereas it referred to the Order made by the Permanent Court of International Justice on 21 November 1927 in the case concerning the Factory at Chorzow (P.C.I.J., Series A, No. 72, p. 10), in order to support its argument that "[t]he exceptional nature of the provisional measures procedure [did] not admit of an interim judgment granting the relief requested in the Application";
37. Whereas at the hearings Belgium stated that it "[did] not see any risk of a significant deterioration in relations between Belgium and the Democratic Republic of the Congo such as to warrant provisional measures [being indicated propriu motu]";

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

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

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

*

40. Whereas, at the hearing of 22 November 2000, in its second round of oral argument, the Congo contended that "[t]he international status of the Minister for Foreign Affairs [was] governed by the principle that he should be assimilated to a foreign Head of State in so far as immunity [p 194] and inviolability [were] concerned" and that "any minister sent by his or her State to represent it abroad, deal with other States or international organizations and, where necessary, enter into commitments on behalf of that State, also enjoy[ed], sensu lato, privileges and immunities"; whereas it pointed out that

"[w]ith regard to Mr. Yerodia, yesterday Minister for Foreign Affairs, today Minister of Education in the new Congolese Government, ... he [would] be called upon to travel, to respond to invitations from abroad, to attend international meetings . . ."

and that "[h]e [would] often be called upon to be sent as the plenipotentiary personal representative of the Head of State to represent him abroad"; and whereas the Congo added that in this capacity Mr. Yerodia Ndombasi "[would] undoubtedly be entitled to benefit from the principle of assimilation to the Head of State, the Head of Government or the Minister for Foreign Affairs, as [might] be presumed from Article 7, paragraph 2 (c), of the 1969 Vienna Convention on the Law of Treaties";

41. Whereas, at that hearing, the Congo claimed that "the international arrest warrant in dispute contravene[d] the 'principle of non-retro-activity"'; whereas in support of this claim it cited Article 2, paragraph 1, of the Belgian Penal Code, and also the 1966 International Covenant on Civil and Political Rights and the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms;
42. Whereas, at that same hearing, the Congo contended that "[p]rima facie, the Court's jurisdiction [could] not be contested" and

"derive[d] clearly from the optional declarations recognizing as compulsory the jurisdiction of the Court made by the Kingdom of Belgium and the Democratic Republic of the Congo on 3 April 1958 and 8 February 1989, respectively, . . . and which appear[ed] to contain no reservation";

43. Whereas, at the said hearing, the Congo made the following statement:

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

Generally, the Democratic Republic of the Congo requests the Court, on the basis of Article 75, paragraphs 1 and 2, of the Rules of Court, to indicate measures which consist, inter alia, in urging both Parties — Belgium in particular, and the Democratic Republic of the Congo — to adopt a course of conduct which will prevent the continuation, aggravation and extension of the dispute, in particular by eliminating the main cause of this dispute"; [p 195]

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

"to decide this case, having regard to the readiness of both Parties to seek a friendly settlement by diplomatic means, and ... by persuading the Belgian judge, Mr. Vandermeersch, to withdraw his international arrest warrant";

*

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

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

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

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

and that "the [said] Cabinet reshuffle . . . also comprehensively undermine[d] any residual claim that there [might] have been concerning urgency" ;

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

49. Whereas, at that hearing, Belgium again referred to what it had said in its first round of oral argument concerning a call by the Court to the Parties (see paragraph 39 above); and whereas it observed in this connection that "[t]he statements of the Vice-Minister of Justice and Parliamentary Affairs of the Democratic Republic of the Congo seemed . . . to support such an approach"; and whereas Belgium added that it [p 196]

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

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

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

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

***

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

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

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

54. Whereas it falls to the Court first of all to address the question of whether, as a result of the said ministerial reshuffle, the Application of [p 197] the Congo has been deprived of its object and must therefore be removed from the List; and whereas the Court will then, if necessary, examine the separate question of whether, as a result of this reshuffle, the request for the indication of provisional measures by the Congo has been rendered without object and must consequently be rejected;

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

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

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

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

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

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

59. Whereas the request for the indication of a provisional measure submitted by the Congo following the filing of its Application "seeks an [p 198] order for the immediate discharge of the disputed arrest warrant"; whereas, as has just been pointed out (see paragraph 56 above), that arrest warrant continues to be in the name of Mr. Yerodia Ndombasi; whereas at the hearings the Congo maintained its original request, presenting it as follows:

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

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

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

**

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

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

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

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

"in accordance with Article 36, paragraph 2, of the Statute of the International Court of Justice:
The Executive Council of the Republic of Zaire recognizes as compulsory ipso facto and without special agreement, in relation to [p 199] any other State accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning:

(a) the interpretation of a treaty;

(b) any question of international law;

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

(d) the nature or extent of the reparation to be made for the breach of an international obligation.
It is understood further that this declaration will remain in force until notice of its revocation is given";

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

63. Whereas, notwithstanding a certain lack of precision in the terms whereby, in its Application, the Congo set out the bases on which it sought to found the jurisdiction of the Court, the Application does nonetheless refer to the acceptance of the Court's jurisdiction by Belgium; whereas, in accordance with Article 38, paragraph 2, of the Rules of Court, "[t]he application shall specify as far as possible the legal grounds upon which the jurisdiction of the Court is said to be based" (emphasis added), and whereas it is in any event for the Court to ascertain in each case whether it has jurisdiction; whereas, as recalled above (see paragraph 61), the declarations whereby Belgium and the Congo recognized the compulsory jurisdiction of the Court were duly deposited with the Secretary-General of the United Nations, who, in accordance with Article 36, paragraph 4, of the Statute, transmitted copies thereof to the Court and to all the States parties to the Statute; whereas these declarations were reproduced in the Yearbook of the Court; whereas the declarations in question are therefore within the knowledge both of the Court and of the Parties to the present case, who cannot but be aware that "the Court's jurisdiction ... is based on the consent of States, expressed in a variety of ways including declarations made under Article 36, paragraph 2, of the Statute" (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 32, para. 44); whereas, having regard to the terms in which the Application was formulated and to the submis-sions presented by the Congo, Belgium could readily expect that the declarations made by the two Parties would be taken into consideration as a basis for the jurisdiction of the Court in the present case; whereas [p 200] Belgium was therefore in a position to prepare and put forward any such argument as it thought fit in this regard; and whereas the fact that the Congo invoked those declarations in the second round of oral argument on the request for the indication of provisional measures was not likely to "seriously jeopardize the principle of procedural fairness and the sound administration of justice" (Legality of Use of Force ( Yugoslavia v. Belgium), Provisional Measures, Order of 2 June 1999, I.C.J. Reports 1999, para. 44);

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

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

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

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

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

**[p 201]

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

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

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

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

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

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

74. Whereas in its second round of oral argument the Congo asked the Court to call upon the two Parties "to adopt a course of conduct which will prevent the continuation, aggravation and extension of the dispute, in particular by eliminating the main cause of this dispute"; whereas it also asked the Court to "[have] regard to the readiness of both Parties to seek a friendly settlement by diplomatic means, and . . . [persuade] the [p 202] Belgian judge, Mr. Vandermeersch, to withdraw his international arrest warrant";
75. Whereas in the course of its oral argument Belgium stated that it would have no objection to the Court's requesting the Parties to examine jointly, in good faith, the difficulties raised by the arrest warrant, with a view to finding a solution that was consistent with their obligations under international law (see paragraphs 39 and 49 above);

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

**

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

***

78. For these reasons,

The Court,

(1) Unanimously,

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

(2) By fifteen votes to two,

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

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

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

Done in French and in English, the French text being authoritative, at the Peace Palace, The Hague, this eighth day of December, two thou-[p 203]sand, in three copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of the Democratic Republic of the Congo and the Government of the Kingdom of Belgium, respectively.

(Signed) Gilbert Guillaume,
President.

(Signed) Philippe Couvreur,
Registrar.

Judges Oda and Ranjeva append declarations to the Order of the Court; Judges Koroma and Parra-Aranguren append separate opinions to the Order of the Court; Judge Rezek and Judge ad hoc Bula-Bula append dissenting opinions to the Order of the Court; Judge ad hoc Van den Wyngaert appends a declaration to the Order of the Court.

(Initialled) G.G.
(Initialled) Ph.C. [p 204]


DECLARATION OF JUDGE ODA

1. I am in agreement with the Court's decision to dismiss the request for the indication of a provisional measure presented on 17 October 2000 by the Congo together with its Application, although I believe that paragraph 78 (2) of the operative part of the Court's Order should be more clearly phrased in order to reflect the dismissal of the request in this particular case.

2. I believe that the Application presented by the Congo has, from the outset, been moot, no matter whether Mr. Yerodia Ndombasi was Minister for Foreign Affairs (as he was up to 20 November 2000) or Minister of Education (as he is now). In my view, in any event, no "irreparable prejudice" did result for Congo, or "might be caused in the immediate future to the Congo's right", by the disputed arrest warrant (cf. Order, para. 72). It is noted that Mr. Yerodia Ndombasi was present at the United Nations General Assembly in New York in September of this year.

The Court seems to be led to the opposite conclusion that "the Congo's Application has not at the present time become moot" (Order, para. 57), and that "the request by the Congo for the indication of provisional measures has not become moot by reason of Mr. Yerodia Ndombasi's appointment as Minister of Education on 20 November 2000" (Order, para. 60), although the Court does not in the present Order seem to give sufficient explanation to justify these conclusions.

3. In this Order, the Court refrains from pronouncing on the argument advanced by Belgium that "the [provisional] measure relating to the discharge of the arrest warrant, sought by the Congo on a provisional basis, is identical to that sought by it on the merits" (Order, para. 73), while I believe that that reason in itself would be sufficient ground for the Court to reject the request for the indication of a provisional measure.

4. The Court states that "the Parties appear to be willing to consider seeking a friendly settlement of their dispute" (Order, para. 76, emphasis added), but what Belgium in fact suggested was that it would not object to the Court indicating

"provisional measures which called upon the Parties jointly, in good faith, to address the difficulties caused by the issuance of the arrest warrant with a view to achieving a resolution to the dispute in a manner that is consistent with their obligations under international law, including Security Council resolutions 1234 (1999) and 1291 (2000)" (CR 2000/33, p. 60; CR 2000/35, p. 18; cf. CR 2000/35, p. 23). [p 205]

In fact Belgium rather asks "the Court to remove from its List [this] case . . . brought by [the Congo] against Belgium by Application dated 17 October 2000" (final submissions of Belgium dated 23 November 2000).

5. I am unable to share the Court's view that
"it is desirable that the issues before the Court should be determined as soon as possible; whereas it is therefore appropriate to ensure that a decision on the Congo's Application be reached with all expedition" (Order, para. 76).

I have doubts as to why the Court should be in so much haste to reach a conclusion on the interpretation of certain general principles of international law; possibly this is a compromise to make up for the dismissal of the Congo's request for provisional measures. It appears to me that the Court has misunderstood the intention of Belgium — for whom, in fact, there exists no dispute to be argued before this Court.

Belgium simply wished that the difficulties in the Congo region would not be aggravated, and that a resolution of the "dispute" in general should be sought in accordance with, inter alia, Security Council resolutions 1234 (1999) and 1291 (2000), which were aimed at halting hostilities and bringing about a cease-fire.

**
6. This line of thinking reflects my position on paragraph 78 (1) of the Court's Order. With much reluctance I cast my vote in favour of paragraph 78 (1) of the operative part of the Court's Order, but only from a sense of judicial solidarity. However, I still believe that this case should have been removed from the Court's General List since, in my view, there is no legal dispute susceptible to the Court's jurisdiction in this instance.

7. The Congo did not indicate in its Application of 17 October 2000 any basis of jurisdiction for this case. The basis of jurisdiction was only referred to by the Congo on 22 November 2000 in the second round of the oral pleadings (CR 2000/34, p. 17). As understood from its belated argument, the Congo appears to rely on the optional clause — in other words Article 36, paragraph 2, of the Court's Statute — when it cites violation of "the principle that a State may not exercise its authority on the territory of another State" and "the principle of equality among all members of the Organization of the United Nations, as laid down in Article 2, paragraph 1, of the Charter of the United Nations". The Congo also appears to rely on the 1961 Optional Protocol concerning the Compulsory Settlement of Disputes as far as it invokes the alleged violation by Belgium of the diplomatic immunity provided for in the 1961 Vienna Convention on Diplomatic Relations.

8. I would question whether, at the time of the Application of 17 October 2000, there was in fact between the Congo and Belgium "[a] legal dis-[p 206]pute[s] concerning: (a) the interpretation of a treaty; (b) any question of international law; [etc.]" (Statute of the Court, Art. 36, para. 2) or a dispute "arising out of the interpretation or application of the [Vienna Convention on Diplomatic Relations]" (Optional Protocol concerning the Compulsory Settlement of Disputes, Art. 1). Moreover, in order for such a dispute or legal dispute to exist, there have to be legal claims raised by one party reflecting the assertion of a breach by the other party of its rights and interests, and denial of those claims by the other party.

9. In its Application of 17 October 2000 the Congo did not present its submissions and thus did not specify the dispute, in the terms as I have referred to them above, alleged to exist between it and Belgium.
The Congo simply stated that it believed, in my view erroneously, that Mr. Yerodia Ndombasi, as Foreign Minister, would be arrested in consequence of the warrant issued by the Belgian judge. Such a belief or suspicion regarding possible or potential inconvenience cannot, in my view, amount to a claim in a legal sense and cannot constitute a legal basis for the Court's jurisdiction. Towards the end of the oral pleadings, counsel for the Congo stated that:

"[Congo] requests the Court to order Belgium to comply with international law; to cease and desist from any conduct which might exacerbate the dispute with [the Congo]; specifically, to withdraw the international arrest warrant issued against Minister Yerodia" (CR 2000/34, p. 23);

and the Agent for Congo asked the Court "to determine what the law is . . . and . . . [to] persuad[e] the Belgian judge, Mr. Vandermeersch, to withdraw his international arrest warrant" (ibid., p. 27). I repeat that the Congo neither identified a legal dispute with Belgium nor specified the rights and interests allegedly breached by Belgium. The Congo simply wanted confirmation of certain legal principles of international law concerning the exercise of State jurisdiction.

10. The matters concerning the scope and extent of State jurisdiction are certainly major issues of general international law, but they cannot be dealt with by this Court unless they are presented to it as the subject of a dispute.

*
11. It might be argued that the issue of the existence of a dispute — a legal dispute as referred to in Article 36, paragraph 2, of the Court's Statute, or a dispute as referred to in the 1961 Optional Protocol — is a matter to be dealt with at the jurisdictional stage of a case before this Court. In my view, however, that issue is not the same as a preliminary [p 207] objection raised by a respondent State, in a case initiated by unilateral application, concerning the issue of whether a State may be compulsorily brought to the Court in consequence of its voluntary acceptance in advance of the Court's jurisdiction, in circumstances where, in principle, the consent of the parties is essential.

The existence of such a "legal dispute" or of a "dispute" is, theoretically, a matter to be dealt with prior to a decision on whether the Court has jurisdiction. It is true that this issue may generally be dealt with at the jurisdictional phase once the case is registered with the Court (see "Preliminary Objections" under Section D (Incidental Proceedings) of the Rules of Court).

12. However, if by chance the Court finds itself in a position (as has been seen in certain recent cases) to face this question much earlier, namely prior to the jurisdictional phase, it should not hesitate to do so. Interim Protection (Section D (Incidental Proceedings) of the Rules of Court) presents an ideal opportunity to deal with this question as a "pre-preliminary" question. The Court could make a decision to remove a case from its General List at that stage or to continue to be seised of it, after having examined whether there existed a "legal dispute" or a "dispute".

If the Court had to wait until the jurisdictional phase before dealing with the question of whether or not there actually existed a justiciable dispute, there would be an excessive number of similar cases brought to the Court simply for the reason that a State believed that another State had acted contrary to international law. I am afraid that many States would then withdraw their acceptance of the Court's compulsory jurisdiction in order to avoid such a distortion in the presentation of cases brought by other States.

(Signed) Shigeru Oda. [p 208]


DECLARATION OF JUDGE RANJEVA

[Translation ]

I voted in favour of the operative part of the Order on account of paragraph 76: a final determination of all the issues before the Court, to be reached with all expedition and with the Parties' full co-operation to that end in the proceedings, is the most appropriate of provisional measures.

(Signed) Raymond Ranjeva. [p 209]


SEPARATE OPINION OF JUDGE KOROMA

I voted in favour of this Order, not without some doubts and hesitations, because of the wider ramifications surrounding the case itself and the legal principles involved. The case involves fundamental principles of law, national and wider community interests and, not least, the circum-stances which arose since the Court became seised of the Application for provisional measures.

Given the competing legal principles and the prevailing circumstances, the request by the Applicant for the indication of provisional measures, in order to preserve its rights, cannot be judged to be without merit, let alone "moot", without object or frivolous. There are serious issues which would require adjudication should the matter reach the merits phase.

Flowing from its Statute and its jurisprudence, the Court will grant a request for an interim measure of protection if a dispute exists and if the requirements of urgency and likelihood of irreparable harm to the parties' rights or interests are established. In other words, the Court will indicate provisional measures where a dispute exists between the parties and the requirements of urgency and irretrievable damage are present and real.

According to the Application, both the existence and execution of the international warrant — the subject-matter of the dispute — would not only have an adverse effect on Mr. Yerodia Ndombasi in the performance of his functions as Foreign Minister, but will also cause irretrievable damage to his rights. In my view, the risk of that happening could not be said not to have existed. But that risk notwithstanding, Mr. Ndombasi ceased to be entrusted with the portfolio of Foreign Minister, as a result of a Cabinet reshuffle in Kinshasa. This development could not have been without significance for the Court in determining whether or not to grant the request for provisional measures as far as Mr. Ndombasi was concerned. The Court, rightly, in my view, took judicial cognizance of this development, as it was part of the case of the Democratic Republic of the Congo that the existence of the arrest warrant prevented [p 210] Mr. Ndombasi from performing his functions as Foreign Minister, which in turn ran the risk of having a negative impact on the rights of the Democratic Republic of the Congo in the conduct of its foreign policy. The Court concluded that, with Mr. Ndombasi no longer serving as Foreign Minister, the urgency which had attended his functions as Foreign Minister had become somewhat diminished or reduced. While it is not unreasonable to reach this conclusion as far as Mr. Ndombasi is concerned, I wonder if this response is adequate as far as the sovereign rights of the Congo as sovereign State are concerned. I also entertain some doubts regarding the extent of the injury which may have been caused to the interests of the Democratic Republic of the Congo as a result of the issue of the warrant and the international responsibility of the Kingdom of Belgium for this.

Finally, the Order also acknowledges the willingness of the Parties to act in good faith, in addressing the difficulties caused by the issuance of the arrest warrant with a view to achieving a resolution of the dispute, if called upon to do so by the Court. In my view, the Court should have embodied this plea within the confines of the Order. The jurisprudence of this Court, as well as that of its predecessor, the Permanent Court, has made exhortatory calls on parties not to take steps capable of prejudicing the rights claimed or of aggravating the dispute submitted to the Court {Electricity Company of Sofia and Bulgaria, Judgment, 1939, P.C.I.J., Series A/B, No. 79, p. 199). A similar call would, in my view, have been useful and in accordance with the judicial function of the Court.

Against this background, and in view of the importance of the legal issues involved, the Court's finding that the object of the claim has not disappeared, together with its decision to consider the case with the utmost despatch, is both judicious and appropriate under the circumstances.

(Signed) Abdul G. Koroma. [p 211]


SEPARATE OPINION OF JUDGE PARRA-ARANGUREN

1. Notwithstanding my vote for the operative part of the Order, I feel it necessary to make the following points.

2. In its Application, the Democratic Republic of the Congo relies, as basis for the Court's jurisdiction, on the fact that "Belgium has accepted the jurisdiction of the Court and, in so far as may be required, the present Application signifies acceptance of that jurisdiction by the Democratic Republic of the Congo" (Order, para. 2).

3. The Democratic Republic of the Congo did not indicate any additional basis of jurisdiction in its request for provisional measures.

4. At the hearing of 22 November 2000, in its second round of oral argument, the Democratic Republic of the Congo contended that

"Prima facie, the Court's jurisdiction cannot be contested. It derives clearly from the optional declarations recognizing as compulsory the jurisdiction of the Court made by the Kingdom of Belgium and the Democratic Republic of the Congo on 3 April 1958 and 8 February 1989, respectively, which are appended to this statement and which appear to contain no reservation." (Order, para. 41).

5. On 23 November 2000, Belgium objected "to the invocation of a basis of jurisdiction ... in the second round of oral arguments", and supported its contention citing jurisprudence of the Court (Order, paras. 45, 62).

6. As recalled by Belgium, the Court stated on 2 June 1999:

"42. Whereas after it had filed its Application Yugoslavia further invoked, as a basis for the Court's jurisdiction in this case, Article 4 of the Convention of Conciliation, Judicial Settlement and Arbitration, between Belgium and the Kingdom of Yugoslavia, signed in Belgrade on 25 March 1930; whereas Yugoslavia's 'Supplement to the Application', in which it invoked this new basis of jurisdiction, was presented to the Court in the second round of oral argument (see paragraph 14 above); and whereas Yugoslavia gave no explanation [p 212] of its reasons for filing this document at this stage of the proceedings;

43. Whereas Belgium, referring to Article 38, paragraph 2, of the Rules of Court, argues as follows:

'It follows clearly that it is unacceptable, as in this case, to introduce a new ground in extremis supplementing an essential point in the arguments on the prima facie jurisdiction of the Court. Moreover, we may ask ourselves why the Federal Republic of Yugoslavia, which is deemed to be aware of the treaties to which it claims now to have succeeded, thought it unnecessary, contrary to the requirement of the principle of the sound admin-istration of justice and of the provisions of Article 38 which I have just cited, to include this ground when filing its Application';

and whereas Belgium accordingly asks the Court, 'primarily, to strike this ground from the proceedings'; whereas Belgium contends 'in the alternative' 'that the Convention of 1930 confers jurisdiction not on [the] Court, but on the Permanent Court of International Justice', and whereas it contends that Article 37 of the Statute is without effect here; and whereas Belgium states'/« the further alternative . . . that, under the terms of [the] Convention [of 1930], recourse to the Permanent Court of International Justice is a subsidiary remedy', and whereas it points out that Yugoslavia 'has failed to exhaust the preliminary procedures whose exhaustion is a necessary condition for seisin of the Permanent Court of International Justice';

44. Whereas the invocation by a party of a new basis of jurisdiction in the second round of oral argument on a request for the indication of provisional measures has never before occurred in the Court's practice; whereas such action at this late stage, when it is not accepted by the other party, seriously jeopardizes the principle of procedural fairness and the sound administration of justice; and whereas in consequence the Court cannot, for the purpose of deciding whether it may or may not indicate provisional measures in the present case, take into consideration the new title of jurisdiction which Yugoslavia sought to invoke on 12 May 1999." (Legality of Use of Force ( Yugoslavia v. Belgium), Provisional Measures, Order of 2 June 1999, I.C.J. Reports 1999, pp. 138-139, paras. 42-44.)

7. In a different Order, rendered on the same day, 2 June 1999, the Court confirmed that it could not take into consideration the new title of jurisdiction advanced in the second round of oral pleadings. There it was stated:

"42. Whereas after it had filed its Application Yugoslavia further invoked, as basis for the Court's jurisdiction in this case, Article 4 of the Treaty of Judicial Settlement, Arbitration and Conciliation [p 213] between the Netherlands and the Kingdom of Yugoslavia, signed in The Hague on 11 March 1931; whereas Yugoslavia's 'Supplement to the Application', in which it invoked this new basis of jurisdiction, was presented to the Court in the second round of oral argument (see paragraph 14 above); whereas Yugoslavia gave no explanation of its reasons for filing this document at this stage of the proceedings; and whereas Yugoslavia argues that, although the procedure provided for in Article 4 of the 1931 Treaty has not been strictly followed, 'the Court, like its predecessor, the Permanent Court of International Justice, has always had recourse to the principle according to which it should not penalize a defect in a procedural act which the Applicant could easily remedy';

43. Whereas the Netherlands objects to the late presentation by Yugoslavia of this basis of jurisdiction; whereas the Netherlands argues that the Treaty of Judicial Settlement, Arbitration and Conciliation of 11 March 1931 is no longer in force between the Netherlands and Yugoslavia; whereas the Netherlands observes that it is not a party to the 1978 Vienna Convention on the Succession of States in respect of Treaties and that, in contrast with a number of other bilateral treaties concluded with the former Socialist Federal Republic of Yugoslavia, no provisional mutual agreement has been reached on the continued validity of the 1931 Treaty; whereas the Netherlands further argues that Yugoslavia has not complied with the procedural requirements of Article 4 of the Treaty, in particular the period of notice of one month;

44. Whereas the invocation by a party of a new basis of jurisdiction in the second round of oral argument on a request for the indication of provisional measures has never occurred in the Court's practice; whereas such action at this late stage, when it is not accepted by the other party, seriously jeopardizes the principle of procedural fairness and the sound administration of justice; and whereas in consequence the Court cannot, for the purpose of deciding whether it may or may not indicate provisional measures in the present case, take into consideration the new title of jurisdiction which Yugoslavia sought to invoke on 12 May 1999." (Legality of Use of Force (Yugoslavia v. Netherlands), Provisional Measures, Order of 2 June 1999, I.C.J. Reports 1999, pp. 556-557, paras. 42-44.)

8. Notwithstanding the above-mentioned decisions, the Court adopts a different position in the present case and maintains that the invocation by Congo of the optional clause declarations in the second round of oral argument was not likely seriously to jeopardize the principle of procedural fairness and the sound administration of justice (Order, paras. 63-64).

9. As first argument in support of its new position, the Court recalls that Article 38, paragraph 2, of the Rules of Court requires that "[f]he [p 214] application shall specify, as far as possible the legal grounds upon which the jurisdiction of the Court is said to be based" (emphasis added by the Court). However, in my opinion, this is not a good reason, because that paragraph was in force in June 1999 and it did not prevent the Court from reaching a different conclusion in the above-mentioned cases.

10. Secondly, paragraph 63 of the Order states that "it is in any event for the Court to ascertain in each case whether it has jurisdiction"; but, in my opinion, this task of the Court is different from making researches of its own to discover possible grounds of jurisdiction not indicated by the parties.

11. In the third place, the Court maintains that the optional clause declarations made by Belgium and the Democratic Republic of the Congo are "within the knowledge both of the Court and of the Parties", because they were duly deposited with the Secretary-General of the United Nations, who transmitted copies thereof to the Court and to all the States parties, and because they are reproduced in the Yearbook of the Court. However, in my opinion, neither possible knowledge of the optional clause declarations made by the Parties nor their reproduction in the Yearbook of the Court incorporate them as part of the Application filed by the Democratic Republic of the Congo against Belgium.

12. Finally, the Court states that,

"having regard to the terms in which the Application was formulated and to the submissions presented by the Congo, Belgium could readily expect that the declarations made by the two Parties would be taken into consideration as basis for the jurisdiction of the Court in the present case" (Order, para. 63);

that Belgium was in a position to prepare and put forward any such argument as it thought fit in this regard; and that therefore Belgium was not prejudiced by the fact that the Democratic Republic of the Congo invoked its optional clause declarations in the second round of oral argument. In my opinion, these statements may only be considered wishful thinking not supported by the records.

13. Moreover, the Democratic Republic of the Congo indicated its optional clause declaration as a ground for the jurisdiction of the Court in three separate Applications filed by it in the Registry on 23 June 1999 (cases concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), (Democratic Republic of the Congo v. Burundi) and (Democratic Republic of the Congo v. Rwanda)). The Democratic Republic of the Congo did not proceed in the same way in the present case and has given no explanation for indicating its optional clause declaration as a ground for the jurisdiction of the Court in the second round of oral argument. Therefore, in my opinion, it cannot be taken into account by the Court. [p 214]

14. For all the above reasons, in my opinion the Court cannot take into consideration the invocation made by the Democratic Republic of the Congo of its own optional clause declaration in the second round of oral argument as a new title to support the jurisdiction of the Court.

(Signed) Gonzalo Parra-Aranguren. [p 216]


DISSENTING OPINION OF JUDGE REZEK

[Translation ]

1. Most contemporary systems of law take a fairly uniform view of provisional measures, notably their bases and effects. Notwithstanding the silence of the Statute and Rules of the International Court of Justice, which only lay down procedural rules in this respect, the Court does enjoy guidance in the matter, and not only that provided by its own jurisprudence.

2. At this stage, it is not a question of the effects, but rather of the bases. These are: the bonus fumus juris, the prima facie merit of the Applicant's argument in support of its claim; and the danger in delay, the risks raised by waiting, the danger that, if the Applicant prevails in the end, its claim ultimately will not be fittingly upheld, because the Court will have failed to grant it in advance the benefit, even if only partial, of the measures it is seeking.

3. The merit of the request submitted by the Democratic Republic of the Congo is apparent here. This is the first time that a State has come before the Court to tell it that a member of its Government is the subject of an arrest warrant issued by judicial authorities of another State and that the Government of that other State has provided support for the arrest warrant by circulating it throughout the international community.

4. Quite apart from the issue of the status of the individual at whom the warrant is directed and of the question of privileges enjoyed on the international plane by certain State officials, this is also the first time the Court finds itself confronted with the problem raised by an act of a local court purportedly based solely on the principle of universal justice — without regard to the situs of the offence or to the defence of essential assets or values of the forum State or to the nationality of agent or victims — and without the accused being present on the territory of the forum State. In my view, the argument that this amounts to a violation of the fundamental rule of sovereign equality of States is valid prima facie.

5. As far as urgency is concerned, I believe that the situation described in the request, i.e., the existence of the arrest warrant issued against a [p 217] member of the Congolese Government and the assistance being provided by the Belgian Government in executing the warrant, constitutes a continuing, permanent restriction on the full exercise of the public office of the individual in question and causes harm, also continuing and permanent, to the sovereignty of the applicant State.

6. What is the magnitude of the prejudice and therefore the degree of urgency? This is not a matter of ascertaining whether the continuation in force of the arrest warrant against the Congolese Minister causes irreversible prejudice — death aside, little is irreversible — but rather determining whether the indication of a provisional measure would also be liable to cause prejudice no less serious than that sought to be remedied on a provisional basis. Personally, I do not see any major drawback in suspending the effects of the arrest warrant issued by an investigating judge in Brussels, or rather the international dimension which the Belgian Government has conferred on it, until such time as the Court makes a final ruling on this legal issue, which is of undeniable importance and topicality.

7. To that end, I, unlike the majority, would have upheld the request for a provisional measure.

(Signed) Francisco Rezek. [p 218]



DISSENTING OPINION OF JUDGE BULA-BULA

[Translation ]

Table of contents
 

 

 

Paragraphs

 

Introduction

1-5

I.

Points of Concurrence

6-7

II.

Points of Dissent

8-28

 

A. Urgency

9-14

 

B. Irreparable prejudice

15-23

 

C. Preservation of rights

24-28

III.

Conclusion

29-37

[p 219]

INTRODUCTION

1. It was with regret that I voted against the main clause of the operative part of the Order of 8 December 2000 concerning the indication of provisional measures. I understand that the Court was sharply divided over the question. It thus appeared wise to seek a compromise among the Members of the Court.

2. Such a reason may be acceptable, particularly since the present case is at a purely procedural stage which does not prejudge the rights of either Party.

3. It is precisely the interlocutory nature of the Order which prompts me to believe that the compromise ultimately adopted by the Court lacks balance. Thus, I am of the opinion that the Court should have clearly indicated a minimal provisional measure which I find justified under the circumstances. Without necessarily following the terms of the request, the Court could have prescribed this measure propria motu, as permitted by its Statute (Art. 41) and Rules (Art. 75).

4. I believe that the Court should give a certain, clear and precise response, whether affirmative or negative, to the Congo's request. In other words, it should either deny it or grant it. The statement "the circumstances, as they now present themselves to the Court, are not such as to require the exercise of its power under Article 41 of the Statute to indicate provisional measures" (paragraph 2 of the operative part of the Order) does not appear, on first view, to be without ambiguity. We have become accustomed to the circumlocutions of a principal political organ of the United Nations when called upon to take difficult decisions. We must now get used to similar pronouncements from the principal judicial organ of the United Nations. Do the teachings, in the broad sense, of the jurisprudence benefit from this?

5. That is one of the main reasons for my dissent (I), but I do agree with the majority of the Court on certain points (II). Finally, I shall describe the solution which I find appropriate (III).

I. Points of Concurrence

6. I will briefly raise three points which the Court has considered and with which I am in agreement. Like the majority of the Members of the Court, I believe that the Court has prima facie jurisdiction (see paragraph 68 of the Order) pursuant to the Parties' respective declarations accepting its compulsory jurisdiction (see paragraphs 61 and 64 of the Order). But the Applicant failed to specify with mathematical precision the basis of the Court's jurisdiction. I also share the conclusion set out in the Order finding that "the request by the Congo for the indication of provisional measures has not been deprived of its object by reason of Mr. Yerodia Ndombasi's appointment as Minister of Education on 20 November 2000" (paragraph 60 of the Order). Finally, I voted with the majority [p 220] of the Court in favour of the first paragraph of the operative part of the Order. The Court rightly "Reject[ed] the request of the Kingdom of Bel-gium that the case be removed from the List". This request, possibly justified in the eyes of the Respondent, is in keeping with its extravagant claim to universal jurisdiction, as the Respondent conceives it. The Court intends to consider it on the merits "with all expedition" (paragraph 76 of the Order). This is a crucial point of the judicial compromise embodied in the decision and one which limits the inequitable consequences of the polite denial of the Congo's request.

7. Thus, I shall not address the very important issue, in this phase of the proceedings, of the legal relationship between universal jurisdiction and State immunities.

II. Points of Dissent

8. I shall now justify the minimal provisional measure which, in my view, the Court should have prescribed. For this purpose, I have to show that the conditions for the indication of such a measure, as laid down in a generally consistent manner in the jurisprudence, i.e., urgency, irrepa-rable prejudice and the preservation of the rights of the parties, have been and remain satisfied (for the doctrine, see in particular P. M. Martin, "Renouveau des mesures conservatoires: les ordonnances recentes de la Cour internationale de Justice", JDI, Vol. 102, 1975, pp. 45-59; J. Peter A. Bernhard, "The Provisional Measures Procedure of the International Court of Justice through US Staff in Teheran: Fiat Justitia, Pereat Curia", Virginia Journal of International Law, Vol. 20, No. 3, 1980, pp. 592-602).

A. Urgency

9. I believe that urgency must be assessed in the light of the sphere of human endeavour in question. It may be regarded as a circumstance calling for the expeditious handling of the case. Within that position there may be degrees of urgency, so that it is possible to establish a hierarchy among urgent situations: extreme urgency, great urgency, urgency (see the Order of 3 March 1999 in the LaGrand case, "the greatest urgency" (I.C.J. Reports 1999, p. 12, para. 9)). In all of these various cases, there is always urgency.

10. I therefore reaffirm that the urgency characterizing the present case has its own particular features. It is neither urgency in the medical sense of the term nor urgency as understood directly from the humanitarian standpoint. It is urgency in the general legal sense of the term. It cannot be assessed either in the absolute or in the light of individual precedents. In the case under consideration, the criterion of time must be measured in the light of the tragic events afflicting the Congo and the quickening rate at which international conferences concerning the country are being held. The Court has already taken cognizance of the [p 221] facts, concerning which it has indicated provisional measures (case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Order of 1 July 2000, I.C.J. Reports 2000, p. 111).

11. If it were true that, as the Congo alleges and Belgium does not dispute, "more than half the members of the Congolese Government might be prosecuted and might be named on international arrest warrants and requests for extradition, including the President of the Republic himself (see the oral argument by Mr. Ntumba Luaba Lumu, verbatim record of the public hearing on 22 November 2000, CR 2000/34, p. 20), and that, as the Congo contends, the "complainants" include "a political party in opposition to the Congolese Government and operating on Belgian territory", or that "security reasons" prevent counsel for Belgium from revealing the identity of the complainants of Congolese nationality who were behind the warrant of 11 April 2000 (see the oral argument by Mr. Eric David, verbatim record of the public hearing on 21 November 2000, CR 2000/33, p. 23), would there not be an urgent need for some form of provisional ruling? Does not the need to safeguard the efficacy of the international judicial function require that such a situation be prevented from arising in the case pending before the Court?

12. I am further led to reflect on this situation when I consider a comment by Mr. Ntumba Luaba Lumu, one of the Congo's counsel and a member of that country's Government. Belgium did not challenge that comment. The speaker asked in the following terms whether the reshuffling of the Congolese Government on 20 November 2000 was not in response to Belgium's desire:

"The question may be raised whether this warrant was not intended as a means to force the lawful authorities of the Democratic Republic of the Congo to make certain political changes which Belgium desired and which, moreover, have been welcomed." (See the verbatim record of the public hearing of 22 November 2000, CR 2000/34, p. 10.)

13. While I cannot establish a definite causal relationship between certain facts, I can also reasonably question the closeness in time of the visit to Kinshasa by a member of the Belgian Government on 18 November 2000, the reshuffling of the Congolese Government on 20 November 2000 and the opening of the hearings by the Court on 20 November 2000. Was it mere chance that these events coincided?

14. I am therefore of the opinion that there is an urgent need, albeit an attenuated one, to order provisional measures. And I believe so even more strongly because I have one fear: that, regardless of the Court's good intentions, a judicial decision on the merits may be a long time in coming, and that during that time there is a risk that the case could be removed from the List. Barring unforeseen developments. [p 222]

B. Irreparable Prejudice

15. I would be inclined to believe that the Congo has suffered irreparable prejudice, directly from the standpoint of moral damage and indirectly from the standpoints of material and physical damage and human injury, from Belgium's unilateral act against the Congolese Minister for Foreign Affairs. Such a criterion has been repeatedly upheld in the Court's abundant jurisprudence, notably in the cases concerning Nuclear Tests (Australia v. France) (I.C.J. Reports 1973, p. 103); United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran) (I.C.J. Reports 1979, p. 19); Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)) (I. C.J. Reports 1993, p. 19); and Vienna Convention on Consular Relations (Paraguay v. United States of America) (I.C.J. Reports 1998, p. 36); LaGrand (Germany v. United States of America) (I.C.J. Reports 1999, p. 15); and the case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) (I.C.J. Reports 2000, p. 127, para. 39). But, as far as the Applicant is concerned, it remains the case that actori incumbit probatio. Nor do I deny that the magnitude of the prejudice suffered by the Congo has changed since Mr. Yerodia Ndombasi moved from the Ministry of Foreign Affairs to the Ministry of Education. In other words, that State continues to suffer harm but in lesser proportions than that previously suffered from the standpoint of international relations.

16. Specifically, I believe that the arrest warrant of 11 April 2000 caused prejudice to Congolese diplomacy, since the head of the diplomatic corps, who did nevertheless take numerous trips abroad — in the southern hemisphere —, was unable for several months to take part in all the international meetings held throughout the world where the question of foreign armed activities on the territory of the Congo was addressed. Thus, when it found itself being represented by lower-level officials at meetings of Foreign Ministers, the Congolese State suffered the loss of the benefit of diplomatic precedence. The result was that the substance of talks, especially discussions aimed at ending the armed conflict, was adversely affected. The Congo's international sovereign prerogatives therefore suffered. This, I believe, is a type of irreparable prejudice (see Ewa Stanislawa Alicja Salkiewicz, Les mesures conservatoires dans la procedure des deux Cours de La Haye, 1984, p. 69, concerning "damage not capable of any reparation"). Although unfortunately no irrebutable evidence was offered, this situation could have had indirect consequences on the life of the civilian population victim of the armed conflict in progress (according to the International Rescue Committee (United States), Mortality Study Eastern Democratic Republic of Congo, "of the 1.7 million excess deaths, 200,000 were attributable to acts of violence" (sources: www.theirc.org/mortality.htm).

17. I would also argue that Belgium's conduct has cast discredit, and [p 223] continues to cast discredit, on the Government of the Congo, already weakened by the armed conflict in progress. That conduct is likely, as the result of a summary decision, to burden one of the Parties to the conflict from the outset with accusations that degrade it in the eyes of the international community and to characterize the aggressed as the aggressor (see Security Council resolution 1234 of 9 April 1999 and resolution 1304 of 16 June 2000). Has not the fact that Belgium, through Interpol, circulated its warrant to Interpol member States complicated the search for a peaceful resolution to the international armed conflict? I believe that the Congo's rights to international respect have been prejudiced thereby. These are moral rights to honour and dignity of the Congolese people, as represented by their State.

18. In sum, Belgium's actions have in the first place caused injury to the sovereign rights of the Congolese people, as organized in an independent State: "deprival of the State's sovereignty ... is a sure test of the irreparability of the prejudice" (El-Kosheri, dissenting opinion 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 Kingdom), I.C.J. Reports 1992, p. 215). In the words of Judge Oda, the object of provisional measures is "to preserve rights of States exposed to an imminent breach which is irreparable" (declaration in LaGrand, I.C.J. Reports 1999, p. 19, para. 5). Secondly, Belgium's actions have violated that people's rights to dignity and honour within the international community, including indirect injury in the form of other prejudice, albeit collateral.

19. I do not disagree, however, that it is very difficult to place a precise value on the injury caused to the Congo. But that is a problem which may arise in the practical application of the principle. I would point out once again that the absence over several months of the head of the Congolese diplomatic corps from international meetings held in the capitals of countries at the centre of world events, as opposed to those playing more peripheral roles, may in all likelihood have resulted in indirect damage to Congolese citizens and assets currently situated on territories where hostilities are taking place. The presence of the Congolese Minister for Foreign Affairs in person at those meetings might have saved lives. The Minister might have succeeded in convincing other parties to the armed conflict to respect international humanitarian law and human rights (see Judge Oda's declarations in the Breard and LaGrand cases: "the rights of victims of violent crimes (a point which has often been overlooked) should be taken into consideration" (Vienna Convention on Consular Relations (Paraguay v. United States of America), Provisional Measures, Order of 9 April 1998, I.C.J. Reports 1998, p. 260, para. 2, and LaGrand (Germany v. United States of America), Order of 3 March 1999, I.C.J. Reports 1999, p. 18, para. 2).

20. I believe it even more difficult to make a precise estimate of the moral prejudice. But that does not make that prejudice any less real. [p 224] When considering the merits of the case, the Court will be in a position to observe this. Under current international law, the act of issuing an arrest warrant against an organ of a foreign State is itself highly questionable. Let us imagine the converse situation, in which Congolese courts were to issue similar warrants against Belgian organs concerning acts committed in the Congo post-Nuremberg, during which period this new law came into being, according to counsel for Belgium. For, as Antonio Cassese states, European colonization caused "the destruction of entire ethnic groups" (Antonio Cassese, "La communauté internationale et le génocide", Le droit international au service de la paix, de la justice et du déve-loppement, Mélanges Virally, 1991, p. 183).

21. Nevertheless, I am of the view that the irreparable prejudice suffered by the Congo has diminished in magnitude since Mr. Yerodia Ndombasi was entrusted with the education portfolio on 20 November 2000, because he has at present been assigned the duties of Minister of Education and most of those activities are carried out on the national territory. The fact remains that, in a world in which an increasing number of matters take on an international dimension, a minor part of those duties, in the classic, division of labour sense, involves international relations. Is it acceptable that, because that part is small, it should be subject to such restrictions?

22. Moreover, international law recognizes the constitutional autonomy of States and, pursuant to that autonomy, States may freely appoint, without impediment or outside interference, any member of the Government to fulfil missions abroad, without regard to that member's nominal office. This would appear to be a common practice of the Congo, among other States. This is all the more important because the armed conflict confronting the Congo requires participation, both individual and collective, by members of its Government in bilateral and multilateral negotiations aimed at ending the war. It is therefore possible that the Congo is deprived de facto of the full exercise of its sovereign prerogatives internationally if Mr. Yerodia Ndombasi is prevented, because of his recent experience in this area or for any other reason, from freely accomplishing a mission on behalf of his Government in certain foreign countries.

23. In the final analysis, it appears to me that, as long as the former Minister for Foreign Affairs of the Congo remains a member of the Congolese Government, his change in position does not drastically alter the circumstances which called for the submission of the request for the indi-cation of provisional measures. I do not, however, deny that there is a substantial difference between the functions of a Minister for Foreign Affairs and those of a Minister of Education, and between the legal bases of the immunities attaching to one or the other of those government posts.

C. Preservation of the Parties' Respective Rights

24. Much argument was devoted to the Parties' respective rights to be preserved. It was thus alleged that the Congo was making the same [p 225] claims in the request for provisional measures as in the Application concerning the merits. Fortunately, the Court did not accept this argument. I continue to believe that the Applicant's .sovereign rights and its rights to honour and dignity must be safeguarded in a balanced manner with the Respondent's rights pending the judgment on the merits. Under the present circumstances, these respective rights are not evenly balanced. There is a real risk that one of the States will continue to be subject to the will of the other.

25. The Respondent justifies its singular conduct as follows:

"33. Quite the contrary: the issue of the arrest warrant is a means of helping the Congo to exercise a right which — it should be recalled — is also an obligation for the Congo, namely that of arresting and prosecuting Mr. Yerodia Ndombasi in the Congolese courts on account of the acts with which he is charged." (See the oral argument by Mr. Eric David, CR 2000/33, pp. 31-32.)

I interpret this conception as "[r]eliance by a State on a novel right or an unprecedented exception to the principle" [of non-intervention] which "if shared in principle by other States" would "tend towards a modification of customary international law" (case concerning Military and Paramili-tary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 109, para. 207). Does a subjective right not have the effect of excluding third-party claims and obliging third parties to respect the right of another?

"In other words," continued counsel for Belgium, "the arrest warrant issued by the Belgian judicial authority, far from violating the Congo's rights, on the contrary assists that country in exercising them" (CR 2000/ 33, p. 32). Are these the consequences of lingering memories of historical legal ties that enabled the colonizing Power to promulgate legal provisions with overseas effect?

Thus what we find being put forward here is the notion of "judicial intervention" (see Mario Bettati, Le droit d'ingérence — Mutation de l'ordre international, 1996, contra S. Bula-Bula, "L'idée d'ingérence à la lumière du Nouvel Ordre Mondial", Revue africaine de droit interna-tional et comparé. Vol. IV, No. 1, March 1994, "La doctrine d'ingérence humanitaire revisitée'', ibid., Vol. 9, No. 3, September 1997).

And Belgium goes so far as to assert that: "In these circumstances, to indicate the provisional measures requested by the Congo in this case would be tantamount to violating the rights which international law itself has conferred on Belgium." (Oral argument by Mr. Eric David, CR2000/ 33, p. 35.)
26. I persist in believing that the analysis set out in points A and B above shows that there is relative urgency in indicating provisional measures. It also demonstrates the irreparable prejudice already suffered and continuing to be suffered by a decolonized State, caused by an erstwhile colonial Power convinced — some would say — of its "sacred civilizing [p 226] mission". The Applicant is not relying on a " 'ghost' right" (oral argument by Mr. Eric David, CR 2000/33, p. 35). It is apparent that the Congo's accusations against Belgium in this case, which, as shown above, Belgium has implicitly admitted, do indeed concern Belgium's violation of the sovereignty and political independence of the Congo. I believe that those rights fall within the scope of the present legal dispute.

Those rights demand safeguarding, at the risk otherwise that one of the Parties will impose its political and legal order on the other, thereby rendering moot any consideration of the case on the merits (see above the reference to the Belgian judge's "waiting list" of arrest warrants for several Congolese ministers and the reference by counsel for the Congo, a member of the Congolese Government, to Belgium's desire for a Cabinet reshuffle and to the simultaneous occurrence of certain events, etc.).

27. The rights to be preserved also include the sovereign prerogative (see paragraph 40 of the Order of 1 July 2000 in the case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda): it is upon "[the] rights to sovereignty . . . that the Court must focus its attention in its consideration of this request for the indication of provisional measures") which each State is recognized to enjoy in exercising its full powers in the legislative, executive and judicial spheres without outside interference. No State can impose on another State, by means of coercive measures, whether administrative, judicial or others, the manner in which domestic affairs are to be conducted on its territory (see Judge Bedjaoui, case concerning Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), I.C.J. Reports 1992, p. 148, and S. A. El-Kosheri, ibid, p. 215). The allegation of any fact which might engage the responsibility of a State must be communicated through appropriate diplomatic channels to that State, because "international law requires political integrity also to be respected" (case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 106, para. 202).

28. It is to be hoped that the dispute between the two States is neither aggravated nor extended, given that the Congo's ambassador to Brussels returned to his post in late November 2000, after having been recalled in response to the issue of the disputed warrant in April 2000. Nevertheless, relations between Belgium and the Congo, historically characterized by highs and lows ever since decolonization, could have benefited had the Court been less pusillanimous.

III. Conclusion

29. In short, I consider that it would have been appropriate and legitimate for the Court to indicate a provisional measure ordering the suspend-[p 227]sion of the warrant of 11 April 2000 pending the Court's decision on the merits, to be rendered with all expedition in light of the importance of the case.
30. I therefore find the Respondent's request that the Court deny all provisional measures to be altogether excessive. Also, I do not agree with the Court's analysis of the current circumstances, which, in its view, do not require it to exercise its power as defined in Article 41 of the Statute.

31. Failing the minimal provisional measure set out above, the Court could have included my amendment, worded as follows, in the operative part of the draft Order:

"2. (a) Finds that the Kingdom of Belgium, which has knowledge of the nature of the claim by the Democratic Republic of the Congo, should consider the impact that a judgment upholding that claim could have on the execution of the warrant of 11 April 2000 and should decide whether and to what extent it ought therefore to reconsider its warrant;

(b) Finds that the Democratic Republic of the Congo, which has knowledge of the nature of the claim by the Kingdom of Belgium, should consider the impact that a judgment upholding that claim could have on the execution of the arrest warrant of 11 April 2000 and should decide whether and to what extent it ought therefore to reconsider its position."

As Judge Oda has recalled:

"through the Court's jurisprudence it is established that, if the Court appears prima facie to possess jurisdiction, it may (if it thinks fit) indicate provisional measures, and this rule has always been interpreted most generously in favour of the applicant, lest a denial be needlessly prejudicial to the continuation of the case. Thus the possibility of indicating provisional measures may be denied in limine only in a case where the lack of jurisdiction is so obvious as to require no further examination of the existence of jurisdiction in a later phase." (Declaration of Acting President Oda, appended to the Order of 14 April 1992 concerning provisional measures 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 States of America), I.C.J. Reports 1992, p. 130.)

33. The doctrine is in general agreement in acknowledging that the Court's power to indicate provisional measures aims to "prevent its decisions from being stultified" (G. Fitzmaurice, The Law and Procedure of the International Court of Justice, Vol. II, p. 542, 1986, quoted by Judge Ajibola in his dissenting opinion in the case concerning Questions of Interpretation and Application of the 1971 Montreal Convention arising [p 228] from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), I.C.J. Reports 1992, p. 194).

34. Can I consider that the Court in the present case has interpreted the request generously? Can it be asserted that there is no reason to fear that the case could be removed from the Court's List? Is there any doubt as to the very high importance of this case on the merits? Yet a very wide majority of the Members of the Court agree that the Court has prima facie jurisdiction in this case.
35. It is to be hoped that the Court's attitude, apparently dictated by the institution's own considerations of judicial policy, is not seen by certain litigants, first and foremost the Applicant in the present proceedings, as a denial of justice. What is at stake is promotion of the rule of law. For, as Lacordaire said, as between the weak and the strong, freedom oppresses and the law protects. Is not the "freedom" found in dealings between a former colonial Power, now an industrialized country, and its weakened, former colony an example of this?

36. Admittedly, the Applicant appears not to have made an entirely coherent case before the Court. It is undeniably true that a litigant bringing judicial proceedings is under an obligation, pursuant to the rules of procedure, to act in a manner calculated to maximize its chances of pre-vailing, even within the relatively short time-limits for incidental proceedings.

37. No one, moreover, can be ignorant of the role played, especially lately, by public opinion. It is however sometimes important to cast an objective eye on the "hasty judgments of public opinion or the mass media" (dissenting opinion of Judge Bedjaoui 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 States of America), I.C.J. Reports 1992, p. 148).

(Signed) Sayeman Bula-Bula. [p 229]


DECLARATION OF JUDGE VAN DEN WYNGAERT

Arrest warrant — Enforcement in third States — War crimes — Genocide — Crimes against humanity — Universal jurisdiction — International criminal court — National prosecutions — Customary international (criminal) law — Immunities — Victims seising courts in third States — State of origin unwilling or unable to prosecute — Importance of decision on the merits: International Court of Justice revisiting the 1927 "Lotus" precedent of the Permanent Court of International Justice.

1. I fully support the Court's decision to dismiss the applicant State's request for the indication of provisional measures. There is no irreparable prejudice to the rights which are the subject of the dispute, and the measures requested (immediate discharge of disputed arrest warrant) are not justified by urgency.

2. At the outset I wish to clarify that the disputed arrest warrant is a national arrest warrant, not an "international arrest warrant" FN1 that can be enforced automatically in third countries. There is always a need for validation by the authorities of the State where the person named in the warrant has been found, even in the case where a red notice has been issued by Interpol FN2, which has not happened in the case of Mr. Yerodia Ndombasi.

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FN1 See the nature of the claim in the Application of the Congo, reproduced in paragraph 3 of the present Order.
FN2 Interpol. Secretariat general, Rapport sur la valeur juridique des notices rouges, ICPO — Interpol — General Assembly. 66th Session. New Delhi, 15-21 October 1997. AGN/ 66/RAP/8, No. 8 Red Notices, as amended pursuant to Resolution No. AGN766/RES/7.
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3. I agree with the statement in paragraph 76 of the Order that a decision on the Congo's Application should be reached with all expedition. The dispute between the two countries concerns an important question that may be crucial to the further development of modern international criminal law. The basic question that it raises is how far States are allowed (or are obliged) to go when implementing and enforcing norms of international criminal law. As more and more States are adopting legislation to this effect, problems similar to the ones that gave rise to the dispute between the Congo and Belgium are likely to arise in the future. [p 230]

4. The international community undoubtedly agrees in principle with the proposition that the "core crimes" of international criminal law (war crimes, genocide and crimes against humanity) should not remain unpunished FN3. However, how this should be realized in practice is still the subject of much discussion and debate.

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FN3 See, for example. Principles of International Co-Operation in the Detection, Arrest, Extradition and Punishment of Persons Guilty of War Crimes and Crimes against Humanity, General Assembly resolution 3074 (XXVIII), 28 United Nations, Official Records of the General Assembly, Supplement No. 30A, at p. 78, United Nations doc. A/9030/Add.l (1973); Security Council resolution 978, 27 February 1995, United Nations doc. S/RES/978 (1995); Economic and Social Council, Sub-Commission on Prevention of Discrimination and Protection of Minorities, resolution 1995/4 on the Prevention of Incitement to Hatred and Genocide, particularly by the Media, 18 August 1995, United Nations doc. E/CN.4.Sub.2/RES/1995/4, 23 October 1997; Security Council resolution 1234, 9 April 1999. United Nations doc. S/RES/1234 (1999); Security Council resolution 1291 of 24 February 2000, United Nations doc. S/RES/1291 (2000); Security Council resolution 1304, 16 June 2000, United Nations doc. S/RES/1304 (2000).
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5. Ideally, such crimes should be prosecuted before international criminal courts such as the permanent international criminal court (Rome Statute for the International Criminal Court (1998) FN4) or the ad hoc international criminal tribunals (International Criminal Tribunal for the Former Yugoslavia (1993) FN5, International Criminal Tribunal for Rwanda (1994) FN6 or the (future) Sierra Leone Special Court FN7. It is clear, however, that not all cases will be justiciable before these courts. The principle of complementarity in the Rome Statute confers primary responsibility for prosecution of core crimes on States, not on the International Criminal Court, except in the cases where States are unwilling or unable to prosecute (Art. 17). Moreover, this court will only have jurisdiction in respect of crimes committed after the entry into force of the statute (Art. 11).
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FN4 Rome Statute of the International Criminal Court, ILM, 1998, p. 999.
FN5 Security Council resolution 827 (1993) on Establishing the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia, ILM, 1993, p. 1192 (text statute) and p. 1203 (text resolution) (as amended by Security Council resolution 1166 of 13 May 1998).
FN6 Security Council resolution 955 establishing the International Tribunal for Rwanda, ILM. 1994. p. 1598.
FN7 Security Council resolution 1315, 14 August 2000, United Nations doc. S/RES/1315 (2000); Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone. 4 October 2000, United Nations doc. S/2000/915 (2000).
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6. In the absence of supranational enforcement mechanisms, national criminal prosecution before domestic courts is the only means to enforce international criminal law. States have not only a moral but also a legal obligation under international law to ensure that they are able to prosecute international core crimes domestically. This flows [p 231] from a wide range of conventions that lay down the principle aut dedere aut judicare FN8.

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FN8 See for example. Arts. 49 (1), 50 (II). 129 (III) and 146 (IV), Geneva Conventions 1949 (infra, footnote 10); Art. 7. Convention for the Suppression of Unlawful Seizure of Aircraft (The Hague. 16 December 1970, ILM. 1971. p. 133); Art. 7, Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Montreal. 23 September 1971, ILM. 1971, p. 1151); Art. 7, Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents (New York, 14 December 1973, ILM, 1974, p. 41); Art. 7, Convention against Torture and Other Cruel. Inhuman or Degrading Treatment or Punishment (New York. 10 December 1984, ILM, 1984. p. 1027); Art. 14. Inter-American Convention to Prevent and Punish Torture (Cartagena de Indias, 12 September 1985. OAS Treaty Series. No. 67); Art. 7. European Convention on the Suppression of Terrorism (Strasbourg, 27 January 1977, ETS, No. 90); Art. 8. International Convention for the Suppression of Terrorist Bombings (New York. 12 January 1998. ILM, 1998. p. 249). See also Art. 15, paras. 3 and 4. and Art. 16. para. 10. United Nations Convention against Transnational Organized Crime, adopted by the United Nations General Assembly on 15 November 2000 (United Nations doc. A/55/383) and to be opened for signature from 12 December 2000 in Palermo, Italy (http ://www.un.cjin.org/Documents/documents.html).
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7. The idea that traditional limitations on criminal prosecution (territorial jurisdiction, immunities) cannot be applied to international core crimes is gaining support. Numerous international criminal law instruments (ranging from the Nuremberg principles FN9 through the various subsequent codifications of international criminal law FN10 to the Rome Statute for an International Criminal Court) have, in different ways, laid down the principles of universal jurisdiction FN11, the non-applicability of traditional immunities FN12 and the non-applicability of statutory limita-[p 232]tions FN13. There is a growing opinion in legal doctrine supporting the view that these principles are applicable to the international "core crimes" because these crimes are now prohibited under customary international law FN14. Some argue that there is a right and even a duty on States to prosecute such crimes. Several decisions of the ad hoc International Criminal Tribunals tend to support this view FN15.

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FN9 Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, United Nations, Official Records of the General Assembly, Fifth Session. Supplement No. 12. doc. A/1316 (1950).
FN10 See. for example. Convention on the Prevention and Suppression of the Crime of Genocide. Paris, 9 December 1948. UNTS. Vol. 78, p. 277: Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, 12 August 1949, UNTS. Vol. 75, p. 31 ; Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva. 12 August 1949, UNTS. Vol. 75. p. 85; Convention relative to the Treatment of Prisoners of War, Geneva, 12 August 1949. UNTS. Vol. 75, p. 135; Convention relative to the Protection of Civilian Persons in Time of War, Geneva. 12 August 1949, UNTS. Vol. 75. p. 287) and their Additional Protocols (1977) (Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts. Geneva, 8 June 1977, United Nations, Official Records of the General Assembly, doc. A/32/144, 15 August 1977; Protocol Additional (II) to the Geneva Conventions of 12 August 1949. and relating to the Protection of Victims of Non-International Armed Conflicts. Geneva, 8 June 1977, United Nations. Official Records of the General Assembly, doc. A/32/144. 15 August 1977).
FN11 See, for example. Arts. 49 (I). 50 (II). 129 (III), 146 (IV). Geneva Conventions, supra footnote 10.
FN12 See. for example. Art. [V. Genocide Convention, supra footnote 10.
FN13 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, New York, 26 November 1968, ILM. 1969. p. 68, and European Convention on the Non-Applicability of Statutory Limitations to Crimes against Humanity and War Crimes, Strasbourg, 25 January 1974, ETS, No. 82.
FN14 See, for example, American Law Institute, Restatement of the Law (Third). The Foreign Relations Law of the United States, 1987, para. 404, Reporters' Notes, p. 257. See also International Law Commission, Draft Code of Crimes against the Peace and Security of Mankind (1996), text adopted by the Commission at its forty-eighth session, 1996. Yearbook of the International Law Commission, 1996, Vol. II (2), doc. A/51/10; http://www.un.org/law/ilc/texts/dcodefra.htm.
FN15 See, for example, ICTY, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, Tadie, para. 134 (Common Art. 3, Geneva Conventions); ICTY. Judgment, 10 December 1998, Furundzija, para. 153 (Torture); ICTR, Judgment, 2 September 1998. Akayesu, paras. 495 (Genocide) and 608 (Common Art. 3. Geneva Conventions); ICTR, Judgment, 21 May 1999. Kayishema and Ruzindana, para. 88 (Genocide).
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8. However, uncertainty prevails as to the implications of this proposition for national prosecution of international core crimes, in particular regarding the question as to whether the principles described above apply to prosecutions before national courts in the same way as they do before international courts. Increasingly victims or non-governmental organizations representing such victims call upon third States to prosecute persons suspected of international core crimes, because the State where these crimes occurred is unwilling or unable to prosecute. Some legal systems (e.g., the civil law systems that apply the partie civile system) actually allow victims to trigger criminal proceedings and do not distinguish between national and foreign victims for that purpose FN16. Often, such victims claim refugee status in the State in which they bring their complaint. In certain cases, they acquire the nationality of the State to which they have fled. It can be expected that cases of this nature will grow in number.

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FN16 For a survey of national criminal procedure systems in Europe, see C. Van den Wyngaert (ed.), Criminal Procedure Systems in the European Community, 1993.
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9. States engaging in the domestic prosecution of such crimes as well as States called upon to co-operate with these States in extradition proceedings are confronted with applying norms of international criminal [p 233] law. Increasingly, domestic courts are called upon to tackle difficult technical notions of public international law such as jus cogens, erga omnes obligations and the question what norms qualify as norms of customary international (criminal) law. The various Pinochet decisions (in Spain FN17, Belgium FN18, France FN19 and the United Kingdom FN20) and the Dutch Bouterse case FN21 are examples of a growing number of national judicial decisions FN22 dealing with (different aspects) of the issues of international criminal law that are now before the International Court of Justice.
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FN17 Audiencia Nacional, Auto de la Sala de lo Penal de la Audiencia Nacional confirmando la jurisdicción de España para conocer de los crímenes de genocidio y terrorismo
cometidos durante la dictadura chilena, 5 November 1998. http://www.derechos.org/nizkor/chile/juicio/audi.html. See also AJIL, 1999. pp. 690-969.
FN18 Investigating Judge. Tribunal of first instance, Brussels, 6 November 1998, Rente de droit penal et de eriminologie, 1999. p. 278; Journal des Tribunaux, 1999. p. 308.
FN19 Investigating Judge. Tribunal de Grande Instance. Paris, 2 and 12 November 1998. AJIL, 1999rpp. 696-700.
FN20 R. v. Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Vngarte, 25 November 1998. All ER (1998), p.897; R. v. Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ungarte. 24 March 1999, All ER (1999), p. 97.
FN21 Court Amsterdam. Order of 20 November 2000, http://www.gerechtshof-amsterdam.nl/uitspraken/artl2/Bouterse/bes_bouterse.htm. See also Court Amsterdam. Order of 3 March 2000, Nederlandse Jurisprudence, 2000, pp. 1795-1800.
FN22 See also Bundesgerichtshof, 30 April 1999. Neue Zeitschrift für Strafrecht. 1999. pp. 396-404; Bundesgerichtshof, Ermittlungsrichter, 13 February 1994, Neue Zeitschrift für Strafrecht. 1994, pp. 232-233; Bundesgerichtshof. 11 December 1998, Neue Zeitschrift für Strafrecht, p. 236; Cour de cassation (fr.), 6 janvier 1998, Bull. Crim.. 1998, pp. 3-8; Federal Court of Australia. 1 September 1999, Nulyarimma v. Thompson, FCA. 1192.
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10. The case concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) is the first modern case which confronts two States on the issues of extraterritorial jurisdiction and immunity arising from the application of a domestic statute implementing international core crimes. Times have changed since the Permanent Court of International Justice decided the "Lotus" case in 1927 FN23 International law now calls upon States to prosecute and punish international core crimes, but leaves some uncertainty as to the practical implications of this proposition as far as the enforcement of domestic implementation laws is concerned. For the sake of legal certainty, it is important that the International Court of Justice decides on the merits of the present case with expedition.

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FN23 Permanent Court of International Justice, the case of the S.S. "Lotus"(France/Turkey). 7 September 1927. P.C.I.J.. Series A, No. 10.
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(Signed) Christine Van den Wyngaert.

 
     

 

 

 

 

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