Disappointment on Belgian War-Crimes Law Ruling

(New York, February 14, 2002) -- Human Rights Watch expressed its
disappointment at today's decision of the International Court of
Justice (ICJ) that a Belgian arrest warrant for the acting Foreign
Minister of the Democratic Republic of the Congo violated
international law.

The ICJ ruled that the Belgian warrant failed to respect the Foreign
Minister's "immunity from criminal jurisdiction."

"This is a disappointing decision because it effectively shields some
state officials from prosecution for atrocities," said Reed Brody,
Advocacy Director of Human Rights Watch. "Government ministers who
commit crimes against humanity and war crimes are not likely to be
prosecuted at home, and this ruling means they will enjoy impunity
abroad as well. This decision goes against the international trend
towards accountability for the worst abuses."

According to Human Rights Watch, the Belgian anti-atrocities law is
part of a growing trend towards accountability for the worst
international crimes. Prosecutions based on universal jurisdiction,
such as those now possible under the Belgian law, are an essential
part of the emerging system of international justice. They help to
break down the wall of
immunity with which tyrants and torturers protect themselves in their
own countries, the group said.

In its decision, the International Court of Justice noted that even
sitting government ministers may not "enjoy impunity in respect of
any crimes they might have committed." The decision recognized
"immunity of jurisdiction," however, for a sitting foreign minister
before the national courts of other countries.

Brody added that today's decision "highlights the need for the rapid
establishment of the International Criminal Court, which will be able
to investigate and prosecute those individuals -- including state
leaders-- accused of crimes against humanity, genocide, and war
crimes when
national courts are unwilling or unable to do so, and which expressly
rejects any substantive or jurisdictional immunities."

For more information on the Belgian Universal Jurisdiction law, please see:

Rights Groups Support Belgium's Universal Jurisdiction Law (HRW Press
Release, November 26, 2001) at
http://www.hrw.org/press/2001/11/belgium1126.htm

For more information on the International Criminal Court, please see:

International Criminal Court (Key Human Rights Watch Documents) at
http://www.hrw.org/campaigns/icc/.

International Court of Justice - Press Release 2002/4 - Arrest Warrant of 11
April 2000 (Democratic Republic of the Congo v. Belgium)

*************
14 February 2002

Arrest Warrant of 11 April 2000
(Democratic Republic of the Congo v. Belgium)

The Court finds that the issue and international circulation by
Belgium of the arrest warrant of 11 April 2000 against Mr. Abdulaye
Yerodia Ndombasi failed to respect the immunity from criminal
jurisdiction and the inviolability which the incumbent Minister for
Foreign Affairs of the Congo enjoyed under international law; and
that Belgium
must cancel the arrest warrant

THE HAGUE, 14 February 2002. Today the International Court of Justice
(ICJ), principal judicial organ of the United Nations, delivered its
Judgment in the case concerning the Arrest Warrant of 11 April 2000
(Democratic Republic of the Congo v. Belgium).

In its Judgment, which is final, without appeal and binding for the
Parties, the Court found, by thirteen votes to three,

"that the issue against Mr. Abdulaye Yerodia Ndombasi of the arrest
warrant of 11 April 2000, and its international circulation,
constituted violations of a legal obligation of the Kingdom of
Belgium towards the Democratic Republic of the Congo, in that they
failed to respect the immunity from criminal jurisdiction and the
inviolability which the incumbent Minister for Foreign Affairs of the
Democratic Republic of the Congo enjoyed under international law"

and, by ten votes to six,

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

The Court reached these findings after having found, by 15 votes to
1, that it had jurisdiction, that the Application of the Democratic
Republic of the Congo ("the Congo") was not without object (and the
case accordingly not moot) and that the Application was admissible,
thus rejecting the objections which the Kingdom of Belgium
("Belgium") had raised on those questions.

The reasoning of the Court

Jurisdiction and admissibility

The Court first rejects certain objections of Belgium based on the
fact that Mr. Yerodia was no longer the Minister for Foreign Affairs,
or even a member of the Government of the Congo, at the time that the
Court was dealing with the case.

With regard to the Court's jurisdiction, Belgium argues that there no
longer exists a "legal dispute" between the Parties within the
meaning of the declarations filed by them pursuant to Article 36 (2)
of the Statute, and that, therefore, the Court lacks jurisdiction. On
this point, the Court recalls that its jurisdiction must be
determined at the time of the institution of the proceedings, and
that at that time there was clearly "a legal dispute between . . .
[the parties] concerning the international lawfulness of the arrest
warrant of 11 April 2000 and the consequences to be drawn if the
warrant was unlawful". The Court accordingly rejects the first
Belgian objection.

The Court also rejects the second Belgian objection, namely that,
because of the above-mentioned change in Mr. Yerodia's situation, the
case is now without object. The Court finds that this change has not
deprived the Application of its object. It points out that the Congo
argues that the arrest warrant was and remains unlawful, and asks the
Court so to declare, while continuing to seek cancellation of the
warrant; for its part Belgium continues to dispute the Congo's
submissions.

Nor does the Court find, as claimed by Belgium in its third
objection, that the Congo's claims are inadmissible because the facts
underlying the Application have changed in such a way as to produce a
transformation of the dispute before the Court into another dispute.
The Congo's final submissions, the Court observes, arise "directly
out of the question which is the subject-matter of that Application".

Belgium's fourth objection, that, because of the change of Mr.
Yerodia's situation, "the case has assumed the character of an action
of diplomatic protection but one in which the individual being
protected has failed to exhaust local remedies" is also rejected by
the Court. The Court notes that the Congo never invoked the
individual rights of Mr. Yerodia and recalls that, in any event, the
admissibility of the Application must be determined as at the time of
its filing.

The Court finally observes, in response to a subsidiary argument of
Belgium, that, while in accordance with a well-established principle
the Court is "not entitled to decide upon questions not asked of it,
[that] non ultra petita rule nonetheless cannot preclude the Court
>from addressing certain legal points in its reasoning". The Court
observes that in the present case it thus may not rule, in the
operative part of its Judgment, on the question whether the disputed
arrest warrant, issued by the Belgian investigating judge in exercise
of his purported universal jurisdiction, complied in that regard with
the rules and principles of international law governing the
jurisdiction of national courts, because that question was not
contained in the final submissions of the Parties. This does not
mean, however, that the Court may not deal with certain aspects of
that question in the reasoning of its Judgment, should it deem this
necessary or desirable.

Merits

The Court then observes that in the present case it is only the
immunity from criminal jurisdiction and the inviolability of an
incumbent Minister for Foreign Affairs which it has to consider.
Having referred to certain treaties which were cited by the Parties
in this regard, and having concluded that they do not define the
immunities of Ministers for Foreign Affairs, the Court finds that it
must decide the questions relating to these immunities on the basis
of customary international law.

The Court states that, in customary international law, the immunities
accorded to Ministers for Foreign Affairs are not granted for their
personal benefit, but to ensure the effective performance of their
functions on behalf of their respective States. In order to determine
the extent of these immunities, the Court must therefore first
consider the nature of the functions exercised by a Minister for
Foreign Affairs. After an examination of the nature of those
functions the Court concludes that they are such that, throughout the
duration of his or her office, a Minister for Foreign Affairs when
abroad enjoys full immunity from criminal jurisdiction and
inviolability. That immunity and inviolability protect the individual
concerned against any act of authority of another State which would
hinder him or her in the performance of his or her duties. In this
respect, no distinction can be drawn between acts performed by a
Minister for Foreign Affairs in an "official" capacity and those
claimed to have been performed in a "private capacity", or, for that
matter, between acts performed before the person concerned assumed
office as Minister for Foreign Affairs and acts committed during the
period of office. Thus, if a Minister for Foreign Affairs is arrested
in another State on a criminal charge, he or she is clearly thereby
prevented from exercising the functions of his or her office.

The Court then turns to Belgium's arguments that Ministers for
Foreign Affairs do not enjoy such immunity when they are suspected of
having committed war crimes or crimes against humanity. It points out
that, after having carefully examined State practice, including
national legislation and those few existing decisions of national
higher courts, such as the House of Lords or the French Court of
Cassation, it has been unable to deduce from this practice that there
exists under customary international law any form of exception to the
rule according immunity from criminal jurisdiction and inviolability
to incumbent Ministers for Foreign Affairs.

The Court further observes that the rules governing the jurisdiction
of national courts must be carefully distinguished from those
governing jurisdictional immunities. The immunities under customary
international law, including those of Ministers for Foreign Affairs,
remain opposable before the courts of a foreign State, even where
those courts exercise an extended criminal jurisdiction on the basis
of various international conventions on the prevention and punishment
of certain serious crimes.

The Court emphasizes, however, that the immunity from jurisdiction
enjoyed by incumbent Ministers for Foreign Affairs does not mean that
they enjoy impunity in respect of any crimes they might have
committed, irrespective of their gravity. Immunity from criminal
jurisdiction and individual criminal responsibility are quite
separate concepts. While jurisdictional immunity is procedural in
nature, criminal responsibility is a question of substantive law.
Jurisdictional immunity may well bar prosecution for a certain period
or for certain offences; it cannot exonerate the person to whom it
applies from all criminal responsibility. The Court then spells out
the circumstances in which the immunities enjoyed under international
law by an incumbent or former Minister for Foreign Affairs do not
represent a bar to criminal prosecution.

After examination of the terms of the arrest warrant of 11 April
2000, the Court states that the issuance, as such, of the disputed
arrest warrant represents an act by the Belgian judicial authorities
intended to enable the arrest on Belgian territory of an incumbent
Minister for Foreign Affairs on charges of war crimes and crimes
against humanity. It finds that, given the nature and purpose of the
warrant, its mere issue constituted a violation of an obligation of
Belgium towards the Congo, in that it failed to respect the immunity
which Mr. Yerodia enjoyed as the Congo's incumbent Minister for
Foreign Affairs and, more particularly, infringed the immunity from
criminal jurisdiction and inviolability then enjoyed by him under
international law. The Court also notes that Belgium admits that the
purpose of the international circulation of the disputed arrest
warrant was "to establish a legal basis for the arrest of Mr.
Yerodia . . . abroad and his subsequent extradition to Belgium". It
finds that, as in the case of the warrant's issue, its international
circulation from June 2000 by the Belgian authorities, given the
nature and purpose of the warrant, constituted a violation of an
obligation of Belgium towards the Congo, in that it failed to respect
the immunity of the incumbent Minister for Foreign Affairs of the
Congo and, more particularly, infringed the immunity from criminal
jurisdiction and the inviolability then enjoyed by him under
international law.

The Court finally considers that its finding that the arrest warrant
was unlawful under international law, and that its issue and
circulation engaged Belgium's international responsibility,
constitute a form of satisfaction which will make good the moral
injury complained of by the Congo. However, the Court also considers
that, in order to re-establish "the situation which would, in all
probability have existed if [the illegal act] had not been
committed", Belgium must, by means of its own choosing, cancel the
warrant in question and so inform the authorities to whom it was
circulated.

Composition of the Court

The Court was composed as follows: President Guillaume; Vice-
President Shi;

Judges Oda, Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin,
Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh,
Buergenthal; Judges ad hoc Bula-Bula, Van den Wyngaert;

Registrar Couvreur.

President Guillaume appends a separate opinion to the Judgment of the
Court; Judge Oda appends a dissenting opinion to the Judgment of the
Court; Judge Ranjeva appends a declaration to the Judgment of the
Court; Judge Koroma appends a separate opinion to the Judgment of the
Court; Judges Higgins, Kooijmans and Buergenthal append a joint
separate opinion to the Judgment of the Court; Judge Rezek appends a
separate opinion to the Judgment of the Court; Judge Al-Khasawneh
appends a dissenting opinion to the Judgment of the Court; Judge ad
hoc Bula-Bula appends a separate opinion to the Judgment of the
Court; Judge ad hoc Van den Wyngaert appends a dissenting opinion to
the Judgment of the Court.

__________

A summary of the Judgment is given in Press Release No. 2002/4bis, to
which a summary of the opinions is annexed. The full text of the
Judgment and of the opinions is available on the Court's website
(http://www.icj-cij.org).

___________

Information Department:
Mr. Arthur Witteveen, First Secretary (Tel.: +31 70 302 23 36)
Mrs. Laurence Blairon, Information Officer (Tel.: +31 70 302 23 37)
E-mail address: [email protected]

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