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CASE STUDY

THE ARREST WARRANT OF 11 APRIL 2000 CASE


BETWEEN
DEMOCRATIC REPUBLIC OF CONGO V. BELGIUM

BY:
MUHAMMAD RYAN DWI SAPUTRA (110110110180)
RICKY LINTAR (110110110243)
MUSHTAQ HUSSEIN (110110110208)
MUHAMMAD SENA BIRUTAMA TAHER (110110110256)

UNDER THE AUSPICES OF:

PROF. DR. HJ. ETTY R. AGOES, S.H., LL.M.,
SITI NOOR MALIA PUTRI, S.H., LL.M.







FAKULTAS HUKUM UNIVERSITAS PADJADJARAN

A. FACTS OF THE CASE
On 11 April 2000, an investigating judge of the Brussels Tribunal of First Instance
issued an arrest warrant against the incumbent Minister for Foreign Affairs of the Democratic
Republic of Congo (DRC), Abdulaye Yerodia Ndombasi. Allegedly, he had incited racial
hatred in various speeches in the DRC in 1998, which had contributed to the massacre of
several hundred persons. He was therefore charged with grave breaches of the Geneva
Conventions IIV (1949); Geneva Conventions Additional Protocol I (1977); Geneva
Conventions Additional Protocol II (1977), and crimes against humanity.
The arrest warrant was transmitted to the DRC and simultaneously internationally
circulated through Interpol. At this time, Mr Yerodia was not on Belgian territory and none of
the victims of the massacres were Belgian nationals. Belgian authorities initiated proceedings
under the Belgian Law of 16 June 1993 Concerning the Punishment of Grave Breaches of the
Geneva Conventions of 12 August 1949 and Additional Protocols I and II of 8 June 1977 (as
amended in 1999), which provided for universal jurisdiction in respect of the crimes for
which Mr Yerodia was sought (Criminal Jurisdiction of States under International Law).
The law further provided that immunity attached to the official capacity of a person
should not prevent the application of the law. Belgium alleged that it had proposed to the
DRC in September 2000 to entrust the case to competent Congolese authorities.
On 17 October 2000, the DRC filed an application with the International Court of
Justice (ICJ), requesting the ICJ to declare that Belgium should annul the arrest warrant.
The claim was based on two different legal grounds: first, the DRC claimed that the principle
that a State may not exercise its authority on the territory of another State and the principle of
sovereign equality of States (Art. 2 (1) UN Charter) had been violated by Belgiums
arrogation of universal jurisdiction. Second, the DRC argued that the arrest warrant
disregarded the immunity of the incumbent Congolese Foreign Affairs Minister under
customary international law. On November 2000, in an ICJ proceedings, it was revealed that
Mr Yerodia had ceased to hold office as Foreign Affairs Minister. However, as the arrest
warrant continued to be in force.
On 17 October 2000, the Congo filed in the Registry an Application instituting the present
proceedings in which the Court was requested "to declare that the Kingdom of Belgium shall
annul the international arrest warrant issued on 11 April 2000. Belgium accordingly claimed
that the Congo's Application had become moot and asked the Court, as has already been
recalled, to remove the case from the List, however it was rejected by the Court.
.
On 15 May 2001, the DRC submitted its argument that the exercise of universal jurisdiction
by Belgium had violated its sovereignty and had violated the rule of customary international
law concerning incumbent Foreign Affairs Ministers absolute inviolability and immunity
from criminal jurisdiction. It requested a formal finding by the ICJ to that effect, which
would constitute an appropriate form of satisfaction. The DRC also requested the Court to
declare that the violation of international law on which the arrest warrant was based
precluded any State, including Belgium, from executing it, and to require Belgium to recall
and cancel the arrest warrant, and inform foreign authorities thereof. Belgium advanced four
objections to the jurisdiction of the ICJ and the admissibility of the case.

B. QUESTIONS BEFORE THE COURT
1. Did the ICJ has the jurisdiction to entertain the proceedings?
2. Did Belgium violate customary international law principles concerning the absolute
inviolability and immunity from criminal process of an incumbent Foreign Affairs Minister,
when it issued and internationally circulated the arrest warrant? If yes, did it violate the
principle of sovereign equality among States,
3. Should the Court order reparations and should Belgium recall and cancel its arrest warrant?

C. THE COURT JUDGEMENTS
(1) Rejects the objections of the Kingdom of Belgium relating to jurisdiction, mootness and
admissibility;
Finds that it has jurisdiction to entertain the Application filed by the Democratic Republic of
the Congo on 17 October 2000;
Finds that the Application of the Democratic Republic of the Congo is not without object and
that accordingly the case i: not moot;
Finds that the Application of the Democratic Republic of the Congo is admissible;

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

(3) Finds 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.
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 appends a joint separate opinion to
the Judgment of the Court;
Judge REZEK appends a separate opinion to ithe 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
Separate and Dissenting Opinions
The members of the ICJ appended to the judgment a total of four Separate Opinions, one
Joint Separate Opinion authored by three judges, three Dissenting Opinions, and one
Declaration, representing a wide range of views in particular on the issues of immunities and
universal jurisdiction.
In their individual Opinions, President Guillaume, Judge Ranjeva, and Judge ad hoc Bula-
Bula spoke out against the legality of the exercise of universal jurisdiction.
President Guillaume recalled that the judgment in the Lotus Case left open the question
whether the exercise of criminal jurisdiction for extraterritorial acts was conditioned upon the
existence of a permissive rule to that effect. According to Guillaume, such a permissive rule
clearly exists for piracy. However, national case law and developments in treaty law over the
past decades indicate that States accept the exercise of universal jurisdiction only in cases
where the suspected person is present on the territory of the forum State He noted that the
provisions on enforcement in the 1949 Geneva Conventions (I Art. 49; II Art. 50; III Art.
129; IV Art. 146) as well as the 1948 Genocide Convention do not establish extraterritorial
jurisdiction for grave breaches of the Conventions, but presuppose that States have
jurisdiction.
Judge Rezek argued that from a policy perspective, universal jurisdiction in absentia would
lead to serious coordination problems
Judge Koroma also held that universal jurisdiction is admissible for certain crimes, but does
not take a stand on the presence requirement.
By contrast, Judges Higgins, Kooijmans, and Buergenthal in their joint separate opinion
and Judge ad hoc Van den Wyngaert in her dissenting opinion endorsed the exercise of
universal jurisdiction in absentia. The latter points out that the requirement of a permissive
rule set up in the Lotus judgment only concerns the exercise of enforcement jurisdiction, as
opposed to legislative and adjudicatory jurisdiction. Neither conventional nor customary law
contains a rule prohibiting the exercise of extraterritorial jurisdiction. Further, they submit
that while State practice is inconclusive as to the legality of universal jurisdiction,
developments in treaty law indicate that there is a tendency to grant States universal
jurisdiction with respect to certain crimes because of their heinous nature and to entitle them
to act as agents of the international community. Nevertheless, the exercise of universal
jurisdiction should be conditioned by the existence of certain safeguards. Thus, States that
want to exercise universal jurisdiction need to respect any applicable immunity; offer the
national State of the person concerned the opportunity to act upon the charges; ensure that
prosecutors and investigating judges are fully independent; and should not proceed unless
special circumstances are present, such as a request by the victims of the case
Judge ad hoc Van den Wyngaert criticized the ICJs analogous. Due to a lack of relevant
State practice, privileges and immunities are accorded to Foreign Affairs Ministers as a
matter of comity, not of customary law. No opinio juris can be inferred from the reluctance of
States to initiate criminal proceedings against incumbent Foreign Ministers. As Foreign
Ministers do not impersonate their State, there is no basis for drawing analogies with the
immunities of Heads of State.
Judge Al-Khasawneh argued that international criminal law is hierarchically superior to
immunity, probably implying that the ius cogens status of the prohibitions underlying crimes
against international law accords a peremptory character to the criminal law sanction by
which the prohibition is enforced.
Judges Higgins, Kooijmans, and Buergenthal suggest that crimes against international law
should not be considered official acts, as these acts are neither among the normal functions of
a State nor functions that a State alone can perform.
Judges Higgins, Kooijmans, and Buergenthal indicated that the level of protection might
be reduced during private travels, although it would still exclude arrest and detention
Judge Oda opined that only the enforcement of the arrest warrant would have infringed Mr
Yerodias immunity.
Judges Higgins, Kooijmans, and Buergenthal criticized that the ICJ ordered Belgium as
part of its obligation of restitutio in integrum to cancel the arrest warrant and so inform the
authorities to which it was circulated. This disregards the fact that the arrest warrant might
have become legal by virtue of Mr Yerodias resignation.

D. REASONINGS
(1) Rejects the objections of the Kingdom of Belgium relating to jurisdiction, mootness and
admissibility;
Finds that it has jurisdiction to entertain the Application filed by the Democratic Republic of
the Congo on 17 October 2000;
Finds that the Application of the Democratic Republic of the Congo is not without object and
that accordingly the case i: not moot;
Finds that the Application of the Democratic Republic of the Congo is admissible;

Reasoning:
- The Court has jurisdiction on the date the case is referred to it, it continues to do
so regardless of subsequent events. Such events might lead to a finding that an
application has subsequently become moot and to a decision not to proceed to
judgement on the merits, but they cannot deprive the Courts jurisdiction.

- Belgium accepts that, on the date on which the Congo filed the Application
instituting proceecings, the Congo had a direct legal interest in the matter, and was
asserting a claim in its own name.

- In these circumstances, the Court considers that Belgium cannotvalidly maintain that
the dispute brought before the Court was transformed in a way that affected its ability
to prepare its defence, or that the requirements of the sound administration of justice
were infringed.

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



Reasoning:
- The Court would observe at the outset thaf in international law it is firmly established
that the title Head of State, Head of Government and Minister for Foreign Affairs,
enjoy immunities from jurisdiction in other States, both civil and criminal. The
reason was that a Minister for Foreign Affairs, responsible for the conduct of his or
her State's relations with al1 other States, occupied a position such that, like the Head
of State or the Head of Government, he or she is recognized under international law as
representative of the State.

- The Court adjuged that there is nothing 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, where they are suspected of
having committed war crimes or crimes against humanity.

- After a person ceases to hold the office of Minister for Foreign Affairs, he or she will
no longer enjoy al1 of the immunities accorded by international law in other States.
The immunity from jurisdiction enjoyed by incumbent Minister for Foreign Affairs
does not mean that they could not be prosecuted for his individual criminal
responsibility after his office was removed.

- The Court notes that the arrestwarrant 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. Given the
nature and purpose of' the warrant, its mere issue violated the imrnunity which
Mr. Yerodia enjoyed as the Congo's incumbent Minister for Foreign Affairs.

- Mr. Yerodia, "on applying for a visa to go to two countries, learned that he ran the
risk of being arrested as a result of the arrest warrant issued against him by
Belgium". The arrest warrant 'sometimes forced Minister Yerodia to travel by
roundabout routes"'. Accordingly, the Court concludes that the circulation of the
warrant, whether or not it significantly interfered with Mr. Yerodia's diplomatic
activity, constituted a violation of an obligation of Belgium towards the Congo

(3) Finds 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.

Reasonings:
- In the present case, "the situation which would, in al1 probability, have existed if
[the illegal act] had not been committed" cannot be re-established merely by a
fiinding by the Court that the arrest warrant was unlawful under international law.
The warrant is still extant, and remains unlawful, notwithstanding the fact that
Mr. Yerodia has ceased to be Minister for Foreign Affairs. The Court accordingly
considers that Belgium must, by means of its own choosing, cancel the warrant in
question and so inform the auithorities to whom it was circulated


E. ANALITICS COMMENTARIES

(1) For the fact that Belgium has submitted the arguments relating to the inadmissibility of
DRC claim for the reason that the case is in moot was rejected by the Court. Belgium
contended that for the reason that Mr. Yerodia is no longer the Foreign Minister of DRC, the
case is now in moot and the Application submitted by DRC is no longer relevant. The Court
contended that the jurisdiction of the Court comprises all questions submitted since the time
of the Application was submitted to the Court. Thus, changes that might occur during the
proceedings could not deprive the jurisdiction of the Court. This judgement was in line withe
the Court Statute Article 36 (1) regulating that:
The jurisdiction of the Court comprises all cases which the parties refer to it
Thus, regardles that the issue in case was a moot problems or could not be enforced after the
judgment was delivered by the Court or even if there is a changing circumstances after the
Application was submmited, it could not deprived the jurisdiction of the Court to entertain
the Application submitted by the Parties.
(2) The substantive question disputed in this proceedings was whether or not the Arrest
Warrant towards the Foreign Minister of DRC produce by Belgium and circulated
internationally constituted a violation of international law. Under customary international
law, every Head of State or States Foreign Affairs Minister is protected by immunity from
other States jurisdiction. This was for the reason that Foreign Affairs Minister, during his
period of his service, was carrying States offical function. Also under customary
international law there are no exception to this regulation, not even the involvement in war
crimes or crimes against humanity, as illuminated in the judgements of International Courts,
inter alia The Nuremberg and Tokyo international military tribunals, or of the lnternational
Criminal Tribunal for the former Yugoslavia. Thus, the jurisdiction of other States law upon
a person enjoying this immunity would constitute as a violation of international law. The
Arrest Warrant by Belgium was deemed as a violation to the principle of jurisdictional
immunities for the basis that the very reason that Belgium produce the warrant was to enforce
it in the sense of arresting Mr. Yerodia. Moreover, as a matter of legal effect, the warrant has
a power mandating the Belgian authorities to arrest Mr. Yerodia inside Belgiums territory
which infringe the capacity of Mr. Yerodia in traveling to countries to carry his functions as a
Foreign Affairs Minister.
(3) Under customary international law as firmly established by the Court jurisprudences,
restituo in integrum is the primary form of reparation over an internationally wrongful act. To
return the condition as before the illegal act was commited is the main objective of
reparation. Thus it is conclusive, a mere declaration by the Court that the warrant is unlawful
could not deprive the illegal act conducted by Belgium. It was for the reason that the warrant
was still in effect regardless of such judgement. Thus the Court has to make a judgement to
cease the warrant to have effect. In conclusion, the Court adjudge that 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.