Summary: On 11 April 2000, Belgium issued an international arrest warrant in absentia against Congo Minister of

Foreign Affairs Abdulaye Yerodia Ndombasi for alleged grave breaches of the Geneva Convention and Additional
Protocols. Congo turned to this Court for the warrant is against the principle of sovereign equality among all
member nations of UN and of diplomatic immunity. Meanwhile, Belgium contends that the Court has no jurisdiction
over the matter and the arrest warrant is issued pursuant to State protection and security. The Court ruled that it has
jurisdiction over the case and that the criminal jurisdiction of Belgium does not extend to officers of other States
who are granted diplomatic immunity under customary international law

Topic: Immunity of State, Organs, International Organs and Agents

Quick Facts:
1. April 2000, Belgium issued an international arrest warrant in absentia against Minister for Foreign Affairs
Yerodia of Democratic Republic of Congo for alleged grave breaches of the Geneva Convention and of
Protocols I and II, as well as serious violations of international humanitarian law. Due to this issuance, on
October 2000, Congo filed this Application to the Court assailing the legality of the arrest warrant as it
violates the principle of sovereign equality and diplomatic immunity.
 Arguments of Congo - 1.) By issuing and circulating the international arrest warrant Belgium
violates the rule of customary international law concerning the absolute inviolability and
immunity from criminal process of incumbent foreign ministers, further violating the principle of
sovereign equality among States; 2.) The international arrest warrant is thus unlawful which
consequentially affords Congo the right for reparation for moral injury it obtained; 3.) violations
of international law precludes Belgium or any state from executing it; 4.) Beligum must be
required to recall and cancel the arrest warrant and inform authorities to whom the warrant was
circulated of such recall
 Arguments of Belgium - 1.) Court lacks jurisdiction, thus the Application of Congo is
inadmissible; 2.) even if Court has jurisdiction, Application must be dismissed based on the
merits
Court Ruling: Court rules in favour of CONGO. The International Arrest Warrant is VOID.
Doctrine: Jurisdiction does not imply absence of immunity, while absence of immunity does not imply jurisdiction.
Thus, although various international conventions on the prevention and punishment of certain serious crimes or
States obligations of prosecution or extradition thereby requires them to extend their criminal jurisdiction, such
extension of jurisdiction in no way affects immunities under customary international law, including those of
Ministers for Foreign Affairs. States have their immunity based on the principle of sovereign equality of States and
state officials such as diplomats are covered by immunity as well in the discharge of their official government
functions during their incumbency. The immunity extends to the acts they have done, thus the actions are immune
even if the state official has ceased to hold the office or is no longer part of the government.

Full Digest

FACTS:

1. In 1993, Belgium's Parliament voted a "law of universal jurisdiction", allowing it to judge people accused
of war crimes, crimes against humanity or genocide.
2. On 11 April 2000 an investigating judge of the Brussels tribunal de prernizre instance issued "an
international arrest warrant in absentia" against Mr. Abdulaye Yerodia Ndombasi, the then Minister of
Foreign Affairs of the Democratic Republic of the Congo, charging him, as perpetrator or co-perpetrator,
with offences constituting grave breaches of the Geneva Conventions of 1949 and of the Additional
Protocols thereto, and with crimes against humanity.
3. The arrest warrant was circulated internationally through Interpol.
4. The crimes with which Mr. Yerodia was charged were punishable in Belgium under the Law of 16 June
1993 "concerning the Punishment of Grave Breaches of the International Geneva Conventions of 12
 August 1949 and of Protocols I and I1 of 8 June 1977 Additional Thereto", as amended by the Law of 19
February 1999 "concerning the Punishment of Serious Violations of International Humanitarian Law"
5. 17 October 2000 the Democratic Republic of the Congo filed in the Registry of the Court an Application
instituting proceedings against the Kingdom of Belgium in respect of a dispute concerning 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, Mr. Abdulaye Yerodia Ndombasi.
6. The arrest warrant was issued upon complaints of 12 Belgian residents regarding various speeches made
by Mr. Yerodia during his incumbency as Minister for Foreign Affairs which allegedly incited racial
hatred. These speeches were in violation of Belgian Law (“concerning the Punishment of Grave Breaches
of the International Geneva Conventions of 12 August 1949 and of Protocols 1 and II of 8 June 1977
Additional Thereto", as amended by the Law of 10 February 1999 "concerning the Punishment of Serious
Violations of International Humanitarian Law"). However, it must be noted that these alleged violations
were committed outside the territory of Belgium, during Mr. Yerodia’s incumbency, Mr. Yerodia was not
a Belgian national and no Belgian national incurred any injury from violence the speeches allegedly
incited.
7. Belgium invokes Art. 5(3) of Belgian Law which provides “immunity attaching to the official capacity of
the person shall not prevent the application of the present Law” as the basis for its issuance of the arrest
warrant against Mr. Yerodia.
8. On November 2000, Congolese Government had a ministerial reshuffle which transferred Mr. Yerodia to
the position of Minister of Education and since mid-April 2001, Mr. Yerodia has ceased to hold any
ministerial office. Belgium contends that this change has rendered the case moot and if not, this has
changed substantially the claims of Congo
9. The Congo relied on two separate legal grounds.

First, it claimed that "the universal jurisdiction that the Belgian State attributes to itself under
Article 7 of the Law in question" constituted a 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 United Nations.

Secondly, it claimed that the non-recognition, on the basis of Article 5 of the Belgian Law, of the
immunity of a Minister for Foreign Affairs in office" constituted a violation of the diplomatic
immunity of the Minister for Foreign Affairs of a sovereign State".
10. However, the Congo's Memorial and its final submissions refer only to a violation "in regard to the Congo
of the rule of customary international law concerning the absolute inviolability and immunity from
criminal process of incumbent foreign ministers".
11. The Congo also filed a request for the indication of a provisional measure.
12. By an Order of 8 December 2000 the Court rejected Belgium's request that the case be removed from the
List and held that the circumstances were not such as to require the exercise of its power under Article 41
of the Statute to indicate provisional measures.
13. The Court also held that "it [was] desirable that the issues before the Court should be determined as soon
as possible" and that "it [was] therefore appropriate to ensure that a decision on the Congo's Application
be reached with all expedition"
ISSUES + RATIO:
1. W/N the Court has jurisdiction over the case – YES
Belgium’s Contentions:
a. No existing legal dispute because Mr. Yerodia is no longer the Minister for Foreign Affairs of Congo
b. The case is now without object
c. The case is substantially different from the Application submitted by Congo upon institution of the
proceedings because of the subsequent events
d. Mr. Yerodia not being a part of Congolese Government, the case is now assailing an arrest warrant
issued against a private citizen, thus not within the jurisdiction of the Court

Ratio: On the issue of jurisdiction:

a. Belgium contends that there is no longer a legal dispute now (but it admits that there existed a legal dispute
 upon the Application to the Court) however, what is important is its existence at the present time. Court ruled
that according to its settled jurisprudence, its jurisdiction must be determined at the time that the act
instituting proceedings was filed. Thus, if the Court has jurisdiction on the date the case is referred to it,
it continues to do so regardless of subsequent events. Furthermore they are bound by their acceptance of
compulsory jurisdiction of this Court as stated in Art. 36(2) of the Statute of the Court 1. There was a legal
dispute existing between them at the time the Application was presented before the Court, thus it has
jurisdiction to hear the case.
b. On Belgium’s second contention it relies for support on the Northern Cameroon case where the Court
considered that it would not be a proper discharge of its duties to proceed further in a case in which any
judgment that the Court may pronounce would be without object. It contends that Congo does not allege any
material injury and is not seeking any compensatory damages thus, it is only asking for a clarification. Court
knows that subsequent events may render a case without object thus, divesting it of duty to rule on the issue
but such is not the case here. The change in Mr. Yerodia’s status does not put an end to the dispute between
the States. The arrest warrant being assailed of is still at large and Congo filed this Application to find a
redress for the moral injury allegedly caused by such arrest warrant.
c. Belgium contends that Congo has fundamentally changed its claims from its Application which is contrary to
legal security and sound administration of justice because it leaves the respondent State uncertain of the
substance of the claims against it. Court recognizes in settled jurisprudence that it "cannot, in principle, allow a
dispute brought before it by application to be transformed by amendments in the submissions into another
dispute which is different in character". However, it notes that no substantial changes were made. Congo is
still asserting the same legal arguments it presented before. Congo merely condensed and refined its arguments
for a better disposition of the case.
d. Since Mr. Yerodia was no longer part of the Congolese Government, the proceedings files by Congo concerns
the issue of an arrest warrant issued against a private citizen according to Belgium, and it should have been an
action for diplomatic protection. It adds that the individual concerned has not exhausted al1 available remedies
under Belgian law a necessary condition before the Congo can espouse the cause of one of its nationals in
international proceedings. The Court notes that the Congo has never sought to invoke before it Mr. Yerodia's
persona1 rights. It considers that, despite the change in professional situation of Mr. Yerodia, the character of
the dispute submitted to the Court by means of the Application has not changed: the dispute still concerns the
lawfulness of the arrest warrant issued on 11 April 2000 against a person who was at the tine Minister for
Foreign Affairs of the Congo, and the question whether the rights of the Congo have or have not been violated
by that warrant. As the Congo is not acting in the context of protection of one of its nationals, Belgium cannot
rely upon the rules relating to the exhaustion of local remedies.

2. W/N Belgium can exercise its criminal jurisdiction over the Minister for Foreign Affairs of Congo – NO

Ratio: On the Merits:

a. It is an established principle of international law that Heads of States and Governments, Foreign Ministers
and Diplomatic and Consular agents enjoys immunities from civil and criminal jurisdictions of other
States.
b. In the absence of treaty law, customary international law determines the immunities of Ministers of

1
Statute of the International Court of Justice, Art. 36(2) provides “The states parties to the present Statute may at
any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to 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.”
 Foreign Affairs. These immunities “…are not given for their personal benefit; but to ensure the effective
performance of their functions of behalf of their…States”. The functions of the Foreign Minister require
frequent travel to other countries. International law recognizes him as a representative of the State solely
by virtue of his office. The functions of a Foreign Minister are such that – during his tenure – he enjoys
absolute immunity from criminal jurisdiction and inviolability when he is abroad.
c. As the incumbent Foreign Minister, Yerodia enjoys immunity (during his tenure) for acts performed, both,
in an official capacity and in a private capacity. The immunity applies regardless of whether the Minister
is on foreign territory in an official visit or private visit. This immunity extends not only to his actions
during his tenure; but, also to his actions before he became Foreign Minister.
i. “Thus, if a Minister for Foreign Affairs is arrested in another State on a criminal charge, he or
she is thereby prevented from exercising the functions of his or her office. The consequences of
such impediment to the exercise of those official functions are equally serious…. Furthermore,
even the mere risk that, by travelling to or transiting another State a Minister for Foreign Affairs
might be exposing himself or herself to legal proceedings could deter the Minister from
travelling internationally when required to do so for the purposes of the performance of his or
her official functions.”
d. The Court rejected Belgium’s argument that the Minister does not enjoy immunity because he is
accused of having committed war crimes or crimes against humanity. (Belgium relied on the Pinochet
Case (decided by the House of Lords, UK), the Qaddafi Case (decided by the French Court of Cassation)
and Statutes of International Criminal Court and Tribunals.) The Court held that there was no exception in
customary international law to the absolute immunity of an incumbent Foreign Minister.
i. ” It (the Court) 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 of Foreign Affairs, when they are suspected
of having committed war crimes or crimes against humanity…The Court has also examined the
rules concerning the immunity or criminal responsibility of persons having an official capacity
contained in the legal instruments creating international criminal tribunals, and which are
specifically applicable … It finds that these rules likewise do not enable it to conclude that any
such an exception exists in customary international law in regard to national courts.”
e. International Conventions give jurisdiction to national Courts over various crimes and, at times, requires
them to exercise this jurisdiction [for example, the Torture Convention]. This requirement does not affect
the immunities given to Foreign Ministers under international law. Despite international conventions
establishing domestic jurisdiction, Foreign Ministers are immune before foreign courts.
f. Immunity does not mean impunity. The person continues to be individually responsible for the crime he
committed.
i. “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….”
g. The Court set out four situations where an incumbent or former Foreign Minister could be prosecuted:
i. Prosecution in his own country according to the domestic law (the international law of immunity
is not recognized before a person’s national courts);
ii. If his country waives his immunity, prosecution before a foreign court;
iii. Once he ceases to be the Foreign Minister, he no longer enjoys immunity before foreign courts
for private acts committed during his tenure as Foreign Minister; and for all acts committed
before or after his tenure in office; and
iv. Prosecution before an international criminal body, with the necessary jurisdiction (for example
the ICC).
 h. The ICJ concluded that the issuance and circulation of the arrest warrant violated Belgium’s obligations
towards Congo, “in that it failed to respect the immunity of that Minister and, more particularly infringed
the immunity from criminal jurisdiction and the inviolability enjoyed by him under international law.” It
did not matter that Yerodia was never arrested.
i. “Since Mr. Yerodia was called upon in that capacity to undertake travel in the performance
of his duties, the mere international circulation of the warrant… could have resulted, in
particular, in his arrest while abroad. The Court observes… Mr. Yerodia, “on applying for a
visa to go to two countries, [apparently] 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”‘.
i. Congo asked the Court to rule that the unlawfulness of the arrest warrant precludes States who received
the warrant from exercising it. The Court refused to indicate what the judgment’s implications might be
for third States. Its determination is limited to Congo and Belgium. [NB: the Statute of the ICJ requires
that its rulings should not create binding obligations on States who are not parties to the dispute.]
j. On reparation, the Court held that the issuance and circulation of the arrest warrant engaged Belgium’s
international responsibility. “The Court… considers that Belgium must, by means of its own choosing,
cancel the warrant in question and so inform the authorities to whom it was circulated.” The Court did not
order any other reparations.

DISPOSITIVE: Belgium violated its legal obligation to respect the criminal jurisdiction of Democratic Republic of
Congo by issuing the international arrest warrant as well as the immunity enjoyed by the Minister for Foreign
Affairs of DRC under international law. The International Arrest Warrant is cancelled and Belgium must inform
the authorities to whom the warrant was circulated of such cancellation.