"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"
"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";
"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" ;
"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 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" ;
"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";
"[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 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" ;
"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 première 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";
"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";
On behalf of the Congo :
by H.E. Mr. Jacques Masangu-a-Mwanza, Agent,
Mr. Jacques Vergés,
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;
"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 explain[ed] 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";
"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";
"[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] justif[ied] 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";
"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"
"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, 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";
"[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 represent[ed] 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";
"[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";
"[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, "[m]utatis 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";
"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";
"[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";
"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 avoidance of doubt, [it]... reserve[d] [its] position on the question of jurisdiction and admissibility";
"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";
"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 Democratic 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";
"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)";
"[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 (e), of the 1969 Vienna Convention on the Law of Treaties";
"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";
"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 international 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";
"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";
"[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" ;
"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 CongoBelgium) 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 Belgium) brought by the Democratic Republic of the Congo against Belgium by Application dated 17 October 2000";
"[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 ;
"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;
"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 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" ;
"[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";
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 thousand, 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.
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.