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International Court of Justice
Arrest Warrant of 11 April 2000
(Democratic Republic of the Congo v. Belgium)
Counter Memorial of the
Kingdom of Belgium
28 September 2001

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CONTENTS
(Abbreviated version)

INTRODUCTION

PART I: BACKGROUND AND PRELIMINARY ISSUES

PART II: OBJECTIONS TO JURISDICTION AND ADMISSIBILITY

PART III: MERITS


Chapter One: The character of the arrest warrant is such that it neither infringes the sovereignty of, nor creates obligations for, the DRC

Chapter Two: The legal and jurisdictional bases of the arrest warrant

A. The Law of 16 June 1993, as amended by the Law of 10 February 1999
B. The charges against Mr Yerodia Ndombasi
C. The law governing the jurisdiction of the Belgian judge

Chapter Three: International law allows universal jurisdiction in abstentia

A. Does international law oblige Belgium to exercise universal jurisdiction in the circumstances in issue?
B. Does international law permit Belgium to exercise universal jurisdiction in the circumstances in issue?

I. The legal foundation of the exercise of universal jurisdiction in absentia

(a) An investigation and/or prosecution by default does not violate any rule of international law
(b) An investigation and/or prosecution by default against the alleged perpetrator of serious violations of international humanitarian law is accepted in international practice as a means of fighting impunity
(c) An investigation and/or prosecution by default are largely accepted in the internal practice of the States

II. Additional arguments of the DRC in opposition to the exercise of universal jurisdiction in abstentia

(a) The alleged risk of multiple prosecutions
(b) The alleged incompatibility of the Law of 1993/1999 with the ICC Statute

Chapter Four: The law relating to the immunity of Ministers for Foreign Affairs

Chapter Five: International law excludes immunity in the case of prosecution for serious crimes of international humanitarian law

A. The DRC's petition concerning the immunity of Mr Yerodia Ndombasi is pointless
B. As a subsidiary argument, the DRC's petition concerning the immunity of Mr Yerodia Ndombasi is groundless

I. Foundation for the refusal of immunity to persons suspected of serious crimes of international humanitarian law

(a) Conventional sources excluding the immunity of alleged perpetrators of serious crimes of international humanitarian law

(i) The Treaty of Versailles of 1919
(ii) The Statutes of international criminal jurisdiction
(iii) Law No. 10 of the Allied Control Authority
(iv) Convention on the Prevention and the Punishment of Genocide
(v) Resolutions of the UN organs

(b) National sources excluding the immunity of alleged perpetrators of serious crimes of international humanitarian law
(c) International jurisprudence addressing the immunity of alleged perpetrators of serious crimes of international humanitarian law
(d) The writings of publicists excluding the immunity of alleged perpetrators of serious crimes of international humanitarian law

(i) Deliberations of the ILC and the IDI
(ii) Other sources

II. The DRC's other arguments in favour of the absolute immunity of the members of foreign governments in office

(a) The immunity of high foreign representatives is an objective rule imposed upon Belgium
(b) The Belgian national legal order is opposed to any recognition of immunity once the investigating judge has issued the arrest warrant
(c) Recognising immunity of a high foreign representative who has been accused of crimes under international humanitarian law would be contradictory with the jus cogens nature of the repression of these crimes
(d) The absence of execution of the arrest warrant by third States shows that opinio juris supports criminal immunity of a high foreign representative

Chapter Six: The remedies requested of the Court by the DRC fall outside the accepted judicial function of the Court

CONCLUSIONS

SUBMISSIONS


INTRODUCTION


0.1 By an Application dated 17 October 2000 filed with the Registry of the Court, the Democratic Republic of the Congo ("DRC") instituted proceedings against the Kingdom of Belgium ("Belgium") alleging that, in consequence of the issue of an arrest warrant by a Belgian Judge against the Minister for Foreign Affairs of the DRC, Belgium is in violation of "the principle that a State may not exercise [its authority] on the territory of another State ..., of the principle of sovereign equality among all Members of the United Nations", and of the "immunity of the Minister of Foreign Affairs of a sovereign State". The Application requests the Court 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". Setting out the grounds on which the claim is based, the Application states (A) that the universal jurisdiction provided for by the Belgium law under which the arrest warrant was issued, as well as the arrest warrant itself, are in breach of international law, and (B) that "[t]he non-recognition ... of the immunity of a Minister for Foreign Affairs in office is contrary to international case-law ..., to customary law and to international courtesy ..."

* * * *

0.26 By way of summary, Belgium's principal submissions on the issues of substance raised by the DRC are as follows:

(a) the character of the arrest warrant is such that it neither infringes the sovereignty of, nor creates any obligations for, the DRC;

(b) the assertion of jurisdiction by the Belgian Judge pursuant of the relevant Belgian legislation is consistent with international law in that:

(i) it is based on the connection of the complainant civil parties to Belgium by reason of nationality and/or residence;
(ii) it is consistent with the obligations upon High Contracting Parties to the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 1949 ("Fourth Geneva Convention")20 - and, in particular, Article 146 and 147 thereof - which the applicable Belgian legislation was designed to implement;
(iii) it is consistent with principles of customary international law permitting States to exercise universal jurisdiction over inter alia war crimes and crimes and humanity;

(c) while Ministers for Foreign Affairs in office are in general immune from suit before the courts of a foreign State, such immunity applies only in respect of their official conduct for purposes of enabling them to carry out their official functions. It does not avail such persons in their private capacity or when they are acting other than in the performance of their official functions;

(d) immunity does not in any event avail Ministers for Foreign Affairs in office alleged to have committed war crimes or crimes against humanity;

(e) the arrest warrant explicitly recognises that had Mr Yerodia Ndombasi, in his role as DRC Foreign Minister, visited Belgium on the basis of an invitation and in his official capacity, he could not have been arrested;

(f) whatever the Court's conclusions on the merits of the case, key elements of the remedies requested by the DRC in its final submissions fall outside the accepted judicial function of the Court and should not accordingly be the subject of any judgment by the Court.


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PART I
BACKGROUND AND PRELIMINARY ISSUES

* * * *

A. Factual and legal background

1.2 To the extent material, the facts and elements of law relevant to the present proceedings are set out in the substantive parts of this Counter-Memorial addressing in detail the arguments advanced by the DRC. For convenience, the essential facts underlying the case and certain relevant elements of law may be summarised at this point as follows.

1.3 In November 1998, various complaints were lodged with a Belgian investigating Judge, Judge Damien Vandermeersch, at the Brussels Court of First Instance concerning certain events that took place in the DRC in August 1998. Of the 12 complainants, five were of Belgian nationality. All of the complainants were resident in Belgium.

1.4 Following detailed investigation into the matter, the Judge concluded that there were strong and sufficient grounds for initiating proceedings before the Belgian courts in respect of the matters complained of. Accordingly, on 11 April 2000, he issued an arrest warrant in absentia naming Mr Abdulaye Yerodia Ndombasi, at the time Minister for Foreign Affairs of the DRC, in respect of certain acts alleged to have been committed in August 1998.1 At the time of the alleged commission of the acts in question, Mr Yerodia Ndombasi was the Director of the Office of President Laurent-Désiré Kabila.

1.5 The arrest warrant charges Mr Yerodia Ndombasi, as perpetrator or co-perpetrator, with two counts: (a) crimes constituting grave breaches of the Geneva Conventions of 1949 and the additional protocols to these conventions, and (b) crimes against humanity.Both categories of crimes were criminalized as a matter of Belgian law by an Act of 16 June 1993, as amended by an Act of 10 February 1999, concerning the punishment of grave breaches of international humanitarian law.3 It may be recalled, in this regard, that Article 146 of the Fourth Geneva Convention provides inter alia:

"The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.

Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. ...

Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article."4

1.6 Article 147 of the Fourth Geneva Convention defines "grave breaches" as including inter alia the following acts: wilful killing, torture or inhuman treatment, wilfully causing great suffering or serious injury to body or health.5

1.7 The arrest warrant was transmitted to the DRC on 7 June 2000. As the warrant concerned acts alleged to have been committed in the DRC by one of its nationals, there were subsequently exchanges between the relevant authorities of the two States at various stages with a view to ascertaining whether the dossier could be handed over to the DRC authorities for further investigation and action. Nothing has so far come of these exchanges. Belgium has from the outset made clear its willingness to hand the matter over to the DRC authorities for further action.

1.8 As part of these exchanges, Belgium has at various points made enquiries of the DRC about the possibility of extradition. However, as no appropriate extradition agreement exists between Belgium and the DRC, and as the DRC does not extradite its nationals, Belgium has not at any point made a formal request to the DRC for the extradition of Mr Yerodia Ndombasi.

1.9 At the point that the arrest warrant was transmitted to the DRC, it was also transmitted to Interpol. Through Interpol, the warrant was circulated internationally. The warrant was not, however, at the time, the subject of an Interpol Red Notice, ie, a provisional request to third States to arrest the person named with a view to extradition.

1.10 The facts underlying the allegations against Mr Yerodia Ndombasi and the decision of the Judge to issue the arrest warrant are set out in detail in the warrant itself. It is not necessary to go into these facts at this point, although relevant aspects will be addressed briefly in Part III below. Likewise, there is no need to go into the wider circumstances prevailing in the DRC at the time of the events in question.1.11 Given the official position of Mr Yerodia Ndombasi as Minister for Foreign Affairs of the DRC at the point at which the arrest warrant was issued - although not at the point at which the acts in question were alleged to have been committed - the arrest warrant addresses the issue of immunity from execution in some detail inter alia as follows:

"Official immunity

In terms of section 5(3) of the Act of 16 June 1993 as amended by the Act of 10 February 1999, the immunity attaching to the official capacity of a person does not prevent prosecutions on the grounds of a crime against humanitarian law. ...

The wording of this provision is borrowed from article 27(2) of the Statute of the International Criminal Court, which provides:

`Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.'

Before the coming into force of the Act of 10 February 1999, the view was taken that the immunity conferred on Heads of State did not apply in questions of crimes under international law, such as war crimes, crimes against peace, crimes of genocide or crimes against humanity ...

Although these arguments have been upheld to justify the absence of any recognition of immunity for a former head of state, they also assume a relevance for responsible persons who are in office.

According to the opinion of the Minister of Justice, expressed at the time of the legislation's passage through parliament, the rule of the non-relevance of immunities from jurisdiction and enforcement introduced by the Act of 10 February 1999 already existed previously in international law, which forms an integral part of the Belgian legal system ...

Hence, the office of Minister for Foreign Affairs that is currently occupied by the accused does not entail any immunity from jurisdiction and enforcement and this court is consequently competent to take the present decision.

However, the rule of the absence of immunity under humanitarian law seems to us to require to be tempered as regards immunity from enforcement. Beyond the question of the extent of the protection that a private individual who holds an official capacity enjoys, sight must not be lost of the fact that the immunity conferred on the representatives of a State is not so much to protect the private individual but first and foremost the State of which he is a representative. This immunity, customary in origin, is founded on the principle that a State has no jurisdiction to judge another State (`par in parem non habet iuridictionem'). By virtue of the general principle of fairness in legal action, in our view, an immunity from enforcement must be accorded to all representatives of a State that are welcomed onto the territory of Belgium as such (on `official visits'). Welcoming such a foreign personality as an official representative of a sovereign State puts at stake not only relations between individuals but also relations between States. On this line of thinking, it includes an undertaking by the host State and its various components not to take coercive measures against its guest, and the invitation may not become a pretext [for] having the party in question fall into what would then be labelled an ambush. In the contrary case, failure to adhere to this undertaking could entail the host State being liable at an international level."

1.12 As this extract makes clear, the investigating Judge distinguished explicitly, on the face of the arrest warrant, between immunity from jurisdiction and immunity from enforcement in the case of representatives of foreign States who visit Belgium on the basis of an official invitation. In such circumstances, the warrant makes clear that the person concerned would be immune from enforcement in Belgium. Other States are likely to follow the same principle.

1.13 Contending that Belgium is in violation of the principle that a State may not exercise its authority on the territory of another State, of the principle of sovereign equality of States, and of the immunity of its Minister for Foreign Affairs, the DRC initiated proceedings against Belgium before the International Court of Justice on 17 October 2000.

1.14 On 13 September 2000, lawyers acting on behalf of Mr Yerodia Ndombasi applied to the Brussels chambre du conseil to have access to the dossier of complaints submitted to Judge Vandermeersch. The application was found to be admissible but was rejected on the merits by decision of the chambre du conseil on 12 October 2000. The decision of the chambre was appealed to the Brussels chambre des mises en accusation on 23 October 2000. After hearing argument, the chambre des mises en accusation upheld the decision of the chambre du conseil denying access to the dossier on 12 March 2001 on the grounds that (a) in the circumstances, access to the dossier could result in reprisals being taken against the complainants, against others heard during the course of the investigation, or against members of their families still living in the DRC, and (b) the Applicant was fully aware of the allegations against him following the issuing of the arrest warrant and the commencement of proceedings by the DRC before the International Court of Justice.10

1.15 Contrary to the submissions made during the provisional measures phase of the proceedings,11 Belgium knows of no application by Mr Yerodia Ndombasi in his personal capacity seeking the annulment of the arrest warrant. As will be addressed further in Part II of this Counter-Memorial, and contrary to what is stated in the DRC Memorial,12 it would be open to a person who is the subject of an arrest warrant issued by a Belgian investigating judge to challenge the issuing of that warrant on grounds of, inter alia, the lack of jurisdiction on the part of the judge in question.

B. The DRC's case

1.16 As has already been observed, since the filing of the DRC's Application on 17 October 2000 the case has undergone something of a metamorphosis, both factually and legally. Mr Yerodia Ndombasi is no longer Minister for Foreign Affairs of the DRC, nor a minister occupying any other position in the DRC Government. The manner in which the DRC's claim against Belgium has been formulated has also changed, as has been expressly acknowledged by the DRC in its Memorial.13

1.17 As will be addressed in Part II of this Counter-Memorial, the change in the factual circumstances underlying the case formulated in the DRC's Application is such that the case is now without object. To proceed further with it, in the light of these developments, would turn the adjudicatory function of the Court into an exercise focused on issues in abstracto. The change in the factual circumstances underlying the case has also fundamentally altered the character of the case from one involving an alleged breach by Belgium against the DRC directly to one involving the assertion of a claim by the DRC on behalf of one of its nationals. Given the failure of the individual concerned to pursue available remedies before the Belgium courts, Belgium contends that the Court lacks jurisdiction in the case and/or that the case is inadmissible.

1.18 Distinct from the change in the factual circumstances underlying the case, the DRC has also reformulated its claims in law. As now formulated in its Memorial, the DRC's case both has little connection to the prevailing factual situation and is materially different in important respects to that formulated in its Application instituting proceedings. By reference to well-established principles in the case-law of the Court, Belgium contends that, in consequence of these factors, the Court lacks jurisdiction in this case and/or that the application is inadmissible.

* * * *

4. Conclusions

1.56 This case began on 17 October 2000 as a claim by the DRC that its sovereignty had been infringed and the immunity of its Minister for Foreign Affairs violated as a result of the issue and transmission of an arrest warrant by a Belgian judge. The case has evolved significantly since then. First, the subject of the arrest warrant was relieved of the position of Minister for Foreign Affairs whereupon the claim was expressed to hinge on the immunity of ministers of State more generally. Now, given that the subject of the arrest warrant no longer occupies any ministerial position in the DRC Government, the case has been refashioned as a retrospective claim for the infringement of the immunity of the Minister for Foreign Affairs at some point in the past. The damage alleged to have been suffered is described as moral damage. The claim relating to the jurisdiction of the Belgian judge has become a peripheral element of argument and one which is not the subject of any request of the Court.

1.57 The case, therefore, in reality, has become a request for the clarification of the law in the abstract. The dispute alleged has become an abstract difference of view about certain issues of law rather than a matter of practical moment which is in need of resolution by the Court. The case as now formulated has no connection to the prevailing factual situation. As will be addressed in Part II of this Counter-Memorial, Belgium contends therefore that, in the light of these developments, the Court lacks jurisdiction in this case and/or that the application is inadmissible.

C. The position of Mr Yerodia Ndombasi at the material times

1.58 Before leaving this Part, it may be helpful simply to identify the position of Mr Yerodia Ndombasi at all the material times. From the information available to Belgium, the position is as follows:


• Mr Yerodia Ndombasi was Director of the Office of President Laurent-Désiré Kabila from 20 January 1998 until 14 December 1999. It was during this period that he is alleged to have committed the acts that are the subject of the arrest warrant;
• Mr Yerodia Ndombasi became Minister for Foreign Affairs of the DRC on 15 December 1999, a post that he held until 19 November 2000.51 This period coincides with the commencement of proceedings by the DRC against Belgium before the Court;
• from 20 November 2000 to 14 April 2001, Mr Yerodia Ndombasi was Minister of National Education of the DRC; and
• since 15 April 2001 and the constitution of the new DRC Government of President Joseph Kabila, Mr Yerodia Ndombasi has not occupied any position in the Government of the DRC. This period coincides with the filing of the Memorial of the DRC.

* * * *

PART III: MERITS
CHAPTER ONE
THE CHARACTER OF THE ARREST WARRANT IS SUCH THAT IT NEITHER INFRINGES THE SOVEREIGNTY OF, NOR CREATES OBLIGATIONS FOR, THE DRC


3.1.1 The legal and jurisdictional bases of the arrest warrant, in both Belgian and international law, are addressed in detail in the following chapter in this Part. As will there be shown, the arrest warrant, while issued pursuant to Belgian municipal law, is fully consistent with accepted principles of international law concerning the assertion by States of jurisdiction over war crimes and crimes against humanity. It will further be shown, in Chapter Three of this Part, that the warrant is fully consistent with international law even if considered solely by reference to customary principles of universality. Finally, as will be shown in Chapters Four and Five, principles of international law relating to the immunity of Ministers for Foreign Affairs do not preclude the issuing and transmission of an arrest warrant in circumstances in which the allegations in question concern grave breaches of the Geneva Conventions of 1949, and the Additional Protocols thereto, or crimes against humanity. In the light of these submissions, the allegations by the DRC that the issuing and transmission of the arrest warrant amounted to a violation of international law have no substance.

3.1.2 Separately from the preceding, the character of the arrest warrant and the legal consequences that flow therefrom also warrant comment. The central point is that the character of the arrest warrant is such that it neither infringes the sovereignty of, nor creates obligations for, the DRC. . . .

3.1.3 The arrest warrant of 11 April 2000 is a national arrest warrant. Although, subject to its terms,3 it is enforceable in Belgium without further requirements, it is not automatically enforceable in third States. For this to occur, the arrest warrant must first be validated by the appropriate authorities of the putative arresting State. This is a matter of the internal law of the State concerned, subject to any relevant and applicable international commitments (such as an extradition agreement between the States concerned) and a request for extradition. In the absence of a request for extradition, or an indication that such a request is pending, and a binding international commitment to act thereon, a third State is under no obligation to act to enforce an arrest warrant issued by another State.

3.1.4 As has previously been observed, the arrest warrant of 11 April 2000 was transmitted by Belgium to the DRC on 7 June 2000. There is, however, no extradition agreement between Belgium and the DRC covering offences of the kind alleged and, accordingly, Belgium did not, and has not at any point since, formally requested the extradition of Mr Yerodia Ndombasi to Belgium.4

3.1.5 In early June 2000, at the point at which the arrest warrant was transmitted to the DRC, it was also transmitted to Interpol. Through Interpol, the warrant was circulated internationally. It was not, however, the subject of an Interpol Red Notice. This point requires emphasis.

3.1.6 A Red Notice, sometimes referred to as an Interpol Wanted Notice, is a formal document issued by Interpol at the request of the Interpol National Central Bureau ("NCB") of the State concerned identifying a person whose arrest is requested with a view to extradition. It is required to contain detailed and specific information about the person concerned and the facts alleged including description, identity particulars (such as name, place and date of birth, photographs and fingerprints, if available, occupation, identity document numbers, etc), the facts alleged, charges, arrest warrant details and other relevant judicial information.
3.1.7 . . . Paper copies of Red Notices are sent by mail to all NCBs.

"It is then up to the NCBs to take the appropriate steps - in conformity with their legislation and regulations - to inform their national police and immigration authorities (particularly border posts and airports) that an individual is wanted at international level. Some NCBs are empowered to record names from red notices in a national file of wanted persons. Red notices are also recorded in the ASF (Automated Search Facility) so that NCBs, and any national police forces connected to the database, can access red notices directly."5

3.1.8 The legal status of Red Notices as a matter of national law was recently the subject of a major study by Interpol. The results of this study were set out in Report No.8 prepared by the Interpol General Secretariat and adopted by the Interpol General Assembly at its 66th Session in New Delhi in October 1997.6 The background to this study, and a summary of its conclusions, are set out in the 1998 explanatory note referred to above.7

3.1.9 As Report No.8 describes, 65 of the 178 countries and territories which are members of Interpol indicated that, as a matter of their national laws and regulations, it was possible to make a provisional arrest on the bass of a Red Notice. In such cases, a Red Notice thus effectively amounts to a request for provisional arrest.

3.1.10 A request for provisional arrest is not the same as a request for extradition. Rather, it is a document requesting that a wanted person be arrested pending the transmittal of a formal request for extradition. A request for extradition, in contrast, is a formal document sent by one State to another, usually through diplomatic channels, requesting the surrender to the requesting State of a named person found on the territory of the requested State for purposes of either standing trial for an offence he or she is alleged to have committed or to serve a penal sentence already pronounced on him or her. A request for extradition must be accompanied by all the documents required to allow the relevant authorities of the requested State to decide, on the basis of its national laws and international obligations, whether to agree to or refuse extradition.

3.1.11 As Belgium understands the position, having made enquiries on the matter (including with Interpol), the DRC does not regard a Red Notice as a request for provisional arrest. Additionally, as has just been observed, Red Notices do not in any circumstances amount to a formal request for extradition. As has also been observed, Belgium has not at any point made a formal request to the DRC for the extradition of Mr Yerodia Ndombasi. Nor, for completeness, it may be added, has Belgium addressed a request for the extradition of Mr Yerodia Ndombasi to any other State.

3.1.12 As will be apparent from the preceding, the character of the arrest warrant of 11 April 2000 is such that it has neither infringed the sovereignty of, nor created any obligation for, the DRC. Indeed, both at the point that it was issued and today, the arrest warrant has no legal effect at all either in or as regards the DRC. Although the warrant was circulated internationally for information by Interpol in June 2000, it was not the subject of a Red Notice. Even had it been, the legal effect of Red Notices is such that, for the DRC, it would not have amounted to a request for provisional arrest, let alone to a formal request for extradition.

3.1.13 As was observed in Part I,8 in the light of the changed circumstances of Mr Yerodia Ndombasi, the Belgian National Central Bureau of Interpol addressed a request to Interpol to issue a Red Notice in respect of Mr Yerodia Ndombasi on 12 September 2001, ie, some five months after Mr Yerodia Ndombasi ceased to be a member of the DRC Government.9 At the point at which this Counter-Memorial is being finalised, a Red Notice had still not, however, been issued. Given the effect of Red Notices in the DRC, even were a Red Notice to be issued, it would neither infringe the sovereignty of, nor create any obligation for, the DRC.

3.1.14 As regards the 65 members of Interpol that have indicated that a Red Notice would permit the provisional arrest of a named person, the issuing of a Red Notice in this matter would still require a positive act of the validation by the relevant authorities of the State concerned in accordance with their national laws and regulations. Even in such cases, therefore, there is no automaticity in the effect of the Red Notice.

3.1.15 On the basis of the preceding, Belgium contends that the character of the arrest warrant of 11 April 2000 is such that it has neither infringed the sovereignty of, nor created obligations for, the DRC.


CHAPTER TWO
THE LEGAL AND JURISDICTIONAL BASES OF THE ARREST WARRANT


3.2.1 The legal and jurisdictional bases of the arrest warrant issued against Mr Yerodia Ndombasi will be addressed in the light of:

• the Law of 16 June 1993, as amended by the Law of 10 February 1999;
• the charges against Mr Yerodia Ndombasi;
• the law governing the jurisdiction of the Belgian investigating judge.

A. The Law of 16 June 1993, as amended by the Law of 10 February 1999

3.2.2 On 16 June 1993, the Belgian Parliament adopted the [law at issue in this case]

3.2.3 Initially, this Law had no purpose other than to adapt Belgian law to the requirements of the Geneva Conventions of 1949 and the First Additional Protocol of 1997. It is recalled4 that, indeed, the Geneva Conventions, in common Article 49/50/129/146, require the High Contracting Parties to the Conventions:5

"to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article."

3.2.4 The obligation for High Contracting Parties to the Conventions to adapt their legislation for the purpose of criminally punishing serious violations of the Geneva Conventions was extended by the first Additional Protocol to the violations defined thereby. Article 85(1) of the First Additional Protocol provides:

"The provisions of the [four Geneva] Conventions relating to the repression of breaches and grave breaches, supplemented by this Section, shall apply to the repression of breaches and grave breaches of this Protocol."

3.2.5 As is emphasised in the document stating the grounds of the draft law submitted by the Government in 1990, this proposal simply aimed to enable Belgium to adapt its criminal legislation to the provisions referred to above, in keeping with its commitments further to the ratification of the Geneva Conventions and the First Additional Protocol.6

3.2.6 On certain points, the Law of 1993 went further than the stricto sensu requirements of the Geneva Conventions and the First Additional Protocol. This was particularly the case with regard to the extension of the scope of application of the law to crimes committed in non-international armed conflicts. It is known that the concept of a "war crime" is traditionally limited to grave breaches of international humanitarian law committed in an international armed conflict. By extending the scope of application of the accusations provided by the Law of 1993 to the most serious breaches of the Second Additional Protocol - those corresponding to "grave breaches" referred to by the Geneva Conventions and the First Additional Protocol - the legislature intended to criminally punish acts committed in non-international armed conflicts.

3.2.7 That which might have appeared as a form of audacity was rapidly confirmed in practice and in jurisprudence, as the following examples testify:

• in 1994, the Security Council, in creating the International Criminal Tribunal for Rwanda ("ICTR"),7 gave it jurisdiction to investigate "serious violations of Article 3 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims, and of Additional Protocol II thereto of 8 June 1977";8
• on 2 October 1995, the appeals chamber of the International Criminal Tribunal for the former Yugoslavia ("ICTY") considered that international customary law recognised individual criminal responsibility for violations of humanitarian law committed in domestic armed conflicts.9 The Belgian Law referred to above was, moreover, cited as an example of the application of this custom;10
• in 1996, in its Draft Code of Crimes Against the Peace and Security of Mankind, the International Law Commission ("ILC") included in its list of war crimes a number of acts "committed in violation of international humanitarian law applicable in armed conflict not of an international character";11
• the Statute of the International Criminal Court ("ICC") adopted in Rome on 17 July 1999 in turn considers a certain number of actions committed in a non-international armed conflict to be war crimes.12

3.2.8 In its Memorial, the DRC, . . . refrains from challenging the legality of this extension of jurisdiction. Belgium takes note of this.

3.2.9 The Law of 1993 presents two other aspects which particularly concern this case. On the one hand, in Article 7, it provides for the universal jurisdiction of the Belgian judge for the crimes that it stipulates. On the other hand, the document stating the grounds of the draft law shows that a crime stipulated by the Law can be brought before the Belgian courts even if the alleged perpetrator of the act in question is not found on Belgian territory.14

3.2.10 As concerns the principle of universal jurisdiction, the DRC does not challenge Belgium's right to include this in its legislation. During the provisional measures phase of the case, Belgium demonstrated that Belgium has complied fully with its international obligations by stipulating universal jurisdiction in its Law of 1993. As the DRC does not challenge this point in its Memorial, Belgium will refrain from repeating what it said at that time.15

3.2.11 Conversely, the DRC challenges Belgium's right to exercise this jurisdiction with regard to a person who is not found on Belgian territory. This point will be addressed further below. For the moment it is enough to observe that the extra-territorial nature of the acts with which Mr Yerodia Ndombasi is charged, and his foreign nationality, are not an obstacle to the application of the Law of 1993.

3.2.12 The Law of 10 February 1999 amended the Law of 1993 by, on the one hand, extending the jurisdiction of the law to the crime of genocide and crimes against humanity16 and, on the other hand, by providing that [immunities of government officials do not apply].

3.2.13 These amendments result from the combined will of certain Members of Parliament and of the Government. The former wanted to introduce the accusation provided by the Convention on the punishment of the crime of genocide of 9 December 1948 into Belgian law, a Convention that had been binding on Belgium since 5 September 1951.18 For the authors of the draft amendment, it was necessary to be able to prosecute under the Convention a number of "génocidaires rwandais" (Rwandan perpetrators of genocide) who had taken refuge in Belgium.19 The introduction of the amendment also corresponded to a symbolic and educational concern: prosecuting people for homicide is one thing, prosecuting them for genocide is something else.20 Society needed to be made aware of the horror of the act so as to prevent its reoccurrence.21

3.2.14 As for the Government, it approved this initiative and wanted to take the opportunity to start to adapt the law to the ICC Statute. With this in mind, it added the accusation of crimes against humanity (stipulated in Article 7 of the ICC Statute) and the exclusion of immunity for perpetrators of acts stipulated in that law (provided under Article 27 of the ICC Statute) to the draft amendment submitted by the Members of Parliament.22

3.2.15 The amendments to the Law of 1993 were adopted on 10 February 1999 and the Law of 1993 changed its name to be called thereafter [the law against grave human rights violations.]

3.2.16 Insofar as the acts charged against Mr Yerodia Ndombasi were covered by the Law of 1993/1999, the investigating judge had grounds to open a (preliminary) investigation into the complaints. In keeping with common law, if the investigation made it possible to conclude that there was serious evidence of guilt,24 the investigating judge had grounds to issue to an arrest warrant against Mr Yerodia Ndombasi.

B. The charges against Mr Yerodia Ndombasi

3.2.17 By an arrest warrant issued on 11 April 2000, the Belgian investigating judge, Judge Damien Vandermeersch, charged Mr Yerodia Ndombasi with violations covered by the Law of 1993. Belgium takes the liberty of repeating the elements that it has already brought before the Court in oral pleadings on the request for an indication of provisional measures lodged by the DRC.26

3.2.18 It must be observed that this warrant is not the result of a personal initiative. Belgian criminal procedure stipulates that an investigating judge can only adjudicate validly after acts are brought before him for which an arrest warrant could be issued.27 In this case, charges by the King's Prosecutor of Brussels, on the one hand, and, on the other hand, complaints by private citizens, some of whom were referred to by name in the arrest warrant, and others not for reasons of safety, had been referred to the Judge. Of the twelve persons filing complaints, five were of Belgian nationality and seven of Congolese nationality. All were domiciled in Belgium. Eight of the complainants had filed complaints for injuries that they considered were incurred specifically because they belong to a Tutsi ethnic group.

3.2.19 What were the acts that led the investigating judge to issue the arrest warrant? The warrant notes that on 4 and 27 August 1998, Mr Yerodia Ndombasi, who was at the time Director of the Office of President Laurent Kabila, gave various public speeches quoted in the media inciting ethnic hatred, speeches which led to the massacre of several hundred people, mostly of Tutsi origin.

3.2.20 Without taking any stand as to the guilt or innocence of Mr Yerodia Ndombasi - this is not the role of the Belgian Government - Belgium would only observe that the alleged acts in question were serious. Mr Yerodia Ndombasi notably declared at a press conference on 27 August 1998 about those whom he considered responsible for the unrest in the Congo that [we need to get rid of them as we would use medicine to get rid of diseases].

3.2.21 Already, on 4 August 1998, according to testimony quoted in the warrant, Mr Yerodia Ndombasi had spoken on RTNC radio about "de vermine qu'il fallait éradiquer avec méthode".29

3.2.22 The arrest warrant, referring to many witnesses, describes what happened at that point. Here are a few meaningful extracts of the testimony that fills several pages of the arrest warrant . . .

3.2.23 There is no point in going on with this list, which suggests that, apart from the war between the DRC and the Rwandan and Ugandan forces, atrocities were clearly committed against Tutsis at the time of the offending speeches because they belonged to that ethnic group.

3.2.24 Even so, and without prejudice to the conclusions that could be reached by a tribunal about the arrest warrant, Belgium would only observe that the warrant does not ignore the defence's arguments raised by the accused, who maintains [that he never used the word “tutsi”]

For his part, the DRC Minister for Human Rights also suggested, that the speeches by Mr Yerodia Ndombasi were nothing more than [a legitimate appeal to self-defense].

3.2.25 The DRC's Memorial repeats this attempt to legitimise the speeches in question. It underlines [the need to consider the remarks in a historical and cultural context.]

3.2.26 The arrest warrant deals with these defences by describing the context in which the speeches were made. According to the testimony put forward in this respect, they were made in the general context of a hunt for Tutsis.

* * * *

3.2.30 From the legal standpoint, the arrest warrant observes that the speeches imputed to the person in question constitute incitement to commit certain violations under the Law of 1993, including "wilfully causing great suffering and serious injury to the body, health" (Article 1(3)) and crimes against humanity (Article 1(2)). The Law of 1993 incriminates not only incitement (Article 4, 3rd item), but also failure to take action to prevent the occurrence of the events incriminated by the law (Article 4, 5th item).44 This relates not only to these direct appeals to massacre launched by Mr Yerodia Ndombasi, but also to the absence of notification of the obligation to protect the persons captured. As these acts are incriminated by the law, and as several complaints had been brought before the investigating judge, he believed that he was justified in issuing the arrest warrant against the alleged perpetrator of these acts.

3.2.31 The DRC observes, however, that the "causal relation between those words and certain unspeakable acts of violence directed against the Tutsi minority" is not established. Independently of the fact that the Court is not an appellate court for decisions taken by national judicial authorities,45 it must nevertheless be recalled, to put the situation in a correct perspective, that the law also punishes incitement "même non-suivie d'effet".46

3.2.32 At the time of the issue of the arrest warrant, the investigating judge also took account of the questions of immunity of jurisdiction resulting from the indictment of a Minister by rejecting the possibility of the arrest of Mr Yerodia Ndombasi if he were to come to Belgium in response to an official invitation of the Belgian government. In such circumstances, an invitation would imply that Belgium had renounced the execution of the warrant for the duration of the official visit and the judicial authority could not disregard this without entailing the international responsibility of the Belgian State47 given the principle of indivisibility of powers of the State in this field.48

3.2.33 These questions are no longer applicable today, since Mr Yerodia Ndombasi no longer holds a ministerial office in the DRC government.

3.2.34 In any case, in April 2000, the investigating judge believed that he had sufficient elements to conclude that Mr Yerodia Ndombasi had committed the acts that were imputed to him, that these acts fell under the scope of the Law of 1993/1999, and that they were sufficiently serious, to justify issuing an arrest warrant against the alleged perpetrator.

C. The law governing the jurisdiction of the investigating judge

3.2.35 Although all of the complainants were domiciled in Belgium, and five were of Belgian nationality, the investigating judge relied on universal jurisdiction provided for in Article 7 of the Law of 1993/1999. The judge would not have founded his action on the passive personal competence stipulated in Belgian law49 because the exercise of that law is subject to the presence of the accused on Belgian territory.50 As a result, the jurisdiction exercised by the investigating magistrate is universal jurisdiction and it is founded on the text of the law.

3.2.36 The DRC challenges the exercise of this jurisdiction with regard to a person who is not found on Belgian territory, but surprisingly, although it devotes nearly one-fourth of its Memorial to trying to demonstrate this point,51 it does not formally ask the Court to rule on the question.52

3.2.37 While noting the fact that the DRC does not ask the Court anything on these points, Belgium nevertheless briefly meets the arguments given by the DRC and will show that the universal jurisdiction provided by the Law of 1993 is not in violation of any rule of international law. These issues are addressed in the following chapter of this Part.


CHAPTER THREE
INTERNATIONAL LAW ALLOWS UNIVERSAL
JURISDICTION IN ABSTENTIA


3.3.1 Traditionally, universal jurisdiction is defined as the aptitude of the judge to investigate an offence wherever the offence was committed and whatever the nationality of the perpetrator or of the victim. . . .

3.3.2 It is not necessary to go into further detail on this jurisdiction which is not challenged in itself in the DRC Memorial. The reproach that the DRC particularly makes to Belgium is the exercise of universal jurisdiction against someone who is not found on Belgian territory. . . .

3.3.3 Two questions arise in respect of this matter:

(a) Does international law oblige Belgium to exercise universal jurisdiction with regard to the alleged perpetrator of a violation falling under the scope of the Law of 1993/1999 who is not found on Belgian territory?
(b) If not, does international law permit Belgium to exercise universal jurisdiction with regard to the alleged perpetrator of a violation falling under the scope of the Law of 1993/1999 who is not found on Belgian territory?

A. Does international law oblige Belgium to exercise universal jurisdiction in the circumstances in issue?

3.3.4 According to the DRC, Belgium claimed it was obliged to exercise universal jurisdiction with regard to the alleged perpetrator of a violation falling under the scope of the Law of 1993/1999 even though he is not found on Belgian territory. . . .

3.3.5 In fact, in paragraph 11 of the pleadings quoted by the DRC, Belgium purely and simply recalled that by declaring the principle of universal jurisdiction, Article 7 of the Law of 1993/1999 only responded to a general obligation stipulated in international law:

"Regarding the extension to crimes against humanity and the crime of genocide of the universal jurisdiction provided for in Article 7 of the 1993 law, this again merely represents the incorporation into domestic law of an obligation long since recognised in general international law. It suffices to recall specific resolutions of the General Assembly of the United Nations (resolution 2840 (XXVI) of 18 December 1971, paragraph 4; resolution 3074 (XXVIII) of 3 December 1973, paragraph 1) and of the Economic and Social Council (resolution 1986/65 of 29 May 1989, Principle 18); or indeed the Nuremberg principles adduced by the International Law Commission (Principles I and VI), and the Commission's Draft Code of Offences against the Peace and Security of Mankind (Article 9); or the Statute of the International Criminal Court (preambular paragraphs 4-6), and the jurisprudence of the Court, which held in its Judgment of 11 July 1996 that:

`the rights and obligations enshrined by the [1948 Genocide] Convention are rights and obligations erga omnes. The Court notes that the obligation each State thus has to prevent and to punish the crime of genocide is not territorially limited by the Convention'. (ICJ Reports 1996, p.616, paragraph 31)"

3.3.6 Nothing in this quotation shows that Belgium argued that it was obliged to prosecute someone not found on its territory. This was simply a reminder of the texts which set down the obligation of prosecution in general.4 These texts were recalled only to show that the adoption of the Law of 1993/19995 corresponded to an international obligation. It was not claimed that these texts required Belgium to prosecute someone in another country.

3.3.7 Moreover, the DRC itself recognises the existence of an obligation to prosecute war crimes . . .

3.3.8 Conversely, the DRC voices doubts about the existence of such an obligation for third States for the crime of genocide and for crimes against humanity. Although the question is not the subject of a formal conclusion of the DRC, Belgium nevertheless feels that it should treat this subject for the sake of the respect that it owes to judicial truth, its opponent and the Court.

3.3.9 In the case of genocide, the DRC, voicing a narrow interpretation of the Convention of 9 December 1948, considers that the obligation to prosecute belongs to the State [where the crime occurred] only. It recognises, however, that in its Judgment of 11 July 1996, the Court observed that the Convention of 1948 set down "rights and obligations erga omnes [meaning “toward all of mankind”]" and that:

"the obligation each State thus has to prevent and to punish the crime of genocide is not territorially limited by the Convention"

3.3.10 The DRC nevertheless deduces that the Court simply wanted to say that, wherever the persons accused of genocide may be found, they can be criminally prosecuted subject to the condition that the State where the acts of genocide were committed (or the future International Criminal Court) so requests.

3.3.11 One wonders, first, where the DRC found in the Judgment of 11 July 1996 that prosecution for genocide depended exclusively on the "initiative" of the State where the genocide took place. One then wonders how the DRC can reconcile an obligation to prosecute erga omnes, not limited territorially, with the so-called subordination of this obligation to an initiative of the State of the genocide. One wonders, finally, what the coherence would be today of a similar limitation of the rule with the obligation to prosecute that is recognised, moreover, for war crimes. For example, for the murder of a prisoner of war - a war crime according to Article 130 of the Third Geneva Convention - the DRC admits that every state should punish this, but for the destruction of an entire people, third States could not punish this as long as the State where the massacre took place had not taken the initiative to request it. This shows that the DRC's reasoning has no foundation.

3.3.12 For punishment of crimes against humanity, the DRC begins by observing that [no treaty provides for this jurisdiction.] Need it be recalled that international law is not limited to treaties, and that custom - particularly that which results from resolutions adopted by the organs of the United Nations and cited by Belgium at the proceedings on provisional measures - is also part of international law?

* * * *

3.3.17 The customary nature of the rule - that being the duty of each State to prosecute perpetrators of crimes under international law18 - finds additional confirmation in the fourth and fifth paragraphs of the Preamble of the ICC Statute which stipulate:

"Affirming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation,

Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes."19

3.3.18 Punishment which "must be ensured ... at the national level"; a determination to "put an end to impunity". These terms testify to the opinio juris of the Rome diplomatic conference with regard to the existence of an obligation to prosecute that is the duty of every State.

3.3.19 The DRC advances a second argument however. The paragraph quoted from the Preamble of the ICC Statute, stipulating “that is the duty of every State to exercise its criminal juridiction over those responsible for international crimes” does not, in its opinion, entail a general obligation for states to prosecute because the Statute "uses the concept of the `State which has jurisdiction over it (the case)' (Article 17)". This argument is as moot as the previous one. The preamble "recalls" the general obligations of international law binding "each State" whereas Article 17 quoted by the DRC lists the particular procedures of the principle of complementarity and can, of course, refer only to the States Party to the Statute. It is entirely artificial to try to make a rapprochement between the sixth consideration in the Preamble and Article 17 to then conclude that one must be interpreted in light of the other.

3.3.20 The DRC again affirms that the Security Council resolutions and the declarations of its President requesting prosecution for those responsible for crimes committed in the DRC are addressed only [to the States involved in the conflict.] In reality, if among these texts, certain specifically refer to the States in the region,21 others refer, in a very general way, to the prosecution of perpetrators of grave breaches of international humanitarian law and are in no way limited only to the States in the region.22 This type of request is moreover fully in compliance with the practice of the Security Council. Thus, with regard to the events in Rwanda in 1994, the Security Council

"Urge[d] States to arrest and detain, in accordance with their national law and with the relevant standards of international law, pending prosecution by the International Tribunal for Rwanda or by the appropriate national authorities, persons found within their territory against whom there is sufficient evidence that they were responsible for acts within the jurisdiction of the International Tribunal for Rwanda."23

3.3.21 Contrary to the DRC claims, the Security Council does not therefore limit the obligation to prosecute perpetrators of war crimes, crimes against humanity or crimes of genocide only to the States of the region where these events took place. Again recently, the Security Council observed, in a very general way:
"... that it is up to the Member States first of all to prevent genocide, crimes against humanity and war crimes and to put an end to the impunity enjoyed by their perpetrators".24

3.3.22 In conclusion, and without referring to other points that are purely academic,25 it can be observed that the DRC has in no way countered, nor even weakened, the argument presented by Belgium in the provisional measures, according to which all States must contribute to the punishment of grave breaches of international humanitarian law, be they war crimes, crimes against humanity and, of course, the crime of genocide.

3.3.23 This obligation of universal punishment is a simple fact that Belgium has done nothing less than to observe. . . .

3.3.24 Given that such a standard does exist, as has just been shown27 - and that the DRC itself recognises this in the case of war crimes28 - Belgium has already noted what the DRC affirms: the existence of a rule imposing the exercise of universal jurisdiction has precedence over the rule of immunity.

3.3.25 There remains the question of the prosecution of a person accused of grave breaches of international humanitarian law who is not found on the territory of the State. Contrary to the DRC suggestion over more than eight pages of its Memorial,29 Belgium repeats that it has never claimed that international law obliges it to prosecute in a case of this kind, and it would be curious to see the DRC quote a single extract of the pleadings of 21/23 November 2000 which says anything to the contrary. It is therefore unnecessary to discuss this point given that Belgium recognises with the DRC that international law does not include a provision explicitly obliging the States to prosecute a person who is not found on their territory.

B. Does international law permit Belgium to exercise universal jurisdiction in the circumstances in issue?


* * * *

I. The legal foundation of the exercise of universal jurisdiction in absentia

3.3.28 As has already been addressed, pursuant to Belgium law, Belgium has the right to investigate grave breaches of international humanitarian law even when the presumptive perpetrator is not found on Belgian territory.30 This prerogative, which does not violate any rule of law of international law (a), appears as one of the means to fight impunity accepted in both the international (b) and internal practice of States (c). These issues are addressed in turn below.

(a) An investigation and/or prosecution by default does not violate any rule of international law

3.3.29 No rule of international law prohibits States from opening an investigation against someone who is not on their territory. As was stated by the PCIJ in the Lotus case:

"It does not, however, follow that international law prohibits a State from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad, and in which it cannot rely on some permissive rule of international law. Such a view would only be tenable if international law contained a general prohibition to States to extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, and if, as an exception to this general prohibition, it allowed States to do so in certain specific cases. But this is certainly not the case under international law as it stands at present. Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside the territory, it leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable."31

3.3.30 This extract perfectly describes the Belgian position in respect of the events in issue in this case. They took place abroad. The alleged perpetrator is outside the country. And, no specific rule of international law prohibits Belgium from extending its jurisdiction to these events. The right recognised by the Permanent Court, moreover, is in no way limited to the field of application ratione loci of the law itself. The Court referred, not only to the "law" of the forum State but also to its "jurisdiction". But the word "jurisdiction" covers any exercise of justice on the territory of the forum state, whether this is the investigation of an act or prosecution by default.

3.3.31 In the light of the Lotus case, Belgium was therefore permitted to investigate the events charged against Mr Yerodia Ndombasi and to issue the arrest warrant against him.

3.3.32 Belgium does not claim that States are permitted to adopt just any legislation. All legislation must comply with the rules of international law which bind the State that adopts it. Moreover, in the case of a law having an extraterritorial character, it must be reasonable32 and not infringe on the principle of non-intervention.33

3.3.33 The Belgian Law of 1993/1999 in issue in this case is not in violation of the principle of non-intervention. On the contrary, it corresponds to the international trend to fight impunity as witnessed in the texts quoted above.34

3.3.34 Already in 1950, the representative of Belgium to the 6th Commission of the UN General Assembly on the deliberations on the "Principles of Nuremberg", affirmed, without being contradicted, that the Nuremberg Judgment had established the principle according to which a war criminal could be condemned by default:
"The Nürnberg trial [after World War II] has established the principle that a war criminal can be tried in absentia".35


* * * *


(b) An investigation and/or prosecution by default against the alleged perpetrator of serious violations of international humanitarian law is accepted in international practice as a means of fighting impunity

3.3.36 Contrary to certain modern conventions on international criminal law, international law regulates judicial procedures for the repression of grave breaches of international humanitarian law only very briefly. The Convention on the crime of genocide, 1948, the Geneva Conventions, 1949, and the resolutions adopted in the United Nations leave States relatively free to act as they see fit against the perpetrators of crimes defined by these texts. This freedom of action of the States is consistent with the context of the dictum in the Lotus case referred to above.37

3.3.37 If modern conventions on international criminal law are more specific as to repressive procedures, they do not prevent prosecution by default. Since the adoption of the Hague Convention for suppression of the unlawful seizure of aircraft of 16 December 1970, most conventions adopted subsequently, if not all, provide in quite a similar way:

• first, for a principle of universal jurisdiction generally founded on the alternative aut dedere aut judicare. States party to the convention need only prosecute the alleged perpetrator of the violation if it does not extradite him to another State party to the convention who so requests;38
• subsequently, a protective clause which provides that the convention does not rule out any criminal jurisdiction exercised in compliance with national laws.39 In other words, the extraterritorial jurisdiction that Belgium retains is fully in compliance with the practice of most conventions on international criminal law adopted since 1970.

* * * *


(c) An investigation and/or prosecution by default are largely accepted in the internal practice of the States

3.3.42 The internal practice of States confirms the possibility of opening a prosecution or conducting a trial by default. We will not go into the possibilities of trying (and condemning) by default because the DRC's petition does not concern the trial itself, but will only address the opening of an investigation or initiation of a prosecution by default. It can nevertheless be observed that the principle of a trial by default is recognised by a good number of States in the Roman civil law system (including Belgium and France).48 If a trial can take place in the absence of the accused, a fortiori, prosecution can be initiated in his absence.

3.3.43 As concerns the opening of a prosecution by default and/or the opening of an investigation in the absence of the accused, this is a practice exercised by all judicial systems in the world.49 If one could never open a preliminary inquiry, an investigation or initiate a public prosecution against a fugitive or accused unless he is found on the territory of the prosecuting State, it would suffice for the accused to leave the territory where he is traced and he would never have to worry since the public action could not be initiated in his absence. This is clearly absurd. In addition, punishment would be singularly jeopardised if the judicial system had to wait for the presence of the accused on the territory of jurisdiction to begin to work on his dossier.

3.3.44 One may reply that a distinction must be made between a case where an offence is committed on the territory of the prosecuting State and an offence is committed in another country. Only the latter would require the presence of the accused on the territory of the prosecuting State to open an investigation or to initiate a prosecution. Conversely, for the former, justice would be founded in taking action even in the absence of the accused.

3.3.45 Practice generally concurs with this. This is the case for Belgium in respect of many offences. In the terms of Article 12, paragraph one, of the Code of Criminal Procedure, offences committed outside the country cannot give rise to investigation or prosecution unless the alleged perpetrator is found in Belgium.50

3.3.46 Well-established exceptions do exist, however. For example, in the case of crimes and offences committed abroad by a Belgian or a foreigner that are directed against the security of the State or against "public trust" (such as the counterfeiting of money or other papers, seals or stamps of the State), prosecution can take place even if the accused is not found on Belgian territory.51 There are other, more marginal, exceptions.52 All these exceptions are traditional. They are found in the legislation of a large number of States.

3.3.47 By way of example, reference can be made to the Italian criminal code,53 the German criminal code,54 which imposes no condition of territoriality for competence,55 the French criminal code,56 the Spanish law on the organisation of the judiciary,57 and the Dutch criminal code.58

3.3.48 These exceptions or their application have never given rise to any difficulty in international relations. This proves that, as such, nothing prohibits the State from prosecuting foreigners for offences committed outside the country when these foreigners are not on the territory of the prosecuting State. This is a simple question of national choice which falls within the sovereignty of the State. A fortiori, this must be the case when the offences in question are not only violations of national law but of international law as well.

3.3.49 The ratio legis of the rule, according to which the accused must, in certain cases, be present on the territory of the State for that state to be able to prosecute him for acts committed outside the country, confirms that the source of this limitation, that the State imposes on itself, must not be sought in a hypothetical international opinio juris. The rule in fact corresponds only to considerations of practical convenience or opportunity and not to any "feeling of complying to that which is equivalent to an (international) legal obligation".59 It is considered, indeed, that a criminal offence committed outside the country against a private citizen does not disturb the social order of the State of jurisdiction in the same way as if it is committed on its territory. This offence therefore does not a priori justify the opening of an investigation and/or prosecution. This is not the case, however, if the alleged perpetrator of the offence is found on the territory of the State of jurisdiction because his presence and his impunity would then be, "une cause de danger, de désordre, et de scandale".60 Conversely, when the offence is directed against the State itself, or against certain signs of its authority (currency, seals, stamps, etc.), the seriousness of the act requires immediate repressive action independent of the presence of the perpetrator on the territory of the jeopardised State.

* * * *

3.3.52 That which holds for violations of the fundamental interests of the State must hold a fortiori for violations of the fundamental interests of the international community, and more particularly, for those pertaining to violations of the most elementary human rights.

3.3.53 Thus, war crimes, crimes against humanity and the crime of genocide trouble the entire international community and are not exclusively associated with one territory. . . . Where the crimes were committed matters little. By their gravity and the violation they represent for the international order, these crimes are considered to have been committed on the territory of every State. This conclusion is moreover coherent with the nature of the rules governing their punishment.63 The social disorder is no longer only national. It is universal. In such cases, it is vain to try to find a territorial limit in international law for the punishment of crimes which are among those that offend "the conscience of the world".64

3.3.54 State practice confirms this. [giving examples from Luxembourg,Italian, New Zealand laws.]

* * * *

3.3.57 In a substantial recently published study of comparative law on universal jurisdiction, Amnesty International reviewed the legislation of some 125 States which admit this competence for matters of war crimes and crimes against humanity. In a number of cases, the study observes that the exercise of universal jurisdiction requires the presence of the accused on the territory of the prosecuting State. In other cases, it does not specify whether this presence is necessary or not. In a third category of cases, it expressly comments that presence within the jurisdiction is not required to initiate prosecution. [Examples from Bolivia, Burundi, El Salvador, Peru and Switzerland].

3.3.58 To come up with a comprehensive picture, it would of course be necessary to examine the laws on criminal procedure of every State. Nevertheless, the preceding is an interesting sample of legislation that does not correspond to the simplistic image that the DRC tries to give to international legal reality.

3.3.59 This practice notwithstanding, the DRC nevertheless challenges Belgium's right to open an inquiry or to initiate prosecution by default in the name of the customary international law that in the DRC's opinion allegedly emerges from certain national legislation. For this purpose, it refers to two laws - those of Canada and of France - that limit the exercise of the criminal jurisdiction of these States with regard to certain serious violations of international humanitarian law to the case where the perpetrator of these violations is found on their territory.73

3.3.60 It may be observed that, in adopting this approach, the DRC shows no customary international law. It simply notes that two States have chosen to prosecute the perpetrator of these acts only when that person is found in their territory. The DRC does not cite a single extract in the negotiating history of these two laws showing that these States do not want to open an investigation or initiate prosecution in absentia in the name of any prohibition in international law.

* * * *

3.3.65 In addition to the Pinochet case, several important precedents drawn from national practice confirm the right of the forum State to exercise universal jurisdiction for acts committed outside the country by a foreigner who was found outside the country at the time prosecution was initiated.

3.3.66 When Israel petitioned the United States to extradite John Demjanjuk for war crimes that he was alleged to have committed in Poland during the Second World War, it did no more than act on a judicial investigation carried out in abstentia against a foreigner for acts committed in another country against foreigners. This action did not raise particular judicial difficulty for either Israel or the United States, the latter of which agreed to extradite the person in question. In its Decision of 31 October 1985 rejecting the appeal lodged by Demjanjuk against the Judgment of the District Court concluding that he could be extradited to Israel, the 6th Circuit Court of Appeal notably affirmed:

"Israel is seeking to enforce its criminal law for the punishment of Nazis and Nazi collaborators for crimes universally recognized and condemned by the community of nations. The fact that Demjanjuk is charged with committing these acts in Poland does not deprive Israel of authority to bring him to trial.

Further, the fact that the State of Israel was not in existence when Demjanjuk allegedly committed the offenses is no bar to Israel's exercising jurisdiction under the universality principle. When proceeding on that jurisdictional premise, neither the nationality of the accused or the victim(s), nor the location of the crime is significant. The underlying assumption is that the crimes are offenses against the law of nations or against humanity and that the prosecuting nation is acting for all nations. This being so, Israel or any other nation, regardless of its status in 1942 or 1943, may undertake to vindicate the interest of all nations by seeking to punish the perpetrators of such crimes."78

3.3.67 In the Bouterse case (referred to by Belgium during the provisional measures phase of the case),79 two Dutch citizens launched an action in the Netherlands against a decision of the Dutch public prosecutor not to prosecute a senior officer of Surinam, Lieutenant Colonel Bouterse. Lt-Col. Bouterse was alleged to have commanded the soldiers who, in December 1982 in Panamaribo, arrested, tortured and executed 15 persons (legal specialists, teachers, businessmen, trade union representatives, journalists and officers) considered to be a threat to the military authority of Bouterse. Fourteen of the victims were citizens of Surinam. The 15th was a Dutch national.80 The Dutch complainants in the case were respectively the brother of one of the victims and the nephew of two other victims.81

3.3.68 In a decision dated 3 March 2000, the Court of Appeal of Amsterdam justified the admissibility of the action, in spite of its extra-territorial character, on a number of grounds as follows:

"The Netherlands has close historic ties with Surinam. A large number of people of Surinamese origin [are] living in the Netherlands. The events in December 1982 shocked not only this group but also society at large in the Netherlands. There are indications that at least one of the victims and possibly more had Dutch nationality. Finally, the complainants, who are relatives of two of the victims, live in the Netherlands. As a prosecution elsewhere in the world cannot be expected in the foreseeable future, as explained above, they have now applied to the most appropriate authorities. Prosecution in the Netherlands would be appropriate on all these grounds."82

3.3.69 It is striking to observe to what extent most of the criteria referred to by the Court of Appeal of Amsterdam to justify the forum conveniens are found in the decision of the Belgian investigating judge to investigate complaints directed against the subject of the arrest warrant in the present case: the Belgian nationality of some of the complainants, who also consider themselves to be victims; the residence of these persons in Belgium; the presence of a large Congolese community in Belgium; the shock caused in Belgium by the acts alleged to have been committed by Mr Yerodia Ndombasi; the foreseeable absence of a more appropriate jurisdiction to try the violation.

* * * *

3.3.71 The Court appointed Expert, Professor Dugard, observed as concerns the presence of the accused on the territory of the prosecuting State as a criterion for initiating prosecution:

"It is not clear whether this requirement [the presence of the accused in the forum State] prevents a State in whose territory the offender is not present from requesting extradition of the offender from a state in whose territory the offender is present, but which elects not to try him itself, when the sole basis for the exercise of jurisdiction is the principle of universality. Some have argued that it is objectionable to allow extradition requests of this kind as this would permit a particular state to act as `policeman' of the world by requesting extradition of torturers from any country. This objection was not raised in the Pinochet proceedings and a number of English courts were prepared to entertain a request from Spain to exercise jurisdiction on grounds of universality.

(fn. In Spain v Pinochet (Bow street Magistrate's Court, 8 October 1999) the extraditing magistrate was satisfied that the principle of universality gave Spain jurisdiction in this case. Article 7 of the European Convention on Extradition, under which Pinochet's extradition was ordered, permits extradition where both the requesting and requested State recognise the principle of universal jurisdiction in the case in question).

A State that requests extradition of a torturer would probably be wise to stress the presence of some connecting factor between it and the crime to ensure that this objection would not be raised against it."84

* * * *

3.3.72 In the case of Spain, in addition to the Pinochet case, reference may be made to the investigation opened in the 1990s by Judge Garzon concerning 98 dossiers on Argentine citizens for their participation in crimes alleged to have been committed during the Argentine dictatorship of 1976 - 1983. The Cavallo case took place in this context. In this case, Ricardo Miguel Cavallo was accused by Judge Garzon of acts of genocide, torture and terrorism. Cavallo was arrested on 24 August 2000 in Cancun, Mexico. On 12 September 2000, Spain, after a favourable decision of the Audiencia Nacional, 87 petitioned Mexico for his extradition. On 12 January 2001, a Mexican judge decided to authorise the extradition to Spain.88 On 2 February 2001, the Mexican government agreed to extradite Cavallo to Spain. This decision is now on appeal before the Mexican supreme court. Whatever the final decision, the case illustrates recognition, by Spain and Mexico, of the right to prosecute in absentia.

* * * *

3.3.74 In conclusion, there is no shortage of sources to confirm the right of the State to open an investigation in abstentia. The DRC is unable to quote a single source affirming that international law only authorises the initiation of an investigation or prosecution by default when the crime is committed on the territory of the prosecuting State and that it prohibits such action when the crime is committed elsewhere. In fact, international law, which recognises the principle of universal jurisdiction in the case of grave breaches of international humanitarian law, in no way prohibits the exercise of this competence in absentia. This follows from differences in systems of criminal law. Some apply strict territoriality whereas others exercise extraterritorial jurisdiction to varying degrees. This explains the tolerance of modern conventions on international criminal law with regard to jurisdictions not provided for in these instruments.90 It is not possible, therefore, to deduce from the international law rules that would limit the extra-territorial competence of States in the case that the alleged perpetrator of an extra-territorial breach would be on the territory of the forum State. Such rules do not therefore exist at this time.


* * * *

CHAPTER FOUR
THE LAW RELATING TO THE IMMUNITY OF MINISTERS FOR FOREIGN AFFAIRS

3.4.1 The central contention in the DRC's case is that Belgium is in breach of international law because it has violated the customary international law immunities that attach to Ministers for Foreign Affairs in office. In Belgium's contention, this argument overlooks a quite fundamental development in international law in recent times that goes to the core of the present case, as well as a number of other key elements of the applicable law. While, ordinarily and as a matter of general proposition, Ministers for Foreign Affairs are immune from suit before the courts of foreign states, and the persons of Ministers for Foreign Affairs are inviolable, this is subject to an important caveat. As Sir Arthur Watts observed in his recent study on The Legal Position in International Law of Heads of States, Heads of Governments and Foreign Ministers:

"As with Heads of State, so too it is now accepted that heads of governments and foreign ministers bear a personal responsibility in international law for those international acts which are so serious as to constitute international crimes. This acceptance has sprung primarily from the judgment of the International Military Tribunal at Nuremberg, and the principle of the international responsibility of individuals has now been incorporated into numerous international instruments."1
3.4.2 As well as the issue of personal responsibility for international crimes, also germane to the present proceedings is the increasingly widely held appreciation that the special privileges and immunities that avail those representing states are accorded "to enable them to carry out their functions".2 Implicit in this appreciation is the proposition that the scope and application of these privileges and immunities are limited to circumstances involving the performance by the person concerned of official functions. In other words, privileges and immunities that attach to Ministers for Foreign Affairs to enable them to carry out their official functions do not avail such persons in their private capacity or when they are acting otherwise than in the performance of their official functions.

3.4.3 Also relevant to the present proceedings is the uncontroversial proposition that

"[u]pon loss of office a former head of government or foreign minister resumes again the position of a private person, and is as such entitled to no special protection under international law. In particular, their immunity from jurisdiction ceases, even in respect of their private acts committed while they held office (or earlier) and in respect of which they might while in office have benefited from immunity."3

3.4.4 By reference to the preceding, a number of propositions relating to the immunity of Ministers for Foreign Affairs germane to the present case may be simply stated:


(a) Ministers for Foreign Affairs in office are in general immune from suit before the courts of a foreign State;
(b) by way of exception to the general rule, Ministers for Foreign Affairs in office bear personal responsibility for acts they are alleged to have committed which are so serious as to constitute international crimes. Such acts include inter alia grave breaches of the Geneva Conventions of 1949 and the Additional Protocols thereto of 1977, and crimes against humanity;
(c) by way of further exception to the general rule, the immunity that avails Ministers for Foreign Affairs in office applies in respect of their official conduct for purposes of enabling them to carry out their official functions. It does not avail such persons in their private capacity or when they are acting otherwise than in the performance of their official functions;
(d) upon loss of office, a former Minister for Foreign Affairs is no longer entitled to immunity as regards any conduct other than official acts performed in the exercise of his or her functions while Minister for Foreign Affairs.

3.4.5 The law and practice relating to the immunity from suit of Ministers for Foreign Affairs in office in the case of allegations of grave breaches of international humanitarian law and crimes against humanity is addressed in detail in the following chapter in this Part. The object of the present chapter is simply, and briefly, to set that discussion in context by sketching the broad contours of the law in this area.

3.4.6 The law relevant to immunities of Ministers for Foreign Affairs is largely customary in origin, although, depending on the circumstances and the parties involved, it may also have a conventional basis. The principal conventional source in this area is the UN Convention on Special Missions of 1969 ("Special Missions Convention") which entered into force in 1985.4 Neither Belgium nor the DRC are, however, party to this Convention. It may, nevertheless, be a useful point of reference on certain matters of principle which are commonly accepted as having a basis in customary international law. Other instruments setting out principles on the immunity of other State representatives may also be relevant. A particularly useful general commentary on the law in this area is the recent study by Sir Arthur Watts referred to above on The Legal Position in International Law of Heads of States, Heads of Governments and Foreign Ministers.

3.4.7 In general, discussion of the immunities that attach to the office of Ministers for Foreign Affairs proceeds by reference to the wider review of immunities that attach to the offices of Head of State, Head of Government and Minister for Foreign Affairs. As the review of the law by Sir Arthur Watts makes clear, holders of these offices of State are commonly considered to be in a special position as regards privileges and immunities as it is through these offices that a State normally conducts its foreign relations. While this does not preclude privileges and immunities attaching to other offices of State, the scope of such privileges and immunities are more likely to require determination on a case-by-case basis. In contrast, as is commonly known, there is a presumption that Heads of State, Heads of Government and Ministers for Foreign Affairs possess, simply by virtue of their office, full powers to act on behalf of the State they represent.5

3.4.8 While the position of Heads of State, Heads of Government and Ministers for Foreign Affairs are frequently addressed together as regards the question of privileges and immunities - a practice that is followed in chapter 5 below - an important distinction must be drawn between the position of Heads of State, on the one hand, and of Heads of Government and Ministers for Foreign Affairs, on the other. Whereas Heads of State are commonly perceived as occupying a privileged position as a result of their personal identification with the State, ie, simply by virtue of their office, Heads of Government and Ministers for Foreign Affairs occupy a special position in consequence of the functions they perform. This distinction, an amalgam of the old notion of the Sovereign as the State - "L'Etat, c'est moi", as Louis XIV is reputed to have said - and the more recent trend away from absolute immunities in favour of immunities linked to functional considerations, remains important today. Whereas the privileges and immunities of Heads of State are predicated on both form (the status of the office) and substance (the functions performed), the privileges and immunities that avail Heads of Government and Ministers for Foreign Affairs are, to a significant degree, predicated on substance only. While, therefore, the scope of the immunities of Ministers for Foreign Affairs is commonly discussed by reference to the law applicable to Heads of State, the application of the law in the case of Ministers for Foreign Affairs is circumscribed by what is necessary to enable the person concerned to perform his or her functions.6

3.4.9 This issue is addressed by Sir Arthur Watts in the following terms:

"As representatives of their States, of high seniority and rank, heads of government and foreign ministers are, in their official capacities, in principle entitled in international law to special respect and protection from other States. However, several considerations need to be borne in mind when translating the principle into practice.

The first is that heads of governments and foreign ministers, although senior and important figures, do not symbolise or personify their States in the way that Heads of State do. Accordingly, they do not enjoy in international law any entitlement to special treatment by virtue of qualities of sovereignty or majesty attaching to them personally.

Second, in contemporary international law specially favourable treatment is in general (and notwithstanding the exception which appears to be accepted in view of the very special position of Heads of State) accorded to State representatives where that is necessary to enable them to carry out their functions. ...

Functional considerations, which are now accepted as the true basis for privileges and immunities accorded in respect of resident diplomatic missions, are in principle as applicable to temporary visits by heads of governments and foreign ministers for the conduct of official business as they are to resident diplomatic missions."7


* * * *

3.4.15 The functional nature of the immunities that attach to Ministers for Foreign Affairs in office is important for purposes of the present proceedings independently of the issue of limitations on immunity in circumstances of allegations of grave breaches of international humanitarian law or crimes against humanity. The reason for this is that the DRC is proceeding on the basis that all that needs to be established for purposes of its case is that Ministers for Foreign Affairs in office are immune from suit before the courts of foreign States. If so, the implicit presumption advanced is that they will be immune from suit for all purposes. The position, however, is rather more complex. Even were the Court to uphold, contrary to Belgium's submissions, the immunity of Mr Yerodia Ndombasi qua Minister for Foreign Affairs of the DRC in the circumstances in issue, it would not follow that he would have been immune, even when in office, as regards conduct of a private nature or otherwise than in the performance of his official functions. The "private shopping trip" example given by Belgium during the provisional measures phase of the proceedings would still operate.

3.4.16 Needless-to-say, as is clear from the principles set out at the start of this chapter, now that Mr Yerodia Ndombasi is no longer Minister for Foreign Affairs of the DRC, he does not benefit from the privileges and immunities that attach to that office.

3.4.17 The personal responsibility of Ministers for Foreign Affairs for serious violations of international humanitarian law that they are alleged to have committed, and the consequences that flow therefrom for the question of immunity, are addressed in detail in the following chapter of this Part. By way of foundation for that discussion, the following observation by Sir Arthur Watts in respect of the position of Heads of State may be noted. As the generality of the observation suggests, it is relevant also to the position of Ministers for Foreign Affairs.

"A Head of State's position in international law is not solely a matter of his powers and the privileges and immunities to which he is entitled. A Head of State can also engage the responsibility of both his State and himself under international law.
...
The idea that individuals who commit international crimes are internationally accountable for them has now become an accepted part of international law. Problems in this area - such as the non-existence of any standing international tribunal to have jurisdiction over such crimes, and the lack of agreement as to what acts are internationally criminal for this purpose - have not affected the general acceptance of the principle of individual responsibility for international criminal conduct.
...
Provisions like those adopted in the Nuremberg Charter have been repeated in subsequent general international instruments, and, most recently, are included in Article 11, as provisionally adopted in 1988, of the International Law Commission's draft Code of Crimes against the Peace and Security of Mankind....It can no longer be doubted that as a matter of general customary international law a Head of State will personally be liable to be called to account if there is sufficient evidence that he authorised or perpetrated such serious international crimes."12

3.4.18 As regards the acts of Heads of Government and Ministers for Foreign Affairs, Sir Arthur went on to observe as follows:

"The official acts of a head of government or of a foreign minister are attributable to the State so as, if the circumstances warrant, to make the State responsible for them.

The position is different as regards acts which they may perform in their private capacities (which may include acts performed in a political capacity - eg, as leader of a political party - so long as that capacity can be differentiated from their official capacities as senior members of the government). For their private acts the State bears no greater legal responsibility than it bears in respect of acts of private persons which may happen to cause internationally injurious consequences.
As with Heads of State, so too it is now accepted that heads of governments and foreign ministers bear a personal responsibility in international law for those international acts which are so serious as to constitute international crimes. This acceptance has sprung primarily from the judgment of the International Military Tribunal at Nuremberg, and the principle of the international responsibility of individuals has now been incorporated into numerous international instruments.
The various instruments include in some cases express provision to the effect that that individual responsibility exists even though the person concerned holds a senior office of State. The language used varies slightly, but in the context in which they were adopted there is no room for doubting that such provisions clearly embrace holders of such offices as heads of governments and foreign ministers. The Nuremberg Tribunal, it may be recalled, included amongst those tried and convicted the former foreign minister of Germany (von Ribbentrop)."13


* * * *

CHAPTER FIVE
INTERNATIONAL LAW EXCLUDES IMMUNITY IN THE CASE OF PROSECUTION FOR SERIOUS CRIMES OF INTERNATIONAL HUMANITARIAN LAW

3.5.1 As has just been seen, Belgium does not challenge the fact that the members of a foreign government in office benefit from immunity. But whereas the DRC affirms that this immunity is absolute,1 Belgium contends that there are exceptions in the event of crimes under international humanitarian law.

3.5.2 In the case at hand, Belgium considers that even on this particular point, the DRC's petition is pointless, not only because it has become purely academic since Mr Yerodia Ndombasi is no longer a minister, but also because the argumentation of the DRC itself leads to this conclusion. Belgium will begin by demonstrating that point (section A) which, as we know, is already secondary compared to the general inadmissibility of the DRC petition. It will therefore deal with the substance of the question of immunities of high foreign representatives (section B) in a still more subsidiary capacity.

A. The DRC's petition concerning the immunity of Mr Yerodia Ndombasi is pointless

3.5.3 In the provisional measures phase, Belgium showed that in the event of the execution of the arrest warrant by a third State, the infringement of criminal immunity - supposing that it exists in this case, quod non - would have been the act of that State and not of Belgium.


* * * *

3.5.8 On this point, the DRC thus agrees with Belgium. If a State had executed the arrest warrant, it might infringe Mr Yerodia Ndombasi's criminal immunity - quod non as we will see hereinafter - but in any case, the party directly responsible for that infringement would have been that State and not Belgium. Since Mr Yerodia Ndombasi was never arrested anywhere and since, according to the DRC, no State is prepared to carry out the warrant, any attempt to understand the scope of this petition is fruitless.

B. As a subsidiary argument, the DRC's petition concerning the immunity of Mr Yerodia Ndombasi is groundless

3.5.9 If the Court were to consider that the DRC's petition is admissible as concerns its argumentation, Belgium will demonstrate in the following pages the legal justification of the refusal of immunity to persons suspected of having committed grave breaches of international humanitarian law and will answer the DRC's arguments that deal directly with this (I). It will thereafter turn to address the other arguments presented by the DRC in favour of absolute immunity of the members of foreign governments in power (II).

I. Foundation for the refusal of immunity to persons suspected of serious crimes of international humanitarian law

3.5.10 Article 5(3) of the Law of 1993/1999 provides that [immunity is not allowed as to this law].

* * * *

3.5.13 When the Belgian government introduced this amendment, it did so with the conviction of acting in perfect compliance with international law. In fact, international sources are not lacking to show that the head of State or a member of his government does not benefit from immunity when accused of having committed crimes under international humanitarian law.

3.5.14 There are many such sources - conventional (a), national (b), juridical (c), and the writings of publicists (d). Each will be examined in turn. Belgium begs the Court to excuse the long list of texts which will follow, but the assertion that immunity of members of foreign governments is absolute and without exception obliges Belgium to explain why it holds another standpoint.

(a) Conventional sources excluding the immunity of alleged perpetrators of a serious crimes of international humanitarian law

* * * *.

(i) The Treaty of Versailles of 1919

3.5.16 Implicitly, the Treaty of Versailles of 28 June 1919, by Article 227, excluded immunity of the Emperor of Germany by prosecuting him before a special international tribunal "for supreme offence against the international morality and sanctity of Treaties".

* * * *

(ii) The Statutes of international criminal jurisdictions

3.5.21 The Statutes of international criminal jurisdictions all exclude immunity of the members of governments accused of crimes against peace, war crimes, crimes against humanity or the crime of genocide. For example, Article 7 of the Charter of the International Military Tribunal of Nuremberg, annexed to the London Agreement of 8 August 1945, provides:

"The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment."15

* * * *

3.5.24 Other, more recent instruments, which address the issue in similar terms include:

• Article 7(2) of the Statute of the International Tribunal for the former Yugoslavia:
"The official position of any accused person, whether as head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment."18
• Article 6(2) of the Statute of the International Tribunal for Rwanda:
"The official position of any accused person, whether as head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment."19
• Article 27 of the ICC Statute of 17 July 1998:20

"1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.

2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person."21

3.5.25 The DRC considers that these instruments are not significant in the present context as:

• international criminal jurisdictions enjoy jurisdiction which are not transposable to national courts -
• the ICC Statute is said to concern only States party to it and the text of certain of its provisions confirms that it does not authorise a State to infringe on the principle of immunity of Heads of State and members of foreign governments.23

These arguments will be considered in turn.

3.5.26 Claiming that the national courts of a State cannot invoke the international rules provided for an international criminal court is a postulate. These rules are a part of practice. As from the time this practice appears to be an expression of custom, nothing prevents national courts from invoking them, as the DRC remarks itself from a general point of view, when it deals with the place of international custom in Belgian law.24 However, as will be seen further, the exclusion of immunity of persons accused of the most serious violations of international humanitarian law, is among the "principles of Nuremberg" drawn by the ICL and by the General Assembly of the United Nations. It consequently corresponds to the opinio juris of States.

3.5.27 In addition, if it were to be established that no immunity could be invoked before an international criminal court, it would not be necessary to say so. The fact that it was nevertheless stated therefore has a meaning which goes beyond the narrow context of the international criminal court to cover that of all criminal jurisdictions, both international and national. This is a way to affirm that for certain abominations no immunity can come into play.

3.5.28 The argument based on the fact that the defendants cited before international criminal courts did not in any case exercise official functions at the time of the trial, is not significant.

3.5.29 If the defendants had lost all official capacity at the time they appeared before the international military tribunals, again it was unnecessary to stipulate in the statutes that immunity could not constitute an argument of defence. By so saying, the States indicated that immunity which normally continues for actions associated with the office - in casu, the crimes in question had in fact been committed in the context of the duties of the defendants - was not admissible for such crimes. The fact that these were international tribunals and not national courts does not decrease the interest of these precedents because the argument of immunity was not rejected on the basis of the international nature of these courts, but simply due to the horror of the crimes in question. If the horror of the crime justifies the exclusion of immunity, it matters little whether the question arises before an international court or a national court. Before both, the same cause should produce the same effects.

3.5.30 The DRC's argument, moreover, confirms Belgium's current position. If the cessation of official duties is what justifies that the person holding them can be brought to court, the DRC then recognises that nothing opposes the prosecution of Mr Yerodia Ndombasi today.

3.5.31 With respect to the ICC Statute, it is true that it concerns persons who are nationals of the States party to the Statute or nationals who have committed crimes in the territory of those States and that the exclusion of immunity is applicable in the mutual relations of the States Party to the Statute. Even limited to the States Party to the Statute (and to States which have accepted the competence of the ICC without having ratified the Statute Article 12 § 2 and without prejudice to the hypothesis that all United Nations Member States are bound by the rule when the ICC is referred to directly by the Security Council, as per Article 13 of the Statute), the rule nevertheless proves that the seriousness of some acts excludes the application of any immunity for their perpetrator.

3.5.32 The fact that the rule is set down in the Statute of an international court does not mean that it does not concern national courts, and this is true for several reasons.

(1) if it is true that the terms of Article 27(2) seem to be limited to the ICC alone,25 conversely, Article 27(1) has a very general field of application;

(2) Article 27 must, in addition, be read taking into account the entire Statute, and particularly paragraphs 4 to 6 of the Preamble which require all States to prosecute the crimes listed in the Statute. Thus, as the DRC itself stated, the existence of a standard imposing the exercise of universal jurisdiction has precedence over the rule of immunity;26

(3) if the immunity of the members of foreign governments were not removed for the prosecution of the crimes set down in the Statute, the principle of complementarity would be unnecessary in most cases. Insofar as the jurisdiction of the ICC is limited to "the most serious crimes" (Article 1) and presenting a certain magnitude (Article 6, 7(1) and 8(1)), these crimes consequently are mostly imputable to the highest State authorities. If these authorities could argue the immunity traditionally recognised for the members of foreign governments, they would only be subject to prosecution in their State of origin and the subsidiary role of the Court would be effective only under this hypothesis. Conversely, the other States could never prosecute these crimes and the role of the Court, rather than being complementary, would become principal - which does not correspond to the intention of the authors of the Statute;

(4) the Venice Commission - an expert advisory body established by the Committee of Ministers of the Council of Europe on 10 May 199027 - meeting in its 45th plenary session in Venice on 15-16 December 2000, observed as follows:

"States may provide in their national law that the national courts shall be competent to try a leader who has committed crimes within the jurisdiction of the International Criminal Court. This is possible because of the Statute is based on the principle of complementarity, but whatever solution is adopted, perpetrators of such crimes cannot plead immunity"28

3.5.33 For these reasons, Article 27 of the ICC Statute shows that the immunity of the members of foreign governments cannot be an obstacle to criminal prosecution for crimes listed in the Statute, before whichever court the case may be brought.

3.5.34 The DRC further maintains that Article 98(1) of the Statute justifies recognition of immunity of the alleged perpetrator of the crimes listed in the Statute despite the very clear terms of Article 27.29 The argument is weak. Article 98(1), entitled "Cooperation with respect to waiver of immunity and consent to surrender", is found in Chapter IX of the Statute which concerns international cooperation and judicial assistance. It can only concern persons not accused of crimes listed in the Statute. If the person in question is charged with one of these crimes, Article 27 should apply. In addition, by specifying that the petitioned State cannot act in a way incompatible with the international obligations incumbent on it with regard to immunity, Article 98(1) clearly lets it be understood that the petitioned State does not infringe these obligations if it remits to the Court a person accused of the crimes provided for by the Statute since international law, in general, and Article 27, in particular, excludes immunity in such a case. This is the only way to reconcile the meaning of the two provisions and to maintain their effectiveness.30
(iv) Convention on the Prevention and Punishment of the crime of Genocide

* * * *

3.5.42 Article 4 of the Convention on Genocide of 9 December 1948 provides:37

"Persons committing genocide or any of the other acts enumerated in Article 3 shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals."38

* * * *

(v) Resolutions of the U.N. organs

3.5.46 Already on 11 December 1946, the U.N. General Assembly adopted Resolution 95 (I) in which it set down the principles derived from the Statute and the Judgment of the Nuremberg International Military Tribunal ("IMT"). The Assembly, by this Resolution,

"confirm[ed] the principles of international law recognised by the Statute of the Nuremberg Tribunal and by the judgment of that Court."42

3.5.47 Among these principles appears the exclusion of immunity of agents of the State, whatever their rank in the State hierarchy, for crimes against peace, war crimes or crimes against humanity, as is set down in both the Statute of the Nuremberg IMT43 and in the Tribunal's Judgment.44 As we know, these principles were subsequently codified in 1950 by the International Law Commission45 which affirmed in Principle III:

"The fact that a person who committed an act which constitutes a crime under international law acted as a head of State or responsible Government official does not relieve him from responsibility under international law."46

(b) National sources excluding the immunity of alleged perpetrators of serious crimes of international humanitarian law
3.5.56 National laws that exclude the immunity of leaders who have committed crimes against international humanitarian law are scarce, although they exist and have not been challenged. [citing examples from China, Luxembourg, Council of Europe, Poland.]

* * * *

(c) International jurisprudence addressing the immunity of alleged perpetrators of serious crimes of international humanitarian law

3.5.61 International case-law clearly affirms the principle of exclusion of the immunity of the agent of a foreign State for crimes in international humanitarian law.

* * * *

3.5.80 These decisions show again that the horror of certain acts and their international illegality is the reason for excluding the immunity of State agents who are responsible for them.

3.5.81 In the Pinochet case, it will be remembered that the House of Lords reversed the decision of the Divisional Court which on 28 October 1998, had upheld the immunity from jurisdiction claimed by the former Chilean dictator.83 In its decision of 25 November 1998, the Chamber of the Lords set aside the immunity on the grounds of the fact that Pinochet was not in function any longer, and that, if he kept this immunity only for the acts committed in the exercise of his functions, the facts that were reproached to him, could not be assimilated to the acts of the function. In its second (and definitive) Judgment on the matter, of 24 March 1999, the House of Lords decided by a majority of six to one that General Pinochet could not benefit from immunity as regards acts of torture committed after 8 December 1988 when the UN Convention Against Torture of 10 December 1984 entered into force for the United Kingdom.84

3.5.82 Among the justifications given by the Lords for rejecting General Pinochet's claim to immunity of jurisdiction were a number of US cases referred to above.85 These may be summarised as follows:

* * * *

• although a former Head of State continues to benefit from immunity ratione personae for official acts, acts of torture can in no way be assimilated to such acts given that torture is not only prohibited but is also a violation of international law:

"The alleged acts of torture by Senator Pinochet were carried out under colour of his position as head of state, but they cannot be regarded as functions of head of state under international law when international law expressly prohibits torture as a measure which a state can employ in any circumstances whatsoever and has made it an international crime".87

* * * *

3.5.85 An important point must nevertheless be made. Belgium accepts that the fact of being in office for a Head of State could entitle him to a certain immunity, but this would not be an objective immunity opposable erga omnes. It would be nothing but the expression of acceptance by the State of jurisdiction to host, for one reason or another, the Head of State in question. This would entail the renunciation by the State of jurisdiction as regards the prosecution of the Head of State for the duration of his visit. This is a different situation to that which will be considered further below.

* * * *

(d) The writings of publicists excluding the immunity of alleged perpetrators of serious crimes of international humanitarian law

3.5.102 There is nothing new in the recognition in literature of the exclusion of criminal immunity of an agent of a foreign State, even if he is the Sovereign of that
State, for serious crimes under international humanitarian law. Vattel, for example, referred to this already in the 18th century. He began by recalling the general principle according to which "no foreign power can declare itself judge of conduct" of another State. He went on to observe that "the Spanish violate all rules when they declare themselves entitled to judge the Inca Athualpa". But he added immediately:

"If this prince had violated the law of Nations in their regard they [the Spanish] would have been right in punishing him. But they accused him of having put to death certain of his own subjects, of having had several wives, etc., things for which he was not responsible to them; and, as the crowning point of their injustice, they condemned him by the laws of Spain."122

* * * *

II. The DRC's other arguments in favour of the absolute immunity of the members of foreign governments in office

3.5.152 A number of other arguments were advanced in the DRC Memorial in favour of the absolute immunity of members of foreign governments in office. As not all are relevant to the dispute at hand, Belgium will limit itself to addressing those arguments that the DRC has particularly emphasised.

* * * *

(a) The immunity of high foreign representatives is an objective rule imposed upon Belgium

3.5.154 At the provisional measures phase, Belgium stated that, pursuant to the express terms of the arrest warrant,188 the warrant took account of the immunity of the high foreign representative because it could not be executed in the event that Mr Yerodia Ndombasi was invited to come to Belgium by the Belgian Government or by an international organisation of which Belgium is a member. Under such circumstances, indeed, the most elementary fairness would require the judge to refrain from arresting someone so invited.189

* * * *

3.5.165 In conclusion, Belgium observes that


• the submission by the DRC that the criminal immunity of a high representative is absolute and is imposed on States does not take account of exceptions to this immunity stipulated for serious crimes under international humanitarian law. It is also contradicted by the practice of States which shows that States reserve the right to assess the legal situation of the person who relies on immunity;213
• the submission that immunity could not be recognised for Mr Yerodia Ndombasi by the Belgian investigating judge, despite what he declares in the arrest warrant, due to the separation of powers, is an argument that has no practical purpose for the dispute. Even if the argument of the DRC were admissible - quod non -- it would still be pointless since the power of the Belgian investigating judge in no way encroaches on that of the Government and vice versa. Therefore, there is no jeopardy to the principle of the separation of powers;214
• the submission that immunity could not be recognised for Mr Yerodia Ndombasi by the investigating judge as a result of the jus cogens nature of the obligation to prosecute crimes under international humanitarian law is also an argument with no practical purpose, since it refutes what the DRC precisely claims. Even if the argument of the DRC were admissible - quod non - it is moot in any case due to the fact that nothing prohibits the investigating judge from including the procedures for execution of the acts he adopts;215
• by affirming that no State has acted on the arrest warrant for reasons of custom, the DRC again shows that the case is without practical purpose since it would suffice for Mr Yerodia Ndombasi simply to stay out of Belgium.216 However, the fact that certain States seem to be willing to execute the arrest warrant undermines the DRC's argument on the existence of opinio juris favourable to absolute criminal immunity of a high foreign representative.217 Therefore, even accepting that the DRC's petition has a practical purpose - quod non - it is without foundation.

CHAPTER SIX
THE REMEDIES REQUESTED OF THE COURT BY THE DRC FALL OUTSIDE THE ACCEPTED JUDICIAL FUNCTION OF THE COURT

* * * *

3.6.2 As has already been observed,2 the remedies requested [by the DRC] relate solely in one way or another to the allegation that Belgium violated the immunities of the Minister for Foreign Affairs of the DRC. As has also been observed in the context of Belgium's submission on admissibility,3 given that Mr Yerodia Ndombasi is no longer either Minister for Foreign Affairs of the DRC or a member of the DRC Government occupying any other ministerial position, the third and fourth requests by the DRC in practice concern the legal effect of the arrest warrant of 11 April 2000 as regards a private citizen of the DRC.

3.6.3 The issue addressed in the present section is different and can be addressed briefly. It is whether requests to the Court to order the withdrawal and annulment of a measure of domestic law, and the restraint of both Belgium and other States as regards the execution of that measure, fall properly within the accepted judicial function of the Court. The issue is therefore one of a subsidiary nature which would only fall to be addressed in the event that the Court, contrary to Belgium's submission, were to decide that Belgium was in breach of international law as regards the issuing and transmission of the arrest warrant.

3.6.4 It is Belgium's contention that the third and fourth requests to the Court by the DRC fall outside the accepted judicial function of the Court and should not be the subject of any judgment by the Court.

3.6.5 The adjudication of disputes by international courts and tribunals rests on an accepted, though seldom articulated, division of competence between the court or tribunal in question and the States whose interests are in contention. It is the function of the court or tribunal to declare the law. It is for the State concerned to give effect to the law as so declared.4 An integral part of the adjudicatory process is the obligation on States participating in the process to give effect to the decision that emerges therefrom. In the case of the Court, that obligation is laid down in Article 94(1) of the UN Charter and is reflected in Article 59 of the Court's Statute. Article 94(2) of the Charter goes on to establish a mechanism for the enforcement of decisions of the Court by the Security Council.5

3.6.6 A number of reasons are apparent for this division of competence. First, it is not for a court or tribunal to assume that its decisions will not be complied with. Indeed, were such an assumption to be made, it would call into question the very raison d'être of the decision in the first place. Second, there may be a number of ways in which a State could comply with a decision of a court or tribunal directed to it. The choice between those various ways of compliance is one for the State to make. Third, the division of competence reflects a balance between the role of courts and tribunals to declare the law, the responsibility of States to comply with decisions directed to them, and the sovereignty of States to organise their affairs as they choose subject only to the obligation to comply with the law.

3.6.7 Although the matter has not arisen frequently for consideration by the Court, it has been the subject of comment. In the Haya de la Torre case, for example, the principal request to the Court was to determine the manner in which Peru was required to give effect to the Court's Judgment of 20 November 1950. Declining this request, the Court stated as follows:

"The Court observes that the Judgment confined itself, in this connection, to defining the legal relations between the Parties. It did not give any directions to the Parties, and entails for them only the obligation of compliance therewith. The interrogative form in which they have formulated their Submissions shows that they desire that the Court should make a choice amongst the various courses by which the asylum may be terminated. But these choices are conditioned by facts and by possibilities which, to a very large extent, the Parties alone are in a position to appreciate. A choice amongst them could not be based on legal considerations, but only on considerations of practicability or of political expediency; it is not part of the Court's judicial function to make such a choice.
...
Having thus defined in accordance with the Havana Convention the legal relations between the Parties with regard to the matters referred to it, the Court has completed its task. It is unable to give any practical advice as to the various courses which might be followed with a view to terminating the asylum, since, by doing so, it would depart from its judicial function."6

3.6.8 As is clear from this extract, the Court was of the view that the question of how to comply with a judgment of the Court was a matter for the party concerned and fell outside of the accepted judicial function of the Court. The fact that a range of possible options for compliance could be contemplated reinforced this appreciation.

3.6.9 The Court addressed the matter in similar terms in the Northern Cameroons case, although in circumstances which ultimately led to it declining to give judgment on the ground that to do so would be devoid of purpose. On the question of compliance, the Court stated:

"As the Court said in the Haya de la Torre case, it cannot concern itself with the choice among various practical steps which a State may take to comply with a judgment. It may also be agreed, as Counsel for Applicant suggested, that after a judgment is rendered, the use which the successful party makes of the judgment is a matter which lies on the political and not the judicial plane."7

3.6.10 In Belgium's contention, the import of these decisions is clear. If, contrary to its submissions, the Court were to decide that Belgium was in breach of international law by the issuing and transmission of the arrest warrant, the manner in which Belgium would comply with the Judgment of the Court would be a matter for Belgium to decide. A number of avenues of compliance may be open. Compliance may involve issues of domestic constitutional and penal law of wider consequence. As the Court has recognised in the jurisprudence just referred to, it is not within the function of the Court to advise parties on the question of compliance.

3.6.11 In Belgium's contention, the third and fourth requests addressed to the Court in the final submissions in the DRC Memorial raise questions of compliance with a putative judgment of the Court on the merits. They should not therefore be entertained by the Court.


CONCLUSIONS

10.1 For the reasons set out in Part II of this Counter-Memorial, Belgium contends, as a preliminary matter, that the Court lacks jurisdiction in this case and/or that the application by the DRC against Belgium is inadmissible.


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10.3 If, contrary to Belgium's preliminary objections to the jurisdiction of the Court and the admissibility of the application, the Court concludes that it does have jurisdiction in this case and that the application is admissible, Belgium contends that the DRC case is unfounded on the merits. For ease of reference, Belgium's principal submissions on the merits of the case may be summarised as follows:

First Submission (Part III, Chapter One)
That the character of the arrest warrant of 11 April 2000 is such that it neither infringes the sovereignty of, nor creates any obligations for, the DRC.

Second Submission (Part III, Chapters Two and Three)
That the assertion of jurisdiction by the Belgium Judge pursuant of the relevant Belgian legislation is consistent with international law in that:

• it is based on the connection of the complainant civil parties to Belgium by reason of nationality and/or residence;
• it is consistent with the obligations upon High Contracting Parties to the Fourth Geneva Convention;
• it is consistent with principles of customary international law permitting States to exercise universal jurisdiction over war crimes and crimes and humanity.

Third Submission (Part III, Chapter Four)
That the immunity that attaches to Ministers for Foreign Affairs in office applies for purposes of enabling them to carry out their official functions and not in respect of conduct undertaken in their private capacity or other than in the performance of their official functions.

Fourth Submission (Part III, Chapter Five)
That immunity does not avail persons in official capacity alleged to have committed war crimes or crimes against humanity.

Fifth Submission (Part III, Chapter Six)
That, whatever the Court's conclusions on the merits of the case, key elements of the remedies requested by the DRC in its final submissions fall outside the accepted judicial function of the Court and should not accordingly be the subject of any judgment by the Court.

10.4 By reference to these submissions, Belgium requests the Court to reject the claim of the DRC on the merits of the case and to dismiss the application.


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