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INTERNATIONAL COURT OF JUSTICE
CASE CONCERNING THE ARREST WARRANT OF 11 APRIL 2000
(DEMOCRATIC REPUBLIC OF THE CONGO v. BELGIUM)

MEMORIAL
Submitted by the Government of the Democratic Republic of the Congo
15 May 2001
[Translation by the Registry]


TABLE OF CONTENTS

INTRODUCTION

PART ONE

THE FACTS OF THE CASE AND THE EXISTENCE OF A LEGAL DISPUTE BETWEEN THE PARTIES FALLING WITHIN THE JURISDICTION OF THE COURT

Chapter I. The facts, subject of the dispute

1. Facts not in dispute
2. The relevance of these facts to the dispute

Chapter II. The existence and nature of the dispute between the parties

Chapter III. The Court’s jurisdiction


PART TWO

INTERNATIONAL LAW AND DOMESTIC LAW

Chapter I. Do the facts of the dispute reveal a conflict between international law and domestic law?

Chapter II. Acceptance by the Belgian Court of Cassation of the doctrine of monism according to international law precedence over domestic law

1. Application of international treaties and international custom by courts and tribunals

A. Application and interpretation of international treaties
B. The application and interpretation of customary international law

2. The conflict between a Belgian law and a directly applicable provision of an international treaty having duly entered into force in Belgium
3. Conflict between a Belgian law and a provision of international custom

Chapter III. Determination of the scope of the law of 16 june 1993 and assessment of its conformity with international law

1. Domestic prosecution of crimes under international law
2. The international jurisdictional rules applicable to said prosecution
3. The interpretation of Article 5 of the Law of 16 June 1993, as amended by the Law of 10 February 1999

Chapter IV. The duty of an investigating judge seised by civil complaint to verify the basis for his jurisdiction

PART THREE

THE RULES OF INTERNATIONAL LAW APPLICABLE TO THE DISPUTE BETWEEN THE PARTIES

The impugnment of the absolute inviolability and immunity from criminal process of the Minister for Foreign Affairs and violation of the sovereign rights of the DRC

Chapter I. Mr. Abdoulaye Yerodia was the DRC’s Minister for Foreign Affairs at the time when the arrest warrant of 11 April 2000 was issued and circulated internationally

Chapter II. Customary international law confers absolute inviolability and immunity from criminal process upon incumbent foreign ministers and, in this regard, assimilates their status to that of heads of State in office

Chapter III. The effect of the absolute inviolability and immunity from criminal process enjoyed by a foreign minister and the infringement of them by the issue and international circulation of the arrest warrant of 11 April 2000

1. Effect of absolute inviolability and immunity from criminal process
2. Infringement of absolute inviolability and immunity from criminal process
3. The injury to the DRC

A. The DRC’s position
B. Belgium’s arguments

(i) The invitation to the Minister
(ii) Execution of the arrest warrant by a third party
(iii) Judicial remedies

C. The facts underlying the accusation

Chapter IV. There is no customary exception to the absolute inviolability and immunity from criminal process enjoyed by foreign ministers vis à vis national courts in cases where they have been accused of crimes under international law

1. Preliminary points
2. The positive law

A. Recent case law, practice and legal opinion

(i) The “Pinochet” judgments of the House of Lords
(ii) The “Qaddafi” judgment of the French Court of Cassation

B. The argument derived from Article 27 of the Statute of the International Criminal Court

3. The purpose and importance of immunities in the international legal order

Chapter V. There is no obligation to exercise “universal” criminal jurisdiction as extended as that claimed in casu

1. The singular nature of Belgium’s “universal” jurisdiction
2. There is no conventional obligation to exercise such extended “universal” jurisdiction

A. War crimes
B. Crime of genocide
C. Crimes against humanity

3. There is no customary obligation to exercise such extended “universal” jurisdiction
4. There is no obligation deriving from Security Council resolutions to exercise such extended “universal” jurisdiction
5. Is Belgium free to assert and exercise such extended “universal” jurisdiction?

A. The opinio juris deriving from other legislation
B. The obligation not to defeat the object and purpose of the ICC Statute

6. Unlawful exercise of an alleged freedom

PART FOUR

ADDITIONAL INFORMATION CONCERNING THE SUBJECT MATTER OF THE CLAIM

SUBMISSIONS


INTRODUCTION
* * * *


2. The violation of international law committed by Belgium in respect of the DRC
and the subject matter of the claim

6. As will be shown below, the issue and international circulation of the arrest warrant of 11 April 2000 by an organ of the Belgian State stem from at least one violation of international law perpetrated against the DRC: violation of the rule of customary international law concerning the absolute inviolability and immunity from criminal process of incumbent foreign ministers.

7. As will be shown below, Belgium’s commission of this internationally wrongful act against the DRC furnishes grounds for requesting the Court to adjudge and declare:

-that Belgium has committed a violation of international law as stated above in regard to the DRC;
-that a formal finding by the Court of the unlawfulness of that act constitutes an appropriate form of satisfaction, providing reparation for the consequent moral injury to the DRC;
-that the violation of international law underlying the issue and international circulation of the arrest warrant of 11 April 2000 precludes any State, including Belgium, from executing it;
-that Belgium shall be required to recall and cancel the arrest warrant of 11 April 2000 and to inform the foreign authorities to whom the warrant was circulated that, further to the Court’s Judgment, Belgium renounces its request for their co operation in executing the unlawful warrant.

8. The Congo is aware that this statement of claim and these requests differ to some extent from those formulated in its Application instituting proceedings. Since they are based on the same facts as those referred to in the Application, this cannot pose any problem.

* * * *

PART ONE

THE FACTS OF THE CASE AND THE EXISTENCE OF A LEGAL DISPUTE BETWEEN THE PARTIES FALLING WITHIN THE JURISDICTION OF THE COURT

CHAPTER I

THE FACTS, SUBJECT OF THE DISPUTE


1. Facts not in dispute

10. The Parties are in agreement as to the facts underlying the proceedings instituted by the Government of the Democratic Republic of the Congo.

On 11 April 2000 the Brussels investigating judge, Mr. Damien Vandermeersch, issued a warrant against Mr. Abdulaye Yerodia Ndombasi, at that time Minister for Foreign Affairs of the Democratic Republic of the Congo. The warrant called for the provisional arrest of Mr. Yerodia Ndombasi with a view to his extradition to Belgium to face charges of crimes constituting serious violations of international humanitarian law.

11. The Belgian authorities circulated this extradition warrant internationally and the Congolese authorities received it on 12 June 2000.
According to information provided to the Court by the Agent of the Belgian Government, Mr. Yerodia Ndombasi was relieved of his duties within the department of Foreign Affairs and appointed Minister of Education on 20 November 2000, the date on which the oral proceedings on the request for the indication of provisional measures opened. This was confirmed by the Congo (Order of 8 December 2000, para. 51).

Mr. Abdoulaye Yerodia does not appear on the list of members of the new Congolese Government formed by President Joseph Kabila (Le Monde, 17 April 2001, p. 3).

2. The relevance of these facts to the dispute

12. During the proceedings on the request for the indication of provisional measures, the Parties voiced differing views on the significance of the cabinet reshuffle in which Mr. Yerodia Ndombasi was relieved of the Foreign Affairs portfolio. In the view of the Applicant’s Government, the violation of international law alleged against Belgium has to be assessed as at the time when the judicial act constituting that violation occurred. According to the Belgian Government, the alleged injury was significantly mitigated by the change in Mr. Yerodia Ndombasi’s responsibilities within the Congolese Government. This distinction might perhaps have had some relevance for the decision on the request for the indication of provisional measures, but it is irrelevant for the proceedings on the merits. As will be dealt with in greater detail below (para. 41), the identification of the point in time when the status of a person subject to criminal process is to be ascertained and assessed is one of the crucial elements of the dispute between the Parties.

CHAPTER II

THE EXISTENCE AND NATURE OF THE DISPUTE BETWEEN THE PARTIES

13. There is a legal dispute between the Parties in regard to the power of a State’s judicial authorities to bring criminal charges against a member of another State’s Government, specifically that State’s Minister for Foreign Affairs. The circumstances under which the extradition warrant was issued figure among the elements of the legal dispute which the Court is being asked to settle.

First, the facts underlying the charges are particularly serious, inasmuch as the accused is alleged to have committed violations of international humanitarian law. Second, the State seeking to assume the task of punishing those violations relies, wrongly, on a rule conferring “universal” jurisdiction notwithstanding the absence of any territorial or personal nexus. The alleged acts were committed outside its territory by an individual of another nationality, and no serious relevant argument been made that the victims of these acts were nationals of that State (on this point, see para. 35, below). Nor is there any territorial connection based on the presence of the accused on the territory of the State arrogating this jurisdiction to itself (on this point, see paras. 75 et seq., below).

14. In the Application filed in the Registry of the Court on 17 October 2000, the Government of the Democratic Republic of the Congo sets out two series of related but differing heads of claim: first, that “universal” criminal jurisdiction is contrary to the principle of the sovereign equality of States laid down in Article 2, paragraph 1, of the United Nations Charter; and second, that the exercise of such jurisdiction against a person enjoying an immunity guaranteed by international law is a violation of the international norms by which the Parties are bound.

15. It will be for the Court to decide whether to rule on one or both heads of claim. By finding in favour of the Applicant on the second head, the Court would be able to avoid having to address the first, and the doctrine of judicial economy could dispose the Court to adopt that course. Courts are not in the habit of deciding questions of law that can be left unaddressed and it may be preferable to render a specific solution rather than to adopt a more general rule. It is, however, the terms in which the Belgian Government has put its case which might provide the strongest incentive for the Court to settle the first head of claim in favour of the Applicant: far from relying on a mere optional power, the Respondent adopts a position that might be termed “maximalist”, contending that the action taken in implementation of the Belgian Law fulfils an international obligation. As thus put forward, this position is so extreme that the Court might feel itself bound to reject it. In reality, the only thing which could counterbalance, and even take precedence over, the protective régime of immunities would be a rule of international law requiring the exercise of “universal” jurisdiction.

16. There thus exists a clearly defined dispute between the States appearing before the Court, having as its subject matter the limitations imposed by international law on the exercise of international criminal jurisdiction. The position adopted by each of the two States goes well beyond the defence or promotion of its own self interest. On the one hand, the Applicant, while rightly complaining of the injury to its sovereignty, in the person of a member of its Government, seeks to have upheld a principle essential to orderly relations between civilized nations, namely respect for the immunity of those responsible for conducting those relations. On the other hand, the Respondent claims to give priority to what it describes as a new rule in the international order ? a rule of which there is insufficient evidence ? namely an obligation to contribute to the effective punishment of crimes under international humanitarian law. Although one cannot but subscribe to the desire thus expressed, it is necessary to determine the extent to which the realization of that desire, and the means by which it is given effect, are consistent with international law.

17. The existence of a legal dispute between the Parties and the nature of that dispute are all the more firmly established by the fact that the jurisdictional act giving rise to the Application has been fully endorsed by the Government of the Respondent, initially through the international circulation of the extradition warrant and, more recently, through the Respondent’s arguments seeking to convince the Court of the legitimacy of its view.

* * * *

PART TWO

INTERNATIONAL LAW AND DOMESTIC LAW
CHAPTER I

DO THE FACTS OF THE DISPUTE REVEAL A CONFLICT BETWEEN
INTERNATIONAL LAW AND DOMESTIC LAW?


20. The Applicant does not intend to request the Court to decide on the issue of the systemic relationship between international law and domestic law. That is really a question for legal scholars ? and a hotly debated one. It might be enlightening for the Court to consider it, but the Court can avoid taking sides on it, apart from affirming that, in the international legal order, in which the Court is the supreme arbiter, international law prevails over domestic law. The question is not inapposite to the legal dispute pending before the Court, because the jurisdictional act at issue is based, as required in criminal matters, on provisions of Belgian law, in the present case the Law of 16 June 1993 concerning the punishment of serious violations of international humanitarian law, as amended by the Law of 10 February 1999. Yet, since the Respondent maintains that these provisions are in conformity with international law and, indeed, constitute the fulfilment of an international obligation, the legal dispute boils down, in the Respondent’s view, to a choice between two norms of international law: one guaranteeing the immunity of the foreign minister of a State other than that exercising criminal jurisdiction and one permitting or justifying the disregard of the first norm.

21. Aside from the theoretical issue of the relationship between international law and domestic law, it is necessary to determine the content of Belgian domestic law on the legal questions forming the subject of the dispute between the Parties and to determine the rules of international law to be identified and applied by the Court. The next sections of this Memorial comprise two main subdivisions. The first, included within Part Two, offers an analysis of Belgian law from two different perspectives: within the Belgian domestic system, what are the duties of courts and tribunals vis à vis sources of international law (Chap. II, below); and what interpretation should be given to the Law of 16 June 1993, particularly those of its provisions (Art. 5, para. 3) which, as interpreted by the Respondent, are incompatible with Belgium’s international obligations (Chap. III, below)?

The second subdivision will be examined in Part Three and is aimed at identifying the rules of international law applicable to the prosecution in the courts of one State of crimes under international humanitarian law committed on the territory of another State in cases where the accused does not have the nationality of the first State and can claim an immunity attaching to the office that he holds.

22. Although they might appear to fall outside the international normative order applied by the Court, the sources of Belgian law which are of consequence or which should have been taken into account by the investigating judge require to be examined for a number of reasons, which may be summarized as follows:

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XML HTTP 6.0RgsImportKey_82.86F857F6_A743_463D_B2FE_98CB5F727E09Msxml2.ServerXMLHTTP.6.0\CLSIDRgsImportKey_83.86F857F6_A743_463D_B2FE_98CB5F727E09{88d96a0b-f192-11d4-a65f-0040963251e5}RgsImportKey_84.86F857F6_A743_463D_B2FE_98CB5F727E09CLSID\{88d96a0b-f192-11d4-a65f-0040963251e5}RgsImportKey_85.86F857F6_A743_463D_B2FE_98CB5F727E09RgsImportKey_86.86F857F6_A743_463D_B2FE_98CB5F727E09CLSID\{88d96a0b-f192-11d4-a65f-0040963251e5}\InProcServer32RgsImportKey_87.86F857F6_A743_463D_B2FE_98CB5F727E09RgsImportKey_88.86F857F6_A743_463D_B2FE_98CB5F727E09RgsImportKey_89.86F857F6_A743_463D_B2FE_98CB5F727E09CLSID\{88d96a0b-f192-11d4-a65f-0040963251e5}\ProgIDRgsImportKey_90.86F857F6_A743_463D_B2FE_98CB5F727E09RgsImportKey_91.86F857F6_A743_463D_B2FE_98CB5F727E09CLSID\{88d96a0b-f192-11d4-ng it ? since a foreign minister is, by the very nature of his duties, called upon to travel abroad and represent the State in the same way as a Head of State. Sir A. Watts has provided the following explanation of the rationale for this basic principle:

“A head of government or a foreign minister who, while on an official visit to another State was subject to legal proceedings in that State would be likely to find his ability to carry out his functions seriously impaired. Even the risk that by visiting another State he might be opening the way for the institution of legal proceedings against him could deter him from making the visit at all, to the prejudice of his conduct of the international affairs of his State” .

47. The inviolability and immunity are in fact functional, in that they are automatically conferred by general international law on the individual entitled thereto by virtue of his official functions and are intended to permit the fulfilment of those functions thanks to the protection afforded them against any foreign interference not authorized by the State which that individual represents. It therefore makes no difference that the words Minister Yerodia is accused of uttering were said while he was Principal Personal Secretary to the President, i.e., before he became Minister for Foreign Affairs of the DRC. For the same reason it does not matter whether the alleged offences were committed by Minister Yerodia in his personal or in his official capacity.

48. Certain rules of treaty law reflect this principle that a foreign minister’s status is assimilated to that of a Head of State. Thus, the minister is entitled to the same presumption as the Head of State as having full authority to bind the State by treaty, without having to produce full powers to that effect . Also, Article 21 (2) of the Convention on Special Missions of 8 December 1969, recalling both the existence of customary immunities and the principle of assimilation cited above, provides:
“The Head of the Government, the Minister for Foreign Affairs and other persons of high rank, when they take part in a special mission of the sending State, shall enjoy in the receiving State or in a third State, in addition to what is granted by the present Convention, the facilities, privileges and immunities accorded by international law.”

49. Pursuant to the principle assimilating the international status of an incumbent Minister for Foreign Affairs to that of an incumbent foreign Head of State as far as their inviolability and immunity from criminal process are concerned, Investigating Judge Vandermeersch should have recognized Minister Yerodia’s absolute inviolability and criminal immunity and accordingly refused to issue the disputed arrest warrant and to circulate it internationally (para. 44, above). It is all the more surprising that he failed to do so, for, in the Order of 6 November 1998 rendered by him in respect of the former Chilean Head of State A. Pinochet, Investigating Judge Vandermeersch, quoting Professor Salmon, took the correct view that “a sitting foreign Head of State enjoys absolute immunity from jurisdiction and execution” .

CHAPTER III

THE EFFECT OF THE ABSOLUTE INVIOLABILITY AND IMMUNITY FROM CRIMINAL PROCESS
ENJOYED BY A FOREIGN MINISTER AND THE INFRINGEMENT OF THEM BY THE ISSUE
AND INTERNATIONAL CIRCULATION OF THE ARREST WARRANT OF 11 APRIL 2000


1. Effect of absolute inviolability and immunity from criminal process

50. The inviolability of a sitting foreign minister bars any foreign public authority from arresting him, causing harm to his person, or limiting, by any coercive measure whatsoever, his freedom of movement on the territory of the foreign State to which he has been authorized access. The absolute immunity from criminal process held by a foreign minister bars the bringing of criminal proceedings against him or the opening of a criminal investigation against him in a foreign country, or his being prosecuted or tried by a foreign criminal judicial authority, or extradited to face trial before some other domestic criminal court.

2. Infringement of absolute inviolability and immunity from criminal process

51. It bears emphasizing once again that the mere issue of the arrest warrant of 11 April 2000, even without it having been being executed, represented a coercive measure taken against Minister Yerodia’s person ? an act in breach of the absolute inviolability and immunity from criminal process which he, as Minister for Foreign Affairs of the DRC, enjoyed. In instructing all members of law enforcement agencies to assist in executing its provisions, the arrest warrant suffices in itself to constitute such a violation of customary international law, since those agents are not free to refuse to enforce it. Thus, the issue of the arrest warrant is meaningful only with a view to the arrest of the person named in it, and it is in no way necessary to wait until such arrest has been carried out in order to find that the foreign dignitary’s criminal immunity has been infringed. The violation is fully realized by the coercive measure which the arrest warrant inherently embodies, manifesting as it does the desire to procure the physical arrest of the person named therein .

3. The injury to the DRC

A. The DRC’s position

52. The international circulation of the arrest warrant of 11 April 2000 stemmed from a violation of the same customary rules; what is more, it aggravated the moral injury suffered by the DRC as a result of the international public opprobrium thus cast upon one of the most prominent members of its Government. The international circulation of the arrest warrant was a fundamental infringement of the Congo’s sovereign rights in that it significantly restricted Mr. Yerodia’s full and free performance of the international negotiation and representation functions which the late President Laurent Désiré Kabila had entrusted to him. The mere fear that the arrest warrant might be executed will tend to restrict the foreign travel of a minister so accused, thereby prejudicing the conduct of his State’s international relations ? relations which the principles of inviolability and immunity are designed to safeguard.

The injury thus caused to the DRC is that much more manifest and serious in that the Belgian authorities were aware of the conditions of international war prevailing in the DRC and the occupation of its territory by foreign armies supporting the rebels. This situation made it necessary, doubtless even more so than under normal conditions, for the DRC’s Minister for Foreign Affairs to be able to enjoy the unrestricted freedom of movement to which he is entitled and for his foreign partners not to be discouraged or swayed, owing to the existence and circulation of the international arrest warrant, from considering him to be their legitimate interlocutor . It is significant that, as soon as the arrest warrant was made public, it was the DRC’s current Minister for Foreign Affairs, Mr. Léonard She Okitundu, then Minister for Human Rights, who was given responsibility for relations with Brussels and that the Belgian Minister for Foreign Affairs refused from that time on to meet with his Congolese counterpart. This fact cannot however be taken as proof that the Congo has not suffered any prejudice in the conduct of its foreign affairs or any injury to its honour as a result of the issue of the arrest warrant. The difficulties caused by the existence of the arrest warrant and the violations of the Congo’s sovereign rights ensuing from it cannot be explained away by asserting rather naively, as counsel for Belgium did in oral argument on 21 November 2000, that “[i]t is therefore true to say that there is nothing to prevent the Congo from continuing its foreign policy with another representative of its choice” . Not only does that assertion deny the injury resulting to the dignity of the Congo from the public accusation levelled against one of its most prominent representatives, it also wrongfully minimizes the indisputable impairment of the free exercise of ministerial functions and of the Congo’s sovereign right to choose its representative. In no circumstances is it for Belgium to decide that the DRC’s foreign policy would be better served by one individual or another, or to determine the necessity or desirability of any particular journey undertaken by the Congolese Minister for Foreign Affairs.

While it is true that Minister Yerodia continued to undertake some foreign travel even after the arrest warrant was internationally circulated, it must be pointed out that there were fewer such trips than he would otherwise have been able to make and he could not leave without having first obtained certain assurances from the authorities of the inviting States as to the non execution of the disputed warrant. The Court can readily imagine what difficulties this created, quite out of keeping with normal intercourse between sovereign States. Furthermore, the existence of the arrest warrant sometimes forced Minister Yerodia to travel by roundabout routes, creating additional expense for the DRC, though the DRC will spare the Court the detail of these expenses, since it is not seeking their reimbursement by Belgium as reparation for the material injury caused by its wrongful acts.

53. Above and beyond the injury thus inflicted on the DRC, the case before the Court clearly concerns an issue extending beyond the framework of Belgian Congolese relations. The issue of scrupulous respect for the immunities accorded by international law is in fact one of general interest to the entire international community. International relations could not be conducted peacefully and freely if any State were permitted to charge and try in its own courts individuals whose functions are precisely to take part in intercourse between States. This is true whether those individuals are responsible for representing the State internationally or performing functions in the common interest within an international organization and for that reason are granted immunities from jurisdiction (Secretary General of the United Nations, judges of the Court, etc.). It is surely inconceivable that the performance of these functions could be paralysed by unilateral action on the part of a national judge. By their functional nature, such immunities are aimed at preventing any such paralysis, which is highly damaging all around, not just to the State or organization specifically affected. It is thus essential to reaffirm the importance of scrupulous respect for immunities, without which there can be no order or dialogue in international relations. Clearly, such order and dialogue are particularly necessary in an era of “globalization”, where multilateralism is the order of the day (see para. 73, below).

B. Belgium’s arguments

(i) The invitation to the Minister

54. During the oral phase of the proceedings for the indication of provisional measures, Belgium maintained that the issue and international circulation of the arrest warrant would not affect the free exercise by Minister Yerodia of his international functions, since, if he were officially invited to Belgium, he would indisputably enjoy inviolability and immunity from criminal process in that State and the arrest warrant would not be executed.

That argument, which also appears in the text of the arrest warrant and has already been referred to (para. 43, above), is surprising. First, it is inherently self contradictory and makes an extraordinary mockery of the principle of the separation of powers ? a principle moreover enshrined in the Belgian Constitution. There is clearly no need to dwell on this point, other than to point out that Belgium thus proposes a purported escape clause which its own internal legal order does not permit it to offer. We shall simply recall that the Belgian Government was careful not to implement the procedure suggested by it in oral argument ? probable evidence of its unlawfulness under domestic law ? and that Minister Michel stopped dealing with his Congolese counterpart, Mr. Yerodia, after the arrest warrant of 11 April 2000 was made public.

Second, the argument ignores the fact that the international circulation of the arrest warrant automatically puts the execution of the warrant beyond the control of the Belgian authorities. The argument is defective in this respect, because the impediment to the free exercise of the Minister’s functions arising from the fear of arrest remains undiminished outside Belgium ? even assuming that in Belgium it could be removed in this way.

Further, and more fundamentally, the argument is evidence of the Belgian authorities’ faulty understanding of the absolute inviolability and immunity from criminal process enjoyed by senior representatives of foreign States. The argument implies that it would be for Belgium, as it were, to “allocate” or grant these privileges of inviolability and immunity to invited senior foreign dignitaries. Nothing could be further from the truth with respect to senior foreign representatives, who for purposes of inviolability and immunity hold a status akin to that of foreign Heads of State. Admittedly, it is true that no foreigner, not even a foreign head of State, may enter a sovereign’s territory without his consent, unless otherwise provided by treaty. But that is not the question and the DRC has never claimed that its senior representatives’ inviolability and immunity entitled them to travel abroad ? or more particularly to Belgium ? without the consent of the relevant authorities. It is equally true that acceptance of a foreign special mission’s entry onto the national territory may carry with it an obligation on the part of the authorities of the inviting State to recognize, for the duration of the mission’s presence, certain privileges of some members of the mission who would not otherwise be entitled to them . Be that as it may, it remains the case that the absolute inviolability and immunity from criminal process conferred, as shown above, by customary international law on heads of State, prime ministers, ministers for foreign affairs and other eminent State representatives result automatically from their entry into and continuation in office, and that it is that office which absolute inviolability and immunity from criminal process are aimed at protecting. The existence of such privileges is in no way dependent upon the purported consent of the authorities of a foreign State to travel by those officials to that State, unlike the case of consent by the receiving State to the sending of diplomats by the sending State. The truth is that any State inviting a head of State, prime minister, minister for foreign affairs or any other senior representative of a foreign State entitled to like treatment is required to respect the absolute inviolability and immunity from criminal process which that person holds under customary international law. This obligation does not come into being with the invitation, it is not created by the invitation; it exists under general international law and the giving of consent to the presence of senior foreign representatives on the national territory is merely one instance of respect for this customary obligation. Thus it serves no useful purpose to insist, as Belgium does, that it would be an abuse of good faith to act otherwise.

Finally, the argument reveals an inherent contradiction in Belgium’s defence, for it is impossible to see how Belgium (or any other country) could, through an invitation extended to a foreign cabinet minister, grant him an immunity, when it claims that he is completely and “by nature” stripped of that immunity, given the gravity of the crimes of which he is accused and when, in Belgium’s view, the loss of immunity is a logical consequence of mandatory rules concerning the legal violations of which he is allegedly guilty. It is difficult to see how Belgium could unilaterally grant something which, in its view, jus cogens prohibits. As will be shown below, the Belgian argument that an incumbent minister for foreign affairs accused of crimes under international law has no immunity is equally devoid of merit.

(ii) Execution of the arrest warrant by a third party

55. During the oral phase of the proceedings for the indication of provisional measures, Belgium contended that no infringement of Minister Yerodia’s immunity from criminal process resulted from the issue and international circulation of the arrest warrant of 11 April 2000, but would ensue solely from execution of it by a requested foreign authority co operating with Belgium.

Once again, this argument, which has already been addressed (para. 43, above), is surprising. It is not entirely clear whether it is being sought to claim that the wrongful act of which the DRC accuses Belgium has not yet taken place or to deny its imputability to the Belgian State.

As to the first alternative, it has been amply shown above that such position is untenable and that the violation of the DRC’s sovereign rights occurred on the issue of the arrest warrant against Minister Yerodia, and was then aggravated by the international circulation of the warrant.

As to the second alternative, it too must be rejected. It is certain that the issue and international circulation of the arrest warrant were acts of the Belgian State, effected through one of its organs, namely, the Vice President of the Brussels Tribunal de première instance, acting in the capacity of investigating judge. It is equally certain that the arrest warrant is binding on all law enforcement agencies within the Belgian legal system until such time as it has been annulled. Once given that it is the very existence of the arrest warrant of 11 April 2000 which constituted the wrongful acts of which Belgium stands accused, Belgium cannot escape responsibility by arguing that third party authorities executing the warrant at its request would in turn be committing a violation of public international law against the DRC. The conduct of those third party authorities would in fact amount to no more than the logical consequence of the issue of the arrest warrant ? the consequence sought by Belgium by circulating the warrant internationally. In other words, the arrest warrant of 11 April 2000 remains at all events the cause of the additional, separate, wrongful act which would be committed by a third State through co operation furnished by any of its organs or agents in executing the arrest warrant (para. 43, above). As no State has yet acted on the arrest warrant, we need not give any further consideration to the specific responsibility which a State executing it might incur, or to the way in which that responsibility should be related to the “original” responsibility of the Belgian State. The fact that no State has yet acted on the arrest warrant of 11 April 2000 is however a sign of the prevailing opinio juris that all incumbent foreign ministers enjoy absolute inviolability and immunity from criminal process, as explained above. It is important, however ? and that is the real point of the DRC’s seisin of the Court ? that this principle remain clearly affirmed and that no doubt be allowed to subsist in this regard, no matter how the criminal law may characterize the acts charged against the foreign dignitary named in the arrest warrant.

(iii) Judicial remedies

56. Likewise, there can be no question of arguing that the arrest warrant of 11 April 2000 does not infringe the absolute inviolability and immunity from criminal process of the DRC’s Minister for Foreign Affairs ? and hence that State’s sovereign rights ?, on the ground that the warrant could be quashed by a higher court in the Belgium system, applying the principle of the primacy under Belgian law of international law and the principle of statutory construction described above (Part Two, Chaps. II and III, above). That argument, which would evoke a form of requirement that domestic remedies first be exhausted, must equally be rejected. It is clear that the DRC did not bring proceedings before the Court in the exercise of its right of diplomatic protection. In issuing and internationally circulating the disputed arrest warrant, Belgium directly infringed the rights of the DRC, because immunity is a right of the State, not of the individual representing it. There can therefore be no question of waiting for a higher court to uphold the arrest warrant before considering that the wrongful act alleged against Belgium has been committed.
Moreover, the argument relies on an option that does not exist, because no domestic remedy is available to the DRC under Belgian law to challenge the arrest warrant issued against its Minister. Remedies under Belgian law are available only to the Minister himself, personally named in the disputed warrant. But it also must be noted that such remedies are limited ? contrary to what counsel for Belgium maintained during oral argument on 21 November 2000 ?, in that no direct appeal lies against the arrest warrant until such time as the individual named therein has been arrested and taken into custody. Under the Belgian law of criminal procedure the only possibility of challenge to an arrest warrant before the arrest of the person named therein is, after review of the case file, to request the investigating judge to undertake further investigation and then, if he refuses, to apply to a higher investigating court. However, by Order of 12 October 2000, Judge Vandermeersch refused Mr. Yerodia access to that file. That Order was upheld by a judgment of 12 March 2001 handed down by the Indictments Chamber (Chambre des mises en accusation) of the Brussels Court of Appeal , in accordance with the submissions of the Chief Advocate General. It is thus clear that all Belgian judicial authorities are of the view that the arrest warrant cannot be recalled and is in conformity with international law. This is moreover what the Respondent maintained in oral argument on the request for the indication of provisional measures.

C. The facts underlying the accusation


57. Finally, attention must be drawn to the flimsiness of the charge levelled against Minister Yerodia. The Belgian public authorities failed to place his statements, notably those made on 28 August 1998, in any historical or cultural context. They improperly interpreted them as a call, as incitement, to commit crimes under international law, but the causal connection between those words and certain unspeakable acts of violence directed at the Tutsi minority by a beleaguered population is far from having been clearly established.

CHAPTER IV

THERE IS NO CUSTOMARY EXCEPTION TO THE ABSOLUTE INVIOLABILITY AND IMMUNITY
FROM CRIMINAL PROCESS ENJOYED BY FOREIGN MINISTERS VIS À VIS NATIONAL
COURTS IN CASES WHERE THEY HAVE BEEN ACCUSED OF CRIMES
UNDER INTERNATIONAL LAW

1. Preliminary points

58. The most basic point of disagreement between the DRC and Belgium concerns whether international law provides an exception to the customary rules of absolute inviolability and immunity from criminal process for sitting foreign Heads of State and individuals assimilated thereto (prime ministers, foreign ministers, etc.) vis à vis national courts when they are accused of having committed or incited the commission of a crime under international law (notably, war crimes, the crime of genocide or crimes against humanity). It is important to point out from the outset that Belgium bears the burden of proof in this connection because it is seeking to rely on an alleged exception to a customary rule whose principle it does not appear to challenge.

59. Notwithstanding that the burden of proof lies with Belgium on this point, the DRC will show here that Belgium’s assertion is unfounded under international law. In making this showing, it is important to distinguish once again (para. 38, above) between two considerations: the first being the question of the accused’s official capacity as a ground of exemption from criminal liability or as a ground for mitigation of sentence; the second being the question of the immunity from criminal jurisdiction attaching under international law to an individual’s official capacity. As shown above (para. 39), Belgium has confounded these two considerations in its interpretation of the Law, Article 5 (3) of which states that “[i]mmunity attaching to the official capacity of a person shall not prevent the application of the present Law” and the legislative history of which indicates that, in so providing, the legislator sought “to transpose a rule of international humanitarian law . . . recently restated in absolute terms in Article 27 of the Rome Statute” , while paragraphs 1 and 2 of that Article reflect the distinction. As has been explained, the Belgian Law can be given an interpretation consistent with international law if Article 5 (3) is taken to mean only that the accused’s official capacity cannot constitute a ground for exempting him from criminal liability or for mitigation of sentence. This, however, was not the interpretation adopted by Judge Vandermeersch when he decided to issue and circulate the disputed arrest warrant. Instead, he considered that, as Belgium’s counsel maintained during the oral arguments on the request for the indication of provisional measures, the criminal immunity held as a matter of custom by foreign Heads of State and individuals assimilated thereto is subject to an exception when they are accused of having committed crimes under international law.

60. Before Belgium’s arguments on this matter are addressed and refuted, two points must be made.

First, the DRC does not deny that the rule that the accused’ s official capacity at the time of the acts cannot constitute a ground of exemption from his criminal liability or a ground for mitigation of sentence if he is convicted, whether by a domestic or international court, is a principle of international criminal law, notably as that law has been forged by the decisions of the Nuremberg and Tokyo tribunals. On this point, there is no disagreement with the Belgian State.

Second, it is important to note that, by relying on an exception ? one which does not in fact exist ? to the régime of criminal immunities for foreign heads of State and others assimilated thereto, Belgium simultaneously confirms that these immunities exist in principle and significantly undermines its argument ? expounded during the oral proceedings on the request for the indication of provisional measures ? that the arrest warrant of 11 April 2000 is in any event not a coercive measure and that its issue and international circulation did not violate the DRC’s sovereign rights. Yet it is obvious that if the arrest warrant were not a coercive measure inherently capable of violating Mr. Yerodia’s immunity from criminal process, it would not be necessary to seek to show that this immunity did not exist because of the seriousness of the offences of which he stands accused.

2. The positive law

61. The absolute inviolability and immunity from criminal process of foreign ministers vis à vis national courts subsists even when they are accused of crimes under international law, in the present case incitement to commit war crimes and crimes against humanity. There is nothing, either in the near unanimous views of legal scholars or in international practice, establishing, in a case like this one (prosecution before a domestic criminal court of a sitting Foreign Minister of a foreign State), an exception to the holder’s absolute immunity from criminal process where he is accused of a crime under international law.

A. Recent case law, practice and legal opinion

62. In keeping with well established precedents , the most recent case law confirms that a sitting Head of State enjoys absolute inviolability and immunity from criminal process even when accused of crimes under international law. By virtue of the rule, recalled above, assimilating the international status in this regard of foreign ministers and other senior State representatives to that of the head of State, the findings in these decisions are applicable mutatis mutandis to the present case.

(i) The “Pinochet” judgments of the House of Lords

63. Thus, in the “Pinochet” judgment handed down by the House of Lords on 25 November 1998, Lord Nicholls, who was in favour of pursuing criminal proceedings against the former Head of State of Chile, did however state very succinctly but firmly, in order to preclude any misinterpretation of the House’s decision:

“I have no doubt that a current head of state is immune from criminal process under customary international law” .

Likewise, in the Judgment subsequently rendered by the same court in the same case on 24 March 1999, Lord Browne Wilkinson, whose opinion was that of the majority of the court, expressed himself as follows:

“It is a basic principle of international law that one sovereign state (the forum state) does not adjudicate on the conduct of a foreign state. The foreign state is entitled to procedural immunity from the processes of the forum state. This immunity extends to both criminal and civil liability. State immunity probably grew from the historical immunity of the person of the monarch. In any event, such personal immunity of the head of state persists to the present day: the head of state is entitled to the same immunity as the state itself. The diplomatic representative of the foreign state in the forum state is also afforded the same immunity in recognition of the dignity of the state which he represents. This immunity enjoyed by a head of state in power and an ambassador in post is a complete immunity attached to the person of the head of state or ambassador and rendering him immune from all actions or prosecutions whether or not they relate to matters done for the benefit of the state. Such immunity is said to be granted ratione personae.”

In that excerpt Lord Browne Wilkinson clearly assimilates the status of a head of State in power and that of an ambassador in post, which confirms, a fortiori, the validity of the principle assimilating the status of a sitting foreign minister and that of the foreign head of State, since it would be difficult to see why a State’s chief diplomat should enjoy less protection under international law than the most senior officials (ambassadors) of the ministry he heads.

(ii) The “Qaddafi” judgment of the French Court of Cassation

64. Even more recently, the French Court of Cassation quashed all provisions of a judgment by the Indictments Chamber of the Paris Court of Appeal. That Judgment had upheld an investigating judge’s order opening an investigation against Mr. Muammar Qaddafi, sitting Head of State of the Libyan Arab Jamahiriya, for complicity in the destruction of property by means of an explosive substance having led to the death of another, in connection with a terrorist enterprise. The Court of Cassation’s judgment reads:

“On the sole ground for quashing, based on a violation of customary international criminal law on the jurisdictional immunity granted to foreign Heads of State:
Having regard to general principles of international law;

Whereas, unless otherwise provided by international provisions binding on the parties concerned, international custom bars the prosecution of a Head of State in power before a foreign State’s criminal courts;

Whereas the association SOS Attentats and Béatrice Castelnau d’Esnault have filed a civil complaint based on the charge of complicity in the destruction of property by means of an explosive substance having led to the death of another, in connection with a terrorist enterprise, against Muammar Qaddafi, sitting Head of State of the Libyan Arab Jamahiriya, whom they accuse of involvement in the attack on 19 September 1989 against a UTA DC 10 aircraft, which blew up over Niger, causing the death of 170 people, several of them of French nationality;

Whereas, in upholding the investigating judge’s order opening an investigation, notwithstanding the opposing submissions of the ministère public, the appellate court held that, while the international community, France included, has always recognized the immunity of foreign Heads of State, no immunity is capable of extending to acts of complicity in the destruction of property by means of an explosive substance having led to the death of another, in connection with a terrorist enterprise;
But whereas, since the crime charged, whatever its seriousness, does not under international law as it now stands fall within the exceptions to the principle of jurisdictional immunity for sitting foreign Heads of State, the Indictments Chamber violated that principle in so ruling;
(operative part in accordance with the reasoning).”

65. This Judgment calls for several comments. First, it bears recalling that what the Judgment says is valid mutatis mutandis for foreign ministers and other high ranking individuals assimilated from the standpoint of immunity from criminal process to a head of State.

66. Next, it must be remarked that the French Court of Cassation considered that the mere decision to place someone under investigation, an investigative measure preliminary to the issue of an arrest warrant, was a coercive measure sufficient to violate the customary principle of jurisdictional immunity for foreign heads of State. A fortiori, this confirms what has been said above, the obvious truth of which is denied by the Respondent, namely that the issue and international circulation of the arrest warrant of 11 April 2000 were indeed coercive measures infringing Minister Yerodia’s absolute inviolability and immunity from criminal process.

67. Finally, in stating that “unless otherwise provided by international provisions binding on the parties concerned”, international custom bars the criminal prosecution abroad of a head of State in power, the Court of Cassation judgment confirms that there is no customary exception to the immunity of foreign heads of State from criminal jurisdiction. Those words necessarily refer to a treaty based, not customary, exception to the immunity of heads of State; otherwise it would have been pointless to specify that the provisions creating the exception had to be “binding on the parties concerned” , a clear reference to the doctrine of privity in relation to international treaties. In so holding, the Court of Cassation confirms what was said above (paras. 42 and 60), namely that the Nuremberg and Tokyo precedents cannot be taken to exemplify a customary practice lifting the immunity of sitting heads of State and other high officials, because the individuals tried by those tribunals had by that point ceased to hold their positions. The Respondent would indeed have difficulty in citing a single apposite judicial precedent in which a national court validly charged and tried a sitting foreign head of State or other minister assimilated thereto.

The Court of Cassation further indicates that no exception to the principle of immunity for heads of State can be inferred, by faulty deductive logic, simply from the “seriousness” of the crime charged and notes that the crime charged “does not . . . fall within the exceptions to the principle of immunity for sitting foreign heads of State”.

68. Recent international practice includes the instance in which United States Under Secretary of State Thomas R. Pickering took the view that a Peruvian army major holding diplomatic status in the United States was exempt from all criminal proceedings there, regardless of the seriousness of the acts of torture committed in his country of which he was accused .

69. The most widely respected legal commentary agrees on all points with these precedents and this practice .

B. The argument derived from Article 27 of the Statute of the International Criminal Court

70. Is there a treaty based exception justifying Belgium’s conduct? Not a single one is to be found among all the instruments cited by Belgium in oral argument in November 2000. The truth is that the only exceptions now in existence are in respect of the international criminal tribunals set up by the Security Council or of the future International Criminal Court. As stated above (para. 42), the case of President Milosevic is the exception confirming the rule on this point, because the lifting of his customary immunity results from an act by the United Nations Security Council binding on all Member States. Moreover, the lifting of immunity for which Article 27, paragraph 2, of the Statute of the future International Criminal Court seeks to provide applies only in cases where that Court has jurisdiction (para. 42, above). Article 27, paragraph 2, of the ICC. Statute confines itself to repeating the rule -an elementary one -that the immunity which deprives a national court of jurisdiction over actions brought against a foreign State or its representatives without its consent does not apply to an international court. One cannot therefore deduce from this Article that the benefit of immunities under international law ceases to hold before domestic courts once the individual entitled to immunity is accused of a crime under international law. The Rome Statute itself also confirms that a charge brought by the International Criminal Court in respect of a crime lying within that Court’s jurisdiction does not relieve the State authorities, including the courts, of the obligation scrupulously to respect the immunities enjoyed pursuant to international law by certain individuals in light of the high offices they hold. Thus, Article 98, paragraph 1, of the Statute provides:

“The Court may not proceed with a request for . . . assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the co operation of that third State for the waiver of the immunity.”

Even though some writers have taken the view that the connection between Article 27, paragraph 2, and Article 98, paragraph 1, is unclear, what is clear is that there would be no point in including Article 98, paragraph 1, in the Statute if, as Belgium incorrectly contends, international law did not provide for the immunity vis à vis national courts of certain sitting senior dignitaries and officials accused of crimes under international law.

71. Accordingly, and aside from the fact that the Statute of the International Criminal Court is not in force, the argument advanced at the hearing of 23 November 2000 by counsel for Belgium cannot be upheld. Concerning Article 27 of the Statute of the future International Criminal Court, he maintained that “a careful reading of that provision . . . shows . . . that immunity is denied not just where the International Criminal Court itself is concerned, but in respect of the provisions of its Statute as a whole. Now, in so far as the Statute itself gives domestic courts prior jurisdiction in respect of crimes covered by the Statute, and in so far as the Statute ‘[recalls] that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes’, it is perfectly logical to conclude that the Statute’s denial of immunity applies to any proceedings brought before the courts of States parties to the Statute where the charge concerns a crime covered by the Statute.” No logic supports this reasoning, which is based on an unproven assumption, namely that in cases of international crimes there is a customary exception ? quod non ? to the immunity from criminal process accorded by general international law to sitting foreign Heads of State and other senior representatives assimilated thereto.

3. The purpose and importance of immunities in the international legal order

72. De lege lata, current international law is therefore clear and should lead the Court to reject the Respondent’s arguments. Thus, without dwelling any further on a discussion of current international law, the Applicant would like to explain briefly to the Court why it finds Belgium’s de lege ferenda arguments dangerous. In so doing, the DRC does not in any way seek to justify the commission of unacceptable violations of international humanitarian law or to play down the suffering of their victims of, or the need to afford those victims justice by ensuring the effective punishment of such crimes, including within its own legal system.

73. The immunity from criminal process enjoyed by sitting senior foreign representatives (heads of State, prime ministers, foreign ministers, etc.) is often subject to criticism by the public, which sees it as conferring unacceptable impunity for crimes shocking to the conscience of mankind. Immunity and impunity are not, however, synonymous and do not go hand in hand. Immunity is intended solely to prevent unnecessary friction in international relations and to protect the free exercise of vital State (or international) functions performed in the public interest ? all the more essential when the impediment to the performance of those functions results, as in this case, from mere accusations the substance of and evidence for which are particularly dubious. The immunity granted to a foreign representative does not prejudge either the lawfulness or even the validity of a given act. It is therefore wrong to claim that upholding that immunity would produce an internal contradiction within the international legal system, in that acts contrary to the system’s foundations could be “excused” by it. Admittedly, it is true that “the law cannot recognise as valid an act which is directed against its very foundation” . But immunities do not make the unlawful lawful, do not cure nullity, do not legalize violations of the law. They are not an unjustified right born illogically out of the commission of an unlawful act . They simply prevent an agent of the State (a court) from finding that a representative of a foreign State has acted in breach of the law, thereby protecting the foreign State from undesirable paralysis. This cannot be taken as an indication that the international legal order might be minded to tolerate the commission of (serious) unlawful acts. Rather, immunities must be seen as indicating that this system seeks to entrust the punishment of such acts to other authorities, through other mechanisms. The effectiveness of that punishment is no less in doubt in that the immunity held by foreign representatives is functional in nature and there is no statute of limitations on the crimes under international law which are in question here. In this sense, immunities do no more than to protect sovereign powers from foreign interference: they perform a basic systemic function for the international legal order. Thus it is necessary to look beyond both traditional notions justifying immunities and the criticism of immunities based on the supposed obsolescence of sovereignty. Immunities do not exist so much as to protect States regarded as “sovereign”; clearly, they serve first to provide order to a system; they are in that sense systemic. It is far fetched to believe that a fairer and better system could follow from the withdrawal of immunities in cases of violation of jus cogens. The resulting new system could in fact give rise to greater disturbance and injustice than the one it was intended to replace. As C. Tomuschat has said,

“to create an opening in the wall of sovereign immunity would be a fruitless exercise, benefitting international lawyers but hardly their clients . . . to introduce a legal device according to which any country of the world should be competent to adjudicate claims brought by any private person against any third State would be utterly unreasonable . . . A world full of self appointed human rights vigilantes is certainly more a trauma than a vision of paradise . . .”

This passage concerns jurisdictional immunity of States, which some commentators , in opposition to the prevailing practice , would also like to see overridden in cases of serious violations of international law. It is however certain that it is relevant mutatis mutandis to the immunity of foreign representatives from criminal process and that, as the Court is aware, opponents of this latter immunity frequently regard a challenge to it as a step toward the creation of a purported exception to the jurisdictional immunity of States in cases where jus cogens has been violated.


CHAPTER V
THERE IS NO OBLIGATION TO EXERCISE “UNIVERSAL” CRIMINAL JURISDICTION
AS EXTENDED AS THAT CLAIMED IN CASU


74. It would be fruitless for the Respondent to attempt to justify the violation of the DRC’s sovereign rights, as established above, by citing an alleged obligation to exercise “universal” criminal jurisdiction. After emphasizing the singular nature of the jurisdiction claimed by Belgium in this case, the DRC will show three things:

(i) there is no international obligation, whether under treaty law or customary law or pursuant to Security Council resolutions, requiring Belgium to exercise “universal” criminal jurisdiction as broad as that which it claims to be under a duty to exercise in the present case;

(ii) it is not clear that international law grants Belgium unfettered freedom to act as it does;

(iii) at all events, Belgium’s exercise of such “universal” jurisdiction violates the DRC’s sovereign rights.

1. The singular nature of Belgium’s “universal” jurisdiction

75. What exactly is the extent of the “universal” jurisdiction which Belgium claims to be obliged to exercise? The specific characteristics of this jurisdiction must be clearly identified here because, as the Court will see, Belgium stands apart in this respect from other States ? yet it would not appear to find this surprising.
Neither the Law’s claimed applicability to acts prior to its entry into force nor the exact definition of the offences covered by the Law is directly at issue here; in this connection the legislator employed the terms used in the principal international instruments relevant to the area: the 1949 Geneva Conventions and Additional Protocol I of 1977, the 1948 Convention on the Prevention and Punishment of the Crime of Genocide and the Statute of the future International Criminal Court . Rather, what is important is to note that the Belgian Law makes it possible for anyone, regardless of nationality, who has committed an offence falling within its scope ratione materiae to be subject to prosecution in the criminal courts of the Kingdom. Article 7 of the Law provides:

“The Belgian courts shall have jurisdiction in respect of the offences provided for in the present Law, wheresoever they may have been committed.
For offences committed abroad by a Belgian against a foreigner, neither a complaint by the foreigner or his family nor an official notice from the authority in the country in which the offence has been committed shall be required.”

Thus, ratione personae, it does not matter whether or not the accused has Belgian nationality, whether he committed one of those crimes on the national territory or abroad, whether the victims are Belgians or foreigners, or whether the accused is present on the Kingdom’s territory or resides abroad. The travaux préparatoires of the 1993 Law state that Belgian courts have jurisdiction “even where the alleged offender is not present on Belgian territory” . It is undoubtedly this last point, namely, the fact that it is not necessary for the accused to be present on Belgian territory, which constitutes the most striking feature of the Law. It is this which reveals the intention of Belgian criminal jurisdiction as it were to “export” itself by issuing and internationally circulating arrest warrants, as in the present case. We would emphasize that Minister Yerodia’s case is not the only one extending beyond the Kingdom’s borders which has been referred to Judge Vandermeersch pursuant to the Law; in particular, the press reports that he has received complaints and applications by civil parties against the incumbent President of Rwanda, Mr. Kagame, the ex President of the Islamic Republic of Iran, Mr. Rafsanjani, the ex President of Chad, Hissène Habré, a former Minister of the Interior of King Hassan II, . . . and that prior to the promulgation of the 1999 Law he even issued an international warrant against the Chilean ex Head of State Mr. Pinochet, doing so on the basis of a purported “international custom” .

The question which therefore arises is whether the Belgian State is required under international law to exercise such broad “universal” criminal jurisdiction, that is, jurisdiction claimed to be exercisable even against persons not present on the national territory. There can be no question, in the context of the dispute before the Court, of a more general inquiry into the possible existence of an international obligation to prosecute individuals accused of crimes under international law who are present on the national territory. That is not the situation presented by the facts underlying the dispute of which the Court is seised.

2. There is no conventional obligation to exercise such extended “universal” jurisdiction

A. War crimes

76. As for war crimes committed during an international armed conflict, the basis of the mandatory exercise of universal jurisdiction would be found in Articles 49 / 50 / 129 / 146 of the 1949 Geneva Conventions , which provide:

“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 . . . breaches, and shall bring such persons, regardless of their nationality, before its own courts.”

While it cannot be denied that this provision entails an obligation to prosecute the crimes covered by these Conventions, regardless of the perpetrator’s nationality, it is nevertheless difficult to take the view other than that this obligation is limited to cases where the accused are present on the territory of the State bearing that obligation. Indeed, it is hard to see how the obligation to “search for” (“rechercher”) these persons, with a view to punishing them, can be carried out outside the national territory of a High Contracting Party. That interpretation would fly in the face of the usual meaning of the words used and those words surely cannot be taken to mean that each Party to the Geneva Conventions finds therein the basis for permission to conduct on the territory of all other Parties the judicial “searches” (“recherches”) necessary for effective punishment of the crimes proscribed by those Conventions. Nothing in either the negotiations for the Conventions or their application would suggest such a meaning, which would conflict with the clear terms used. The English version of the Conventions employs the verb “to search for”, which clearly refers to the physical, rather than intellectual, endeavour of “seeking out” on the national territory persons suspected of having committed those crimes.

“To search for” is not at all the same as “to do research about” and, with respect to State authorities, necessarily refers to their own physical territory.
It is thus only those States on whose territories persons accused of war crimes are present which are under an obligation, pursuant to this common Article, to “search for” them there for the purpose of trying them in their criminal courts. No obligation to punish these crimes lies on States on whose territory such persons are not present. This is confirmed further on in the Article common to the four Conventions, which states that each High Contracting Party

“may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case”.

The fact that authority is conferred upon the State actually arresting the accused to extradite him to another High Contracting Party with prima facie jurisdiction shows that the High Contracting Parties realized that, notwithstanding the obligation imposed, the courts of the State on whose territory the accused was arrested were not necessarily the best placed to try him. Nonetheless, this search for a forum conveniens shows that the obligation to “search for”, arrest and try can lie only on the State where the accused is present, as extradition implies first that the person has been arrested on the territory of the Party under the obligation to “search for” him. The commentary by the ICRC on this common Article points out that the verb “to search for” “imposes an active duty”, but only for the Contracting Party which “realizes that there is on its territory a person who has committed such a breach” .

77. No comparable obligation is explicitly laid down in respect of grave breaches committed in connection with a non international armed conflict. Yet note should be taken that, even in cases where the accused are not present on the national territory, the Law of 16 June 1993 extends Belgian courts’ jurisdiction to crimes prohibited during internal armed conflicts. This extended jurisdiction does not, however, correspond to any specific treaty obligation.

B. Crime of genocide

78. As for the crime of genocide, Article VI of the Convention of 9 December 1948 on the Prevention and Punishment of the Crime of Genocide provides:
“Persons charged with genocide or any of the other acts enumerated in Article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.”
As Senator ? and distinguished international lawyer ? Henri Rolin stated at the time of the Belgian Parliament’s assent to the 1948 Convention, this Article imposes the obligation to prosecute perpetrators of genocide on the State loci delicti and on it alone, without however barring other countries from doing so too . If the accused are not present on the territory of that State, it must request their extradition. The requested State, on whose territory the accused are present, must in principle honour the request, since the Contracting Parties have agreed that the crimes covered by the 1948 Convention would not be considered “political crimes for the purposes of extradition” (Art. VII). That State, which is not that on whose territory the genocide was committed, is not, however, required by the terms of the 1948 Convention to bring before its own domestic courts persons accused of any of the acts referred to therein, even though it would be in a position to do so.
Nor, would it seem, has the Court interpreted the 1948 Convention any differently. Thus, its Judgment of 11 July 1996 states:

“Lastly, as to the territorial problems linked to the application of the Convention, the Court would point out that the only provision relevant to this, Article VI, merely provides for persons accused of one of the acts prohibited by the Convention to ‘be tried by a competent tribunal of the State in the territory of which the act was committed . . .’.”

True, the Court, after recalling what it had said in its Opinion of 28 May 1951 concerning the object and purpose of the Convention, went on to state:
“It follows that the rights and obligations enshrined by the 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” .

These statements cannot however be interpreted as meaning that all States, even those non loci delicti, are under an obligation to bring to trial before their own criminal courts all persons accused of having committed any of the acts referred to in the Convention. They must be read in the light of the passage quoted by the Court from its Opinion of 28 May 1951 and of the first sentence of the excerpt from its Judgment of 11 July 1996. The Court points out on each of those occasions, notably by reference to the notion of rights and obligations erga omnes, that all States, even those not party to the 1948 Convention, are bound by the principles underlying that Convention and that the universal condemnation of genocide which it conveys obliges them all to co operate in preventing and punishing that crime.

That cannot however mean that all States, indiscriminately, bear the same obligation to punish perpetrators of genocide. The effective punishment of genocide is ensured by the obligation placed on the State loci delicti ? and on it alone ? to punish those responsible and by prohibiting States on whose territories those accused of that crime are present to refuse to extradite them on political grounds. It is in this sense, as the Court rightly states, that the obligation to prevent and punish genocide “is not territorially limited by the Convention”. It follows from the proper application of the principles laid down in the Convention that individuals accused of that crime are not safe anywhere, on any State’s territory, from criminal prosecution brought by the State loci delicti or by the International Criminal Court, the establishment of which was already contemplated by the 1948 Convention.

C. Crimes against humanity

79. As for crimes against humanity, no specific treaty provision exists in respect of the point raised. Admittedly, the sixth recital in the preamble to the Rome Statute of the future International Criminal Court provides “that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes”, but this provision, which is stated to be “recalled”, cannot serve as evidence of the existence of an obligation incumbent upon every State, without distinction, to punish such crimes even when those accused thereof are not present on its territory. To appreciate this, and irrespective of the fact that this is a treaty which has not yet entered into force, one need only note the reference in the Convention to the notion of “a State which has jurisdiction over [the case]” (Article 17). This concept is not defined anywhere in the Statute. It is clear, however, that there would be no point in using it if all States bore an obligation to assert universal jurisdiction to punish the crimes defined in the Court’s Statute.

80. As for torture, Article 5 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 -to which Belgium became a party only after enactment of the Law of 10 February 1999 -states:

“1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases:

(a) When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State;
(b) When the alleged offender is a national of that State;
(c) When the victim is a national of that State if that State considers it appropriate.

2. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in paragraph 1 of this article.

3. This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law.”

In addition to the effort to identify a sort of forum conveniens, it clearly follows from this Article that, aside from the traditional criteria of territoriality or active or passive nationality (here left to the determination of each State ) set out in paragraph 1, the Convention is aimed at limiting the obligation borne by the States Parties to exercise “universal” jurisdiction solely to the case where the accused “is present in any territory under [their] jurisdiction”. Furthermore, it must be observed that this obligation to try exists only if the State in question has decided not to extradite the accused to a State having jurisdiction under the traditional criteria specified in paragraph 1. Thus, this provision provides no basis for the obligation which the Respondent claims to be under to act as it has in the present case, namely to extend the exercise of its criminal jurisdiction to an individual not present on its territory. True, the terms of paragraph 3 of this Article do not appear to bar the assertion of such criminal jurisdiction. We shall return later to this apparent freedom.

81. Article 5 of the 1984 Convention against Torture provides an opportunity to recall, as Judges Evensen, Tarassov, Guillaume and Aguilar Mawdsley pointed out in their joint declaration appended to the Order of 14 April 1992 in the Lockerbie case, that “in general international law there is no obligation to prosecute in default of extradition” . In other words, any request for extradition which Belgium might make would in no way give rise to an obligation on the part of the DRC to prosecute in its own courts the individuals sought to be extradited if it were to reject the request. This obligation could derive only from pre existing obligations on the DRC. More fundamentally, the treaty based obligation aut dedere aut judicare, incorporated in “[t]en international conventions adopted under the aegis of the United Nations . . . since 1970” , emphasizes the fact that, except where the traditional criteria of criminal jurisdiction are satisfied, the obligation to try persons accused of the offences provided for in those conventions is borne solely by the State on whose territory they are present and only if that State chooses not to extradite them to a State having jurisdiction in the case pursuant to one of those traditional criteria (territoriality, active/passive personality). It is clear that no obligation to prosecute can exist for a State on whose territory the accused are not present, since the question of their extradition only arises after they have been apprehended on a national territory and an obligation to try them arises for the forum State only if extradition has been refused. The aut dedere aut judicare rule thus provides a basis for mandatory criminal jurisdiction, by way of exception to the general law, solely for the State on whose territory the accused are present and on condition that they are not extradited by that State to a forum that is more conveniens.

3. There is no customary obligation to exercise such extended “universal” jurisdiction

82. Does the alleged international obligation which the Respondent believes it is fulfilling in the present case exist in customary law? The treaty law analysed above is clearly of no help in proving the existence of a general, settled practice accepted as a rule of law in this regard, because, as has just been shown, that law does not enshrine such a broad obligation. The texts aimed at codifying general international law, such as the Draft Code of Offences against the Peace and Security of Mankind adopted in 1996 by the International Law Commission, restate the conclusions presented above: the obligation to arrest and try individuals accused of certain international crimes is borne solely by the State on whose territory they are apprehended and only if that State declines to extradite them to a forum having jurisdiction under the traditional criteria for the exercise of criminal jurisdiction (territoriality; active, or even passive, personality) . It is clear that in such cases extradition must be to a State “normally” having jurisdiction.

83. The Eichmann case, which generated a certain amount of diplomatic friction owing to the circumstances surrounding the abduction in Argentina of the former Nazi officer, does not appear sufficient to form the basis for an international customary rule requiring all States to prosecute foreigners not present in their territory and not having committed in that territory the crimes under international law of which they are accused. It is clear that this case, which remains an isolated one, was the product of singular historical circumstances and that the State of Israel was undeniably a forum conveniens.

84. Finally, the “universal” jurisdiction existing in cases of piracy in no way undermines the points just made, because, while any State may seize a pirate ship on the high seas, only the courts of the State which carried out the “seizure may decide upon the penalties to be imposed” .


4. There is no obligation deriving from Security Council resolutions to exercise
such extended “universal” jurisdiction

85. The various resolutions and statements of the President of the Security Council cited by the Respondent in oral argument on the request for the indication of provisional measures and reproduced in the judges’ folder submitted by it at that time condemn the violations of international humanitarian law committed by the various parties involved in the international armed conflict taking place in the Democratic Republic of the Congo, call upon them to respect that law and to allow the conduct of an international investigation into certain events for the purpose of bringing those responsible to justice. The existence of an obligation on Belgium to issue an international arrest warrant against Mr. Yerodia with a view to prosecuting him in its courts, as it has done in this case, cannot however be inferred from those resolutions. The call to try those responsible for these crimes which is set out in these resolutions is addressed to the States in the region which are involved in the conflict, and to them alone. It should be pointed out here that the Applicant has never denied a duty to indict and try its nationals suspected of having committed violations of international humanitarian law.


5. Is Belgium free to assert and exercise such extended “universal” jurisdiction?

86. Since no international obligation requires Belgium to act as it has in the present case, may it nevertheless be considered that international law grants it unfettered freedom of action in this respect? In the light of the Lotus Judgment delivered by the Permanent Court of International Justice one might at first think so, since general international law would not appear formally to prohibit the assertion of such extended “universal” jurisdiction. In particular, Article 5, paragraph 3, of the 1984 Convention against Torture would suggest this. At best, the 1993 and 1999 Laws could thus be seen as overblown manifestations of the Respondent’s sovereignty. This is somewhat paradoxical, since the Belgian legislator sought by these “extra ordinary” statutes to “pierce the veil”, so to speak, of foreign States’ sovereignty, behind which perpetrators of international crimes were, according to Belgium, being abusively shielded. In truth, rather than combating abuses of sovereignty, these statutes seek to substitute Belgium’s sovereignty for that of the State “naturally” empowered to prosecute the perpetrators of such crimes.

87. In this regard, one is at liberty to doubt the underlying lawfulness of such a claim by a State to authority to prosecute in its criminal courts foreign nationals having committed violations of international humanitarian law abroad, when those individuals are not present on the territory of that State. Such a claim would appear to conflict with both:

(i) the opinio juris deriving from various national legislations allowing the prosecution of foreign perpetrators of crimes under international law committed abroad, and
(ii) the obligation on Belgium, a State which has signed and ratified the Rome Statute establishing the International Criminal Court, to refrain from acts defeating the object and purpose of that treaty.

A. The opinio juris deriving from other legislation

88. As the DRC argued before the Court in its oral statement on 20 November 2000, French law subjects the prosecution and trial in France of individuals accused of crimes punishable under certain international conventions, including the 1984 Convention against Torture cited above (para. 80, above), or of crimes falling within the jurisdiction of the international criminal tribunals set up by the Security Council, to the condition of the presence of those persons in France . It is not without insignificance that this condition was, most sensibly, expressly retained in Laws 95 1 and 96 432, even though a parliamentary amendment had sought to remove it. The rejection of that amendment manifests the opinio juris of the French legislature, which regards as abusive the exercise of “universal” jurisdiction when the accused is not present on the national territory.

89. Canada, another State very active in this area of international law, has recently adopted a “Crimes Against Humanity and War Crimes Act” . Under Article 8 of the Act, the perpetrator of an offence referred to in the Act and committed abroad may be prosecuted for that offence “if”

“(a) at the time the offence is alleged to have been committed,

(i) the person was a Canadian citizen or was employed by Canada in a civilian or military capacity,
(ii) the person was a citizen of a state that was engaged in an armed conflict against Canada, or was employed in a civilian or military capacity by such a state,
(iii) the victim of the alleged offence was a Canadian citizen, or
(iv) the victim of the alleged offence was a citizen of a state that was allied with Canada in an armed conflict; or

(b) after the time the offence is alleged to have been committed, the person is present in Canada” .

This confirms, if any such confirmation were needed, that Canada does not consider itself ? any more indeed than France ? bound by a supposed rule of international law, as the Respondent incorrectly contends to be its own case, to exercise criminal jurisdiction in these areas when a foreign perpetrator of international crimes committed abroad is to be found abroad. On the contrary, this Act indeed confirms that States consider that their criminal courts have jurisdiction over the perpetrators of such crimes committed abroad only if they are present on the national territory.

90. This opinio juris, which is shared by the United Nations Secretary General and further attested to by other countries’ legislation which it is unnecessary to cite here, is readily understandable. First, it is in conformity with the traditional rules in common law countries, where trials and convictions in absentia are unknown. It is significant that the International Criminal Tribunals established by the Security Council, as well as the future International Criminal Court, are governed by the same principles. Thus, the fact that Belgian law does not prohibit trials in absentia and allows convictions in absentia makes it that much more difficult to accept the claim reflected in the 1993 and 1999 Laws of the right to prosecute in Belgian criminal courts foreigners not present in Belgium, given that failure to obtain their extradition would not prevent them from being convicted. Second, this opinio juris reflects States’ desire to establish among themselves a certain order among their criminal jurisdictions reflecting as closely as possible the search for a forum conveniens. Clearly, without rules on conflicts of jurisdiction and on international connexity and litispendency in criminal proceedings, the proliferation of claims to “universal” jurisdiction as extended as that provided for by Belgian law would lead to a “monstrous cacophony” . Such anarchy can be prevented only by requiring the presence of the accused on the territory of the prosecuting State. This condition on the exercise of criminal justice by a State is not simply, let us repeat, a matter of plain common sense. It is also the only one making it possible for all States to exercise their “universal” jurisdiction effectively. Furthermore, it is the only condition required to ensure the effective punishment of international crimes, and respect for it is, in the Applicant’s view, a requirement of the international legal order.

Another issue is whether “universal” jurisdiction can, or even must, be exercised when the accused is present on the territory of the State prosecuting him. That issue is not, however, relevant to the present case (see para. 75, above).

B. The obligation not to defeat the object and purpose of the ICC Statute

91. As formulated in its legislation, Belgium’s “universal” jurisdiction conflicts with the obligation incumbent upon it, as a State having signed and ratified the Rome Statute establishing the International Criminal Court, to refrain from acts which would defeat the object and purpose of that Statute (Article 18 of the Vienna Convention on the Law of Treaties). It is clear that the assertion and exercise of such broad criminal jurisdiction would make it pointless to establish a permanent international criminal court. Since Belgium, pursuant to its legislation, would always be “a State which has jurisdiction over [the case]”, in the words of Article 17 of the Statute, the International Criminal Court would never be able to exercise its criminal jurisdiction. It must be kept in mind that, according to the Preamble and Article 1 of its Statute, the Court is “complementary” (in French: “complémentaire”) to national criminal jurisdictions . This complementarity necessarily presupposes that the future International Criminal Court will be able to try individuals whom the courts of the States party to the Statute cannot try (the problem of immunity discussed above) or over whom they have no jurisdiction. If any one of those States considers itself to have jurisdiction in all circumstances, that complementarity ceases to exist and the establishment of the International Criminal Court ceases to have any meaning or usefulness.

The Respondent will no doubt be surprised by this argument, as it actively participated in negotiating the Rome Statute and its intention in adopting the Law of 10 February 1999 was to give itself a head start in complying with the obligations it would assume upon the entry into force of the Statute. It is to be feared, however, that the Belgian legislator fundamentally misapprehended the “complementary” role of the ICC vis à vis national jurisdictions. The travaux préparatoires of both the Law of 10 February 1999, in question here, and the Law of 25 May 2000 assenting to the Statute of the ICC show that the Belgian legislator viewed the future International Criminal Court not as “complementary” but as “subsidiary” to national jurisdictions. The misunderstanding is demonstrated that much more clearly by the fact that the travaux préparatoires sometimes use these two terms interchangeably, as if they were synonymous . It is, however, evident that the alleged “subsidiary” status of the ICC vis à vis national criminal jurisdictions is not at all the same thing as the “complementary” role assigned to it by the Statute. If the Court were “subsidiary”, not “complementary”, its role would be limited to cases where States parties, being in any event competent, decided not to act . . . which would surely be in conflict with their alleged “duty” to prosecute “universally”, and so broad based a manner, crimes under international law. By contrast, the Court’s “complementarity” means that it is there to do what States cannot do, are not cut out to do, or do not do well. The Belgian legislator’s misapprehension, contrary to the object and purpose of the ICC Statute though it is, is nevertheless readily understandable given the scope he seeks to confer upon his own “universal” jurisdiction: it is clear according to his “logic” that the future Court is bound to play a wholly “subsidiary” role vis à vis national courts . This “logic” clearly not being that of the Rome Convention, which Belgium has signed and ratified, it should be observed that Belgium is under a duty, within the meaning of Article 18 of the Vienna Convention on the Law of Treaties, to refrain from acts which defeat the object and purpose of that treaty pending its entry into force. It should also be emphasized that the DRC signed the Rome Statute on 8 September 2000.


6. Unlawful exercise of an alleged freedom

92. In any event, even if it were considered that Belgium, although not under any obligation to exercise such broad “universal” criminal jurisdiction, remains free to claim such jurisdiction, it would still be necessary to find that the manner in which it is exercising that jurisdiction in casu results in a flagrant violation of international law injuring the DRC, namely the infringement of the absolute inviolability and immunity from criminal process of its Minister for Foreign Affairs (paras. 51 et seq., above).


PART FOUR

ADDITIONAL INFORMATION CONCERNING THE SUBJECT MATTER
OF THE CLAIM


93. As stated in the introduction to this Memorial (para. 7, above), the DRC is asking the Court to adjudge and declare:

- that, by issuing and circulating internationally the arrest warrant of 11 April 2000 against Mr. Abdulaye Yerodia Ndombasi, Belgium committed a violation in regard
to the DRC of the rule of customary international law concerning the absolute inviolability and immunity from criminal process of incumbent foreign ministers;

- that a formal finding by the Court of the unlawfulness of that act constitutes an appropriate form of satisfaction, providing reparation for the consequent moral injury to the DRC;

- that the violation of international law underlying the issue and international circulation of the arrest warrant of 11 April 2000 precludes any State, including Belgium, from executing it;

- that Belgium shall be required to recall and cancel the arrest warrant of 11 April 2000 and to inform the foreign authorities to whom the warrant was circulated that, further to the Court’s Judgment, Belgium renounces its request for their co operation in executing the unlawful warrant.

94. There is no need to dwell on the request for a formal finding by the Court as to the unlawful act of which Belgium is accused. This form of satisfaction, a means of reparation for the moral injury to the DRC’s sovereignty, is well known in international law.

95. On the other hand, it is useful to spend a moment on the claims concerning the effect on the disputed arrest warrant of the unlawful act of which Belgium is accused. The flagrant unlawfulness underlying its issue and international circulation render the arrest warrant of 11 April 2000 irreparably null and void, so that no action, whether by Belgium or any other State, may be taken in execution of it. It logically follows that Belgium must cancel this unlawful instrument and inform the States whose co operation it sought in executing it that their assistance is no longer requested. The claim therefore aims at completely undoing the unlawful act and its consequences, and restoring the original state of affairs, which, moreover, the satisfaction being sought is not sufficient to accomplish.

It cannot be maintained that the change in, and subsequent termination of, Mr. Yerodia’s ministerial appointment in themselves put an end to Belgium’s unlawful act, so that the disputed warrant is no longer unlawful and there is accordingly no need to cancel it and so inform the foreign authorities whose co operation was sought in executing it. The fact remains that the arrest warrant, at the time it was issued and circulated, was the product of a flagrant violation of a basic rule of public international law. Since the instrument was inherently unlawful, the illegality cannot be extinguished while said instrument remains in existence. Furthermore, the question is not so much whether the wrongful act perpetrated by Belgium is continuing and must cease, but rather of determining the concrete measures to be imposed on the party responsible in order to restore the position as it would have existed had that party not committed its wrongful act. It is clear in this regard that there can be no erasure of the consequences of Belgium’s wrongful act unless the inherently unlawful arrest warrant is recalled and cancelled and Belgium informs the foreign authorities whose co operation was sought that, in the light of the Court’s finding that the warrant was unlawful, Belgium is withdrawing its request for execution.

* * *


96. The Applicant reserves the right to put forward any additional legal grounds and arguments during the oral proceedings. It also reserves the right to bring further proceedings before the Court concerning any new dispute which may arise between it and Belgium regarding the issue and international circulation of any new warrant for the arrest of Mr. Abdulaye Yerodia Ndombasi.

* * *

SUBMISSIONS

97. In light of the facts and arguments set out above, the Government of the Democratic Republic of the Congo requests the Court to adjudge and declare that:

1. by issuing and internationally circulating the arrest warrant of 11 April 2000 against Mr. Abdulaye Yerodia Ndombasi, Belgium committed a violation in regard to the DRC of the rule of customary international law concerning the absolute inviolability and immunity from criminal process of incumbent foreign ministers;

2. a formal finding by the Court of the unlawfulness of that act constitutes an appropriate form of satisfaction, providing reparation for the consequent moral injury to the DRC;

3. the violation of international law underlying the issue and international circulation of the arrest warrant of 11 April 2000 precludes any State, including Belgium, from executing it;

4. Belgium shall be required to recall and cancel the arrest warrant of 11 April 2000 and to inform the foreign authorities to whom the warrant was circulated that, further to the Court’s Judgment, Belgium renounces its request for their co operation in executing the unlawful warrant.

(Signed) Jacques MASANGU A MWANZA.
Agent of the Government of the
Democratic Republic of the Congo

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