C O U R INTERNATIONALE D E JUSTICE RECUEIL DES ARRÊTS AVIS CONSULTATIFS ET ORDONNANCES AFFAIRE REILATIVE AU MANDAT D'ARRÊT DU I I AVRIL 2000 RÉPUBLIQUEDÉMOCRATIQUE DU CONGO c BELGIQUE INTERNATIONAL C O U R T O F JUSTICE IiEPORTS O F JUDGMENTS ADVI SORY OPINIONS AND OItDERS CASE CONCE RNING THE ARRE ST WARRANT OF 11 APRIL 2000 DEMOCRATIC REPUBLIC O F THE CONGO v BELGIUM JUDGMENT OF 14 FEBRUARY 2002 Mode officiel de citation Mandut d'urrêt du I l avril 2000 République dérnocrutique du Congo c Belgique arrêt C I J Recueil 2002 p 3 Officia1 citation Avrest Warrant of 1I April2000 Democrutic Republic of the Congo v Belgium Judgment I C J Reports 2002 p 3 e n t e ISSN 0074-4441 ISBN 92- 1-070940-3 Sales number 837 1 MANDAT D'ARRET DU 1 1 AVRIL 2000 RÉPUBLIQUE DÉMOCRATIQUE DU CONGO c BELGIQUE ARREST WARRANT O F 11 APF IL 2000 DEMOCRATIC REPUBLIC O F THE C O K G 0 v BELGIUM 14 FEBRUARY 2002 JUDGMENT INTEIRNATIONAL COURT O F IUSTICE Y EAR 2002 2002 14 February General List No 121 14 February 2002 CASE CONCERNING THE ARREST WARRANT OF 11 APRIL 2000 DEMOCRATIC REPUBLIC O F THE CONGO v BELGIUM Fuct 7 of the case - Issue hy a Belgiun investigatiny rnagistrate itf' an internutionul arrest ivurrunt in absentia uguinst the irzcumbent Minister fir Foreign A ffair s of the Congo ulleging grave hreaclzes i f th Ceneva convention of 1949 und of' the Additional Protocols thereto and cr mes against lzuwiunitj Internutionul circzilutiorî of' urrext tvcwrunt through Interpol - Person oni crt1c d slrhsequerzt ceusing to hold office us Mini ste for Foreign Afjcairs - First objection of Belgiurn - Juris l'ictionof the Court - Statute of' the Court Article 36 paragruplî 2 - Euistence f a li galdispute betiveen the Parties crt the tiine of' filing of' the Appliccltiori N1 stituting procerdings Events s lhsrq retzt to the filing f' the Apl lic utionclo not clep ivethe Court of' juri stliction Second objection of Belgizirn i2footrie s c Fuct thut the person conc c rned had cru seri to holc ofji'ce us Minister for Foreign Affi irs does rlot put un end to the dixpute hetii3eetz the Parties und ciues not cleprlve the Applicutiorî of' i f s objc7ct Third objection of i5elgiuni - Adrnissihility - Facfs underlying the Application instituting procet ding rzot chringed in 1 tvay th trun -fi rrîzedthe dispute originull hrought h f i r ethe Court into unother rchic i is d$rercnt in churuc ter - - - Fourth ohjection of' Belgiuni - Admis sihility - Ccngo not acting in the corztest of'protection of' one c f' its nationuls Inupplic hilitj of' rules reluting to eshc rstiotz of' loccil rc-riiedirs S r h i d i unrgurîzent r of Belginnz Non ultra peti a rule - Cluim in Applic cztion irlstituting proceeeling that Belgiui z' s cluirn to esercisr LI ur ii rstrl jurisdiction in i ssuing the arrest it arrunt i s corztrury to ir terncrtionrrl 1u1v Cluim r otnicrcic iii fïrzrll s hr ii s siorz of' the Corigo - Court rrzahletu rule on tlîat ques- - - ARREST WARRANT 4 tion in the operative part of its Judgment but not prevented from dealing with certain aspects of the question in the reasoning of its Judgment Immunity from criminal jurisdiction in other States and also inviolability of an incumbent Minister for Foreign Affairs w Vienna Convention on Diplomatic Relations oflb April 1961 preamble Article 32 7 Vienna Convention on Con- sular Relations of24 April 1963 7 New York Convention on Special Missions of8 December 1969 Article 21 paragraph 2 Customary international law rules Nature of the functions exercised by a Minister for Foreign Affairs 7 Functions such that throughout the duration ofhis or her of ce a Minister or Foreign Affairs when abroad enjoys full immunity front criminal jurisdiction and inviolability No distinction in this context between acts performed in an o icial capacity and those claimed to have been performed in a private capacity No exception to immunity from criminal jurisdiction and inviolability where an incumbent Minister for Foreign Affairs suspected of having committed war crimes or crimes against humanity 7 Distinction between jurisdiction of national courts and jurisdictional immunities 7 Distinction between immunity from jurisdiction and impunity Issuing ofarrest warrant intended to enable the arrest on Belgian territory of an incumbent Minister for Foreign Affairs Mere issuing of warrant afailure to respect the immunity and inviolability of Minister for Foreign Affairs 7 Pur- pose of the international circulation of the arrest warrant to establish a legal basis for the arrest of Minister for Foreign A airs abroad and his subsequent extradition to Belgium 7 International circulation of the warrant afailure to respect the immunity and inviolability of Minister for Foreign Affairs Remedies sought by the Congo 7 Finding by the Court of international responsibility of Belgium making good the moral injury complained of by the Congo 7 Belgium required by means of its ot-vn choosing to cancel the warrant in question and so inform the authorities to whom it was circulated JUDGMENT Present President Vice-President Judges ODA RANJEVA HERCZEGH FLEISCHHAUER KOROMA VERESHCHETIN HIGGINS PARRA- ARANGUREN KOOIJMANS REZEK AL-KHASAWNEH Judges ad hoc BULA-BULA VAN DEN Registrar COUVREUR In the case concerning the arrest warrant of 11 April 2000 between the Democratic Republic of the Congo represented by H E Mr Jacques Masangu-a-Mwanza Ambassldor Extraordinary and Plenipotentiary of the Democratic Republic of the Congo to the Kingdom of the Netherlands as Agent H E Mr Ngele Masudi Minister of Justice and Keeper of the Seals Maître Kosisaka Kombe Legal Adviser to the Pr sidencyof the Republic Mr François Rigaux Professor Emeritus at the Catholic University of Louvain Ms Monique Chemillier-Gendreau Professor at the University of Paris VI1 Denis Diderot Mr Pierre d'Argent Chargé de cours Catholic Uiiiversity of Louvain Mr Moka N'Golo Bâtonnier Mr Djeina Wembou Professor at the University of Abidjan as Counsel and Advocates Mr Mazyambo Mirkengo Legal Adviser to the Ministry of Justice as Counsellor the Kingdom of Belgium represented by Mr Jan Devadder Director-General Legal Matters Ministry of Foreign Affairs as Agent Mr Eric David Professor of Public International Law Université libre de Bruxelles Mr Daniel Bethlehem Barrister Bar of England aiid Wales Fellow of Clare Hall and Deputy Director of the Lauterpacht Research Centre for International Law Uiniversity of Cambridge as Counsel and Advocates H E Baron Olivier Gillès de Pélichy Permanent Rcpresentative of the Kingdom of Belgium to the Organization for the Prohibition of Chemical Weapons responsible for relations with the International Court of Justice Mr Claude Debrulle Director-General Criminal Legislation and Human Rights Ministry of Justice Mr Pierre Morlet Advocate-General Brussels Cour d'Appel Mr Wouter Detavernier Deputy Counsellor Cirectorate-General Legal Matters Ministr y of Foreign Affairs Mr Rodney Neufeld Research Associate Lauterpacht Research Centre for International Law University of Cambridge Mr Tom Vanderhaeghe Assistant at the Universi é libre de Bruxelles T H ECOUKT composed as above after deliberation tlrlivrrs tllr fi lloiviilg Judgnient 1 On 17 October 2000 the Democratic Republic c fthe Congo hereinafter referred to as the Congo filed in the Registry of he Court an Application instituting proceedings against the Kingdom of Belgi m hereinafter referred to as Belgium in respect of a dispute concerning an 'international arrest warrant issued on 11 April 2000 by a Belgian investigating judge against the Minister for Foreign Affairs in office of the Democratic Republic of the Congo Mr Abdulaye Yerodia Ndombasi In that Application the Congo contended that Iielgium had violated the principle that a State may not exercise its authority on the territory of another State the principle of sovereign equality among al1 Members of the United Nations as laid dowii in Article 2 paragraph 1 of the Charter of the United Nations as well as the diplomatic immunity of the Minister for Foreign Affairs of a sovereign State as recognized by the jurisprudence of the Court and following from Article 41 paragraph 2 of the Vienna Convention of 18 April 1961 on Diplomatic Relations In order to found the Court's jurisdiction the Coiigo invoked in the aforementioned Application the fact that Belgium ha d a cepted the jurisdiction of the Court and in so Far as may be required the aforementioned Application signifie d acceptance of that jurisdiction by the De nocratic Republic of the Congo 2 Pursuant to Article 40 paragraph 2 of the Starute the Application was forthwith communicated to the Government of Belgiiim by the Registrar and in accordance with paragraph 3 of that Article al1 States entitled to appear before the Court were notified of the Application 3 Since the Court included upon the Bench no jiidge of the nationality of either of the Parties each Party proceeded to exercise the right conferred by Article 31 paragraph 3 of the Statute to choose a judge ad hoc to sit in the case the Congo chose Mr Sayeman Bula-Bula and Belgium Ms Christine Van den Wyngaert 4 On 17 October 2000 the day on which the P pplication was filed the Government of the Congo also filed in the Registry of the Court a request for the indication of a provisional measure based on AI ticle 41 of the Statute of the Court At the hearings on that request Belgium l'or its part asked that the case be removed froni the List By Order of 8 December 2000 the Court on the ont hand rejected Belgium's request that the case be removed from the List and c n the other held that the circumstances as they then presented themselves to tl-e Court were not such as to require the exercisi of its power under Article 41 of the Statute to indicate provisional measures In the same Order the Cour also held that it was desirable that the issues before the Court should be d' termined as soon as possible and that it was therefore appropriate to ensiire that a decision on the Congo's Application be reached with al1 expedition 5 By Order of 1 3 December 2000 the President of the Court taking account of the agreement of the Parties as expresse1 at a meeting held with their Agents on 8 December 2000 fixed time-limits for the filing of a Memorial by the Congo and of a Counter-Memorial by Belgiun addressing both issues of jurisdiction and admissibility and the merits By Orders of 14 March 2001 and 12 April 2001 thi se time-limits taking account of the reasons given by the Congo and the agreement of the Parties were successively extended The Memorial of the Corigo was filed on 16 May 2001 within the time-limit thus finally prescribed 6 By Order of 27 rune 2001 the Court on the o n i hand rejected a request by Belgium for authorization in derogation from th previous Orders of the President of the Court to submit preliminary objecti sns involving suspension of the proceedings on the merits and on the other exiended the time-limit prescribed in the Order of 12 April 2001 for the filing by Belgium of a CounterMemorial addressing both questions of jurisdiction and admissibility and the merits The Counter-Memorial of Belgium was filecl on 28 September 2001 within the time-limit thus extended 7 Pursuant to Article 53 paragraph 2 of the Rulcs the Court after ascertaining the views of the Parties decided that copies oi'the pleadings and documents annexed would be made available to the public it the opening of the oral proceedings 8 Public hearings vtere held from 15 to 19 October 2001 at which the Court heard the oral arguments and replies of For tlîe Congo H E Mr Jacques Masangu-a-Mwanza H E Mr Ngele Masudi Maître Kosisaka Kombe Mr François Rigaux Ms IMonique Chemillier-Gendreau Mr Pierre d'Argent For Belgiunî Mr Jan Devadder Mr Daniel Bethlehem Mr Eric David 9 At the hearings Members of the Court put cuestions to Belgium to which replies were given orally or in writing in accsrdance with Article 61 paragraph 4 of the Rules of Court The Congo provided its written comments on the reply that was given in writing to one of the e questions pursuant to Article 72 of the Rules of Court 10 In its Application the Congo formulated the decision requested in the following terms The Court is requested to declare that the Kingdom of Belgium shall annul the international arrest warrant issued on 1 I April2000 by a Belgian investigating jud ge Mr Vandermeersch of tkie Brussels Tribunal de première instance against the Minister for Foreign Affairs in office of the Democratic Repiiblic of the Congo Mr Abdu aye Yerodia Ndombasi seeking his provisional detention pending a requc st for extradition to Belgium for alleged crimes constituting 'serious vislations of international humanitarian law' that warrant having been circulated by the judge to al1 States including ithe Democratic Republic of the Congo which received it on 12 July 2000 1 1 In the course of the written proceedings the fo lowing submissions were presented by the Parties On hehalf' of' the Governrnetzt of' tlze Congo in the Memorial In light of the facts and arguments set out al ove the Government of the Democratic R epublic of the Congo requests ihe Court to adjudge and declare that 1 by issuing and internationally circulating the rrest warrant of 11 April 2000 against Mr Abdulaye Yerodia Ndombasi Belgium committed a violation in regard to the D R C of the rule of customary international law concerning the absolute inviolability and immunity from criminal process of inciumbent foreign ministers 2 a forma1 finding by the Court of the unlawfiilness of that act constitutes an appropriate form of satisfaction providing reparation for the consequent moral injury to the D R C 3 the violation o'f international law underlying tlie issue and international circulation of the arrest warrant of 11 April 2 000 precludes any State including Belgium from executing it 4 Belgium shall be required to recall and cantel the arrest warrant of 11 April 2000 and to inform the foreign auth ritiesto whom the warrant was circulated that following the Coitrt's Judgment Belgium renounces its request for their CO-operationi l executing the unlawful warrant On behaif qf the Governnlent of'Brlgiurn in the Counter-Memorial For the reasons stated in Part II of this Co nter-Memorial Belgium requests the Couirt as a preliminary matter to iidjudge and declare that the Court lacks jiirisdiction in this case andlor that the application by the Democratic Repuiblic of the Congo against Belgium is inadmissible If contrary to the preceding submission the Court concludes that it does have jurisdiction in this case and that the application by the Democratic Republic of the Congo is admissible Belgiiim requests the Court to reject the submisisions of the Democratic Repuhlic of the Congo on the merits of the case and to dismiss the application 12 At the oral proceedings the following submissiclns were presented by the Parties On hehcilf of the Governnlent o f t h e Congo In light of the facts and arguments set out during the written and oral proceedings the Government of the Democratic Republic of the Congo requests the Court to adjudge and declare that 1 by issuing aiid internationally circulating the arrest warrant of 11 April 2000 against Mr Abdulaye Yerodia IJdombasi Belgium committed a violaition in regard to the Democrati Republic of the Congo of the rule of customary international law concerning the absolute inviolability and immunity from criminal process of incumbent foreign ministers in so doing it violated the princi1 le of sovereign equality among States 2 a foi-mal finding by the Court of the unlawfiilness of that act constitutes an apprc priateform of satisfaction providing reparation for the consequent moral injury to the Democratic Republic of the Congo 3 the violations of international law underlyin4 the issue and international circulatiion of the arrest warrant of 11 April 2000 preclude 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 war- rant was circ ilatedthat Belgium renounces its request for their cooperation in executing the unlawful warrant On hrhulf i f 't l i Governnîrnt of' Belgiuni For the reasons stated in the Counter-Memorial of Belgium and in its oral submissions Belgium requests the Court as a preliminary matter to adjudge and declare that the Court lacks jurisdi' tion in this case andlor that the Application by the Democratic Repubtic of the Congo against Belgium is inadmissible If contrary to the submissions of Belgium wiih regard to the Court's jurisdiction and tlhe admissibility of the Applicat on the Court concludes that it does have jurisdiction in this case and that the Application by the Democratic Republic of the Congo is admissib e Belgium requests the Court to reject the submissions of the Democratii Republic of the Congo on the merits of the case and to dismiss the Appication 13 O n 11 April 2 000 a n investigating judge 01' the Brussels Tribunal de première instance issued an international arrest warrant in absentiu against Mr Abdulaye Yerodia Ndombasi charging him as perpetrator o r co-perpetrator with offences constituting grave breaches of the Geneva Conventions of 1949 and of the Additional Protocols thereto and with crimes against humanity At the tiine when the arrest warrant was issuecl Mr Yerodia was the Minister for Foreign Affairs of the Congo 14 The arrest warrant was transmitted to the Congo on 7 June 2000 being received by the Congolese authorities on l July 2000 According to Belgium the warrant was at the same time trinsmitted to the International Criminal Police Organization Interl ol an organization whose function is ta' enhance and facilitate cross border criminal police co-operation worldwide through the latter it vas circulated internationally 15 In the arrest warrant Mr Yerodia is accused of having made various speeches inciting racial hatred during the month of August 1998 The crimes with which Mr Yerodia was charged were punishable in Belgium under the Law of 16 June 1993 concerning the Punishment of Grave Breaches of the International Geneva Conventions of 12 August 1949 and of Protocols 1 and II of 8 June 1977 A iditional Thereto as amended by the Law of 10 February 1999 concerning the Punishment of Serious Violations of International Humanitarian Law hereinafter referred to as the Elelgian Law Article 7 of the B elgian Law provides that The Belgian courts shall have jurisdiction in respect of the offences provlded for in the present Law wheresoever they may have been cornmittecl In the present case according to Belgium the cornplaints that initiatcd the proceedings as a result of which the arrest warrant was issued emanated from 12 individuals al1 resident in Belgium five of whom were of Belgian nationality It is not contested by Belgiun however that th alleged acts to which the arrest warrant relates were committed outside Belgian territory that Mr Yerodia was ncit a Belgian national at the time of those acts and that Mr Yerodia wals not in Belgian territory at ihe time that the arrest warrant was issued and circulated That no Belgian nationals were victims of the violence that was said to have resultrd from Mr Yerodia's alleged offences was also uncontested Article 5 paragraph 3 of the Belgian Law further provides that ilmmunity attachirig to the official capacity of t person shall not prevent the application of the present Law 16 At the hearing Belgium further claimed th it it offered to entrust the case to the comptent authorities of the Gong for enquiry and possible prosecution and referred to a certain nu nberof steps which it claimed to have taken in this regard from September 2000 that is before the filing of the Application instituting proceedirigs The Congo for its part stated the following We have scant infornation concerning the form of these Belgian proposals It added tha these proposals appear to have been made very belatedly namely ujter an arrest warrant against Mr Yerodia had been issued 17 On 17 October 2000 the Congo filed in the Registry an Application instituting the present proceedings see paragi aph 1 above in which the Court was requested to declare that the Kingdom of Belgium shall annul the international arrest warrant issued o i11 April 2000 The Congo relied in its 4pplication on two separate legal grounds First it claimed that tlhe universal jurisdiction that the 13elgian State attributes to itself under Article 7 of the Law in question constituted a v iolation of the principle that a State may not exercise its authority on the territory of anothei- State and of the principle of sovereign equality among al1 Members of the United hations as laid down in Article 2 paragraph 1 of the Charter of the United Nations Secondly it claimed that tlhe non-recognition on the basis of Article 5 of the Belgian Law of the immunit of a Minister for Foreign Affairs in officc constituted a v iolation of the diplomatic immunity of the Minister for Foreign Affairs of a so ereignState as recognized by the jurispriudence of the Court and foll3wing from Article 41 paragraph 2 of the Vienna Convention of 18 A r i l1961 on Diplornatic Relations 18 On the same day that it filed its Application instituting proceedings the Congo submitted a request to the Court for the indication of a provisional measure under Article 41 of the Statute of the Court During the hearings devoted to consideration of that request the Court was informed that in November 2000 a ministerial rejhuffle had taken place in the Congo folloviiing which Mr Yerodia had zeased to hold office as Minister for Foreigri Affairs and had been entrusted with the portfolio of Minister of Education Belgium accordingly cla medthat the Congo's Application had become moot and asked the Coiirt as has already been recalled to remove the case from the List By Order of 8 December 2000 the Court rejected both Belgium's submissions to that effect and also the Congo's request for the indication of provisional measures see paragraph 4 above 19 From mid-April2001 with the formation of a new Government in the Congo Mr Yerodia ceased to hold the post f Minister of Education He no longer holds any ministerial office today 20 On 12 September 2001 the Belgian Natiorial Central Bureau of Interpol requested the Interpol General Secretariat to issue a Red Notice in respect of Mr Yerodia Such notices concern infiividuals whose arrest is requested with a view to extradition On 19 October 2001 at the public sittings held to hear the oral arguments of the Parti-s in the case Belgium informed the Court that Interpol had responded on 27 September 2001 with a request for additional information and that no Red Notice had yet been circulated 21 Although the 4pplication of the Congo ortginally advanced two separate legal groundls see paragraph 17 above I he submissions of the Congo in its Memorial and the final submissions which it presented at the end of the oral proceedings refer only to a violatio 1 in regard to the Congo of the rule of customary international law cl ncerningthe absolute inviolability and immunity from criminal process of incumbent foreign ministers see paragraphs 1 1 and 12 above 22 In their written pleadings and in oral argument the Parties addressed issues of jurisdiction and admissibility as well as the merits see paragraphs 5 and 6 above In this connection 13elgium raised certain objections which the Court will begin by addressiiig 23 The first objection presented by Belgium reiids as follows That in the light of the fact that Mr Yerodia Ndombasi is no longer either Minister for Foreign Affairs of the Congo or a minister occupying any other position in the Government of the Congo there iij no longer a 'legal dispute' between the Parties within the meanung of this term in the Optionil Clause Declarations of the Parties and that the Court accordingly lacks jurisdiction in this case 24 Belgium does not deny that such a legal d spute existed between the Parties at the t i n ewhen the Congo filed its Application instituting proceedings and that the Court was properly seised by that Application However it contends that the question is not whether a legal dispute existed at that time but whether a legal dispute exijts at the present time Belgium refers in this respect inter alia to the Nor herrz Cameroons case in which the Court found that it may pronounce iudgment only in connection with concrete cases where there exists at th time of the adjudication an actual controversy involving a conflict of legal interests between the parties I C J Reports 1963 pp 33-34 as well as to the Nucleur Tests cases 'Austrulitz v France New Zealurzd v France in which the Court stated the following The Court as a court of law is called upon to resolve existing disputes between States The dispute brought before it must therefore continue to exist at the time when the Court makes its decision 1 C J Reports 1974 pp 270-27 1 para 55 p 476 para 58 Belgium argues that the position of M I Yerodia as Minister for Foreign Affairs was central to the Congo's Application instituting proceedings and emphasizes that there has now be n a change of circumstances at the very heart of the case in view of the fact that Mr Yerodia was relieved of his position as Minister for Foreign Affairs in November 2000 and that since 15 April2001 he has occupied no position in the Government of the Congo see paragraphs 18 and 19 above According to Belgium while there may still be a difference cf opinion between the Parties on the scope and content of internatioral law governing the immunities of a Minister for Foreign Affairs thai difference of opinion has now become a matter of abstract rather than of practical concern The result in Belgiurn's view is that the case has become an attempt by the Congo to seek an advisory opinion from the Court and no longer a concrete case involving an actual controvers between the Parties and that the Court accordingly lacks jurisdiction in the case 25 The Congo rej ectsthis objection of Belgium It contends that there is indeed a legal dispute between the Parties in ihat the Congo claims that the arrest warrant was issued in violation of the immunity of its Minister for Foreign Affairs that that warrant v as unlawful ah initio and that this legal defect persists despite the sub'equent changes in the position occupied by the individual concerned wliile Belgium maintains that the issue and circulation of the arrest warrant were not contrary to international law The Congo adds that the termination of Mr Yerodia's officia1 duties in no way operated to efface the wrongful act and the injury that flowed from it for which the Congo CO ltinues to seek redress 26 The Court recalls that according to its settled jurisprudence its jurisdiction must be determined at the time that he act instituting proceedings was filed Thus if the Court has jurisdiction on the date the case is referred to it it continues to do so regardless of subsequent events Such events might lead to a finding that an application has subsequently ARREST WARRANT JUDGMENT l3 become moot and to a decision not to proceed to degment on the merits but they cannot deprive the Court of jurisdiction see Nottebohm Preliminary Objection Judgment I C J Reports I953 p 122 Right of Passage over Indian Territory Preliminary Objections Judgment I C J Reports 1957 p 142 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie Libyan Arab Jamahiriya V United Kingdom Preliminary Objections Judgment I CJ Reports 1998 pp 23 24 para 38 and Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie Libyan Arab Jamahiriya v United States of'America Preliminary Objections Judgment I C J Reports 1998 p 129 para 37 27 Article 36 paragraph 2 of the Statute of the Court provides The States parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement in relation to any other State accepting the same obliga tion the jurisdiction of the Court in all legal disputes concerning the interpretation of a treaty any question of international law the existence of any fact which if established would constitute a breach of an international obligation the nature or extent of the reparation to be made for the breach of an international obligation On 17 October 2000 the date that the Congo s Application instituting these proceedings was led each of the Parties was bound by a declara- tion of acceptance of compulsory jurisdiction led in accordance with the above provision Belgium by a declaration of 17 June 1958 and the Congo by a declaration of 8 February 1989 Those declarations con- tained no reservation applicable to the present case Moreover it is not contested by the Parties that at the material time there was a legal dispute between them concerning the international law- fulness of the arrest warrant of 11 April 2000 and the consequences to be drawn if the warrant was unlawful Such a dispute was clearly a legal dis- pute Within the meaning of the Court s jurisprudence namely a dis- agreement on a point of law or fact a con ict of legal views or of interests between two persons in which the claim of cne party is positively opposed by the other Questions of Interpretation and Application of the 197 Montreal Convention arising from the Aerial Incident at Locker tie Libyan Arab Jamahiriya v United Kingdom Preliminary Objections Judgment I C J Reports 1998 p 17 para 22 and Questions ofInter- pretation and Application of the 197 Montreal Convention arising from the Aerial Incident at Lockerbie Libyan Arab Jamahiriya v United States of America Preliminary Objections Judgment I C J Reports 1998 pp 122 123 para 21 28 The Court accordingly concludes that at the time that it was seised 14 ARREST WARRANT JUDGMENT 14 of the case it had jurisdiction to deal with it and that it still has such jurisdiction Belgium's first objection must therefore be rejected 29 The second objection presented by Belgium is the following That in the light of the fact that Mr Yerodia Ndombasi is no longer either Miriister for Foreign Affairs of the Congo or a minister occupying any other position in the Government of the Congo the case is now without object and the Court should accordingly decline to proceed to judgment on the rrerits of the case 30 Belgium also ri lies in support of this objection on the Nortlzern Cumeroon case in which the Court considered tliat it would not be a proper discharge of ils duties to proceed further iii a case in which any judgment that the Court might pronounce would be without object I C J Reports 1963 p 38 and on the Nucleur T e tcases s in which the Court saw no reasori to allow the continuance of proceedings which it knows are bound to be fruitless I C J Reports 1974 p 271 para 58 p 477 para 61 Belgium maintains that the decllrations requested by the Congo in its first and second submissions would clearly fall within the principles enunciated by the Court in those cases since a judgment of the Court on the merits in this case could onlv be dire ted towards the clarification of the law in this area for the futire or be designed to reinforce the position of one or other Party It relies in support of this argument on the fact that the Congo does not allege any material injury and is not seeking compensatory damages It adds that the issue and transmission of the arrest warrant were not predicated on the ministerial status of the person concerned that he is no longer a minister and that the case is accordingly now devoid of object 31 The Congo contests this argument of Belgium and emphasizes that the aim of the Congo - to have the disputed arrest warrant annulled and to obtain redress for the moral injury suffered remains unachieved at the point in time when the Court is called upon to decide the dispute According to the Congo in order for the case to have become devoid of ob-ject during the proceedings the cause of the violation of the right would have had to disappear a l d the redress sought would have to have been obtained - 32 The Court has already affirmed on a number csf occasions that events occurring subsequent ito the filing of an application rlay render the application without object such that the Court is not called lpon to give a decision thereon see Qurstiorzc oflnterprrtrition und Applplicution of tlzc 1971 Mont- reul Convention urising fi om the Aeviul Incident ut Lockerbie L i h y u Arub Jumalziriyu v United Kingdom Prelitninury Ohjections Judgment I C J Reports 1998 p 26 para 46 and Questions of Inte pretution und Application of the 1971 Montreal Convention urising from the Aeriul Incident ut Lockerhie Lihyan Aruh Jumuhiriyu v United Stute of Americu Preliminu- Objections Judgment 1 C J Reports 1998 p 131 para 45 However it considlers that this is not such a case The change which has occurred in the situation of Mr Yerodia has not in fact put an end to the dispute between the Parties and has not deprilied the Application of its object The Congo argues that the arrest warrant issued by the Belgian judicial authorities against Mr Yerodia was and remains unlawful It asks the Court to hold that the warrant is unl iwful thus providing redress for the moral injury which the warrant alleyedly caused to it The Congo also continues to seek the cancellation ol' the warrant For its part Belgium contends that it did not act in violation of international law and it disputes the Congo's submissions In th view of the Court it follows from the foregoing that the Application of the Congo is not now without object and that accordingly the case is not moot Belgium's second objection must accordingly be rejected 33 The third Belgian objection is put as follows That the case as it now stands is materialiy different to that set out in the Congol's Application instituting prlxeedings and that the Court accordingly lacks jurisdiction in the case andlor that the application is inadmissible 34 According to Belgium it would be contrarJ1to legal security and the sound administration of justice for an applicant State to continue proceedings in circurnstances in which the factua dimension on which the Application was based has changed fundamentally since the respondent State would in those circumstances be uncertain until the very last moment of the substance of the claims against it Belgium argues that the prejudice sufferecl by the respondent State in ihis situation is analogous to the situation in which an applicant State lormulates new claims during the course of the proceedings It refers to tl-e jurisprudence of the Court holding inadmissible new claims formulatecl during the course of the proceedings which had they been entertained would have transformed the subject ol' the dispute originally brought before it under the terms of the Application see Fislzeric sJ vi sdiction Spciin v Crinadu Jurisclic tiotz of' th@ Court Judgm tzt I CI J R e p o ts 1998 pp 447-448 para 29 In the circumstances Belgium contencls that if the Congo wishes to maintain its claims it should be required to initiate proceedings afresh or at the very least apply to the Court for p rmission to amend its initial Application 35 In response the Congo denies that there has been a substantial amendment of the terms of its Application and nsists that it has presented no new claim whether of substance or of iorm that would have transformed the subject-matter of the dispute The Congo maintains that it has done nothing through the various stages i 1 the proceedings but condense and refine its claims as do most States that appear before the Court and that it is simply making use of the riglit of parties to amend their submissions until the end of the oral proceec ings 36 The Court notes that in accordance with scttled jurisprudence it cannot in principle allow a dispute brought befctre it by application to be transformed by amendments in the submissions into another dispute which is different in character Société commerciale de Belgique Judgment 1939 P C I J Series AIB No 78 p 173 4 f Militury and Paramilitary Actiiities in arzci uguinst Nicaragua Nica agua v United States of' Arnerica Jurisdiction and Adnzissihility J u d m e n t 1 C J Reports 1984 p 427 para 80 see also Certain Phospjzate Lands in Nauru Nauru v Australia Preliminary Objections Judgment 1 C J Reports 1992 pp 264-267 ini particular paras 69 and 70 l However the Court considers that in the present case the facts undeilying the Application have not changed in a way that produced such a transformation in the dispute brought before it The question submitted to the Court for decision remains whether the issue and circulation of the arrest warrant by the Belgian judicial authorities against a person wlho was at that time the Minister for Foreign Affairs of the Congo were coiîtrary to international law The Congo's firial submissions arise directly out of the question which is the subject-matter of that Application Fisheries Jurisdiction Federal Republic qf' Gerrnuny v Iceland Me -its Judgment 1 C J Reports 1974 p 203 para 72 see also Temple of Preuh Vilzear Merits Judgmen t 1 C J Reports 1962 p 36 In these circumst nces the Court considers that Belgium cannot validly maintain thai the dispute brought before the Court was transformed in a way that affected its ability to prepare its defence or that the requirements of the sound administration of justice were infringed Belgium's third objection must accordingly be rejccted 37 The fourth Bel gian objection reads as follo vs That in the light of the new circumstances concerning Mr Yerodia Ndombasi the case has assumed the character of an action of diplornatic protection but one in which the individual being pro- tected has failed to exhaust local remedies and that the Court accordingly lacks jurisdiction in the case andlor that the application is inadmissible 38 In this respect Belgium accepts that when the case was first instituted the Congo had a direct legal interest in the niatter and was asserting a claim in its own name in respect of the allegetl violation by Belgium of the immunity of the Congo's Foreign Minister 1-Iowever according to Belgium the case was radically transformed aftei the Application was filed iiamely on 15 April 2001 when Mr Yerodia ceased to be a member of the Congolese Government Belgium maintains that two of the requests made of the Court in the Congo's final submissions in practice now conCern the legal effect of an arrest warrant issued aga nst a private citizen of the Congo and that 1 hese issues fa11 within the rea m of an action of diplomatic protection It adds that the individual concerned has not exhausted al1 available remedies under Belgian law a necessary condition before the Congo can espouse the cause of one 01' its nationals in international proceedings 39 The Congo on the other hand denies that this is an action for diplomatic protection It maintains that it is brin $ these proceedings in the name of the Congolese State on account of the violation of the immunity of its Minister for Foreign Affairs The Congo further denies the availability of rennedies under Belgian law It p i n t s out in this regard that it is only when the Crown Prosecutor has betome seised of the case file and makes submissions to the Chambre du conseil that the accused can defend himself before the Chambre and seek i O have the charge dismissed 40 The Court notes that the Congo has never sought to invoke before it Mr Yerodia's persona1 rights It considers that despite the change in professional situation of Mr Yerodia the character of the dispute submitted to the Court by means of the Application has not changed the dispute still concerris the lawfulness of the arr st warrant issued on 11 April 2000 against a person who was at the tine Minister for Foreign Affairs of the Congo and the question whether the rights of the Congo have or have not been violated by that warrant As the Congo is not acting in the context of protection of one of its nationals Belgium cannot rely upon the rules relating to the exhaustion of local remedies In any event the Court recalls that an objectior based on non-exhaustion of local remedies relates to the admissibility of the application see Interlzundel Prelirninary Objections Judgment 1 C J Reports 1959 p 2 6 Elettrunica Siculu S p A E L S I Judgment 1 C J Reports 1989 p 42 para 49 Under settled jurisprudence the critical date for determining the admissibility of an application is the late on which it is filed see Questions of' Interpretation and Applicution of' the 1971 Montreal Converztion uri singjkorn the Aeriul Incident ut Lockerbie Libyun Arub Jamahirij uv United Kingdom Prelirninary Objections Judgrnent 1 C J Reports 1998 pp 25-26 paras 43-44 and Questions of Interpretation und Applicution of the 1971 Montreal Convention clrising frorn the Aerial Incident ut Lockerhie Libyun Arab Jarnuhiriy v United States qf Anzerica Prelimincrry Objections Judgtrzetzt L C J Reports 1998 pp 130-131 paras 4 2-43 Belgium accepts that on the date on which the Congo filed the A pplication instituting proceecings the Congo had a direct legal interest i n the matter and was asserting a claim in its own name Belgium's fourth objection must accordingly be rejected 41 As a subsidiary argument Belgium further contends that iln the event that the Court t-lecides that it does have jurisdiction in this case and that the application iij admissible the non ultra petita rule operates to limit the jurisdiction of the Court to those issues that are the subject of the Congol's final isubmissions Belgium points out that while the Congo initially advanced a twofold argument based on the one hand on the Belgian judge's lack of jurisdiction and on the other on the immunity from jurisdiction enjoyed by its Ministcr for Foreign Affairs the Congo no longer claims in its final submissions that Belgium wrongly conferred upon itself universal jurisdiction in ubse ltia According to Belgium the Congo novi confines itself to arguing that the arrest warrant of 11 April 2000 was unlawful because it violated th immunity from jurisdiction of its Minister for Foreign Affairs and that the Court consequently cannot rule on the issue of universal juristiiction in any decision it renders on the merits of the case 42 The Congo for its part states that its intt rest in bringing these proceedings is to obtilin a finding by the Court that it has been the victim of an internationally wrongful act the question whether this case involves the exercise of an excessive universal jurisdiction ' being in this connection only a secondary consideration The Congo asserts that any consideration by the Court of the issues of international aw raised by universal jurisdiction would be undertaken not at the request of the Congo but rather by virtue of the defence strategy adopttd by Belgium which appears to maintain 1 hat the exercise of such jurisdiction can represent a valid counterweight ito the observance of immunities 43 The Court would recall the well-established principle that it is the duty of the Court not only to reply to the questions as stated in the final submissions of the parties but also to abstain frc'm deciding points not included in those submissions Asylunz Judgment 1 C J Reports 1950 p 402 While the Court is thus not entitled to decide upon questions not asked of it the noui ultvu petitu rule nonetheless cannot preclude the Court from addressing certain legal points in its reasoning Thus in the present case the Court may not rule in the operative part of its Judgment on the question whether the disputed arrest warrant issued by the Belgian investigating judge in exercise of his purported universal jurisdiction complied in tl-iat regard with the rules anci principles of international law governinj the jurisdiction of national courts This does not mean however that the Court may not deal with certain aspects of that question in the reasoning of its Judgment shoulc it deem this necessary or desirable 44 The Court coincludes from the foregoing that it has jurisdiction to entertain the Congol's Application that the Application is not without object and that accordingly the case is not moot and that the Application is admissible T'hus the Court now turns to the merits of the case 45 As indicated above see paragraphs 41 to 4 above in its Application instituting these proceedings the Congo originally challenged the legality of the arrest warrant of 11 April 2000 on two separate grounds on the one hand Belgium's claim to exercise a universal jurisdiction and on the other the alleged violation of the immunities of the Minister for Foreign Affairs of the Congo then in office However in its submissions in its Memorial ancl in its final submissions at the close of the oral proceedings the Congo invokes only the latter grouiid 46 As a matter alf logic the second ground should be addressed only once there has been a determination in respect of the first since it is only where a State has jui-isdiction under international law in relation to a particular matter that there can be any question of immunities in regard to the exercise of that jurisdiction However in the present case and in view of the final form of the Congo's submissions the Court will address first the question whether assuming that it had jurijdiction under international law to issue and circulate the arrest warrant of 11 A r i 2000 i Belgium in so doing violated the immunities of the then Minister for Foreign Affairs of the Cong o a 47 The Congo maintains that during his or hcr term of office a Minister for Foreign Affairs of a sovereign State is entitled to inviolability and to immunity fr'om criminal process being ibsolute or complete that is to say they are subject to no exception P ccordingly the congo contends that no criininal prosecution may be brought against a Minister for Foreign Affairs in a foreign court as long a i he or she remains in office and that any finding of criminal responsibility by a domestic court in a foreign country or any act of investigation iindertaken with a view to bringing him or her to court would contravene the principle of immunity from jurisdiction According to the Congo th basis of such criminal immunity is purely hnctional and immunity is azcorded under customary international law simply in order to enable the foreign State representative enjoying siich immunity to perform his or her functions freely and without let or tiindrance The Congo adds that the immunity thus accorded to Ministers for Foreign Affairs when i 1 office coverç al1 their acts including any ccsmmitted before they took of ice and that it is irrelevant whether the act s done whilst in office may be characterized or not as official acts 48 The Congo states further that it does not ileny the existence of a principle of international criminal law deriving fr2m the decisions of the Nuremberg and Tokyo international military tribunals that the accused's official capacity at the time of the acts cannot before any court whether domestic or international constitute a ground 2f exemption from his criminal responsibiliity or a ground for mitigation of sentence The Congo then stresses ithat the fact that an immunitb might bar prosecution before a specific court or over a specific period coes not mean that the same prosecution cannot be brought if appropriate before another court which is not bound by that immunity or at anothc r time when the immunity need no longer be taken into account It concludes that immunity does not mean impunity 49 Belgium maintains for its part that while Ministers for Foreign Affairs in office generally enjoy an immunity from jurisdiction before the courts of a foreign State such immunity applies only to acts carried out in the course of theii- officia1 functions and cannot protect such persons in respect of private acts or when they are acting otherwise than in the performance of their officia1 functions 50 Belgium further states that in the circumstances of the present case Mr Yerodia erijoyed no immunity at the t i r e when he is alleged to have committed the acts of which he is accused and that there is no evidence that he was then acting in any official capacity It observes that the arrest warrant was iijsued against Mr Yerodia personally 51 The Court would observe at the outset thaf in international law it is firmly established that as also diplomatic and consular agents certain holders of high-ranking office in a State such as ttle Head of State Head of Government and Minister for Foreign Affairs enjoy immunities from jurisdiction in other States both civil and crimin il For the purposes of the present case it is only the immunity from criminal jurisdiction and the inviolability of an incumbent Minister for Foribign Affairs that faIl for the Court to consider 52 A certain numiber of treaty instruments wer cited by the Parties in this regard These included first the Vienna Convention on Diplomatic Relations of 18 April 1961 which states in its pre imble that the purpose of diplomatic privileges and immunities is to e lsure the efficient performance of the func tions of diplomatic missions as representing States It provides in Article 32 that only the sending State may waive such immunity On these points the Vienna Conventicn on Diplomatic Relations to which both the Congo and Belgium are parties reflects customary international lavi The same applies to the corresponding provisions of the Vienna Convention on Consular Relations of 24 April 1963 to which the Congo and Belgium are also parties The Congo and I3elgium further cite the Ne- York Convention on Special Missions of 8 December 1969 to which h e yare not however parties They recall ihat under Article 21 paragrilph 2 of that Convention The Head of the Government the Minis erfor Foreign Affairs and otlier persoils of high rank when they ta1 e part in a special mission of the sencling State shall enjoy in the receiving State or in a third State in alddition to what is granted by the present Convention the facilities privileges and immunitier accorded by international law These conventions provide useful guidance on certain aspects of the question of immuniities They do not however contain any provision specifically defining the immunities enjoyed by Ministers for Foreign Affairs It is consequently on the basis of custornary international law that the Court must decide the questions relatin to the immunities of such Ministers raisecl in the present case 53 In customary international law the immunities accorded to Ministers for Foreign Afjàirs are not granted for their oersonal benefit but to ensure the effective performance of their functions on behalf of their respective States In order to determine the exterit of these immunities the Court must therefore first consider the nature of the functions exercised by a Minister for Foreign Affairs He or sh is in charge of his or her Government's diplomatic activities and generally acts as its representative in internatilonal negotiations and intergovernmental meetings Ambassadors and oither diplomatic agents carry out their duties under his or her authority His or her acts may bind the State represented and there is a presumptioln that a Minister for Foreign Affairs simply by virtue of that office has full powers t o act on behalf of the State see for example Article 7 paragraph 2 u of the 1969 Vienna Convention on the Law of Treaties In the performance of thesr functions he or she is frequently required to travel internationally and thus must be in a position freely to do so whenever the need should arise He or she must also be in constant comrnunication with the Government and with its diplomatic missions around the world and be capable at any time of communicating with represi ntatives of other States The Court further observes that a Minister for Foreign Affairs responsible for the conduct of his or her State's relations with al1 other States occupii a position such that like the Head of State or the Head of Governmt nt he or she is recognized under international law as representative of the State solely by virtue of his or her office He or she does not halle to present letters of credence to the contrary it is generally the Minister who determines the authority to be conferred upon diplomatic agents and countersigns their letters of credence Finally it is to the Minister f3r Foreign Affairs that chargés d'affaires are accredited 54 The Court accordingly concludes that the 'unctions of a Minister for Foreign Affairs are such that throughout the duration of his or her office he or she when abroad enjoys full immun ty from criminal jurisdiction and inviolability That immunity and that lnviolability protect the individual concernecl against any act of authority of another State which would hinder him 01- her in the performance of his or her duties 55 In this respect no distinction can be drawn between acts performed by a Minister for Foreign Affairs in an official capacity and those claimed to have been performed in a privat capacity or for that matter between acts performed before the person concerned assumed office as Minister for Foreign Affairs and acts committed during the period of office Thus if a Minister for Foreigr Affairs is arrested in another State on a ci-iminal charge he or she is cli arly thereby prevented from exercising the functions of his or her office The consequences of such impediment to the exercise of those officia functions are equally serious regardless of whether the Minister for Foreign Affairs was at the time of arrest preseilt in the territory of the arre ting State on an official visit or a private visit regardless of whether the arrest relates to acts allegedly perforined before the person becam the Minister for Foreign Affairs or to acts perforrned while in office and regardless of whether the arrest relates to alleged acts performed in an official capacity or a private capacity Furthermore even the mere risk that by travelling to or transiting another State a Minister for Foreign Affairs might be exposing himself or herself to legal proceedings could deter the Minister from travelling internationally when required to do so for the purposes of the performance of his or her official functions 56 The Court will now address Belgium's argument that immunities accorded to incumbent Ministers for Foreign Affi irscan in no case protect them where the y are suspected of having coinmitted war crimes or crimes against humanity In support of this position Belgium refers in its Counter-Memorial 1 o various legal instruments creating international criminal tribunals to examples from national legislation and to the jurisprudence of national and international courts Belgium begins by pointing out that certain piovisions of the instruments creating international criminal tribunals state expressly that the officia1 capacity of a person shall not be a bar to the exercise by such tribunals of their jurisdiction Belgium also places emphasis on certain decisions of national courts and in particular on the judgments rendered on 24 March 1999 by the House of Lords in the United Kingdom and on 13 March 2001 by the Court of Cassation in France in the Pinochet ancl Qudduji cases respectively in which it cclntends that an exception to the immunity rule was accepted in the case of serious crimes under inernational law Thus according to Belgiurn the Pinochet decision recognizes an exception to the immunity rule when Lord Millett stated that ilnternational law cannot be supposed to have established a crime having the character of a jus cogens and at the saime time to have provided an immunity which is coextensive with the obligation it seeks to impose or when Lord Phillips of Worth Matravers said that no established rule of international law requires state immuinity vatione muteriue to be t ccordedin respect of prosecution for an international crime As to the French Court of Cassation Belgium contends that in holding that under international law as it currently stands the crime alleged acts of terrorism irrespective of its gravity does not come within the exceptions to the principle of immunity from jurisdiction for incumbent foreign Heacls of State the Court explicitly recognized the existence of such exceptions 57 The Congo for its part States that under international law as it currently stands there is no basis for asserting tha there is any exception to the principle of absolute immunity from crimin tl process of an incumbent Minister for Foreign Affairs where he or she is accused of having committed crimes under international law In support of this contention the Congo refers to State practice giving particular consideration in this regard to the Pinochet and Qudduji cases and concluding that such practice does not correspond to that which Belgium claims but on the contrary confirms the bsolutenature of the immunity from criminal process of Heads of State and Ministers for Foreign Affairs Thus in the Pinoclzet case the Congo cites Lord BrowneWilkinson's statemenit that tlhis immunity enjoycd by a head of state in power and an ambasisador in post is a complete immunity attached to the person of the head of state or ambassador and rendering him immune from al1 actions or prosecutions Accordil gto the Congo the French Court of Cassation adopted the same position in its Qudduj judgment in affirming that international custom birs the prosecution of incumbent Heads of State in the absence of any contrary international provision binding on the parties concerned beforc the criminal courts of a foreign State As regards the instruments creating internaticmal criminal tribunals and the latter's jurisprudence these in the Congo's view concern only those tribunals and no inference can be drawn from them in regard to criminal proceedingij before national courts against persons enjoying immunity under international law 58 The Court has carefully examined State practice including national legislation and those few decisions of national higher courts such as the House of Lords or the French Court of Cassation It has been unable to deduce from this practice that there exists under c lstomary international law any form of exception to the rule according irilmunity from criminal jurisdiction and inviolability to incumbent Ministc rs for Foreign Affairs where they are susgected of having committed war crimes or crimes against humanity The Court has also examined the rules conceining the immunity or criminal responsibility of persons having an officia1 capacity contained in the legal instruments creating international criminiil tribunals and which are specifically applicable to the latter see Chartlx of the International Military Tribunal of Nuremberg Art 7 Charter of the International Military Tribunal of Tokyo Art 6 Statute of the International Criminal Tribunal for the former Yugoslavia Art 7 para Z Statute of the International Criminal Tribunal for Rwanda Art 6 para 2 Statute of the International Criminal Court Art 27 It finds tliat these rules likewise do not enable it to conclude that any such an exception exists in customary international law in regard to national courts Finally none of the decisions of the Nuremberg and Tokyo international military tribunals or of the lnternational Criminal Tribunal for the former Yugoslavia cited by Belgium deal with the question of the immunities of incumbent Ministers for Foreign Affairs before national courts where they are accused of having committed war crimes or crimes against humanity The Court accordingly notes tliat those decisions are in no way at variance with the findings it has reac hed above In view of the foregoing the Court accordingly cannot accept Belgium's argument in this regard 59 It should further be noted that the rules go erning the jurisdiction of national courts must be carefully distinguished from those governing jurisdictional immunities jurisdiction does not irriply absence of immunity while absence of immunity does not imply jurisdiction Thus although various international conventions or the prevention and punishment of certain serious crimes impose or States obligations of prosecution or extraclition thereby requiring them to extend their criminal jurisdiction such extension of jurisdiction in no way affects immunities under customary international law including those of Ministers for Foreign Affairs These remain opposable before he courts of a foreign State even where those courts exercise such a jurisdiction under these conventions 60 The Court emphasizes however that the i nmunityfrom jurisdiction enjoyed by incumbent Ministers for Foreign Affairs does not mean that they enjoy impunity in respect of any crimes they might have committed irrespective of their gravity Immunity from criminal jurisdiction and individual crimiinal responsibility are quite separate concepts While jurisdictional immuriity is procedural in nature criminal responsibility is a question of substantive law Jurisdictional i nmunitymay well bar prosecution for a certain period or for certain offences it cannot exonerate the person to whom it applies from al1 criminal responsibility 61 Accordingly the immunities enjoyed under Bnternational law by an incumbent or former Minister for Foreign Affairs do not represent a bar to criminal prosecution in certain circumstances First such persoris enjoy no criminal immunity under international law in their own countries and may thus be tried by those countries' courts in accordance with the relevant rules of dcmestic law Secondly they will cease to enjoy immunity frorn foreign jurisdiction if the State which they represent or have represente ldecides to waive that immunity Thirdly after a person ceases to hold the office of Minister for Foreign Affairs he or she will no longer enjoy al1 of the iinmunities accorded by international law in other States Provided that it has jurisdiction under international law a court of one State may try a former Minister for Foreign Affairs of another State in respect of acts committed prior or subsequent to his oir her period of office as we 1 as in respect of acts committed during that period of office in a private capacity Fourthly an incurnbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts where they have jurisdiction Examples inAude the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda established pursuant to Security Council resolutions under Clnapter VI1 of the United Nations Charter and the future International Criminal Court created by tl-e 1998 Rome Convention The latter's Statute expressly provides in Article 27 paragraph 2 that i mmunities or special procedural rules wliich may attach to the official capacity of a person whether under national or international law shall not bar the Court from exercising its ju-isdiction over such a person 62 Given the conclusions it has reached above concerning the nature and scope of the rules governing the immunity frcm criminal jurisdiction enjoyed by incumberit Ministers for Foreign Affairs the Court must now consider whether in the present case the issue 01' the arrest warrant of 11 April 2000 and ils international circulation violated those rules The Court recalls in this regard that the Congo requests it in its first final submission to adjuclge and declare that Bly issuing and internationally circulating the arrest warrant of 11 April 2000 against Mr Abdulaye Yerodia Ndombasi Belgium committed a violation in regard to the Democratic Republic of the Congo of the rule of customary internatior allaw concerning the absolute inviolability and immunity from crirlinal process of incumbent foreign ministers in so doing it viclated the principle of sovereign equaliity among States 63 In support of this submission the Congo maintains that the arrest warrant of I I April 2000 as such represents a ccercive legal act which violates the Congo's immunity and sovereign righis inasmuch as it seeks to subject to an organ of domestic criminal juri diction a member of a foreign government who is in principle beyond its reach and is fully enforceable without special formality in Belgium The Congo consiclers that the mere issuance of the warrant thus constituted a coercive measure taken against the persan of Mr Yerodia even if it was not executed 64 As regards the international circulation of ihe said arrest warrant this in the Congo's view not only involved further violations of the rules referred to above but also aggravated the moral injury which it suffered as a result of the opprobrium thus cast upon one of the most prominent members of its Government The Congo further argues that such circulation was a fundaniental infringement of its sokereign rights in that it significantly restricted the full and free exercise t y its Minister for Foreign Affairs of the international negotiation and representation functions entrusted to him by the Congo's former Prcsident In the Congo's view Belgium thus manifests an intention to h tve the individual concerned arrested at the place where he is to be fouiid with a view to procuring his extraditilon The Congo emphasizej moreover that it is necessary to avoid any confusion between the arguments concerning the legal effect of the ari-est warrant abroad and the ciuestion of any responsibility of the foreign authorities giving effect to it It points out in this regard that no State has acted on the arrest warrart and that accordingly ARREST WARRANT JUDGMENT 27 no further consideration need be given to the specific responsibility which a State executing it might incur or to tlie way in which that responsibility should be related to that of the Belgian State The Congo observes that in such circumstances there woiild bel a direct causal relationship between the arrest warrant issued in Relgium and any act of enforcement carried out elsewhere 65 Belgium rejects the Congo's argument on the ground that the character of the arrest warrant of 1 1 April 2000 is uch that it has neither infringed the sovereignty of nor created any obligation for the Congo With regard to the legal effects under Belgian l a vof the arrest warrant of 1 1 April 2000 Belgium contends that the clear purpose of the warrant was to procure that if found in Belgium Mr Yerctdia would be detained by the relevant Belgian authorities with a view to bis prosecution for war crimes and crimes against humanity According to Belgium the Belgian investigating judge did however draw an explicit distinction in the warrant between on the one hand inlmunity from j irisdictionand on the other hand immuniity from enforcement as regards representatives of foreign States who visit Belgium on the basis of an official invitation making it clear that such persons would be immune from enforcement of an arrest warrant in Belgium Belgium further coniends that in its effect the disputed arrest warrant is national in charactcr since it requires the arrest of Mr Yerodia if he is found in Belgium b t it does not have this effect outside Belgiurn 66 In respect of thie legal effects of the arrest warrant outside Belgium Belgium maintains that the warrant does not creite any obligation for the authorities of any other State to arrest Mr Ye odia in the absence of some further step by Belgium completing or validating the arrest warrant such as a request for the provisional detention O ' Mr Yerodia or the issuing of an arrest warrant by the appropriate authorities in the State concerned following a request to d o so or the issuing of an Interpol Red Notice Accordingly outside Belgium while the Furpose of the warrant was admittedly to establish a legal basis for the arvest of Mr Yerodia and his subsequent extradition to Belgium the warrant had no legal effect unless it was validated or completed by sonie prior act requiring the arrest of Mr Yerodia by the relevant authorities in a third State Belgium further argues that ilf a State had executed the arrest warrant it might infringe Mr Yerodia's criminal immunit q but that the Party directly responsible for that infringement would have been that State and not Belgium 67 The Court will first recall that the international arrest warrant in cth serztin issued on 1 1 April 2000 by an investigating judge of the Brussels Tribunal de première instance is directec against Mr Yerodia ARREST WARRANT JUDGMENT 28 stating that he is currently Minister for Foreign Affairs of the Democratic Republic of the Congo having his business ziddress at the Ministry of Foreign Affairs in Kinshasa The warrant statrs that Mr Yerodia is charged with being the perpetrator or CO-perpetritor of - - Crimes under international law constiiuting grave breaches causing harm by act or omission to perssns and property protected by the Conventions signed at Geni va on 12 August 1949 and by Additional Protocols 1 and II to those Conventions Article 1 paragraph 3 of the Law of 16 lune 1993 as amended by the Law of 10 February 1999 concerning the punishment of serious violations of international humaiiitarian law Crimes against humanity Article 1 paragraph 2 of the Law of 16 June 1993 as amended by the Law of 10 February 1999 concerning the punishment of serious violations of international humanitarian law The warrant refers to various speeches inciting racial hatred and to particularly virulent remarks allegedly made b Mr Yerodia during public addresses reported by the media on 4 August and 27 August 1998 It adds These speeches allegedly had the effect of inciting the population to attack Tutsi residents of Kinshasa there were dragnet searches manhunts the Tutsi enemy and lynchings The speeches inciting racial hatred thus arc said to have resulted in several hundred deaths the internment of 7 utsis summary executions arbitrary arrests and unfair trials 68 The warrant fiirther states that the position of Minister for Foreign Affairs currently held by the accused does not entai1 immunity from jurisdiction and enfc rcement The investigating judge does however observe in the warrant that the rule concerning the absence of immunity under humanitarian law would appear to reqiiire some qualification in respect of immuni ty from enforcement and ex Aains as follows Pursuant to the general principle of fairnt ss in judicial proceedings immunity from enforcement must in Our view be accorded to al1 State representatives welcomed as such onco the territory of Belgium on 'officia1 visits' Welcoming such foreign dignitaries as official representatives of sovereign States i ivolvesnot only relations between individuals but also relations between States This implies that suchi welcome includes an undertaking by the host State and its various components to refrain froni taking any coercive measures against its guest and the invitation cannot become a pretext for ensnaring the individual concerned in what would then have to be labelled a trap In the contrary case failure to respect this undertaking could give rise to the host State' international responsibility 69 The arrest warrant concludes with the following order We instruct and order al1 bailiffs and ageiits of public authority who may be so required to execute this arrest warrant and to conduct the accused to the detention centre in Forest We order the warden of the prison to receive the accused and to keep him her in custody in the detention c ntre pursuant to this arrest warrant We require al1 those exercising public authority t o whom this warrant shall be shown to lend al1 assistance in e e c u t i n git 70 The Court notes that the issuance as such of the disputed arrest warrant represents ari act by the Belgian judicial kuthorities intended to enable the arrest on Belgian territory of an incuml entMinister for Foreign Affairs on charges of war crimes and crimes against humanity The fact that the warrant is enforceable is clearly apparent from the order given to al1 bailiffs and agents of public authority to execute this arrest warrant see paragraph 69 above and f r o n the assertion in the warrant that the position of Minister for Foreign Affairs curreritly held by the accused does not entai1 iminunity from jurisdiction and enforcement The Court notes that the warrant did admittedly make an exception for the case of a11 officia1 visit by Mr Yerodi to Belgium and that Mr Yerodia never suffered arrest in Belgium The Court is bound however to find that given the nature and purpose of' the warrant its mere issue violated the imrnunity which Mr Yerodia eiijoyed as the Congo's incumbent Minister for Foreign Affairs The Court accordingly concludes that the issue csf the warrant constituted a lriolation of an obligation of Belgiuin towards the Congo in that it failecl to respect the immunity of that Minister and more particularly infringed the immunity from criminal jurisdiction and the inviolability then eîjoyed by him under international law 71 The Court also notes that Belgium admit that the purpose of the international circ ulutionof the disputed arrest varrantwas to establish a legal basis for the arrest of Mr Yerodia abroad and his subsequent extradition to Belgium The Respondent maintains however that the enforcement of the warrant in third Statr s was dependent on some further prelimiiiary steps having been taken and that given the inchoate quality of the warrant as regards thirci States there was no infringe ment of thie sovereignty of the Cong It further points out that no Interpol Red Notice was requestetl until 12 September 2001 when Mr Yeraldia no longer held ministerial office The Court cannot subscribe to this view As ir the case of the warrant's issue its interriational circulation from Juni 2000 by the Belgian authorities given its nature and purpose effectively infringed Mr Yero- dia's immunity as tht Congo's incumbent Ministcr for Foreign Affairs and was furthermore liable to affect the Congo's conduct of its international relations Since Mr Yerodia was called upon in that capacity to undertake travel in the performance of his duties ihe mere international circulation of the warrant even in the absence of further steps by Belgium could have resiilted in particular in his arrest while abroad The Court observes in this respect that Belgium itself cites information to the effect that Mr Yerodia on applying for a visa tcl go to two countries apparently learned that he ran the risk of being arrested as a result of the arrest warrant issued against him by Belgium adding that tlhis moreover is what the Congo hints when it writes that the arrest warrant 'sometimes forced Minister Yerodia to travel by roundabout routes ' Accordingly the Court concludes that ihe circulation of the warrant whether or not it significantly interfered with Mr Yerodia's diplomatic activity con tituted a violation of an obligation of Belgium towards the Congo in that it failed to respect the inimunity of the incumbent Minister for Foreign Affairs of the Congo and more particularly infringed the immunity from criminal jurisdiction and the inviolability then enjoyed by him i nderinternational law 72 The Court will i o waddress the issue of the rcmedies sought by the Congo on account of Belgium's violation of the above-mentioned rules of international law In its second third and fourth submissions the Congo requests the Court to adjudge and declare that A formal finding by the Court of the unlawfulness of the issue and international circulation of the arrest w irrant constitutes an appropriate form of satisfaction providing reparation for the consequent moral injury to the Democratic Repu1 lic of the Congo The violations of international law underlyirig the issue and international circulation of the arrest warrant of 1 April 2000 preclude any State including Belgium from executing it Belgium shall be required to recall and cancel the arrest warrant of 11 April 2000 and to inform the foreign authorities t o whom the warrant was circiilated that Belgium renouncez its request for their co-operation in executing the unlawful warrant 73 In support of tl-iose submissions the Congo isserts that the termination of the official duties of Mr Yerodia in no way operated to efface the wrongful act and the injury flowing from it which continue to exist It argues that the warrant is unlawful al initio that ilt is fundamentally flawed and that it carinot therefore have any legal i ffect today It points ARREST WARRANT JUDGMENT 31 out that the purpose of its request is reparation for the injury caused requiring the restoration of the situation which would in al1 probability have existed if the said act had not been comnitted It States that inasmuch as the wrongful act consisted in an intr rnal legal instrument only the withdrawal and cancellation of the latter can provide appropriate reparation The Congo further emphasizes that in no way is it asking the Court itself to withdraw or cancel the warrant nor to determine the means whereby Belgium is tcs comply wit1 i its decision It xplains that the withdrawal and cancellation of the warrant by the means that Belgium deems most suitable are riot means of enforcement oi' the judgment of the Court but the requeijted measure of legal repara ion restitution itself The Congo maintains that the Court is consequently only being requested to declare that Belgium by way of reparation for i he injury to the rights of the Congo be recluired to withdraw and canc l this warrant by the means of its choice 74 Belgium for its part maintains that a findinp by the Court that the immunity enjoyed by Mr Yerodia as Miriister for Foreign Affairs had been violated would in no way entai1 an obligaticn to cancel the arrest warrant It points out that the arrest warrant is s il1 operative and that there is no suggestion that it presently infringes the immunity of the Congo's Minister for Foreign Affairs Belgium considers that what the Congo is in reality asking of the Court in its third and fourth final submissions is that the Court should direct Belgium as to the method by which it should give effect to a judgment of the Court finding that the warrant had infringecl the immunity of the Congo' Minister for Foreign Affairs 75 The Court has already concluded see parapraphs 70 and 71 that the issue and circulation of the arrest warrant of 11 April 2000 by the Belgian authorities failed to respect the immunity c fthe incumbent Minister for Foreign Affairs of the Congo and more particularly infringed the immunity from criminal jurisdiction and the involability then en-joyed by Mr Yerodia under international law Those acts engaged Belgium's international responsibility The Court considers that the findings so reached by it constitute a form of satisfaction whic h will make good the moral injury complaii edof by the Congo 76 However as the Permanent Court of Interr ational Justice stated in its Judgment of 13 September 1928 in the case concerning the Fcrctoi at C'horzciw tlhe essential pi-inciple contained in the actuil notion of an illegal act - a principle which seems to be estab1i hed by international practice and in particular by the decisions of 2 rbitral tribunals is that reparation inust as far as possible wipe out al1 the conse- quences of the illegal act and reestablish the situation which would in al1 probabilit have existed if that act hacl not been committed P C I J Series A No 17 p 47 In the present case the situation which would in al1 probability have existed if the illegal act had not been committed cannot be re-established merely by a fiinding by the Court that the arrest warrant was unlawful under international law The warrant is still extant and remains unlawful notwithstanding the fact that Mr Yersdia has ceased to be Minister for Foreign Affairs The Court accordin ly considers that Belgium must by means of its own choosing cancel the warrant in question and so inform the auithorities to whom it was circulated 77 The Court seel n o need for any further rerredy in particular the Court cannot in a judgment ruling o n a dispute bitween the Congo and Belgium indicate wkiat that judgment's implications might be for third States and the Court cannot therefore accept thc Congo's submissions o n this point 78 For these reasons 1 A By fifteen votes to one Rejects the objections of the Kingdom of B e l g i mrelating to jurisdiction mootness and admissibility I N FAVOUR Presidenl Guillaume Vice-Puesident Shi Judges Ranjeva Herczegh Fleischhauer Koroma Vereshchetin Higgins Parra-Aranguren Kooijmans Rezek Al-Khasawneh Buergenthal Jucfgrs ad hoc BulaBula Van den Wyngaert AGAINST Jirdge Oda B By fifteen votes to one Find that it has jurisdiction to entertain the Application filed by the Democratic Republic of the Congo on 17 October 2000 IN A V O U President R Guillaume Vicc-Presiderzt Shi Judges Ranjeva Herczegh Fleischhauer Koroma Vereshchetin Higgins Parra-Aranguren Kooijmans Rezek Al-Khasawneh Buergenthal Jirdges ad hoc BulaBula Van den Wyngaert AGAINST Jtrdge Oda C By fifteen votes to one Finds that the Application of the Democratic R e u b l i cof the Congo is not without object and that accordingly the case i not moot IN FAVOUK President Guillaume Vice-President Shi J u d g sRanjeva Herczegh Fleischhauer Koroma Vereshchetin Hig ins Parra-Aranguren Kooijmans Rezek Al-Khasawneh Buergenthal Judges ad hoc BulaBula Van den Wyngaert AGAINST Judge Oda D By fifteen votes to one Fin that the Application of the Democratic Republic of the Congo is admissible President Guillaume Vice-President Shi Judges Ranjeva Herczegh Fleischhauer Koroma Vereshchetin Higgins Parra-Aranguren Kooijmans Rezelc Al-Khasawneh Buergenthal Judges ad hoc BulaBula Van den Wyngaert A G A I N S T Jz rigeOda I N FAVOUK 2 By thirteen votes to three Finds that the issue against Mr Abdulaye Yerodia Ndombasi of the arrest warrant of 11 4pril 2000 and its internatio ialcirculation constituted violations of a legal obligation of the Kingdom of Belgium towards the Democratic Repuiblic of the Congo in that thvy failed to respect the immunity from crimirial jurisdiction and the inviola Aity which the incumbent Minister for Foreign Affairs of the Democratic Republic of the Congo enjoyed under international law Presiclent Guillaume Vice-President Shi Judges Ranjeva Herczegh Fleischhauer Koroma Vereshchetin Higgins Parra-Aranguren Kooijmans Rezek Buergenthal Judge ad hoc Biila-Bula rN F A V O C R AGAIN T Jirc1ge c Oda Al-Khasawneh Judge ad hoc Van den Wyngaert 3 By ten votes to six Finds that the Kingdom of Belgium must t'y means of its own choosing cancel the arrest warrant of 11 April 2Ci00 and so inform the authorities to whom lhat warrant was circulated FAVOIJR Presi i'ent Guillaun e Vice-Pre identShi Judge Ranjeva Herczegh Fleischhauer Koroma Vereshchetin Parra-Aranguren Rezek Judgb'e ad hoc Bula-Bula AGAINST J u g e Oda Higgins Kooijmans Al-Khasawneh Buergenthal Jutlge ad hoc Van den Wyngaert Done in French anid in English the French text I eingauthoritative at the Peace Palace The Hague this fourteenth day of February two thousand and two in three copies one of which will be placed in the archives of the Court and the others transmitted to the Govc rnment of the Demo- cratic Republic of the Congo and the Government of the Kingdom of Belgium respectively Signed Gilbert GUILLAUME President Signed Philippe COUVREUR Registrar President G U I L L A U appends ME a separate opinion to the Judgment of the Court Judge ODAappends a dissenting opinion to the Judgment of the Court Judge RAN IEVA appends a declaration I O the Judgment of the Court Judge KOROMA appends a separate opinic nto the Judgment of the Court u d g e sHIGGINS KOOIJMANS and BCERGENTHAL append a joint separate opinion to the Judgment of the Court Jiidge REZEKappends a separate opinion to ithe Judgment of the Court ludge AL-KHASAWNEH appends a dissenting opinion to the Judgment of the Court Judge ad hoc BULA-BULA appends a separate opinion to the Judgment of the Court Judge rid hoc VAND E N WYNGAERT appends a dissenting opinion to the Judgment of tlhe Court Znitiulled G G Znitiulled Ph C