© Ruwanthika Gunaratne/ Public International Law at https://ruwanthikagunaratne.wordpress.com.
Name of the Case: Arrest Warrant of 11 April 2000 (Democratic Republic of Congo vs Belgium); Year of the decision: 2002; and Court: ICJ.
Overview: Belgium issued and circulated internationally, an arrest warrant against the incumbent Foreign Minister of Congo, based on universal jurisdiction. Congo asked the ICJ to decide that Belgium violated international law because it did not respect the inviolability and immunities of the foreign minister from criminal process before Belgian courts.
Facts of the Case:
On 11 April 2000, a Belgian Magistrate issued an international arrest warrant against Mr. Yerodia. At the time, Yerodia was the Foreign Minister of the Congo. The Court issued the warrant based on universal jurisdiction. It accused Yerodia of inciting racial hatred. These speeches, allegedly, incited the population to attack Tutsi residents in Rwanda, which resulted in many deaths. The warrant alleged that Yerodia committed grave breaches of the Geneva Conventions of 1949 and its Additional Protocols and crimes against humanity. Belgium sent the arrest warrant to Interpol and circulated it to all States, including to the Congo. The warrant asked States to arrest, detain, and extradite Yerodia to Belgium. After Belgium issued the warrant, in November 2000, Yerodia became the Education Minister. At the time of the ICJ’s judgement, he did not hold a Ministerial post in Congo.
Questions before the Court:
Did Belgium violate principles of customary international law concerning the absolute inviolability and immunity from criminal process of an incumbent Foreign Minister, when it issued and internationally circulated the arrest warrant? If yes, did it violate the principle of sovereign equality amongst States; does this alleged unlawfulness preclude States who received the warrant from exercising it; should the Court order reparations; and should Belgium recall and cancel its arrest warrant?
[NB: The Congo placed two separate legal questions before the Court at the time of its application to the ICJ. It contested Belgium‘s basis of jurisdiction – universal jurisdiction – stating that it violated the principle of sovereign equality (see para 17 of the judgement). Both the Congo and the Court did not discuss this in its final submissions and judgement (see paras 41 – 43, 45, 46). Several judges in their separate opinions discussed the issue (see below).]
Belgium raised four objections to the jurisdiction of the Court. One argument was that there was no longer a legal dispute because Yerodia was no longer the Foreign Minister. The Court rejected all four objections (see paras 23 – 40, 44).
The Court’s Decision:
The issuance and circulation of the arrest warrant violated Belgium’s international obligations towards the Congo. Belgium failed to respect, and infringed, Yerodia’s immunity and the inviolability enjoyed by him under international law.
Relevant Findings of the Court:
1. It is an established principle of international law that Heads of States and Governments, Foreign Ministers and Diplomatic and Consular agents enjoys immunities from civil and criminal jurisdictions of other States.
2. In the absence of treaty law, customary international law determines the immunities of Ministers of Foreign Affairs. These immunities “…are not given for their personal benefit; but to ensure the effective performance of their functions of behalf of their…States”. The functions of the Foreign Minister require frequent travel to other countries. International law recognizes him as a representative of the State solely by virtue of his office. The functions of a Foreign Minister are such that – during his tenure – he enjoys absolute immunity from criminal jurisdiction and inviolability when he is abroad.
3. As the incumbent Foreign Minister, Yerodia enjoys immunity (during his tenure) for acts performed, both, in an official capacity and in a private capacity. The immunity applies regardless of whether the Minister is on foreign territory in an official or private visit. This immunity extends not only to his actions during his tenure; but, also to his actions before he became Foreign Minister.
“Thus, if a Minister for Foreign Affairs is arrested in another State on a criminal charge, he or she is thereby prevented from exercising the functions of his or her office. The consequences of such impediment to the exercise of those official functions are equally serious…. Furthermore, even the mere risk that, by travelling to or transiting another State a Minister for Foreign Affairs might be exposing himself or herself to legal proceedings could deter the Minister from travelling internationally when required to do so for the purposes of the performance of his or her official functions.”
4. The Court rejected Belgium’s argument that the Minister does not enjoy immunity because he is accused of having committed war crimes or crimes against humanity. (Belgium relied on the Pinochet Case (decided by the House of Lords, UK), the Qaddafi Case (decided by the French Court of Cassation) and Statutes of International Criminal Court and Tribunals.) The Court held that there was no exception in customary international law to the absolute immunity of an incumbent Foreign Minister.
” It (the Court) has been unable to deduce from this practice that there exists under customary international law any form of exception to the rule according immunity from criminal jurisdiction and inviolability to incumbent Ministers of Foreign Affairs, when they are suspected of having committed war crimes or crimes against humanity…The Court has also examined the rules concerning the immunity or criminal responsibility of persons having an official capacity contained in the legal instruments creating international criminal tribunals, and which are specifically applicable … It finds that these rules likewise do not enable it to conclude that any such an exception exists in customary international law in regard to national courts.”
5. International Conventions give jurisdiction to national Courts over various crimes and, at times, requires them to exercise this jurisdiction [for example, the Torture Convention]. This requirement does not affect the immunities given to Foreign Ministers under international law. Despite international conventions establishing domestic jurisdiction, Foreign Ministers are immune before foreign courts.
6. Immunity does not mean impunity. The person continues to be individually responsible for the crime he committed.
“While jurisdictional immunity is procedural in nature, criminal responsibility is a question of substantive law. Jurisdictional immunity may well bar prosecution for a certain period or for certain offences; it cannot exonerate the person to whom it applies from all criminal responsibility….”
7. The Court set out four situations where an incumbent or former Foreign Minister could be prosecuted:
a. Prosecution in his own country according to the domestic law (the international law of immunity is not recognized before a person’s national courts);
b. If his country waives his immunity, then prosecution before a foreign court;
c. Once he ceases to be the Foreign Minister, he no longer enjoys immunity before foreign courts for private acts committed during his tenure as Foreign Minister; and for all acts committed before or after his tenure in office; and
d. Prosecution before an international criminal body, with the necessary jurisdiction (for example the ICC).
8. The ICJ concluded that the issuance and circulation of the arrest warrant violated Belgium’s obligations towards Congo, “in that it failed to respect the immunity of that Minister and, more particularly infringed the immunity from criminal jurisdiction and the inviolability enjoyed by him under international law.” It did not matter that Yerodia was never arrested.
“Since Mr. Yerodia was called upon in that capacity to undertake travel in the performance of his duties, the mere international circulation of the warrant… could have resulted, in particular, in his arrest while abroad. The Court observes… Mr. Yerodia, “on applying for a visa to go to two countries, [apparently] learned that he ran the risk of being arrested as a result of the arrest warrant issued against him by Belgium”… the arrest warrant ‘sometimes forced Minister Yerodia to travel by roundabout routes”‘.
9. Congo asked the Court to rule that the unlawfulness of the arrest warrant precludes States who received the warrant from exercising it. The Court refused to indicate what the judgment’s implications might be for third States. Its determination is limited to Congo and Belgium. [NB: the Statute of the ICJ requires that its rulings should not create binding obligations on States who are not parties to the dispute.]
10. On reparation, the Court held that the issuance and circulation of the arrest warrant engaged Belgium’s international responsibility. “The Court… considers that Belgium must, by means of its own choosing, cancel the warrant in question and so inform the authorities to whom it was circulated.” The Court did not order any other reparations.
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