121-Arrest Warrant of April 11th, 2000 (DRC vs Belgium)

121-Arrest Warrant of April 11th, 2000 (DRC vs Belgium)

On October 17th,2008, the Democratic Republic of the Congo (DRC) filed an application instituting proceedings against the Kingdom of Belgium before the International Court of Justice (ICJ) concerning an arrest warrant against Mr. Abdoulaye Yerodia Ndombasi, then acting minister of foreign affairs of the DRC, for ”serious violations of international humanitarian law”.

This application was accompanied by a request for the indication of provisional measures, the purpose of which was to order the immediate discharge of the disputed arrest warrant. Belgium requested that request be denied and that the case be struck of the List altogether. In its order of December 8th, 2000, the ICJ rejected Belgium’s request, but noted however, that as it stood, it could not accede to the DRC’s request because nothing seemed to call for provisional measures to be issued.

The Court ruled on the merits on the case in its judgment of February 14th, 2002. It responded in particular to the parties’ claims in regard to:

1. The question of the jurisdiction of the Court to hear this dispute, which was a point that had been raised by Belgium at the outset of the case. After examination, the ICJ decided that it could hear the case;
2. The alleged violation of the principle of the immunity of criminal jurisdiction and that the inviolability of a sitting minister of foreign affairs, in customary international law. The ICJ concluded that both these principles were internationally recognised, neither of which admitting any exception as to their application. It also clarified that it was not possible to distinguish between acts performed in an ”official” or ”private” capacity by the individual benefiting from this protection throughout the duration of his or her office, any more than to distinguish between actions taken before or during the performance of his or her duties. Concluding its analysis on the question, the Court emphasised that immunities under customary international law are enforceable before the courts of a foreign state, even if the foreign jurisdiction relies on different legal instruments such as international treaties or conventions. 

That being said, the ICJ clearly stated that there was a fundamental difference between immunity (a procedural concept which can prevent legal proceedings against a person for a while) and impunity (a concept touching on the substance of the law, prohibiting criminal liability of an individual). It concluded in stating that the issuance and diffusion of the arrest warrant of April 11th, 2000 was a clear violation of customary international law. Therefore, Belgium must, by any means necessary cancel the warrant and inform all the authorities to which it had been circulated.

This summary is provided for informational purposes only, does not involve the responsibility of Dome and should in no way be used as a substitute for a careful reading of the judgment and order of the case.