Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo V. Belgium): The International Court of Justice's Failure to Take a Stand on Universal Jurisdiction

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CONTENTS  I   Introduction and Facts of the Case II  The Relief Requested and the Order on Provisional Measures III The Court's Judgment IV  The Separate and Dissenting Opinions     A The Opinions Not Dealing with the Substance of Universal     Jurisdiction     B The Opinions Dealing with the Substance of Universal Jurisdiction V   Analysis 

I INTRODUCTION AND FACTS OF THE CASE

On 14 February 2002 the International Court of Justice (`ICJ') gave its decision in the case brought by the Democratic Republic of the Congo (`DRC') against Belgium, challenging the latter's issuing of an international arrest warrant for a DRC citizen suspected of war crimes and crimes against humanity allegedly committed on the territory of the DRC. (1) By the time the Judgment was rendered, the case had aroused considerable interest and speculation among international lawyers, (2) as it would be the first to deal primarily with issues of state exercise of criminal jurisdiction under international law. This was a topic that had not been broached by an international tribunal of any description since the Permanent Court of International Justice's decision in the historic Lotus Case. (3) It also concerned jurisdiction over crimes which the events of the last decade of the 20th century have placed at the forefront of the contemporary development of international law. Additionally, the issue of immunity from jurisdiction figured prominently in the case, as the subject of the contested arrest warrant was none other than the incumbent Minister of Foreign Affairs of the DRC. This immediately brought to mind still-fresh memories of recent litigation, in which English courts adjudicated the susceptibility of the former Chilean President Augusto Pinochet Ugarte to extradition on charges of torture relating to the period of his military dictatorship. (4)

The facts of the case were as follows. An international arrest warrant was issued by a Belgian juge d'instruction in the Brussels Tribunal de premiere instance on 11 April 2000 against Abdulaye Yerodia Ndombasi, who was accused of inciting racial hatred against the Tutsi ethnic group during the course of a non-international armed conflict in the DRC in 1998. It was alleged that several hundred Tutsis were massacred as a consequence of Yerodia's incitement. Although at the time of the issue of the arrest warrant Yerodia had been appointed Foreign Minister of the DRC, the facts alleged in the warrant referred to a period during which he was the chef de cabinet of the former DRC President Laurent Kabila. The particulars of the arrest warrant charged Yerodia with grave breaches of the Geneva Conventions (5) and their Additional Protocols, (6) and crimes against humanity, invoking the Loi relative a la repression des violations graves du droit international humanitaire (Law concerning the Punishment of Serious Violations of International Humanitarian Law) (`Belgian Law') to found jurisdiction. (7) Article 7 of the Belgian Law provides for the universal jurisdiction of Belgian courts over war crimes, crimes against humanity and genocide, irrespective of the territoriality of the alleged offences and the nationality of the alleged perpetrators and victims. Further, article 5(3) of the Belgian Law expressly rules out the possibility of any claim of immunity `attaching to the official capacity of a person' precluding the jurisdiction of the courts thereunder.

II THE RELIEF REQUESTED AND THE ORDER ON PROVISIONAL MEASURES

In instituting its action in the ICJ, the DRC requested a declaration that Belgium, by issuing an international arrest warrant for Yerodia and circulating it to all states, had engaged in an excessive application of criminal jurisdiction unwarranted by international law, in that it constituted a violation of the territorial sovereignty of the DRC contrary to article 2(1) of the Charter of the United Nations, and a violation of the diplomatic immunity of an incumbent foreign minister contrary to article 41(2) of the Vienna Convention on Diplomatic Relations. …