Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) Kevin R. Gray * Download the Complete Survey RTF | PDF** Preliminary Matters Immunity of Foreign Ministers International Wrong Universal Jurisdiction Future Questions Conclusions An arrest warrant was issued on 11 April 2000 against Mr. Abdulaye Yerodia Ndombasi for offences constituting grave breaches of the Geneva Conventions of 1949, and the Additional Protocols, as well as with crimes against humanity. These charges related to the alleged making of speeches inciting racial hatred in August 1998 in the Democratic Republic of Congo (DRC), causing a massacre of several hundred Tutsis. The complaints that premised the Court's investigation were by victims of the alleged act and others who were Belgian nationals. The warrant was issued pursuant to the Belgian Law of 16 June 1993, 'concerning the Punishment of Grave Breaches of the International Geneva Conventions of 12 August 1949 and of Protocols I and II of 8 June 1977 Additional Thereto',1 as amended by the Law of 19 February 1999 'concerning the Punishment of Serious Violations of International Humanitarian Law'.2 Such crimes were punishable in Belgium irrespective of where they were committed or the nationality of the perpetrator or the victims. Prosecutorial action could be taken against an accused person despite their absence from Belgian territory. In addition, the Belgian Law precluded claims of immunity based on acts of an official capacity. While the warrant was issued, Mr. Yerodia was the Minister for Foreign Affairs of the DRC. The Congolese government claimed that the international circulation of the arrest warrant against Mr. Yerodia violated the rules of customary international law on absolute inviolability and immunity from criminal process for incumbent foreign ministers. They also challenged the Belgian law based on the principle of universal jurisdiction, claimed to violate the territorial integrity of other states and the principle of sovereign equality. They requested that the Court: declare the circulation to be an unlawful act; order reparation to satisfy the moral injury to the Congo; revoke the arrest warrant; and renounce the request for cooperation in executing the warrant. In November 2000, a cabinet reshuffle in the DRC resulted in the removal of Mr. Yerodia from his Foreign Affairs portfolio and a transfer to the position of Minister of Education. Prior to this, the DRC had applied for interim measures to discharge the arrest warrant, allegedly limiting Mr. Yerodia's ability to travel and exercise his functions as a foreign minister. The Court refused the application. Although the arrest warrant was still in place, the new post of Minister of Education did not involve as much international travel, therefore mitigating any future damages caused by the arrest warrant. In April 2001, Mr. Yerodia ceased to hold any position with the new government in the DRC. Following the change in Mr. Yerodia's position, Belgium requested the Court to declare the case moot, since there was no longer a 'legal dispute' between the parties. In turn, the DRC withdrew its submissions concerning universal jurisdiction, claiming only the violation of absolute inviolability and immunity from criminal process of incumbent foreign ministers. * Kevin R. Gray is the Fellow in International Law and Human Rights at the British Institute of International and Comparative Law. ** The free viewer (Acrobat Reader) for PDF file is available at the Adobe Systems. 1 Loi relative à la repression des infractions graves aux Conventions internationals de Genève du 12 août 1949 et aux Protocoles I et II du 9 juin 1977, additionnels à ces Conventions, 16 June 1993, Montier Belge, 5 August 1993. 2 Loi relative à la repression des violations graves de droit international humanitaire, 10 février 1999, Montieur Belge, 23 March 1999 (English translation at (1999) 38 ILM 918.
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