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III. Case Concerning the Arrest Warrant of April (Democratic Republic of the Congo v. Belgium)

Published online by Cambridge University Press:  17 January 2008

Malcolm D. Evans  and
Chanaka Wickremasinghe
Chanaka Wickremasinghe
Affiliation:
University of Bristol. I should like to thank Daniel Bethlehem for some helpful conversations during the course of the preparation of this note: however all views expressed and any errors are entirely my own responsibility.
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Extract

An initiating Application filed by the Democratic Republic of Congo (DRC) against Belgium on 17 October 20001 potentially raises similar issues to those raised by the Pinochet case,2 namely the scope of “universal” jurisdiction in relation to serious international crimes against individuals (in this case “grave breaches of the 1949 Geneva Conventions and the 1977 Protocols thereto and crimes against humanity”) and the question of immunity where State officials (in this case a Foreign Minister) are accused thereof. As such it may represent an opportunity for the Court to give an authoritative ruling on these highly controversial and sensitive issues of international law, which seem to be raised with increasingly regularity before national courts. However for now such a ruling is a matter for the future, as on 8 December 2000 the Court dismissed the DRC application for provisional measures, and thus made no comment on the substantive issues of the case. Instead it found that certain intervening factual developments had removed from the application for provisional measures the requisite elements of irreparable prejudice to the rights of the applicant and urgency, thus obviating any need for an Order to be made at this stage.

Type
Research Article
Information
International & Comparative Law Quarterly , Volume 50 , Issue 3 , July 2001 , pp. 670 - 675
Copyright
Copyright © British Institute of International and Comparative Law 2001

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References

1. Referred to as the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium).

2. R. v. Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No.3) [1999] 2 W.L.R. 827.Google Scholar

3. It might be noted that in a number of cases such as the 1984 Torture Convention, and the various anti-terrorist and hijacking conventions, the article concerning jurisdiction is often formulated by naming, in the first paragraph, certain grounds of jurisdiction on familiar bases such as territoriality, nationality, place of registration of relevant vessels or aircraft, and even passive personality. Then the second paragraph of the relevant article will often provide that “each State shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him” to one of the States willing to exercise jurisdiction on one of the named bases contained in the first paragraph. Thus it is argued that jurisdiction does not quite amount to universal under such provisions as the presence of the accused on the territory of the prosecuting State is still required.

4. See the speech of Mr Lumu of 22 Nov. 2000, particularly in section 1.1 on respect for diplomatic immunity.

5. E.g. see the pleading of Jacques Vergès of 20 Nov. 2000 “…no sovereign state can agree the composition of its government should be dictated to it by a foreign power”.

6. See the speech of Mr Lumu on 22 Nov. 2000, in particular in section 2 on the jurisdiction of the Court and the urgency of provisional measures.

7. See Provisional Measures Orders of 2 June 1999 in the cases concerning Legality of the Use of Force (Yugoslavia v. Belgium) and (Yugoslavia v. Netherlands)—for commentary see Gray, C. (2000) 49 I.C.L.Q. 730.CrossRefGoogle Scholar

8. See Legal Status of South-Eastern Greenland, Order of 3 Aug. 1932, PCIJ Ser. A/B No. 48.

9. In accordance with the findings of the PCIJ in Polish Agrarian Reform and the German Minority, Order of 29 July 1933, PCIJ, Series A/B No. 58.

10. See Factory at Chorzow, Order of 21 Nov. 1927, PCIJ, Series A, No. 12, at p. 10.

11. Order of 14 April 1992, 1992 ICJ Rep. p. 3.

12. See Order of 12 Dec. 2000, at para. 60. It might be noted that Judge Oda expressed certain reservations on this finding.

13. See in this respect the Separate Opinion of Judge Parra-Aranguren.

14. See Order of 8 Dec. 2000, at para. 68.

15. Ibid., at para. 63.

16. Ibid., at para. 76. For doubts on the necessity for this see Separate Opinion of Judge Oda.

17. The DRC Memorial was ordered to be filed within three months, and the Belgian counter-Memorial was to be filed three months thereafter, though these time limits were later extended. (For further details, see below, p.680.)