|I.||Substantive International Law - First Part|
|8.||VIOLATIONS OF INTERNATIONAL LAW AND RESPONSIBILITY OF STATES|
|8.9.||Consequences of an Internationally Wrongful Act|
Arrest Warrant of 11 April 2000
(Democratic Republic of the Congo v. Belgium)
Judgment of 14 February 2002
[pp. 31- 32] 75. The Court has already concluded (see paragraphs 70 and 71) that the issue and circulation of the arrest warrant of 11 April 2000 by the Belgian authorities failed to respect the immunity of the incumbent Minister for Foreign Affairs of the Congo and, more particularly, infringed the immunity from criminal jurisdiction and the inviolability then enjoyed by Mr. Yerodia under international law. Those acts engaged Belgiums international responsibility. The Court considers that the findings so reached by it constitute a form of satisfaction which will make good the moral injury complained of by the Congo.
76. However, as the Permanent Court of International Justice stated in its Judgment of 13 September 1928 in the case concerning the Factory at Chorzów:
[t]he essential principle contained in the actual notion of an illegal act - a principle which seems to be established by international practice and in particular by the decisions of arbitral tribunals - is that reparation must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed (P.C.I.J., Series A, No. 17, p. 47).
In the present case, the situation which would, in all probability, have existed if [the illegal act] had not been committed cannot be re-established merely by a finding by the Court that the arrest warrant was unlawful under international law. The warrant is still extant, and remains unlawful, notwithstanding the fact that Mr. Yerodia has ceased to be Minister for Foreign Affairs. The Court accordingly 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.
77. The Court sees no need for any further remedy: in particular, the Court cannot, in a judgment ruling on a dispute between the Congo and Belgium, indicate what that judgments implications might be for third States, and the Court cannot therefore accept the Congos submissions on this point.
[p. 53 D.O. Oda] 15. I find little sense in the Courts finding in paragraph (3) of the operative part of the Judgment, which in the Courts logic appears to be the consequence of the finding set out in paragraph (2) (Judgment, para. 78). Given that the Court concludes that the violation of international law occurred in 2000 and the Court would appear to believe that there is nothing in 2002 to prevent Belgium from issuing a new arrest warrant against Mr. Yerodia, this time as a former Foreign Minister and not the incumbent Foreign Minister, there is no practical significance in ordering Belgium to cancel the arrest warrant of April 2000. If the Court believes that this is an issue of the sovereign dignity of the Congo and that that dignity was violated in 2000, thereby causing injury at that time to the Congo, the harm done cannot be remedied by the cancellation of the arrest warrant; the only remedy would be an apology by Belgium. But I do not believe that Belgium caused any injury to the Congo because no action was ever taken against Mr. Yerodia pursuant to the warrant. Furthermore, Belgium was under no obligation to provide the Congo with any assurances that the incumbent Foreign Ministers immunity from criminal jurisdiction would be respected under the 1993 Law, as amended in 1999, but that is not the issue here.
[p. 89-90 J.S.O. Higgins, Kooijmans, Buergenthal] 87. In paragraph (3) of the dispositif, the Court [f]inds that the Kingdom of Belgium must, by means of its own choosing, cancel the arrest warrant of 11 April 2000 and so inform the authorities to whom that warrant was circulated. In making this finding, the Court relies on the proposition enunciated in the Factory at Chorzów case pursuant to which reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would ... have existed if that act had not been committed (P.C.I.J., Series A, No. 17, p. 47). Having previously found that the issuance and circulation of the warrant by Belgium was illegal under international law, the Court concludes that it must be withdrawn because the warrant is still extant, and remains unlawful, notwithstanding the fact that Mr. Yerodia has ceased to be Minister for Foreign Affairs.
88. We have been puzzled by the Courts reliance on the Factory at Chorzów case to support its finding in paragraph (3) of the dispositff. It would seem that the Court regards its order for the cancellation of the warrant as a form of restitutio in integrum. Even in the very different circumstances which faced the Permanent Court in the Factory at Chorzów case, restitutio in the event proved impossible. Nor do we believe that restoration of the status quo ante is possible here, given that Mr. Yerodia is no longer Minister for Foreign Affairs.
89. Moreover - and this is more important - the Judgment suggests that what is at issue here is a continuing illegality, considering that a call for the withdrawal of an instrument is generally perceived as relating to the cessation of a continuing international wrong (International Law Commission, Commentary on Article 30 of the Articles of State Responsibility, A/56/10 (2001), p. 216). However, the Courts finding in the instant case that the issuance and circulation of the warrant was illegal, a conclusion which we share, was based on the fact that these acts took place at a time when Mr. Yerodia was Minister for Foreign Affairs. As soon as he ceased to be Minister for Foreign Affairs, the illegal consequences attaching to the warrant also ceased. The mere fact that the warrant continues to identify Mr. Yerodia as Minister for Foreign Affairs changes nothing in this regard as a matter of international law, although it may well be that a misnamed arrest warrant, which is all it now is, may be deemed to be defective as a matter of Belgian domestic law; but that is not and cannot be of concern to this Court. Accordingly, we consider that the Court erred in its finding on this point.
[pp. 83 D.O. Van den Wyngaert] 83. I still need to give reasons for my vote against paragraph 78 (3) of the dispositif, calling for the cancellation and the de-circulation of the disputed arrest warrant. Even assuming, arguendo, that the arrest warrant was illegal in the year 2000, it was no longer illegal at the moment when the Court gave Judgment in this case. Belgiums alleged breach of an international obligation did not have a continuing character: it may have lasted as long as Mr. Yerodia was in office, but it did not continue in time thereafter1. For that reason, I believe the International Court of Justice cannot ask Belgium to cancel and decirculate an act that is not illegal today.
|1||See Art. 14 of the 2001 ILC Draft Articles
on State Responsibility, United Nations doc. A/CN.4/L.602/Rev.1,
concerning the extension in time of the breach of an
international obligation, which states the following:
1. The breach of an international obligation by an act of a State not having a continuing character occurs at the moment when the act is performed, even if its effects continue.
2. The breach of an international obligation by an act of a State having a continuing character extends over the entire period during which the act continues and remains not in conformity with the international obligation ...