|II.||Substantive International Law - Second Part|
|12.||DIPLOMACY AND CONSULAR MATTERS|
Arrest Warrant of 11 April 2000
(Democratic Republic of the Congo v. Belgium)
Judgment of 14 February 2002
[pp. 178-179 D.O. Van den Wyngaert] 72. Mr. Yerodia was never arrested, either when he visited Belgium officially in June 20001 or thereafter. Had it applied the only relevant provision of conventional international law to the dispute, Article 21, paragraph 2, of the Special Missions Convention, the Court could not have reached its decision. According to this article, Foreign Ministers when they take part in a special mission of the sending State, shall enjoy in the receiving State or in third State, in addition to what is granted by the present Convention, the facilities, privileges and immunities accorded by international law2. In the present dispute, this could only lead to the conclusion that there was no violation: the warrant was never executed, either in Belgium, or in third countries.
73. Belgium accepted, as a matter of international courtesy, that the warrant could not be executed against Mr. Yerodia were he to have visited Belgium officially. This was explicitly mentioned in the warrant: the warrant was not enforceable and was in fact not served on him or executed when Mr. Yerodia came to Belgium on an official visit in June 2001. Belgium thus respected the principle, contained in Article 21 of the Special Missions Convention, that is not a statement of customary international law but only of international courtesy3.
74. These are the only objective elements the Court should have looked at. The subjective elements, i.e., whether the warrant had a psychological effect on Mr. Yerodia or whether it was perceived as offensive by the Congo (cf. the term iniuria used by Maître Rigaux throughout his pleadings in October 20014 and the term capitis diminutio used by Maître Vergès during his pleadings in November 20005) was irrelevant for the dispute. The warrant only had a potential legal effect on Mr. Yerodia as a private person in case he would have visited Belgium privately, quod non.
75. In its dispositif (Judgment, para. 78 (2)), the Court finds that Belgium failed to respect the immunity from criminal jurisdiction and inviolability for incumbent Foreign Ministers. I have already explained why, in my opinion, there has been no infringement of the rules on immunity from criminal jurisdiction. I find it hard to see how, in addition (the Court using the word and), Belgium could have infringed the inviolability of Mr. Yerodia by the mere issuance of a warrant that was never enforced.
The Judgment does not explain what is meant by the word inviolability, and simply juxtaposes it to the word immunity. This may give rise to confusion. Does the Court put the mere issuance of an order on the same footing as the actual enforcement of the order? Would this also mean that the mere act of investigating criminal charges against a Foreign Minister would be contrary to the principle of inviolability?
Surely, in the case of diplomatic agents, who enjoy absolute immunity and inviolability under the 1961 Vienna Convention on Diplomatic Relations6, allegations of criminal offences may be investigated as long as the agent is not interrogated or served with an order to appear. This view is clearly stated by Jean Salmon7. Jonathan Brown notes that, in the case of a diplomat, the issuance of a charge or summons is probably contrary to the diplomats immunity, whereas its execution would be likely to infringe the agents inviolability8.
If the Courts dispositif were to be interpreted as to mean that mere investigations of criminal charges against Foreign Ministers would infringe their inviolability, the implication would be that Foreign Ministers enjoy greater protection than diplomatic agents under the Vienna Convention. This would clearly go beyond what is accepted under international law in the case of diplomats.
|1||Mr. Yerodias visit to Belgium is not mentioned in the Judgment because the Parties were rather unclear on this point. Yet, it seems that Mr. Yerodia effectively visited Belgium on 17 June 2000. This was reported in the media (see the statement by the Minister for Foreign Affairs in De Standaard, 7 July 2000) and also in a question that was put in Parliament to the Minister of Justice. See Question orale de M. Tony Van Parys au ministre de la Justice sur lintervention politique du gouvernement dans le dossier à charge du ministre congolais des Affaires étrangères, M. Yerodia, Chambre des représentants de la Belgique, Compte Rendu Intégral avec compte rendu analytique, Commission de la Justice, 14 Nov. 2000, CRIV 50 COM 294, p. 12. Despite the fact that this fact is not, as such, recorded in the documents that were before the International Court of Justice, I believe the Court could have taken judicial notice of it.|
|2||Supra, para. 18.|
|3||See the statement of the International Law Commissions Special Rapporteur, referred to supra, para. 17.|
|7||J. Salmon, Manuel de droit diplomatique, Brussels, Bruylant, 1994, p. 304.|
|8||J. Brown, Diplomatic immunity: State Practice Under the Vienna Convention on Diplomatic Relations, 37 ICLQ 1988, p. 53.|