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| III. | The International Court of Justice |
| 2. | THE JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE |
| 2.2. | Conditions for a Decision on the Merits |
| 2.2.6. | Mootness |
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Arrest Warrant of 11 April 2000
Democratic Republic of the Congo v. Belgium,
Request for the Indication of Provisional Measures,
Order of 8 December 2000
[pp. ] 51. Whereas in the course of the present proceedings, the Court was informed by Belgium that on 20 November 2000 a Cabinet reshuffle had taken place in the Congo, as a result of which Mr. Yerodia Ndombasi, the subject of the arrest warrant of 11 April 2000, had ceased to exercise the functions of Minister for Foreign Affairs and had been charged with those of Minister of Education; and whereas this information was confirmed by the Congo;
52. Whereas Belgium contended that, because of this, the Congo's request for the indication of provisional measures, the entire basis of which was the fact that it was effectively impossible for the Minister for Foreign Affairs to "leav[e] that State in order to go to any other State which his duties require him to visit and, hence, [to carry] out those duties", had been rendered without object and should therefore be refused; and whereas it further contended that "such a fundamental change of circumstances affect[ed] the Application ... to such an extent as to vitiate all future proceedings based on that Application", and it requested the Court to order that the case be removed from its List;
53. Whereas, anticipating the argument by Belgium that the Application is without object, the Congo emphasized that in any event Belgium had violated the immunities of the Minister for Foreign Affairs at the time of the issue of the warrant and that, in view of "the technical nature and the growing complexity of international relations", "any minister sent by his or her State to represent it abroad ... enjoy[ed], sensu lato, ... [such] immunities";
54. Whereas it falls to the Court first of all to address the question of whether, as a result of the said ministerial reshuffle, the Application of the Congo has been deprived of its object and must therefore be removed from the List; and whereas the Court will subsequently examine the separate question of whether, as a result of this reshuffle, the request for the indication of provisional measures by the Congo has been rendered without object and must consequently be rejected;
55. Whereas the Court has the power to remove from its List in limine "a case upon which it appears certain [that it] will not be able to adjudicate on the merits" (Legality of Use of Force (Yugoslavia v. Spain), Provisional Measures, Order of 2 June 1999, I.C.J Reports 1999, para. 35); whereas
"[t]he Court has already acknowledged, on several occasions in the past, that events subsequent to the filing of an application may 'render [the] application without object' (Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988, p. 95, para. 66) and 'therefore the Court is not called upon to give a decision thereon' (Nuclear Tests (Australia v. France), Judgment, I. C.J. Reports 1974, p. 272, para. 62) (cf. Northern Cameroons, Judgment, I.C.J. Reports 1963, p. 38)" (Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Preliminary Objection, Judgment, I.C.J. Reports 1998, p. 26, para. 46);
and whereas mootness of the Application is one of the grounds which may lead the Court to remove a case from its List without further consideration;
56. Whereas, in order to determine whether the Congo's Application has been rendered without object, the claim which it contains has to be ascertained; whereas, in the Application, "[t]he Court is requested to declare that ... Belgium shall annul the international arrest warrant issued on 11 April 2000 ... against the Minister for Foreign Affairs in office of the Democratic Republic of the Congo, Mr. Abdulaye Yerodia Ndombasi"; whereas, to date, the aforesaid warrant has not been withdrawn and still relates to the same individual, notwithstanding the new ministerial duties that he is performing; and whereas at the hearings the Congo maintained its claim on the merits, together with the various grounds relied on in support thereof;
57. Whereas, in view of the foregoing, the Court concludes that the Congo's Application has not at the present time been deprived of its object; and whereas it cannot therefore accede to Belgium's request for the case to be removed from the List at this stage of the proceedings;
58. Whereas this finding does not however resolve the separate question of whether or not the request for the indication of provisional measures would have been deprived of its object after 20 November 2000; and whereas Belgium claims that that request is now without object;
59. Whereas the request for the indication of a provisional measure submitted by the Congo following the filing of its Application "seeks an order for the immediate discharge of the disputed arrest warrant"; whereas, as has just been pointed out (see paragraph 56 above), that arrest warrant continues to be in the name of Mr. Yerodia Ndombasi; whereas at the hearings the Congo maintained its original request, presenting it as follows:
"Consequently, the Democratic Republic of the Congo requests the Court to order Belgium to comply with international law; to cease and desist from any conduct which might exacerbate the dispute with the Democratic Republic of the Congo; in particular, to discharge the international arrest warrant issued against Minister Yerodia";
whereas the Congo considers that Mr. Yerodia Ndombasi continues to enjoy immunities which render the arrest warrant unlawful; and whereas it furthermore maintained its argument, based on urgency and the risk of irreparable prejudice, put forward in support of its request;
60. Whereas the Court concludes from the foregoing that the request by the Congo for the indication of provisional measures has not been deprived of its object by reason of Mr. Yerodia Ndombasi's appointment as Minister of Education an 20 November 2000;
