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| III. | The International Court of Justice |
| 3. | THE PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE |
| 3.4. | The Submissions / Scope of the Dispute |
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Arrest Warrant of 11 April 2000
(Democratic Republic of the Congo v. Belgium)
Judgment of 14 February 2002
[pp. 15-16] 33. The third Belgian objection is put as follows:
“That the case as it now stands is materially different to that set out in the [Congo]’s Application instituting proceedings and that the Court accordingly lacks jurisdiction in the case and/or that the application is inadmissible.”
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36. The Court notes that, in accordance with settled jurisprudence, it “cannot, in principle, allow a dispute brought before it by application to be transformed by amendments in the submissions into another dispute which is different in character” (Société Commerciale de Belgique, Judgment, 1939, P.C.I.J., Series A/B, No. 78, p. 173; cf. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 427, para. 80; see also Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, I.C.J. Reports 1992, pp. 264-267, in particular paras. 69 and 70). However, the Court considers that in the present case the facts underlying the Application have not changed in a way that produced such a transformation in the dispute brought before it. The question submitted to the Court for decision remains whether the issue and circulation of the arrest warrant by the Belgian judicial authorities against a person who was at that time the Minister for Foreign Affairs of the Congo were contrary to international law. The Congo’s final submissions arise “directly out of the question which is the subject-matter of that Application” (Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Merits, Judgment, I.C.J. Reports 1974, p. 203, para. 72; see also Temple of Preah Vihear, Merits, Judgment, I.C.J. Reports 1962, p. 36). In these circumstances, the Court considers that Belgium cannot validly maintain that the dispute brought before the Court was transformed in a way that affected its ability to prepare its defence, or that the requirements of the sound administration of justice were infringed.
[pp. 18 19] 41. As a subsidiary argument, Belgium further contends that “[i]n the event that the Court decides that it does have jurisdiction in this case and that the application is admissible, ... the non ultra petita rule operates to limit the jurisdiction of the Court to those issues that are the subject of the [Congo]’s final submissions”.
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43. The Court would recall the well-established principle that “it is the duty of the Court not only to reply to the questions as stated in the final submissions of the parties, but also to abstain from deciding points not included in those submissions” (Asylum, Judgment, I.C.J. Reports 1950, p. 402). While the Court is thus not entitled to decide upon questions not asked of it, the non ultra petita rule nonetheless cannot preclude the Court from addressing certain legal points in its reasoning. Thus in the present case the Court may not rule, in the operative part of its Judgment, on the question whether the disputed arrest warrant, issued by the Belgian investigating judge in exercise of his purported universal jurisdiction, complied in that regard with the rules and principles of international law governing the jurisdiction of national courts. This does not mean, however, that the Court may not deal with certain aspects of that question in the reasoning of its Judgment, should it deem this necessary or desirable.
[pp. 49-50 D.O. Oda] 8. ... It is to be noted, firstly, that between filing its Application of 17 October 2000 and submitting its Memorial on 15 May 2001, the Congo restated the issues, changing the underlying subject-matter in the process.
The Congo contended in the Application: (i) that the 1993 Belgian Law, as amended in 1999, violated the “principle that a State may not exercise [its authority] on the territory of another State” and the “principle of sovereign equality” and (ii) that Belgium’s exercise of criminal jurisdiction over Mr. Yerodia, then Minister for Foreign Affairs of the Congo, violated the “diplomatic immunity of the Minister for Foreign Affairs of a sovereign State”. The alleged violations of those first two principles concern the question of “universal jurisdiction”, which remains a matter of controversy within the international legal community, while the last claim relates only to a question of the “diplomatic immunity” enjoyed by the incumbent Minister for Foreign Affairs.
9. The Congo changed its claim in its Memorial, submitted seven months later, stating that
“by issuing and internationally circulating the arrest warrant of 11 April 2000 against [Mr. Yerodia], Belgium committed a violation in regard to the DRC of the rule of customary international law concerning the absolute inviolability and immunity from criminal process of incumbent foreign ministers” (Memorial of the Democratic Republic of the Congo of 15 May 2001, p. 64 [translation by the Registry]).
Charging and arresting a suspect are clearly acts falling within the exercise of a State’s criminal jurisdiction. The questions originally raised - namely, whether a State has extraterritorial jurisdiction over crimes constituting serious violations of humanitarian law wherever committed and by whomever (in other words, the question of universal jurisdiction) and whether a Foreign Minister is exempt from such jurisdiction (in other words, the question of diplomatic immunity) - were transmuted into questions of the issue and international circulation” of an arrest warrant against a Foreign Minister and the immunities of incumbent Foreign Ministers.
This is clearly a change in subject-matter, one not encompassed in “the right to argue further the grounds of its Application”, which the Congo reserved in its Application of 17 October 2000.
10. It remains a mystery to me why Belgium did not raise preliminary objections concerning the Court’s jurisdiction at the outset of this case. Instead, it admitted in its Counter-Memorial that there had been a dispute between the two States, one susceptible to judicial settlement by the Court, at the time the proceedings were instituted and that the Court was then seised of the case, as the Court itself finds (Judgment, paras. 27-28). Did Belgium view this as a case involving a unilateral application and the Respondent’s subsequent recognition of the Court’s jurisdiction, instances of which are to be found in the Court’s past?
Belgium seems to have taken the position that once Mr. Yerodia had ceased to be Foreign Minister, a dispute existed concerning him in his capacity as a former Foreign Minister and contended that the Court lacked jurisdiction under those circumstances. Thus, Belgium also appears to have replaced the issues as they existed on the date of the Congo’s Application with those arising at a later date. It would appear that Belgium did not challenge the Court’s jurisdiction in the original case but rather was concerned only with the admissibility of the Application or the mootness of the case once Mr. Yerodia had been relieved of his duties as Foreign Minister (see Belgium’s four preliminary objections raised in its Counter-Memorial, referred to in the Judgment, paras. 23, 29, 33 and 37).
In this respect, I share the view of the Court (reserving, of course, my position that a dispute did not exist) that the alleged dispute was the one existing in October 2000 (Judgment, para. 38) and, although I voted against paragraph 78 (1) (A) of the Judgment for the reasons set out in paragraph 1 of my opinion, I concur with the Court in rejecting Belgium’s objections relating to “jurisdiction, mootness and admissibility” in regard to the alleged dispute which Belgium believed existed after Mr. Yerodia left office.
Certainly, the question whether a former Foreign Minister is entitled to the same privileges and immunities as an incumbent Foreign Minister may well be a legal issue but it is not a proper subject of the present case brought by the Congo in October 2000.
[p. 67 J.S.O. Higgins, Kooijmans, Buergenthal] 13. Thus the ultra petita rule can operate to preclude a finding of the Court, in the dispositif, on a question not asked in the final submissions by a party. But the Court should not, because one or more of the parties finds it more comfortable for its position, forfeit necessary steps on the way to the finding it does make in the dispositif. The Court has acknowledged this in paragraph 43 of the present Judgment. But having reserved the right to deal with aspects of universal jurisdiction in its reasoning, “should it deem this necessary or desirable”, the Court says nothing more on the matter.
[p. 98 D.O. Al-Khasawneh] 7. The effective combating of grave crimes has arguably assumed a jus cogens character reflecting recognition by the international community of the vital community interests and values it seeks to protect and enhance. Therefore when this hierarchically higher norm comes into conflict with the rules on immunity, it should prevail. Even if we are to speak in terms of reconciliation of the two sets of rules, this would suggest to me a much more restrictive interpretation of the immunities of high-ranking officials than the Judgment portrays. Incidentally, such a restrictive approach would be much more in consonance with the now firmly-established move towards a restrictive concept of State immunity, a move that has removed the bar regarding the submission of States to jurisdiction of other States often expressed in the maxim par in parem non habet imperium. It is difficult to see why States would accept that their conduct with regard to important areas of their development be open to foreign judicial proceedings but not the criminal conduct of their officials.
[p. 111 S.O. Bula-Bula] 31. Did the Congo’s final submissions preclude the Court from ruling on the question of the so-called universal jurisdiction?
32. It is true that the Congo’s „final submissions“ make no mention whatever of this question. They seek to have the Court enforce the „rule of international customary law concerning the absolute inviolability and immunity from criminal process of incumbent foreign ministers; in so doing [the Respondent] violated the principle of sovereign equality among States“1.
33. The issue here is one of judicial procedure. Did the Applicant’s spectacular change of position on this point require the Court not to rule on so-called universal jurisdiction in the operative part of its Judgment? Most definitely. It would have been criticized for ruling ultra petita. That is not the same as taking no collective position on the point. In any event, in so far as the Judgment’s reasoning failed to address this question, the opinions would do so.
| 1 | Footnote omitted. |
