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| III. | The International Court of Justice |
| 3. | THE PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE |
| 3.10. | Provisional Measures |
| 3.10.1. | General Questions |
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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
[p. ] 69. Whereas the power of the Court to indicate provisional measures under Article 41 of the Statute of the Court has as its object to preserve the respective rights of the parties pending the decision of the Court, and presupposes that irreparable prejudice should not be caused to rights which are the subject of dispute in judicial proceedings; whereas it follows that the Court must be concerned to preserve by such measures the rights which may subsequently be adjudged by the Court to belong either to the Applicant or to the Respondent; and whereas such measures are justified solely if there is urgency;
70. Whereas in its Application the Congo requested the Court to annul the international arrest warrant issued against Mr. Yerodia Ndombasi by a Belgian investigating judge on 11 April 2000; whereas it contended that this warrant was in breach of international law in regard to the jurisdiction of national criminal courts and to the immunity of Heads of State and members of governments; whereas in requesting, as a provisional measure, the discharge of the arrest warrant, the Congo seeks to preserve its rights under both of those categories;
71. Whereas the circumstances relied on by the Congo, which in its view require the indication of such discharge, are set out as follows in the request submitted on
17 October 2000:
"[t]he disputed arrest warrant effectively bars the Minister for Foreign Affairs of the Democratic Republic of the Congo from leaving that State in order to go to any other State which his duties require him to visit and, hence, from carrying out those duties";
72. Whereas, following the Cabinet reshuffle of 20 November 2000, Mr. Yerodia Ndombasi ceased to exercise the functions of Minister for Foreign Affairs and was charged with those of Minister of Education, involving less frequent foreign travel; and whereas it has accordingly not been established that irreparable prejudice might be caused in the immediate future to the Congo's rights nor that the degree of urgency is such that those rights need to be protected by the indication of provisional measures;
[p. D.O. Rezek] 1. Most contemporary systems of law take a fairly uniform view of provisional measures, notably their bases and effects. Notwithstanding the silence of the Statute and Rules of the International Court of Justice, which only lay own procedural rules in this rspect, the Court does enjoy guidance in the matter, and not only that provided by its own jurisprudence.
2. At this stage, it is not a question of the effects, but rather of the bases. These are: the bonus fumus juris, the prima facie merit of the Applicant's argument in support of its claim; and the danger in delay, the risks raised by waiting, the danger that, if the Applicant prevails in the end, its claim ultimately will not be fittingly upheld, because the Court will have failed to grant it in advance the benefit, even if only partial, of the measures it is seeking.
3. The merit of the request submitted by the Democratic Republic of the Congo is apparent here. This is the first time that a State has come before the Court to tell it that a member of its Government is the subject of an arrest warrant issued by judicial authorities of another State and that the Government of that other State has provided support for the arrest warrant by circulating it throughout the international community.
4. Quite apart from the issue of the status of the indvidual at whom the warrant is directed and of the question of privileges enjoyed on the international plane by certain State officials, this is also the first time the Court finds itself confronted with the problem raised by an act of a local court purportedly based solely on the principle of univesal justice – without regard to the situs of the offence or to the defence of essential assets or values of the forum State or to the nationality of agent or victim – and without the accused being present on the territory of the forum State. In my view, the argument that this amounts to a violation of the fundamental rule of sovereign equality of States is valid prima facie.
5. As far as urgency is considered, I believe that the situation described in the request, i.e., the existence of the arrest warrant issued against a member of the Congolese Government and the assistence being provided by the Belgian Government in executing the warant, constitutes a continuing, permanent restriction on the full exercise of the public office of the individual in question and causes harm, also continuing and permanent, to the sovereignty of the applicant State.
6. What is the magnitude of the prejudice and therefore the degree of urgency? This is not a matter of ascertaining whether the continuation in force of the arrest warrant against the Congolese Minister causes irreparable prejudice – death aside, little is irreversible – but rather determining whether the indication of a provisional measure would also be liable to cause prejudice no less serious than that sought to be remedied on a provisional basis. Personally, I do not see any major drawback in suspending the effects of the arrest warrant issued by an investigating judge in Brussels, or rather the international dimension which the Belgian Government has conferred on it, until such time as the Court makes a final ruling on this legal issue, which is of undeniable importance and topicality.
7. To that end, I, unlike the majority, would have upheld the request for a provisional measure.
[pp. D.O. Bula-Bula] 18. In sum, Belgium's actions have in the first place caused injury to the sovereign rights of the Congolese people, as organized in an independent State: "deprival of the State's sovereignty ... in a sure test of the irreparability of the prejudice" (El-Kosheri, dissenting opinion in the case concerning es Questions of Interpretation and Apllications of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libian Arab Jamahirya v. United Kingdom) I.C.J. Reports 1992, p. 215). In the words of Judge Oda, the object of provisional measures is "to preserve rights of States exposed to an imminent breach which is irreparable" (declaration in LaGrand, C.I.J. Reports 1999, p. 19, para. 5). Secondly, Belgium's actions have violated that people's rights to dignity and honour within the international community, including indirect injury in the form of other prejudice, albeit collateral.
