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Published online by Cambridge University Press: 17 January 2008
On declining to make an order for provisional measures in the case concerning the Arrest Warrant of 11 April 2000, the International Court of Justice nevertheless indicated that it was desirable that the Court should deal with the issues raised by the case ‘as soon as possible’, and that it was appropriate therefore to seek to determine the application ‘with all expedition’.1 In the event, questions of admissibility and the merits were taken together and the Parties agreed to file a single set of written pleadings each, enabling the Court to hold oral hearings in October 2001 and to render a final judgment on 14 February 20022 (ie, only about 16 months after the original application by the Democratic Republic of the Congo (DRC)). Despite the speed with which the Court dealt with the case, its judgment has come in for considerable comment and criticism from a number of quarters3 as much for what is not said, as for what is in fact contained in the rather spare terms of the judgment. It will be suggested here that the ratio decidendi of the case is in fact rather confined, and that caution should be adopted in seeking to draw wider implications from what was said or left unsaid.
1 Arrest Warrant of 11 Apr 2000 (Democratic Republic of Congo v Belgium), Provisional Measures, Order of 8 Dec 2000, ICJ Rep 2000, 182 at para 76. See C Wickremasinghe, Case Note (2001) 50 ICLQ 670.
2 Arrest Warrant of 11 Apr 2000 (Democratic Republic of Congo v Belgium), Preliminary Objections and Merits, Judgment, 2002 ICJ Rep 2002, 3. The judgment is available from the Court's website at <http://www.icj-cij.org>.
3 See McLachlan, C, ‘Pinochet Revisited’ (2002) 51 ICLQ 959CrossRefGoogle Scholar; Cassese, A ‘When may senior State officials be tried for international crimes? Some Comments on the Congo v Belgium Case’ (2002) 13 EJIL 853CrossRefGoogle Scholar; Wirth, Steffen, ‘Immunity for core crimes? The ICJ's judgment in the Congo v. Belgium Case’ (2002) 13 EJIL 877CrossRefGoogle Scholar; Spinedi, M, ‘State Responsibility v. Individual Responsibility for International Crimes: tertium non datur’ (2002) 13 EJIL 895CrossRefGoogle Scholar; Stern, B, ‘Les dits et les non-dits de la Cour internationale de Justice dans l'affaire RDC contre Belgique’ (2003) 4 Int Law Forum 104CrossRefGoogle Scholar; Schreuer, C and Wittich, S, ‘Immunity v. Accountability: the ICJ's Judgment in the Yerodia case’ (2003) 4 Int Law Forum 117CrossRefGoogle Scholar; and D Turns, Casenotes, in (2002) 2 Mel.JIL 383. For a more sympathetic view of the Court's judgment see SirJennings, Robert, ‘Jurisdiction and Immunity in the ICJ Decision in the Yerodia case’ (2002) 4 Int Law Forum 99.CrossRefGoogle Scholar
4 The Law was adopted in on 16 June 1993 and was amended on 10 Feb 1999. For an English translation see (1999) 38 ILM 918. It might be noted that at the Provisional Measures hearing Belgium had asserted that there were sufficient connecting factors, since there were complainants who were Belgian residents or nationals. This however does not appear to have been argued in the same way in the pleadings on the Merits.
5 Arrest Warrant of 11 Apr 2000 (Democratic Republic of Congo v Belgium), Provisional Measures, Order of 8 Dec 2000, ICJ Rep 2000, 182.
6 Ibid at paras 51–60.
7 Though Judge Oda dissented from the Majority's findings on these objections.
8 Arrest Warrant of 11 Apr 2000 (Democratic Republic of Congo v Belgium), Preliminary Objections and Merits, Judgment, ICJ Rep 2002, 3 at paras 26–8.
9 Ibid at para 32.
10 Ibid at para 36.
11 Ibid at para 40.
12 Ibid at paras 51–61.
13 Ibid at para 53.
14 Ibid at paras 53–4.
15 Ibid at para 58.
16 Ibid at para 61.
17 Ibid at para 70.
18 Ibid.
19 Ie, the well-known dictum ‘that reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed’, Factory at Chorzow, Merits, Judgment No 13 (1928) PCIJ Ser A No 17 at 47.
20 See the Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal at para 3.
21 See Separate Opinion of President Guillaume at para 12.
22 See the Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal at paras 19–52.
23 ‘Lotus’, Judgment No 9, 1927, PCIJ Ser A No10.
24 Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal at para 59.
25 See for example the articles cited at n 1 above by C McLachlan, C Schreuer and S Wittich, A Cassese, and D Turns.
26 See the Dissenting Opinion of Judge Al-Khasawneh; see also the Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal at paras 83–4; and the Dissenting Opinion of Judge ad hoc Van den Wyngaert paras 5–23.
27 See for example the articles cited in n 1 above by C McLachlan, S Wirth and B Stern.
28 Arrest Warrant of 11 Apr 2000 (Democratic Republic of Congo v Belgium), Preliminary Objections and Merits, Judgment, 2002 ICJ Rep, 3 at para 61.
29 [1999] 2WLR827.
