On 11 April 2000, an investigating judge of the Belgian tribunal de première instance issued an international arrest warrant against Yerodia Ndombasi, charging him with serious violations of international humanitarian law.
The Belgian arrest warrant was issued pursuant to Law of 16 June 1993 “concerning the Punishment of Grave Breaches of the International Geneva Conventions of 12 August 1949 and of Protocols I and II of 8 June 1977 Additional Thereto”, as amended by the Law of 10 February 1999 “concerning the Punishment of Serious Violations of International Humanitarian Law”, a then-effective rule of universal jurisdiction. According to Article 7, “The Belgian courts shall have jurisdiction in respect of the offences provided for in the present Law, wheresoever they may have been committed” this means regardless of nationality, country of residence or any other relation with Belgium, based solely on the fact that the crime was considered a violation of customary international law.
In response to the 11 April 2000 arrest warrant, the DRC filed an application with the International Court of Justice on 17 October 2000 to oppose the warrant’s legitimacy. The proceedings were popularly referred to as the Arrest Warrant Case.
The DRC argued that Belgium was not entitled to establish universal jurisdiction over Yerodia Ndombasi and further, that as an incumbent Minister for Foreign Affairs, Yerodia Ndombasi enjoyed immunity from the Belgian arrest warrant. In subsequent proceedings, the DRC relied only on the immunity argument and the ICJ did not rule on the universal jurisdiction argument. By a vote of 15 to 1, the ICJ established that it had jurisdiction to hear the DRC application.
By a vote of 13 to 3, the ICJ found that Belgium failed to respect the immunity from criminal jurisdiction and inviolability that Yerodia Ndombasi, as an incumbent Minister of Foreign Affairs, enjoyed under international law. In its ruling, the ICJ tribunal president Judge Gilbert Guillame said, “[j]urisdiction does not imply absence of immunity.” Even given the legitimacy of Belgium’s universal jurisdiction, Yerodia Ndombasi was protected by immunity, a protection that only the DRC can remove.
The ICJ did however note that immunity from jurisdiction is a separate issue from individual criminal responsibility. Ministers of Foreign Affairs do not enjoy any immunity from criminal jurisdiction under international law in their own countries and as such the ICJ ruling did not foreclose the ability of Congolese national courts to initiate criminal proceedings against Yerodia Ndombasi should they so choose.
On 14 February 2002, the International Court of Justice ordered the 11 April 2000 arrest warrant to be cancelled on the grounds of immunity from foreign prosecution.