Abdoulaye Yerodia Ndombasi

10.12.2012 ( Last modified: 08.06.2016 )
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facts

Abdoulaye Yerodia Ndombasi was born on 15 January 1933.

Yerodia Ndombasi has been a long-time high-ranking official in the Congolese government (DRC). From 1997 to 1999, Yerodia Ndombasi served as the Cabinet Director for President Laurent-Désiré Kabila. From March 1999 through late 2000, Yerodia Ndombasi served as the Minister of Foreign Affairs. In 2003, Yerodia Ndombasi became one of the four vice-presidents under President Joseph Kabila in a transitional government as mandated by a peace settlement with rebel groups and opposition parties. In 2007, he became a Senator in the Congolese government.

Yerodia Ndombasi was accused of having made a series of speeches inciting racial hatred in August 1998. Specificially, Yerodia Ndombasi delivered public addresses calling for violent treatment of the Tutsi ethnic group in Congo. The speeches allegedly resulted in the deaths of several hundred Tutsis in the Kinshasa area as well as improper internment, summary executions, arbitrary arrests and unfair trials of members of the ethnic group.

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.

legal procedure

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.

context

THE FIRST CONGO WAR

After almost 40 years under the dictatorship of Mobutu, a new period of conflicts broke out in 1996 in the territory of the Democratic Republic of the Congo (DRC, formerly known as Belgian Congo, Congo-Leopoldville or Zaire), as a result of the spill-over of the civil war raging in the neighboring Rwanda. At the end of the armed conflict – involving Rwanda and Uganda – Mobutu had to abscond, and Laurent-Désiré Kabila become the new Congo’s President.

THE SECOND CONGO WAR

Already in 1998 Kabila’s alliance with Rwanda and Uganda had turned in a state of hostility. Rebel groups engaged an armed conflict against governmental forces. Due to the involvement of about 25 armed groups and eight States – Angola, Chad, Namibia and Zimbabwe supporting DRC’s government, versus Rwanda, Uganda and Burundi supporting the rebels – the war is also known as Great War of Africa.

On 18 January 2001 Laurent Kabila died for the consequences of an attempt to his life, leaving the country in his son Joseph’s hands. After various ceasefire agreements during the years, the war formally ended in 2002. The peace agreement leads to new elections, won by Joseph Kabila.

THE CONFLICTS IN NORTH KIVU, SOUTH KIVU AND IN ITURI

New armed conflicts continued however in border regions of DRC between governmental forces and rebel groups. Ethnical differences and the high amount of natural resources present in the Kivus and in Ituri are among the main causes of the hostilities. Despite the fragile peace agreements signed in 2007 (Ituri) and in 2009 (Kivus), thousands of people keep dying due to famine and devastations left by the conflicts.

INTERNATIONAL PROCEEDINGS

In 2005 the International Court of Justice recognized Uganda’s responsibility for violation of DRC territorial integrity during the Second Congo war, and for the unlawful exploitation of a consistent amount of DRC’s natural resources.

In 2005 Joseph Kabila referred DRC’s situation to the International Criminal Court (ICC), asking the Prosecutor to open investigations on crimes committed anywhere on DRC’s territory since the entry into force of the ICC Statute. To date the ICC has indicted five people for the situation in DRC. Among these, Thomas Lubanga Dyilo was the first person ever to be convicted by the ICC.