| |
[p.102]
The International Court of Justice,
Composed as above,
After deliberation,
Having regard to Articles 41 and 48 of the Statute of the Court and to
Articles 38. paragraph 5, 73 and 74 of the Rules of Court,
Makes the following Order:
1. Whereas, by Application filed in the Registry of the Court on 9 December
2002, the Republic of the Congo (hereinafter "the Congo") sought to
institute proceedings against the French Republic (hereinafter "France") on
the grounds, first, of alleged [p 103]
"violation of the principle that a State may not, in breach of the principle
of sovereign equality among all Members of the United Nations, as laid down
in Article 2, paragraph 1, of the Charter of the United Nations, exercise
its authority on the territory of another State,
by unilaterally attributing to itself universal jurisdiction in criminal
matters
and by arrogating to itself the power to prosecute and try the Minister of
the Interior of a foreign State for crimes allegedly committed in connection
with the exercise of his powers for the maintenance of public order in his
country",
and, second, of alleged "violation of the criminal immunity of a foreign
Head of State an international customary rule recognized by the
jurisprudence of the Court";
2. Whereas by the Application the Congo requested the Court
"to declare that the French Republic shall cause to be annulled the measures
of investigation and prosecution taken by the Procureur de la République of
the Paris Tribunal de grande instance, the Procureur de la République of
the Meaux Tribunal de grande instance and the investigating judges of those
courts'";
3. Whereas in the Application the Congo indicated that it "proposes to found
the Court's jurisdiction, pursuant to Article 38, paragraph 5, of the Rules
of Court, on the consent of the French Republic, which will certainly be
given";
4. Whereas the Application further contained a "Request for the indication
of a provisional measure" whereby the Congo sought "an order for the
immediate suspension of the proceedings being conducted by the investigating
judge of the Meaux Tribunal de grande instance";
5. Whereas upon receipt in the Registry of the Application, the Registrar,
in accordance with Article 38, paragraph 5, of the Rules of Court,
transmitted a copy of the Application to the Government of France, and
informed both States that, in accordance with this provision, the case would
not be entered in the General List, nor would any action be taken in the
proceedings, unless and until the State against which the Application was
made consented to the Court's jurisdiction for the purposes of the case;
6. Whereas by a letter dated 8 April 2003 and received in the Registry on 11
April 2003, the Minister for Foreign Affairs of France informed the Court
that "the French Republic consents to the jurisdiction of the Court to
entertain the Application pursuant to Article 38, paragraph 5", of the Rules
of Court; whereas the Registrar immediately transmitted a copy of that
letter to the Government of the Congo; whereas the case was thereupon
entered in the General List; and whereas the Registrar notified the
Secretary-General of the United Nations of the case;
7. Whereas furthermore upon receipt of the consent of France to the [p 104]
jurisdiction, the Court was convened for the purpose of proceeding to a
decision on the request for the indication of a provisional measure as a
matter of urgency, in accordance with Article 74, paragraph 2, of the Rules
of Court; and whereas on 11 April 2003 the Registrar informed the Parties
that the President of the Court had fixed 28 April 2003 as the date for
opening of hearings on the request, in accordance with paragraph 3 of that
Article;
8. Whereas, since the Court includes upon the Bench no judge of Congolese
nationality, the Congo proceeded, in the exercise of the right conferred
upon it by Article 31, paragraph 2, of the Statute, to choose a judge ad hoc
in the case; whereas the Congo chose for that purpose Mr. Jean-Yves de Cara;
9. Whereas, at four public hearings held on 28 and 29 April 2003, oral
observations were submitted on the request for the indication of a
provisional measure:
On behalf of the Congo:
by H.E.Mr. Jacques Obia, Agent,
Mr. Jacques Verges,
Mr. Andre Decocq,
Mr. Charles Zorgbibe;
On behalf of France:
by Mr. Ronny Abraham, Agent,
Mr. Alain Pellet,
Mr. Pierre-Marie Dupuy;
***
10. Whereas in the Application the Congo refers to a complaint filed on 5
December 2001, on behalf of certain human rights organizations, with the
Procureur de la République of the Paris Tribunal de grande instance
"for crimes against humanity and torture allegedly committed in the Congo
against individuals having Congolese nationality, expressly naming H.E. Mr.
Denis Sassou Nguesso, President of the Republic of the Congo, H.E. General
Pierre Oba, Minister of the Interior, Public Security and Territorial
Administration, General Norbert Dabira, Inspector-General of the Congolese
Armed Forces, and General Blaise Adoua, Commander of the Presidential Guard"
;
whereas according to the Application, the Procureur de la République of the
Paris Tribunal de grande instance transmitted that complaint to the
Procureur de la République of the Meaux Tribunal de grande instance, who
ordered a preliminary enquiry and then on 23 January 2002 issued a
réquisitoire (application for a judicial investigation of the alleged
offences), and the investigating judge of Meaux nitiated an investigation;
[p 105]
11. Whereas it appears, from the text of the complaint and the
réquisitoire, supplied to the Court by the Congo, and from the further
details of the proceedings supplied by France during the oral proceedings,
and confirmed by the Congo, that it was argued by the complainants that the
French courts had jurisdiction, as regards crimes against humanity, by
virtue of a principle of international customary law providing for
universal jurisdiction over such crimes, and as regards the crime of
torture, on the basis of Articles 689-1 and 689-2 of the French Code of
Criminal Procedure; and whereas the Procureur de la Rëpubliqve of the
Tribunal de grande instance of Meaux, in his réquisitoire of 23 January
2002, requested investigation both of crimes against humanity and of
torture, without mentioning any jurisdictional basis other than Article
689-1 of that Code;
12. Whereas Article 689-1 of the French Code o" Criminal Procedure provides
that, pursuant to certain international conventions to which France is a
party, referred to in the following Articles of the Code, "any person who
has committed, outside the territory of the Republic, any of the offences
enumerated in these Articles, may be prosecuted and tried by the French
courts if that person is present n France"; whereas Article 689-2 refers to
the United Nations Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment of 10 December 1984:
13. Whereas from the information before the Court it appears further that
the complaint was referred to the parquet of the Tribunal de grande instance
of Meaux taking into account that General Norbert Dabira possessed a
residence in the area of that court's jurisdiction, and that, of those named
in the complaint, he appeared to be the only person likely to be present on
the territory of France, as required by Article 689-1 of the Code of
Criminal Procedure; whereas however the investigation was initiated against
a non-identified person, not against any of the Congolese personalities
named in the complaint;
14. Whereas it appears further that the testimony of General Dabira was
first taken on 23 May 2002 by judicial police officers who had taken him
into custody, and then on 8 July 2002 by the investigating judge, as a
témoin assisté (legally represented witness); whereas it has been explained
by France that a témoin assisté in French criminal procedure is a person who
is not merely a witness, but to some extent a suspect, and who therefore
enjoys certain procedural rights (assistance of counsel, access to the case
file) not conferred on ordinary witnesses;
15. Whereas according to the information supplied by France, General Dabira
was summoned again on 11 September 2002 to be mis en examen (formally placed
under judicial examination), but had by then returned to the Congo, and
informed the French authorities that, on instructions from his superiors, he
considered that he should not comply with the summons; whereas on 16
September 2002 the investigating judge issued against General Dabira a
mandat d'amener (warrant for immedi-[p106]ate appearance), which, it was
explained by France at the hearing, could be enforced against him should he
return to France, but is not capable of being executed outside French
territory;
16. Whereas the Application further states that when the President of the
Republic of the Congo, H.E. Mr. Denis Sassou Nguesso "was on a State visit
to France, the investigating judge issued a commission roga-toire (warrant)
to judicial police officers instructing them to take testimony from him";
whereas however no such commission rogatoire has been produced, and France
has informed the Court that no commission rogatoire was issued against
President Sassou Nguesso, but that the investigating judge sought to obtain
evidence from him under Article 656 of the Code of Criminal Procedure,
applicable where evidence is sought through the diplomatic channel from a
"representative of a foreign power"; and whereas the Congo acknowledged ir
its Application that President Sassou Nguesso was never "mis en examen, nor
called as a témoin assisté" ;
17. Whereas it is common ground between the Parties that no acts of
investigation ( instruction) have been taken in the French criminal
proceedings against the other Congolese personalities named in the
Application (H.E. General Pierre Oba, Minister of the Interior, and
General Blaise Adoua), nor in particular has any application been made to
question them as witnesses;
18. Whereas on the basis of the facts set out in the Application the Congo
seeks the annulment of the acts referred to n paragraph 2 above, and further
requests the indication of the provisional measure indicated in paragraph 4
above;
19. Whereas according to the request for the indication of a provisional
measure, and for the reasons there indicated, "the two essential
preconditions for the indication of a provisional measure, according to the
Court's jurisprudence, namely urgency and irreparable prejudice, are
manifestly satisfied in the present case";
**
20. Whereas on a request for the indication of provisional measures the
Court need not, before deciding whether or not to indicate them, finally
satisfy itself that it has jurisdiction on the rrerits of the case, yet it
ought not to indicate such measures unless the provisions invoked by the
applicant appear, prima facie, to afford a basis on which the jurisdiction
of the Court might be established;
21. Whereas in the present case the Applicant did not in its Application
invoke any provisions relied on as affording a basis on which the
jurisdiction of the Court might be established, but proposed to found the
jurisdiction of the Court upon a consent thereto yet to be given by France,
as contemplated by Article 38, paragraph 5, of the Rules of Court; whereas
by a letter dated 8 April 2003 from the Minister for [p 107] Foreign Affairs
of France, France consented explicitly to the jurisdiction of the Court to
entertain the Application on the basis of that text;
**
22. 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 concern itself with the preservation by such measures of 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;
23. Whereas in its Application the Congo requested the Court to declare that
the French Republic
"shall cause to be annulled the measures of investigation and prosecution
taken by the Procureur de la République of the Paris Tribunal de grande
instance, the Procureur de la République of the Meaux Tribunal de grande
instance and the investigating judges of those courts";
whereas it contended that these measures involved, first,
"violation of the principle that a State may lot, in breach of the principle
of sovereign equality among all Members of the United Nations, as laid down
in Article 2, paragraph 1, of the Charter of the United Nations, exercise
its authority on the territory of another State,
by unilaterally attributing to itself universal jurisdiction in criminal
matters
and by arrogating to itself the power to prosecute and try the Minister of
the Interior of a foreign State for crimes allegedly committed in connection
with the exercise of his powers for the maintenance of public order in his
country",
and, second, "violation of the criminal immunity of a foreign Head of State
an international customary rule recognized by the jurisprudence of the
Court" (see paragraphs 1 and 2 above);
24. Whereas the request for the indication of a provisional measure,
directed to the preservation of the rights of the Congo under both of the
categories mentioned above, is for "an order for ihe immediate suspension
of the proceedings being conducted by the investigating judge of the Meaux
Tribunal de grande instance" (see paragraph 4 above);
25. Whereas the Congo also referred at the hearings to the principle of
criminal law non bis in idem as having been breached by the institution of
criminal proceedings in France relating to the same matters as proceedings
instituted in Brazzaville (the existence of which was, it is said, notified
to the Meaux investigating judge in September 2002), and to a prin-[p
108]ciple of "subsidiarity" which it contends is applicable to criminal
proceedings having an international element; whereas however it does not
appear that the Congo claims that those principles confer upon it specific
rights which might be threatened in such a way as to justify their
protection by the indication of provisional measures;
26. Whereas the circumstances relied on by the Congo, which in its view
require the indication of measures requiring suspension of the French
proceedings, are set out as follows in the request:
"The proceedings in question are perturbing the international relations of
the Republic of the Congo as a result of the publicity accorded, in flagrant
breach of French law governing the secrecy of criminal investigations, to
the actions of the investigating judge, which impugn the honour and
reputation of the Head of State, of the Minister of the Interior and of the
Inspector-General of the Armed Forces and, in consequence, the international
standing of the Congo. Furthermore, those proceedings are damaging to the
traditional links of Franco-Congolese friendship. If these injurious
proceedings were to continue, that damage would become irreparable";
27. Whereas at the hearings the Congo re-emphasized the irreparable
prejudice which in its contention would result fro n the continuation of the
French criminal proceedings before the Tribunal de grande instance of Meaux,
in the same terms as in the request; whereas the Congo further stated that
the prejudice which would result if no provisional measures are indicated
would be the continuation and exacerbation of the prejudice already caused
to the honour and reputation of the highest authorities of the Congo, and
to internal peace in the Congo, to the international standing of the Congo
and to Franco-Congolese friendship;
28. Whereas the Court observes that the rights which, according to the
Congo's Application, are subsequently to be adjudged to belong to the Congo
in the present case are, first, the right to require a State, in this case
France, to abstain from exercising universal jurisdiction in criminal
matters in a manner contrary to international law, and second, the right to
respect by France for the immunities conferred by international law on, in
particular, the Congolese Head of State;
29. Whereas the purpose of any provisional measures that the Court might
indicate in this case should be to preserve those claimed rights; whereas
the irreparable prejudice claimed by the Congo and summarized in paragraph
27 above would not be caused to those rights as such; whereas however this
prejudice might, in the circumstances of the case, be regarded as such as to
affect irreparably the- rights asserted in the Application; whereas in any
event the Court notes that it has not been informed in what practical
respect there has been any deterioration internally or in the international
standing of the Congo, or in Franco-Congo-[p 109] lese relations, since the
institution of the French criminal proceedings, nor has any evidence been
placed before the Court of any serious prejudice or threat of prejudice of
this nature;
*
30. Whereas the first question before the Court at the present stage of the
case is whether the criminal proceedings currently pending in France entail
a risk of irreparable prejudice to the right of the Congo to respect by
France for the immunities of President Sassou Nguesso as Head of State, such
as to require, as a matter of urgency, the indication of provisional
measures;
31. Whereas at the hearings France drew the Court's attention to Article 656
of the French Code of Criminal Procedure, which provides that "the written
deposition of the representative of a foreign power is to be requested
through the Minister for Foreign Affairs", and continues by providing for
the procedure to be followed "if this request is accepted", i.e., accepted
by the foreign power; whereas France contends that this is the only means
whereby President Sassou Nguesso, who according to France is included in the
category of a "representative of a foreign power", might be approached to
give evidence in the pending criminal proceedings, that his evidence thus
could not be taken without the express agreement of the Congo, that while a
request for a written deposition from President Sassou Nguesso under
Article 656 has been sent by the investigating judge to the French Ministry
of Foreign Affairs, it has been retained by the Ministry, and that the
current proceedings therefore have not caused and cannot cause any damage to
the Congo by way of breach of the immunities of President Sassou Nguesso;
32. Whereas the Congo questions whether Article 656 is applicable to a
foreign Head of State, and also observes that if that procedure were
followed to obtain the evidence of a person who would otherwise qualify to
be cited as a témoin assisté (as is the case of President Sassou Nguesso,
since he was mentioned in the complaint referred to in paragraph 10 above),
the protection afforded by other Articles of the Code of Criminal Procedure
to a témoin assisté would be lacking, w th a consequent prejudice to the
rights of the defence; whereas the Congo also emphasizes the fact that where
a réquisitoire is made by the Procureur de la République against an
unidentified person, as was the case in the proceedings now complained of,
the investigating judge is free to interrogate any person whom he considers
likely to be able to furnish evidence, and that therefore the possibility
cannot be excluded that the judge might take the initiative to include
President Sassou Nguesso in his investigation, particularly as President
Sassou Nguesso is mentioned in the documentation upon which the réquisitoire
was based ;
33. Whereas the Court notes in this respect the following statements by the
Agent and the counsel of France: [p 110]
"In conformity with international law, French law embodies the principle of
the immunity of foreign Heads of Scate . . . There are no written rules
deriving from any legislation relating to the immunities of States and their
representatives. It is the jurisprudence of the French courts which,
referring to customary international law and applying it directly, have
asserted clearly and forcefully the principle of these immunities."
"One thing must be clear at the outset: Fraice in no way denies that
President Sassou Nguesso enjoys, as a foreign Head of State, 'immunities
from jurisdiction, both civil and criminal'."
"Until the present moment it has not been challenged, and it is certainly
not seriously challengeable, that all the steps taken by the French courts
in this particular case have been strictly in conformity with French law.
They have respected the limits of their jurisdiction and have respected the
immunities enshrined in French law in conformity with international law. Can
it be supposed that in the future our courts would move away from respecting
the law they are required to apply?"
"We have simply stated what French law is; we have promised nothing, we have
said that French law does rot allow the prosecution of a foreign Head of
State; that is not a promise, it is a statement of law. And also that
French law subordinates the jurisdiction of the French courts over acts
committed abroad to certain conditions. That too is not a promise, it is a
statement of law. At the very most, but it would be somewhat pointless to do
so, we might promise that the French courts will respect French law. But I
think this might be taken for granted, and if some particular judicial
decision, of which we have no example right now in our present case, were to
exceed the limits set down by the law there would of course be means of
recourse to remedy any errors which might have been made";
34. Whereas the Court is not now called upon to determine the compatibility
with the rights claimed by the Congo of the procedure so far followed in
France, but only the risk or otherwise of the French criminal proceedings
causing irreparable prejudice to such claimed rights;
35. Whereas it appears to the Court, on the information before it, that as
regards President Sassou Nguesso, there is at the present time no risk of
irreparable prejudice, so as to justify the indication of provisional
measures as a matter of urgency; and whereas neither is it established that
any such risk exists as regards General Oba, Minister of the Interior of the
Republic of the Congo, for whom the Congo also claims immunity in its
Application;
*
36. Whereas the Court will now, as a second question, consider the [p 111]
existence of a risk of irreparable prejudice in relation to the claim of the
Congo that the unilateral assumption by a State of universal jurisdiction in
criminal matters constitutes a violation of a principle of international
law; whereas in this respect the question before the Court is whether the
proceedings before the Tribunal de grande instance of Meaux involve a threat
of irreparable prejudice to the rights invoked by the Congo justifying, as
a matter of urgency, the indication of provisional measures;
37. Whereas, as regards President Sassou Nguesso, the request for a written
deposition made by the investigating judge on the basis of Article 656 of
the French Code of Criminal Procedure has not been transmitted to the
person concerned by the French Ministry of Foreign Affairs (see paragraph 31
above); whereas, as regards General Oba and General Adoua, they have not
been the subject of any procedural measures by the investigating judge;
whereas no measures of this nature are threatened against these three
persons; whereas therefore there is no urgent need for provisional measures
to preserve the rights of the Congo in that respect;
38. Whereas as regards General Dabira, it is acknowledged by France that the
criminal proceedings instituted before the Tribunal de grande instance of
Meaux have had an impact upon his own legal position, inasmuch as he
possesses a residence in France, and was present in France and heard as a
témoin assisté, and in particular because, having returned to the Congo, he
declined to respond to a summons from the investigating judge, who
thereupon issued a mandat d'amené" against him; whereas however the
practical effect of a provisional measure of the kind requested would be to
enable General Dabira to enter France without fear of any legal
consequences; whereas the Congo has not demonstrated the likelihood or even
the possibility of any irreparable prejudice to the rights it claims
resulting from the procedural measures taken in relation to General Dabira;
*
39. Whereas, independently of the requests for the indication of
provisional measures submitted by the parties to preserve specific rights,
the Court possesses by virtue of Article 41 of the Statute the power to
indicate provisional measures with a view to preventing the aggravation or
extension of the dispute whenever it considers that circumstances so require
(cf. Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v.
Nigeria), Provisional Measures, Order of 15 March 1996, I. C.J. Reports 1996
(I), p. 22, para. 41; Frontier Dispute (Burkina Faso/Republic of Mali),
Provisional Measures, Order of 10 January 1986, I.C.J. Reports 1986, p. 9,
para. 18); whereas however the Court does not in the circumstances of the
present case see any need for measures of this kind to be indicated;
**[p 112]
40. Whereas the decision given in the present proceedings in no way
prejudges the question of the jurisdiction of the Court to deal with the
merits of the case or any questions relating to the admissibility of the
Application, or relating to the merits themselves; and whereas it leaves
unaffected the right of the Governments of the Congo and France to submit
arguments in respect of those questions;
41. For these reasons,
The Court,
By fourteen votes to one,
Finds that the circumstances, as they now present themselves to the Court,
are not such as to require the exercise of its power under Article 41 of the
Statute to indicate provisional measures.
IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma,
Vereshchetin. Higgins, Parra-Aranguren, Kooijmans, Al-Khasawneh,
Buergenthal, Elaraby, Owada, Simma, Tomka;
AGAINST: Judge ad hoc de Cara.
Done in French and in English, the French text being authoritative, at the
Peace Palace, The Hague, this seventeenth day of June, two thousand and
three, in three copies, one of which will be placed in the archives of the
Court and the others transmitted to the Government of the Republic of the
Congo and the Government of the French Republic, respectively.
(Signed) Shi Jiuyong,
President.
(Signed) Philippe Couvreur,
Registrar.
Judges Koroma and Vereshchetin append a joint separate opinion to the Order
of the Court; Judge ad hoc de Cara appends a dissenting opinion to the Order
of the Court.
(Initialled) J.Y.S.
(Initialled) Ph.C.
[p 113]
JOINT SEPARATE OPINION OF JUDGES KOROMA AND VERESHCHETIN
1. We voted in favour of the Order despite our reservations, some of which
are reflected hereunder.
2. In its Application, the Republic of the Congo claims that the
institution of criminal proceedings against its officials responsible for
public order, as well as its Head of State, violated its rights as a
sovereign State and the immunity of a Head of State from criminal
prosecution by a foreign State as recognized by international law and the
jurisprudence of the Court.
3. The Congo not only seeks the annulment of those proceedings but also
requested the Court to indicate a provisional measure ordering the immediate
suspension of criminal proceedings by France. In this regard, the Congo
argued that the continuation of those proceedings could result in
irreparable harm in the form of a covert coup d'état, the destabilization of
its internal institutions, and the return to war from which the country had
recently emerged.
4. In our view, the Court appears not to have given sufficient weight to the
risk of "irreparable harm", which could occur in the Congo as a result of
the continuation of the criminal proceedings. Instead the Court limited
itself to ruling that
"it appears to the Court, on the information before it, that as regards
President Sassou Nguesso, there is at the present time no risk of
irreparable prejudice, so as to justify the indication of provisional
measures as a matter of urgency; and . . . neither is it established that
any such risk exists as regards General Oba, Minister of the Interior of the
Republic of the Congo, for whom the Congo also claims immunity in its
Application" (Order, para. 35).
The Court further stated that "the irreparable prejudice claimed by the
Congo . . . would not be caused to [the rights claimed in the Application]
as such", while at the same time acknowledging that "this prejudice might,
in the circumstances of the case, be regarded as such as to affect [p 114]
irreparably the rights asserted in the Application". The Court also noted,
among other things, that it had not been informed in what practical respect
the initiation of the criminal proceedings had occasioned any deterioration
internally in the Congo (Order, para. 29). On these bases, the Court
declined to indicate provisional measures.
5. This conclusion, in our view, would suggest that the Court has not given
sufficient consideration to the "circumstances" as that term is used in
Article 41 of the Statute, which requires the Court to consider all aspects,
including the consequences that might occur if the interim Order is not
granted.
6. Admittedly, both the spirit and letter of Article 41 of the Statute call
for concern for the preservation of the rights which may be adjudged in the
merits phase of the proceedings to be, as a rule, the guiding factor in
taking a decision on provisional measures. This does not, however, mean that
the harm attributable to the violation of those rights may not have much
wider negative consequences and repercussions for legal and political
interests of the State concerned, far transcending its adverse effect on the
claimed rights as such. In these circumstances, the indication of
provisional measures may become necessary not so much in view of the
imminence of irreparable harm to the claimed rights, but rather because of
the risk of grave consequences of their violation. We believe that these
considerations, to a large extent, lay at the root of the Court's decisions
in a number of cases where provisional measures were explicitly ordered with
a view to preventing "aggravation", "extension" or "exacerbation" of harm
already done to the claimed rights, even if the risk of immediate
irreparable prejudice to the claimed rights was not always so obvious.
Moreover, some recent cases in the Court's jurisprudence point to the fact
that sometimes it is not easy to separate the harm caused by the
consequences of the violation of claimed rights from the harm to the rights
as such. This can be seen in the Orders on provisional measures which the
Court indicated in the Vienna Convention on Consular Relations (Paraguay v.
United States of America), LaGrand (Germany v. United States of America) and
Avena and Other Mexican Nationals (Mexico v. United States of America)
cases, where the lives of individuals were at stake.
7. For all the above-stated reasons, we entertain some reservations in
respect of the Court's having, in the circumstances of the present case,
drawn a distinction between the harm to the rights which might subsequently
be adjudged to belong to the Congo and the harm consequent upon the
violation of those rights (Order, para. 29). This is not to imply that the
Court has erected an insurmountable barrier between these two categories of
harm or damage for as the Court itself noted:
"this prejudice [that is damage to the 'honour and reputation of the highest
authorities of the Congo, and to internal peace in the Congo, [p 115] to the
international standing of the Congo and to Franco-Congolese friendship'
(Order, para. 27)] might, in the circumstances of the case, be regarded such
as to affect irreparably the rights asserted in the Application" (Order,
para. 29).
8. Our contention is that when considering a request for interim measures of
protection, the Court should consider all relevant aspects of the matter
before it, including the extent of the possible harmful consequences of the
violation of the claimed right.
(Signed) Abdul G. Koroma.
(Signed) Vladlen S. Vereshchetin.
[p 116]
DISSENTING OPINION OF JUDGE DE CARA [Translation]
The case before the Court concerns an African State. That gives it a
distinctive dimension. Not only does it concern a country marked by
constant upheavals and repeated crises since it gained independence in
1960, it also pits that country against the former colonial power. It
involves, in particular, the Head of State and in Africa the Head of State
embodies the nation itself.
A "country without unity", the Republic of the Congo exhibits a
geographical diversity matched by the heterogeneity of its people, brought
together, at a certain point in time, by the railway and by colonial
integration into French Equatorial Africa, centred on Brazzaville FN1.
---------------------------------------------------------------------------------------------------------------------
FN1
Yves Lacoste, Dictionnaire de géopolitique. 1997.
---------------------------------------------------------------------------------------------------------------------
Decolonization was followed by a time of upheaval when, withdrawing into
itself after a period of uncertainty starting with the "Trois Glorieuses"
uprising (1963), the country came under a Marxist military regime, which
failed over a period of more than 20 years to put an end to the instability
and killings. In 1991, the country claimed back its name, its flag, its
national anthem and its symbols, as firs: adopted on independence. The
country was subsequently torn asunder by economic crisis, despite its
mineral resources, and by civil war. Having little experience of democratic
institutions, the Congo once again fraciured along ethnic and geographical
lines: fierce clashes occurred between the Zoulou, Ninja and Cobra militias
and the army, whilst foreign nationals fled the country, especially after
1997. Thousands were massacred 3r disappeared during the confrontations, in
particular in 1999 at the river port of Brazzaville. The fighting has
subsided as each week has brought surrenders by militia elements, but
sustained rivalries and opposition remain and the conflict is being pursued,
through propaganda and covertly, at the political level.
These tragic circumstances, together with the instability of the country,
where peace is slowly being restored, explain why the Government of the
Republic of the Congo seised the Court in respnse to certain criminal
proceedings initiated in France.
The case is also distinctive in that this is the first time that the Court
has been seised of a case in which the respondent has expressly con-[p
117]sented, under Article 38, paragraph 5, of the Rules of Court, to
jurisdiction in respect of an application (here, that of the Congo), and
there has been no need to consider the prima facie jurisdiction of the
Court. Its distinctiveness also lies in the close relationship between the
proceedings on provisional measures and the proceedings on the merits. The
Parties' respective rights to be protected by the Court are, on the one
hand, the Congo's claim to territorial and personal jurisdiction and the
immunity of the Congolese personalities involved in particular, but not
exclusively, that of the Head of State and, on the other, the claim to
universal jurisdiction based on international custom. I: is thus necessary
at this stage to consider all the consequences that may arise from the
alleged violation of the Congo's rights. The distinctive nature of the case
lies lastly in the contrast between the relevant French law as it now stands
and the inappropriate measures taken or capable of being taken by the French
prosecutors and judges.
The Application on the merits is accompanied by a request for the indication
of a provisional measure whereby the Congo "seeks an order for the immediate
suspension of the proceedings being conducted by the investigating judge of
the Meaux Tribunal de grande instance" FN2
---------------------------------------------------------------------------------------------------------------------
FN2
Application of the Republic of the Congo, p. 17.
---------------------------------------------------------------------------------------------------------------------
Under Article 41, paragraph 1, of the Court's Statute, the Court has "the
power to indicate, if it considers that circumslances so require, any
provisional measures which ought to be taken to preserve the respective
rights of either party".
Article 75 of the Rules of Court provides that:
"1. The Court may at any time decide to examine proprio motu whether the
circumstances of the case require the indication of provisional measures
which ought to be taken or complied with by any or all of the parties.
2. When a request for provisional measures has been made, the Court may
indicate measures that are in whole or in part other than those requested,
or that ought to be taken or complied with by the party which has itself
made the request."
These provisions show that the indication of provisional measures falls
within the Court's power of discretion, which it exercises according to the
circumstances of each particular case, and the Court may exercise this
discretion, which is basically unfettered FN3, proprio motu. The essential
point is that the Court must not prejudge the merits of the case and must
leave "unaffected the right of the Respondent to submit arguments" FN4.
[p118]
The objective is to preserve the parties' rights as subsequently determined
by the decision of the Court and to do so in the interests of both parties
equally FN5. It is moreover necessary for "the alleged rights sought to be
made the subject of provisional measures" to be "the subject of the
proceedings before the Court on the merits of the case" FN6.
---------------------------------------------------------------------------------------------------------------------
FN3
B. Ajibola, separate opinion appended to the Order of 10 January 1996 in the
case concerning the Land and Maritime Boundary between Car.reroon and
Nigeria (Cameroon v. Nigeria), I.C.J. Reports 1996 (I), p. 35.
FN4 Anglo-Iranian Oil Co., Provisional Measures, Order of 5 July 1951,
I.C.J. Reports 1951, p. 93.
FN5 Sir Gerald Fitzmaurice, The Law and Procedure of the International Court
of Justice, Vol. 11, p. 544.
FN6 Case concerning the Arbitral Award of 31 July 1989 (Guinea-Bissau v.
Senegal), Pro-visional Measures, I.C.J. Reports 1990, p. 70.
--------------------------------------------------------------------------------------------------------------------
However, jurisprudence has clarified the conditions for the indication of
provisional measures, summed up by language now regularly inserted into the
Court's orders, as it is in paragraph 22 of the present Order FN7.
---------------------------------------------------------------------------------------------------------------------
FN7
Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v.
Belgium), I.C.J. Reports 2000, p. 201, para. 69; Armed Activities on he
Territory of the Congo I Democratic Republic of the Congo v. Uganda), I.C.J.
Reports 2000, p. 127, para. 39; Vienna Convention on Consular Relations
(Paraguay v. United States of America ), I.C.J. Reports 1998, p. 257, para.
35.
Judge Oda summed up as follows the conditions defined by the jurisprudene:
"the rights in question are those to be confronted at the merits stage of
the case, and which constitute or are directly engaged by the subject of the
application. The urgency of the relevant action or inhibition is a
prerequisite. The anticipated or actual breach of the rights to be preserved
ought to be one that could not be erased by the payment of reparation or
compensation to be ordered in a later judgment on the merits, and this
irreparable prejudice must be imminent." (Essays in Honour of Sir Robert
Jennings, p. 551.)
---------------------------------------------------------------------------------------------------------------------
The Court has accordingly supplemented the text of the Statute, which simply
grants it discretion depending on the circumstances FN8. Well-established
case law thus calls for a determination in each case as to whether there is
a serious risk of irreparable prejudice being caused to the rights of the
parties and in particular of the applicant, in his case the Republic of the
Congo, and whether there is an urgent need for the indication of provisional
measures. The Court nevertheless enjoys considerable leeway in the exercise
of its judicial function with respect to provisional measures: it may take
the view that ordering such measures would be pointless owing to the conduct
or statements of the parties; on the other hand, it may decide on measures
other than those requested or even indicate measures proprio motu.
---------------------------------------------------------------------------------------------------------------------
FN8
In his dissenting opinion appended to the Order of 2 March 1990. Judge
Hubert Thierry even contends that "if the circumstances actually require
such measures, they [the provisional measures] 'ought' to be taken (Art.
41)" I Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal).
Provisional Measures. I.C. J. Reports 1990, p. 79).
---------------------------------------------------------------------------------------------------------------------
The Court did not see fit to uphold the Congo's request for the indication
of a provisional measure and I regret that I was unable to vote in favour of
the decision because I consider the crux of the case the cornerstone of
the proceeding in question, the réquisitoire (prosecutor's application for
judicial investigation) of 23 January 2002 to have been [p 119]
disregarded. That prosecutorial act is the basis for and governs all the
criminal proceedings pending in France FN9 and it constitutes the Gordian
knot of the Parties' dispute before the Court. At the provisional measures
stage it represents the source of the risk of irreparable prejudice, given
that the rights to be protected will be the subject of the proceedings on
the merits. I am inclined to believe, however, with all due respect, that
the Court's formal approach has led it to rely on the general terms of
French law and not on this key factor which needed to be considered at the
provisional measures stage. I am thus unable, contrary though that may be
to my wishes, to support either the reasoning or the dispositif of the
present Order for the following reasons.
---------------------------------------------------------------------------------------------------------------------
FN9
"The investigating judge can only investigate by virtue of a réquisitoire
issued by the Procureur de la République" (Art. 80 of the French Code of
Criminal Procedure).
---------------------------------------------------------------------------------------------------------------------
I. There IS a Serious Risk of Irreparable Prejudice Being Caused to the
Rights of a Party
The rights which the Republic of the Congo sought to protect from the risk
of irreparable prejudice raised by the opening of certain criminal
proceedings in France are apparent from its Application and oral argument.
A. The Rights to Be Protected
During the oral proceedings, frequent reference was made to the case
concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the
Congo v. Belgium). However, the situation was different in that case because
the disputed measure was an international arrest warrant issued against the
Minister for Foreign Affairs, capable of causing prejudice to the person
concerned not by virtue of its circulation but only upon potential
execution by a third State. By contrast, the present case concerns acts
initiating judicial proceedings: preliminary police enquiry, judicial
inves-tigation on the application of the prosecutor, police custody and
examination as témoin asststé (legally represented witness) of General
Dabira, and an application to question the Head of State as witness, without
regard for the judicial investigation opened by the Tribunal de grande
instance of Brazzaville.
Some of those measures, which may appear preliminary, are in fact acts of
prosecution which although this is not to prejudge the merits interfere
both with the jurisdiction of the Republic of the Congo and with the
international standing of the Congolese authorities involved.
(1) To begin with, the first right invoked by the Congo stems from the
principle of the "sovereign equality" of States, which, according to the [p
120] Applicant, prohibits a State from "unilaterally attributing to itself
universal jurisdiction in criminal matters". It is apparent that the French
judicial measures are capable of contravening the division of jurisdiction
between criminal courts under international law.
First, while it is true that French law recognizes universal jurisdiction
under limited conditions that were recalled during the hearings FN10, the
disagreement between the Parties in the present case hinges on the
réquisitoire of 23 January 2002, which lets the French judge found his
investigation on universal jurisdiction arising from international custom.
The complaint of 5 December 2001, transmitted with the prosecutor's
originating application, states that
---------------------------------------------------------------------------------------------------------------------
FN10
The Agent of the French Government pointed out that in France universal jurisdiction is subject to two conditions: "there must in principle be a treaty to
which France is
a party that provides for that universal jurisdiction and even requires it
to be exercised . . .
the person suspected must be on French territory" (CR 2003/21, p. 9).
---------------------------------------------------------------------------------------------------------------------
"[d]omestic courts are therefore entitled to look to international custom
as the source of their right to exercise jurisdiction to prosecute the
perpetrators of a crime against humanity alleged to have been committed
outside France where neither the perpetrator nor the victim is a French
national" FN11.
------------------------------------------------------------------------------------------------------------
FN11
Letter from the International Federation of Human Rights Leagues to the Procureur de la République at the Paris Tribunal de grande instance, dated 5
December 2001, p. 25.
------------------------------------------------------------------------------------------------------------
This is reiterated in the complaint of 7 December:
"Notwithstanding that the facts occurred on the territory of the Republic of
the Congo, the French courts have jurisdiction in respect of crimes against
humanity by virtue of international custom . . ." FN12
------------------------------------------------------------------------------------------------------------
FN12
Document Dl/2 of 7 December 2001, appended to the litter from the
International
Federation of Human Rights Leagues to the Procureur de la République
at the Paris Tribunal de grande instance, p. 2.
------------------------------------------------------------------------------------------------------------
By appending the complaints to his originating application of 23 January
2001, the Procureur de la République at the Meaux Tribunal de grande
instance adopted that basis of jurisdiction. However, with respect to acts
of torture, it will be recalled that Article 5 of the United Nations
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, of 10 December 1984, implies that universal jurisdiction is
subsidiary to territorial jurisdiction and to jurisdiction under the active
nationality or passive personality principles. Article 5, paragraph 1, of
that Convention obliges States parties to establish their territorial
jurisdiction and their jurisdiction under the active nationality principle,
whilst also allowing them to establish jurisdiction under the passive
personality principle. Paragraph 2 requires each State party to take such
measures as may be necessary to establish its jurisdiction over the offences
covered by the Convention where the alleged offender is present in any
territory under its jurisdiction and it does not extradite [p 121] him.
Universal jurisdiction here is thus simply an application of the maxim aut
dedere aut punire. This principle prevails a fortiori in a situation of lis
alibi pendens: territorial or personal jurisdiction takes priority over
universal jurisdiction.
Secondly, the record shows that proceedings were already pending in the
Congo and that the intervention of the French courts is, according to the
Republic of the Congo, liable to violate the principle non bis in idem.
Judicial investigation (instruction) proceedings were initiated in the Congo
in respect of the same events. Further to the originating application of
the Brazzaville prosecutor, dated 29 August 2000, supplemented by an
application for an extension of the investigation, dated 11 November 2002,
the senior investigating judge of the Brazzaville Tribunal de grande
instance sent a commission rogatoire (letter of request for judicial
assistance) to the investigating judge of Kinshasa, concerning inter alia
the enforced disappearance of more than 350 irdividuals and crimes against
humanity and torture, for which responsibility is attributed to "the
President of the Republic of the Congo, the Minister of the Interior, Mr.
Norbert Dabira, Inspector General of the Armed Forces, and General Blaise
Adoua, Commander of the Republican Guard" FN13.
---------------------------------------------------------------------------------------------------------------------
FN13
Document Dl/2 appended to the 5 December 2001 letter from the International
Federation of Human Rights Leagues to the Procureur de la République at the
Paris Tribunal de grande instance, p. 2.
---------------------------------------------------------------------------------------------------------------------
The principle non bis in idem is in fact susceptible of two
interpretations. It can mean as the Agent of France pointed out that no
further proceedings can be brought in respect of acts on which a final
judgment has already been rendered. This principle is a manifestation of the
doctrine of res judicata, which operates not only to safeguard the rights of
the person tried but also to preserve the authority of judicial rulings. The
doctrine is enshrined in the French Code of Criminal Procedure (Arts. 6,
368 and 692), in the United Nations Covenant and in Protocol No. 4 of the
European Convention for the Protection of Human Rights and Fundamental
Freedoms. It applies where the decision of a trial court has become final
and the subsequent action relates to the same acts and is brought against
the same party who was tried in the first proceedings.
But in international law the operation of the principle non bis in idem can
also indicate the existence of lis alibi pendens, precluding the exercise of
jurisdiction by a court subsequently seised of the same matter. The scope
and nature of that rule in international law may well be subject to debate,
but the least that can be said is that it would have been more prudent for
the French prosecutor to have refrained from prosecuting in this case.
At the same time, as the Agent of the Republic of the Congo stated in his
introductory observations, there has been a violation of the indepen-[p
122]dence and sovereignty of the Congolese State. The réquisitoire of 23
January 2002 constitutes per se an act of prosecution. In seising the
investigating judge of the offences alleged in the complaints and mentioned
in the reports of the preliminary police enquiry, the réquisitoire
characterizes the facts, advances as its own the claims of the complainant
associations and alleges the existence of crimes again st humanity and
torture. This constitutes interference by the French judiciary in the
domestic affairs of the Congo and encroaches upon the sovereignty of that
State.
(2) Further, the Court also observed that the Congo invoked "the right to
respect by France for the immunities conferred by international law on, . .
. in particular, the Congolese Head of State". The criminal proceedings
initiated in France raise a challenge not only to the immunity from
jurisdiction of the personalities named but also to their inviolability, in
so far as they may act or be present on the territory of France in their
capacities as representatives of the Republic of the Congo. This is
par-ticularly true for the Head of State, whose immunity is invoked in the
Application.
"It is not disputed that the Head of State benefits from absolute criminal
immunity before the courts of a foreign State. The absolute nature of the
immunity precludes the application of any exception to that immunity, for
example based on the nature of the offence of which he is accused." FN14
------------------------------------------------------------------------------------------------------------
FN14
J. Verhoeven, Rapport à l'Institut de droit international "Les immunités de
juridiction et d'exécution du chef d'Etat et de gouvernement en droit
international", Annuaire de
l'Institut de droit international, 2000-2001, Vol. 69, p. 516.
------------------------------------------------------------------------------------------------------------
Immunity has the effect of rendering inadmissible any action brought against
the person who invokes it. President Sassoa Nguesso has admittedly visited
France on two occasions since the start of the disputed proceedings, but
the existence of the réquisitoire and the reference of the case to the
investigating judge maintain a constant threat in respect of his travels to
France or to other foreign countries. This is particularly significant for
a State whose constitution establishes a presidential regime, entrusting the
Head of State with most of the authority and responsibilities for the
functioning of the Government.
(3) Lastly, and more generally, it is clear from the Application and the
Congo's statements at the hearings that the French criminal proceedings
impugn the dignity of the State, a quality vested in sovereign States.
Anzilotti observed in his day that in relations between States "the honour
and dignity of the State far outweigh material interests" and that
"non-material damage takes on a far greater significance than in internal
law" FN15. The notion remains rather vague but it does entail certain
specific [p 123] legal consequences FN16. In addition to norms and customs
of protocol and ceremonial, the dignity of diplomatic representative s finds
protection in treaties FN17 and the 1973 Convention on the Prevention and
Punishment of Crimes against Internationally Protected Persons acknowledges
and enshrines the existence of an obligation under international law to take
all appropriate measures to prevent attacks on the dignity of an
internationally protected person (Art. 2, para. 3).
---------------------------------------------------------------------------------------------------------------------
FN15
Cours de droit international, 1929, Vol. 1, p. 523.
FN16 Sir Arthur Watts observes:
"Dignity, whether of States or their Heads, is an elusive notion, although
it is still a convenient label. Some of the consequences formerly attributed
to the need to respect the dignity of Heads of States now survive, if they
survive at all, in the realms of protocol and State ceremonial . . . Some
aspects of the respect due to the dignity of Heads of States still, however,
survive as a matter of international law." ("The Legal Position in
International Law of Heads of States, Heads of Governments and Foreign
Ministers", Recueil des cours de ïAcadémie de droit international de La
Have, 1994, Vol. 247, p. 41.)
FN17 Vienna Conventions of 1961 on Diplomatie Relations (Art. 29), of 1963
on Consular
Relations (Art. 40), and of 1969 on Special Missions by a Hoad of State
(Art. 29).
---------------------------------------------------------------------------------------------------------------------
Furthermore, some traditional doctrine founded the immunity from
jurisdiction enjoyed by the State and the Head of State on the principle of
State dignity. The opinion delivered by Chief Justice Marshall in The
Schooner Exchange v. McFaddon (1812) recalls the obligation of any sovereign
"not to degrade the dignity of his nation'' by submitting to the
jurisdiction of another State; a Head of State or sovereign visiting another
State is not "to subject himself to a jurisdiction incompatible with his
dignity and the dignity of his nation" FN18. This justification is still
invoked by some authors FN19.
---------------------------------------------------------------------------------------------------------------------
FN18
The Schooner Exchange v. McFaddon (1812), 11 US 1:7-138; in English case
law:
Mighell v. The Sultan of Johore [1894] 1 QB 149.
FN19 L. Cavaré, Le droit international public positif, 1969, Vo . II, p. 10;
D. P. O'Connell,
International Law. 2nd ed.. 1970. Vol. II, p. 842. See also J. Verhoeven.
op. cit.. p. 507.
---------------------------------------------------------------------------------------------------------------------
The dignity of the State, to which the Agent of the Congo referred FN20 and
to which relate the "reputation", "honour" and "international standing" of
that country, and the dignity of the Head of State may be impugned whether
or not the Head of State is present on the territory of the State where the
injurious acts have been committed FN21. Such acts may be perpetrated
through publications, press articles, insults, defamatory or offensive
statements, etc. They often emanate from private parties and the authorities
of the territory where such acts occur then have a duty to punish or make
good the violation and to present apologies; such acts may also stem from
inappropriate initiatives by local authori-[p 124]ties, in particular lower
courts. The insult to dignity is no less genuine in such cases.
---------------------------------------------------------------------------------------------------------------------
FN20
CR 2003/20, p. 11.
FN21 Oppenheim's International Law, 9th ed., 1992, Vol. 1, p. 379.
---------------------------------------------------------------------------------------------------------------------
B. The Existence of Irreparable Prejudice
The purpose of provisional measures is to prevent the occurrence of
irreparable prejudice. If the prejudice has already come into existence, it
is too late; on the other hand, the risk of irreparable prejudice is met by
the indication of provisional measures. The difficulty in the present case
lies in the fact that the risk for the Head of State of the Republic of the
Congo has thus far appeared to be a potential or hypothetical one and was
even described during the hearings as "chimerical", but the risk raised by
the réquisitoire of 23 January is nonetheless established and the
realization of that risk would indeed create irreparable prejudice.
Publicity surrounding acts of torture or enforced disappearance has
inevitably aroused suspicions already, given that the case involves the Head
of an African State on the morrow of a series of vicious civil wars, whereas
no credence would be attached to such allegations if they concerned the
leaders of older nations.
I. The risk of prejudice
As illustrated by the jurisprudence, in assessing the risk of irreparable
prejudice, the Court may be led to consider both the probability and the
potential consequences of the occurrence of a fact or event. A future event
does not have to be a certainty; it only needs to be probable.
In some cases, the event capable of causing the prejudice may already have
occurred and the Court's work then consists simply in assessing whether, in
the light of the facts, a provisional measure is necessary to prevent
irreparable damage to the rights claimed. This is illustrated, for example,
by the Orders of 8 April and 13 September 1993 in the case concerning the
Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro) ).
The Applicant produced the same evidence in support of its request for
provisional measures as for its Application on the merits FN22.
---------------------------------------------------------------------------------------------------------------------
FN22
I.C.J. Reports 1993. p. 3 and p. 325.
---------------------------------------------------------------------------------------------------------------------
In other cases, the request for the indication of provisional measures has
arisen from events occurring subsequent to the Application, such as the
incidents between the armed forces of Burkina Faso and the Republic of Mali
in the border region between the two countries in the Frontier Dispute
(Burkina Faso/Republic of Mali) case FN23.
---------------------------------------------------------------------------------------------------------------------
FN23
Provisional Measures. Order of 10 January 1986, I.C.J Reports 1986. p. 3.
---------------------------------------------------------------------------------------------------------------------
On other occasions, the Court may have to assess the possibility or
likelihood of the prejudice. Thus, in the Orders concerning the Nuclear [p
125] Tests cases, the Court stated that its power under Article 41 of the
Statute
"presupposes that irreparable prejudice should not be caused to rights which
are the subject of dispute in judicial proceedings and that the Court's
judgment should not be anticipated by reason of any initiative regarding the
matters in issue before the Court" FN24.
------------------------------------------------------------------------------------------------------------
FN24
Nuclear Tests (Australia v. France), Provisional Measures, Order of 22 June
1973, I.C.J. Reports 1973, p. 103, and Nuclear Tests (New Zealand v.
France). Provisional Measures, Order of 22 June 1973, I.C.J. Reports 1973,
p. 139.
------------------------------------------------------------------------------------------------------------
In those cases, the Court did not exclude the possibility of harm being
caused to Australia and New Zealand by the radioactive fall-out of the
nuclear tests in the atmosphere.
A similar pronouncement appears in the Fisheries Jurisdiction cases but the
Court was more precise there because it added:
"the immediate implementation by Iceland of its Regulations would, by
anticipating the Court's judgment, prejudice the rights claimed . . . and
affect the possibility of their full restoration in the event of a judgment
in its favour" FN25.
------------------------------------------------------------------------------------------------------------
FN25
Fisheries Jurisdiction (United Kingdom v. Iceland), Provisional Measures,
Order of 17 August 1972, I.C.J. Reports 1972, p. 16, para. 22; Fisheries
Jurisdiction (Federal Republic of Germany v. Iceland), Provisional Measures,
Order of 17 August 1972. I.C.J. Reports 1972. p. 34, para. 23.
------------------------------------------------------------------------------------------------------------
More recently, in line with its decisions in the case concerning the Vienna
Convention on Consular Relations (Paraguay v. United States of America) FN26
and in the LaGrand case (Germany v. United States of America), the Court
held even more explicitly in the case concerning Armed Activities on the
Territory of the Congo (Democratic Republic of the Congo v. Uganda):
---------------------------------------------------------------------------------------------------------------------
FN26
I.C.J. Reports 1998, p. 257, paras. 35-37.
---------------------------------------------------------------------------------------------------------------------
"in the circumstances, the Court is of the opinion that persons, assets and
resources present on the territory of the Congo, particularly in the area of
conflict, remain extremely vulnerable, and that there is a serious risk that
the rights at issue in this case, as noted in para-graph 40 above [the
Congo's rights to sovereignty, territorial integrity, integrity of its
assets and natural resources and its rights to respect for the rules of
international humanitarian law], may suffer irreparable prejudice" FN27.
------------------------------------------------------------------------------------------------------------
FN27
Order of 1 July 2000, I.C.J. Reports 2000, p. 128, para 43; emphasis added.
------------------------------------------------------------------------------------------------------------
In the present case, it appears to me that the prejudice already exists and
that a risk of further prejudice can be identified in two respects.
First, the prejudice arises from the transmission of the complaints by the
Paris prosecutor to the Meaux prosecutor, who had an obligation to [p 126]
decline jurisdiction for two reasons: the complaints implicate foreign
personalities whose immunity from jurisdiction is established or
foreseeable; and there was no basis under French law for jurisdiction of the
French judicial authorities. The only possibility open to the prosecutor was
to assert the territorial jurisdiction of French courts in respect of
General Dabira, by virtue of a residential connection with French
territory, and to acknowledge that he otherwise lacked jurisdiction.
Failing to acknowledge the lack of jurisdiction or to make any reference to
such effect, and asserting the jurisdiction of French courts in respect of
acts committed abroad, the réquisitoire of 23 January 2002 flouts the
international division of jurisdiction among courts and violates the
immunity of the Head of State and potentially that of other Congolese
personalities.
The réquisitoire thus is clearly null and void and the Government of the
French Republic had an obligation towards the Republic of the Congo to apply
to the competent court for a hiding to such effect, without waiting for the
investigating judge or the prosecutor himself to proceed with any other acts
stemming from the réquisitoire that would further violate international law.
Secondly, the Agent and counsel of France claimed that the summons addressed
to President Sassou Nguesso to give evidence was simply an invitation under
Article 656 of the Code of Criminal Procedure.
In reality, this proves that the Head of State's immunity was violated by
the réquisitoire of 23 January. Once President Sassou Nguesso had been
expressly accused in the complaints appended to the réquisitoire and by a
victim, or alleged victim, examined during the preliminary police enquiry,
the deposition that the investigating judges expected to take from him could
only have concerned acts of which they were seised and in respect of which
he was named, along with the other personalities identified, as the
principal perpetrator. Whilst any other person implicated could only have
been examined as a témoin assisté, enjoying guarantees of procedural due
process, the judges are here seeking a deposition from a foreign Head of
State concerning accusations of which he does not even know the exact tenor
because he has not been granted access to the case file. The investigating
judges only considered themselves entitled to proceed in such a manner
because they had been seised by the réquisitoire of, inter alia, offences
attributed to the Congolese Head of State.
Even assuming that Article 656 of the Code of Criminal Procedure applies to
Heads of State which is debatable FN28 , the President of the Congo, by
deferring to the judge's invitation, could find himself formally placed
under judicial examination on the basis of the complaints appended to the
prosecutor's originating application of 23 January. But what [p 127] would
be the purpose of such a deposition? To question the Head of State about
events that occurred in his country? Te induce him to make accusations
against any of his fellow citizens? There is certainly a serious risk of
prejudice here. The process would appear incongruous and, admittedly, the
French Minister for Foreign Affairs has not transmitted the invitation to
date, as the Court observed in the present Order. However, the failure to
transmit that invitation to give evidence may be explained by reasons of
expediency or legality; the French Minister for Foreign Affairs may have
considered the Article 656 procedure inapplicable to a foreign Head of
State. Most importantly, as the invitation has not been followed up, there
is nothing to prevent the investigating judge from taking any other measures
in respect of Près dent Sassou Nguesso on the basis of the réquisitoire. It
is therefore difficult to see how "the current proceedings . . . have not
caused and cannot cause any damage to the Congo by way of breach of the
immunities of President Sassou Nguesso".
---------------------------------------------------------------------------------------------------------------------
FN28
J.-M. Gonnard, Jurisclasseur de procédure pénale, fase. No. 23.
---------------------------------------------------------------------------------------------------------------------
The difficulty lies in the ongoing nature of the event capable of creating
irreparable prejudice, stemming from the prosecutor's originating
application of which the consequences have not yet al' occurred but remain
possible in the event of a decision by a less attentive, less scrupulous or
more obstinate investigating judge. For as long as the defective procedural
measure, the réquisitoire, remains in force;, there will always be a risk.
That risk is said to be "hypothetical" but "[a] risk is by definition a
matter of chance, and it is dangerous to rely for a decision on the absence
of a risk or on its improbability" FN29.
---------------------------------------------------------------------------------------------------------------------
FN29
Dissenting opinion of Judge Thierry appended to the Order of 2 March 1990,
Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), Provisional
Measures, I.C.J. Reports 1990, p. 82.
---------------------------------------------------------------------------------------------------------------------
2. Irreparability of prejudice
The notion of irreparable prejudice has evolved. In the narrow sense,
following from the Permanent Court's interpretation in the case concerning
Denunciation of the Treaty of 2 November 1865 between China and Belgium
FN30, prejudice is irreparable if it cannot "be made good simply by the
payment of an indemnity or by compensation or restitution in some other
material form".
---------------------------------------------------------------------------------------------------------------------
FN30
P.C.I. J. Series A, No. 8, p. 7.
---------------------------------------------------------------------------------------------------------------------
Evidence of this narrow view was still to be found in the Aegean Sea
Continental Shelf case, in which the Court rejected Greece's request on the
ground that the right which it was seeking to protect (the right to acquire
information concerning the natural resources of areas of continental shelf)
was "one that might be capable of reparation by appropriate means" FN31.
---------------------------------------------------------------------------------------------------------------------
FN31
I.C.J. Reports 1976, p. 11, para. 33.
---------------------------------------------------------------------------------------------------------------------
[p 128]
Recent case law betokens a broader conception of irreparability.
This has not it would appear been discussed at length in cases in which
provisional measures have been indicated for obvious reasons, such as the
cases concerning the Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia
(Serbia and Montenegro)), aimed incidents occurring in the course of the
Frontier Dispute (Burkina Faso/Republic of Mali), Provisional Measures,
Order of 10 January 1986, and Avena and Other Mexican Nationals (Mexico v.
United States of America), involving the impending execution of prisoners
sentenced to the death penalty in the United States FN32.
---------------------------------------------------------------------------------------------------------------------
FN32
For example, most recently the Order of 5 February 2003, in the case
concerning
Avena and Other Mexican Nationals (Mexico v. United States of America),
Provisional
Measures, I.C.J. Reports 2003, p. 91, para. 55.
---------------------------------------------------------------------------------------------------------------------
On the other hand, some light is shed on this question in certain cases in
which the request for the indication of provisional measures has been
rejected.
In the case concerning Questions of Interpretation and Application of the
1971 Montreal Convention arising from the Aerial Incident at Lockerbie
(Libyan Arab Jamahiriya v. United Kingdom, the irreparability of the
prejudice was noted and expounded primarily by the dissenting judges. Had
the Security Council not adopted a resolution altering the circumstances,
they would have found the request for the indication of provisional measures
to be justified. If Libya were compelled to surrender the suspects, it would
as a result lose its right to try them itself under the Montreal Convention;
conversely, if the Court did not intervene, there was a risk that Libya
could find itself subject to coercion on the part of the respondent powers.
The Respondents were disputing the Applicant's right to exercise its
jurisdiction in the matter. Judge Ranjeva observed:
"with respect to both its scope and its nature, the Applicant's right would
have been under threat of disappearance had the contrary claim of the
Respondent been acted upon. Here, on the contrary, under the Montreal
Convention, the Respondents possess the power to prosecute the
above-mentioned suspects. This collision of opposing rights, a clash
centred upon a question of criminal responsibility, is the cause not only of
what may well be irreparable prejudice, but above all of an aggravation of
the dispute . . . [T]he Applicant has used a remedy open to every State
wishing to request of the Court the legitimate protection of its right to
pass judgment." FN33
------------------------------------------------------------------------------------------------------------
FN33
I.C.J. Reports 1992, p. 73, paras. 5 and 6; emphasis added.
------------------------------------------------------------------------------------------------------------
[p 129]
Finally, in other cases there was merely a diffuse risk of prejudice FN34.
---------------------------------------------------------------------------------------------------------------------
FN34
Mathieu Bouah Bile, Les mesures conservatoires indiqutes par la Cour de La
Haye
de 1923 à nos jours, Dissertation, 1986, Vol. I, pp. 109 et sea.
---------------------------------------------------------------------------------------------------------------------
Thus in the case concerning Denunciation of the Treaty of 2 November 1865
between China and Belgium in 1927, President Max Huber indicated
provisional measures, finding that:
"in the event of an infraction ... of certain of the rights, which Belgium
or her nationals would possess in China, if the Treaty of November 2nd,
1865, were recognized as still operative, such infraction could not be made
good simply by the payment of an indemnity or by compensation or restitution
in some other material form" FN35.
------------------------------------------------------------------------------------------------------------
FN35
P.C.I.J., Series A, No. S. p. 7; emphasis added.
------------------------------------------------------------------------------------------------------------
The Order says nothing expressly about irreparable prejudice and lays down
the principle that "the object of the provisional measures in question can
only be the protection of interests which, without such measures, would be
in jeopardy of being irreparably compromised".
In the case concerning the Electricity Company of Sofia and Bulgaria, the
Permanent Court indicated provisional measures against Bulgaria, not to
prevent irreparable prejudice but because the parties to a case must abstain
from any measure capable of exercising a prejudicial effect in regard to the
execution of the decision to be given. In that case, the Belgian Government
claimed that prejudice had been caused by acts of the State Administration
of Mines putting into force a special artificially calculated tariff, by
judgments of the District Court and of the Court of Appeal of Sofia, and by
the 1938 judgment of the Court of Cassation . . . considering that they had
occasioned grave prejudice to a Belgian national FN36.
--------------------------------------------------------------------------------------------------------------------
FN36
P.C.I.J., Series A/B. No. 79, p. 199; P.C.I.J., Series C. No. 88, pp. 55-56.
---------------------------------------------------------------------------------------------------------------------
In the case concerning Fisheries Jurisdiction (United Kingdom v. Iceland),
the risk of economic prejudice was diffuse and required an assessment of
the consequences of the Icelandic regulations on the fishing industry in the
United Kingdom (risk of unemployment, decommissioning of fishing vessels,
etc.).
In the case concerning Nuclear Tests (Australia v. France), the Applicants
cited potential health effects of atomic radiation. Australia argued:
"as the result of the French tests which have already taken place,
[Australia] could have 1 case of thyroid cancer per year due to the isotope
iodine-131 and 1 to 4 other cancer cases. . . Due to the same isotopes,
Australia could have one mutation n every 10 years lead-[p 130]ing to death
or disability in the first generation, and up to 50-100 deaths or
disabilities in all subsequent generations." FN37
-----------------------------------------------------------------------------------------------------------
FN37
Request for the indication of provisional measures of Australia, I.C.J.
Pleadings, Nuclear Tests. Vol. I. p. 55.
------------------------------------------------------------------------------------------------------------
Relying upon a scientific line of argument, the French Government contended
that "to date no evidence has been adduced that such minimal doses as those
resulting from the fall-out from the F rench tests are likely to have an
effect . . .". Still, the Court held that the/e could be no doubt as to the
irreparability of the prejudice.
Consequently, in the light of this jurisprudence the threat of coercive
judicial measures raised by the réquisitoire of 23 January in the present
case is such as to constitute a risk of irreparable prejudice.
First, the threat of a measure of constraint can, under the jurisprudence
of the Court, constitute a risk of irreparable prejudice. In an old, but
nonetheless significant, case before the Permanent Court of International
Justice, the German Government requested he Court to indicate to the Polish
Government, as an interim measure of protection pending the delivery of
judgment on the Application, that it should abstain from any measure of
constraint in respect of the property of the Prince von Pless, on account of
income tax, because the carrying into effect of the measures of constraint
would irremediably prejudice the right and interests forming the subject of
the dispute. Ultimately, after the Court had convened, Poland transmitted
declarations stating that: the summonses for payment had been sent to the
Prince by oversight; the higher authorities in Poland having learned that
measures of constraint had been taken in respect of the Prince, the
Government had annulled them and undertook to suspend measures of constraint
in respect of the Prince's income tax for another period and to refrain from
collecting the disputed taxes until the Court had finally decided fie
dispute then pending before it. Finally, after agreement between the
parties, the Court found in its Order of 11 May 1933 that, in consequence of
the annulment, on the ground that an administrative error had occurred, of
the measures of constraint against the Prince von Pless, the grounds for the
German Government's request for the indication of provisional measures had
ceased to exist FN38.
--------------------------------------------------------------------------------------------------------------------
FN38
P.C.I.J, Series A /B, No. 54, pp. 151-153.
---------------------------------------------------------------------------------------------------------------------
There is indeed a risk in the present case that coercive measures will be
taken against aliens, against Congolese nationals whether or not enjoying
immunity from jurisdiction, in respect of acts committed in the Congo, such
measures to be decided by French judicial authorities on the basis of a
jurisdiction conjured up under international custom.
Further, in the case concerning the United States Diplomatic and Consular
Staff in Tehran, the Court responded favourably to the United [p 131] States
request, stating, after having noted that the power to indicate provisional
measures presupposes that irreparable prejudice should not be caused to
rights which are the subject of dispute, that
"there is no more fundamental prerequisite for the conduct of relations
between States than the inviolability of diplomatic envoys and embassies,. .
. the obligations thus assumed, notably those for assuring the personal
safety of diplomats and their freedom from prosecu-tion, are essential,
unqualified, . . ."FN39.
-----------------------------------------------------------------------------------------------------------
FN39
I.C.J. Reports 1979, p. 19, para. 38.
------------------------------------------------------------------------------------------------------------
The same is true a fortiori when State leaders an; involved.
Finally, in the present proceedings, the Applicant stresses that account
should be taken of
"[the perturbation caused by the proceedings in question to] the
international relations of the Republic of the Congo as a result of the
publicity accorded ... to the actions of the investigating judge, which
impugn the honour and reputation of I he Head of State, of the Minister of
the Interior and of the Inspector-General of the Armed Forces and, in
consequence, the international standing of the Congo".
It is not only that Franco-Congolese relations wilt be damaged because
proceedings concerning immunities are likely to affect relations between two
States. Allegations of crimes against humanity or other State crimes can
impair the international standing of a nation and the unprecedented
proceedings initiated in France would be such as to harm the standing and
even the honour of the Congo, owing to the publicity which will inevitably
be accorded them.
In the international order the Head of State represents the State in all
aspects of its international intercourse and this general authority, called
the jus repraesentationis omnimodae, follows from international law as much
as, or even more than, from national constitutional law. Sir Arthur Watts
summarizes the position as follows: "It may be said generally that nowadays
Heads of States through their office manifest the spirit and grandeur of
their nations as a whole." FN40
--------------------------------------------------------------------------------------------------------------------
FN40
Watts, op. cit., p. 32.
---------------------------------------------------------------------------------------------------------------------
True, the international order traditionally provides means for making good
such an injury to the standing or honour of a State and a subsequent
judgment by the Court would constitute adequate reparation for the damage
caused to the Congo in its relations with other members of the international
community.
On the other hand, nothing could make good the loss of reputation and honour
suffered by a Head of State in the eyes of his people, who [p 132] remain
sensitive to press reports and propaganda disseminated by opponents. It is
important to keep in mind that the present case involves an African Head of
State. Owing to the civil wars and tragic events having marked the continent
in recent years, rumours and accusations directed at one or another leader
are easily given some credence, even though like accusations would raise a
smile or be considered frivolous elsewhere. In Africa the Head of State
occupies a very special position, for "the people have a stronger sense of
ethnic solidarity than of national or State solidarity", as Raymond Aron
observed; "lacking cohesion as a result of the multiplicity of tribes,
African States are pre-national or sub-national, as it were, in that the
State does not have before it a unified nation". He added that this new type
of State
"is territorial and national: territorial in that the sovereign is entitled
to do as he pleases within its boundaries; national in that the sovereign
sees himself not as the possessor of the land nor as the master of those
occupying it but as the embodiment of a people" FN41.
-----------------------------------------------------------------------------------------------------------
FN41
Paix et guerre entre les nations, 1962, pp. 394-396.
------------------------------------------------------------------------------------------------------------
Accordingly, the Head of State identifies the group, he incarnates the
national will, he performs a "rallying" function, he symbolizes the
existence of the nation and any accusation against him or attempted harm to
his person is perceived as an attack on the State he represents in the
manifestation of a certain unanimism, even though that unanimism is
fleeting. This has led one author to conclude:
"An African Head of State who has been a leader and the first witness to the
national ideal, to its sovereignty, who in tomorrow's Africa will assuredly
be a soldier, has as his prime mission proving the existence of the State."
FN42
-----------------------------------------------------------------------------------------------------------
FN42
Bernard Asso, Le chef d'Etat africain, 1976, p. 346.
------------------------------------------------------------------------------------------------------------
Now, foreign criminal proceedings initiated under murky circumstances
against political leaders who prevailed after years of civil war can
contribute to destabilizing the Government. A court which lends itself,
even unintentionally, to manipulation by public opinion in a foreign country
interferes in the internal affairs of that State. The prejudice is
irreparable, as it undermines the legitimacy and stability of the foreign
governmental authority. The Court did not wish to take account of this
situation. It draws an abstract, categorical distinction between the rights
to be protected and the prejudice arising from the violation of those
rights, taking the view that irreparable prejudice would not be caused to
the rights as such claimed by the Congo but might be regarded as such as to
affect irreparably the rights asserted in the Application. First, it appears
to me that what is at issue is not the separateness or magnitude of the
injury; the crux is whether a causal nexus between the injurious act and the
damage can be established: the violation of the right or the act [p 133]
giving rise to responsibility must be the cause of the prejudice. Once this
nexus has been established, it suffices to find that there is prejudice or,
for the indication of provisional measures, a risk of irreparable prejudice.
Secondly, in the political order it is not possible to stop at a mechanical
analysis isolating each injury or event with a view to connecting it with
its efficient cause. In itself, the violation of the rights which the Congo
seeks to protect creates prejudice, for example in the case of immunity; it
can, however, also create other irreparable prejudice which may be observed
in the future. That prejudice is difficult if not impossible to prove before
it is suffered but it may be infinitely more serious, as in the case of the
destabilization of the country. A formalistic approach confining itself to
consideration of the asserted rights for which protection is sought
disregards the fact that violation of one right can give rise to a series of
injuries likely to affect other rights and, more generally, legal interests
worthy of preservation. In this regard, there is nothing to prevent the
Court, in assessing the "circumstances" calling for the indication of
provisional measures, from taking account of the legitimate interests of a
party. Further, the development of the law of civil liability, notably in
France, shows the courts desire that the right to compensation for an injury
caused to "a right' should be extended to the prejudice impairing a
"legitimate interest" of the victim FN43. The desire to preserve the
internal stability of the country, under threat of being undermined as a
result of the allegations of criminal conduct levelled at the country's
leaders, is a legitimate legal interest of the Congo. This attack on
national independence is clearly irreparable and once the Government has
been shaken, a subsequent decision by the Court upholding the Congo's
Application could come too late.
--------------------------------------------------------------------------------------------------------------------
FN43
Terré, Ph. Simler, Y. Lequette, Droit civil: les obligations, 8th ed., 2002,
Nos. 704 et seq.. p. 684.
---------------------------------------------------------------------------------------------------------------------
II. There Is Urgency
Even if the Court has not always specifically said so (see, inter alia,
Anglo-Iranian Oil Co., Provisional Measures, Order of 5 July 195I) FN44, its
orders leave no doubt that "such measures are only justified if there is
urgency" FN45.
--------------------------------------------------------------------------------------------------------------------
FN44
I.C.J. Reports 1951, p. 93.
FN45 Case concerning the Land and Maritime Boundary between Cameroon and
Nigeria
(Cameroon v. Nigeria), Provisional Measures, Order of 15 March 1996, I.C.J.
Reports
1996 (I), pp. 21-22, para. 35.
---------------------------------------------------------------------------------------------------------------------
The case law reveals three types.
First, the urgency may be patent (risk of death, armed action, threat of
destruction of property, etc.) and the Court must then demonstrate [p 134]
diligence FN46. Situations where both parties seek provisional measures in
similar terms revealing that urgency lies at the heart of the proceedings
also fall into this category FN47.
--------------------------------------------------------------------------------------------------------------------
FN46
As in the cases concerning the Trial of Pakistani Prisoners of War,
Provisional
Measures, Order of 13 July 1973, Application of the Convention on the
Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia
(Serbia and
Montenegro)), Land and Maritime Boundary between Cameroon and Nigeria (Cam-
eroon v. Nigeria), Vienna Convention on Consular Relatiom (Paraguay v.
United States
of America), LaGrand (Germany v. United States of America), Avena and Other
Mexi-
can Nationals (Mexico v. United States of America) and Armed Activities on
the Territory of the Congo I Democratic Republic of the Congo v. Uganda).
FN47 Frontier Dispute (Burkina Faso/Republic of Mali), Provisional Measures.
Order of
10 January 1986, J.C.J. Reports 1986, p. 3.
---------------------------------------------------------------------------------------------------------------------
Secondly, in some cases, the circumstances of the urgency have to be
assessed and this indicates that urgency is a contingent or relative notion.
The Court thus defined urgency in the case concerning Passage through the
Great Belt (Finland v. Denmark) as follows:
"provisional measures under Article 41 of the Statute are indicated 'pending
the final decision' of the Court on the merits of the case, and are
therefore only justified if there is urgency in the sense that action
prejudicial to the rights of the other party is likely to be taken before
such final decision is given" FN48.
-----------------------------------------------------------------------------------------------------------
FN48
I.C.J. Reports 1991, p. 17, para. 23; emphasis added.
------------------------------------------------------------------------------------------------------------
Thirdly, the distinction between likelihood and possibility is sometimes
subtle and urgency may result not only from an actual imminent risk but even
from a contingent one.
Thus in the case concerning Nuclear Tests (Australia v. France),
Provisional Measures, Order of 22 June 1973, in which the Court's finding
as to the urgency of the request was merely implicit, the Court stated:
"these allegations give substance to the Australian Government's contention
that there is an immediate possibility of a further atmospheric nuclear test
being carried out by France in the Pacific" FN49. The same view is expressed
in the Fisheries Jurisdiction cases as to the possibility of the immediate
implementation of the new Icelandic Regulations FN50.
--------------------------------------------------------------------------------------------------------------------
FN49
I.C.J. Reports 1973, p. 104. para. 26; emphasis added.
FN50 Fisheries Jurisdiction (United Kingdom v. Iceland), Provisional
Measures, Order of 17 August 1972, I.C.J. Reports 1972, p. 16; Fisheries
Jurisdiction (Federal Republic of Germany v. Iceland), Provisional Measures,
Order of 17 August 1972, I.C.J. Reports 1972, p. 34.
---------------------------------------------------------------------------------------------------------------------
In other cases, urgency has been assessed not by application of the
criterion of likelihood but by reference to general considerations related
to the circumstances of the case.
In the case concerning Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America), Provisional Measures,
Order of 10 May 1984, the Applicant claims that the urgent need for the
requested measures is shown by the fact that 'the lives and property of
Nicaraguan citizens, the sovereignty of the State and the [p 135] health and
progress of the economy are all immediately at stake"' FN51. The risk that
the Nicaraguan Government would be destabilized was potential not actual, as
the "covert" activities of the United States in Nicaragua could have ceased
at any moment.
--------------------------------------------------------------------------------------------------------------------
FN51
I.C.J. Reports 1984, p. 182, para. 32.
---------------------------------------------------------------------------------------------------------------------
In the case concerning Passage through the G*eat Belt (Finland v. Denmark),
the Court based its assessment on the timetable for the disputed project as
seen in the light of the expected course of the proceedings; the Court
stated:
"placing on record the assurances given by Denmark that no physical
obstruction of the East Channel will occur before the end of 1994, and
considering that the proceedings on the merits in the present case would, in
the normal course, be completed before that time, [the Court] finds that it
has not been shown that the right claimed will be infringed by construction
wore during the pendency of the proceedings" FN52.
-----------------------------------------------------------------------------------------------------------
FN52
I.C.J. Reports 1991, p, 18, para. 27; emphasis added.
------------------------------------------------------------------------------------------------------------
In short, Finland failed to obtain the provisional measures sought but it
did obtain a guarantee in the form of assurances given by Denmark in
response to Finland's request.
In the present case, the urgency remains for as long as the réquisitoire is
maintained. That act of procedure creates the possibility of additional
prejudice at any time because there are no guarantees for the individuals
named in the complaints appended to the réquisitoire. Having regard to the
complaints transmitted to him, the Procureur de la République should have
ascertained whether he had jurisdiction and whether criminal proceedings
were admissible, given the involvement of a foreign Head of State. Had he
done so, he would have understood i.hat he was not entitled to seek the
opening of a judicial investigation and that he should take no further
action on those complaints and should eve a refrain from ordering a
preliminary police enquiry. As it was, the prosecutor's actions resulted in
a réquisitoire which was vitiated by a lack of jurisdiction, was ultra vires
and was therefore void. At the same time, he allowed the investigating
judge, at any time, to take any measures, including measures of coercion,
against the personalities in question and even against the Head of State.
The appended complaints were drafted with care and are not neutral
documents; by virtue of the réquisitoire which relied on them, they became
the basis and framework for the exercise of the investigating judge's
jurisdiction. The réquisitoire against person or persons unknown allows the
judge to act, as and when he chooses, against the named individuals, but
also against any other persons who may be connected with the acts referred
to the judge. Moreover, there s currently no right of appeal against the
réquisitoire of 23 January, except that which could be exercised by civil
complainants, individuals formally placed under judicial [p 136]
examination, the prosecutor if he receives such an order, or the
investigating judge under Article 170 of the Code of Criminal Procedure.
Individuals who have not been placed under judicial examination but who are
named in complaints remain powerless. Accordingly, only the French
Government, by instructions given to the Procureur général, would be able to
terminate the deleterious effect of the réquisitoire of 23 January.
Is it really necessary for the President of the Republic of the Congo or any
other senior Congolese figures or citizens of that State to be formally
placed under judicial examination, held in police custody, imprisoned,
committed to the Assize Court for trial or convicted, before the
preservation of the Congo's rights can be regarded as urgent?
It moreover appears pointless to consider that the Congo could subsequently
seise the Court of a new request for the indication of provisional measures
if a further threshold were to be crossed in the French criminal
proceedings. The prejudice already exists. It is urgent to forestall the
possibility of that prejudice becoming irreparable.
More generally, urgency may also arise from the fact that it would otherwise
be necessary to wait until the Court ruled on the merits, since any
subsequent reparation of prejudice caused by the continuation of the
judicial proceedings against the personalities concerned would be quite
illusory.
As Sir Hersch Lauterpacht observed:
"from the point of view of the plaintiff State, an Order indicating interim
measures may be of such urgency that to postpone it until the Court has
finally decided, in proceedings which may take a long time, upon the
question of its jurisdiction on the merits may well render the remedy
illusory as the result of the destruction of the object of the dispute or
for other reasons" FN53.
-----------------------------------------------------------------------------------------------------------
FN53
The Development of International Law by the International Court, 1958, pp.
110-111.
------------------------------------------------------------------------------------------------------------
This consideration takes on added significance given the refusal by the
Agent of the French Government to make any commitment, promise or even
arrangement, despite the express suggestion by one of the Congo's counsel
FN54.
--------------------------------------------------------------------------------------------------------------------
FN54
CR 2003/22, p. 13.
---------------------------------------------------------------------------------------------------------------------
III. There Is a Risk of Aggravation or Extension of the Dispute
By virtue of Article 41, the Court has the power to indicate provisional
measures in order to prevent any aggravation or extension of the dispute
when it considers that the circumstances so require FN55.
--------------------------------------------------------------------------------------------------------------------
FN55
Frontier Dispute (Burkina Faso/Republic of Mali), Provisional Measures,
Order of
10 January 1986, I.C.J. Reports 1986, p. 9. para. 18.
---------------------------------------------------------------------------------------------------------------------
The Court can thus seek to prevent incidents or even to maintain the status
quo.
In cases concerning an armed conflict or those that have already led to the
loss of human life or material damage, the protection of the parties' rights
includes the need to prevent any aggravation or extension of the dispute.
But this has also been observed in other cases, for example the
Anglo-Iranian Oil Co., Fisheries Jurisdiction, Nuclear Tests and United
States Diplomatic and Consular Staff in Tehran cases, in connection with the
indication of specific provisional measures.
In the Frontier Dispute case, the Court went quite far because it
considered that:
"independently of the requests submitted by the Parties for the indication
of provisional measures, the Court . . . possesses by virtue of Article 41
of the Statute the power to indicate provisional measures with a view to
preventing the aggravation or extension of the dispute whenever it considers
that circumstances so require" FN56,
which indicated a certain evolution from the strict position previously
adopted in the Aegean Sea Continental Shelf case, when it had refused to
settle that issue FN57.
--------------------------------------------------------------------------------------------------------------------
FN56
I.C.J. Reports 1986, p. 9, para. 18; emphasis added.
FN57
I.C.J. Reports 1976, p.13, para. 42.
---------------------------------------------------------------------------------------------------------------------
In the case concerning Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosria and Herzegovina v. Yugoslavia
(Serbia and Montenegro)), in 1993, the Court ruled that the two parties
"should not take any action and should ensure that no action is taken which
may aggravate or extend the existing dispute" FN58.
--------------------------------------------------------------------------------------------------------------------
FN58
I.C.J. Reports 1993, p.24, para.52.
---------------------------------------------------------------------------------------------------------------------
More generally, it may be suggested that the objective of non-aggravation
and non-extension of the dispute, or even the maintaining of the status quo,
is not only related to the protection o:' the parties' rights, but also
constitutes a basis for the indication of provisional measures FN59.
--------------------------------------------------------------------------------------------------------------------
FN59
See S. Oda, op. cit.
---------------------------------------------------------------------------------------------------------------------
Accordingly, the Court seems inclined to take into account all the
circumstances of the case and it would appear that minimal provisional
measures were appropriate here, with a view to maintaining the status quo in
the disputed proceedings initiated in France. In the case concerning
Questions of Interpretation and Application of the 1971 Montreal Convention
arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v.
United Kingdom), the dissenting judges singled out this aspect of the
Court's jurisprudence and considered that instead of focusing on a review of
each prerequisite to the Indication of provisional measures, the Court may
give preference to an overall analysis of the circumstances of the case and
"on that basis, [decide] to indicate [such] [p 138] measures in the general
terms of an exhortation to all the parties not to aggravate or extend the
dispute" or "[call] on the Parties to avoid all escalation" FN60.
--------------------------------------------------------------------------------------------------------------------
FN60
I.C.J. Reports 1992, dissenting opinion of President Bedjaoui, p. 48, para.
32;
dissenting opinion of Judge Ranjeva, p. 76, para. 12.
---------------------------------------------------------------------------------------------------------------------
In the present case, one episode in the proceedings before the Court should
have led it to adopt such a solution. During the hearings, counsel for the
Congo suggested that the representatives of the French Republic ask the
Court "formally to place on record the scope which they ascribe to the
réquisitoire" FN61. That proposition fell short of the request for the
indication of provisional measures and would have been less demanding than
the requested suspension of the proceedings. The Agent of France, however,
rejected the offer and refused to make any promises, simply referring to
"the state of French law", even though the issue in this case is not the
state of French law in such matters or any abstract guarantees it may offer,
but rather the existence and maintaining of the réquisitoire of 23 January
2002. The Court took note of the Agent's statements in its Order, but
without stipulating their scope, and those statements fail to provide any
guarantee capable of counterbalancing the decision to dismiss the request
for the indication of provisional measures. The Court's solution is somewhat
ambiguous because the statements by the Agent of France presented it with
two alternatives. Either they were statements of law: French law prohibits
the prosecution of a foreign Head of State; French law subjects the
jurisdiction of French courts in respect of acts committed abroad to certain
conditions which preclude the exercise of a universal jurisdiction
purportedly founded on international custom. In the Nuclear Tests case, the
Court held that
--------------------------------------------------------------------------------------------------------------------
FN61
CR 2003/22, p. 13.
---------------------------------------------------------------------------------------------------------------------
"It is well recognized that declarations made by way of unilateral acts,
concerning legal or factual situations, may have the effect of creating
legal obligations . . . When it is the intention of the State making the
declaration that it should become bound according to its terms, that
intention confers on the declaration the character of a legal undertaking,
the State being thenceforth legally required to follow a course of conduct
consistent with the declaration." FN62
-----------------------------------------------------------------------------------------------------------
FN62
I.C.J. Reports 1974, p. 267, para. 43.
------------------------------------------------------------------------------------------------------------
Under these circumstances, the Court was not only entitled to take note of
the statements but also to hold that the indication of provisional measures
was pointless because it could not doubt that the French Government would
enforce its own law. The statements by the French Government's Agent thus
had the effect of "creating legal obligations" and it was incumbent upon the
French authorities to assume any practical consequences. Such a solution,
capable of putting an end to the dispute, falls perfectly within the Court's
mission because it is established jurisprudence that the judicial
settlement of international disputes, with a view to [p 139] which the Court
was established, is "simply an alternative to the direct and friendly
settlement of such disputes between the Parties" FN63.
--------------------------------------------------------------------------------------------------------------------
FN63
Free Zones of Upper Savov and the District of Gex, Order of 19 August 1929,
P.C.I.J.. Series A/B, No. 22, p. 13.
---------------------------------------------------------------------------------------------------------------------
Or the statements by the Agent of France were simply question-begging and
intended for dramatic effect, thus obliging the Court to take the view that
France had no "intention of becoming bound". But, if this was not a
unilateral promise FN64, the Court was entitled to consider the
significance of France's reluctance to make any promises and entitled to
draw the appropriate conclusions. The Parties are in fact essentially agreed
on the general terms of French law on the subject but, with respect to the
crux of the dispute, stemming from the prosecutor s actions, the French
Government's refusal to make any commitment thus leaves a risk of
aggravation of the dispute for so long as the impugned réquisitoire of 23
January 2002 remains in force. That reserve on the part of the French
Government's Agent may perhaps be explained by constitutional
considerations relating to the separation of powers and to the independence
of the judiciary. However, in the international order, the Government
represents the State in all its aspects and is entitled to bind any
authority, including judicial bodies, a fortiori when the initiation of
criminal proceedings is at issue. The International Law Commission thus
observed:
"the conduct of any State organ acting in that capacity shall be considered
an act of that State under international law, whether the organ exercises
legislative, executive, judicial, or any other functions, whatever position
it holds in the organization of the State" FN65.
-----------------------------------------------------------------------------------------------------------
FN64
J.-P. Jacqué, "A propos de la promesse unilatérale". Mélanges offerts à Paul
Renter.
1981, p. 327.
FN65
Article 4 of 1LC Draft Articles on State Responsibility, Fifty-second
Session (2000), A/CN.4/L.600; in the Advisory Opinion of 29 April 1999
concerning the Difference Relating to Immunity from Legal Process of a
Special Rapporteur of the Commission on Human Rights the Court cited a
similar text corresponding to an earlier draft of that Article from the
Yearbook of the International Law Commission, 1973, Vol. II, p. 193.
------------------------------------------------------------------------------------------------------------
The Court has already had occasion to take note of the breach by a
Government which, in neglecting to enforce its own laws, failed to ensure
compliance with international law. In the case concerning United States
Diplomatic and Consular Staff in Tehran, it observed that the Iranian
Government had failed to take any measures to protect persons who enjoyed
diplomatic and consular immunities. It recalled that a State is under an
obligation to take all appropriate steps to prevent any attack on the
person, freedom or dignity of agents under threat. The Court concluded that
whilst the Iranian authorities were aware of their obligations, they failed
to use the means which were at their disposal to comply with those
obligations; in particular, the Court considered it "necessary ... to stress
that, if the intention to submit the hostages to any form of criminal trial
or investigation were to be put into effect, that would constitute a [p 140]
grave breach by Iran of its obligations" FN66. A fortiori, when a State
claims that its own law is in compliance with international law and when it
considers that there is no reason to "[suppose] that in the future [its]
courts would move away from respecting the law they are required to apply"
FN67, the international forum before which such statements are made need not
confine itself to taking note of them but may also interpret them as a
commitment by that State. In the dispute concerning Filleting within the
Gulf of Saint Lawrence, among more innocuous comments concerning cod
fishing, the Arbitration Tribunal stated:
"Having regard to the circumstances in which it was made, the Tribunal is
bound to consider that such a statement commits France to use all the means
in its power to ensure, in conjunction with the Canadian authorities, that
the commitment is respected." FN68
------------------------------------------------------------------------------------------------------------
FN66
I.C.J. Reports 1980, pp. 13, 30, 33, 37.
FN67 Statement of the Agent of France, CR 2003/23, p. 7, cited in paragraph
33 of the
Order.
FN68 Arbitral Award of 17 July 1986, Canada-France Arbitration Tribunal,
International
Law Reports. Vol. 82, pp. 590 et seq., p. 637, para. 63 (2).
------------------------------------------------------------------------------------------------------------
In the present case, France should thus have been reminded of its duty to
ensure compliance with its own laws, inasmuch as they enshrine rules and
principles of international law in its domestic order; the assurances given
during the hearings as to the conformity of French law with inter-national
law would be vain unless accompanied by the appropriate decisions because
"[o]ne of the basic principles governing the creation and performance of
legal obligations, whatever their source, is the principle of good faith.
Trust and confidence are inherent in international cooperation . . ." FN69
-----------------------------------------------------------------------------------------------------------
FN69
Nuclear Tests (Australia v. France). Judgment, I.C.J. Reports 1974, p. 268,
para. 46.
------------------------------------------------------------------------------------------------------------
The jurisprudence shows that domestic statutes are not immune to the effects
of a judgment of the Court and that a State may be obliged to strike down a
domestic statute which is held to be in breach of its international
obligations FN70. A fortiori, the execution of a decision of the Court may
require the Government of a State to taxe an administrative measure, such
as, in the present case, issuing instructions to the judicial authority. In
its Advisory Opinion concerning the Difference Relating to Immunity from
Legal Process of a Special Rapporteur of the Commission on Human Rights, the
Court held that the obligation to comply with the requirements relating to
the immunities granted to experts was "an obli-[p141]gation of result and
not of means to be employed in achieving that result". Malaysia contended
that it had complied with its obligation by enacting the necessary
legislation and that Malaysian courts had not yet come to a final decision
concerning the right of the Special Rapporteur concerned, Mr. Cumaraswamy,
to enjoy immunity from legal process. The Court rejected those arguments,
concluding that governmental authorities had an obligation to inform the
national courts concerned of the status of the official and in particular of
his immunity from legal process, since the proper application by those cou
Is of the Convention on the Privileges and Immunities of the United Nations
was dependent on such information. Having failed to transmit that
information to the competent courts, Malaysia had not complied with its
international obligation FN71.
--------------------------------------------------------------------------------------------------------------------
FN70
Certain German Interests in Polish Upper Silesia, Jurisdiction, Merits,
Judgment
No. 7, 1926; Factory at Chorzow, Merits, Judgment No. 13, 1928; case
concerning Rights
of Nationals of the United States of America in Morocco, Judgment of 27
August 1952;
Fisheries Jurisdiction (United Kingdom v. Iceland), Merits, Judgment of 25
July 1974;
Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Merits,
Judgment of
25 July 1974.
FN71 Difference Relating to Immunity from Legal Process of a Special
Rapporteur of the
Commission on Human Rights, I.C.J. Reports 1999 (I), pp. 86-88, paras.
57-65.
---------------------------------------------------------------------------------------------------------------------
Similarly, at the current stage of the proceedings, the French Government
cannot simply abstain from acting. True, as the Permanent Court of
International Justice recalled, there is a
"principle universally accepted by international tribunals ... to the effect
that parties to a case must abstain from any measure capable of exercising a
prejudicial effect in regard to the execution of the decision to be given
and, in general, not allow any step of any kind to be taken which might
aggravate or extend the dispute" FN72.
-----------------------------------------------------------------------------------------------------------
FN72
Electricity Company of Sofia and Bulgaria. Order of 5 December 1939,
P.C.I.J.,
Series A/B, No. 79, p. 199.
------------------------------------------------------------------------------------------------------------
However, that duty of abstention does not guarantee that the Congo's rights
will not continue to be violated during the criminal proceedings. It would
thus be incumbent upon the French Government to give instructions to the
Procureur général so that all judicial measures be taken with a view to
annulling the impugned réquisitoire, which threatens the immunity of the
Head of State and encroaches upon the jurisdiction of Congolese courts, in
order to "remedy any errors" FN73.
--------------------------------------------------------------------------------------------------------------------
FN73
Mr. Abraham. Agent of France, CR 2003/23, p. 14.
---------------------------------------------------------------------------------------------------------------------
In the absence of any specific commitment by France with respect to the
scope that it ascribes to that act of procedure, under the present
circumstances, the suspension of the French procedural measures, which are
currently confined essentially to the réquisitoire of 23 January 2002, would
have been conducive to precluding any aggravation of the dispute, by
maintaining the status quo without affecting the balance between the
Parties' respective rights.
(Signed) Iean -Yves de Cara. |
|
