DJF
CR 2008/4 (translation)
CR 2008/4 (traduction)
Thursday 24 January 2008 at 3 p.m.
Jeudi 24 janvier 2008 à 15 heures - 2 -
8 The PRESIDENT: Please be seated. The sitting is open. The Court meets today to hear the
first round of oral pleadings of the French Republic. I now give the floor to the Agent of France,
Mrs. Belliard.
BMELsLIARD:
l. Madam President, Members of the Court, it is a great honour for me to represent my
country before your Court today.
2. As I begin the oral pleadings of the French Republic in this case, I wish to emphasize the
French Government’s confidence in the wisdom of your distinguished Court and in the justice of
your decisions, a confidence reflected by acceptance of your jurisdiction in this case. I also thank
Professors Hervé Ascensio and Alain Pellet, who, following on from me, will set out the arguments
of the French Republic.
3. The Republic of Djibouti may rest assured that the forcefulness with which France aims to
set out its arguments and defend the lawfulness of the acts or conduct held against it today ⎯ far
from impairing the historical friendly links between our two countries ⎯ will reflect the mutual
respect which has always characterized our bilateral relations. Above all, France nourishes the
hope that the present proceedings will help to dissi pate some of the misunderstandings which have
arisen from time to time. I am convinced that such an aim cannot be better served than by seeking
to designate and name, with the greatest possibl e precision, the disagreements, sometimes tacit
ones, which have given rise to misunderstandings. Our joint presence before you will, I feel sure,
only fortify and reinforce the friendship which has traditionally presided over relations between our
two countries.
4. However, allow me, if you will, MadamPresident, to make a few brief introductory
remarks at the outset on behalf of my delegation. The counsel who will follow me this afternoon in
addressing the Court are fully alive to the vital mission conferred upon you by your status as
“principal judicial organ of the United Nations”. In the exercise of your contentious jurisdiction,
and to paraphrase various provisions in Chapter II of the Statute of the Court, you are called upon
to decide, in accordance with inte rnational law, the disputes of a legal nature submitted to you by - 3 -
9 States, whose subject is the interpretation of a treat y, any point of international law, the reality of
any fact which, if it was proven, would constitute a violation of an international undertaking or the
nature or extent of reparations due for the breach of an international undertaking.
5. There is therefore no need for me to explain here that your Court cannot be called upon to
establish the truth of facts which are the subject of criminal investigations in States, any more than
their incrimination under national criminal law or their individual responsibilities related to such
acts. If I recall the well-known characteristics of yo ur Court, it is above all to express our fervent
hope, which, I feel sure, is shared by our opponents, that the Court will perform its task
dispassionately as regards the legal dispute between our two States.
6. You probably know that the legal investiga tions relating to the death of BernardBorrel,
and also the many other proceedings added to that first one subsequently, have received very wide
media attention both in France and Djibouti. This has sometimes given our opponents cause to
complain, and at others has confirmed their criticisms of the French authorities. As the freedom
and independence of the press is very dear to me, I do not think that this is the place to comment on
the comment.
7. It is also no mystery to anyone in this Court that the progress of justice, sometimes
regarded as excessively slow, does not always fo llow the tempo public opinion would wish or
always satisfy the legitimate need for truth of the individuals directly affected quickly enough. So
it is particularly important in my view, in such situations, that all concerned take care not to
confuse the respective jurisdiction of each ins titution and that legal rigour always prevails,
regardless of the many sometimes contradictory claims expressed in the name of justice.
8. In this connection, it is part of the very idea we have of justice that the investigation into
the death of BernardBorrel should be conducted in full independence, notwithstanding the
“questions on mutual assistance in criminal matters” between France and Djibouti, to use the
designation so aptly chosen by the Court for these proceedings. But it is also important, for both
Parties, for these proceedings to be conducted by re ference to the case currently being investigated
10 by the domestic courts only to the extent stric tly necessary for the settlement of the claim brought
by the Republic of Djibouti against France. - 4 -
9. It is against this background that it now falls to me to set out the general context in which
the present dispute was brought before you and, above all, the precise subject matter of the dispute,
defining which, I am firmly convinced, will mark an important step towards its settlement. I will
conclude my presentation by recapitulating the various ongoing legal proceedings in France to
which the two Parties have referred in the vari ous phases of the proceedings, it being understood,
as I have just said, that there is no question of bringing before you cases for which domestic courts
have jurisdiction.
France’s consent to submit the dispute to the Court
10. Madam President, the Republic of Djibou ti submitted the present case to your Court in
full awareness that there was no basis of jurisd iction enabling it to bring France before your
distinguished Court. In its application dated 9 January 2006, the Republic of Djibouti states that it
aims to found the jurisdiction of the Court, in application of Article 38, paragraph 5, of the Rules of
Court, on the express consent the French Republic mi ght give to submit the dispute referred to in
1
that application to the judgment of the Court .
11. I wish to stress here that France, having considered the Application, decided in its sole
discretion to consent to the jurisdiction of the Court in this case “pursuant to and solely on the basis
of . . . Article 38, paragraph 5”, of the Rules of Court. The French Republic indicated this through
the pen of its Minister for Foreign Affairs in a letter addressed to the Registrar of the Court on
25 July 2006.
12. France’s action in appearing before you today of its own volition is in many ways
exceptional. For the second time, separated by an in terval of a few years, France is thus testifying
to the esteem in which it holds your distinguished Court. Indeed, the importance attached by my
Government to this act must not be measured sole ly against the yardstick of the sometimes very
technical questions relating to criminal judicial co-operation between States, which are at issue in
11 the present case. In agreeing to have these ques tions settled by the Court, the French Republic
naturally wishes to express its full confidence in your distinguished Court to perform its
jurisdictional function and thereby arrive at a defi nitive settlement of the present dispute. But it is
1
Application dated 9 January 2006, p. 16, para. 20 (hereinafter “Application”). - 5 -
also important to see, in this decision, an expression of my country’s devotion to the principles on
which the harmonious development of international relations are founded: respect for international
law, the performance of international undertakings in good faith and the peaceful settlement of
disputes between States through the most appropriate channels.
13. It is therefore in this spirit that France responded positively to Djibouti’s request for the
matter to be decided by a judgment of your Court. In the view of my Government, the orderly,
rigorous and dispassionate debate permitted by your Court, as well as the fully reasoned decision
you will reach at the close of these proceedings will make possible a settlement of the dispute
between our two countries.
14. I can only endorse the Republic of Djibouti when, in its Memorial, it expresses the need
to preserve the ties of co-operation and friendship existing between our two countries 2, and whose
firmness and sincerity the dispute before us was in danger of jeopardizing. However, I would add
that, for my country, this objective far exceeds its solemn proclamation in the Treaty of Friendship
and Co-operation we concluded in 1977: far more than on a mere legal instrument, our
co-operation and friendship are founded on a common history and language, as well as on in-depth
exchanges in the most varied fields.
15. However, faithful to these values, Fran ce has not come before your Court seeking
confirmation that it has scrupulously observed the general requirements of good-faith co-operation
between two friendly countries. That, you will read ily agree, does not fall within the mission of a
Court of Justice, albeit the World Court. The French Republic has come to this Court for an
indisputable ruling that none of the specific legal complaints raised against it before you can be
upheld.
16. This now brings me, Madam President, to a consideration of the specific subject of the
dispute which the French Republic has agreed to submit to your Court.
12 The precise definition of the terms of the dispute submitted to the Court
17. Madam President, it would seem to me useful to stress how important, in the eyes of the
French Republic, is the precise definition of the dispute submitted to you. To begin with, it
2
Memorial dated 15 March 2007, p. 12, para. 12 (hereinafter “MD”). - 6 -
concerns the precise scope of your jurisdiction in this case and I know you will take the greatest
care, before ruling, to ensure what the preci se powers are which have been conferred upon you by
the two Parties in this respect. But it also con cerns the objective presentation of the concrete facts
on which you are asked to rule. I shall start with a few words on the latter point before reverting,
very briefly, to the former.
1. The definition of the object of the dispute
18. Defining the dispute, defining its actual subject, does not a priori pose any problem if
one examines the first written pleading filed by the Republic of Djibouti. On page 4, paragraph 2,
of the Application instituting proceedings, the Ap plicant states, describing it as exactly that ⎯
“subject of the dispute” ⎯ that it is France’s refusal to transmit the record in the Borrel case to the
Djiboutian authorities.
19. It will be for Professor Hervé Ascensio to show that the alleged violation of the
Convention which binds us to Dji bouti in the sphere of mutual assistance in criminal matters is
anything but proven and that no other international undertaking on the French Republic could have
been violated on the occasion of the refusal to transmit the record requ ested by the Djiboutian
judicial authorities. At this stage, I would simply like to point out, as a matter of regret, that the
details given of the definition of the dispute, in th e first lines of the Application, are then altered in
the Memorial filed by Djibouti on 15 March 2007.
20. Indeed, I believe I detect, in the written pleadings of our opponents, certain elements
which could distort a proper understanding of the dispute which, Madam President, Members of the
Court, has been submitted to you today. To begin with, under cover of a description of “the origins
of the dispute between the Republic of Djibouti and the French Republic” 3, what one finds in their
written pleadings is a very comprehensive presen tation of the legal proceedings since 1995 and
relating to the causes of the death of Bernard Borrel. I see no reason, in this connection, to further
13 rehearse the comments I have just made regarding the strict distinction which needs to be made
between the proceedings relating to the jurisdic tion of domestic courts on the one hand and the
proceedings we are currently engaged in before your Court on the other. However, at various
3
MD, p. 15. - 7 -
points in the oral pleadings the Applicant has repeatedly and somewhat surprisingly voiced
criticisms and made value judgments of the French courts 4 which criticisms we will therefore need
to look at again, but which are mostly irrelevant . Indeed, we were surprised to note the comments
by counsel of Djibouti disputing the jurisdiction of the French courts in other cases involving
5
Djiboutian nationals . I do not think it necessary to respond to those criticisms at length. On the
one hand, the Applicant claims to be aware “that this question does not fall” within your
6
jurisdiction . On the other hand, never, until last Tuesday, did the persons indicted or our
opponents see fit to rely on the French court’s lack of jurisdiction. Admittedly, such a statement
would hardly have had much chance of success: the investigation opened for subornation of
perjury does indeed fall within the jurisdiction of the French courts since Mrs.Borrel, a French
national, brought a civil action in this case. I would therefore simply point out that those
concerned, no doubt aware of how shaky such arguments were, have never disputed the jurisdiction
of the French court seised, or, for that matter, as serted that the offences they are accused of could
fall within the ambit of their official activities.
21. Moreover, it has not escaped the Court that the Republic of Djibouti has devoted
considerable space in its Memorial, and again in the oral pleadings of the last few days, to
justifying its “full and wholehearted co-operati on, in good-faith” in the execution of various
international letters rogatory relating to the Borrel case 7. This presentation is wholly slanted
towards the conclusion that, by re fusing to execute the internationa l letter rogatory issued by the
14 Djiboutian judicial authority, France somehow fa iled to meet an obligation of reciprocity 8. By
heaping one proof of its full co-operation on another, the Applicant reckons it can show a lack of
co-operation by France and thus charge it with br eaching its international undertakings. This
4CR 2008/3, pp. 10-12, paras. 12-16, (Mr. Condorelli).
5
Ibid.
6
Ibid., p. 12, para. 16.
7MD, pp.17-25, paras.31-56. See also CR2008/1, p.16, pa ra.10, p.18, para.13 (Doualeh) and p.61, para.24
(Condorelli); CR 2008/2, p. 29, paras. 2-3 (van den Biesen).
8MD, pp. 25-30, paras. 57-69. - 8 -
strategy, which might be likened to “impressionist” painting, in which the feelings of the observer
do not result from an exact representation but rather from suggestion, cannot, in my view, convince
the Court.
22. As I have already said, I will leave to Mr. Ascensio the task of exhaustively refuting the
specifically legal arguments raised by the repr esentatives of Djibouti, and concerning both alleged
violations of the Treaty of Friendship and Co -operation concluded in 1977 between our two
countries and violations, for which there is no proof either, of the 1986 Convention on Mutual
Assistance in Criminal Matters. In so doing, I believe, MadamPresident, that the sometimes
biased presentation of our dispute by the Applicant will not divert the Court from an objective
consideration of the general conditions requests for assistance must meet, from the exact procedure
which must be followed to act upon them and of the reasons and the forms, under the 1986 Mutual
Assistance Convention, permitting a country’s author ities to refuse to give effect to it. Such
consideration ought not to leave any doubt regard ing our full compliance with our obligations as
well as our good faith.
23. On 19October 1995, Be rnardBorrel, a French judge seconded as Technical Advisor to
the Minister of Justice of the Republic of Djibouti, was found dead not far from the capital,
Djibouti. A judicial investigation was then opened, at the request of the Public Prosecutor’s Office,
at the Toulouse Tribunal de grande instance , in which city the Borrel family lives, and obviously
no one has ever disputed the jurisdiction of the Fr ench courts to entertain the circumstances and
causes of the death of a French national. The subject of this legal investigation, originally opened
“into the cause of death” was rendered more specific, a year and a half later, when Mrs. Elisabeth
Borrel, widow of Bernard Borrel, herself filed a complaint. By that complaint, Mrs. Borrel brought
a civil action in the ongoing proceedings on the ground that her husband had been murdered.
Consequently, the proceedings became an investigation against an unknown person ⎯ commonly
15 termed a procedure “against X” ⎯ relating to the murder of BernardBorrel. This type of
proceedings against X is used when the prosecu tor, having concluded his own enquiry, has not
been able to identify the perpetrators of the crime with sufficient probability.
24. It is these criminal proceedings, still pendi ng, in connection with which the Republic of
Djibouti requested transmission of the file on the basis of the Convention on Mutual Assistance in - 9 -
Criminal Matters concluded on 27 September 1986 be tween our two countries. The true “facts” of
the present dispute can therefore be resumed very succinctly, starting with the issuing of an
international letter rogatory by the investigating judge in the Djibouti Tribunal de première
instance, on 3 November 2004, followed by the rejection of that request by the investigating judge
at the Paris Tribunal de grande instance , Mrs. Sophie Clément, on 8 February 2005, then the
transmission, on 31May2005, to the Djiboutian authorities of the refusal to execute the
international letter rogatory. We will revert, this evening and tomorrow, in greater detail to each of
these stages having led, to borrow the terms of th e Application, to the “refusal by the French
governmental and judicial authorities to execute an international letter rogatory regarding the
transmission to the judicial authorities in Djibouti of the record relating to the investigation in the
9.
‘Case against X for the murder of BernardBorrel’” That is the subject-matter of the dispute
which concerns us.
25. Allow me, if you will, nevertheless, Madam President, to point out straight away that the
manner in which the Applicant presents these different stages does not always help proper
understanding of their precise legal significance.
26. To begin with, the Applicant appears to confuse various actions taken by the authorities
with a view to obtaining transmission of the record of the Borrel case with the formal issuing of the
international letter rogatory by the Djiboutian investigating judge, which is the only one which may
be considered under the 1986 Convention and lead to consideration by the authorities of the
requested State of the request for assistance. Yet such an international letter rogatory could be
16 issued ⎯ moreover, after information was provide d to the Djiboutian authorities for this
purpose ⎯ only when a judicial investigation had been opened at the Tribunal de grande instance
in Djibouti. According to the text of the in ternational letter rogatory dated 3 November 2004 10, a
judicial investigation was indeed opened in accordan ce with an application by the State Prosecutor
9
Application, p. 4, para. 2.
10
MD, Ann. 20, p. 131. - 10 -
of the Republic of Djibouti, dated 20Octobe r 2004 with a view not only to opening an
investigation against X for the murder of Bernar dBorrel, but also, and I quote the Memorial, for
“an international letter rogatory [to] be issued for the handing over” of the Borrel record 1.
27. From this first stage, the formal opening of the request for assistance, it seems to me two
lessons may be drawn. First, it goes without sayi ng, though it is much better to say it: the request
for transmission of the record cannot be re garded as having been validly made before
3November2004. Hence, the emphasis by our opponents on the assurances allegedly already
given by the French Government that the Borrel r ecord would be transmitted to Djibouti is strictly
irrelevant. Unless the procedures for legal assistance laid down by treaty and which must comply
with the domestic legislations of each State are si mply disregarded, one could hardly expect the
record to be transmitted even before the request for it was made.
28. The second point, related to the preceding one, which needs to be stressed here, concerns
the attitude of the French authorities prior to the i ssuing of the international letter rogatory. All the
relevant documents for presentation of the request for assistance were provided to the Djiboutian
authorities, in the spirit of co-operation which inci dentally must always govern our relations, and it
seems highly paradoxical to derive an argument from this, as the Republic of Djibouti does in order
to hold France responsible for a violation of its international undertakings 1. In any event, far from
showing the “unilateral severing” of co-operation alleged by the Applicant, the following stages of
the procedure clearly show, on the contrary, that France complied with its obligations.
17 29. The second stage, decisive as regards th e dispute submitted to you, consists of the
proceedings having led to the decision by the investigating judge, on 8 February 2005, to reject the
request for transmission of the record of the Borrel case. Without encroaching on the explanations
which will be given to you later by Professor Hervé Ascensio, I would first like to draw the Court’s
attention to the reasonable period of three m onths in which the request for assistance was
considered by the investigating judge in charge of the Borrel case. Also, and regardless of the
picture our opponents are seeking to paint, having us believe that the request could have been met
immediately, there was no doubt that such a re quest required action by the investigating judge
11
Ibid.
12
MD, Ann. 20, p. 131. - 11 -
dealing with the case and also could raise difficultie s with respect to the essential interests of the
nation, bearing in mind the classified documents in cluded in the record of the investigation. The
Applicant could not have been unaware of either of these two facts, of which, moreover, it was
informed. In any event, there can be no doubt, that in refusing to transmit the record of the Borrel
case, the French authorities did not commit any br each of the 1986 Convention, which lays down,
in Article 2, that (and I quote):
“Assistance may be refused:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c) If the requested State considers that execution of the request is likely to prejudice
its sovereignty, its security, its ordre public or other of its essential interests.”
30. The right, in certain circumstances, to refuse to transmit the record would therefore
clearly appear to be indisputable under the 1986 Convention and the Applicant has not reiterated
orally the contrary idea it suggested throughout its written pleadings. By a new argument in
relation to the Application and the Memorial, the Applicants now assert, surprisingly, that the letter
of 27January2005 from the Director of the Private Office of the Minister of Justice in fact
constituted the reply ⎯ a positive one ⎯ to the international letter rogatory. Mr. Hervé Ascensio
will deal at greater length with this new argument, explaining to you the internal procedure
applicable to consideration of a request for assi stance and the crucial role of the investigating
judge, in the case which concerns us, in deciding whether or not to transmit the record for which
that judge is responsible.
18 31. Nor is the Applicant able to establish a vi olation by the French authorities at the third
stage of the procedure. Here, too, Djibouti’s reasoning is not without inaccuracies: the requesting
State argues on the one hand that the request for assistance could in no event be refused, while
simultaneously alleging that the French authorities violated their obligation to provide reasons for
any refusal of legal assistance.
32. There is an abundance of evidence showing how well informed the Djiboutian authorities
were of the grounds for that refusal. Formally , in a letter dated 31May 2005, the Director of
Criminal Affairs and Pardons at the French Ministry of Justice informed the Ambassador of
Djibouti in France of the decision by the inves tigating judge, referring among other things to - 12 -
Article 2 (c) of the Convention authorizing refusal of legal assistance. It is true that the Republic of
Djibouti now explains that it never received any such letter. However, this assertion comes as
something of a surprise when one reads, in th e Application of 9January 2006, that “the
13
transmission of this record is contra ry to France’s fundamental interests” . This indication alone
should be enough to discredit the opposing Party’s a llegations of ignorance. However, the French
Republic will make quite sure, in the following oral pleadings, that it presents to the Court all the
evidence showing that the Republic of Djibouti w as perfectly well informed of the ground for the
rejection of its request for transmission of the record in the Borrel case.
33. Madam President, the dispute submitted to you may, in factual terms, be resumed in the
three stages I have just referred to. There should therefore be no difficulty in defining its limits.
However, the oral arguments of our opponents ⎯ as we already said in our written pleadings ⎯
largely exceed these limits. This brings me to th e second point on which I consider it important to
specify the exact subject of the dispute submitted to you, and on which I can be briefer.
19 2. The limits of the subject of the dispute
34. In point of fact, the confusion foster ed over the specific and clearly circumscribed
subject of the dispute between us would be of no consequence if all that was needed was a few
further observations and clarifications. It would even be enough to rely on the very clear terms of
the Djiboutian Application. Above all, a speci fically legal examination of the Applicant’s
allegations ought to suffice to show its many weaknesses. Yet it was important, in my view, to
point out that my government did not agree to submit the entire procedure followed in the Borrel
case to the Court’s evaluation, or a fortiori, ot her domestic criminal proceedings, which in any
event it was not in a position to do in view of the statutory limitations on your jurisdiction and the
principle of the independence of the legal authority enshrined in our Constitution. It is true that the
Agent of the Republic of Djibouti felt duty bound to ask whether it would be more appropriate to
speak of the Borrel “cases” than of “a Borrel case” in the singular. 14 I would point out that,
underlying the legal aspects of this case is the murd er of a man and the suffering of a family and
13
Application, p. 10, para. 13.
14
CR 2008/1, p. 17, para. 12 (Doualeh). - 13 -
that, before your Court, we should confine ourselves solely to the case concerning that murder: the
case investigated at the Paris Tribunal de grande instance and whose transmission was requested
by the Djiboutian judicial authorities.
35. Regardless of the opposing Party’s opinions on the conduct of the criminal
investigations, of no relevance here, it would, on the other hand, be contrary to the consent given
by my government to unduly broaden the scope by relying on the formulation of requests unrelated
to the subject of the dispute, as the Applicant se eks to do. Beyond that, it would not only be the
consent given by France in the case that would be at issue but also the attraction of Article38,
paragraph 5, of the rules of Court, which would be questionable if the interpretation of the consent
given to the jurisdiction of the Court on the basis of that Article diverged from the actual terms of
acceptance.
36. The same applies to the Applicant’s conc lusions regarding alleged violations by the
French authorities of their obligat ions to prevent attacks on the person, freedom or dignity of an
international protected person. These conclusions , hardly supported in the Application by the
reference to the summonses served on the Head of St ate of Djibouti, the Head of National Security
20 and the State Prosecutor of the Republic to be h eard before French courts, patently lack any
connection with whether the French authorities c ould, under the rules governing judicial assistance
between France and Djibouti, refuse to transmit the record of the judicial investigation in the Borrel
case 15. In developing its arguments relating to such conclusions in its Memorial 16 and, even more
17
so, in its oral pleadings , the Applicant nevertheless did not succeed in justifying their inclusion in
the present dispute.
18
37. However, on this point, as we had occasion to emphasize in our Counter-Memorial , the
terms of the letter from the French Minister for Foreign Affairs accepting your jurisdiction, need to
be closely examined. The French Minister was care ful to add to the fact that the French Republic
accepted the jurisdiction of the Court to entertain the application, that such consent is valid only “in
15Application, p. 10, para. 13.
16
See MD, p. 13, para. 14.
17
CR 2008/1, p. 30, para. 22 (Condorelli).
18CMF, pp. 11-16, paras. 2.13 -2.26. - 14 -
respect of the dispute forming the subject of the Application and strictly within the limits of the
19
claims formulated therein by the Republic of Djibouti” . Although there is no doubt that some of
the claims relating to attacks on the immunities of the President of the Republic of Djibouti or other
leading figures are included in the Application, they are manifestly devoid of any link with the
subject of the dispute, unless, once again, one cons iders that the Applicant is seeking to cast doubt
as a whole on the proceedings relating to the cau ses of the death of BernardBorrel and the other
related proceedings and that that is the true subject of the dispute ⎯ but this is not what emerges
either from the description of “the subject of the dispute” by the Application itself, or what the
French Republic consented to.
38. Professor Alain Pellet will show, with all the talent of which he is capable, that such an
extensive conception of the jurisdiction conf erred on your Court in the present case cannot be
accepted under the rules and principles governing the jurisdiction of your distinguished Court.
However, from a more general standpoint, it is symp tomatic that by adding allegations unrelated to
the question of assistance which should be the only one of concern to us, the Applicant tends to
21 accredit the idea of a sudden “unilateral sev ering of mutual trust and co-operation” ⎯ those are its
terms 20 ⎯ attributable to the French authorities. If France obviously deplores the fact that the
French State may sometimes have been attribut ed with the aim of “destabilizing a country”,
Djibouti in the event 21, as stated in its Application, and that it was possible to think that the trust
and co-operation between the French Republic and the Republic of Djibouti were severed, such
assertions in no way establish that France refused to execute an international letter rogatory in
violation of its international undertakings and, in the first place, of the 1986Convention on
bilateral assistance.
39. However, not wishing to leave any of the Applicant’s allegations unanswered, we will
take care, in our remaining oral pleadings, to examine the facts which Djibouti has seen fit to bring
to the attention of the Court, sometimes even going beyond the limits ratione temporis of the
consent given by France to the jurisdiction of the Court. We will revert in particular to the various
19MD, Anns. p. 13, Ann. 2; emphasis added.
20
MD, p. 25.
21Application, p. 10, para. 11. - 15 -
allegations by the Applicant, according to which, on several occasions, we breached or infringed
our duty to prevent attacks on the person, freedom or dignity of an internationally protected person.
We will thus revert to the various steps taken in the course of the criminal proceedings, such as
invitations to testify addressed to the Djiboutian Head of State and the summonses, as legally
represented witnesses, of Djiboutian leading figures. We will show that those acts:
⎯ either are not such as to attack the immunities enjoyed ⎯ a fact no one disputes ⎯by the
President of the Republic of Djibouti,
⎯ or can in any event not constitute the alleged vi olation of international law, since the persons
concerned do not enjoy ⎯ a fact which can scarcely be disputed ⎯ immunities under
international law.
40. It is thus out of a desire to be exhaustive ⎯ although sometimes only in the
alternative ⎯ that all the allegations raised by the A pplicant will be precisely refuted during our
oral pleadings. Hence, in view of the fact that Djibouti seeks to generalize the dispute to include all
22 the legal proceedings related to the Borrel case, it would be helpful, in the interests of clarity as
regards the Court, to briefly recapitulate the pr oceedings which will be me ntioned from this point
to the end of our first round of oral pleadings.
Summary of the ongoing criminal proceedings
41. Madam President, there is scarcely any need for me to dwell on the only criminal
proceedings concerned in the dispute before us. The Applicant has already devoted much space to
the conduct of those proceedings in its Memorial 22, including giving to the Court many details on
the legal investigations conducted on the substance of this case. The Applicant has also produced,
among the additional documents presented on 21 Nove mber 2007, certain items of no great use in
the dispute before us. In our written pleadings, it scarcely seemed relevant to us to go beyond what
was strictly necessary in the chronology of those proceedings. And I will not revert, in the oral
pleadings, to the latter; the pertinent elements are included in our Counter-Memorial 23. A few
moments ago, I also explained to you the vari ous stages in the proce dure for legal assistance,
22
MD, pp. 15-25, paras. 20-56.
23
CMF, p. 4, paras. 1.3-1.5. - 16 -
leading to the refusal to transmit the record of th is case to the Djiboutian judicial authorities. I
need only point out here that the two invitati ons to testify as a witness (and not as a legally
represented witness, as Djibouti fi nally conceded in the hearing) 24, addressed in 2005 and 2007 to
Mr. Ismaël Omar Guelleh, President of the Republic of Djibouti, were from the investigating judge
in charge of the Borrel case and in connection with his inv estigation. These two invitations to
testify, as we will show, do not form part of the subject of the dispute brought before your Court.
42. Various other judicial investigations opened before French courts must also be
mentioned, inasmuch as they will be referred to at a later stage in our oral pleadings. Hence, the
summonses to appear as legally represented witness es, then the arrest warrants issued against the
Prosecutor of the Republic and the Head of National Security of Djibouti form part of a separate
judicial investigation conducted by an investigating judge at the Versailles Tribunal de grande
instance for subornation of perjury. The arrest warr ants were issued on 27 September 2006 by the
23 Chambre d’instruction of the Versailles Court of Appeal, afte r the two persons concerned failed to
answer a first summons as legally represented witnesses in this case. The trial is to open before the
Versailles Tribunal correctionnel on 13March next, moreover offering ⎯ let me point out in
passing ⎯ a new possibility for the persons indicted to make full use of the rights of defence
granted to them before French courts. But, befo re your Court, and while we have no doubt that, in
the normal exercise of their duties, the persons concerned cannot claim to benefit from any
immunities under international law, we will seek above all to emphasize that the arrest warrants
complained of by Djibouti exceed the jurisdiction ratione temporis of the Court in the present case
in that they post-date acceptance of the Application of Djibouti by France. In this connection, we
cannot but be concerned at the idea that, in any proceedings closely or loosely linked with the
Borrel case and casting doubt on the future of Djiboutian nationals, the Republic of Djibouti could
25
see a “receptacle”, to quote the Agent of Djibouti , for new alleged violations of international law.
43. Furthermore, proceedings, which are now closed following an order not to proceed, were
conducted at the Toulouse Tribunal de grande instance after a complaint by Mrs. Elisabeth Borrel
for public defamation as a result of an ar ticle published in the Djiboutian newspaper La Nation. It
24
CR 2008/1, p. 37, para. 13 (van den Biesen).
25
CR 2008/1, p. 17. para. 12 (Doualeh). - 17 -
was during that investigation that the Ambassador of Djibouti in France was invited to testify, on
21December 2004, as mentioned in the Applican t’s Memorial. Although it is not expressly
mentioned in the Applicant’s submissions, we will briefly comment on that invitation to testify,
which was in no wise an attack on the immunitie s enjoyed by the Ambassador of Djibouti in
France.
44. As we stated in our Counter-Memorial, a fourth judicial investigation must also be
mentioned. Opened following a complaint by Mr s.ElisabethBorrell for “statements seeking to
exert pressure to influence the decision of a judici al investigating authority or trial court”, these
proceedings concern a statement by the spokesman of the Ministry for Foreign Affairs dated
29 January 2005 relating to Djibouti’s desire to obtain a copy of the record of the investigation into
the Borrel case. Among other things, these proceedings resulted in the decision by the Versailles
24 Court of Appeal of 19 October 2006 confirming the jurisdiction of the investigating judge to decide
whether or not to transmit a record of the inv estigation in response to an international letter
26
rogatory .
45. I should like to make a few brief remarks in conclusion:
⎯ I can only share with the Applicants the assertion that every State, whichever it is, must respect
the obligations incumbent upon it under intern ational law, France just like Djibouti and
Djibouti just like France. Similarly, every State must have an independent judiciary and this, I
believe, is not challenged or cast doubt on by either of the parties before your Court. France,
which respects that principle, can obviously not turn it to advantage to exonerate itself of its
international obligations, but I cannot believe that the Republic of Djibouti is asking us to
nullify such a principle in disregard of our bilateral convention of mutual assistance and in total
disregard of the procedures laid down by our national legislation, to which the Convention
refers.
⎯ On the other hand, I would point out, to my surprise and regret, that the Agent of the
Government of the Republic of Djibouti asserted that the French Republic would not respect
the principle of equality between States. I w ould simply reply that the joint presence of our
two States today before your Court provides a perfect refutation of this.
26
CMF, Ann. X11. - 18 -
⎯ Lastly, I would like to note with you the cu rious attitude of counsel of Djibouti, which
consisted, on each of the points they raise, in adopting an argument at odds, to say the least,
with the reasoning previously put forward in their Memorial, and this when the Republic of
Djibouti was at liberty, having taken note of our Counter-Memorial, to request a second
exchange of written pleadings. This attitude, confirmed by the substantial revision of the
Applicant’s final submissions may be illustrated with the aid of the following three examples:
(1)With respect to the jurisdiction of the Court and even though Djibouti appeared in its
Application to be reducing the subject of the di spute to the sole question of the refusal to
transmit the record of the Borrel case, our opponents scale down this case, potentially
25 submitting to your Court any future discussion of judicial proceedings presenting any link
whatever with Djibouti. This, it seems to me, is a curious approach when one initially seeks to
base oneself on the narrowly circumscribed procedure of Article 38, paragraph 5, of the Rules
of Court.
(2) Subsequently, with respect to the claims manifestly exceeding the jurisdiction of the Court, the
Applicant, who is anxious in its Memorial to defend the absolute and personal immunity of the
State Prosecutor of the Republic and the Head of National Security, now appears to take refuge
behind the immunity of the State.
(3) Lastly, with respect to the core of the dispute we must concern ourselves with, the Republic of
Djibouti initially asserted, contrary to all eviden ce, that France was not entitled to refuse to
execute the international letter rogatory issued by the Republic of Djibouti. However, at the
end of its first round of oral pleadings, the Applicant, probably not very certain of its rights,
now asserts that France agreed to execute the le tter rogatory before their backing down. But
regardless of the various constantly changing scen arios thus put forward by the Applicant, the
procedure for judicial assistance having led to th e refusal to transmit the record was fully in
conformity with our domestic legislation and the requirements of the 1986 Convention.
46. I will conclude my statement, Madam President, Members of the Court, by thanking you
for your kind attention. Taking the floor after me, if you will permit, will be Professor Alain Pellet,
who will set out our observations regarding the jurisdiction of the Court and the admissibility of the
Application of the Republic of Djibouti in the present case and Professor Hervé Ascensio, who will - 19 -
deal with the merits of the dispute submitted to your Court. Mr.Pellet will take the floor again
tomorrow on the alleged attacks on the immunities of the representatives of Djibouti and also on
the claims for reparation made by the Applicant.
47. May I ask you to give the floor to Professor Alain Pellet. Thank you.
The PRESIDENT: Thank you Ms Belliard. Professor Pellet, you have the floor.
26
Mr. PELLET:
C ONCERNING SOME ISSUES RELATING TO THE COMPETENCE OF THE C OURT
AND THE ADMISSIBILITY OF THE APPLICATION
1. Madam President, Members of the Court, ev en when one has the privilege of appearing
regularly before your Court, to plead for one’s own country is always a little special, a little more
“moving”, perhaps “stressful”. This is particularly so when the proceedings in question raise
important legal and moral issues, as is the case here.
2. It is partly because France did not wish any uncertainty to remain on the real ins and outs
of the case ⎯ to which Madam Belliard has just referred ⎯ that it has agreed, for the second time,
to appear before you solely on the basis of Articl e 38, paragraph 5, of the Rules of Court. In so
doing its wish has been to enable you, Madam Presi dent, Members of the Court, to hear the case,
that case and that case alone, that the Republic of Djibouti has submitted to you by its Application
instituting proceedings of 4 January 2006.
3. What concerns us a little is that our opponents, while declaring themselves aware that “the
27
extent of the Court’s jurisdiction is strictly limited ratione materiae”are attempting to extend it
beyond the consent given by France to the exercise of your jurisdiction. As the Permanent Court
has stated, “it is the Application which sets out the subject of the dispute, and the Case, though it
may elucidate the terms of the Application, must not go beyond the limits of the claim as set out
therein” ( Prince von Pless Administration, Preliminary Objection, Order of 4February1933,
P.C.I.J., Series A/B, No. 52, p. 14); and this applies a fortiori to the oral phase. In referring to this
28
jurisprudence , the Applicant nonetheless broadens this subject, stealthily but obviously.
27
MD, p. 13, para. 18.
28See CR 2008/1, p. 24, para. 9 (Condorelli). - 20 -
27 4. I should like to point out that this emer ges from the letter from th e French Minister for
Foreign Affairs to the Registrar of the Court dated 25 July 2006 29. This letter is found in the little
file that we have prepared, in both English and French, in its English translation, under the heading
‘Jurisdiction’. It is expressly stated there:
“The present consent to the Court’s jurisdiction is valid only for the purposes of
the case, within the meaning of Article 38, pa ragraph 5, i.e., in respect of the dispute
forming the subject of the Application and strictly within the limits of the claims
formulated therein by the Republic of Djibouti.” 30
It is difficult to be clearer.
5. Madam President, I do not think that there is any value in my dwelling at length on the
fundamental principle that governs the jurisdiction of the Court, which is based on the consent of
the States in dispute. As it has repeated over and over again, “the Court can only exercise
31
jurisdiction over a State with its consent” (Monetary Gold Removed from Rome in 1943 (Italy v.
France, the United Kingdom and the United States of America), Judgment, I.C.J. Reports 1954,
p. 32). This cardinal rule is obviously of general application, but its strict implementation is all the
more urgent because we are dealing with Article 38, paragraph 5, of the Rules. It cannot be said
that up to now this provision has found favour with States and a loose interpretation of the principle
of consent would be sure to discourage those willing to use it.
6. It goes without saying that Djibouti thought that it could “reserve the right to amend and
supplement” its Application ⎯ according to a very bad habit adopted by states that have recourse
28 to you ⎯ that France must be deemed to have given its consent in advance to an extension of your
2MD, Ann. 2.
3Italics and underlining added.
31
See also, for example, Rights of Minorities in Upper Silesia (M inority Schools), Judgment No. 12, 1928,
P.C.I.J., SeriesA No.15 , p.22; Factory at Chorzów, Merits, Judgment No . 13, 1928, P.C.I.J., Series A, No.15 , p. 22;
Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports
1950, p.71; Anglo-Iranian Oil Co. (United Kingdom v. Iran), Preliminary Objection, Judgment, I.C.J. Reports 1952 ,
p. 102-103; Ambatielos (Greece v. United Kingdom), Merits, Judgment, I.C.J. Reports 1953, p.19; Continental Shelf
(Libyan Arab Jamahiriya v. Malta), Application for Permission to Intervene, Judgment, I.C.J. Reports 1984 , p.22,
para. 34; Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Object ions, Judgment, I.C.J. Reports
1992, p.260, para.53; East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1992, p.260, para.53; Land and
Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Obje ctions, Judgment, I.C.J.
Reports 1998, p.312, para.79; Oil Platforms (Islamic Republic of Iranv. United States of Am erica), Merits, I.C.J.
Reports 2003, p.183, para.42; Armed Activities on the Terr itory of the Congo (New Application:2002) (Democratic
Republic of the Congo v. Rwanda), Jurisdiction of the Court and Admissi bility of the Application, I.C.J. Reports 2006 ,
p. 31-32, paras. 64 and 65, para. 88 and p. 51-52, para. 125. - 21 -
jurisdiction that would result from stretching the dema nds of the applicant State. It has given its
consent for the case, as submitted in the Applica tion, certainly not as Djibouti would amend it
according to the “right” (I put the word in quotation marks) that it has “reserved”.
32
7. There can be no doubt that the final submissions that we were the first to see on Tuesday
by courtesy of its Agent stretch the subject-matter of the present case considerably, whatever its
shrewd counsel may say. France cannot accept this, for reasons of principle.
8. These attempts at creeping extension of the Court’s jurisdiction are or have been about the
very basis of its competence and the subject of the dispute, both ratione materiae and ratione
temporis.
9. In the main I will confine myself to an examination of these two points, because last
Monday the Republic of Djibouti declared through one of its lawyers, in terms claimed to be clear
but which seemed to me to be somewhat tort uous, that it “firmly maintained its view” on the
possibility of other grounds of competence of the Court in the present case, while preferring “not to
stress this aspect now” 33. This after Djibouti had stated in paragraph 23 of its Application that it
reserved the right ⎯ our opponents reserve many rights ⎯ “to have recourse to the dispute
settlement procedure established by the conventio ns in force between itself and the French
Republic, such as the Convention on the Prevention and Punishment of Crimes against
Internationally Protected Persons of 14Decemb er1973”; and after in its Memorial Djibouti
“wishes to declare formally that... it reserves the right [again!] if necessary to invoke other
international instruments that bind the Parties which would also be relevant in founding the
34
jurisdiction of the Court for the purposes of this dispute” , but this time without mentioning the
1973 Convention. This I can understand.
29 10. According to its Article 2, that convention is (exclusively) concerned with intentional
acts:
“(a) murder, kidnapping or other attack upon the person or liberty of an internationally
protected person;
3CR 2008/3, pp. 36-37 (Doualeh).
33
CR 2008/1, p. 21, para. 4 (Condorelli); see also p. 29, para. 20.
3MD, p. 13, para. 15. - 22 -
(b)a violent attack upon the official premises, the private accommodation or the
means of transport of an internationall y protected person likely to endanger his
person or liberty . . .”
and a threat or attempt to commit such attack or participation therein as an accomplice.
11. It is neither “plausible” (see Ambatielos (Greece v. United Kingdom, Merits, Judgment,
I.C.J. Reports 1953, p. 18) nor alleged that an intention to murder a Djiboutian official or an attack
endangering a person protected by the Convention is at issue. And it is quite obvious that the facts
of the present case do not fall within its “provisions” (see Oil Platforms (Islamic Republic of
Iran v. United States of America, Preliminary Objection, Judgment , I.C.J. Reports 1966(II),
p. 810, para. 16, and p. 820, para. 53; s ee also the individual opinion by Judge Higgins, ibid., 847
35
et seq.). In addition the jurisdiction clause in Arti cle 13 that Djibouti cited in its Application
imposes prerequisites to the seisin of the Court which are obviously not met in the present case:
negotiations about a dispute between the Parties “concerning the interpretation or application of
this Convention” ⎯ which has never been raised between France and Djibouti ⎯ and the failure of
a request for arbitration, which of course the Applicant has never made.
12. As to other hypothetical unnamed treaties that might found the jurisdiction of the Court
36
in the present case there are two possibilities, as France has stated in its Counter-Memorial :
either these treaties (still a mystery for the present) add nothing to the competence of this Court and
30 it is difficult to see what Djibouti would gain by invoking them, or they would allow extension of
the competence of this distinguished Court and a dditional submissions on this basis would not be
admissible at this stage 3.
13. Mentioning bases of jurisdiction other than the consent given by France in the context of
Article38, paragraph 5 of the Rules is so fancif ul that one wonders why Djibouti’s counsel have
nevertheless felt the need to do so before hintin g at back-pedalling at the start of the oral
proceedings. The answer is perhaps given by the Applicant’s final claims which, whatever it said
35
Ibid., para. 23.
3CMF, p. 10, para. 2.7.
3See Prince von Pless Administration, Order of 4 February 1933, P.C.I.J. , Series A/B No. 52 , p.14; Société
Commerciale de Belgique, Judgment, 1939, P.C.I.J., Series A/B, No. 78 , p. 173; Military and Paramilitary Activities in
and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports
1984, p. 427, para. 28; Certain Phosphate Lands in Nauru (Nauru v. Australia, Preliminary Objections, Judgment, I.C.J.
Reports 1992, p. 266-267, paras. 67-70; Aerial Incident of 10 August 1999 (Pakistan v. India), Jurisdiction of the Court,
Judgment, I.C.J. Reports 2000, p. 33, para. 49. - 23 -
in argument, go beyond the demands in its Applicati on in the context of the subject of the dispute,
as defined by the Application. It is this attempt to extend the subject of the dispute submitted to the
Court that I propose to deal with now, distinguishin g, as I have said, between lack of jurisdiction
ratione materiae and ratione temporis . Before that, however, a few words on the principles
applicable.
1. The fundamental principle: the applicant State cannot extend the subjec
t of the dispute
14. Whatever the ground of competence invoked by the Applicant, the fundamental principle
is clear and firmly established: the applicant Stat e cannot extend the subject of the dispute. In the
present case, this subject is described as follows in Djibouti’s Application:
“The subject of the dispute concerns the refusal by the French governmental and
judicial authorities to execute an international letter rogatory regarding the
transmission to the judicial authorities in Djibouti of the record relating to the
investigation in the “Case against X for the mu rder of Bernard Borrel”, in violation of
the Convention on Mutual Assistance in Criminal Matters between the Government of
the Republic of Djibouti and the Government of the French Republic, of
27September1986, and in breach of other international obligations borne by the
French Republic to the Republic of Djibouti.” 38
31 15. In his pleadings last Monday, Professor Condorelli admitted that “Djibouti’s Application
can doubtless be faulted for the lines under its heading “Subject of the dispute” because these are
confined referring to the refusal by the French governmental and judicial authorities to execute a
letter rogatory, etc.” And he conceded that “it is true that no reference is made to the immunities,
privileges and prerogatives of the Djiboutian Head of State and other high-ranking officials of the
Applicant” 39.
16. Madam President, contrary to what the othe r Party takes pains to have us believe, this
limitation of the subject of the dispute by the App lication to the refusal to execute the international
letter rogatory of 3 November 2004 is in no sense a simple blunder arising from an oversight:
⎯ firstly, it would perhaps be possible to accept the blunder argument if it had happened once;
but this is not the case: defined, as I have said, in the Application, the subject of the dispute is
set out in almost identical terms in the Memorial and quoted again, this time in quotation marks
38
Application, para. 2.
3CR 2008/1, p. 26, para. 15 (Condorelli). - 24 -
and unchanged, in the introduction by the Agent of Djibouti in that country’s pleadings last
Monday 40 ⎯ errare humanum est, sed perseverare...; the Republic of Djibouti persists in
what its counsel calls a “blunder”, although it has clearly noticed it;
⎯ secondly, it persists “almost” but not fully in that it attempts to make up for what it thinks ex
post was an error in defining the subject of th e Application, because its Memorial inserts two
new small words into the definition of the subject of the dispute: it is stated there – I am
reading the form of words used in the Memori al, but summarizing it insofar as its wording is
identical to that in the corresponding passage in th e Application, and the two definitions of the
subject of the dispute by Djibouti, first in its Application then in its Memorial, are in the
Judges’ Folder on one page. This will help you, Madam President, Members of the Court, to
seek the error more easily:
32 “The subject of the dispute concerns the refusal by the French . . . authorities to
execute an international letter rogatory re garding the transmission to the judicial
authorities in Djibouti of the record relating to the . . . “Case against X for the murder
of Bernard Borrel”, in violation of the Convention on Mutual Assistance [... of ]
1986, and” ⎯ and this is where the two new words come in: “the related breaching
[“the related breaching” instead of “in breach”] of other international obligations
borne by the French Republic to the Republic of Djibouti.” 41
17. But meanwhile France had consented to the Court’s jurisdiction “in respect of the dispute
forming the subject of the Application ” , and the merger of the Application (which defines its
subject) with the acceptance of that subject by Fr ance ties up the dispute and is both the basis and
the limit of the Court’s jurisdiction ⎯ which moreover the Republic of Djibouti seems to accept 43.
That being the case, The Applicant was not (and is not) free to amend the subject of its Application.
The Memorial of Djibouti is clearly endeavouring, though subtly, to enlarge that subject, as defined
in paragraph 2, by an extension to breaches other th an those that would arise from a refusal to give
effect to the letter rogatory of November2004 ; and it is now claimed that these breaches are
“related” and are “of three types” 44.
4CR 2008/1, p. 10.
41
Italics added. See CR 2008/3, p. 35, para. 2 (Doualeh).
42
See letter from the French Minister for Fo reign Affairs of 25 July 2006, MD, Ann. 2 ⎯ italics and underlining
added.
4See CR 2008/1, p. 23, para. 8; or pp. 24-25, para. 11 (Condorelli).
4See CR 2008/1, p. 19, para. 17 (Mr. Doualeh) and CR 2008/3, 2 p. 36, para. 3 (Doualeh). - 25 -
18. This international letter rogatory ⎯ the refusal of which is the sole subject of the dispute
submitted to the Court by Djibouti ⎯ gives formal effect to the request to transmit the “contents of
the Borrel file under investigation by Vice-President Sophie Clément” 45 submitted by the State
Prosecutor of the Republic of Djibouti, very much present in this case, on 17June2004. This
international letter rogatory was formally delivere d (with the assistance of the French authorities)
46
on 3 November 2004 .
19. So it is the refusal by the authorities of the Republic to give effect to that international
letter rogatory (and that refusal only) that forms the subject of the dispute, as described by Djibouti
in its Application and for which Fr ance has accepted the ju risdiction of the Court. This, to adopt
33 the expression in the 1998 judgment in the Fisheries Jurisdiction case, is “the specific action that
gives rise to the dispute”; it is this which estab lishes the dispute that the Court is called upon to
settle and for which the consent given by France “strictly within the limits of the claims
formulated” by Djibouti in its Application establishes its jurisdiction.
20. As the Court has said on several occasions, and this jurisprudence was referred to on
Monday by Professor Condorelli, a declaration wher eby a State accepts the jurisdiction of the
Court “must be interpreted as it stands, having regard to the words actually used” ( Anglo-Iranian
Oil Co. ( United Kingdom v. Iran, Preliminary Objection, Judgment , I.C.J. Reports 1952, p.105;
Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998,
p. 454, para.47) and applied “as it stands” Certain Norwegian Loans (France v. Norway),
Judgment, I.C.J. Reports 1957, p. 27). What is required is to bring out “agreement on a single and
47
precise subject exactly identifying the area of jurisdiction of your honourable Court” , to adopt the
formula used by my opponent (with which I am in agreement ⎯ on this point). France has
accepted your jurisdiction, Madam President, Members of the Court, “in respect of the dispute
forming the subject of the Application”. The m eaning of this acceptance is clear; the words to
formulate it are clear; its scope is clear.
21. I must now add two things in reply to what Mr. Condorelli said last Monday.
4MD, Ann. 16; see MD, p. 26, para. 59.
46
MD, Ann. 20; see Application, para. 12, and MD, p. 28, para. 64.
4CR 2008/1, p. 23, para. 8 (Condorelli). - 26 -
22. Firstly, in the scenario that interests us, i.e. in the context of the application of Article 38,
paragraph 5, of the Rules, it is not so much the intention of the applicant State ⎯ on which the
other Party lays stress almost exclusively ⎯ that matters as the consent of the Respondent; it is the
latter’s acceptance that forms th e basis of the Court’s jurisdiction and, as Professor Condorelli has
observed, this consent may be limited, partial 48. I do not think that this is the case here; but
whether or not this is a limitation of the Court’s jurisdiction, the fact is that France has expressly
referred to the subject of the Application and has in any event limited its acceptance to that subject.
34 23. Secondly, my opponent is attempting to get round the difficulty by trying to make the
claims of the Republic of Djibouti prevail over the subject of the Application as Djibouti has
defined it, and which France has accepted for the purpose of the present dispute. Relying on these
claims, Professor Condorelli asserts: “In short, the in tention in the Application is indisputably to
submit to the Court a dispute that breaks down into several claims, and is therefore broader than the
49
sole issue of violation by France of its obligation to afford mutual assistance” . Perhaps this was
Djibouti’s intention, Madame President, but Fran ce’s intention was to limit its acceptance of the
Court’s jurisdiction to the subject of the Application ⎯ and it is only to the extent that these two
wishes converge that the Court can exercise its jurisdiction.
24. In order to claim the contrary, Mr. Condorelli relies on the end of the sentence by which
on 25 July 2006 50the French Minister for Foreign Affairs consented to the Court’s jurisdiction. It
states that “[t]he present consent to the Court’s jurisdiction is valid only [ …] in respect of the
dispute forming the subject of the Application and strictly within the limits of the claims
formulated therein by the Republic of Djibou ti”. Without the necessity for constructing
far-reaching theories that means, in accordance with the natural and ordinary meaning of the
words ⎯ carefully weighed ⎯ in the Minister’s letter, that France has limited its consent to the
Application as it defines its own subject and to the claims formulated th erein. To these, provided
that they come within the subject of the Application; to the subject, insofar as it finds expression in
the claims formulated in the Application.
48CR 2008/1, , p. 25, para. 11 (Condorelli).
49
CR 2008/1, p. 27, para. 16 (Condorelli).
50MD, Ann. 2. - 27 -
2. The limits of the Court’s jurisdiction ratione materiae
25. So your jurisdiction ratione materiae, Madam President, Members of the Court, extends
to (but not only to) the French refusal to give effect to the international letter rogatory of
November 2004 allegedly in breach of the 1986 Convention, but not to the other allegedly related
breaches. There is more than a slight differen ce here: Djibouti had limited the subject of its
Application to the refusal to give effect to th e international letter rogatory of November2004,
35 represented as contrary to the 1986 Convention and to “other international obligations borne by the
French Republic” ⎯ this was one breach ⎯ the refusal to transmit the record as part of the
execution of the international letter rogatory ⎯ of obligations derived from several sources. Now
our opponents intend to add new alleged breaches (in the plural) to the breach alleged initially and
to which they are allegedly related. This is obviously an extension of the subject of the application.
We go from one alleged internationally wrongf ul act consisting of the joint breaching of
obligations based on various sources to several internationally wrongful acts, and as Djibouti
knows very well that this is something completely different it covers these newly invoked breaches
with the handy cloak of “relationship”.
26. However, Madam President, it is not enough to postulate the existence of a
“relationship”, it must be established. And it is certainly not enough for “the Application to have
referred to the issue by the French judicial aut horities of witness summonses directed to the Head
of the Djiboutian State and high-ranking Djiboutian officials” as the Agent of Djibouti has stated 5,
for it to be so. The Court cannot be content with simple affirmations in this connection.
27. Of course we do not dispute that some of the submissions in the Memorial meet this
52
condition. This is certainly true of those in paragraphs 1 and 5 of the Djiboutian claims , which
bear directly on the international letter rogatory . Moreover, it is significant that paragraph 1 ⎯ I
refer to the Memorial ⎯ adopts the wording of the Application: the French refusal to accept the
letter rogatory is allegedly contrary to the 1 986 Convention, the 1977 Treaty of Friendship and
“other rules of international law applicable to the present case”; France has accepted the
jurisdiction of the Court for this purpose. But this is not the case with regard to:
51
CR 2008/1, p. 10 (Doualeh).
52
MD, pp. 67-68. - 28 -
⎯ the second submission, which relates to “summoning as témoins assistés [legally represented
witnesses] the Djiboutian Head of State and high-ranking figures in Djibouti and issuing
international arrest warrants against the latter”; or
36 ⎯ the sixth, which asks the Court to decide that “the French Republic shall withdraw and cancel”
these summonses to testify in respect of subornation of perjury in the Borrel case; or
⎯ the seventh, which makes a similar claim about the arrest warrants.
28. The same considerations apply with respect to paragraphs 3-8 of the submissions that
Ambassador Doualeh read at the end of the first round of pleadings by Djibouti, which do not come
within the ambit of the subject of the Applica tion as defined by the Applicant and as accepted by
the Respondent.
29. The fact is that neither the summonses (some of which are imaginary ⎯ we will return to
this point) nor the arrest warrants referred to by these submissions bear any relation to the
international letter rogatory of 3N ovember2004. The latter is concerned ⎯ exclusively ⎯ with
“the record of the investigation in Paris, under investigating judge Sophie Clément, against X for
the murder of Bernard Borrel” 5. As France has explained in its Counter-Memorial 54, and as
Madame Belliard has just pointed out, that case is legally and factually distinct
⎯ both from the investigation into subornation of perjury which has been carried out since 2003
by MsBelin and Mr.Bellancourt, investigating judges at the Versailles Tribunal de grande
instance,
⎯ and from the proceedings on defamation initiall y by an investigating judge in Toulouse
pursuant to a complaint by Mrs. Borrel in 2002 an d transferred the following year to the Paris
tribunal de grande instance before Mr.Baudouin Thouvenot, who dismissed the case on
16January2007, a decision confirmed by the chambre d’instruction of the Paris Court of
Appeal on 24 January 2007 55.
30. It is in the context of the first of these two cases ⎯ the case of subornation of perjury ⎯
not the case investigated by Mrs.Clément and referred to in the in ternational letter rogatory
5MD, p. 28, para. 64; see also MD, Ann. 20.
54
CMF, pp. 4-7.
5CMF, Ann. X. - 29 -
of2004 that the witness summonses and the intern ational arrest warrants affecting MM. Saïd and
Souleiman referred to in the Djiboutian submissions were issued. Not being linked to the subject
37 of the Application in respect of which France ha s accepted the jurisdiction of the Court, these
claims, Madam President, Members of the Court, must needs be dismissed in limine litis for lack of
jurisdiction.
31. In an attempt to avoid this result, Djibouti claims that “initiating proceedings for
subornation of perjury against high-ranking Djiboutian officials before the court in Versailles...
had a direct and decisive effect on the decisi on to execute the letter rogatory” because in the
decision of 8 February 2005 56by “the investigating judge at the Paris Tribunal de grande instance
in charge of the Borrel case”... the presence in the case file of documents relating to the case
opened in the Versailles court for subornation of pe rjury against the State Prosecutor and the Head
57
of National Security in Djibouti is raised as the first reason that would justify the said refusal (it
was Mr. Condorelli who said it, and he has more brea th than I!). This assertion calls for three brief
comments:
⎯ in his order of 8February2005 the investig ating judge expressly stated that it was “ another
investigation at Versailles”;
⎯ besides, in his last pleadings Mr.van den Bi esen agreed that the file that concerns us ⎯ “le
dossier”, comme il l’appelle, est le “[seul] dossier relatif à la mort de Bernard Borrel,
actuellement instruit par le juge Clément”; “la pr ésente affaire ne porte que sur [c]e dossier”,
alors que les “trois [autres] ne peuvent être considér[és] comme étant rattach[és] à la présente
58
affaire, dont est saisie la Cour” ⎯ the other three files, including, therefore, the one relating
to the subornation of perjury: and
⎯ even if it is certainly justified, in any event it is not on the ground of abuse of procedure that
the investigating judge bases his decision that execution of the request is likely to prejudice the
essential interests of the French State pursuant to Article 2, c) of the 1986 Convention.
5CMF, Ann. XXI.
57
CR 2008/1, p. 30, para. 22 and CR 2008/2, p. 57, para. 4 (Condorelli).
5CR2008/3, p. 20, para. 12 (van den Biesen). - 30 -
32. I repeat: it is Djibouti that has defined the subject of the Application, and France has
consented to your jurisdiction, Madam President, Me mbers of the Court “within the strict limits”
38 thus defined ⎯ these are two intersecting consents, which establish your jurisdiction to the extent
59
that they coincide. Contrary to what the other side implies , France obviously does not intend to
evade the jurisdiction of the Court within the strict limits in which it has accepted it. And it is
perfectly confident that the scope of its consen t, which nothing compelled it to give, and which it
did not wish to give beyond the limits set out in the letter from its Minister for Foreign Affairs of
25 July 2006, will not be abused.
Madam President, do you wish me to finish or to stop here for a break?
Le PRESIDENT: Il serait sans doute bon que vous terminiez votre partie, ce qui, je suppose,
devrait prendre encore 10 minutes. Pensez-vous en avoir pour plus longtemps ?
M. PELLET: Cela devrait prendre 15 minutes. Pour ma part, cela me convient ⎯ si ce n’est
pas trop pour vous.
Le PRESIDENT: Je crains que ce soit trop. Fa isons donc une courte pause maintenant. La
séance est levée pour quelques minutes.
The Court adjourned from 4.25 to 4.40 p.m.
The PRESIDENT: Please be seated
Mr.PELLET: Merci beaucoup. So before this sacrosanct break I had elaborated upon the
limits of the Court’s jurisdiction ratione materiae. I am now going to turn to the limits of the
Court’s jurisdiction ratione temporis.
3. The limits of the Court’s jurisdiction ratione temporis.
33. For good measure, Madam President, I would now like to draw your attention to another
aspect of Djibouti’s pleadings that raises serious problems of jurisdiction ⎯ this time from the
ratione temporis viewpoint. In its submissions, read last Tuesday by its Agent, the applicant State
expressly raises:
59
See CR 2008/1, p. 29, para. 20 (Condorelli) - 31 -
39 ⎯ “the summonses as témoins assistés [legally represented witnesses] and arrest warrants issued
against the State Prosecutor of the Republic of Djibouti and the Head of National Security of
60 61
the Republic of Djibouti” for subornation of perjury on 27 September 2006 ; and
⎯ the invitation to testify addressed to the President of the Republic of Djibouti by Judge Clément
62
on 14 February 2007 .
34. Not only are the arrest warrants of Sept ember 2006 linked to the case of subornation of
perjury and therefore, as I had demonstrated befo re the break, unrelated to the international letter
rogatory of November2004, rejection of which by France is the sole subject of the present case.
But in addition all these acts subsequent to the Application (which dates from 4 January 2006) are
clearly no part of this subject and consequently not covered by the consent given by the French
Republic. The Court’s lack of jurisdiction to entertain these is equally clear.
35. In this connection I fear that Professor Condorelli has gone astray by not taking his stand
on the ground of jurisdiction ratione temporis but on the impossibility for a State to transform a
dispute brought before the Court by application “by amendments in the submissions into another
63
dispute which is different in character” ; this ground is in no sense sp ecific to lack of jurisdiction
ratione temporis, but in fact refers to lack of jurisdiction ratione materiae. I will not return to this.
36. As regards lack of jurisdiction ratione temporis in itself, as Ambassador Shabtai Rosenne
writes: “[t]ime is a factor that influences th e Court’s jurisdiction in several ways... Ratione
materiae it is necessary that the events which gave rise to the reference to the Court occurred
64
during the space of time in respect to which jurisdiction has been conferred on the Court” .
Although up to now the issue has been raised essenti ally with regard to acts prior to acceptance of
40
the Court’s jurisdiction, in this connection we can paraphrase what the Permanent Court said in the
Phosphates in Morocco case “Situations or facts subsequent to [the expression of consent by
60
See CMF, Ann. VII.
61
See CMF, Ann. VII.
6See CR 2008/3, submissions, p. 36, para. 3; see also MD, p. 48, para. 127; p. 49, para. 128 and p. 50,
para. 132.
6See CR 2008/1, p. 31, para. 24 (Condorelli, citing Société commerciale de Belgique, Judgment, 1939, P.C.I.J.,
Series A/B, No. 78, p. 173); see also the jurisprudence cited supra, note 14.
6The Law and Practice of the International Court of Justic, 1920-2005, Nijhoff, Leiden/Boston, 4th edition,
2006, Vol. II, p. 562. See al so Sir Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice,
Grotius Publications Limited, Cambridge, 1986, Vol. II, p. 435. - 32 -
France to the jurisdiction of the Court] could ser ve to found the Court’s compulsory jurisdiction
only if it was with regard to them that the dispute arose” (Phosphates in Morocco, Judgment, 1938,
P.C.I.J., Series A/B, No. 74, p.24; see also Compagnie d’électricité de Sofia et de Bulgarie,
Judgment, 1939, P.C.I.J., Series A/B, No.78, p.82). Now obviously the dispute that the Court is
called upon to settle today in accordance with the consent given by France did not arise about the
arrest warrants or an alleged witness summons , which are subsequent to the filing of the
Application.
37. Madam President, Members of the Court, I should like to ask you to reflect upon the
consequences of Djibouti’s argument if by some remote chance you had to follow it:
⎯ as the Agent of France stated just no w, on 13 March next the Versailles tribunal correctionnel
is going to consider the case of subornation of perjury, in the context of which the State
Prosecutor and the Head of National Security of Djibouti have been the subject of arrest
warrants; if the judgment given at the conc lusion of these hearings does not have the good
fortune to please the Republic of Djibouti, is the Court going to accept new submissions by the
Applicant on this subject?
⎯ if tomorrow, or in a year, or in ten years, a Djiboutian judge makes a new request for mutual
assistance or issues a new letter rogatory linked – more or less closely ⎯ to the “Borrel case”
and if for some reason France refuses to give effect to it for a reason based on Article 2 of the
1986 Convention (or for some other reason valid in international law) will Djibouti be able to
seise the Court again relying on the consent given by France in 2006? Or is this going to stop?
⎯ if in future the investigation by Mrs.Clément leads to an invitation to a witness to testify,
legally assisted or not, being a person whom th e Djiboutian authorities regard as having acted
as an organ of the State as part of his duties, could your Court entertain the case on the basis of
the consent by France in 2006? This is simply unreasonable.
41 ⎯ more generally, the applicant State’s extens ion of the jurisdiction of the Court, both ratione
materiae and ratione temporis, on the basis of an improbable “relationship” would enable an
applicant to procure practically unlimited su ccessive extensions of your jurisdiction “by
accretion” obviously incompatible with the pr inciple of consensualism embodied in your
settled case law 6.
65
See supra, notes 14 and 44. - 33 -
38. For all these reasons, Madam President, Members of the Court, without going back, I
repeat it even if it is obvious, to its consent to your jurisdiction to entertain the Application by
Djibouti, and within the strict limits of its subject and of the claims formulated therein and which
come within the subject, the French Republic does not think that you can rule:
⎯ either on the submissions of the applicant State th at relate to a subject other than that defined
clearly and restrictively in the Application, namely the refusal to give effect to the international
letter rogatory of 3November2004 (this concerns paragraphs 3-8 of Djibouti’s submissions,
which its Agent read at the hearing on Tuesday afternoon 66);
⎯ or the claims directed at acts or conduct by th e French Republic subsequent to the filing of the
Application, i.e. 4January 2006 (this concer ns in particular the arrest warrants of
20October2006 and the invitation to testify addressed to the President of the Republic of
Djibouti on 14February2007; the Court’s lack of jurisdiction both ratione materiae and
ratione temporis is established with regard to these three acts).
39. I have almost finished, Madam President, but with your permission I should like to make
a final observation, both general and technical in nature.
40. In the Phosphates in Morocco case, the Permanent Court accepted the preliminary
objection by France based on ratione temporis considerations and therefore decided that “the
application submitted … by the Italian government [was] not admissible” With this in mind, France
42 asked the Court in the submissions in its Counte r-Memorial “ to declare inadmissible the claims
made by the Republic of Djibouti in its Memorial which go beyond the declared subject of its
Application” 67.
Incidentally, one may think that this is as much a case of lack of jurisdiction as of
inadmissibility, if not more so; and I agree that even the 1938 precedent is not clear because in the
penultimate paragraph of the grounds for its judgment the Permanent Court states that as a result of
the soundness of France’s preliminary objection ratione temporis “it has no jurisdiction to
adjudicate on this dispute” ( Phosphates in Morocco, Judgment, 1938, PCIJ, Series A/B, No. 74,
p. 29); the italics are ours.
66
CR 2008/3, p. 36-37 (Doualeh).
67
CMF, p. 73. - 34 -
41. Of course “[w]e know very well” as was recently observed about another case “that
issues of jurisdiction, issues of admissibility and i ssues of substance are not separate hermetically
sealed categories” (Territorial and Maritime Dispute (Nicaragua v, Colombia), Preliminary
Objections, Judgment of 13December2007, separate opinion by Mr.Ronny Abraham, para.6).
Also of course, as the author of the same opinion said, the grounds that I have put forward amount
to “an issue of lack of jurisdiction... or of inadmissibility of the claim..., really there is hardly
any difference” (ibid ., para.61): in both cases the Court is prevented from ruling on the merits.
The fact remains that Frances’s objections to the ex ercise by the Court of its jurisdiction arise from
the fact that France has not consented to it; in accordance with the prevailing jurisprudence of the
Court, referred to in great detail in the case i nvolving the Democratic Republic of the Congo and
Rwanda 68, consent governs its jurisdiction, not the admi ssibility of the application. As the Court
declared forcefully in that Judgment:
“its jurisdiction is based on the consent of the parties and is confined to the extent
accepted by them . . . and . . . when that consent is expressed in a compromissory
43 clause in an international agre ement [but the same is true a fortiori regarding an
application “accepted” under Article 38, pa ra.5], any conditions to which such
consent is subject must be regarded as constituting the limits thereon. The Court
accordingly considers that the examination of such conditions relates to its jurisdiction
and not to the admissibility of the application” ( Armed Activities on the Territory of
the Congo (New Application:2002) (Democratic Republic of the Congo v. Rwanda),
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006, p. 39, para. 88).
42. Consequently France will be led to state in its final submissions that it asks the Court to
decide both that it has no jurisdiction and that the application is inadmissible. We have thought it
best to state this now, in fairness to the other side and to enable it to formulate such observations as
it thinks fit in this connection.
68
Cf. Mavromattis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2 , pp.11-15;
Interpretation of the Statute of th e Memel Territory, Merits, Judgment , 1924, P.C.I.J., Series A/B, No. 49 , pp.327-328;
Electricity Company of Sof ia and Bulgaria, Judgment , 1939, PCIJ, Series A/B, No. 77 , pp.78-80; South-West Africa
(Ethiopia v. South Africa); Liberia v. South Africa, Preliminary Objections, Judgment, I.C.J. Reports 1962, pp. 344-346;
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and
Admissibility, Judgment , I.C.J. Reports 1984 , pp.427-429, paras. 81-8Border and Transborder Armed Actions
(Nicaragua v. Honduras), Jurisdiction and Admissibility, I.C.J. Reports 1988 , pp.88-90, paras.42-Questions of
Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan
Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 16, paras. 16-19; p. 24,
paras. 39-40; Questions of Interpretation and Application of t1971 Montreal Convention arising from the Aerial
Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judgment, , I.C.J. Reports
1998, pp. 121-122, paras. 15-19; p. 129, paras. 38-39. - 35 -
43. That point brings to an end my presentation for this afand I thank you, Madam
President and Members of the Court, for listening to me with your usual kind attention; I would
now ask you, Madam President, to give the floor to Professor Hervé Ascencio, who will discuss the
alleged violations of the 1977 Treaty and the 1986 Convention on Mutual Assistance.
The PRESIDENT: Thank you Professor Pellet. I give the floor to Professor Ascencio.
Mr. ASCENSIO:
THE ALLEGED VIOLATION OF THE T REATY OF FRIENDSHIP AND CO -OPERATION OF
27 UNE 1977AND THE CONVENTION ON M UTUAL ASSISTANCE IN
CRIMINAL M ATTERS OF 27 SEPTEMBER 1986
Madam President, Members of the Court, it is great honour for me to appear before this
Court for the first time and, above all, toon behalf of the French Republic of which I am
myself a citizen.
1. It falls to me to reply to the legal grounds on which the Republic of Djibouti relied to
claim that the French Republic was in breach of its international obligations as a result of its refusal
to execute an international letter rogatory. The letter rogatory at issue sought the transmission of a
copy of the case file concerning the investigation opened at tTribunal de grande instance
against X for the murder of Bernard Borrel. For si mplicity’s sake, I shall refer to that case file in
this oral statement as the “Borrel file”. However, I must stress, as, indeed, the Republic of Djibouti
44
69
made very clear in its Memorial, and again in its oral arguments, that the dispute of which the
Court has been seised relates neither to the substan ce of that case, nor to the investigation which is
under way, but solely to the French authorities’ re fusal to execute the international letter rogatory
in question. That is how the Republic of Djibouti itself defined the subject of the dispute in its
Application. Professor Pellet reminded us of that just a moment ago.
2. In both its Memorial and its oral argument s, the Republic of Djibouti has cited two legal
grounds in support of its claim that there haa breach of international law as a result of the
refusal to execute that letter rogatory, ao grounds only. It has claimed that France has
violated both the general duty to co-operate contained in the Treaty of Friendship and Co-operation
69
MD, p. 10, para. 5. - 36 -
between the French Republic and the Government of the Republic of Djibouti of 27June1977 70
and, also, the rules and procedures for mutual assistance provided for under the Convention on
Mutual Assistance in Criminal Matters between the French Republic and the Government of the
71
Republic of Djibouti of 27September1986 . Consequently, in order to reply to the arguments
which the Republic of Djibouti has advanced, it is necessary to demonstrate that the French
Republic has violated neither the 1977Treat y of Friendship and Co-operation(I) nor the
1986 Convention on Mutual Assistance in Criminal Matters (II).
I.T HERE HAS BEEN NO VIOLATION OF THE T REATY OF F RIENDSHIP
AND C O-OPERATION OF 27 JUNE 1977
3. Madam President, Members of the Court, th e Treaty of Friendship and Co-operation of
27 June 1977 has certainly not been violated as a re sult of the refusal to transmit the Borrel file to
the Djiboutian authorities. For there to have been a violation, France would have had to fail to
fulfil a legal obligation that could relate to the execution of international letters rogatory. However,
it is impossible to identify an obligation of that nature in the Treaty. Of course, that does not imply
that the Treaty contains no legal obligations. If the Republic of Djibouti needs reassurance on that
45 point, it may refer to paragraph3.7 of France’s Counter-Memorial, and let me just quote the first
sentence to you: “Legal obligations appear in the Treaty either in certain areas of co-operation
having nothing to do with judicial co-operation in criminal matters or in respect of setting up a joint
72
commission.”
4. Truth to tell, it is not entirely apparent that the Republic of Djibouti takes a very different
view. It too does not identify a specific legal obligation deriving from the actual terms of the
Treaty and able to be relied upon in this case. That is why it has been obliged to devise a “general
duty to co-operate” with legal effects as wide-ranging as they are vague.
5. That general obligation-- we are told in its Memorial-- is established by reading the
preamble to the Convention in conjunction with certa in of its articles, in the light of the aim and
purpose of the Convention. To reinforce its interpretation, the Republic of Djibouti also refers to
7MD, pp. 38 et seq.
71
MD, pp. 42 et seq.
7CMF, p. 19, para. 3.7. - 37 -
certain general principles, applied in relation to th e Treaty. In its oral arguments, the methodology
is rather different. It involves digging around fo r expressions here and there in the Treaty and
concluding that, if they are all tacked together, an obligation is bound to result.
6. Madam President, Members of the Court, th at kind of argument is tantamount to openly
admitting that this “general duty to co-operate”, wi th all of the legal effects that the Republic of
Djibouti wishes to associate with it, does not exis t in the Treaty itself. Consequently, France has
not violated the Treaty. In order to persuade you of this, I must describe the content of the
1977Treaty, before discussing the-- in truth, extremely hypothetical-- effects claimed by the
Republic of Djibouti.
A. The content of the Treaty of Friendship and Co-operation
7. The Treaty of Friendship and Co-operation between France and Djibouti was concluded
shortly after the Republic of Djibouti became inde pendent. The two States wished to lay down the
guiding principles and objectives for their co- operation in the future, “formally”, as the
Counter-Memorial records 73, as that also is significant. Consequently, we should hardly be
surprised at the limited number of obligations that appear in the Treaty or the fact that they are
vague.
46 8. In order to establish that a “general duty to co-operate exists”, the Republic of Djibouti
referred, in its Memorial, to the preamble, as well as Articles 1, 2 and 4 of the Treaty 74. During the
75
oral arguments, those same articles were cited, as well as Articles3, 5 and 6 . The Republic of
Djibouti thus invites us to analyse more all less the whole Treaty-- fortunately, that can be done
fairly rapidly.
9. Neither the preamble to the Treaty, nor Ar ticles 1 and 2 contain a legal obligation. They
simply lay down guiding principles and express the joint political will to pursue broad objectives.
Article6 of the Treaty confirms that analysis, providing, as it does, for the creation of a
Co-operation Commission “to oversee the implementation of the principles and the pursuit of the
objectives defined in the present Treaty”; that says it all.
73CMF, p. 20, para. 3.9.
74
MD, p. 39, paras. 93-94.
75CR 2008/1, p. 55, paras. 8-9; and p. 57, para. 14 (Condorelli). - 38 -
10. The Court considered the scope of similar terms in the Oil Platforms case. The issue in
that case was to interpret Article1 of the Tr eaty of Amity, Economic Relations and Consular
Rights between Iran and the United States of America. The Court held that Article1: “must be
regarded as fixing an objective, in the light of which the other Treaty provisions are to be
interpreted and applied” (I.C.J. Reports 1996, p. 814, para. 28). That also applies to the preamble
and Articles1 and 2 of the Treaty of Friendship and Co-operation between France and Djibouti.
They simply fix objectives in the light of which the only legal obligations that actually appear in
the Treaty must be interpreted and applied.
11. However, the Treaty lays down no legal obligation that would require the execution of an
international letter rogatory. Article3 relates to currency stability and economic development,
which have nothing to do with mutual assistance. It is true that Article 4 of the Treaty establishes
an obligation to co-operate. But the scope of that co-operation does not extend to judicial
co-operation in criminal matters. Only the areas “of culture, science, technology and education”
are mentioned. It is not, therefore, applicable to this case.
47 12. As regards Article5, in its oral argume nts, the Republic of Djibouti stressed the use of
the future tense76. But tense is not everything; you have to look at the verb also! In this case, it is
hard to claim that the verbs “foster” and “pro mote” reflect anything other than a fairly vague
obligation to act.
13. Moreover, the co-operation to be fostered is co-operation between “public and private
national organizations” and “cultural, social and economic institutions”, terms that in no way relate
to the judicial authorities. Finally, the scope of Article5 cannot extend beyond the scope of the
Treaty itself. The fact is that the 1977Treaty of Friendship and Co-operation does not cover
judicial co-operation in criminal matters. Th e preamble refers only to the “political, military,
economic, monetary, cultural, social and technologica l fields”, and none of the articles contains a
reference to judicial co-operation.
14. In that connection, there is something I should mention in passing. France was anxious
to reproduce the whole of the Treaty in AnnexXII of its Counter-Memorial-- and you will also
76
CR 2008/1, p. 55, paras. 8-9 (Condorelli) - 39 -
find it at Annex 3 in your dossier. The reason for this was that the preamble was not included in
the version that the Republic of Djibouti submitted at Annex 1 of its Application. It is thus easy to
see in the preamble that the 1977Treaty is lim ited to areas that do not encompass judicial
co-operation in criminal matters.
15. That the States did not intend to include criminal matters is also confirmed, as far as
France is concerned, by the procedure applied fo r ratification purposes. In his oral argument,
Professor Condorelli mentioned the French instrument of ratification 77, which employs a perfectly
normal form of words. It is more important to point out that the Treaty was ratified by the
President of the French Republic without the need for parliamentary approval. However, had the
Treaty involved specific legal obligations in relation to criminal matters, Article53 of the French
Constitution would have required parliamentary approval. According to Article 53, certain types of
treaty, particularly those “which amend provisions of a legislative nature” can only be ratified or
approved by means of a law. And criminal matters fall within that category, pursuant to Article 34
48 of the French Constitution. An example of the application of Article53 of the Constitution is,
moreover, provided by the procedure applied for the purposes of ratifying the Convention on
Mutual Assistance in Criminal Matters between Djibouti and France of 27 September 1986.
16. That limitation on the purpose of the 1977Treaty also applies to Article6, which,
moreover, merely sets in place a Co-operation Commission able to make recommendations to the
two Governments. Article6 therefore has a rela tively modest function, but that has not deterred
counsel for the Republic of Djibouti from attributi ng quite extraordinary effects to it, even though,
78
according to the Applicant itself, the Commission has not met for a very long time .
17. Article6 is alleged to demonstrate that the 1977Treaty “‘oversees’ all of the other
79
successive bilateral agreements” . This does not correspond to any kind of reality. There is no
provision in the 1977 Treaty or the 1986 Convention on Mutual Assistance in Criminal Matters that
establishes a legal link between the two instruments. A fortiori , then, there is no provision
establishing any kind of hierarchy between them.
77CR 2008/1, p. 54, para. 7 (Condorelli).
78
CR 2008/1, p. 57, para. 15 (Condorelli).
79CR 2008/1, p. 57, para. 14 (Condorelli). - 40 -
18. The Republic of Djibouti’s interpretation of the terms of the Treaty is designed primarily
to create a general impression, making it possible to suggest that the Treaty may give rise to some
effect in this case. That effect is certainly not generated by the violation of a legal obligation which
the Treaty is alleged to contain. What is more, the Agent for the Republic of Djibouti
acknowledged that-- without actually spelling it out -- when he set out the list of the conclusions
and submissions of the Applicant on conclusion of th e first round of oral arguments. In relation to
the 1977 Treaty, he cites a violation by France of the “spirit and purpose of that Treaty as well as
80
the obligations deriving therefrom” . It remains to be seen how, in the absence of any specific
obligation in the Treaty having, allegedly, been violated, the Applicant intends nonetheless to have
the 1977 Treaty produce an effect in this case.
B. The effects of the Treaty as claimed by the Applicant
19. Madam President, during the oral arguments , the Applicant maintained that “France is
wrong to rely in its Counter-Memorial on your Court’s famous obiter dictum in the
81
49 1986 Nicaragua judgment” . The reference was to a passage in the judgment according to which
there must be a distinction “between the broa d category of unfriendly acts, and the narrower
category of acts tending to defeat the object and purpose of the Treaty”. As regards the latter, the
Court considered that it was necessary to attach th em to “specific fields” in order to demonstrate
“effective implementation of fri endship” and not “friendship in a vague general sense” ( I.C.J.
Reports 1986, p.137, para.273). The reference to th at judgment was not-- or was no longer--
necessary, since the Republic of Djibouti was in no way suggesting that the legal obligations
resulted not from the articles of the Treaty, but from its object and purpose 82.
20. But it seems to me to be very useful to keep in mind the Court’s ruling, since the
Republic of Djibouti is now seeking to employ th e vague and general terms of “friendship and
co-operation”, and a few others as well, to make the 1977Treaty produce legal effects that its
content certainly does not support.
80CR 2008/3, p. 37, para. 4, point 9 (Doualeh).
81
CR 2008/1, p. 58, para. 17 (Condorelli).
82CR 2008/1, p. 58, para. 17 (Condorelli). - 41 -
21. Counsel for the Republic of Djibouti refers , for instance, in his oral argument to the
hypothesis of “unfriendly conduct” which-- if one follows closely-- allied with the principle of
mutual respect between States, could result in a vi olation of the “obligations of co-operation laid
83
down by the 1977 Treaty” . He goes on to claim that certain violations, described as “serious”, of
the 1986Convention on Mutual Assistance could, at the same time, constitute a violation of the
84
1977Treaty, whereas that would not ap ply to a violation “of little importance” . According to
him, it is necessary also to take account of a “global context” which is “characterized by
85
profoundly unfriendly acts” . The final element in the mix is, and I quote, “the scope of the
reference to the equality and due mutual respect between the Parties during co-operation in all the
50 areas covered by the 1977Treaty” 86. All of that represents a “viewpoint [that] can certainly be
87
defended”, in abstracto he explains, although we do not know what the viewpoint in concreto is .
22. The purpose of this succession of muddled expressions is to make it possible to advance
one proposition: namely that the 1997Treaty co uld have been violated “if the Court defines
France’s conduct as a serious violation of the 1986Convention” 88. That then is the kind of
violation of the Treaty of Friendship and Co- operation which the Republic of Djibouti is now
alleging.
23. We take the view that the Court should draw on its decision in the Nicaragua case and
dismiss this kind of attempt to found responsibil ity on a series of vague and general terms.
Furthermore, no provision of the 1977 Treaty and no provision of the 1986 Convention on Mutual
Assistance displays the slightest reference to the other. A violation of the latter cannot, therefore,
have the slightest effect on the former, particularly since they have different purposes, and the only
legal obligations pertaining to mutual assistance in criminal matters appear in the Convention of
27 September 1986.
8Ibid., p. 60, para. 21 (Condorelli).
8Ibid., para. 22 (Condorelli).
85
Ibid., para. 23 (Condorelli).
86
Ibid., para. 21 (Condorelli).
8Ibid., para. 25 (Condorelli).
8Ibid., p. 61, para. 21 (Condorelli). - 42 -
II.T HERE HAS BEEN NO VIOLATION OF THE C ONVENTION ON M UTUAL
A SSISTANCE IN C RIMINAL M ATTERS OF 27 SEPTEMBER 1986
24. Madam President, Members of the Court, I must turn now to the second legal ground
which the Republic of Djibouti invokes. That ground relates to the implementation of the
Convention of 27September1986 when the French authorities were considering the international
letter rogatory seeking the transmission of a copy of the Borrel file.
25. It has to be said that the presentation of that legal ground by the Applicant has undergone
significant change between the written procedure and the oral arguments. That has resulted in a
significant change to the submissions, as set outhe Agent for the Republic of Djibouti at the
end of the first round of oral arguments by Djibou ti. The main legal argument advanced now is
that: “the French Republic violated its obligtions... by not acting upon its undertaking of
51 27January2005 to execute the letter rogatory adressed to it by the Republic of Djibouti dated
3 November 2003” 89-- actually, we are talking about 3 N ovember 2004. The Republic of Djibouti
is, therefore, pushing to the forefront the crucial role of a letter from the Principal Private Secretary
to the Minister of Justice, a letter thatgarded as marking the final acceptance by France of
Djibouti’s request for transmission of the Borrfile, in accordance with the provisions of the
1986 Convention and, more particularly, Article 14 thereof.
26. In the alternative, the Republic of Djibouti claims that France has violated its obligations
under Article1 of the Convention, by unlawfully refusing to transmit the Borrel file, a refusal set
out in a letter of 6 June 2005 or, and this is the second submission in the alternative, in a letter of
31 May 2005 -- you will find those letters in your dossier. The refusal is alleged to be unlawful on
the ground that the reason for refusing mutual assistance was, and continues to be, inadequately
explained.
27. Submissions of that nature clearly depe nd on how the Republic of Djibouti interprets the
1986Convention and how it applies its provisions to the request to transmit the Borrel file. Here
again, there have been significant developments between the Application and Memorial, on the one
hand, and the oral arguments on the other. Ittrue that, in their oral arguments, the Applicant’s
representatives tried to identify the points of agreement and the differences between the two States.
89
CR 2008/3, p. 36, para. 1 (Doualeh). - 43 -
This was no doubt an attempt to apply Article 60 of the Rules of the Court, according to which, in
90
their oral statements, the parties must focus on the issues that divide them . Naturally the French
Republic too intends to focus on those issues. But the legal analyses that Djibouti’s representatives
provided were also designed, let us not hide the f act, to present to the Court an almost entirely new
legal argument.
28. Consequently, it is essential to clarify the extent to which that argument is compatible
with the obligations contained in the 1986Convention on Mutual Assistance and to consider
whether it provides a basis for claiming that Fr ance failed to fulfil one of its international
obligations when the French authorities considered the letter rogatory seeking the transmission of
52 the Borrel file. I can give the Court the answer to that immediately: none of the arguments which
the Applicant is now advancing allows of the find ing in law that France has been in breach of the
1986 Convention. That is true of both the arguments on which the Republic of Djibouti bases its
principal submission (A) and of those on which its bases its submissions in the alternative (B).
A. The Applicant’s principal argument
29. The Applicant’s principal argument is founded on the contention that the
1986Convention was violated as a result of the refusal to act upon the alleged undertaking
constituted by the letter of 27January2005. But th ere was no violation of that nature. That is
apparent if we just remind ourselves briefly of th e relevant provisions of the Convention, and then
call to mind the procedure which the French Repub lic put into effect in response to Djibouti’s
request that the Borrel file be transmitted.
1. The material provisions of the Convention on Mutual Assistance
30. Madam President, the construction which the Republic of Djibouti is now placing on the
provisions of the 1986Convention has undeniably m oved closer to the interpretation that France
set out in its Counter-Memorial.
31. The most striking example of this is that Article2 of the Convention has ceased to be
ignored, whereas the Republic of Djibouti did not ev en mention it in either its Application or its
90
CR 2008/2, p. 9, para. 3 (Condorelli). - 44 -
Memorial. That is the Article which permits a State to refuse mutual assistance, and it was
specifically pursuant to Article2 that France re fused to execute Djibouti’s letter rogatory seeking
transmission of the Borrel file. The Republic of Dj ibouti has thus had to bow to the facts: if
Article 1 of the Convention provides that the States are to afford each other “the widest measure”
of judicial assistance, that implies that there are, nevertheless, cases in which this is not possible.
Those cases are specifically the ones which Article 2 of the Convention distinguishes, and I use the
verb “distinguish” (distinguer) in one of the meanings attaching to it in the French language, that is
to say that Article2 draws a distinction by listin g three cases, reflecting three different-- but all
three legitimate -- reasons for refusing mutual assistance.
53 32. The Republic of Djibouti has also conceded that since Article 2 of the Convention falls
under the heading of General Provisions in the Convention, it embraces all forms of mutual
assistance, including international letters rogatory , which are dealt with more specifically in
Articles 3 to 5 of the Convention.
33. It is possible to identify a further point of agreement concerning the refusal of mutual
assistance permitted under Article2. The French Republic in fact takes the view that, subject, of
course, to the procedural conditions set out in Article13 and the cases covered by general
international law, such as the abuse of rights or misu se of power, if it is to be compatible with the
Convention, a refusal of that nature may only be based on one of the reasons set out in that Article.
Contrary to what the Republic of Djibouti mainta ined in its oral arguments, the Counter-Memorial
was totally unambiguous on that point.
34. Finally, the French Republic is entir ely in agreement with the view expressed by
ProfessorCondorelli, according to which: “the ma in provisions of immediate importance for the
purposes of the dispute that divides [the two States] are Articles 1(para. 1), 2, 3 (para. 1) and 17” 91.
We should perhaps just add that the Republic of Djibouti also mentioned Article14 of the
Convention and applied it in a way that we shall need to return to a little later in this oral statement.
35. However, these various points of agreem ent notwithstanding, su bstantial differences
remain. Counsel for the Republic of Djibouti hi mself listed those differences: namely, “the
91
CR 2008/2, p. 8, para. 2 (Condorelli). - 45 -
interpretation of Articles 1, 2 (c) and 17 of the Convention and of course the relationship that exists
92
between their relative provisions” . In contrast with the articles that, according to the same
counsel, have a direct part to play in these proceedings, just one article has been omitted from the
list: Article 3. But it is precisely in relation to Article 3 and its application that a number of points
must be made, as a matter of priority. And I say a matter of priority because the interpretation and
implementation of that Article are central to th e arguments that the Republic of Djibouti is
advancing in support of its principal submission. Indeed, the only way it can claim that the letter of
54 27 January 2005 constitutes acceptance, plain and simple, of Djibouti’s request is to ignore French
internal procedure, and, therefore, to evade Article 3.
36. Article3, paragraph1, is the prin cipal provision of the Convention among those
specifically concerned with international letters rogatory. It stipulates:
“The requested State shall execute in accordance with its law any letters
rogatory relating to a criminal matter and a ddressed to it by the judicial authorities of
the requesting State for the purpose of procuring evidence or transmitting articles to be
produced in evidence, records or documents.”
37. Article 3 thus expressly refers to the internal procedure for the execution of requests for
mutual assistance. In its Memo rial, the Republic of Djibouti claimed that the internal procedure
93
was merely a matter of how the execution of such a request was to be processed and that Article 3
of the Convention establishes an “obligation of result” 94. That would systematically subordinate
the procedure to the result. On the contrary, acco rding to the interpretation which France gives to
that provision, compliance with the internal pr ocedure is one of the essential elements of the
obligation. It is even one of the principal guarantees provided by the Convention. The desired
result, the transmission of the documents requested, can occur only as the outcome of the internal
procedure. To say that is not evidence of disp roportionate formalism but, on the contrary, of due
respect for the rule of law which is imperative in application of both Article3 of the Convention
and French criminal procedure.
92CR 2008/2, p. 9, para. 3 (Condorelli).
93
MD, p. 44, para. 114.
94MD, p. 44, para. 113. - 46 -
38. The object and purpose of the 1986 Conventio n, moreover, implies that emphasis should
be placed on the means used, that is to say on the in ternal procedures. The object of the treaty is
mutual assistance in criminal matters, that is to say a process of co-operation between two States.
According to Article 1, this process concerns “proceedings in respect of offences the punishment of
which, at the time of the request for assistance, falls within the jurisdiction of the judicial
authorities of the requesting State”. The French text of this article uses the adjective “judicial”
twice, which attests to the significant role to be pl ayed by the judicial authorities in that process.
As for the purpose of the Convention, it consists, according to the preamble, of “facilitating” the
course of mutual judicial assistance proceedings. The verb “facilitate” naturally leads to greater
55 emphasis on the means than on the result, which is not guaranteed in absolute terms. It should,
moreover, be recalled that mutual judicial assistance proceedings are traditionally cumbersome and
complicated. They involve co-ordinating two separate internal proceedings, those of the requesting
State and those of the requested State, and ensu ring co-ordination between the judicial authorities
of the two States in accordance with their respective fundamental interests. That is precisely the
purpose of the 1986 Convention.
39. Without ever saying so very clearly, it would appear that the Republic of Djibouti has
abandoned its initial interpretation and now accepts, in theory at least, the French position. Indeed,
it has dismissed the idea of an absolute obligation of result. Further, its Counsel has forcefully
asserted: “Djibouti has never maintained that the letter rogatory should be executed by the
requested State without going through the proced ure provided for that purpose by its internal
95
law!”
40. That being so, assuming that Djibouti did not effectively make such a contention, it is
exactly what it goes on to do in the rest of its oral presentations. For, and it is important to
emphasize it, the whole of Djibouti’s argumentation leading up to the main conclusion that the
letter of 27 January 2005 constitutes an undertaking to execute the Djiboutian letter rogatory bears
a profound contradiction. That letter did not in an y manner mark the end of the internal procedure,
it merely transmitted information regarding the initial phases of that procedure. Consequently, it is
95
CR 2008/2, p. 11, para. 7 (Condorelli). - 47 -
not possible to maintain, as Djibouti does, that France committed itself by that letter and that
execution of the request must go through “the pro cedure provided for that purpose by its internal
law” at one and the same time.
41. In order to convince fully the Court, the simplest approach is probably to review the
sequence of events concerning the Djiboutian requests for transmission of the Borrel file, as well as
the phases of procedure established by French law to respond to such requests. It will then appear
clearly that the Republic of Djibouti has no grounds whatever to argue th at France violated the
1986 Convention by refusing to fulfil an alleged “undertaking”.
56 (2) Implementation by France of the mutual assistance procedure
42. In reference to the French procedure, we must first, MadamPresident, clarify a
96
misunderstanding as to the timeframe of th e Djiboutian requests. In its Memorial , the Republic
of Djibouti consistently spoke of “international letters rogatory” in the plural, as if it had issued a
number of such letters rogatory requesting the tran smission of the Borrel file. However, strictly
speaking, there was only ever one international letter rogatory, the one issued by
Judge Leïla Mohamed Ali on 3 November 2004.
43. The oral presentations were more exact on this point, for Mr.vandenBiesen used the
97
expression “the international letter rogato ry” in reference to that single request . But he also
recalled the first approach by the Djiboutian author ities, that taken by the State Prosecutor of the
Republic of Djibouti on 17June2004 . That initial step is said to be part in some manner of a
preparatory phase of the international letter roga tory of 3November2004. Thus, according to
Mr. van den Biesen:
“le 6décembre2004 est la date à laquelle la commission rogatoire internationale,
datée du 3novembre2004, a été formellement transmise aux autorités françaises. A
l’évidence, à cette époque, les autorités françaises savaient depuis plus de six mois que
98
cette demande allait leur parvenir”
44. To be entirely correct, Mr.vandenBiesen even traces this preparatory phase back to
conversations between the State Prosecutor of Djibouti and the Paris State Prosecutor which
9MD, p. 26, para. 59.
97
CR 2008/2, p. 32, paras. 12-13, p. 35, para. 24 (van den Biesen).
9CR 2008/2, p. 32, para. 13 (van den Biesen). - 48 -
allegedly occurred on 6 May 2004 . However, as the Applicant provides not the slightest shred of
evidence about the content of those conversati ons, it is probably more advisable to confine
ourselves to the first document appearing in the folder submitted to the Court requesting the
transmission of the Borrel file, namely the letter addressed on 17 June 2004 by the State Prosecutor
of the Republic of Djibouti to the State Prosecutor of the Paris Tribunal de grande instance.
45. It is true that the subject matter of th at first request was the same as that of the
international letter rogatory of 3November2004, that is the transmission of a full copy of the
record of the investigation conducted by the investigating judge Sophie Clément. It is also true that
there is a certain continuity in the Applicant’s wish to obtain the handover of the Borrel file
57
extending back to the beginning of the second half of 2004. Consequently, it is appropriate to
review the way in which the two successive re quests were handled, with emphasis on both what
distinguishes them with respect to procedure and what they have in common in terms of the merits.
46. First, the initial request, that of 17June 2004, could not be regarded as an international
letter rogatory. It did not in any way fall with in the framework of the 1986 Convention on Mutual
Assistance, which was not in any case mentioned. The requirements laid down by Article 13 of the
Convention on Mutual Assistance were not fulfilled, and for good reason. There were no criminal
proceedings regarding the death of JudgeBorrel under way in Djibouti at the time. The first
proceedings in Djibouti, whic h had concluded that it was suicide, had been closed on
7 December 2003 and the second proceedings had yet to be initiated. It was not therefore a letter
rogatory relating to a “criminal matter” under way in Djibouti, to use the terms of Article 3 of the
Convention. There had been no “offence” charged and it was impossible to provide a “summary of
the facts” to cite this time the terms of Article 13, paragraph 2, of the Convention.
47. The letter of 17 June 2004, however, left no doubt whatsoever as to the fact that the State
Prosecutor of Djibouti had placed himself outside the scope of the treaty. It explained that the
transmission of the contents of the Borrel file was not intended to support an ongoing judicial
investigation, but to open new judicial proceedings if necessary in Djibouti. Above all, it explained
very carefully the reasons for th e request, namely the will to react to the implication of the
99
CR 2008/2, p. 31, para. 11 (van den Biesen). - 49 -
Djiboutian authorities by the civil party and certain French media. In its Memorial, the Republic of
Djibouti is equally explicit, since it presen ts the request of 17June2004 as being “ above all ”
prompted by “the steady worsening of relations be tween the French Republic and the Republic of
Djibouti because of the widespread media camp aign of denigration, accusation and defamation
100
against the highest Djiboutian authorities” . Thus the request manifestly did not correspond to
the purpose of the 1986 Convention, namely the pursuit by means of international mutual
58 assistance of evidence likely to be of benefit to criminal proceedings under way in the requesting
State.
48. The State Prosecutor of the French Re public then initiated the internal procedure
established for the examination of requests for mutu al assistance of this type, a procedure to which
I will return a little later, which led him to put th e matter to the investigating judge responsible for
the first time. As might have been expected, the investigating judge held that this request did not
comply with the necessary formal requirements for it to be granted. The executive authorities then
provided the Republic of Djibouti with precise legal indications in r esponse to its persistent desire
to obtain information within the context of a mutual judicial assistance procedure.
49. Among the information supplied were certain elements of vital importance to the dispute
before the Court. I make reference here to an internal document of the French administration
which was forwarded to the Prosecutor’s Office in Djibouti and which the Republic of Djibouti
itself annexed to its Memorial. It is Annex 18. In that document, the Principal Private Secretary to
the Minister of Justice explains that “the investigating judge responsible for the case . . . alone has
the jurisdiction to hand over copies of the documents”. And he adds that the investigating judge
had, to be specific, taken the view that the lette r was not in the form required to comply with the
scope of the 1986 Convention.
50. The Republic of Djibouti did not make any so rt of protest because of the rejection of its
first approach. On the contrary, it accepted the technical advice of the French authorities and
initiated a new procedure in compliance with th e requirements of the Convention. Thus, on
30 October 2004, a judicial investigation into the murder of Bernard Borrel was opened in Djibouti
100
MD, p. 26, para. 60. - 50 -
and, a few days later, on 3November2004 , the investigating judge of the Djibouti Tribunal de
première instance issued an international letter rogatory requesting the transmission of the Borrel
file by the French authorities.
51. It is apparent from the above:
⎯ first, that the Republic of Djibouti fully accepted the position of the French authorities;
59 ⎯ second, that the Republic of Djibouti was duly informed of the essential role played by the
investigating judge in the assessment procedure of requests for mutual assistance.
52. In view of its attitude, the Republic of Djibouti cannot now retract what it clearly
indicated to the French authorities, namely that it accepted the validity of their position regarding
the measure taken by the State Prosecutor of Djibouti.
53. Following these exchanges, France was presen ted for the first time, in accordance with
the 1986 Convention, with an international letter rogatory requesting the transmission of the Borrel
file in the context of judicial proceedings under way in Djibouti. It then fulfilled its obligation
under Article 3 of the 1986 Convention by initiating its internal procedure.
54. In its Counter-Memorial, the French Republic explained in detail what the rules of
French law were applying to the assessment of international letters rogatory 101and provided the
administrative documents and judicial decisions relating to the examination of the Djiboutian
request as annexes 102. There is doubtless little reason to discuss this again at length, as
those items
appear to have convinced the Applicant. Ind eed, Professor Condorelli, having recalled the French
position that “according to French legislation th e decision to execute or refuse such a letter
rogatory is within the exclusive jurisdiction of the judiciary”, concludes his reasoning by declaring
“[t]hat is not the issue”103.
55. The presentation of the Deputy Agent of the Republic of Djibouti, Mr. van den Biesen, is
even clearer. After wondering about the legal status of the Soit Transmis from the investigating
judge Sophie Clément of 8February2005 and having recalled that th e Paris Court of Appeal had
10CMF, para. 3.56-3.63.
102
CMF, Anns. XIV, XV, XXI.
10CR 2008/2, p. 12, para. 8 (Condorelli). - 51 -
held, in a 2006 judgment, that the document constituted a judicial decision, he concludes as
follows: “[a]ussi surprenant que cela puisse être pour le demandeur, telle est la réalité dont il doit
se satisfaire . . .4”.
60 56. Consequently, it is acknowledged by both Pa rties to the present dispute that pursuant to
the French Code of Criminal Procedure, and mo re particularly Article 694-2 and Article81,
paragraph2, the investigating judge responsible for the Borrel file alone had the jurisdiction to
proceed with the execution of the request and t hus was the only person with the jurisdiction to
decide on the refusal of mutual assistance.
57. Incidentally, there is nothing really surprising about all that, contrary to what the
105
Applicant has suggested . There has to be an internal aut hority which decides in the event of
refusals, as indeed in the event of non-refusals. It so happens that French criminal procedure
entrusts this task to the investigating judge respons ible for investigating the case. It is for France
and France alone to organize its own procedures as it sees fit, providing that that organization does
not violate any of the provisions of the 1986 Convention. Further, there is nothing arbitrary about
conferring the task of issuing final refusals to re quests for mutual assistance in criminal matters on
the judicial authorities, quite the contrary.
58. Moreover, it must be emphasized that th e procedure was conducted with great rapidity,
since the letter rogatory issued by the Djiboutia n investigating judge was sent to the French
Embassy in Djibouti on 22 December 2004 and the i nvestigating judge responsible for the case in
France informed the Paris State Prosecutor of her decision on 8February2005. That decision
dismissed the request on the ground that its exec ution was likely to prejudice the sovereignty,
security, ordre public or other essential interests of France 10. That decision, coming from the
judicial authorities, marked the end of the internal procedure.
59. Consequently, we cannot understand how th e Republic of Djibouti can claim that the
internal procedure ended earlier, on 27 January 2005, almost at the time that it had just started, with
the letter from Mr.LeMesle. In support of its principal argument, the Republic of Djibouti
10CR 2008/2, p. 46, para. 57 (van den Biesen).
105
Ibid.
10CMF, Ann. XXL. - 52 -
completely ignores the procedural context of the various exchanges it had with the French
Republic. That leads it to present to the Court the replies given to its various letters and approaches
as if they were promises or forms of conduct cap able of committing France to the transmission of
the Borrel file.
61 60. They were never anything of the sort. The Republic of Djibouti knew very well that the
replies by the French executive authorities could only relate to the progress of that procedure and
not to its final outcome. That was clearly apparent from the provisions of the 1986 Convention and
it had been made plain at the time of the Djiboutian authorities’ initial approach.
61. The Republic of Djibouti’s understandi ng of the letter of the 27January2005 and its
effect is not just surprising, it is also new. In its Memorial, the Republic of Djibouti had indeed
107
made reference to this letter using a larg e number of expressions such as “undertakings” ,
“assurances” 108, “unilateral undertaking” and even “promise” 109. But it had not given the slightest
notion of the legal effect which it intended to attribute to them.
62. Was the suggestion that this letter constituted a unilateral act of State, that is to say an act
giving rise to a new legal obligation, distinct from those contained within the 1986 Convention?
The expressions that I have just cited could have given that impression. But we now know that this
was not the case. It is true that it would have been highly surprising, not to say comical, in the light
of the person who wrote the letter, the terms used and the circumstances.
63. However, the argument developed by the Republic of Djibouti during the first round of
its oral presentations is no less strange. It consists of saying that this letter is in fact the execution
of the Djiboutian request for mutual assistance, as provided for by Article 14 of the Convention. I
refer here to the presentation by ProfessorCondorel li: “this letter represents the official response
by the Minister of Justice of the requested Stat e, France, to the letter rogatory presented by the
requesting State, Djibouti, through the offici al channels prescribed by Article14 of the
1986 Convention” 110.
10MD, p. 28, para. 65, p. 29, paras. 67 and 69.
108
MD, p. 45, para. 115.
109
MD, p. 45, para. 116.
11CR 2008/2, p. 16, para. 14 (Condorelli). - 53 -
64. That is also why the same counsel referred in his presentation to the rules of international
law applying to the international responsibility of the State for internationally wrongful acts, inter
62 alia the rules of attribution111. The letter of 27 January 2005 is thus viewed as an act of the State,
more specifically the act of execution of the 1986 Convention, not as an international legal act
which would give rise to a new obligation.
65. Is such an assumption credible? Certainly not. Merely reading the letter in question is
enough to convince oneself of the contrary. That being the case, MadamPresident, I was
wondering as it will soon be 6 p.m., it seems that now could be a suitable moment to break off my
presentation.
The PRESIDENT: But I have the impression that you have almost finished. You only have
some 5 to 7 minutes left. You may continue.
Mr. ASCENSIO: All right. Very well.
I will then continue. Is this assumption credible? Not all, merely reading the letter in
question is enough to convince oneself of the contrary . In view of the context, the reply given is
free of ambiguity. The Principal Private Secretar y to the Minister of Justice, Mr.LeMesle,
explains to the Ambassador of Djibouti in Paris the state of progress of the procedure. He indicates
that he has asked “for all steps to be taken” to reply to the request. He thus positioned himself
clearly in terms of the initiation of the internal procedure. There is no express acceptance, no
positive reply anywhere in the letter, contrary to what the Applicant claims 11. Similarly, his wish
to avoid “unjustified delays” s hows his personal commitment to taking the procedure forward as
quickly as possible, as far as the part within the remit of the executive authorities was concerned.
Moreover, it is clear that he could give no final indication as to the outcome of the procedure, since
it was still ongoing at that time and dependent on the assessment that would be made by the judicial
authorities.
111
CR 2008/2, p. 15, para. 12 (Condorelli).
11CR 2008/2, p. 33, para. 14 (van den Biesen). - 54 -
66. According to the Republic of Djibouti’s Memorial, France should have informed it of the
fact that in application of its internal legislation mutual assistance could be refused 113. The same
114
criticism was reiterated by Mr.vandenBiesen in his presentation . But since when has it been
legally required to notify a State of the fact that a convention will be applied in accordance with the
obligations it establishes? Comp liance with the internal procedure is explicitly laid down by
63 Article3 of the Convention and the possibility of a refusal is just as explicitly provided for in
Article2 and Article17. The Republic of Djibou ti cannot, in good faith, maintain that it was not
aware of those provisions.
67. The Republic of Djibouti, in its Memorial, went as far in this respect as to speak of
“estoppel” 115. Such a position once again shows a complete lack of the most elementary form of
good faith in the execution of treaties. If we address it here, it is only in order to reply in full to the
grievances of the Republic of Djibouti; but that reply can be a short one. What France is criticized
for is its silence. However, even if that s ilence were to be proved, it would not demonstrate
anything. The Court in its Judgment of 20 July 1989 in the Elettronica Sicula case did not rule out
that silence could “in certain circumstances” give rise to an estoppel ( Elettronica Sicula S.p.A.
(ELSI) (United States of America v. Italy), Judgment, I.C.J. Reports1989 , p.44, para.54). But,
more specifically, that Judgment says: “when some thing ought to have been said”. Now, in the
dispute between Djibouti and France there was no reason to say anything, as the reference to
internal legislation is expressly mentioned in Ar ticle3 of the Convention on Mutual Assistance
between the two States.
68. Moreover, the fact that the investigating judge “alone has the jurisdiction to hand over
copies of the documents” had been recalled by th e very same Principal Private Secretary to the
Minister of Justice, Mr. Le Mesle, at the very beginning of the exchanges between the Republic of
Djibouti and the French Republic in the letter of 18 October 2004 which appears as an annex to the
Memorial of Djibouti 116.
11MD, p. 44, para. 114.
114
CR 2008/2, p. 37, para. 29 (van den Biesen).
115
MD, p. 44, para. 115.
11MD, Ann. 18. - 55 -
69. For want of finding sufficiently solid grou nds to support its allegations in the letter of
27 January 2005, the Applicant is th erefore obliged to seek out other sources. It then tries to draw
on a statement made by the spokesman for the Mi nistry of Foreign Affairs dated 29 January 2005
by claiming that it confirms the letter of 27 January. There again, however, neither the content nor
the context of the statement lend support in any way to this argument.
70. The context was that of an ongoing mutu al assistance procedure. Consequently, the
statement to the press, with respect to the part relating to the procedure, could only bring to public
attention information corresponding to the position of the executive authorities. It could not be
understood as announcing a final decision, since any such decision was dependent on the
64
assessment of the investigating judge responsible for the case.
71. Further, there is even less reason for that statement to engage France’s executive
authorities, in that it did not in reality concern the letter rogatory issued by the Djiboutian
investigating judge and forwarded to the French Embassy in Djibouti on 22 December 2004. The
phrasing of the statement in fact shows that it is not referring to the letter rogatory but to the first
Djiboutian approach, that of 17 June 2004. This is apparent from the terms used at the very end of
the Statement: “in order to allow the competent aut horities of that country to decide whether there
117
are grounds for opening an investigation into the matter” .
72. The opening of a new judicial investigation was the issue at the centre of the first
Djiboutian request. But, for the second, the interna tional letter rogatory, the judicial investigation
in question had been opened by the Djiboutian ju stice system. That demonstrates that the
spokesman was unaware of the most recent developm ents, or did not intend to bring them to the
attention of the media. Consequently, there is hardly any need to emphasize that there was no
reference to the letter by Mr. Le Mesle of 27 January 2005 in the statement, nor to any other letter
or declaration incidentally. It cannot thus be said that the statement by the spokesman for the
Ministry of Foreign Affairs lends weight to anything whatsoever. The same is true of any other
sources quoting that text.
117
MD, Ann. 22; emphasis added. - 56 -
73. MadamPresident, Members of the Court, since the letter of 27January2005 cannot in
any respect be regarded as acceptance of the requ est for the transmission of the Borrel file, for the
simple reason that the internal procedure had only ju st been initiated, the principal argument of the
Republic of Djibouti can only be dismissed.
MadamPresident, I think that now is the time to interrupt this presentation. Thank you
Members of the Court, Madam President, for your attention.
65 The PRESIDENT: Thank you, Professor Ascen cio. The Court will meet again tomorrow
morning at 10 a.m. to hear the rest of the first round of oral argument of the French Republic. The
Court now rises.
The Court rose at 6.05 p.m.
___________
Traduction