DJF
CR 2008/7 (translation)
CR 2008/7 (traduction)
Tuesday 29 January 2008 at 3 p.m.
Mardi 29 janvier 2008 à 15 heures - 2 -
8 The PRESIDENT: Please be seated. The sitting is open. The Court meets this afternoon to
hear the second round of oral argument of the Fr ench Republic. France will have the floor this
afternoon until 6 p.m. I now give the floor to Professor Pellet.
Mr. PELLET: Thank you, Madam President.
THE JURISDICTION OF THE C OURT AND THE A PPLICANT S SUBMISSIONS
1. Madam President, Members of the Court, it falls to me to open France’s second round of
oral argument by presenting a number of comment s on the jurisdiction of the Court and on the
claims in Djibouti’s final submissions. With your permission, Madam President,
ProfessorAscensio will follow me to discuss the ar guments of the other Party on what represents
the heart of this case and its only subject, namely France’s refusal to execute the international letter
rogatory issued by the investigating judge at the Djibouti Tribunal de grande instance on
3 November 2004. I shall then take the floor agai n to deal with the question of the immunities of
certain Djiboutian officials, supposedly violated by the Respondent, after which the Agent of the
French Republic will present some brief remarks and then read out our final submissions.
I. The jurisdiction of the Court
2.Madam President, Professor Condorelli spent a good deal of time yesterday morning going
back over the question of the jurisdiction of the Court. I have no quarrel with him as regards the
2
points of agreement between the Parties which he listed . However, I would point out that, while I
certainly agree in principle on th e fact that the interpretation of the unilateral declarations on each
side cannot be “purely grammatical” ⎯ even if I did not say that, although my opponent attributes
3
it to me in quotation marks ⎯ it must nevertheless be borne in mind that:
“A unilateral declaration entails obligations for the formulating State only if it is
stated in clear and specific terms. In the case of doubt as to the scope of the
obligations resulting from such a declaration, such obligations must be interpreted in a
9
restrictive manner. In interpreting the cont ent of such obligations, weight shall be
1CR 2008/6, pp. 8-17 (Condorelli).
2
Ibid., pp. 8-9, paras. 2-5.
3Ibid., p. 9, para. 4. - 3 -
given first and foremost to the text of the decl4ration, together with the context and the
circumstances in which it was formulated.”
3. This, MadamPresident, is the seventh of the ILC’s Guiding Principles applicable to
unilateral declarations of States likely to create legal obligations, which relies carefully (and almost
exclusively) upon the Court’s jurisprudence on the subject, and in particular on its Judgments in the
Nuclear Tests cases, in which you held that “when States make statements by which their freedom
of action is to be limited, a restri ctive interpretation is called for” ( Nuclear Tests (Australia v.
France), Judgment, I.C.J. Reports 1974 , p.267, para.44; and Nuclear Tests (New Zealand v.
France), Judgment, I.C.J. Reports 1974 , p.473, para.47). And the Commission thus concludes:
“the interpreter must therefore proceed with gr eat caution in determining the legal effects of
unilateral declarations . . .” 5.
4. The bold interpretation which Professor Condorelli is asking you to make of the letter
6
from the French Minister for Foreign Affairs of 25July2006 cannot be described as displaying
“great caution”. It was by this letter that France consented to your jurisdiction in the present case.
However, it is apparently not superfluous to point out that it is this letter which constitutes the basis
of the Court’s jurisdiction ⎯ not Djibouti’s Application, which, in itself, was not capable of
producing any effect, as the Applicant specifically recognized: “the Republic of Djibouti seeks to
found the jurisdiction of the Court under Article38, paragraph5, of the Rules of Court and is
confident that the French Republic will consent to the jurisdiction of the Court to settle the present
dispute” 7.
5. As you know, Madam President, France respond ed to this confidence. But it did so, as it
was entitled to do, by carefully circumscribing its consent to the “dispute forming the subject of the
Application and strictly within the limits of the claims formulated by the Republic of Djibouti”. It
thus made its consent subject to a twof old condition: the Court has jurisdiction only to rule on the
10
subject of the Application ⎯ and, for it is “and” and not “or”, not “the subject of the Application as
International Law Commission, Report on the work of its fifty-eighth session, A/61/10, Guiding Principles
applicable to unilateral declarations of States capable of creating legal obligations, 7th Guiding Principle, p. 377.
5
Ibid., p. 377, para. (2) of the commentary on the 7th Guiding Principle.
6
MD, Ann. 2.
AD, p. 16, para. 20. - 4 -
defined by the claims” ⎯ but “on the subject of the Application and strictly within the limits of the
claims” thus circumscribed: in other words, those corresponding to the subject of the Application.
6. In this connection, it is strange that the Applicant accuses us of basing ourselves on the
definition of the subject of the dispute, as it described it in paragraph 2 of its Application, and that
it wishes to treat it on a par with the claims also , but incidentally, contained in the Application,
whereas it quotes both Article 40, paragraph 1, of the Statute of the Court, which refers only to the
“subject of the dispute”, and Article 38 of the Rules, which lays down that the author of an
application to the Court must indicate “the subject of the dispute” ⎯ this is paragraph 1 ⎯ and “the
precise nature of the claim” ⎯ which is paragraph 2. And the simple fact that these requirements
are included in separate provisions shows that they cannot be lumped together into an amorphous
mass 8.
7. So I do not see why Professor Condorelli felt able to latch onto an alleged “admission . . .
one absolutely clear and unreserved” 9 which allegedly stems from the point made by the Agent of
France that “there is no doubt that some of the claims relating to attacks on the immunities of the
10
President of the Republic of Djibouti or other leading figures are included in the Application” .
To be sure, some of the Applicant’s claims relate to this point but, as they do not fall within the
subject of the dispute with which the Application is concerned ⎯ as, once again, the Application
itself expressly defined it ⎯ they do not fall within the jurisdiction of the Court as consented to by
the French Republic. And, moreover, this is precisely what MsBelliard said in the passage
immediately after the one I have just read out ⎯ which is all that is quoted by my opponent; in
fact, she immediately added that these claims rela ting to immunities “are manifestly devoid of any
link with the subject of the dispute”; and, she c oncluded, this is not “what the French Republic
consented to” 11.
8CR 2008/6, p. 11, para. 8 (Condorelli).
9
CR 2008/6, p. 13, para. 11 (Condorelli).
10CR 2008/4, p. 20, para. 37 (Belliard).
11Ibid. - 5 -
11 8. Although the jurisdiction is defined by th e “interface” between the Application and the
consent given by the Respondent under Article 38, pa ragraph 5, of the Rules, once again, it is the
latter, the Respondent, who in fine fixes the scope of your jurisdiction.
9. Although he pays tribute (which I appreciate) to the “brilliant exercise in semantic and
lexicological gymnastics”, on which I supposedly embarked on the surreptitious (but patent)
12
alteration of the subject of the dispute between the Application and the Memorial ,
ProfessorCondorelli for once refrains from trying to outdo me in grandiloquence on this point ⎯
though where grandiloquence is concerned, he has no equal. He confines himself to asserting that I
had “forgotten to take two crucial factors into account”; an applicant, he said, is always at liberty
“to explain and supplement its Application” and, moreover, in this case it is a matter of mere
13
explanations and supplements . These terse observations call for three remarks.
10. Firstly, it seems to me impossible to accept that a State which has introduced an
application on the basis (insufficient by itself) of Article 38, paragraph 5, of the Rules, can “reserve
the right” to add to it subsequently ⎯ and above all after the Respondent’s acceptance has been
explicitly given “for in respect of the dispute fo rming the subject of the Application and strictly
within the limits of the claims formulated therei n”. In a case of this kind, the subject of the
application and the claims corresponding to that subject formulated in the application constitute the
“[strict] limits” of the jurisdiction of the Court and no modification, in any case no broadening of
either of them can be accepted.
11. Secondly, I note that Mr. Condorelli was careful to remain silent on the alteration in the
definition of the subject of the dispute between th e Application and the Memorial. On this point,
may I refer you, Members of the Court, not to the exercise in “gymnastics” (an activity I detest!),
but, to borrow an expression my opponent used about himself, to an exercise in “analysis in fine
detail”14 (which I have been working at) of the sema ntic shift made by Djibouti between one of
15
12 these documents and the other : claiming that the subject of the dispute is now not the refusal to
1CR 2008/6, p. 15, para. 16 (Condorelli).
1Ibid.
14
CR 2008/6, p. 33, para. 14 (Condorelli).
1CR 2008/4, pp. 30-32, paras. 14-17 (Pellet). - 6 -
execute the international letter rogatory in breach of a number of France’s international
obligations ⎯ which was stated in the Application, but the breach, in the Memorial this time, of the
refusal to execute the letter rogatory, AND the “related [breach]” of other international obligations
incumbent on France, the Republic of Djibouti does not say the same thing in two different ways, it
says something else ⎯ and, in so doing, is clearly seeking to extend the jurisdiction of the Court
beyond the consent given by France.
12. Third and last, the position of the Permanent Court in the Phosphates in Morocco relied
16
upon by ProfessorCondorelli is of no help to the opposing Party: if a State which seises the
Court is obviously always at liberty to clarify its position (in the two senses of the term: either
because it explains the meaning of it, or because it li mits the subject of its claims), the fact remains
that, in the case before us, as I have shown, we find ourselves in neither of these scenarios:
notwithstanding the strict limitations France has placed on its consent to the jurisdiction of your
distinguished Court, Djibouti has indeed proceeded to broaden that jurisdiction in its Memorial
then in the oral pleadings.
13. This conclusion clearly also applies a fortiori to Djibouti’s claims relating to facts
subsequent to the Application. Those claims do not concern and cannot c oncern “matters arising
directly out of the question which is the subject -matter of the Application”, to borrow a quotation
Mr. Condorelli is fond of 17, but precisely, questions which lie out side this subject matter. On the
other hand, here too, the Judgment of the Permanent Court in 1936 is utterly relevant: it shows,
beyond any doubt, that when a State seeks to limit the jurisdiction of the Court ratione temporis
(and the limitation resulting from the letter from the Minister for Foreign Affairs of 25 July 2006 is
a general one: materiae as well as temporis), such a limitation must be made to produce all its
effects. It is perhaps not superfluous to add that it was also in this 1938Judgment that the
Permanent Court considered that, in cases of doubt a bout the extension of the consent given to its
13 jurisdiction, one should “resort to a restrictive interpretation” ( Phosphates in Morocco, Judgment,
16
CR 2008/6, p. 15, para.16 (Condorelli, quoting Phosphates in Morocco, Judgment, 1938, P.C.I.J., SeriesA/B,
No. 74, p. 21).
17CR 2008/1, p. 32, para. 25; or CR 2008/6, p. 16, para. 19 (Condorelli, qFisheries Jurisdiction (Federal
Republic of Germany v. Iceland), Merits, Judgment, I.C.J. Reports 1974, p. 203, para. 72). - 7 -
1938, P.C.I.J., SeriesA/B, No.74 , p.32; see also Factory at Chorzów, Ju risdiction, Judgment
No. 8, 1927, P.C.I.J., Series A, No. 9, p. 32).
14. In the event, you probably do not need to follow this recommendation, Members of the
Court: there is no need for you to interpret (restri ctively) the acceptance of your jurisdiction, all
you have to do is read the letter of 25July2006: indisputably, you have jurisdiction to pass
judgment on Djibouti’s Application, but you only have jurisdiction “for the dispute forming the
subject of the Application”, (and not as more extensively defined in the Memorial) and “strictly
within the limits of the claims formulated therein” ⎯ and not in the Memorial, or at the close of the
oral pleadings. And this brings me, MadamPres ident, to examine those submissions, not in the
light of your jurisdiction in the narrow sense, but of what might be termed your “capacity” to
uphold Djibouti’s final claims in their most recent formulation.
II. The Applicant’s submissions
15. While the Court cannot uphold its jurisdiction with respect to the latter claims, it
indisputably has jurisdiction to rule on the non-execution by the French governmental and judicial
authorities of the international letter rogatory i ssued by the investigating judge of the Djibouti
Tribunal de grande instance on 3November2004. According to the Application, this constitutes
the very subject of the dispute put before the Court.
16. MadamPresident, it is clear from what I have just said that Djibouti was entitled to
“explain” the scope of the claims presented in its Application and falling within its subject-matter,
either to clarify them or to limit them. Preci sely the opposite has occurred: its new submissions
are particularly complicated (and, it must be ac knowledged, not very clear) and they are based on
an undeniable extension of the Court’s jurisdiction, as compared with the subject of the Application
to which France gave its consent. Moreover, certain of the methods of execution of the
submissions made by the Applicant cannot be upheld by the Court.
17. To try to find our bearings in the complicated structure of Djibouti’s submissions, I will
distinguish between those concerning the refusal by France to execute the international letter
14 rogatory of 3 November 2004 and those linked to the alleged attacks on the immunity or dignity of
certain Djiboutian officials. - 8 -
A. The consequences of the refusal to execute the letter rogatory
18. While the Court cannot uphold its jurisdiction with respect to the latter claims— those
concerning immunity— it indisputably has jurisdiction to rule on the non-execution of the
international letter rogatory of 3 November 2004. According to the Application, this constitutes the
very subject of the dispute and gives rise to the cl aims indicated in it under the letters (c), (d)
and (h)(i); and mutatis mutandis these claims are to be found as submissions 1 and 5 in Djibouti’s
Memorial. And the dim light which emerges from paragraph1 of the final submissions of the
Republic of Djibouti does not actually constitute an obstacle to you ruling on that claim (by which
the Applicant requests you to adjudge “that the Fr ench Republic has violated its obligations under
the 1986 Convention” 18 by not executing the letter rogatory): the amphigoric clarification does not
really facilitate an understanding of what Djibouti actually expects from the Court, but concerns the
grounds on which, according to the Applicant, yo ur decision could be based and not the operative
paragraph itself. Thus, other than the fact that this claim is, of course, in our view unfounded,
whatever the grounds relied upon, it does not, at least, raise any problems of the jurisdiction or the
“capacity” of the Court to rule on it.
19. The same cannot be said of claim included as paragraph2 of the final submissions. It
takes the form of alternatives, and I believe it is of interest to re-read it:
“The Republic of Djibouti requests the Court to adjudge and declare:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2. That the French Republic shall immediately after the delivery of the Judgment by
the Court:
(i) transmit the “Borrel file” in its entirety to the Republic of Djibouti;
(ii) in the alternative, transmit the “Borrel file” to the Republic of Djibouti
19
within the terms and conditions determined by the Court” .
15 Our objections to these alternative submissions are fairly numerous.
20. First, we do not dispute that the Court can, in certain circumstances, declare that the State
responsible must take certain measures in order to fulfil the primary or secondary obligations the
Court has found to be violated in its judgment. Ho wever, in each of the cases in which it has acted
18
CR 2008/6, p. 64, para. 15. 1 (Doualeh).
19
Ibid., para. 2. - 9 -
in this way, the Court has refrained from enjoin ing the States as to the precise manner in which to
proceed 20. And the Papamichalopoulos Judgment of the European Court of Human Rights, which
Mr. van denBiesen cited as a precedent (t he only one, moreover) to the contrary 21is, in reality, a
counter-example; it fully confirms that restrained approach. Contrary to what was suggested by
our opponent, the alleged order of restitution addressed to the respondent State in that case was
only one of the solutions envisaged by the Strasbourg court, which, moreover, declared that
“failing such restitution, the respondent State is to pay the applicants, within six months,
5,551,000,000 (five thousand five hundred and fifty-one million) drachmas in respect of pecuniary
22
damage” . In reality, it goes much further in respect ing the State’s own capacity to execute the
decision of an international court than the Johnston Judgment which I cited on Friday 23. To quote
the very clear terms used by the European Court of Human Rights in yet another judgment, which
reflects its consistent jurisprudence:
“Subject to monitoring by the Committee of Ministers, the respondent State
remains free to choose the means by which it will discharge its legal obligation under
Article 46 of the Convention, provided th at such means are compatible with the
24
conclusions set out in the Court's judgment” .
If the Court were to opt for restitution, it is self-evi dent, to my mind, that it would have to leave it
to the French Republic to decide on the methods, in the same way as the European Court does in
16 what is, however, a particularly interdependent regional context. And I note, in passing, that
25
Mr. van den Biesen indicated the agreement of the applicant State on this point .
21. But our very firm conviction is that the Court will not consider itself to be in a position to
order such restitution ( restitutio in integrum), not, I repeat, because, in some abstract and general
manner, you would be prevented from indicating that restitution is necessary (providing the method
2See CR 2008/5, pp. 57-58, paras. 11-12 (Pellet).
2CR 2008/6, pp. 56-57, para. 8 (van den Biesen).
22
31 Oct. 1995, Papamichalopoulos v. Greece , RepA330-B, Operative Paragraph3; see also pp.58-59,
par3.4; available at: http://cmiskp.echr.coe.int/tkp197 /view.asp?item=2&portal=hbkm&action=html&highlight=
Papamichalopoulos&sessionid=5014436&skin=hudoc-fr.
23
See CR2008/5, pp.57-58, para.12 (Pel let citing E.C.H.R., 18Dec.1986, Application no.9697, SeriesA,
no.12, par.7; also available on: http://cmiskp. echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=
html&highlight=Johnston&sessionid=5015581&skin=hudoc-fr).
213 July 2000, Scozzari and Giunta v. Italy , Applications nos. 39221/98 and 41963/98, Rep. 2000-VIII,
par.249. See also Grand Chamber, 12May2005, Ocalan v. Turkey, Application no.46221/ 99, Rep.2005-IV, or
17 January 2008, Abbasov v. Azerbaijan, Application no. 24271/05.
2CR 2008/6, p. 57, para. 9 (van den Biesen). - 10 -
was left to the discretion of the State responsible for a violation), but because in the present
instance, in view of the circumstances of the case, you would be unable to take such a decision in
full knowledge of the facts. The Applicant itself has said, Madam President, “the Court is not the
French Republic” 26. That is not contemptuous; it is a statement of fact, but one that is not without
legal implications: France (in any case France’s judiciary and, more exactly, the investigating
judge at the Paris Tribunal de grande instance, who for the past five years has been in charge of the
investigation opened over eleven years ago) is in possession of all the elements of the Borrel file
which, back in 2006, amounted to 35 volumes, probably more since then. And, it was in the light
of the whole of that file that Mrs.Clément deci ded that handing it over to the Djiboutian judicial
authorities would be contrary to the essential interests of France and would constitute “an abuse of
process aimed solely at ascertaining the contents of a file which includes, amongst other things,
documents implicating the Djibouti State Prosecuto r in another investiga tion being conducted at
27
Versailles” . And, Members of the Court, on this point, I take the liberty of referring you to the
Soit Transmis of 8 February 2006, included in Annex X III of the short judges’ file which we have
prepared.
22. The French governmental authorities invoked the first of those reasons; but that does not
mean that the second could not equally justify France’s refusal of the international letter
28
17 rogatory — after all, abuse or violation of process is a notion accepted in international law and it
is not impossible that other legally valid reasons , both with respect to the 1986 Convention and the
general principles of international law, could equally support France’s position.
23. Because fundamentally, MadamPresident, for what does the Applicant really hold the
FrenchRepublic responsible? It is fairly easy to understand thanks, I admit, to the confusion
between the conclusions and the grounds which results from its first submission. First, it holds
France responsible for:
26Ibid., p. 57, para. 11.
27Soit Transmis, Order of 8 Feb. 2005, CMF, Ann. XXI.
28
See, inter alia, Application of the Convention on the Preventi on and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro), Judgm ent, I.C.J. Reports 1996, p. 622, para. 44 (a contrario). See
also for example: J.E.S.Fawcett, Détournement de pouvoir by International Organizations , B.Y.B.I.L., 1957,
pp.311-317; or C.F.Amerasinghe, The Law of the International Civil Service (as Applied by International
Administrative Tribunals), Clarendon Press, Oxford, 1994, 2nded., vol.II , p.31. See also UNAT., Judgment no.297,
Panis, 1982; for the ILOAT, Judgments no. 38, Reynolds v. FAO., no. 248, Nowakowski v. WMO, no. 447, Quiñones v.
PAHO/WHO. - 11 -
⎯ “not acting upon its undertaking of 27 January 2005”. But that (incidentally, purely fictitious)
undertaking was, if it is interpreted as consent to transmit the Borrel file, clearly contrary to the
very terms of the Convention, of which Djibouti says that it seeks (and only seeks) the
application, as ProfessorAscensio will demonstrate shortly. However, even if we were to
accept that this letter (whose author declared that the investigating judge responsible for the
case “alone” had jurisdiction) expressed an undertaking by France— which it did not, you
could “enjoin” France to comply with it, only if there was no legal ground that justified not
doing so under international law. It is difficult to see how you could be sure of that in view of
the information currently available to you, and when both Parties are, just for once, in complete
agreement on one point: the Application which Djibouti submitted to the Court does not
concern the Borrel case. In that spirit, the Applicant has, moreover, not once requested or
suggested that France should hand the relevant file over to the Court (in which regard I venture
to note respectfully that it is not the Court’s f unction to consider a criminal case and it is, in
any event, probably not very well equipped to examine such a case).
⎯ “In the alternative”, the Republic of Djibouti prot ests, firstly, that France did not perform “its
obligation [once again that of executing the letter rogatory of 2004] pursuant to Article 1 of the
aforementioned Convention”. But Article1, wh ich refers to all the “provisions of this
Convention”, is not in itself sufficient, and one can only wonder which article(s) (singular or
plural) the Respondent is said by Djibouti to have violated: it may be Article 2 (which allows
18
for the refusal of mutual assistance) or Article 17 (which stipulates that reasons must be given
for any refusal). In other words, the violation would concern a failure to notify or to provide
reasons. Yet, to the best of my knowledge, ther e is no legal system in which a failure to notify
or to give reasons would lead ipso facto to an obligation to perform in such a case.
⎯ The same reasoning applies to the submission in the further alternative: if the refusal to
execute the letter rogatory notified by the le tter of 31May2005— the refusal itself— was
wrongful, it could only be so because the reason provided in the letter was either insufficient or
disputable, but the consequence of that coul d only be the finding that it was wrongful and,
possibly, an obligation on France to indicate its reasons in greater conformity with the
Convention. - 12 -
24. Moreover, if the Court were to address an order to France to transmit the Borrel file to
the Republic of Djibouti, that would not in any way constitute a return to the status quo ante . In
this respect, the Yerodia case is not a precedent at all. In that case, the Court could order the
cancellation of the arrest warrant as, before it w as issued— before the warrant was issued — the
person concerned had not been exposed to the threat of such a warrant being implemented. In the
present case, however, it would imply nothing less than “re-establishing” a situation which had
never existed previously: the Republic of D jibouti did not lose possession of the file by the
allegedly wrongful conduct of France; it never had the file in its possession. Under cover of
restitution, restitutio in integrum, the Applicant is not seeking a return to the status quo ante at all;
it is, I would say, an order of “back to the future” that it would like you to issue. Incidentally, in
the Arrest Warrant case, all that was at issue was the withdrawal of an existing document, not a
active measure, such as the one requested by Djibouti. That does not correspond to the very widely
acknowledged definition of restitution in the event of responsibility for an internationally wrongful
act, a definition reflected by Article35 of the ILC’s Articles on State Responsibility: “A State
19 responsible for an internationally wrongful act is un der an obligation to make restitution, that is, to
29
re-establish the situation which existed before the wrongful act was committed . . .”
25. Once again, MadamPresident, the order that the Republic of Djibouti requests you to
address to France would not in the slightest way re-establish a situation which existed before the
refusal of the letter rogatory was decided, but a situation which, according to Djibouti, should exist.
Such a request, completely beyond the ordinary boundaries of the law, does not fall within any of
the known “headings” of reparation under interna tional law. We do not believe that you can
accede to it.
26. And the fact that the Applicant requests you, “in the alternative”, to order France to
“transmit the ‘Borrel file’ to the Republic of D jibouti within the terms and conditions determined
30
by the Court ” changes nothing whatever.
29
Emphasis added.
3CR 2008/6, p. 64, Submissions 2. (ii) (Doualeh). - 13 -
27. I can understand that Judge Bennouna displayed some curiosity in this respect and asked
the Applicant for clarification of what it meant by this 31. I do not know whether he was satisfied
32
with Djibouti’s reply , but I must say that it did not satisfy us. According to Mr. van den Biesen:
⎯ it could mean that the Court would indicate that France must transmit the “Borrel file” “by
means of its own choosing” 33; but, as we have seen, it could not happen in any other way; that
is, if I may say so, the absolute minimum formul a in international law when nothing stands in
the way of an order, contrary to what is manifestly the case in the present instance;
⎯ the Court could also, Mr. van den Biesen tells us, set a deadline for the handover of the file —
with or without a deadline, the problems to whic h I have just referred remain unresolved; or
indeed:
⎯ “la Cour pourrait décider d’exclure les deux pages dont j’ai déjà parlé [à savoir deux pages qui
étaient officiellement couvertes par le secret-défense et qui ont été déclassifiées] du dossier que
34
la France serait appelée à transmettre” .
28. Professor Ascensio will return shortly to the issue of the declassified documents (which
20
concern a lot more than two pages). But, and I repeat this, there is more to the issue than just that:
those documents are merely a part of a whole; and it is the whole of the file that is of a sufficiently
sensitive nature for the investigati ng judge to have decided that handing it over would be contrary
to the essential interests of France— if only because it involves the disclosure not just of
declassified documents — and declassified does not mean public under French law — but also the
disclosure of other documents which are classified as defence secrets. Consequently whether it be
as the main claim or as its (still rather obscure) “alternative”, the second submission of the
Republic of Djibouti cannot be accepted by the Court.
31
See CR 2008/5, pp. 63-64.
32
See CR 2008/6, p. 57, para. 10 (van den Biesen).
3Ibid.
3Ibid. - 14 -
B. The consequences of alleged attacks on th e immunity and dignity of certain Djiboutian
officials
29. I will address much more rapidly the consequences which Djibouti would like you to
draw from the alleged attacks on the immunity and dignity of certain Djiboutian officials—
though, fundamentally, the Court lacks the jurisdiction to entertain them.
30. By its third, fourth, sixth and seventh submissions, the Applicant seeks to obtain from the
Court a declaratory finding that France vi olated its obligations in this respect 35. In principle,
nothing stands in the way of the Court acceding to such requests (which does not mean, of course,
that we acknowledge their validity). Nevertheless, I cannot resist the temptation, Members of the
Court, of drawing your attention, to the, sha ll we say, disconcerting submission by which Djibouti
requests you to establish that France violated its obl igations “by attempting to repeat”, in 2007, the
attack which the 2005 invitation to testify supposedly constituted on the immunities, honour and
36
dignity of PresidentGuelleh ... I take note of that and will return to it at the end of the
afternoon.
31. Without it being necessary to repeat what I have previously said about the limits which
must apply to orders which the Court might address to States— which is in part applicable to
submissions number 5 and 8 — they warrant a few specific comments.
21 32. In the first of these (the fifth submissi on), Djibouti requests the Court to adjudge and
declare “that the French Republic shall immediately after the delivery of the Judgment by the Court
withdraw the witness summons dated 17 May 2005 and declare it null and void” 37. As I told you
38
last Friday , and as I will have the occasion to repeat later on, that “summons” is null and void and
has, in any case, been replaced by the invitation to testify of 14 February 2007, whose validity the
Applicant does not dispute, and in respect of which it does not claim (except in a rather convoluted
manner in its third submission, which I just men tioned) that it caused prejudice to the immunity
enjoyed by the Djiboutian Head of State. There is thus no need for the Court to rule
on this
request, which is completely groundless.
35CR 2008/6, p. 65 (Doualeh).
36
CR 2008/6, p. 65, submission 3 (ii) (Doualeh).
37
Ibid, submission 5.
38CR 2008/4, pp. 36-37, para. 35; p. 61, para. 18. - 15 -
33. Very much in the alternative, should you, nevertheless, Madam President and Members
of the Court, consider that the procedural act of 2005 caused the slightest prejudice to the dignity,
honour or dignity of PresidentGuelleh, you would have to find that the clarifications made by
39
several official French authorities constitute appropriate reparation by way of satisfaction. On
this point, Mr. van den Biesen feigned to wonder: “Mais dans ce cas, la question se pose de savoir
quel besoin il y aurait eu —en février2007—, quel besoin il aurait eu, donc, d’un «judge’s
retraction», et ce que ces excuses auraient eu pour but de réparer?” 40. The answer is simple:
whereas, according to the French Republic, th e “summons” (without the slightest threat of any
form of compulsion) could not cause any prejudice to the immunity or dignity of President Guelleh,
it was nonetheless contrary to the provisions of Ar ticle656 of the Code of Criminal Procedure.
And it was that irregularity which led to the (very formal) retraction in question, which,
consequently, also constitutes satisfaction for the Head of State of Djibouti.
34. As for the procedural acts concerning the other Djiboutian officials, which the Applicant
has “introduced” into the case — whereas they were in no way “related”, Djibouti has also
requested their cancellation. They are, as I will show later, perfectly valid and cannot prejudice the
immunities which these persons do not possess. But with respect to them, there is more than just
22 the lack of jurisdiction of the Court: until the A pplication was filed, those acts had not once been
challenged in terms of immunities, with the applicant State turning its attention to them only before
the Court, even though neither the Applicant nor the officials concerned had ever argued on that
basis previously. It must therefore be considered that no dispute exists in this respect — or perhaps
that the dispute has yet to come into existence.
35. As for the conclusions regarding the cessa tion of the allegedly wrongful conduct of the
French Republic and the “specific assurances a nd guarantees of non-repetitio n” which form the
subject of submissions number10 and 11 of th e Republic of Djibouti, I commented on them
39
See CMF, Fax message from the East and Central Africa Division to H.E. Mr.Rachad Farah, Ambassador of
the Republic of Djibouti to France, 19May 2005, Ann.XXIX;CMF, Statement of 18May 2005 by the spokesman of
the French Ministry of Foreign Affairs, Ann. XXX.
4CR 2008/6, p. 26, para. 25 (van den Biesen). - 16 -
extensively on Fridayand, as the counsel for the Applicant h as not returned to the issue, I have
nothing to add to (or to retract from, for that matter!) what I said then.
36. Just a brief word to sum up, if you permit, Madam President. Describing the position of
the French Republic on the subject of the invitati on to testify of 17 May 2005, Mr. van den Biesen
characterized it, to quote Shakespeare, as “Much ado about nothing”dmit that I cannot stop
myself from thinking the same thing about most of the claims which the Republic of Djibouti has
put to the Court. Originally, Djibouti submitted to the Court the technical question of the refusal to
execute the letter rogatory of 3November2004. France accepted your jurisdiction for that
purpose. Everything else, to use the expression dear to Mr.vandenBiesen 4, is just a
smokescreen.
37. That, MadamPresident, concludes my first presentation. I would be grateful if you
would kindly give the floor to Professor Ascensio.
Le PRESIDENT : Merci, Monsieur le professeur Pellet ; je donne la parole à
M. le professeur Ascensio.
AMSr.ENSIO:
23 THE ALLEGED VIOLATIONS OF THE TREATY OF FRIENDSHIP AND C O-OPERATION
OF 27JUNE 1977 AND OF THE C ONVENTION ON M UTUAL ASSISTANCE
INCRIMINAL M ATTERS OF 27 SEPTEMBER 1986
1. Madam President, Members of the Court, toda y it falls to me to reply to the arguments
submitted by the Applicant during its second round of pleadings regarding alleged violations of the
Treaty of Friendship and Co-operation of 27June 1977 and of the Convention on Mutual
Assistance in Criminal Matters of 27 September 1986. This being so, most of these pleadings will
be devoted to the 1986 Convention, and I will confine myself to a few preliminary comments about
the 1977 Treaty.
4CR 2008/5, pp. 59-60, para. 17 (Pellet).
42
CR 2008/6, p. 24, para. 22 (van den Biesen)..
4See CR 2008/1, p. 40, para. 24; p. 42, para. 29 and 30. - 17 -
2. Counsel for the Republic of Djibouti has ag ain maintained that the French Republic was
44
denying that the Treaty of Friendship and Co-operation of 1977 had any binding force . I
therefore have to repeat that the Treat y contains no definite legal obligation relating to mutual
assistance in criminal matters and that would require the transmission of the Borrel record. As for
the rest, the obligations embodied in the Treat y do not affect the present dispute, so it is
unnecessary for the Respondent to analyze them befo re the Court. The French Republic has said
nothing either more or less during the first round of pleadings or in the Counter-Memorial.
3. Moreover, at no time has counsel for the Republic of Djibouti gone back over the scope of
the 1977 Treaty. The limitation to matters other than those that concern us in the present dispute
arises from the preamble and holds good for all its provisions, including Articles5 and6. In
addition, as regards Article5, the expression “publ ic national organizations” obviously refers to
technical organizations specializing in foreign co-operation; it is not usual to describe the judicial
authority as an “organization”. As to the role of Article6, relating to the France-Djibouti
Co-operation Commission, it is a modest one, as I pointed out in the first round of pleadings,
incompatible with the startling effects that the Applicant intended to extract from it.
4. It is not without interest in this respect to note that the Republic of Djibouti’s counsel has
not gone further with his theory of an indirect violation of the 1977 Treaty by way of an alleged
24 “serious” violation of the 1986 Convention. It still see ms to us that this theory should be rejected
by the Court.
5. Now that these comments have been made, we should concentrate on the Convention on
Mutual Assistance in Criminal Matters of 27 September 1986. In order to respond to the comments
by the Republic of Djibouti I will go back to the pattern adopted for my pleadings in the first round,
distinguishing the Applicant’s main argument (I) from his subsidiary arguments (II).
I. The Applicant’s main argument concerning the alleged violation
of the 1986 Convention
6. Madam President, I listened attentively to the Applicant’s pleadings on Monday morning
and I am very much afraid that I have heard no analysis of Article 3 of the 1986 Convention.
44
CR 2008/6, p. 28, para. 3 (Condorelli). - 18 -
Neither have I heard Professor Condorelli dispute hi s admission that the procedure followed by the
French authorities when the requ est was made for transmission of the Borrel record was in
complete conformity with Article 3 of the Convention 45.
7. On the other hand, Maître van den Biesen did go back over what I said during the first
round of pleadings, and even challenged it categorically 46. He now claims that the words “ this is
47
the reality with which also the Applicant... have to live ” do not mean what they say but the
exact opposite, namely that the Applicant does not intend to live with this situation in French law.
He then embarked upon a quite original critical analysis regarding the application of French law by
the French authorities. This compels me to go back briefly over the internal procedure for
consideration of the request for transmission of the Borrel record and its importance from the
viewpoint of the French Republic’s international obligations.
8. According to Maître van den Biesen, the Republic of Djibouti had no way of knowing of
the existence or the status of the Soit Transmis by Sophie Clément, the investigating judge 48. He
then sought to cast doubt on the situation in French law at the time of the acts, citing the position of
25
the Paris State Prosecutor and certain passages in a circular from the Ministry of Justice of
April2004, as reproduced in a judgment of 19 October 2006 by the chambre d’instruction of the
49
Cour d’appel de Paris . This judgment concerns the pro ceedings opened following a complaint
by Mrs.Borrel for “statements seeking to exert pressure to influence the decision of a judicial
investigating authority or trial court” 50. These, therefore, are pr oceedings separate from the
consideration of the request for transmission of the Borrel record and separate from the
investigation proceedings before Mrs.Clément. This is in addition to an interpretation of
51
Article 694-2 of the Code of Criminal Procedur e that suits the Co-Agent of the Applicant . These
are the sole arguments by the Applicant concerning French law.
4CR 2008/2, p. 12, para. 8 (Condorelli).
4CR 2008/6, p. 39, para. 9 (van den Biesen).
47
CR 2008/2, p. 46, para. 57 (van den Biesen).
48
CR 2008/6, p. 39, para. 10 (van den Biesen).
4CMF, Ann. XI.
5CR 2008/4, p. 23, para. 44 (Belliard).
5CR 2008/6, p. 42, para. 19 (van den Biesen). - 19 -
9. It must be emphasized above all that ac cording to Article3, paragraph1, of the
1986Convention, international letters rogatory must be executed by the requested State “in
accordance with its law”. The case-law is also c overed by this provision, because it is for the
French courts to interpret French legislation.
10. The French Code of Criminal Procedure is perfectly clear as regards the issue that
concerns us. I refer here to certain points that al so appear in the Counter-Memorial. According to
Article 694-2 of the Code of Criminal Procedure, requests for mutual assistance shall be executed
by the State Prosecutor except “w here they require certain procedural acts which may only be
ordered or executed in the course of a preparatory investigation” 52. This is the case when the State
Prosecutor transmits the request to the investigating judge. The latter alone has the jurisdiction to
hand over copies of documents from his case file; this jurisdiction is derived from Articles81,
53
paragraph 2, and 82 of the C ode of Criminal Procedure . Article 81, which is the more important
one, is Annex XIX in your folder.
11. For this reason the investigating judge is competent to refuse to execute a request for
mutual assistance likely to damage the essential in terests of France. I remind counsel for the
54
26 Djiboutian Republic that this is not “my own interpretation” of French law , but the position of the
French Republic. The judgment by the Cour d’appel de Paris of 19 October 2006 annexed by the
French Republic to its Counter-Memorial confirms this analysis.
12. What is more, the Republic of Djibouti can not deny that the letter from M. Le Mesle of
1October 2004, reproduced in Annex 18 to its Memorial and also in your folder as Annex17,
expressly refers to the investigating judge in pro ceedings for consideration of requests for mutual
assistance. It is stated there in black and white that “the investigating judge responsible for the
case” “alone has the jurisdiction to hand over copies of the documents”.
13. It is true that Maître van den Biesen atte mpts to draw a dark veil over this key passage,
resorting to a most fallacious argument. It involv es linking again, and at the procedural level, the
two Djiboutian requests for transmission of the Bo rrel record. Although he admits that these
5CMF, Ann. XVII.
53
CMF, Ann. XVIII and Ann. XIX.
5CR 2008/6, p. 40, para. 15 (van den Biesen). - 20 -
55
requests are separate , he explains that nevertheless the second, the international letter rogatory of
3November 2004, should quite simply benefit fro m the proceedings when the first request, on
17 June 2004, was examined. He would then have had to do no more than complete the last stage,
the final acceptance of the request by the letter of 27 January 2005, obvi ously interpreted as the
56
Republic of Djibouti would wish .
14. Madam President, this is to attach very little importance to French law, and thereby to
Article 3 of the 1986 Convention, which refers to it! Faced with such a casual approach, I can only
repeat what I had said before about the two requ ests: what distinguishes them with respect to
procedure and what they have in common in terms of the merits must be emphasized 5.
15. Maître van den Biesen has certainly admitte d that the two requests were separate from
the point of view of procedure 58. Why then should the internal procedure for the international
letter rogatory refrain from following the same stages as for the first Djiboutian request? Why
should transmission by the investigating judge on the occasion of the first initiative amount to carte
27
blanche for the second, i.e., consideration of the international letter rogatory? Each request calls
for the procedure to be followed in its entirety, with all the stages prescribed by French law. One
would be annoyed with oneself for mentioning such obvious facts if not compelled to do so by the
Applicant.
16. The connection between the two requests is due solely to similarity as to the merits, i.e.,
as to the subject of the request. Two successive requests for the same subject, even for the same
purpose: this is what is “relevant in assisting us to better understanding the facts of the case”, to
59
adopt the phase used by Maître van den Biesen .
17. I now continue quickly with my list of the oddities revealed during the second round of
pleadings by Maître van den Biesen. He explains referring to conversations at the Palais de justice
in Paris between the Public Prosecutor of Djibouti and the Paris State Prosecutor in May 2004 as
5CR 2008/6, p. 38, paras. 4-5 (van den Biesen).
5CR 2008/6, p. 42-43, paras. 19-21 (van den Biesen).
57
CR 2008/4, p. 57, para. 45 (Ascensio).
5CR 2008/6, p. 38, paras. 4-5 (van den Biesen).
5CR 2008/6, p. 38, para. 5 (van den Biesen). - 21 -
“evidence of a clear intention”, although in fact he has not supplied any evidence of the content of
these conversations 60.
18. He alleges that Mr.Le Mesle stated in his letter of 1 October 2004 that the role of the
investigating judge is always limited to formal ch ecks, although that letter confines itself to saying
that in this case the first request was rejected because of the applicant State’s failure to comply
61
with formal requirements . There is no visible relationship betw een the fact that the investigating
judge alone has the jurisdiction to make a copy of the record, as stated in Article 81, paragraph 2,
of the Code of Criminal Procedure, and the fact th at he allegedly has to confine himself to formal
reviews.
19. He describes Mr.Le Mesle’s letter of 27 January 2005 as a “lettre d’engagement” 62,
although the content of the letter and its context clearly show that Mr.Le Mesle was at the
beginning of the proceedings, when he stated that he had asked “for all steps to be taken” to ensure
63
that a copy of the record of the investigation is transmitted .
20. Lastly, he mentions the judgment of the Court of 10 October 2002 in the case concerning
28
the Land and Maritime Boundary be tween Cameroon and Nigeria regarding the absence in
international law of a general obligation for States to keep themselves informed as to the situation
in internal law in other States 64. But that is not the issue. There is a specific legal obligation in
Article3, paragraph1, of the 1986 Convention, a provision which the Republic of Djibouti is
obviously trying hard to forget. It requires the re quested State to act in accordance with its law in
executing international letters rogatory. Consequently we cannot see how it can be criticized by the
applicant State for so doing.
6CR 2008/6, p. 42, para. 18 (van den Biesen).
61
CR 2008/6, p. 42, para. 19 (van den Biesen).
62
CR 2008/6, p. 42-43, para. 20 (van den Biesen).
6MD, Ann. 21.
6CR 2008/6, p. 43, para. 22 (van den Biesen). - 22 -
II. The Applicant’s subsidiary arguments concerning the alleged violation
of the 1986 Convention
21. Madam President, I now come to the Applicant’s subsidiary arguments. The legal debate
turns on the interpretation and implementation of Articles 2 and 17 of the Convention, namely the
grounds for refusing mutual assistance (A) and the obligation to give reasons (B).
A. The grounds for refusing mutual assistance
22. In order to respond to Professor Condor elli’s and Maître van den Biesen’s arguments
concerning the grounds for refusing mutual assistan ce, I will deal first of all with the general
interpretation of Article 2 (c) of the 1986 Convention, then with the grounds for refusing to
transmit the Borrel record.
1. General analysis of Article 2 (c)
23. With regard to Article 2 (c) of the 1986 Convention, the Republic of Djibouti’s counsel
was anxious to tell me that paragraphs 143 to 150 of the Djiboutian Memorial mentioned this
Article. I thank him for it, because this is correct. In turn I will only point out to him that this
passage dealt with the essential interests of the State as a ground for exoneration of responsibility 65,
while the French Republic maintains that it has committed no wrongful act.
29 24. But without doubt this is not a fundamental issue: which authority is authorized to define
what the essential interests of the State are under Article 2 (c) is more important. In this connection
the Applicant’s counsel still maintain s that the interpretation of this Article as it is, i.e., with the
expression “the requested State considers”, would le ad to the 1986 Convention being devoid of all
practical effect. This assertion is doubly wrong, in abstracto and in concreto.
25. In abstracto, it is not possible to agree with the analysis submitted by the Applicant’s
counsel regarding clauses of the type appearing in Article 2 (c) of the 1986 Convention. It must be
said that Professor Condorelli has a regrettable tendency to put words into my mouth, so as to
contradict me. He evokes the “utter arbitrariness” and “unbounded discretion”, caricaturing the
66 67
position of the French Republic , including attributing a “discreet approach” to it ! When the
taunt is exaggerated the reply obviously becomes easier; but it is no longer really a reply.
65
MD, p. 53, para. 142, and p. 55, para. 150.
6CR 2008/6, p. 32, para. 13 (Condorelli). - 23 -
26. First of all, the elements that the French Republic considered that it could include in the
file submitted to the Court are enough to show that transmission of the Borrel record was likely to
prejudice France’s essential interests. I will return to these elements in a moment. Taking a stand
on clauses of the type in Article 2 (c) would be really useful only where these elements would not
be enough to show that the French Republic had in no way violated the 1986 Convention.
27. Secondly, it is quite obvious that the provisions of a treaty must be interpreted and
implemented in good faith, in accordance with the la w of treaties. Where the French interpretation
differs from that set out by Professor Condorelli it is about the impression that the Applicant wishes
to make of good faith, combined for this occasion with reasonableness.
28. In his oral statement in the first round of pleadings, the Applicant asked the Court for
30 nothing less than to “ascertain that the reasons.. . to justify the refusal really do exist and are
68
serious” and even “ relevant” . This interpretation is the reason for the claims addressed to the
Court by the Republic of Djibouti, according to which it should take the place o
f the national
authorities in order to assess what the essential inter ests of the State are and to require France to
transmit the record. But Professor Pellet has already dealt with this issue, so I will not return to it.
29. On the other hand, I must reply to the comments made yesterday morning about
international jurisprudence relating to this issu e. The Applicant’s counsel again mentioned the
Court’s judgment in 1986 in the case concerning Military and Paramilitary Activities in and
69
against Nicaragua (Merits) . All the same his analysis, d espite its high quality, failed to
demonstrate what is not demonstrable, namely that the Court would treat this kind of provision as if
the words “the . . . State considers that” did not appear in it.
30. The Court very clearly contrasts in its dictum two types of clause, those that reserve the
exclusive right of interpretation to the State concer ned and those that do not. As an illustration of
the former it takes Article XXI of the General Agreement on Tariffs and Trade. The relevant
passage is as follows:
“That the Court has jurisdiction to dete rmine whether measures taken by one of
the Parties fall within such an exception, is also clear a contrario from the fact that the
67CR 2008/6, p. 32, para. 12 (Condorelli).
68
CR 2008/2, p. 24, para. 31 (Condorelli); the italics are ours.
69CR 2008/6, p. 33, para. 14 (Condorelli). - 24 -
text of Article XXI of the Treaty does not employ the wording which was already to
be found in Article XXI of the Gene ral Agreement on Tariffs and Trade.” ( I.C.J.
Reports 1986, p. 116, para. 222.)
31. Now an argument a contrario, Madam President, Members of the Court, is not exactly
the same thing as an argument suggesting a grad uation between reviews differing in strictness,
which was the position taken by Professor Condorelli. A contrario, if the Court has jurisdiction in
the one case, it means that it does not have jurisdiction in the other.
32. The Applicant’s counsel criticized me agai n for my presentation on the arbitral award in
70
the case concerning CMS v. Argentina . Contrary to what he asserts, and in accordance with what
I asserted, the CMS award can be clearly differentiated from the decision on responsibility adopted
on 3 October 2006 by an ICSID arbitral tribunal in the case concerning LG&E v. Argentina on the
31 legal issue before us. In the LG&E case, in paragraph 214 of the decision, which was exactly the
one cited by Professor Condorelli in the first round of pleadings, the arbitrators considered that a
review based on good faith would lead to a form of review indistinguishable in its extent from the
one they were carrying out in the present case, i. e., a review focused on a provision not expressly
specifying that it was for the State concerned to determine what its essential interests were.
33. On the other hand, in the CMS v. Argentina award, in paragraph374, the arbitrators
made a clear distinction between two types of situation: those in which it is possible to carry out a
review on the merits, which is the case where ther e is no clause reserving the exclusive right of
assessment to the State concerned, and the one in which they would have to content themselves
with considering whether the measure had been take n in good faith. Earlier the arbitrators were
expressly citing the Court’s dictum in its Nicaragua judgment of 1986, repeated in the case
concerning the Oil Platforms 71. Referring to the review on grounds of good faith,
72
ProfessorCondorelli spoke of a “review, at least in respect of good faith” . But whatever the
terms used, this position is quite different from th e exhaustive review that the Republic of Djibouti
was advocating during the first round of pleadings.
70
CR 2008/6, p. 33, para. 15 (Condorelli).
71
CMS Gas Transmission Company v. Argentine Republic , Award of 12 May 2005, para. 371
(www.worldbank.org/icsid).
7CR 2008/6, p. 33, para. 15 (Condorelli). - 25 -
34. As to the case concerning the Norwegian Loans, it seems to me pointless to repeat my
73
comments in the first round of pleadings , which remain perfectly valid, subject to the well-known
reservation of abuse of rights. I had restated that reservation in the first round, about lawful
74
grounds for refusal to afford mutual assistance .
35. After the approach in abstracto, we come to the approach in concreto of Article 2 (c) of
the 1986 Convention. In concreto, it is obvious that the Convention is very useful even in the case
of requests culminating in a refusal. The obligation to give grounds in Article 3 is fully applicable
and calls for implementation of internal procedure. By way of illustration, in the case before us the
obligation to give grounds has led to a decision by the French legal authority, in this case
32 investigating judge SophieClément, who knows the case in its entirety. This is an undeniable
guarantee for all parties affected by the request for mutual assistance.
36. In addition it is absurd to imply that France was abusing the possibility of exemption
offered by Article 2 (c). Refusals of mutual assistance are extremely rare in practice. In 2007, out
of a total of nearly a thousand foreign request s for mutual assistance France refused five, on
grounds such as those laid down in Article 2 (c) of the Convention on Mutual Assistance in
Criminal Matters of 27 September 1986. I will return a little later on to the content of the grounds
communicated to the applicant State, which w ill give me the opportunity to answer the
Judge Simma’s question.
37. Lastly, it must be made clear that requests to send a whole legal case file, as was the
situation with the Borrel record, are particularly rare. In the vast majority of cases, requests for
mutual assistance in fact relate to the transmission of documents or investigations by the authorities
requested duly specified in the request, which h as its origins in legal proceedings already well
advanced in the requesting State. In this respect, a nd in strictly statistical terms, the request by the
Djiboutian authorities is particularly original.
73
CR 2008/5, p. 13, para. 18 (Ascensio).
74
CR 2008/4, p. 53, para. 33 (Ascensio). - 26 -
2. The reasons for refusing to transmit the Borrel file
38. Madam President, we should now consider the reasons that led the French Republic to
refuse to transmit the Borrel file to the Republic of Djibouti. Those reasons were set out in the
Counter-Memorial of the French Republic and during the first round of oral argument. They also
appear in the Soit Transmis (order) issued by investig ating judge SophieClément on
8February2005, which forms AnnexXXI to the French Counter-Memorial. I shall therefore
confine myself to refuting the bizarre claims of counsel for the Applicant concerning the
declassified notes of the French Secret Services.
75
39. Mr. van den Biesen first claims that in her Soit Transmis of 8 February 2005 -- which
you will find reproduced in your dossier at A nnex XIII -- investigating judge SophieClément
33 relied on only the two pages of the declassified note to which he refers 76. That is quite simply
wrong. She explains very precisely that she ha d, on several “occasions” made a request to the
Ministries of the Interior and Defence and obtained the transmission of “documents”-- in the
plural -- “classified under defence secrecy”.
40. Mr. van den Biesen then explains that France could not rely on the 25 declassified Notes
which he failed to mention in his own first round of oral argument, because the French
Counter-Memorial made no reference to them 77. That too is quite simply wrong. The letter from
the Director of Criminal Affairs and Pardons at th e French Ministry of Justice to the Paris State
Prosecutor referring to those notes was specifically mentioned at paragraph3.56 of the
Counter-Memorial, and the relevant passage was reproduced in full at paragraph3.57.
Furthermore, the whole of the document was reproduced in the Annexes to the Counter-Memorial,
and is also included in your dossier at Annex XIV 7.
41. Mr.van den Biesen elaborates further that all of the opinions of the Consultative
Commission concerning the various requests for declassification ought to have been included in the
79
Annexes to the French Counter-Memorial . It is hard to see why. Note No.2005-01 of
75CMF, Ann. XXI.
76CR 2008/6, p. 47, para. 34.
77
Ibid.
78CMF, Ann. XV.
79CR 2008/6, p. 47, para. 34. - 27 -
27January2005 was annexed to the Counter-Memorial to illustrate the French declassification
procedure. The other opinions, meantime, were readily accessible: they are published in the
Official Journal of the French Republic and can also be accessed on the Internet, by consulting the
Légifrance site 80.
42. And, indeed, the French Republic is demonstrating this again today, since it has included
in the judges’ dossier the two opinions of th e Commission pertaining to the 25Notes which the
investigating judge responsible for the Borrel case had asked to be declassified. You will find
these at AnnexesXV and XVI of your dossier . The two Notes in question are Opinion
No. 2004-02 of 5 February 2004 and Opinion No. 2004-12 of 2 December 2004. The first Opinion
34 is in favour of declassifying tenNotes, tota lling 21pages, but does not express a view on two
additional Notes which had not been given a classification marking. The second Opinion approves
the declassification of three Notes from the DGSE, totalling four pages, and ten Notes from the
DPSD, totalling 26 pages.
43. Mr.van den Biesen, finally, reflects on the effects of declassification, as if declassified
material suddenly ceased to pose any problem in rega rd to the State’s essential interests. It must,
therefore, be pointed out, that declassification takes place at the request of a French judicial
authority; in no circumstances can the request emanate from a foreign authority. Moreover, the
scope of the decision to declassify is strictly a matter for the judge who requested declassification
and the relevant case file. The information transmitted to the judge is then protected by
investigative secrecy
44. It is also important to stress that the na ture of the information which those Notes contain
obviously does not change just because they have been declassified. Communicating them to a
foreign power is just as likely to prejudice th e essential interests of the nation as it was before,
because it was their content that led to the decision to classify them.
Madam President, I think it is time for the pause.
80
www.legifrance.gouv.fr. - 28 -
The PRESIDENT: Yes, it is a good time for th e pause. The sitting is adjourned for a few
minutes.
The Court adjourned from 4.25 p.m. to 4.40 p.m.
The PRESIDENT: Please be seated.
AMSr.ENSIO:
B. The obligation to state the reasons
45. Madam President, it is now time to turn to the obligation to state the reasons for refusing
mutual assistance, as set out in Article17 of the 1986Convention. I shall begin with a general
analysis of Article 17 (1) and then consider its application to this case (2).
35 1. General analysis of Article 17
46. Counsel for the Applicant has criticized what he considers to be the excessive importance
that France attaches to the position of Artic le 17 in the scheme of the 1986 Convention. But the
only argument he advances concerning the confusi on between Articles2 and 17 consists in citing
the context! Therefore, if it is the context thais of interest, the distance that separates the two
provisions must be taken into account, since it cannot be a matter of chance. Moreover, the
ordinary meaning of the terms used in those articles emphatically contradicts their interpretation by
the Republic of Djibouti, as does an analysis of the aim and purpose of the Treaty.
47. Professor Condorelli clearly did not greatly savour certain comments-- although there
was nothing untoward about them -- concerning the succi nct nature of Article 17, and the fact that
it does not go into great detail. Here again, the response was out of all proportion. The best answer
is probably to set out calmly for the Court the acual content of some of the refusals France has
given to requests for mutual assistance in crim inal matters. That brings me to answer
Judge Simma’s question.
81
CR 2008/6, p. 35, para. 18. - 29 -
48. Of the approximately one thousand request s for mutual assistance which it received in
2007, France refused five. Four of the requests that were refused came from the Ivory Coast.
Those refusals were notified to the requesting authorities simply by means of the following
statement: “[t]he ministry informs the Embassy th at, since these requests for mutual assistance are
capable of prejudicing the sovereignty and security of France, the French authorities cannot accede
82
to them” . I would add that the Franco-Ivorian Convention of 24 April 1961 includes provisions
similar to those laid down by Article2 (c) of the Franco-Djiboutian Convention on Mutual
Assistance.
49. The fifth example was the refusal France gave in answer to a Member State of the
European Union, in this case the United Kingdom. Th e legislation applicable in that case provides
for the same kind of derogations and the same obligation to give the reasons as appears in
Articles2 and 17 of the Convention of 27 September 1986. The French reply merely states that:
36 “it will not be possible to accede to this request which is capable of prejudicing ordre public, as it
involves journalists whose statements have already been taken in the course of the French
proceedings and transmitted to your services in response to a letter rogatory” 83.
50. In that connection, and seeking to give a further response to Judge Simma’s question, it
may be pointed out that the refusal was worded in this way, even though the provisions of the
Convention of 20 April 1959, of the Joint Action of 29 June 1998 and the relevant provisions of the
Convention on Mutual Assistance in Criminal Matters between the Member States of the European
Union, concluded on 29May2000, were applicab le. Bearing in mind the references which the
Applicant has made to the Joint Action of 29June1998, it must be stressed that, like the
Convention of 29May2000 and the Conventio n implementing the Schengen Agreement of
19 June 1990, that Joint Action does not interpret the Convention of 20 April 1959; it supplements
it, and does so in the context of the relations between the Member States of the European Union
only. It is, in any event, clear that none of these texts may be used to interpret the
8Note Verbale of 16 May 2007 sent by the Ministry for Fore ign Affairs, Directorate for French nationals abroad
and foreign nationals in France, Departme nt for civil matters and mutual assistance, to the Embassy of the Republic of
Ivory Coast in Paris, and Note Verbal e of 23 May 2007 sent by the French Embassy in Ivory Coast to the Ivorian
Ministry for Foreign Affairs, Protocol Department.
8Letter sent on 29 Oct.2007 by the Deputy-Director for specialist criminal ju stice, on behalf of the Director of
Criminal Affairs and Pardons at the Ministry of Justice to Lord Scott Baker, Royal Coroner. - 30 -
Franco-Djiboutian Convention of 27September1986, since one of the parties to that bilateral
convention is not a member of the European Union.
51. Finally, looking at it from the other side, th e French authorities have already, in the past,
met with refusals based on the essential interests of other States. For instance, to give just one
example, Togo responded to France with just such a refusal, asserting that “certain of the
communications which you have requested are capab le of prejudicing the sovereignty, security or
ordre public of the Togolese State” 84.
52. All of the documentation which we have ci ted is, of course, available to the Court.
However, the fact that they originate in judicial investigations that are ongoing, and, therefore, are
not of a public nature, means that we shall have to render them anonymous before transmitting
them. Moreover, if the Court were to accede to the Applicant’s request to be able to submit written
submissions concerning France’s response to Judge Simma’s question on completion of the oral
procedure, we would wish to see those submissions a nd to be able to reply, if we consider that
appropriate.
37 2. The application of Article 17 in connection with the refusal to transmit the Borrel file
53. Following that general analysis of Article 17, I come now to its application in connection
with the refusal to transmit the Borrel file. In both its Counter-Memorial and the first round of oral
argument, the French Republic produced an initial item of important evidence, namely the letter of
31 May 2005 sent by the Director of Criminal Affairs and Pardons at the French Ministry of Justice
85
to the Ambassador of Djibouti in France . The Director mentioned Article 2 (c) of the Convention
on Mutual Assistance of 17 September 1986 and the decision of the investigating judge responsible
for the matter. Furthermore, and in accordance with the principle that less is more, in order to fulfil
the obligation to give the reasons, it is absolu tely unnecessary to do more than cite one reason
which is in itself sufficient, even though further reasons may exist.
54. Madam President, pointing that out enables me to move on to answer the question which
you put to the French Republic at the end of the first round of oral argument.
84
Letter sent on 29 Sept.2003 by the snior investigating judge at the LomTribunal de grande instance to
Mr. Jacques Gazeaux, investigating judge at the Paris Tribunal de grande instance.
8CMF, Ann. V. - 31 -
55. As we stated in our oral pleadings, it is not our practice to send registered letters with
acknowledgement of receipt to our foreign counterparts. We are, therefore, unable to provide proof
that the Ambassador of Djibouti in France received the letter of 31 May 2005.
56. As soon as we learnt, on 22 November 2007, that the Applicant disputed having received
that letter, we looked for evidence confirming its dispatch. Our efforts met with only partial
success. We traced a dispatch note, for information, of a copy of that letter to the French
Ambassador in Djibouti, which in any event confirms its existence. We have that dispatch note at
the Court’s disposal. It is possible that the letter of 31 May 2005 was transmitted through political
channels.
57. In any event, even if that letter did not reach the addressee, during its oral pleadings, the
French Republic cited a wealth of evidence de monstrating that the Republic of Djibouti was
86
perfectly well informed of the reasons for the refusal to transmit the file .
38 58. Not only are the answers given by the Republic of Djibouti during the second round of
oral argument unconvincing, they bring to light a new fact. In relation to the citation, in the
Memorial, of the letter from investigating judge SophieClément, counsel for the Republic of
Djibouti said: “we were wrong in assuming that there was such a letter” 87.
59. Had we only known sooner! On reading the Application and then the Memorial, the
French Republic could only assume, in all good faith, that the Republic of Djibouti was perfectly
informed of the reasons for refusing mutual assistance, particularly since it used inverted commas,
as if it were actually citing a letter from the investigating judge. That understanding of the
Memorial was plainly set out in the French Counter-Memorial, which was submitted in
June 2007 88. But the Republic of Djibouti did not respond, not even when it sent a large bundle of
additional documents to the Court’s Registry in November 2007. Nor did it utter a word during the
first round of oral argument. We only found out during the second round of oral argument, in
response to a question by the Court.
86CR 2008/5, pp. 20-21, paras. 51-54 (Ascensio).
87
CR 2008/6, p. 46, para. 31 (van den Biesen).
88CMF, p. 38, para. 3.73. - 32 -
60. Whatever the circumstances relied on, th e conduct of the Republic of Djibouti clearly
indicate ― or at least gave the French Republic to believe-- that the Djiboutian authorities were
apprised of the reason mutual assistance had been refused. The Djiboutian authorities failed to
enlighten the French Republic when they had the opportunity to do so. They allowed the dispute to
march on, in a manner prejudicial to the French Republic, which was unable to change its legal
stance vis-à-vis the Republic of Djibouti.
61. More generally, going back as far as 2005, the Republic of Djibouti has never
approached the French authorities for clarificati on of the reasons for the refusal, clearly proving
that it was aware of them.
62. Moreover, during the oral arguments before the Court, the French Republic informed the
Republic of Djibouti at length of the reasons why it had refused to transmit the Borrel file,
doubtless doing far more than Article17 of the 198 6Convention on Mutual Assistance requires.
Pursuant to the Court’s case law in the case of Northern Cameroons (Cameroon v. United
Kingdom), Preliminary Objections, Judgment (I.C.J. Reports 1963 , p.38, para.58) and the
Nuclear Tests (Australia v. France), Judgment (I.C.J. Reports 1974 , p.271, para.58), it must be
39 established that, in any event, the dispute is now devoid of purpose in so far as it concerns the
obligation to give the reasons for refusing mutual assistance. A ruling on that point is no longer
necessary.
*
* *
63. Madam President, Members of the Court, I must again conclude by reminding the Court
of the main points on which the French Republic has focused all of its pleadings concerning the
alleged violations of the Treaty of Friends hip and Co-operation of 27June1977 and the
Convention on Mutual Assistance in Criminal Matters of 27 September 1986:
(i) the French Republic did not violate any legal obligation arising out of the 1977 Treaty of
Friendship and Co-operation; - 33 -
(ii)we cannot accept that the 1977Treaty of Friendship and Co-operation was violated
because of an alleged “serious” breach of the Convention on Mutual Assistance in
Criminal Matters of 27 September 1986;
(iii) nor was the 1986Convention on Mutual Assi stance in Criminal Matters violated by the
refusal to act upon the alleged undertaking consisting in the letter of 27January2005,
since the internal procedure was under way at that time;
(iv) the reasons for refusing to transmit to th e Republic of Djibouti a copy of the Borrel file
were given, in accordance with the provisions of the 1986Convention on Mutual
Assistance in Criminal Matters, and notably Article 2 thereof;
(v) France did not violate the obligation to give the reasons for refusing mutual assistance
pursuant to Article 17 of the Convention;
(vi) in the alternative, a violation of the igation to give the reasons for refusing mutual
assistance does not constitute a violation of Article 1 of the Convention;
(vii) in the further alternative, the element of the dispute concerning the obligation to give the
reasons for refusing mutual assistance has become devoid of purpose;
40 (viii)finally, as ProfessorPellet has demonstrated, a violation of the 1986Convention,
whatever its cause, certainly cannot give rise to an obligation to transmit the file in whole
or in part.
Madam President, Members of the Court, I am most grateful for your attention.
Madam President, may I ask you to give the floor to Professor Pellet once more.
The PRESIDENT: Thank you Professor Ascensio. I now give the floor to Professor Pellet.
PELr.LET:
T HE ALLEGED ATTACKS ON THE IMMUNITIES AND DIGNITY OF CERTAIN DJIBOUTIAN
OFFICIALS
1. Thank you very much. Madam President, Members of the Court, I now turn to the second
aspect of the case pleaded by the Republic of Djibouti ⎯ an aspect which is “off the point” or
rather “outside the subject”, if you will, because, as I showed early this afternoon, the Court does - 34 -
89
not have jurisdiction over it ⎯ even if the other Party has dwelt at length on it . We will devote
less time to it ⎯ not only because it obviously lies “outside the subject”, which means that we will
only deal with it substa ntively “in the alternative” (I am employing this expression because
Mr.vandenBiesen criticizes me for not using it enough...) 90⎯ but also because I do not think
that much remains to be said about it at this very advanced stage in the proceedings.
2. In accordance with the practice of both Parties, I shall again draw a distinction between
the alleged attacks on, first, the immunity, honour and dignity of the Djiboutian Head of State(I)
and, second, on the person, freedom and dignity of persons alleged to be internationally
protected (II).
41 I. The alleged attacks on the immunity, honour and dignity of
the Djiboutian Head of State
3. In respect of the alleged attacks on the immunity of the President of the Republic of
Djibouti, I shall, unsurprisingly, in turn a ddress the issues raised by the “witness summons” of
17 May 2005 and those in respect of the invitation to testify dated 14 February 2007.
A. The “witness summons” of 17 May 2005
4. In paragraph8 of his statement on this part (or “non-part”...) of the case,
MaîtrevandenBiesen recapitulates the various characteristics of a witness summons under
Article101 of the French Code of Criminal Procedure. At the end of his list ⎯ which appears
91
correct, even if exceeding the scope of Article 101 itself, which does not have so much to say , my
opponent says: «e) l’application de la procédure régie par l’article 101 est garantie, aux termes de
92
son paragraphe 3, à peine de recours à la force publique, tel que prévu par l’article 109» .
5. But what is truly remarkable is that, on ce again, he takes absolutely no account of this
latter element when, immediately after going through this analysis, he states: «Ces éléments se
retrouvent tous dans la convocation à témoin qui a effectivement été envoyée ⎯ par télécopie ⎯
au président de l’Etat demandeur le 17mai 2005, ainsi que dans les deux autres convocations
89See CR 2008/6, pp. 18-27 (van den Biesen) and pp. 50-54 (Condorelli).
90
Ibid., p. 46, para. 30.
91
See CMF, Ann. XXV.
92See CR 2008/6, p. 19, para. 8 (van den Biesen). - 35 -
93
versées au dossier de la présente affaire» . That is simply not true, Madam President! The
document addressed to President Guelleh mak es absolutely no reference to Article 109 ⎯ nor, for
that matter, does the one sent in 2004 to the Ambassador of Djibouti in Paris —, in striking, glaring
contrast to the standard form, which is in universal use (except when the witness being summoned
is the victim of an offence). The witness summ ons addressed to the now famous “Madam Foix” is
an example of this and that summons cites both Article 109 of the Code of Criminal Procedure and
Article434-15-1 of the Penal Code. The first of these provisions creates the possibility of
compulsion by law enforcement agencies; the second the possibility of a fine.
42 6. It is no doubt true that the investigati ng judge who drew up this “summons” initially used
94
the “template” for witness summonses . But what is far more important for the matter concerning
us is that she took great care to eliminate all refe rences in the form to the possibility of constraint.
This is completely different from the witness summons ⎯ a true witness summons under
Article 101 ⎯ sent to Madam Foix.
7. Contrary to the words whic h the advocate for the Applicant tries at all costs to put in our
95
mouths , it does not follow from this that this was an invitation to testify under Article656 ⎯ a
provision which, once again, you will find in the brief judges’ folder we have prepared. But the
care taken by Ms Clément to remove all reference to compulsion does show at least three things:
1. that the investigating judge in no way contemplated resort to constraint;
2. that, therefore, the inviolability and absolu te immunity from criminal jurisdiction enjoyed
by President Guelleh were not threatened or, a fortiori, violated; and
96
3. that is all that is required by inte rnational law, which, as I showed last week , without
being contradicted, does not prohibit invitin g the representative of a foreign Power to
testify, as long as he does so freely and voluntarily. Moreover, Maître van den Biesen
grudgingly recognizes this, as he believes that it is the link with the use of public force
which alone would have amounted to « une a tteinte importante à l’immunité, à l’honneur
9Ibid. (van den Biesen, citing MD, Ann. 25, and the additional documents of 21 Nov. 2007, Ann. 7).
94
See CR 2008/6, p. 19, para. 8 (van den Biesen).
9See CR 2008/6, p. 20, para. 10 (van den Biesen).
9See CR 2008/5, p. 28, para. 15 (Pellet). - 36 -
et à la dignité du président de Djibouti ⎯une atteinte qui engage la responsabilité
internationale de la République française» 97. No coercion and no threat of coercion, no
violation.
8. This is also why we mainta in that it was perfectly legitimate 98for the President of the
Republic of Djibouti to refuse to testify as he had been asked to do. And that is true whether in the
case of the “witness summons” in 2005 or the invitation to testify in 2007, which, I shall return
briefly to this, complied in all respects with the requirements of Article656 of the Code of
Criminal Procedure.
43 9. We willingly admit that that was not the case of the first — save in respect of the crucial
issue of the threat of coercion. But it was only under French law that the 2005 summons was
defective, not under international law, which alone is in question in this courtroom.
10. Moreover, the defectiveness of the “w itness summons” of 17May 2005 under French
law alone is not without impact in our case: for ex ample, as implied in the letter from the Head of
99
Protocol at the Ministry of Foreign Affairs dated 14January 2005 , such a summons is null and
void under French law as a result of its failure to comply with the only procedure available for
obtaining testimony from representatives of forei gn Powers, namely that under Article656 of the
Code of Criminal Procedure, and the lawfulness of the procedure is conditioned on compliance
with essential formalities. Although I am not aware of any case law bearing directly on the failure
to respect the formalities required by either Artic le101 or Article656 of the Code of Criminal
Procedure, an analogy comes to mind with the judgment of 16November 1991 by the Criminal
Division of the Court of Cassation confirming that the failure to comply with an essential formality
required by the Code of Criminal Procedure (tha t case involved the failure to swear a witness) was
contrary to ordre public and vitiated the procedural step in question 100.
11. The disputed summons or invitation — it is merely a choice of words in so far as, in any
event, the document was not accompanied with any constraint or threat of constraint — is therefore
97CR 2008/6, p. 22, para. 14.
98
See CR 2008/6, p. 20, para. 9 (van den Biesen) or p. 21, para. 12.
99MD, Ann.27; see also the statemen ts by the spokesman of the Ministry of Foreign Affairs dated 18May and
19 May 2005, CMF, Anns. XXIX and XXX.
100Bull. crim. 1991, No. 400. - 37 -
null and void under French law and could not have any effect in the internal judicial order or,
a fortiori, in the international order.
12. But there are also two other reasons why, in any case, the Court cannot uphold Djibouti’s
submissions concerning this writ. I shall do no more than repeat them because I have already
explained them in my first statement:
⎯ first, the authorities of the Republic acknow ledged, publicly and repeatedly, the error
committed by the investigating judge;
44 ⎯ secondly, there is no need to “declare null and void” the invitation — or summons — to testify
of 14May 2005, which at any rate can no longer produce any effect— not only because it
indicated a specific date, now long in the past, but also and above all because it was replaced,
in 2007, by a perfectly lawful invitation to tes tify with a similar subject (which, I moreover
hasten to point out, is also no longer in force).
B. The invitation to testify of 14 February 2007
13. On the subject of the 2007 invitation, Madam President, I can be very brief:
⎯ the Applicant admits that this document, appearing in Annex XXXII of the Counter-Memorial,
meets the requirements of Article656 of the Code of Criminal Procedure 101and that the
102
procedure followed in transmitting it to its high-ranking addressee was perfectly lawful ;
⎯ it also admits, it seems to me, that these — meaning the requirements of Article 656 —, in turn
are in full accord with the principles and rules of international law in respect of protecting the
immunities, dignity and honour of foreign Heads of State 103.
This means, in plain terms, that it has no complaint against it for anything and that this
courteous and deferential invitation cannot engage the Republic’s r esponsibility. I would add that,
as can be seen from the letter from the French Minister for Foreign Affairs to his counterpart at the
Ministry of Justice dated 20February 2007, President Guelleh’s refusal to respond to this request
101
See CR2008/1, p.48, paras.52-53 (van den Biesen), or CR2008/6, p.18, para.5 and pp.23-24, para.21
(van den Biesen).
102
See CR 2008/1, p. 46, para. 43 (van den Biesen).
103See CR 2008/6, p. 20, para. 10. - 38 -
put an end to this “case within the case” — which, and Mr. van den Biesen will not keep me from
104
saying (and thinking) this, is really too artificial to merit much more attention.
14. And just as artificial as the incredible construct cobbled together by my opponent, who
asks you to find France responsible for a so-called “attempt to repeat” the attack allegedly made in
2005 on the immunities, honour and dignity of the President of the Republic of Djibouti 105on the
pretext that the press allegedly spoke of a summons sent to the President before the investigating
45 judge signed the invitation to testify — that invitation, by contrast, being quite real and in the file
submitted to the Court. This shows only one thing: that the press, which does its investigative
work (whether we welcome or deplore this, it is c onnected with the role of the press . . .), that the
press therefore was not well informed of the measure, since it wrongly called it a “witness
summons”; but I am not sure that we should make much of this; even for the lawyers we are (and,
in my case at least —I say this in all humility, Ma dam President), the arcana of criminal procedure
are not always crystal clear to those not specializing in criminal law; there is hardly any reason
why they should be any clearer for the journalis ts, who no doubt did not have specialized legal
training.
15. How, in any case, could France have e ngaged its responsibility for a writ which never
took material form; which nobody ever saw in wr iting; and which, barring further information,
can really only be called a phantom summons— of which the imaginative counsel for Djibouti
seems to have had a revelation and which he undoubtedly would have wanted to see in real life but
which plainly exists only in his imagination? A nd I would add a last comment on this point: the
2005 “witness summons” had been the subject of nu merous, sharp disavowals on the part of both
the Ministry of Justice and the Ministry of Foreign Affairs; and, even if it did not breach any rule
of international law, it would nevertheless have required an exceptional lack of awareness (or a
great deal of obstinate error) on the part of its author to issue a similar writ again— while the
deliberate omission from the 2005 summons of any reference to the possibility of constraint
showed that she took care not to attack the immunities of the Djiboutian Head of State.
104
See CR 2008/6, p. 23, para. 20 (van den Biesen).
10See CR 2008/6, p. 65, para. 3 of the submissions (Doualeh). - 39 -
16. I cannot even say, Madam President, that I admire the imagination shown by my
opponent. I simply think that, having nothing “conc rete”, nothing “solid” to plead, he went astray
into a world cut off from reality. The Court will undoubtedly not let itself be taken there.
II. The alleged attacks on the person, freedom and dignity of allegedly internationally
protected persons
17. Madam President, the facts are clearly mo re solidly established where the second set of
allegations by Djibouti regarding immunities is co ncerned: the summonses as legally represented
46 witnesses were indeed addressed to the State Pros ecutor and the Head of National Security of
Djibouti in connection with proceedings for subornati on of perjury before an investigating judge at
the Versailles Tribunal 106; and, as those concerned did not answer that summons, they were issued
with arrest warrants by the Chambre de l’instruction of the Versailles Court of Appeal 107. So the
facts are not in dispute. The law, however, is.
18. And I must say at the outset, MadamPresid ent, that I am extremely concerned by the
actual title Professor Condorelli gives to his oral pleading on this point “The violation by France of
the obligation to prevent attacks on the person, freedom and dignity of internationally protected
108
persons” . I confess I do not understand: in pa ragraphs137 and 138 of its Memorial, the
Applicant, having mentioned paragraph 51 of your Yerodia Judgment of 2002, relating to “certain
holders of high-ranking office in a State”, whic h among other things quot es “a non-exhaustive list
of examples” ― it is Djibouti who writes this ― such as “the Head of State, Head of Government
and Minister for Foreign Affairs” (Arrest Warrant of 11 April 2000, I.C.J. Reports 2002, pp. 20-21,
para. 51), added:
“ From this standpoint , the issuing and circulation of arrest warrants by the
French judicial authorities against Mr.Djama Souleiman Ali and Mr.Hassan Saïd,
respectively the State Prosecutor of the Republic of Djibouti and the Djiboutian Head
of National Security, for ‘subornation of perj ury’, are further violations of customary
109
international law” .
10See MD, Ann. 30, and additional documents of 21 Nov. 2007, Ann. 11.
107
See CMF, Ann. VII.
108
CR 2008/6, 28 Jan. 2008, p. 50 (Condorelli); emphasis added.
10MD, p. 52, para. 138; emphasis added. - 40 -
It was further stated, also in the Memorial, that: “It should be noted once again in this context that
the... Convention on Special Missions confirms the principle of the personal inviolability and
110
immunity from jurisdiction of the members of these missions” . This is what is written in
Djibouri’s Memorial.
19. In our innocence, we had deduced that th e Republic of Djibouti considered that those
concerned enjoyed personal immunity by virtue of their functions (comparable to those of Heads of
State or Government or Ministers for Foreign Affairs, since the Memorial expressly approached the
47
case “from this standpoint”), as well, moreover, as from that of the law of special missions.
Professor Condorelli refuted both these interpretations, taxing the former with “heresy” in his oral
111
pleading of 25 January and acknowledging that the functions of State Prosecutor of the Republic
and Head of National Security were “essentially internal” 112. And, in his statement yesterday, he
rejected the help, or partial help, the law of sp ecial missions might have provided him with: “The
submission . . . of Djibouti . . . is not based on the law . . . of special missions” 113. So exit personal
immunity. But then, MadamPresident, on what bases does the Respondent seek to enable those
concerned to elude ordinary law? On the idea (and on this idea alone) that (it is the Respondent
speaking)
“a State cannot regard a person enjoying the status of an organ of another State as
individually criminally liable for acts carried out in that official capacity, that is to say,
in the performance of his duties, as such acts are to be viewed in international law as
attributable to the State on behalf of whic h the organ acted and not to the individual
acting as that organ” 11. [I cannot understand how Mr. Condorelli can read such long
sentences.]
This is surely true in part. But not in this ab solute form, as that would amount to reinventing the
argument of absolute immunity. I am sorry to give an example concerning myself, but
Mr. Condorelli will surely forgive this, as it might equally well concern him. If one of us gives a
lecture abroad ⎯ which is absolutely one of our functions ⎯ he would certainly not enjoy any
international protection, even if we receive a mission order from our universities, which are public
110Ibid.
111CR 2008/3, 25 Jan. 2008, p. 15, para. 23 (Condorelli).
112
Ibid., p. 8, para. 7; and p. 13, para. 19 (Condorelli).
113CR 2008/6, 28 Jan. 2008, p. 51, para. 4 (Condorelli).
114Ibid., p. 51, para. 5. - 41 -
bodies. Only conduct directly linked to the performance of a public service mission and
accompanied by the exercise of public service prerogatives performed in the name and on behalf of
the State, are able to trigger the phenomenon of immunity. This being so, counsel of the Applicant
concedes that, in any event, these indivi duals cannot enjoy absolute immunities 115, which means
48 that one must (and here I am quoting my opponent’s actual words): “verify concretely the acts in
question, when of course the issue of immunity has been raised” 116.
20. Well and good. But who can assess this? Who can assess whether these nevertheless
strict conditions are met? Mr. Condorelli does not put forward the idea that the State “of origin”, if
I may put it thus, would enjoy this power and, indeed, since it is not a matter of absolute immunity,
this could not be the case ― unilaterally at least. For my part, I had timidly suggested that this
could be the domestic court of the forum State. After denouncing (it is he who says so) “this
surprising argument”, my opponent becomes more lenient:
“True” [he avers], “it cannot be denied th at it is normally for internal courts to
address questions of this type. But when, as in the present instance, this Court has
been granted the jurisdiction necessary by th e Parties to settle a dispute concerning
functional immunities, one cannot see any gr ound whatever that prevents the Court
117
from addressing it and obliges it to relinquish jurisdiction to a national court” .
Apart from the fact that, in this case, France h as not consented to the jurisdiction of your
distinguished Court at all for settling the di spute relating to the “functional immunities” ― I will
not go back over that again, as this dispute, where this precise point is concerned,
is in any event
not connected or linked, as I was saying a moment ago.
21. Professor Condorelli shows he is aware of th e problem and tries to defuse it when saying
that:
“it would be absurd to claim that the fact that the two Djiboutian high officials have
yet to avail themselves of their immunity w ithin the context of the investigation into
subornation of perjury wrongfully initiate d against them in France prevents the
Republic of Djibouti from asking the Court to adjudge and declare that France is
violating to its detriment the principles of international law on immunities” 118.
11Ibid., p. 50, para. 3.
116
Ibid., p. 52, para. 7.
117
Ibid., p. 53, para. 8.
11Ibid. - 42 -
Presented in this way, it is perhaps absurd ― but fundamentally it is not. Since the question has
never been raised, there is (on this point . . .) no dispute which the Court could settle. France does
not necessarily refuse to consider that those concerned were perhaps acting in the context of their
official functions and on a mission with the char acteristics I referred to a moment ago, on the
occasion of the facts of which they are suspected; it simply notes that neither they, nor Djibouti at
49 the diplomatic level, nor in its Application, nor in its Memorial, have raised this argument and that,
119
if Mr. Condorelli asserted it w ith his usual conviction (and ― supposed ― indignation) , he did
not completely manage to convince me either that the rather special facts of the case could fall
within the official functions of an agent of any State, or in any event, that you have sufficient
elements to determine whether or not, regard less of the object of their respective missions ― for, I
repeat, they clearly enjoy the presumption of inno cence where the characterization of the facts is
concerned ― they were or were not acting in the context of their official functions.
22. Moreover, it seems to me, Madam President, that the simple fact that the argument that
those concerned enjoyed immunity from jurisdiction by virtue of their functions only appeared in
connection with the present proceedings (rather belatedly, moreover) seriously suggests that it was
forged ex post solely for the purposes of these proceedings. Originally, Djibouti had relied on
another, entirely separate one ― which resurfaced in a slightly di fferent form in its Application,
then in its Memorial.
23. This argument was first put forward by the lawyer of Messrs. Saïd and Souleiman to
justify their refusal to answer the summons by the Versailles judge. In a letter dated
11 October 2005 (in which he was clearly also speak ing on behalf of the Republic of Djibouti), he
wrote:
“I regret to inform you that these two persons, one an official and the other a
judge, cannot comply with that summons.
The authorities of the Republic of Djibouti have always co-operated fully in
relation to the death of Judge Borrel and the ensuing judicial procedures.
119
CR 2008/3, 25 Jan. 2008, p. 12, para. 17, and p. 14, para. 21 (Condorelli). - 43 -
French judges and police officers have had full scope to conduct all the
enquiries they considered necessary in Dji bouti, even within the premises of the
Presidency of the Republic.
The Djiboutian authorities have not been able to secure the co-operation of the
French judiciary in return.
In such circumstances, the Republic of Djibouti , as a sovereign State, cannot
accept one-way co-operation of this kind with the former colonial power, and the two
120
individuals summoned are therefore not authorized to give evidence” .
50 24. Similarly, in is Memorial, Djibouti complains that
“on the one hand... the French authorities have unilaterally blocked judicial
co-operation between the [two States] and on the other hand... they considered
themselves entitled to seek Djibouti’s co-operation in that same Borrel case by
121
summoning Djiboutian nationals as witnesses” .
25. At the risk of repeating myself, I must once again point out that Djibouti’s lumping
together of the “Borrel case” (in other words, the judicial investigation relating to the death of
Bernard Borrel and investigated at the Tribunal de grande instance in Paris) and the investigation
opened for subornation of perjury at the Tribunal in Versailles is not correct. They are two
separate cases, only the former being concerned by the refusal to act upon the letter rogatory of
November 2004. But that is not all.
26. As I said a few moments ago, the summonses served on Messrs. Saïd and Souleiman to
appear as legally represented witnesses were transmi tted to the Djiboutian Ministry of Justice in
strict application of the 1986 Convention on Mutu al Assistance between the two countries. By
refusing to respond to them, the Republic of Djibout i failed in its obligations under the Convention
and, in particular, those resulting from paragraphs 1 and 2 of Article 3, which state that:
“1. The requested State shall execute in accordance with its law any letters rogatory
relating to a criminal matter and addressed to it by the judicial authorities of the
requesting State for the purpose of procuring evidence . . .
2. If the requesting State desires witnesses or experts to give evidence on oath, it shall
expressly so request, and the requested State shall comply with the request if its law
does not prohibit it”.
27. Djibouti’s refusal to respond to the request by the investigating judge in Versailles is not
based on this ground, any more than it is on any of the grounds contemplated by Article2 of the
Convention, which Hervé Ascensio discussed at lengt h last week and a few moments ago. What it
120
MD, Ann. 31; emphasis added.
121
MD, p. 32, para. 77. - 44 -
amounts to is rather a kind of exception non adimpleti contractu which does not speak its name.
The conditions which might justify these exceptions coming into play are by no means met.
28. For the rules set out in Article60 of the Vienna Convention on the Law of Treaties,
which, at least in broad outline, codify the existi ng law as regards the termination or suspension of
51 the operation of a treaty as a result of its violation, to be applicable, at least two conditions must be
met:
(1) the alleged violation of the 1986 Convention must be proven ⎯ yet as my colleague and friend
HervéAscensio has shown, this is not the case (a nd this also applies to an argument which is
allegedly founded on the notion of counter-measures); and
(2) that the Republic of Djibouti has relied on “the breach as a ground for terminating the Treaty or
122
suspending its operation in whole or in part” ⎯ yet far from relying on the end or suspension
of the 1986 Convention, Djibouti relies on this treaty and bases the bulk of its argument on its
provisions; as found by the Chambre de l’instruction of the Versailles Court of Appeal in its
Judgment of 26September2006: “the official judicial authorities of Djibouti had not, at any
time, expressed the intention of suspending or severing mutual assistance relations with
France” 123; moreover, if there had been any denuncia tion or suspension, it would have had to
be notified at least according to the spirit of the directives of Articles65 to 67 of the
1969 Convention 124. By prohibiting the two individuals concerned from responding to the
summons by the judge in Versailles, with no le gal justification whatever, the Republic of
Djibouti clearly acted in breach of the 1986Convention on Mutual Assistance, by which it
claims to set such store.
29. It remains for me to conclude, recapitulating, Madam President, that:
(1) In general, all the issues I ha ve dealt with in this last oral pleading, without exception, do not
fall within the jurisdiction of the Court; th e following conclusions relating to them are
therefore only in the alternative.
12Art. 60, para. 1, of the Vienna Convention of 1969.
123
CMF, Ann. VII, p. 12.
12Cf. Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 66, para. 109. - 45 -
(2) President Guelleh was not subjected to any threat, nor a fortiori of course, any compulsion,
which would have been an attack on his immunities, his dignity or his honour:
⎯ the “witness summons” of 14May2005, although not complying with the requirements of
Article 656 of the Code of Criminal Procedure, in no way referred to the possibility of the use
of the law enforcement agencies, in striking contrast to the practice usually followed, which, of
52 itself, showed the firm intention of the inv estigating judge not to adopt the standpoint of
ordinary law;
⎯ because, precisely, that summons did not comply with the provisions of Article656, it was
nevertheless null and void; and
⎯ in any event, it was replaced by the ⎯ perfectly valid ⎯ invitation to testify of
14 February 2007, so that there is anyway no reason to rule on Djibouti’s claims relating to it;
⎯ in the alternative, if, however, the Court wished to rule on its merits, it could but find that it —
this summons in 2007 — did not breach any principle or rule of international law;
⎯ in the further alternative, if per impossibile ⎯ to please Maître van den Biesen ⎯ the Court
were to consider that such was not the case, it would, I am convinced, regard the excuses
presented by the French official authoriti es as constituting sufficient and appropriate
reparation;
⎯ as to the invitation to testify of 14February last, the Applicant does not in fact allege that it
was unlawful; hence, it cannot, in any way whatever, engage France’s responsibility and,
Members of the Court, you could but take note of it.
(3)As regards the alleged attacks on the imm unities enjoyed by the State Prosecutor of the
Republic and the Head of National Security of Djibouti,
⎯ the summonses to appear as legally represented witnesses served on them were also supplanted
by the arrest warrants issued against these two individuals; there is thus no reason for the
Court to rule on them;
⎯ as regards the arrest warrants themselves, they do not conflict with any rule of international law
and could not have been an attack on the immunities which those persons do not enjoy; and,
⎯ in any event, since ⎯ far from relying on such immunities before the French judge ⎯ they
have based themselves on an alleged breach of the principle of reciprocity ⎯ which is not - 46 -
relevant in this case, the dispute is not about this po⎯ all this quite independently of the
53 Court’s manifest lack of jurisdiction to rulon this whole aspect of the case relating to the
immunities of the Djiboutian officials now relied on by the Applicant.
30. Members of the Court, this brings my or al argument to a close. I thank you for your
attention and would ask you, Madam President, to give the floor to Madam Belliard, Agent of the
French Republic.
The PRESIDENT: Thank you, Professor Pellet. I now give the floor to Ms Belliard, Agent
of the French Republic.
BELsLIARD:
G ENERAL CONCLUSION
1. Madam President, Members of the Court, it is now my task to conclude the second round
of oral pleadings of the French Republic. I sh all be brief, particularly as our opponents have
scarcely added anything new during this second round.
2. On the other hand, their main objectiv e has become clearer to see and is easy to
summarize. Indeed, and quite simply if I may say so, the Applicant seems to want to make this
Court into an appeals chamber against proceedings conducted by the French courts, at their sole
discretion and in complete independence, and thus at the risk of transforming the present case into
a discussion without any subject on the domestic application of procedures for mutual judicial
assistance or on the exact interpretation of our Code of Criminal Procedure. Patently, this is not the
role of an international court.
3. This being so, we have never claimed ⎯ as I already said in my introductory oral pleading
last Thursday ⎯ that we could derive any argument from our domestic law to exempt us from our
international obligations.
4. On the contrary, France has, after allpresented itself voluntarily before your Court to
respond on a specific dispute between it and the Republic of Djibouti and solely involving
questions of international law. Basically, and that was the precise limit within which ⎯ we
hoped ⎯ the discussion should to have remained, the A pplicant has one grievance against us: that - 47 -
we did not transmit a copy of a record of an ongoing judicial investigation to it, the record of “the
54 Borrel case”, which, moreover, it agrees is not at issu e as such before you. I will return in a few
moments to this grievance. On the other hand, I will not dwell at any length on the scope of the
Court’s jurisdiction in this case, other than to say:
⎯ on the one hand, that Article 38, paragraph 5, of the Rules of Court makes it a requirement to
respect the exact terms of the explicit acceptanc e of your jurisdiction on the basis of that
Article;
⎯ on the other hand, it is hard to see, as amply demonstrated by Professor Alain Pellet, where the
jurisdiction of the Court would end if the App licant’s reasoning were to be followed, its
argument in this respect being neither reasonable nor practicable.
5. Before coming to the grievance derived fro m the refusal to communicate the record in the
Borrel case, I shall nevertheless add a final comment on the alleged attacks on the immunity of
Djiboutian officials.
6. While it is clear ⎯ happily there is no divergence between us on this point ⎯ that
customary international law grants an incumbent head of State total inviolability and immunity
with respect to criminal jurisdiction, it is no less clear that the Djiboutian claims for immunities to
be extended to include official representatives, such as the State Prosecutor of the Republic of
Djibouti or the Head of National Security, go far beyond what is required by international law.
Nowadays, immunities do not always have a good press in view of the legitimate desire to combat
impunity. At a time when a reasonable balance must be achieved between immunities and the risks
of impunity they entail on the one hand, and the n ecessity, thanks to the protection they provide to
the most senior representatives of States, to allow relations between States to function
harmoniously, it would be paradoxical to say the least, and wholly questionable:
⎯ to deny a State the right to request the head of another State to testify, without, of course, any
compulsion;
⎯ to grant every official, even if occupying a very high rank in the administrative hierarchy, a
status giving her or him absolute and general immunities from jurisdiction without any regard
for the functions he or she performs; and, lastly, - 48 -
55 ⎯ to deny the domestic court jurisdiction to assess whether acts accomplished by persons relying
on functional immunities do indeed fall within the context of their prof
essional activities
performed on behalf of and in the name of their State.
7. As all these questions manifestly exceed your jurisdiction as accepted by the French
Republic on the basis of Article 38, paragraph 5, of the Rules of Court, I would nevertheless like to
focus my comments on the only points on which you have to rule. Ultimately, these points may be
simply summarized by posing four questions one by one.
First question: Was France entitled, in the exec ution of an international letter rogatory, to
refuse to transmit the record requested by the Djiboutian authorities?
8. There is no doubt that the reply to this question is positive. Be fore changing its mind,
Djibouti certainly first asserted that France could no t, in any event, refuse Djibouti’s request. At
the risk of contradicting itself, it then contended that France had agreed to transmit the record
before recanting.
9. The Applicant’s contradictory attitude he re reveals the problems it was encountering in
refuting the clear, unwavering and legally well -founded position of the French Republic: the
refusal to respond to a request for judicial assistance is contemplated in Article 2 of the Convention
on Mutual Assistance of 27 September 1986 for certa in cases which, far from being specific to that
Convention, are more or less systematically laid down in similar conventions concluded in this
field. Furthermore, that provision forms part of the logical extension of co-operation which, as it is
“the widest measure” of it, cannot be absolute, as otherwise, there would inevitably no longer be
any question of co-operation but of the simple integration of the judicial orders between two States;
we all know that, in the field of judicial co-ope ration as in the criminal field, we have not yet
reached that stage.
Second question: What, substantively, are the exceptions under the Convention?
10. These conditions appear, and are clearly stat ed, in Article 2 of the Convention. Among
the three grounds for refusal provided, we find express mention, and this is the ground of interest to
us in the present case, of the s ituation in which the request is likely to prejudice the essential
56 interests of the requested State. This exception, set out in Article 2 (c) of the 1986 Convention, is a - 49 -
classic clause ⎯ I would even say traditional and invariable ⎯ in conventions on mutual assistance
in criminal matters.
11. Indeed, penal matters, more than others, affect the national sovereignty of States and
their security or ordre public; no one would dream of denying this. It is therefore highly logical for
States, when deciding to negotiate and enter into agreements for mutual assistance in criminal
matters, to ensure, by including in those agreemen ts provisions such as those in Article2 of the
Convention which concerns us, that the co mmitments they assume cannot prejudice their
sovereignty, their security, their ordre public or other of their essential interests.
12. I want there to be no misunderstanding: this is not to claim that it is by virtue of the
penal nature alone of the co-operation that a State may evade its obligation in this area. Obviously,
it is when its sovereignty, security, ordre public or other of its essential interests might be affected
in the context of this co-operation in criminal matt ers that the State is entitled to avail itself, if it
deems necessary, of the exception laid down in the Convention.
13. Members of the Court, I shall not again go over the facts before you, other than to recall
that the authorities of my country, like those of th e Applicant, were perfectly aware, even before
the international letter rogatory was issued, of the difficulties which Djibouti’s request would
inevitably raise, given the documents protected as “defence secrets” and declassified so they could
be included in the “Borrel file”. It was howev er only after the request for mutual assistance had
been examined, in the manner required, that the inescapable conclusion had to be drawn that it was
impossible to transmit the file to Djibouti. This brings me to the third question you will have to
answer:
Third question: who is the judge of whether a request is likely to prejudice the essential
interests of the requested State?
14. Here again, the answer is beyond doubt , given the very clear language of Article 2 (c) of
the Convention: this power is granted to the requested State, and to it alone.
57 15. It is clear that in the mind of the States parties ⎯ and the letter of the provisions thus laid
down so confirms ⎯ the point is for the requested State to retain for itself a wide discretion in
measuring, by itself, the risk of prejudice to its essential interests. In granting each other this right,
States seek to ensure mutual respect for their sovereignty in an especially sensitive area. - 50 -
16. This in no way means that States indiscriminately invoke these derogation clauses,
particularly in breach of the principle of good faith . Quite to the contrary, as previously indicated,
they are used rarely, and maintaining, as our opponents do, that the French Republic systematically
seeks to hide behind this clause to refuse all judicial co-operation is to make accusations against the
French Republic on the basis of a misrepresentation. It is moreover obvious that the notion of
essential interests remains very narrow, as the words themselves indicate. I shall point out that
before this request France had never refused any request for mutual assistance from the Djiboutian
authorities, thus proving, if there were any n eed to, that the French Republic does not make
improper use of this clause.
17. In the case in point, France refused to co mmunicate the Borrel file in reliance on this
clause. It considered that providing the file woul d be likely to prejudice its essential interests. In
my view, one need only read the pleadings the Pa rties have submitted to the Court to understand
that the refusal was not unjustified.
18. Furthermore, the fact that there was not hing arbitrary about the refusal by the French
authorities is attested ⎯ if, that is, there is any need for such a demonstration ⎯ by the full
compliance shown with the procedures required by the Convention on Mutual Assistance, and that
is the fourth and final question raised by the present dispute:
Fourth question: What procedure were the French authorities required to follow in
responding to the request for assistance?
19. The Convention gives two elements of guidance:
⎯ first, and this is in Article3, the requested State must execute letters rogatory “in accordance
with its law”; in France, in the case of a lette r rogatory like the one involved in the present
action, it is for the investigating judge alone, as he or she alone has control over the file, to
determine whether a request can be granted. That was the procedure followed in the present
case;
58 ⎯ second, Article 17 provides that “[r]easons shall be given for any refusal of mutual assistance”.
In this connection, counsel for Djibouti try to juggle with various doc uments submitted to the
Court. Thus relying on one of them, the 31 May2005 letter from the Director of Criminal
Affairs and Pardons at the Ministry of Justice, they would appear to argue between the lines - 51 -
that, while reasons were given for the refusal (a lbeit not as fully as they would have liked), it
125
was not notified by France, as Djibou ti allegedly never received the letter . But, relying on
another document, the letter of 6June 2005 fr om the French Ambassador to Djibouti,
Applicant’s counsel contend conversely that the refusal was indeed notified to them, but this
time without a statement of reasons 126.
This studied balancing act appears to me to be beside the point in any case. Article17
imposes no notification obligation and therefore, a fortiori, no procedures for any notification,
while other conventions expressly impose a notifi cation obligation, as one of the Applicant’s
counsel was good enough to acknowledge 127. Thus, it is much more important to stick to the
meaning and desired effect of this provision in ascertaining whether they have been respected. In
this regard, the documents submitted to the Court and Djibouti’s Memorial itself amply show that
reasons were provided to the Republic of Djibouti in support of the refusal to transmit the Borrel
file to it. Thus, it is apparent that the App licant has established no violation of Article 17 or, a
fortiori, of any other provision of the Convention.
20. These, in my view, are the questions to be answered by the Court. I shall nevertheless
add two last points before concluding. First poi nt: the Applicant’s question-begging argument
cannot be upheld that it will be possible to divide the file ⎯ indiscriminately, moreover ⎯ into the
information which can be communicated and that wh ich cannot. On this point, I believe that, here
too, the evidence presented to you and the number of documents in the Borrel file which were
declassified ⎯ at various times in the proceedings, by the way ⎯ so as to enable their inclusion in
59 the file, suffice to show the opposite. The file form s a whole. And, here again, it is not for the
requesting State to supplant the French Republic in making the judgment.
21. Second point. Vitiating the provisions of Article 2 (c) of the 1986 Convention ⎯ which
is what the Applicant’s arguments would lead to ⎯ could jeopardize the conclusion of agreements
for judicial co-operation and could prompt States to withdraw from those now in force. Let there
be no doubt that the Court’s response on this poi nt will go well beyond the matter of judicial co-
12CR 2008/2, pp. 41-43, paras. 45-51 (van den Biesen).
126
Ibid., pp. 39-41, paras. 37-44 (van den Biesen).
12CR 2008/2, p. 26, para. 35 (Condorelli). - 52 -
operation between France and Djibouti, since, I sh all reiterate, these are standard clauses in this
type of agreement.
22. Madam President, Members of the Court, as I made clear at the opening of the first round
of France’s oral argument, I can only endorse the Republic of Djibouti when it expresses the need
to preserve the ties of co-operation and friends hip existing between our two countries. I am
convinced that the Court’s decision will contribute to this.
23. Madam President, before concluding I should like to express my thanks to the Members
of the Court for their kind attention throughout these oral proceedings, to the Registry for its
invaluable support in organizing these hearings, a nd to the interpreters for their outstanding
assistance.
24. I now have the honour to read out to you the final submissions of the French Republic,
which, for the reasons set out in its Counter-Memorial and in the oral proceedings, and in
accordance with the conclusions set out by Mr. Al ain Pellet and Mr. Hervé Ascensio, requests the
Court:
(1)(a) to declare that it lacks jurisdiction to rule on those claims presented by the Republic of
Djibouti upon completion of its oral argument which go beyond the subject of the dispute
as set out in its Application, or to declare them inadmissible;
(b) in the alternative, to declare those claims to be unfounded;
() to reject all the other claims made by the Republic of Djibouti.
Thyou.
The PRESIDENT: Thank you, Ms. Belliard. The Court takes note of the final submissions
that you have just read out on behalf of the French Republic, as it took note yesterday of the final
submissions of the Republic of Djibouti.
In respect of the response given by France this afternoon to the question put by Judge Simma
60
at the end of the hearing on 25 January, I shall add that Djibouti may submit any written comments
it wishes to make on the response by Friday 1Febr uary 2008 at the latest. Djibouti’s comments
will be communicated to France. The Court will not invite France to submit further observations. - 53 -
That brings us to the end of this set of hearings devoted to oral argument by the Parties. I
should like to thank the representatives of the Part ies for the assistance they have provided the
Court through their oral statements during these hearings.
I wish them a safe journey back to their respective countries and, in accordance with
practice, I shall request the Agents to remain at the Court’s disposal. With this proviso, I now
declare these oral proceedings closed.
The Court will now retire for deliberation. The Agents of the Parties will be advised in due
course of the date on which the Court will deliver its judgment.
As the Court has no other business before it, the sitting is closed.
The Court rose at 5.55 p.m.
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Traduction