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Uncorrected Translation

CR 2010/1 (traduction)

CR 2010/1 (translation)

Lundi 19 avril 2010 à 10 heures 50

Monday 19 April 2010 at 10.50 a.m. - 2 -

8 The PRESIDENT: Please be seated. The sitting is open.

The Court meets today to hear the oral ar guments of the Parties in the case concerning

Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo).

Before continuing, I should like to express my re gret, on behalf of the Court, at the fact that

this hearing has opened late, because a difficulty first had to be resolved. The issue that arose

stems from a situation of which everyone is aware, namely the disturbances caused by the volcanic

eruption in Iceland. The Democratic Republic of the Congo has informed the Registry that, in view

of the current air traffic problems, its delegation cannot be present for today’s hearings.

Consequently, and after consulting Guinea’s delegation on a proposal submitted by the Democratic

Republic of the Congo for the rescheduling of the hearings, the Court has decided for the moment

to hold today’s hearings, bearing in mind the problem encountered by the DRC’s delegation, with

the agreement of Guinea. The Court will communi cate new dates to the Parties for the remainder

of the proceedings without delay.

I would now like to note that, for reasons which have duly communicated to me,

JudgesShiand Buergenthal, who sat in previous phases of the case, will not be able to sit in the

present phase.

Since the Court does not include upon the Bench a judge of the nationality of either of the

Parties, both Parties have availed themselves of the right, under Article31, paragraph2, of the

Statute, to choose a judge ad hoc. The Republic of Guinea first chose Mr.MohammedBedjaoui,

who resigned on 10September2002, and subseq uently Mr.AhmedMahiou. The Democratic

Republic of the Congo chose Mr.AugusteMampuyaKanunk’A-Tshiabo. Both Mr.Mahiou and

Mr. Mampuya were installed as judges ad hoc in the case on 27 November 2006 at the opening of

the hearings on the preliminary objections raised by the Democratic Republic of the Congo.

*

9 Before recalling the principal steps of the proce dure, I would first like to pay solemn tribute,

on behalf of the Court, to the memory of one of its former Members, JudgeGézaHerczegh, who

died on 11 January this year. - 3 -

Judge Géza Herczegh was born in 1928 in Nagyka pos, Slovakia. After studying law at the

University of Szeged and gaining a Ph.D. in jurisprudence, he began an academic career devoted to

the teaching of international law in several uni versities in his own country and abroad, before

becoming, in 1967, Head of the International Law Department of the Law Faculty of the University

of Pécs, then, in 1981, Dean of the same Facu lty. He published numerous works and articles,

chiefly on international humanitarian law, but al so on general international law, on the law of

international relations and on the rights of minoriti es. His expertise in these many fields earned

him national recognition: after having been el ected a Member of the Hungarian Academy of

Sciences, he was appointed Vice-President of th e Department of Legal and Economic Sciences of

this prestigious institution.

Géza Herczegh also enjoyed a brilliant diploma tic career in his favourite field, humanitarian

law. He was chosen to represent the Hungarian Red Cross Society as expert on international

humanitarian law at the conferences of The Ha gue (1971), Vienna (1972), Tehran (1973) and

Monaco (1984). He was also selected to act as governmental expert on international humanitarian

law at the conferences of Geneva in 1971 and 1972 , before serving as a member of the Hungarian

delegation at the Diplomatic Conference of Gene va on the protection of victims of international

armed conflicts from 1974 to 1977, and later as Vi ce-President of the Third Commission of the

same Conference. He was also Rapporteur at the Third Conference on Parliamentary Democracy

organized in 1991 by the Council of Europe on th e topic of “Problems of Transition from an

Authoritarian or Totalitarian Régime to a Genuine ly Democratic System”, and a member of the

expert working group preparing the draft conventio n on peaceful settlement of disputes within the

framework of the Conference on Security and Co-operation in Europe in 1992.

Finally, JudgeHerczegh was a member of the Constitutional Court of the Republic of

Hungary from 1990 to 1993, before being elected to the International Court of Justice, where he

10 served for almost ten years from 10May1993 to 5February2003. Modest, discreet and ever

courteous, he was also self-assured. A dedicat ed worker, he was renowned for his extensive

knowledge of case files, as well as his intellectual rigour and integrity. A man of conviction who

was also open to discussion, he actively participated in the collective work of the Court. All of his

former colleagues can attest to the richness and clarity of his thinking, as well as to his commitment - 4 -

in his work within our institution. We will remember his many astute contributions during the

Court’s deliberations. Géza Herczegh was a highly respected Member of the Court. He remains,

to this day, the only Hungarian judge, elected or ad hoc, to have sat at the Court. The Court pays

tribute to the memory of a very dear colleague and an eminent judge.

I would equally like to pay tribute to two other distinguished figures of international law who

have also recently passed away, and who held very close ties with our Court:

Krzysztof Skubiszewski and Sir Ian Brownlie.

PresidentKrzysztofSkubiszewski was born in 1926 in Pozna ń, Poland. He had a long and

brilliant career devoted to the teaching of intern ational law in several universities in his own

country and abroad.

He was the first Polish Minister for Foreign Affairs in the post-communist era between 1989

and 1993, and made a significant contribution to improving relations between Poland and the

recently reunified Germany, thanks to an agreement on the recognition of the border between them.

Krzysztof Skubiszewski was chosen by Portugal to sit as judge ad hoc in the case concerning

East Timor (Portugal v. Australia), then by Slovakia to sit as judge ad hoc in the case concerning

Gabčíkovo-Nagymaros Project (Hungary/Slovakia) . A man admired by all for his immense

knowledge of law, of great rigour, he was endowed with keen analytical skills and an extraordinary

capacity for work. His death is an enormous loss to international law and international justice.

ProfessorSirIanBrownlie was born in 1932 in Liverpool. A respected academic and

well-known practitioner among those i nvolved in international law, he served many times as

11 Counsel before the International Court of Justice. Over a quarter of a century, in that capacity he

appeared before the Court in more than 40cases, including the case concerning Military and

Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) , and,

more recently, the case concerning Territorial and Maritime Dispute between Nicaragua and

Honduras in the Caribbean Sea (Nicaragua v. Honduras), the case Sovereignty over Pedra

Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore) , and the case

concerning Dispute regarding Navigational and Related Rights (CostaRica v. Nicaragua). He

was held in high esteem by Members of the Court, who, over the years, were able to appreciate his

professionalism, his talent in argument, his integr ity and his independence. He had, during the - 5 -

course of his career, the opportunity to put his quick intelligence and extensive knowledge of law

to the service of the most varied causes. His death, under tragic circumstan ces, is a major loss to

international justice and to the development of international law.

I would now like to invite you to stand and observe a minute’s silence in memory of

Judge Herczegh, President Skubiszewski and Sir Ian Brownlie.

The Court observed a minute’s silence.

The PRESIDENT: Please be seated.

I shall now turn to the case which is before the Court today and regarding which I shall recall

the principal steps of the procedure.

On 28 December 1998, the Government of the Re public of Guinea filed in the Registry of

the Court an Application instituting proceedings against the Democratic Republic of the Congo in

respect of a dispute concerning “serious violations of international law” allegedly committed “upon

the person of a Guinean national”. The Application consisted of two parts, each signed by

Guinea’s Minister for Foreign Affairs. The firs t part, entitled “Application”, contained a succinct

statement of the subject of the dispute, the basi s of the Court’s jurisdiction and the legal grounds

relied on. The second part, entitled “Memorial of Guinea”, set out the facts underlying the dispute,

expanded on the legal grounds put forward by Guinea and stated Guinea’s clai ms. In the first part

of the Application, Guinea maintained that:

12 “Mr.Ahmadou Sadio Diallo, a businessman of Guinean nationality, was
unjustly imprisoned by the authorities of th e Democratic Republic of the Congo, after

being resident in that State for thirty-t wo... years, despoiled of his sizable
investments, businesses, movable and immovable property and bank accounts, and
then expelled.”

Guinea added that “[t]his expulsion came at a time when Mr. Ahmadou Sadio Diallo was pursuing

recovery of substantial debts owed to his busin esses by the State and by oil companies established

in its territory and of which the State is a share holder”. According to Guinea, Mr. Diallo’s arrest,

detention and expulsion constituted, inter alia, violations of

“the principle that aliens should be treated in accordance with ‘a minimum standard of
civilization’, [of] the obligation to respect the freedom and property of aliens, [and of]
the right of aliens accused of an offence to a fair trial on adversarial principles by an

impartial court”. - 6 -

To found the jurisdiction of the Court, Guinea invoked in the first part of its Application the

declarations whereby the two States have recognized the compulsory jurisdiction of the Court

under Article 36, paragraph 2, of the Statute of the Court.

By an Order of 25 November 1999, the Cour t fixed 11 September 2000 as the time-limit for

the filing of a Memorial by Guinea and 11Se ptember2001 as the time-limit for the filing of a

Counter-Memorial by the Democratic Republic of the Congo. By an Order of 8 September 2000,

the President of the Court, at Guinea’s request , extended the time-limit for the filing of the

Memorial to 23March2001; in the same Order, the time-limit for the filing of the

Counter-Memorial was extended to 4October2002. Guinea duly filed its Memorial within the

time-limit as thus extended.

On 3 October 2002, within the time-limit set in Article 79, paragraph 1, of the Rules of Court

as adopted on 14 April 1978, the Democratic Republic of the Congo raised preliminary objections

in respect of the admissibility of Guinea’s Application. In accordance with Article 79, paragraph 3,

of the Rules of Court, the proceedings on the me rits were then suspended. By an Order of

7November2002, the Court, taking account of the particular circumstances of the case and the

agreement of the Parties, fixed 7July2003 as th e time-limit for the presentation by Guinea of a

written statement of its observations and submissions on the preliminary objections raised by the

13 Democratic Republic of the Congo. Guinea filed su ch a statement within the time-limit fixed, and

the case thus became ready for hearing on the preliminary objections.

The Court held hearings on the preliminary obj ections raised by the Democratic Republic of

the Congo from 27 November to 1 December 2006. In its Judgment of 24 March 2007, the Court

declared the Application of the Republic of Gu inea to be admissible “in so far as it concerns

protection of Mr.Diallo’s rights as an individual” and “in so far as it concerns protection of [his]

direct rights as associé in Africom-Zaire and Africontainers-Zaire”. On the other hand, the Court

declared the Application of the Republic of Guin ea to be inadmissible “in so far as it concerns

protection of Mr.Diallo in respect of allege d violations of rights of Africom-Zaire and

Africontainers-Zaire”. - 7 -

By an Order of 27 June 2007, the Court fixed 27 March 2008 as the time-limit for the filing

of the Counter-Memorial of the Democratic Republic of the Congo. That pleading was duly filed

within the time-limit thus prescribed.

By an Order of 5 May 2008, the Court authorized the submission of a Reply by Guinea and a

Rejoinder by the Democratic Republic of the Congo, and fixed 19 November 2008 and 5 June 2009

as the respective time-limits for the filing of those pleadings. The Reply of Guinea and the

Rejoinder of the Democratic Republic of the Con go were duly filed within the time-limits thus

prescribed.

I note the presence at the hearing of representativ es of both Parties. In accordance with the

arrangements for the organization of the procedur e which have been decided by the Court, the

hearings will comprise a first and second round of oral argument. However, as I have already said,

the schedule for the proceedings will have to be modified, with the co-operation of the Parties.

The Republic of Guinea, which is the Applican t in the case, will be heard first. Before

giving the floor to its Agent, I wish to say that, because of the delay of almost an hour at the start of

the hearing, some adjustments will have to be made in the distribution of the speaking time

allocated to the Republic of Guinea. Since Guinea’s first round of oral argument must be

completed today, this afternoon’s sitting will be extended as necessary. Having said that, I now

give the floor to the Agent of Guinea, Mr. Mohamed Camara. You have the floor.

14 CMAr. ARA:

1. Mr. President, Members of the Court, once again it is a great honour for me to represent

my country before the Court. However, I must begin by pointing out that our delegation would be

significantly larger were it not for the effects of the volcanic ash cloud coming from Iceland: the

delegation appointed by the Prime Minist er himsel—f which was to be led by

Colonel Siba Lohalamou, Minister of Justice and Keeper of the Seals, accompanied in particular by

MsDjénabouSaïfon Diallo, Minister of Co-opera tion— has been detained in Conakry. The

seniority of the members it was due to include nonetheless reflects the importance attached by the

Republic of Guinea to the case it has brought before you, going beyond political divisions and in

spite of the difficulties which we have been able to overcome. - 8 -

2. This, despite what the Democratic Repub lic of the Congo would have you believe, is

not — at least not simply — a “big money” case, if I may use that expression. Granted, there are

financial interests at stake, even if, as I have already had the honour to explain to the Court, they

are not on the scale suggested in our Application — we acknowledge that the figures given at that

time were exaggerated, on account of our inexperien ce. More than that, however, this is a case

about basic questions of principle:

⎯ Can a State, as the DRC claims, expropriate co mpanies — whether national or foreign — and

expel those managing them, simply because they are requesting that the debts owed to the

companies in question should be honoured?

⎯ Can a State of residence “refuse entry” to an alien who has lived in its national territory for

32 years, without any other form of judicial process?

⎯ Is it acceptable to throw a person in prison— irrespective of the acts of which he stands

accused— on several occasions and for long periods, without informing him of the charges

laid against him?

⎯ Can it be tolerated that a State should use expulsion as a (poorly) concealed means of

expropriating the property of a foreign national?

⎯ Is it acceptable for the alien in question to have his property expropriated without any judicial

decision or compensation, on the pretext that the companies which he owns in the country

supposedly have that country’s nationality, even though he is the sole associé, and therefore the

sole owner?

15 3. Having said that, Mr.President, I wish to repeat in the strongest possible terms that the

referral to the Court and the maintenance of our Application must not be interpreted at all

negatively by the people and Government of the DRC, the Democratic Republic of the Congo, with

whom we have a very amicable relationship. A dispute is me rely a very small cloud in an

otherwise blue sky; but since the cloud is there, it needs to be dispersed, and this Court is the

obvious and appropriate setting in which to settle this dispute, which must in no way cast a shadow

over the excellent relations between our two sister republics.

4. Before giving them the floor, Mr. President, I should like to express publicly the Republic

of Guinea’s very sincere thanks to our counsel: their selflessness in working on this case has been - 9 -

matched only by their efficiency. And I take this opportunity to express my regret at the absence of

Professor Alain Pellet, Deputy Agent, who has also been kept away from the bar today by the cloud

of ash coming from Iceland. The oral argument he had prepared on Guinea’s right to reparation

and questions of causality will be presented by Professor Thouvenin this afternoon, which will

conclude our presentations. Before that, in a few moments, I shall be followed by Mr. Luke Vidal,

member of the Paris bar, who will give a genera l account of the facts in the case. He will be

followed this morning by ProfessorsThouvenin an d Forteau, who will explain in turn why the

DRC bears international responsibility for the arrest s and arbitrary detentions which it carried out,

and for the expulsion of Mr. Diallo; Mr. Sam Word sworth will then describe the violations by the

Respondent of the rights belonging to Mr.Diallo as sole associé of Africom-Zaïre and

Africontainers-Zaïre. This afternoon, before ProfessorThouvenin reads out our final argument,

Mr.DanielMüller will show that the actions of the DRC do in fact constitute an indirect and

unlawful expropriation of Mr. Diallo’s property.

5. Mr. President, Members of the Court, thank you for your attention. I should be grateful,

Mr. President, if you would now give the floor to Mr. Luke Vidal.

The PRESIDENT: Thank you, Mr. Camara. I now give the floor to Mr. Luke Vidal.

16 VMIr.AL:

I.T HE RELEVANT FACTS

1. Mr.President, Members of the Court, this is the first time that it has fallen to me to

address this Court, the highest international judici al body, and it is a great honour for me to be

before you, as the curtain rises on these two rounds of oral arguments, with the task of describing

the factual background to the coming proceedings. I would like to express my profound

appreciation to the authorities of the Republic of Guinea for the trust they have in this way shown

and the heavy responsibility they have placed upon me.

2. The case brought before you today for your judgment is a remarkable one, and yet,

paradoxically, its interest lies in its very simplicity. It centres on one man,

Mr.AhmadouSadioDiallo, a Guinean national, a nd his relations with the respondent State. - 10 -

Mr.Diallo was not a representative of a foreign power, even though the Republic of Guinea did,

subsequently, afford him its diplomatic protection so that his interests might be protected in the

courts. Nor was he a representative of any major industrial or economic grouping, even though it is

cross-border private interests which have, quite cl early, been behind the DRC’s bid to destabilize

and then dispossess Mr. Diallo, which has given rise to this dispute.

3. If I had to give a summary at this stage of the facts giving rise to the case which you are

called upon to decide, it is that Mr. Diallo is a foreign businessman who, in his occupation and his

life in general, came up against the arbitrary exercise of power by his State of residence, the DRC.

I. Mr. Diallo’s investments in Zaire

4. It is beyond doubt, and indeed has never been disputed by the DRC, that Mr. Diallo was

an intuitive and brilliant businessman and that the projects he led throughout the 1980s were

characterized by successes all the more remarkable in that he had no external support.

5. Having arrived in the Congo in 1964 at the age of 17, Mr. Diallo had, some 15 years later,

set up the two trading companies which were to be the vehicles for the expansion of his activity and

his business success:

(i)Africom-Zaire, first of all, which was registered in 1974, offering services in the
17

import-export field;

1
(ii) then Africontainers, incorporated in 1979, engaged in the carriage of goods .

6. Both those companies, set up in the form of private limited liability companies (sociétés

privées à responsabilité limitée) or SPRLs, were incorporated in accordance with Congolese law.

However, given the departure of the other founding shareholders (associés) 2, the entire capital of

the two corporations was, from 18 April 1980, directly or indirectly held by Mr. Diallo.

7. The business of the first company, Africom-Zaire, was plainly prosperous, both in terms

3
of its customers, which included the Congolese State itself , and of the value of the import

4
operations it was able to finance . The activity of Africontainers is however more unusual and is

1Guinea’s Memorial (MG), Anns. 1 and 2.
2
MG, Anns. 3, 34 and 46.
3MG, Ann. 13.

4MG, Anns. 46 to 51. - 11 -

worth dwelling on briefly. The reason behind th e success of Africontainers during the 1980s and

until the beginning of the 1990s lies in the development and exploitation of a concept, innovative in

the country at the time, of transporting goods by container. Whereas on occasion the public

infrastructure of the Congo could not ensure the transportation of goods under normal

circumstances, in particular of the supplies requi red for the exploitation of natural resources, the

solution developed by Mr. Diallo was quite clearly an attractive, if not vital, transport solution for

5
many economic operators .

8. A list of Africontainers’ customers and contracts gives a clear picture of the success met

by its economic model:

(i)on 1October1980, a contract was concluded with Zaire Mobil Oil 6, under which,

amongst other terms, Zaire Mobil Oil undertook, after an initial period, to use Mr. Diallo’s

company to transport each month a minimum of 400 tonnes of petroleum products, viz.

18 the equivalent of 30 containers, from the capital to the eastern region of Shaba 7 ;

8
(ii) On 24 July 1981, another agreement was signed with Zaire Shell , this time reserving to

Africontainers exclusive rights to the containerized transport of Zaire Shell’s petroleum

products along the same route from Kinshasa to the interior 9;

(iii) On 29 June 1982, it was Gécamines, no l ess, the national company responsible for all the

mining concessions in the country, which calle d on the services of Africontainers to

transport its mining products from its mines to the ports of export from the DRC 10.

9. Performance of these contracts soon marked out Africontainers as the partner of choice for

journeys between the port areas and the mining sites of the interior: in one direction, Mr. Diallo’s

company carried the products supplied to Gécamin es by the oil companies; in the other, it

transported the products mined by the State company. It made sense, therefore, that all the parties,

5
See MG, para. 2.10, p. 13.
6
MG, Ann. 6.
7Ibid., para. 3.03: “The company [Zaire Mobil Oil] undert akes likewise to make the above-referred quantities of

products available to the Carrier [Africontainers].”
8MG, Ann. 8.

9Ibid., para. 3.2: “The Parties agree that exclusive rights to transport Zaire Shell products by container shall be
granted only to Africontainers.”

10MG, Ann. 12. - 12 -

11
Africontainers, Gécamines, Zaire Mobil Oil, Zaire Fina and very soon Zaire Shell should

combine to conclude, on 13 July 1983, a “tripartite contract” 12 to regulate the traffic.

10. Those four contracts all had one-year te rms, renewable automatically for the same

period, unless expressly terminated. It is worth noting that none of them was ever formally

terminated.

11. During the 1980s, Africontainers expanded constantly, to meet the ever-growing demand

13
for transport. The acquisition of 600 containers ⎯ Mr. Diallo had undertaken, in fact, under the

19 “tripartite” contract, to “maintain a sufficient stoc k of containers” to meet any request from Zaire

14
Fina[,] Zaire Mobil Oil and soon Zaire Shell ⎯, the fivefold increase in Africontainers’ business,

which rose from 2,090 tonnes of freight carried in 1980 to 10,215 tonnes four years later, the

120 people working for the company or again the i nvestment of over four million deutschmarks in

15
acquiring a river-going container barge in 1987, are all testimony to the success of the project of

this immigrant from Guinea.

16
12. In 1984, this “brilliant idea”, in the words the press used of him , had made Mr. Diallo a

“prosperous man”, who had in only a few years beco me an indispensable partner for the foremost

companies in the Congo, first-ranking amongst which was the State company Gécamines.

II. The arbitrary measures taken against Mr. Diallo

13. The progress of Mr.Diallo’s businesses was however abruptly halted in 1988, when a

first arrest, followed by detention for over a year, put a stop to his plans. Somewhat unexpectedly,

it was from the direction of Africom-Zaire, despite its being less susceptible, by reason of its

activity, to falling foul of the interests of the public authorities, that the first dispute arose between

Mr. Diallo and the Congolese State, in the “listing paper” case.

11MG, Ann. 14.
12
MG, Ann. 13.
13
MG, Anns. 10 and 16.
14MG, Anns. 13 and 14.

15MG, Ann. 18; Observations of the Republic of Guinea (OG), Anns. 7 and 9.

16MG, Ann. 18. - 13 -

14. The facts are as follows. At the end of 1987, Africom-Zaire found itself a creditor of the

17
Congolese State, owed 178million zaires, that is to say, at the time, nearly US$1million . This

was the consideration for three orders, placed between 1983 and 1986 by the Computer Directorate

of the Finance Department of the Congolese G overnment with Mr.Diallo’s import-export

company, for office supplies, primarily for printer listing paper. Those orders had been met in

full18, to the satisfaction of the people with whom Mr. Diallo dealt, who indeed acknowledged on

that occasion how “reliable” his company was 19.

20 15. The debt to Africom-Zaire, neither th e existence nor the amount of which was ever

disputed, would in fact see the first stages of en forcement. On 13 November 1987, payment in full

was ordered by the Finance Department, which would for that purpose issue five bills of

20
exchange , falling due between January and May 1988. This was a crucial decision for the

activity of Mr. Diallo’s group, since the acquisition of a self-propelling barge by Africontainers, his

other company, was to be financed from those payments 21. The importance of that investment to

22
the DRC also explains why instructions were given to the Governor of the Bank of Zaire to “pay

23
these bills on the dates indicated” .

16. However, such a payment was plainly out of keeping with the priorities of the executive

then in power. Preferring to give precedence to certain “substantial disbursements”, it was decided,

at the highest level of the Congolese State, once and for all to ignore the debt to Africom-Zaire. On

14January1988, the Prime Minister therefore ordered suspension of payment of the bills issued,

24
two months previously, by his Finance Minister . Then, the following week, a smear campaign,

25
set in train at the highest level of the State and taken up right on cue by the Congolese press ,

would describe the issuing of the bills of exchange as the result of fraud by Mr. Diallo. It then only

1Guinea’s Reply (RG), Ann. 3.

1OG, Anns. 11 and 12.
19
MG, Ann. 26.
20
MG, Anns. 46 to 50.
21
OG, Ann. 8.
2MG, Ann. 52.

2MG, Ann. 51.

2MG, Ann. 53.
25
OG, Ann. 14. - 14 -

remained for the Respondent to deprive this Guin ean national of any possibility of refuting those

allegations. On 25 January 1988, on instructions from the Prime Minister 26, Mr.Diallo was

accordingly arrested, and subsequently imprisoned, two days later, in Makala prison.

17. One would have to wait nearly a year after his incarceration for Mr. Diallo to be released,

without any form of trial, on 3 January 1989. He would be informed only three weeks later that the

Ministère Public (Public Prosecutor) had “closed” the case, “for inexpediency of prosecution” 27.

21 As for the debt of 178million zaires, whose enforceability was, quite clearly, the sole reason for

that long and arbitrary deprivation of liberty, it has never been honoured.

18. Mr.Diallo realized then that his relations with the Congolese State authorities would

never be the same. It was not that he had given up hope of recovering from the Respondent monies

to which he was, and remains, entitled 28. However, conscious that only the greatest prudence could

shield him from actions threatening, if not his life, at least his freedom, he would never again

publicly seek to hold his public-sector partners responsible, whether they were the Congolese State,

Gécamines or Onatra.

19. Nevertheless, his involuntary absence for over a year had, it would appear, left the way

open for all manner of exploitative acts under the contracts with Africontainers 29. Mr. Diallo thus

decided to seek judicial remedies in the disput es existing for several years between his company

and its private-sector partners. The response he received from the Congolese courts could only

have vindicated his decision, until, that is, the executive saw fit to put a stop to the danger which

the actions being prosecuted by Mr.Diallo repres ented to its interests or those of companies

connected to it.

20. On behalf of Africom-Zaire and Africontainers, Mr. Diallo brought three separate actions

before the Congolese courts, seeking the recovery of commercial debts or damages from his

companies’ contractual partners. The decisions handed down in those pr oceedings confirmed not

26OG, Ann. 15.
27
OG, Anns. 16 and 17.
28OG, Ann. 18.

29MG, Ann. 55. - 15 -

only that there was, irrefutably, on each occasion, an actionable interest but, above all, that in at

least one case, that interest should have enabled Mr. Diallo to recover significant sums of money.

21. In the first two sets of proceedings, against Zaire Fina and PLZ respectively, the

Kinshasa Tribunal de grande instance found in favour of Mr. Diallo’s companies:

22 (i) on 12 August 1993, Zaire Fina was ordered to pay damages to Africontainers in partial

compensation for the injury caused by the loss of two containers which had been leased to

30
it under the “tripartite” contract ;

(ii) on 24 August 1994, PLZ, the landlord of a property leased to Africom-Zaire, was ordered

to repay to Africom-Zaire sums wrongly received in respect of rent 31.

32 33
22. On 24 February and 9 March 1994 , however, the Kinshasa Cour d’appel, hearing the

appeals of Zaire Fina and PLZ, overturned th ose judgments, although in the absence of

Africontainers and Africom-Zaire, whose submissions had been ruled inadmissible.

23. Each of Mr.Diallo’s companies then lodged an appeal on points of law. The

submissions filed in those proceedings by the Ministère Public, in January 34 and April 1995 , are

similar in both cases. Having upheld such unambi guous grounds of appeal as the “inadequacy [or,

even] absence of a statement of reasons”, and the “misapplication or mistaken application of the

law”, the Ministère Public submitted that the contested judgments should be quashed 36. The final

outcome of those disputes is not yet known, since the Cour de cassation has never ruled on

Mr. Diallo’s appeals, after his sudden expulsion from Congo in 1996.

24. The third set of proceedings is, in fact, the direct cause of that expulsion, although it does

not, any more than the other two disputes, justify it. The chronology of the action between Zaire

Shell and Africontainers in fact follows that of the coercive measures taken against Mr. Diallo.

3Preliminary Objections presented by the Democratic Republic of the Congo (PODRC), Ann. 53.
31
MG, Ann. 130.
32
PODRC, Ann. 54.
3MG, Ann. 146.

3Ibid.

3MG, Ann. 149.
36
Ibid. - 16 -

25. On 3 July 1995, the Kinshasa Tribunal de grande instance upheld the claims brought by

23 Mr.Diallo’s company against Zaire Shell and accordingly ordered the oil company to pay an

amount valued at the time at more than US$13 million, and also ordered provisional enforcement

of the decision 37.

26. By all appearances, that decision caused great concern to the oil company, above all after

its first application for a stay of the provisiona l enforcement was dismissed, on 24 August 1995, by

the Kinshasa Cour d’appel 3. Five days later, on 29 August, Zaire Shell had no hesitation in

39 40 41
requesting , and then demanding , of the Minister of Justice a “decision to save [its] property” ,

thereby confirming the collusion be tween the executive and the oil co mpanies to defeat the court

rulings which had upheld Mr. Diallo’s claims.

42
27. Things were indeed becoming awkward for Zaire Shell. Twice, on 13 and

43
28 September 1995, the First President of the Kinshasa Cour d’appel and then the Minister with

responsibility drew attention to the fact that, notwithstanding the appeals lodged by Zaire Shell, the

44 45
contested judgment remained enforceable. Likewise twice, on 13September and 6October ,

Mr. Diallo, his entitlement confirmed by the view of the Cour d’appel, attempted to levy execution

of the judgment against Zaire Shell. Each ti me, however, even as the bailiff was carrying out the

forced execution of the first instance judgment, the executive intervened to have the seizures of the

46
company’s property lifted .

28. That response by the execu tive was apparently still not enough for the oil companies.

Zaire Fina and Zaire Mobil Oil then joined Zaire Shell to complain about Mr.Diallo and request

24
directly of the Prime Minister, on 15 November 1995, “Government intervention to warn the courts

3MG, Ann. 153.

3PODRC, Ann. 65.

3MG, Ann. 166.
40
PODRC, Ann. 72.
41
MG, Ann. 166.
42
MG, Ann. 170.
4MG, Ann. 177.

4MG, Ann. 171.

4MG, Ann. 179 and OG, Ann. 26.
46
MG, Ann. 171 and OG, Ann. 26. - 17 -

and tribunals of Mr.DialloAmadou Sadio’s ac tivities in his campaign to destabilize trading

47
companies” .

29. In actual fact, the Head of Government had by that time already fulfilled the hopes of the

oil companies. As early as the preceding 31Octobe r, that is to say, in the days following the

attachment of Zaire Shell’s accounts on application by Mr.Diallo, an expulsion decree had been

48
issued against him , and he was then arrested and de tained until his departure could be

organized 49.

30. Mr. Diallo’s actual “refusal of entry to” Congolese territory only took place three months

later, on 31 January 1996, and th e Parties to these proceedings dispute what happened during that

period. Far from the contrived in terpretation advanced by the Res pondent in its attempt to justify

the treatment meted out to a Guinean national, the manner in which Mr.Diallo was, again,

repeatedly deprived of liberty, is clearly established in the documents produced in the proceedings:

50
(i)he was arrested on 5November1995 , under no legal or administrative provision

whatsoever, and would be detained directly in the “immigration department’s lock-up” for

more than sixty days 51;

52
(ii) he would then be released, without trial, on 10 January 1996 , on instructions from the

Congolese President himself 53;

(iii) however, this was only to be rearrested, f our days later, on 14 January, on the instructions

54
of the Prime Minister, who had obviously decided to enforce his expulsion decree , even

though it involved disregarding the wishes of the Head of State and the views of his own

Minister of Justice who had, for his part, upheld Mr. Diallo’s claims 55;

4PODRC, Ann. 74.
48
The DRC’s Counter-Memorial (CMDRC), Ann. 5.
49
OG, Ann. 27.
50
Ibid.
5MG, Ann. 193.

5MG, Ann. 194.

5RG, Ann. 2.
54
CMDRC, Ann. 5.
55
RG, Ann. 2 and MG, Ann. 177. - 18 -

25 (iv)lastly, on 31 January 1996, after a furt her fourteen days’ detention, Mr.Diallo was

expelled from the Congo, without even bei ng able to recover his personal possessions 56.

The newspaper Evénement de Guinée would describe his return to his native country as

follows: “He arrived in Conakry penniless, having just the coat and pants he was wearing.

Rich yesterday, destitute today.”

31. A Zairean newspaper published, in its 6 February 1996 edition 5, a report that the plane

ticket needed for Mr.Diallo’s expulsion was paid for by Zaire Shell. That report, which was

58
confirmed by Guinea’s Ambassador in Kinshasa at the time , has never been disputed by the

DRC. It must therefore be taken as correct and is a good illustration of the fact that, behind the ⎯

already crumbling ⎯ façade of an administrative procedure, the expulsion was the last ac
tion in a

campaign orchestrated at the highest level of political and financial power in the country, to put an

end to an astute businessman’s thirty-two year presence in the Congo.

32. Mr.Diallo did not, after his involuntary departure from Zaire, give up all hope of

continuing his activities or, at the very least, of protecting his rights in his former country of

residence. However, those wi shes need to be seen well and truly in the context of the

circumstances in which he found himself on his return to Guinea.

33. Mr.Diallo had spent his entire adult life in the Congo. All his investments had been

made and he had built up his whole fortune in th at country. If he was heavily burdened by debt

59
already in 1995, when he was still struggling to assert his companies’ rights in the courts , his

abrupt expulsion the following year plunged him into utter destitution 60. He no longer had the

means to pursue his activities, in any effective way, in his former country of residence.

34. This concludes my account of the facts of this dispute.

26 35. I thank you, Mr.President, Members of the Court, for giving me your attention, and

would ask you, Mr. President, to give the floor to Professor Jean-Marc Thouvenin, who will set out

56RG, Ann. 1.

57MG, Ann. 196.
58
RG, Ann. 2.
59OG, Ann. 22.

60RG, Ann. 1. - 19 -

the violations of international law committedby the Respondent on the two occasions on which

Mr. Diallo was arrested.

The PRESIDENT: Thank you, Mr.LukeVidal. I shall now give the floor to

Professor Jean-Marc Thouvenin.

Mr. THOUVENIN:

II.THE DRC’ S RESPONSIBILITY ARISING FROM

M R. DIALLO ’S ARREST AND DETENTION

Mr. President, Members of the Court, it is always an honour and very moving for me to

appear before your Court, and I sincerely th ank the Republic of Guinea for giving me the

opportunity to do so.

1. Mr. President, the facts whose chronology has just been set out by Mr. Vidal clearly show

three sets of serious events, during which the Respondent State committed multiple violations of

Mr. Diallo’s rights as an individual: his arrest and detention in 1988-1989; his arrest and detention

on several occasions between 1995 and 1996 and his expulsion in 1996.

2. Professor Forteau will revert in detail to Mr .Diallo’s expulsion so I will not deal with it

here. My task is to show that the various arrests and detentions engage the responsibility of the

Democratic Republic of the Congo by virtue of the violations of international law which

characterized them. I will first show that the facts are established (I), then that they constitute

numerous wrongful acts (II).

I. Establishment of the facts

A. Arrest and detention from 1988 to 1989

Facts not disputed

3. Mr. President, Members of the Court, strictly as regards proof of the facts being discussed

before you, the pleadings amply show you, and the DRC accepts or does not dispute:

27 (i) that “Mr. Diallo was arrested on 25 January 1988”;

61
RDRC, p. 9, para. 1.26; see also, RG, p. 8, para. 1.13. - 20 -

(ii) that he was arrested solely at the behest of the First State Commissioner, or then Prime

62
Minister of Zaire ;

(iii) that the judicial inspector before whom Mr.Diallo was brought during his detention was

not independent of the executive authorities. He was, according to the DRC, “an

63
instrumentality of the executive” ;

(iv) that Mr. Diallo was detained for a year without a hearing, until January 1989 64;

(v) that at no time was Mr. Diallo informed of his rights under Article 36 (1) (b) of the Vienna

65
Convention on Consular Relations ;

(vi) that the only known charges brought by the head of the Zaïrean Government against

Mr. Diallo for his imprisonment related exclusively to the debt owed to Africom by Zaire,

amounting to 178700000 Zaires 66, a sum which “[t]he Democratic Republic of the

Congo has never denied owing to Africom-Zaire” 67.

What is disputed between the Parties

4. The above facts are established. The Parties disagree solely on the ground for

Mr. Diallo’s arrest and detention.

5. Here, the Court will have to decide between two arguments. Guinea’s argument is that the

“documentary evidence” (Territorial and Maritime Dispute between Nicaragua and Honduras in

the Caribbean Sea (Nicaragua v. Honduras), Judgment, I.C.J. Reports2007 , p.708, para.161)

included in the written pleadings shows that the onl y reason why Mr. Diallo spent a year of his life

in the Zaïrean jails was the decisi on by the head of the Zaïrean Government not to honour the debt

28 indisputably owed to Africom 68. Meanwhile, the DRC argues that Mr.Diallo was imprisoned as

part of a judicial investigation by law officers in the Prosecutor’s Office of Kinshasa into acts of

62
RDRC, p. 10, para. 1.27; see also, RG, p. 11, para. 1.20.
63
RDRC, p. 9, para. 1.26; see also, RG, p. 13, para. 1.24.
64
RDRC, p. 10, para. 1.28; see also, RG, pp. 9-10, para. 1.16.
65CMDRC, p. 15, para. 1.19; see also, RG, p. 24, para. 1.49.

66RDRC, pp. 7-8, paras. 1.15-1.16; see also, RG, pp. 7-8, paras. 1.9-1.13.

67CR 2006/50, p. 19, para. 15.
68
Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo) , Preliminary Objections,
Judgment, I.C.J. Reports 2007, p. 591, para. 18; RG, pp. 7-10, paras. 1.9-1.16. - 21 -

69
fraud of which he had, rightly or wrongly, been accused . Members of the Court, this argument

does not bear scrutiny.

6. Firstly, no charge of fraud was brought by Zaïrean justice against Mr. Diallo in this case.

It was the First State Commissioner at the time, Mr. Mabu Mulumba, who alone took the initiative

to have an announcement broadcast on national radio and televisi on saying that Mr.Diallo had

70
sought to defraud the sum of 178700700 Zaires from the public purse , whereas he well knew

that that sum was owed and did not constitute any embezzlement, as the Respondent has

consistently recognized 71.

7. Furthermore, the only accusation of fraud of which Mr. Diallo or the Embassy of Guinea

knew was not judicial in origin. The only accusa tion of which they were informed is the one

relayed by the press, radio and television, following the initiative by the First Commissioner of

72
Zaire .

8. And there was never another one, as witnessed by the fact that the press was the only

source of information for the judicial officers also. Symptomatically in this respect, when

Mr.Diallo was arrested, the only reply as to the reasons for his arrest given by the officials

concerned was simply to ask whether he had heard the news 73. Clearly, that was all they knew.

Also, and even more significant, the only information given to Mr. Diallo by the judicial authority

before which he was brought during his detention was that his “arrest was related to the Prime

Minister’s communiqué” 74. The judicial authority therefore had no file, no indictment, nothing to

29 show to Mr.Diallo authorizing his arrest then his imprisonment, other than the Prime Minister’s

communiqué. Nor does the DRC dispute this, since, on the contrary, it relies on this fact in its

75
attempt to find support for its defence .

69RDRC, p. 7, para. 1.16.

70RG, Vol. II, p. 5, Transcript of hearing of the victim, Mr. Diallo.
71
PODRC, pp. 13-14, para. 1.10; CR 2006/50, p. 19, para. 5.
72
RDRC, p. 7, para. 1.15.
73RG, Vol. II, p. 2, Transcript of hearing of the victim (Mr. Diallo).

74Ibid., p. 6.

75RDRC, p. 8, para. 1.22. - 22 -

9. Secondly, there is no doubt, nor is it disputed, that it was indeed the First Commissioner of

State in person who ordered Mr. Diallo’s arrest. Not a judicial authority. Moreover, his successor,

Mr. Sambwa Piba Nbagui expressly confirmed this in a letter of 4 July 1988 referring to “the order

given by my predecessor to bring Mr.Diallo before a court” 7. The DRC has no option but to

77
acknowledge this in its Rejoinder .

10. Thirdly, the First State Commissioner’s only motive for launching a media campaign

against Mr.Diallo and throwing him into pris on is revealed by his letter of 14January1988

addressed to the Minister for Finance instructing hi m not to settle the debts owing to Mr. Diallo’s

company because he wished to keep the Government ’s resources intact so as to meet “substantial

78
commitments”, such as elections . There is strictly no trace of any other motive whatever in the

pleadings submitted to the Court, a fact, moreover, not disputed by the DRC.

11. Fourthly, no investigation of any kind was conducted in this case. And if the

investigation was closed for “reasons of inexpediency of prosecution”, this was only as a result of

79
an about-turn by the executive .

12. Mr. President, Members of the Court, everything points to the conclusion:

⎯ that it was not in connection with a judicial i nvestigation that Mr.Diallo was arrested, but

following a media campaign orchestrated by the executive;

⎯ that no investigation was conducted by law offi cers in the Prosecutor’s Office, who were

merely obeying instructions from the executive;

30 ⎯ that no act of fraud of any kind was ever alleged before a Congolese court in 1988 with respect

to Mr. Diallo, whose financial claims on Zaire have never been disputed.

13. Mr.Diallo was therefore not a victim of judicial proceedings but of patently arbitrary

acts. Yet the Respondent believes it can justify itsel f by maintaining that “the events which befell

Mr.Diallo are repeated in Guinea and wheresoever in the worl d someone suspected of having

committed an offence may be placed on remand for purposes of judicial investigation” 80. No,

76RG, p. 9, para. 1.14.

77RDRC, p. 10, para. 1.27.
78
RG, pp. 7-8, para. 1.11.
79RG, p. 10, para. 1.16.

80RDRC, p. 7, para. 1.17. - 23 -

Mr. President, whatever our opponents may say, I do not believe that every day persons of foreign

nationality (any more than nationals moreover) are thrown into prison, outside any judicial context,

because their companies have undisputed amounts owing from the State for which they have

performed services.

14. Visibly ill at ease with its past, the DRC complains in its Rejoinder that it was only

informed of the events of 1988 after the end of the proceedings on the preliminary objections.

Until its Reply, Guinea thus allegedly “omitted to accuse the DRC of arbitrarily arresting and

detaining Mr. Diallo in 1988” 81.

15. Mr.President, Guinea is all the more at a loss to understand this allegation as the

Judgment of 24 May 2007, which the DRC has read, and which predates the Reply, refers not once

but twice, and unambiguously, to the events of 1988 . Paragraph 18 of that Judgment contains the

comment:

“Guinea contends that MrD . iallo had already suffered one year of

imprisonment, in 1988, after trying to recover debts owed to Africom-Zaire by the
Zaïrean State.” (Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic
of the Congo), Preliminary Objections, I.C.J. Reports 2007, p. 591, para. 18.)

Then, in paragraph 45, the Court further states that:

“Guinea described in detail the violations of international law alleg
edly committed by
the DRC against Mr.Diallo. Among those c ited is the claim that Mr.Diallo was

arbitrarily arrested and detained on two o ccasions. First in 1988 and then in 1995.”
(Ibid., p. 600, para. 45.)

31 16. This shows how solid the Congo’s criticis m is, and it is highly doubtful whether, when

presenting its oral pleading, the Respondent will be able to explain away its alleged surprise on

reading the Reply, whereas the facts it refers to were already known “in detail” by the Court in

2007. The Congo’s indignation is patently mere artifice, as it is clear that the Respondent had

every opportunity to familiarize itself with the facts of 1988 well before the 2007 Judgment, and

has had many an opportunity to comment upon them. The DRC did not do so before its Rejoinder.

It may well regret this now, but the fact nevertheless remains that, as the Court pointed out:

“[TD]he did not address the issue of exhaustion of local remedies in respect

of Mr. Diallo’s arrest, his detention or the alleged violations of his other rights, as an
individual, said to have resulted from those measures, and from his expulsion, or to
have accompanied them.” (Ibid.; emphasis added.)

81
RDRC, p. 5, para. 1.08. - 24 -

17. It therefore ill becomes the Respondent to complain of “procedural complications”, the

nature of which, moreover, it does not explain 82. But, Mr.President, the DRC’s errors go far

beyond procedural quibbles, because they are also pa tent when it seeks to dispute the substance of

the facts of 1995-1996.

B. The events of 1995-1996

Facts which are undisputed

18. The Parties agree that Mr. Diallo was unde niably arrested and imprisoned several times

in 1995 and 1996 before being expelled. It is also not disputed that he was not informed of his

83
rights under Article 36 (1) (b) of the Vienna Convention on Consular Relations .

What is disputed between the Parties

19. On the other hand, the Parties disagree on the dates of the periods of imprisonment and

release, on the number and duration of the periods in detention, on the motives for the detentions

84
and their arbitrariness .

32 20. As regards the number and length of th e periods of imprisonment, the argument put

forward in the DRC’s Counter-Memorial is that ther e were allegedly three periods of detention, all

lasting less than eight days. And it is on the basis of this argument that it claims that no period of

detention exceeded the maximum of eight days fixed by Congolese law ⎯ even though the total of

periods of detention which Congo admits amounts to 16 days, which in any event runs counter to

the requirements of Zaïrean law, which does not allow more than eight days’ detention per

expulsion proceedings, whether those eight days are split up into several periods of detention or

not 85. The DRC had no objection at all to the deta iled discussion of the evidence on this question

presented in the Reply, under the terms of which it is indisputable that Mr. Diallo was detained for

86
two periods well in excess of eight days, of 66days and two weeks respectively . So I shall not

go over this again, and would respectively invite the Court to refer to it.

8RDRC, p. 6, para. 1.13.
83
RG, pp. 24-26, paras. 1.49-1.53.
84
RG, p. 15, para. 1.29.
8RG, p. 15, para. 1.30.

8RG, pp. 15-18, paras. 1.29-1.40. - 25 -

21. For the rest, the Respondent confines itsel f to “a few brief observations”, claiming to

dispute the fact that the sole motive for the arrests and detentions was, as Guinea maintains, to

prevent Mr.Diallo from recovering the debts due to his companies, of which he was gérant and

87
sole associé . This is allegedly contradicted, accordi ng to the Rejoinder, by a communiqué from

the Ministry of Justice in January 1996, which proves Mr. Diallo right by saying that the debts held

88
by Mr. Diallo’s companies were due and should be paid to them . For the DRC, this is enough to

demonstrate that the Congolese Government never sought to prevent Mr.Diallo from recovering

debts since, on the contrary, he had allegedly publicly confirmed them through his representative,

the Minister of Justice.

22. Mr.President, all this communiqué shows is that the Minister of Justice was convinced

of the merits of Mr. Diallo’s claims. In no wa y does it show that this was the case of the executive

as a whole. Yet, in 1996 precisely, the Government was deeply divided. The episode in January

1996 provides a spectacular illustration of th e serious dissent in the Congolese Government

33 regarding the sums due to Mr. Diallo’s companies, between the First Commissioner of State’s clan

and President Mobutu’s clan. The chronology of the events between September 1995 and

Mr. Diallo’s expulsion shows the gravity of that dissent. In this respect, it should be noted that:

⎯ on 13September1995, the execution of the “fully enforceable” judgment of the Kinshasa

Tribunal de Grande Instance , which had ordered Zaire Shell to pay Africontainers over

$13 million was stayed on the direct but purely verbal orders of the Vice-Minister of Justice 8;

⎯ on 28September, the Minister of Justice contradicted his Vice-Minister and asked the First

90
President of the Court of Appeal to make arrangements for the enforcement of the decision ;

⎯ on 6 October, the seizure of the property resumed 91;

⎯ on 13October, the Minister went back on hi s decision and verbally instructed the First

President of the Kinshasa Gombe Court of App eal to release the attachments and return the

92
property seized ;

8RDRC, p. 13, para. 1.41.
88
Ibid.
89
RG, p. 9, para. 1.41.
9RG, p. 20, para. 141.

9Ibid. - 26 -

⎯ on 31October, the First State Commissioner, KengoWaDondo, signed a decree ordering

Mr. Diallo’s deportation 93;

94
⎯ on 5 November, Mr. Diallo was apprehended and imprisoned until 10 January 1996 ;

⎯ on 10January, he was released following the in tervention of PresidentMobutu, who was

manifestly opposed to the policy pursued by Mr. Dondo in this case 95;

⎯ the same day, a report by the Minister of Jus tice, again acting against the instructions of

Mr. Dondo, said that the debts due to Mr . Diallo’s companies would be paid ; 96

97
34 ⎯ Mr. Diallo was immediately rearrested and imprisoned on the instructions of Mr. Dondo , then

expelled (“refoulé”) on the border.

23. This chronology, which sets out the facts which are undisputed, unambiguously shows

that Mr. Diallo was at the centre of a political conflict which went far be yond his own person, but

also that Mr. Diallo was at the centre of a political conflict in which the sole issue at stake was the

payment of the debts concerned. Divided as it was, the Government had no unity or consistency on

this matter, contrary to what the DRC would have us believe by claiming that the Minister of

Justice was its faithful mouthpiece 98. This explains the fact that Mr. Diallo was sometimes backed,

but most often obstructed, in his attempts to defe nd the interests of the companies of which he was

the gérant [manager] and only associé, in particular by two successive periods of imprisonment.

But there is absolutely no doubt that it was ultima tely the First Commissioner of State who carried

the day, by resorting to the mo st effective and radical means, being without appeal: expelling

Mr. Diallo, or rather, refusing him entry.

24. I would add that, in any event, the Committee of the Minister of Justice had no effect

whatever on the totally arbitrary nature of the treatment inflicted on Mr.Diallo, since it did not

prevent him from being again imprisoned then expelled without any legal proceedings.

92RG, p. 20, para. 141.

93Ibid.
94
Ibid.
95
RG, Vol. II, p. 16, Transcript of hearing of witness (Mr. Abdoulaye Syll a, former Ambassador of the Republic
of Guinea in Kinshasa).
96
Ibid., p. 17.
97Ibid.

98RDRC, p. 13, para. 1.42. - 27 -

Consequently, Mr.President, Members of the Court, these acts can but engage the Congo’s

responsibility, constituting as they do violations of major treaty provisions to which the DRC and

Guinea are parties, namely, Article36(1) (b) of the 1963Vienna Convention on Consular

Relations, and Article9 of the 1966Covenant on Civil and Political Rights, to which might be

added Article 6 of the African Charter on Human and Peoples’ Rights.

II. The unlawful acts

25. Mr.President, Guinea has already demonstrated at length the unlawfulness of the acts

perpetrated by the DRC, notably in its Reply 99, and I would respectfully ask the Court to refer to it,

as the Rejoinder either does not reply to it at all(A), or replies to it with inconsistent

observations (B).

35 A. What the Rejoinder omits

The violations of international law constituted by the arrests and detentions in 1995 and 1996

26. An analysis of what the Rejoinder omits shows that the Respondent has refrained from

disputing most of Guinea’s arguments relating to the violations of international law committed by

the arrests and detentions in 1995 and 1996. I will thus have no need to revert to the unlawfulness,

with respect to the Covenant on Civil and Political Rights or the African Charter on
Human and

100
Peoples’ Rights, of both the duration of the periods of imprisonment and the conditions in which

the arrests and detentions occurred 101.

The violations of Article 36 (1) (b) of the Convention on Consular Relations

27. But the Respondent’s silence regard ing the violations of Article 36 (1) (b) of the Vienna

Convention on Consular Relations is somewhat unsettling when it suggests that the DRC does not

plan to amend its practices in future. Indeed, it has hardened its completely indefensible position

set out in the Counter-Memorial, according to which it was not under an obligation to inform

Mr.Diallo–– which it did not do––the only obligations imposed upon it by Article36(1) (b) of

99RG, pp. 21-26, paras. 1.42-1.53.
100
RG, pp. 21-24, paras. 1.42-1.48.
10RG, para. 1.48 and p. 44, para. 1.112. - 28 -

the Vienna Convention being allegedly to res pond favourably to any request from an alien in

102
detention for the consular authorities to be informed . The DRC therefore allegedly committed

no offence in not informing Mr. Diallo of his rights.

28. This is currently the DRC’s position and, logically, Mr.President, it must be inferred

that, according to its current practices, the DRC doe s not always inform foreign nationals of their

rights under the Convention. However, the Court has already unambiguously noted the

unlawfulness of such an omission. In the LaGrand case, the Court found almost unanimously, that:

“by not informing Karl and Walter LaGrand without delay following their arrest of

their rights under Article36, paragraph1 (b) of the Convention... the United States
36 of America breached its obligations to... the LaGrand brothers” ( LaGrand
(Germany v. United States of America), Judgment, I.C.J. Reports 2001 , p.515,
subparagraph (3) of the operative paragraph).

29. The Judgment delivered in the Avena case further emphasized that the obligation to

inform is unconditional and cannot be adapted to the circumstances or particular situation of

arrested aliens. The Court has stated that “the clear duty to provide consular information under

Article 36, paragraph (1) (b), does not invite assumptions as to what the arrested person might

prefer, as a ground for not informing him” (Avena and Other Mexican Nationals (Mexico v. United

States of America), Judgment, I.C.J. Reports 2004 (I), p. 46, para. 76).

30. The cases I have just cited concern the Un ited States of America, but this also obviously

applies to all the other parties to the Convention. The DRC’s responsibility cannot therefore but be

duly recognized.

B. The inconsistent observations in the Rejoinder

Violations of Article 9 (1) of the Covenant

31. The DRC breaks its self-imposed silence in its Rejoinder by stating that Mr. Diallo was

allegedly arrested and detained in 1988-1989 in connection with a judicial investigation into fraud

and in accordance with Congolese criminal procedure. This assertion is clearly intended to give the

impression that the Congolese acts comply with Article 9 (1) of the Covenant on Civil and Political

Rights, according to which “no one shall be subjected to arbitrary arrest or detention. No one shall

102
RDRC, pp. 24-25, para. 1.50. - 29 -

be deprived of his liberty except on such grou nds and in accordance with such procedure as are

established by law.”

32. To defend itself against any accusation of arbitrariness, the DRC therefore refers to a

judicial procedure. But where are the acts evincing it? They are not in the case documents.

However, it is indeed for the DRC to prove what it claims, for it is “a general principle of law,

confirmed by the jurisprudence of this Court, that a party which advances a point of fact in support

of its claim must establish that fact” ( Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle

Rocks and South Ledge (Malaysia/Singapore), Judgment of 23 May 2008, para. 45; Application of

the Convention for the Prevention and Punishment of the Crime of Genocid
e (Bosnia and

Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 , p.128, para.204, citing

37 the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.

United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports1984 , p.437,

para.101). Also, as regards the violations of Artic le9 of the Covenant, the burden of proof lies

even less with the victims alone for the obvious reason that, in the cases which deal with this,

103
“frequently the State party alone has access to the relevant information” . This is precisely the

case here. Moreover, it is because it is the only one to have all the documents likely to prove its

assertions that the level of requirements as regards proof generally required of a State claiming that

a disputed arrest is not arbitrary is so high. On the other hand, th e untenable nature in this respect

of the DRC’s position, limited as it is to vague assertions without even a scintilla of proof, is

readily apparent from even a brief glance at the Famara Koné v. Senegal case, which came before

the Human Rights Committee. In that case, the United Nations Human Rights Committee was

convinced of the absence of arbitrariness beca use, according to the Committee, the Respondent

had:

“provided detailed information about the charges against the author [of the complaint],
their legal qualification, the procedural requirements under the Senegalese Code of
Criminal Procedure, and the legal remedies available to the author to challenge his

detention. The records reveal that these charges were not based, as claimed by the

10Human Rights Committee, Co mmunications No.146/1983 Baboeram Adhin and others v. Suriname, views
adopted on 4Apr. 1985, para.14.2; No.139/1983, Conteris v. Uruguay, views adopted on 17July1985, para.7.2;
No. 202/1986, Graciela alto del Avellanal v. Peru, views adopted on 31Oct. 1988, para.9.2; No.30/1Bleier v.
Uruguay, views adopted on 29Mar.1982, para.13.3; No.107/1981, Elena Quinteros Almeida v. Uruguay, views

adopted on 21 July 1983, para. 11; No. 992/2001, Bousroual v. Algeria, views adopted on 30 Mar. 2006, para. 9.4. - 30 -

author, on his political activities or upon his expressing opinions hostile to the
Senegalese government.” 104

Mr.President, the contrast with the vague Congolese assertions is striking and, of course, the

Respondent’s argument can only be rejected.

Violations of Article 9 (2) of the Covenant

33. It also flies in the face of all evidence that the DRC should maintain that Mr. Diallo was

adequately informed of the motives for his a rrest, in accordance with the requirements of

Article 9 (2), of the Covenant, according to which the authorities must inform persons it arrests, at

the time of arrest, of the reasons for their arrest and must be promptly informed of any charges

38 against them 105. Whether it likes it or not, asking Mr.Diallo whether he had heard the news 106,

does not meet the criteria of “information” within the meaning of Article 9 (2) of the Covenant, in

107
other words, of being informed “sufficiently” .

Violations of Article 9 (3) of the Covenant

34. Not only was he not “informed”, but Mr. Di allo was also not brought before a judge or

other officer authorized by law to exercise judi cial power, according to the obligation set out in

Article 9 (3) of the Covenant, under which anyone arrested or detained on a criminal charge ⎯ and

it is hard to see how fraud could fail to fall within the field of criminal law ⎯ must be brought

promptly before a judge or other officer authorized by law to exercise judicial power. The Judicial

Inspector assigned to the Prosecutor’s Office, befo re which Mr.Diallo was brought, can patently

108
not be characterized as an officer authorized by law within the meaning of this text . The DRC

seeks to evade this obvious fact by emphasizing, in its Rejoinder, that the Covenant does not state

that the authority referred to must be independent of the executive 109. But this is what is pointed

out by the Human Rights Committee, which consistently maintains that a prosecutor cannot be

regarded as having the necessary institutional obj ectivity and impartiality to qualify him as an

10Communication No. 386/1989, Famara Koné v. Senegal, finding adopted on 21 Oct. 1994, para. 8.3.
105
RDRC, pp. 8-9, paras. 1.21-1.22.
106
RG, Vol. II, p. 5.
10HRC No.43/1979, Adolfo Drescher Cadas v. Uruguay, 21July1983, paras.13.2 and 14; see also,
L. Hennebel, La jurisprudence du comité des droits de l’homme des Nations Unies, Brussels, Bruylant, 2007, p. 166.

10RG, p. 13, para. 1.24.

10RDRC, p. 9, para. 1.26. - 31 -

110
“officer authorized by law” . Also, it is not so much the organic link between the judicial

inspector and the executive which raises a problem in this case, but the fact that the said judicial

inspector was obeying the direct orders of the First State Commissioner 11.

35. Mr. President, Members of the Court, it was as a result solely of these direct orders that

Mr. Diallo, in 1988, spent a year of his life in detention on remand without ever appearing before a

judge. The assertion of the Respondent, for which this year lost by Mr.Diallo was “strictly

112
39 necessary” in order to finish the judicial investigation concerning him is a further gratuitous and

baseless assertion which cannot exonerate its responsibility.

Violations of Article 9 (4) and (5) of the Covenant

36. All the less so since, during that long year, Mr. Diallo was unable to pursue any remedy

for a ruling on the legality of his detention or on possible reparation, as laid down by Article 9 (4)

and (5) of the Covenant 113. The Code of Criminal Procedur e behind which the Respondent hides

114
made no difference at all : no remedy of any kind was accessible to Mr. Diallo, since the office

of the Judicial Inspector had clearly told him that he had no hope in that respect, strict instructions

115
for his detention “until further notice” having been given by the First Commissioner of State .

37. Mr.President, Members of the Court, neith er the Zaïrean Code of Criminal Procedure

nor the other arguments put forward by the DRC w ill allow it to evade its responsibility stemming

from the numerous rules of international law which it has breached in arbitrarily arresting then

imprisoning Mr. Diallo, in 1988 and also in 1995 and 1996.

This concludes my comments, so may I ask you, Mr.President, to give the floor when you

think it appropriate to Professor Forteau.

The PRESIDENT: Thank you, Mr. Thouvenin. I now give the floor to Professor Forteau.

Mr. FORTEAU: Thank you, Mr. President.

11L. Hennebel, op. cit., p. 168.
111
RG, p. 13, para. 1.24.
112
RDRC, p. 11, para. 1.30.
11RG, p. 14, para. 1.27.

11RDRC, p. 11, para. 1.33.

11RG, p. 13, para. 1.24. - 32 -

IV. T HE EXPULSION

1. Mr.President, Members of the Court, it is a very great honour to appear before the

principal judicial organ of the United Nations to defend the interests of the Republic of Guinea in a

40 case which will enable to Court to make helpful clarifications on the scope and operation of certain

“internationally guaranteed” rights of individuals ( Ahmadou Sadio Diallo (Republic of Guinea v.

Democratic Republic of Congo), Preliminary Objections, Judgment, I.C.J. Reports 2007 , p.599,

para. 39).

2. Professor Thouvenin has just referred in that regard to the arbitrary arrests and detentions

of which Mr. Ahmadou Sadio Diallo was the unfortunate victim. It falls to me to set out in what

respects Mr. Diallo’s expulsion was also, for its part, decided upon and carried out in violation of

the international obligations of the respondent St ate. I shall do so, Mr.President, forthwith.

However, that involves my dispelling, at the outset, a double ambiguity which could impact on the

Court’s examination of the expulsion issue.

First preliminary observation

3. The first of these ambiguities concerns the word “expulsion” itself. Although Guinea

speaks of “expulsion”, it must be pointed out that this is purely within the meaning of international

law, and not within the meaning of Congolese domestic law. Expulsion in international law is in

fact a concept autonomous of domestic legislati on, one which is generally understood as including

“any measure compelling the alien’s departure from the territory where he was lawfully

116
resident” . The fact that there may be an expulsion within the meaning of international law does

not necessarily mean, conversely, that the charact erization as such corresponds to the definition

used domestically by the national authorities r esponsible for the measure in issue in these

proceedings.

4. We are in the present case in precisely that latter situation. Mr. Diallo was beyond doubt

expelled within the meaning of in ternational law since he was compelled to leave the territory

116ECHR, Judgment of 5Oct.2006, Bolat v. Russia, Application 14139/03, para.79, or Judgment of
12 Feb. 2009, Nolan and K v. Russia, Application 2512/04, para.112 (www.echr.coe.int); United Nations International
Law Commission, Memorandum prepared by the Secretariat, Expulsion of aliens , A/CN.4/565, 10July2006, p.58,
para.67; second report on the expulsion of aliens submitted by MauriceKamto, A/CN.4/573, 20July2006, p.63,
para. 194, draft Article 2 (b); Sir Robert Jennings and Sir Arthur Watts (eds.), Oppenheim’s International Law, Vol.1,
Peace. Parts 2 to 4, Longman, 1996, p. 940, footnote 1. - 33 -

where he was lawfully resident 117. Yet that did not mean that Mr. Diallo was “expelled” in terms

of the Congolese legal system. He was the object of a “refusal of entry”. The Court drew attention

41 to this in its Judgment on the preliminary objections, stating that Mr.Diallo “was justified in

relying on the consequences of the legal characte rization thus given by the Zairean authorities”

(Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of Congo), Preliminary

Objections, Judgment, I.C.J. Reports 2007, p. 601, para. 46).

5. As we set out in the Reply, that charact erization amounted to an abuse of procedure and

this is one of the reasons why Mr. Diallo’s expul sion cannot be treated as having been ordered “in

accordance with law” as nevertheless required by the rules applicable to this dispute 118.

Second preliminary observation

6. The second ambiguity which I would like to dispel at the outset concerns the part which

the expulsion plays in Guinea’s action. Of course, and this will be the subject-matter of my

statement, it is firstly as an expulsion per se that it gives rise to responsibility in view of the fact

that it was carried out in such circumstances and in such a manner that the international rules

governing the power to expel were violated. The role of the expulsion in the responsibility

incurred by the DRC, however, by no means ends there and two important things need to be said in

that regard.

7. First, the expulsion was also one of the “means” ( Oil Platforms (Islamic Republic of

Iran v. United States of America), Preliminary Obj ections, Judgment, I.C.J. Reports 1996 (II) ,

p. 811, para. 21) ⎯ itself wrongful, in fact ⎯ of violating other international obligations, in

particular those concerning the protection of Mr.Diallo’s property rights and rights as associé.

Those rights were in effect violated by the very fact of the expulsion as Sam Wordsworth and then

119
Daniel Müller will demonstrate .

8. Secondly and consequently, given these inextricably-linked wrongful acts, there are

several alternative grounds for the obligation to make reparation for the loss caused to Mr. Diallo.

It is for example clear that the economic loss suffered by Mr.Diallo by reason of the involuntary

117See CMDRC, p. 14-15, para. 1.16; on Mr. Diallo’s lawful residence, see RG. p. 29, para. 1.62.
118
RG, p. 33, para. 1.76 and pp. 46-49, para. 1.114-1.122.
119See also RG, pp. 53-54, paras. 1.134-1.138. - 34 -

interruption of his business is deserving of repara tion in its entirety, both on the basis of the

42 unlawful expulsion because it caused that loss and, equa lly, by reason of the fact that the expulsion

is also an expropriation. Guinea will come back to those points in greater detail this afternoon.

*

9. Having clarified those preliminary points I now come, Mr.President, to the nub of my

statement, the unlawfulness, the manifest unlawfulness even, of the expulsion per se. No jurist,

indeed no honest person with powers of reason, w ould fail to see Mr. Diallo’s expulsion as an act

which “shocks, or at least surprises, a sense of juridical propriety”
to use the Court’s definition of

arbitrariness in the ELSI case (Elettronica Sicula S.p.A. (ELSI) (United States of America v. Italy),

Judgment, I.C.J. Reports 1989, p. 76, para. 128).

10. That arbitrariness emerges very clearly from the chronology of the events preceding

Mr.Diallo’s expulsion and which culminated in Zaire Shell’s buying a ticket for the plane which

Mr. Diallo boarded against his will on 31 January 1996 120. The arbitrary nature of the expulsion is

equally apparent from the fact that fourteen years after the facts and after more than eleven years of

proceedings before the Court, the Respondent h as not produced any evidence, any exhibit, any

121
“relevant document” to prove that in October 1995 ⎯ I am citing the expulsion decree ⎯

Mr.Diallo’s “presence and conduct [had] breach ed Zairean law and order, especially in the

122
economic, financial and monetary areas, and continue[d] to do so” .

11. Admittedly, the DRC has, in these proceed ings, offered a few explanations seeking to

justify the expulsion. Those explanations are completely without foundation, however. Nor are

they even believable. I shall demonstrate this in a first section (I). I shall then indicate the legal

43 grounds ⎯ and there are several of them ⎯ on which the Respondent’s responsibility is engaged in

this case specifically as a result of the expulsion (II).

120
RG, p.26, para.1.54, and p.47, para.1.118. See aabove in Mr.Vidal’s oral submission on “The facts”,
and RG, Ann. 1, p. 10-11 (Answer to Question 28), and Ann. 2, p. 16, penultimate paragraph.
121
Certain Questions of Mu tual Assistance in Criminal Matters (Djibouti v. France), Judgment of 4June2008,
para. 151, www.icj-cij.org.
122Expulsion decree of 31 Oct. 1995, last recital (PODRC, Ann. 75). - 35 -

I. The explanations for the expulsion put forward after the event by the Democratic
Republic of the Congo are neither well-founded nor even believable

12. On the first point, I do not think it help ful to refer in minute detail to the various

explanations retroactively put forward by the R espondent in its attempt to justify Mr.Diallo’s

expulsion ⎯ I speak advisedly of retroactive explana tions, and not of a “statement of reasons”,

since there has never been any “statement of reasons ”, in the legal sense of the word, in this case,

something which is in itself alone a first ground on which res ponsibility is engaged 123. We have

refuted those “explanations” in the Reply to wh ich accordingly I would most respectfully ask the

Court to refer 12. At this stage, I shall merely comment that those explanations have not been

substantiated and that they are furthermore quite unbelievable.

A. The absence of any evidence supporting the Respondent’s explanations

13. As regards first of all any evidence that the explanations proffered by the DRC are

legally valid, it is indisputable that no such evidence has been submitted.

14. If one is to believe the 1995 expulsion decree, whose existence Guinea and Mr.Diallo

125
only discovered in October 2002 on reading the DRC’s Preliminary Objections , there was a

“personal file” on Mr. Diallo which purportedly provided the grounds for his expulsion. The DRC,

however, has never produced that “file”, any more than it has established, however that may have

been, the actual existence of the reasons for the expulsion, with the effect that the “file” has

remained to this day a completely empty shell. It has remained a paper shell, moreover, since the

“file” to which the expulsion decree refers existed in name only, intended to suggest that there were

reasons.

15. The same can be said of the purported “regular reports on “[ Mr. Diallo’s] general

44 conduct” written by “DRC special services” 126. Those reports were referred to without warning in

this courtroom in November 2006. However, nothing, nothing whatsoever, has been produced

subsequently to substantiate their alleged existence.

12See RG, pp. 38-39, paras. 1.93-1.96.
124
RG, pp.38-43, A; see also Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of Congo),
Preliminary Objections, Judgment, I.C.J. Reports 2007, p. 592, para. 19.
125
PODRC, Ann. 75.
12CR 2006/52, p. 20, para. 10 (Kalala). - 36 -

16. Two findings, Mr. President, follow from this lack of evidence:

(i) Since the Congolese State has been unable to substantiate a version of the facts different

from that established by Guinea in terms of the real motives for the expulsion, the

Guinean version of events has to be take n as the only valid one: if Mr.Diallo was

expelled, it was for the sole purpose of prev enting him from recovering the debts owed to

his companies 127;

(ii) Since it is for the expelling State to prove that the expulsion was based on good reasons,

128
as has long been required by the case law , the mere fact that the respondent State has

neither stated reasons, nor provided grounds, fo r the expulsion is in any event sufficient

for it to be found to be unlawful, whatever the actual motives behind it may have been.

B. The explanations proffered by the Respondent lack all credibility

17. Even were one to assume, something which no one would dare to argue in a court, that

an explanation advanced without evidence might have any evidential value whatsoever, the

explanations offered by the DRC should anyhow be dismissed in the present case because they are

quite simply not credible.

18. First of all, those explanations have been found to contain a mistake in chronological

terms. The Congo claimed that the expulsion of “31 November 1995” was justified by letters

which Mr.Diallo had sent to various well-known figures the preceding day, that is to say,

30 November 1995 129. In actual fact, however, those letters could never have been grounds for the

expulsion decree since the decree was adopted no t on 31November as the DRC stated, but on

31 October 1995, that is to say, a month before the letters were sent 130.

45 19. In order to re-establish the chronology, the DRC then suggested a new explanation: the

implementation, for its part, of the expulsion decree occurred two months after Mr. Diallo’s letters

131
were sent . That is indeed true. It changes nothing, however. The implementation measures had

12See above, Mr. Vidal’s oral submission on “The facts”, and RG, pp. 19-21, paras. 1.41-1.42.

12See RG, pp. 31-32, paras. 1.71-1.72.
129
CR 2006/50, p. 38-39, paras. 85-87 (Kalala).
13RG, p. 41, para. 1.103.

13CR 2006/52, p. 20, para. 10 (Kalala). - 37 -

to have a legal basis in an order for expulsion whic h had in turn to contain a statement of reasons

based on fact, and those facts, by definition, had to be in existence at the time of the order. As I

have just observed, Mr.Diallo’s letters were later than the expulsion decree which, and nothing

else, was capable of providing a legal basis for the measures implementing the expulsion.

20. In the absence of chronologically credible explanations, the DRC launched headlong into

a series of very serious accusations against Mr. Diallo, accusations which became more and more

serious throughout the proceedings before the Court ⎯ without the slightest evidence to

corroborate them and, moreover, without the D RC ever claiming that any corresponding criminal

prosecutions had been brought against Mr. Diallo.

132
21. Accused not only of “numerous attempts at bribery” but also of “currency

trafficking” 133, Mr.Diallo would subsequently find hi mself likened to the “organized crime

groups” which, according to the DRC, wrought havoc in the country at the time of the measures

taken against Mr.Diallo. There was one last st ep to take between or ganized crime groups and

organized, even “rampant”, economic crime, which the Respondent did not flinch to take in its

134
Counter-Memorial, although once again, without the slightest evidence to support it .

22. Those accusations, as I have just said, have never been substantiated. They are in any

event no more credible than those made earlier.

23. In fact, by dint of several of its statements or the stances it adopted, the DRC itself

undermined the credibility of the gratuitous allegation that Mr. Diallo was a dangerous criminal.

24. The DRC thus asserted, to refute any arbitrary detention of Mr. Diallo, that it had

allowed him complete freedom of movement between November1995 and the end of

46 135
January 1996 whereas, I would point out, in other cases of expulsion which the DRC mentions in

its pleadings, the person subject to an expulsion decision had to leave the country within

136
24 hours .

132CR 2006/50, p. 39, para. 87 (Kalala).

133PODRC, p. 39, para. 1.53.
134
CMDRC, pp. 9-12, paras. 1.04-1.11, in particular pp. 10-11, paras. 1.07-1.08.
135CMDRC, pp. 8-9, paras. 1.09-1.11.

136PODRC, Ann. 69, record of notice of expulsion; Ann. 76, p. 3 of the decree. - 38 -

25. The DRC’s assertion is incorrect, as ProfessorThouvenin described, since Mr.Diallo

was arbitrarily kept in detention throughout that time, well beyond the maximum period established

137
by law . It remains the case, however, that even were the assertion correct, as the DRC believes

it to be, the fact that it claims that Mr. Diallo was restored to complete freedom after adoption of

the expulsion decree and during the three months preceding his removal is at odds with the

statement that Mr.Diallo was a dangerous crim inal whose mere presence in its territory was a

threat to the Congolese nation 13.

26. The leniency from which Mr.Diallo could have benefited ⎯ as the Congolese

authorities, after the event, told this Court ⎯ likewise sits ill with the portrait which the DRC is

now painting of Mr.Diallo. The Respondent’s Minist er of Justice asserted, before the Court, in

November 2006, that “the Democratic Republic of the Congo has always pardoned other foreign

nationals who have been expelled on the same grounds ” as those levelled against Mr.Diallo 139.

The prospect of such a pardon is completely at odds with the very serious accusations being made,

now, against Mr. Diallo.

27. I will also point out that in January 1996, th at is to say, a few days before the expulsion,

140
the President of the Republic of Congo ordered Mr.Diallo’s release . According to the

Respondent, “[i]t is not every day that a President of the Republic intervenes to seek the release of

141
an alien being held pending deportation” . The statement can scarcely be disputed, but it is

indeed difficult to conceive that the Congolese President would have taken upon himself such an

exceptional decision had Mr. Diallo been a highly dangerous criminal as the DRC would now have

47 us believe. Quite on the contrary, the interventi on shows that the President believed Mr.Diallo’s

detention to represent an abuse of power which needed to be stopped 14.

28. The Respondent has also contradicted itself in relation to even its most fiercely argued

denials: Mr. Diallo’s expulsion was not, the DRC has constantly pointed out, in any way linked to

13See the oral submissions of Professor Thouvenin, above: “The DRC’s res ponsibility arising from Mr. Diallo’s
arrest and detention”, para. 13.

13RG, p. 52, para. 1.129.
139
CR 2006/50, p. 14; emphasis added.
140
RG, Vol. II, Anns., Ann. 2, p. 17.
14CMDRC, p. 20, para. 1.33.

14RG, Ann. 2, p. 17; also MG, Ann. 194. - 39 -

the legal actions brought on behalf of his two co mpanies. However, the Respondent’s Co-Agent

stated twice, in November 2006, that Mr. Diallo had been expelled in the context of and as a result

of those financial claims 143.

29. The Co-Agent later withdrew the asserti on, although then using an argument which

leaves one speechless: if the true motive had been to prevent Mr.Diallo’s “two companies from

recovering the monies due to them”, the DRC would not have expelled Mr.Diallo; in that case,

states the DRC sanctimoniously, “the best solution w ould have been simply to expropriate the two

144
companies concerned” . As if, Mr.President, the DRC was entitled to expropriate Mr.Diallo’s

companies for the sole reason that they were seeking payment of monies owing to them.

30. Purely in terms of motives, the DRC’s th esis is in fact unconvincing. If, instead of

expelling Mr.Diallo, the DRC had formally expr opriated his companies to prevent them from

recovering what they were owed, Mr.Diallo coul d have challenged that formal expropriation.

Expelling him, on the other hand, was a means of ensuring once and for all that Mr. Diallo would

no longer be able to claim the protection of an y right whatsoever. That is why it was this

particularly radical means which the Congolese authorities employed to achieve their ends.

31. Finding itself quite simply unable to ju stify Mr.Diallo’s expulsion, the Respondent

resorted to two arguments which are as absurd as they are unacceptable and which amount purely

and simply to an admission that the expulsion was arbitrary: according to the Respondent, there

were indeed grounds for expelling Mr.Diallo but, on the one hand, it was impossible to tell

Mr.Diallo what those grounds were and, on the other, the Court did not in any event have

jurisdiction to review their validity.

48 32. As regards the first point, the Responde nt maintains that the absence in the expulsion

decree of any specific fact supporting the decision made against Mr.Diallo is because “the

Congolese authorities could not in a legal document specify all the individual acts of which

145
Mr.Diallo was accused” . This is patently absurd since nothing has ever prevented the reasons

for an expulsion decision from being stated in deta il. It is also an admission that the Respondent

14CR 2006/50, p. 21, para. 25; CR 2006/52, p. 19, para. 8.
144
CR 2006/52, p. 22, para. 20 (Kalala).
14CR 2006/52, p. 19, para. 6 (Kalala). - 40 -

acted unlawfully since under both Congolese law a nd under international law a statement of

reasons had to be given 146.

33. According to the DRC, furthermore, the Court is in any event not entitled to review

whether there were grounds for the expulsion, b ecause the power to expel is, it asserts, a

147
discretionary power . The DRC is forgetting, however, that a discretionary power is not a power

to dispense with all judicial constraint and with all judicial oversight. A discretionary power

merely leaves leeway in the choice to be made between several options all of which must be lawful.

That is exactly the nature of the power to expel. Although States have power to expel, that power

can only be exercised within the limits set by international law 148 and, accordingly, as we

demonstrated in the Reply and in the Court’s further case law in Djibouti v. France, it is indeed for

the competent international courts to review the legal validity of the exercise of such a power 149. If

that power has been exercised in violation of in ternational law it is then possible, without the

slightest doubt, to engage the responsibility of the State concerned before the courts. This is so in

the present case, since the respondent State did undeniably breach numerous obligations in the

exercise of its power to expel, and this brings me, without any ado, to the second part of my

submission.

49 II. The manifold nature of the legal basis on which the Democratic Republic

of the Congo’s international responsibility is engaged

34. Allow me at this point, Members of the Court, to draw your attention to two things which

I believe must be kept in mind when considering the lawfulness of the DRC’s actions.

35. First of all, it must be remembered that expulsion is by nature a grave act. As the

Respondent acknowledged in its Count er-Memorial, “[d]eciding to expe l an alien lawfully in its

territory is not a step lightly taken by any State” 150.

36. Next, I must point out that we are not dealing with an ordinary instance of expulsion in

this case, for several series of reasons, all of which constitute aggravating circumstances:

14RG, pp. 31-32, para. 1.71 and p. 34, para. 1.78.

14RDRC, p. 14, para. 1.46.
148
RG, pp. 27-28, paras. 1.56-1.58.
14See RG, pp. 30-32, paras. 1.69-1.73.

15CMDRC, p. 18, para. 1.28. - 41 -

(i) firstly, the expulsion followed a long period of unlawful and arbitrary detention;

(ii) next, the expulsion was decided upon and ca rried out for reasons completely unrelated to

151
the public interests of the Respondent ; this is proven in particular by Zaire Shell’s

purchase of the ticket for the plane on to which Mr. Diallo was forcefully boarded, against

the wishes of the airline which, noting the l ack of an expulsion order, had initially refused

to carry Mr.Diallo, before eventually yielding to the commercial blackmail of the

152
Congolese authorities ;

(iii) moreover, the subject of the expulsion w as a man who had legally resided in the DRC for

more than 30years, who had spent his entir e adult and working life there: indeed the

highest Congolese authorities told this Court in 2006 that their country had become

153
Mr. Diallo’s “second country” . Such were his ties to the country that, as the

Respondent pointed out in its Counter-Memorial, Mr. Diallo had even chosen to remain in

the DRC during the riots in the early 1990s which, however, had led “[m]ost of the

154
expatriates . . . [to] fle[e] the country” ;

50 (iv) the injury, already considerable in the li ght of the foregoing, has only become worse since

the expulsion because the Respondent, far from accepting its actions over time, has stuck

firmly to a line of defence amounting to slinging unfounded accusations, equating to

slander, against Mr. Diallo.

37. All of these things, Members of the Court, aggravate an already evident responsibility.

A. The legal basis on which the responsibility of the Respondent is engaged

38. In its Reply, the Republic of Guinea drew up a list of provisions applicable in respect of

expulsion, before comparing it to the facts of the case. The result was the following points, which I

shall summarize very generally.

39. In respect of the law applicable, the lawfulness of Mr.Diallo’s expulsion must be

considered in the light of the minimum standard of treatment of aliens, but also of a number of

151RG, pp. 19-21, paras. 1.41-1.42.
152
RG, p. 47, note 183.
153
CR 2006/50, p. 14 (Minister of Justice of the DRC); RG, p. 37, para. 1.90.
154CMDRC, p. 9, para. 1.05. - 42 -

treaty obligations regarding expulsion which, at the time of the events, were— and still are—

incumbent upon the Respondent under the 1966 Inte rnational Covenant on Civil and Political

Rights and the 1981 African Charter on Human and Peoples’ Rights 155.

40. Furthermore, since international law refe rs to compliance with domestic legislation in

156
respect of the rule that the decision to expel must be “in accordance with law” , the non-

compliance with Congolese law provides an additi onal basis on which the DRC’s international

responsibility is engaged 157.

41. These various rules were violated by th e Respondent concurrently on several accounts,

each of them sufficient for its responsibility to be engaged:

(i) the decision to expel was not formally reasoned 158;

(ii) furthermore, the Respondent has never been able to explain after the fact its alleged

159
legitimate motive ;

51 (iii) several of the jurisdictional, formal and procedural rules stipulated by Congolese law were

not followed, meaning that the expulsion was “not in accordance with law”. In particular,

the National Immigration Board was not consulted beforehand, as it should have been, and

Mr. Diallo was never notified of the expulsion decree 160;

(iv) the procedure for refusing entry, used to carry out the expulsion, was misused in a way

161
inconsistent with its purpose ;

(v) Mr.Diallo— as the DRC acknowledges moreover 162— was never able to submit the

reasons against his expulsion or to have his case reviewed by the competent authority

15See RG, pp. 27-32, as well as p. 37, para. 1.90.
156
RG, p. 29, para. 1.65.
157
See RG, pp. 33-35.
158
RG, pp. 38-39, paras. 1.93-1.96.
15RG, pp. 39-43, paras. 1.97-1.108.

16RG, pp. 43-45, paras. 1.109-1.113.

16RG, pp. 46-49, paras. 1.114-1.122.
162
CMDRC, pp. 18-19, para. 1.28. - 43 -

163
before his expulsion , as required under international law , or to be represented for the

purpose 16;

(vi) the fact that he was never notified of the expulsion decree resulted, in particular, in

Mr. Diallo being unable to avail himself in a timely fashion of the right conferred on him

by Congolese law to request suspension of implementation of the decision to expel 16;

(vii)finally, resorting to a refusal-of-entry measure to carry out the expulsion deprived

166
Mr. Diallo of any subsequent effective right to recourse against his enforced removal .

B. The lack of grounds for the (only) two lines of defence set out in the Rejoinder

42. Since, by virtue of the Rules of Court, th e Rejoinder must be directed to bringing out the

167
issues that still divide the parties , Guinea was expecting the Rejoinder to respond in detail to the

numerous facts and legal considera tions set forth in the Reply in support of the unlawful nature of

52 the expulsion. The Rejoinder contained only two brief observations in this respect, which respond

only very selectively to the arguments in the Reply.

1. Regarding the authority of the person issuing the expulsion decree

43. In its Rejoinder, the DRC first contends that no unlawfulness arises from the fact that the

expulsion was decided upon by a Decree issued by the Prime Minister, rather than a reasoned

Order issued by the President of the Republic, as the 1983Legislative Order concerning

immigration control requires. According to the Rejoinder, the new distribution of powers, which

took effect within the Congolese executive with the Constitution of 9April1994, and which

conferred regulatory power on the Prime Minister from that point onwards 168, must be taken into

consideration.

163
See RG, p.30, note 120 ( Hammel v. Madagascar case before the United Nations Human Rights Committee),
as well as p. 29, note 118.
164RG, p. 30, paras. 1.67-1.68.

165See Article 21, second paragraph, of the Legislativ e Order of 12Sep.1983 concerning immigration control
(“An alien subject to a deportation order and who can prove th at it is impossible for him to leave Zairean territory may,

until he is in a position to do so, be compelled by Decree of the State Commissioner for the Administration of the
Territory to reside in a specific place; he must report periodically to the police.”) (PODRC, Ann. 73.)
166RG, pp. 49-53, paras. 1.123-1.132.

167Art. 49, para. 3.

168RDRC, pp. 13-14, paras. 1.43-1.45. - 44 -

44. This argument is vague to say the least. The DRC appears to consider the

1983 Legislative Order to have been abrogated by the 1994 constitutional revision, yet it does not

state whether a new law, fixing the legal conditi ons for expulsion and determining the competent

authority to carry this out, was adopted in its place. If no new law exists, this means that the

expulsion procedure has been indeterminate since 1994, in violation of the rule of “conformity with

law”, which requires the law on which the power to expel is based to be foreseeable, precise and

169
accessible .

45. However, the DRC’s argument is not just va gue. More than that, it directly contradicts

the position and official statements of the Respondent, which prove that the 1983 Legislative Order

has never been modified, nor abrogated, since its adoption.

46. You will indeed have noted, Members of the Court, that it is this text, and this text alone,

170 171
which the DRC appended to its Preliminary Objections , and again to its Counter-Memorial ;

you will also have noted that it is on this text, and on this text alone, that the DRC has always based

172
Mr. Diallo’s expulsion, from the Preliminary Objections to the Rejoinder .

53 47. Furthermore, this position has been confirme d before other authorities. In its reports to

the Human Rights Committee in 2005 and the African Commission on Human and Peoples’ Rights

173
in 2007 , the DRC confirmed that the 1983Legislativ e Order remained the law in force on

expulsion in its territory.

48. In those two reports of2005 and2007, the DRC’s Minister for Human Rights also

unequivocally confirmed that “[the] [e]xpulsion of an alien is the prerogative of the President of the

Republic” 174. This declaration is evidence of the fact that bestowing regulatory powers on the

16See Frédéric Sudre, Droit européen et international des droits de l’homme , PUF, Paris, 2006, pp.208-212,
No. 150.

17Ann. 73.
171
Ann. 10.
172
PODRC, p. 40, para. 1.54; CMDRC, p. 17, para. 1.25; RDRC, p. 14, para. 1.45.
17Democratic Republic of the Congo, third periodic report submitted to the Human Rights Committee on
30 Mar. 2005, CCPR/C/COD/2005/3, 3 May 2005, paras. 128-140 (http://www.unhchr.ch/tbs/doc.nsf/898586b1dc7b404

3c1256a450044f331/6efff92dc06cfce8c1257093002ce1e0/$FILE/G0541436.pdf) ; Democratic Republic of the Congo,
Minister for Human Rights, eight, ninth and tenth periodic reports to the A frican Commission on Human and Peoples’
Rights, implemented by the African Charter on Human and Peoples’ Rights , Kinshasa, June2007, paras.137-144
(http://www.achpr.org/english/state_reports/DRC/DRC_State%20Report.pdf).

17Ibid., para. 131 and para. 138 respectively. - 45 -

Prime Minister in 1994 did not have the effect of revoking the President of the Republic’s

exclusive authority in respect of expulsion, as provided for by the 1983 Legislative Order.

49. All of this goes to confirm, therefore, th at at the critical moment, the expulsion of aliens

was still the exclusive prerogative of the President of the Republic. Mr. Diallo’s expulsion decree,

since it was issued by the Prime Minister, is therefore null and void for lack of authority.

50. This lack of authority was not purely an issue of formality, given that it is known that the

President of the Republic was opposed to Mr.Diallo’s arbitrary detention (see paragraph27

above). Moreover, it merely adds to a very long list of breaches of the rule of law in respect of

which the DRC has chosen to maintain a very telling silence in its Rejoinder.

2. Regarding the discretionary nature of the power to expel

51. The second selective observation to be found in the Rejoinder is just as inadmissible. It

concerns the national security exception. It is written in the Rejoinde r that the DRC enjoyed

“discretion in assessing the threat to its national security when it took steps to expel Mr.Diallo”

and that the Court was not “entitled to determine wh ether such a threat existed”, as it was in the

54 Nicaragua case, since “[n]o such treaty [of the type of that in question in the Nicaragua case]

175
exists between the DRC and Guinea” in the present case. That conclusion, Mr. President, is

erroneous on several accounts.

52. Firstly, the DRC acts as though the national security exception referred to in Article 13

of the 1966 Covenant is applicable to the entire expulsion procedure, when in fact it only allows for

exemption from the obligation to allow the person against whom the action is being taken to submit

the reasons against his expulsion. It is not appli cable to the other obligations on the State carrying

out the expulsion.

53. The “compelling reasons of national security” exception is thus very clearly included in a

treaty, the very one which allows for it to be invoked, the 1966 Covenant, and Guinea does not

understand how the Respondent can refute this evidence. As such, reliance on that exception is

effectively subject to judicial review, dir ectly following this Court’s decision in the Nicaragua

case.

175
RDRC, p. 14, para. 1.46. - 46 -

54. Finally, the Respondent has failed to pr ove the existence of “compelling reasons of

national security” in this case. When one considers that, during the period of “the war”, which

raged in the DRC between1998 and2002, the C ongolese State declared “neither a state of

emergency or state of exception” and itself consid ered that it “remained under an ordinary law

regime” pursuant to the 1966 Covenant 17, it is difficult to see how it could now invoke the

exception of “compelling reasons of national security” in our case, which deals with events from an

earlier date.

55. The conclusion is all the more compelling s till since, at the time of the events for which

Guinea is seeking reparation, the DRC refrained from invoking the derogatory clause of the

1966Covenant. However, as the Court clearly stated in its Advisory Opinion of 9July2004, an

abstention of this kind carries with it the automa tic and absolute applicability of human rights
177
guaranteed by the Covenant .

55 56. It is clear from all of this, Members of the Court, that you undoubtedly have not only

jurisdiction, but also a duty, to proceed without the slightest doubt to the conclusion that, in respect

of the lawfulness of Mr.Diallo’s expulsion, inte rnational law has been breached. Mr.Diallo’s

expulsion was blatantly arbitrary, it was blatantly unlawful, and it was so on a number of grounds.

Under these circumstances, it is up to you to find that, on the basis of Mr. Diallo’s expulsion, the

international responsibility of the Respondent is engaged.

Mr. President, Members of the Court, these final words conclude my address. I sincerely

thank you for listening and I would be grateful, Mr . President, if after the adjournment for lunch

you would give the floor to Mr. Wordsworth, who will continue the Republic of Guinea’s

presentation. Thank you.

17Democratic Republic of the Congo, third periodic report submitted to the Human Rights Committee on
30 Mar. 2005, CCPR/C/COD/2005/3, 3 May 2005, para. 59 (http://www.unhchr.ch/tbs/doc.nsf/898586b1dc7b4043c1256

a450044f331/6efff92dc06cfce8c1257093002ce1e0/$FILE/G0541436.pdf).
17Legal Consequences of the Construction of a Wall in th e Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004, pp. 187-188, para. 127. - 47 -

Mr. PRESIDENT: Thank you, Professor Forteau. The Court now rises and will meet again

this afternoon at 3 p.m. to hear further oral s ubmissions by the Republic of Guinea. The sitting is

closed.

The Court rose at 1.05 p.m.

___________