Non Corrigé Traduction
Uncorrected Translation
CR 2010/5 (traduction)
CR 2010/5 (translation)
Mercredi 28 avril 2010 à 16 heures
Wednesday 28 April 2010 at 4 p.m. - 2 -
8 The VICE-PRESIDENT, Acting President: Please be seated. The sitting is open. The Court
meets today to hear the second round of oral argument by the Republic of Guinea. I shall now give
the floor to ProfessorAlainPellet, Counsel and Advocate, Deputy Agent of the Republic of
Guinea. You have the floor, Sir.
PELr.LET:
1. Mr. President, Members of the Court, like Sam Worthington in the James Cameron film, I
have left my avatar ⎯ in the person of Jean-MarcThouvenin, whom I thank for lending me his
voice ⎯ to resume my normal form after my unintended stay on a distant Pandora. I would again
ask you to excuse that completely involuntary dereliction.
2. Mr.President, in accordance with your recommendation to the Parties on conclusion of
the first round, we shall not use the whole of the time allotted to us.
3. In his oral arguments last Monday, ProfessorKalala read out long passages from the
Congo’s written pleadings. I shall not follow that example: in accordance with Article60(1) of
the Rules of Court and with your recommendations on conclusion of the first round last Monday, I
think it is inappropriate, Mr.President, to restate what we have already written or said. For the
Court’s ease of reference, we have prepared a table comprising three columns:
⎯ the first column is a list of the passages from Pr ofessor Kalala’s oral arguments which reiterate
(sometimes with only minute changes) whole sw athes of the DRC’s written pleadings, which
the DRC’s Co-Agent merely read out at the hearing and to which we had responded earlier;
⎯ the second gives the references of those lengthy extracts;
⎯ the third column refers to our own pleadings ⎯ both oral and written ⎯ and indicates precisely
the passage or passages in them which respond to the arguments in the Rejoinder and, more
frequently, in the Counter-Memorial.
4. The stipulations of Article60(1) of th e Rules of Court prompt me to make a second
9
general observation: since that provision requires the parties not to repeat the arguments already
adduced, we refrained, last week, from going over in every detail all the points elaborated in our
1
CR 2010/4, p. 22. - 3 -
pleadings. None the less, save where were have expressly dropped them (as we have with the
figures to be put on the damage caused), we maintain those arguments in full.
5. In the light of these comments, I shall, in a first section, respond to the question posed the
day before yesterday by JudgeCa nçadoTrindade (A). Then, before replying, at the end, to
Judge Bennouna’s question of last Monday (F), I shall address a number of points in turn ⎯ hardly
new points but points which, unlike those set out in the table we have provided to you, are not,
Members of the Court, completely the same as the arguments of the Congo to which we have
replied previously. So, the arguments I am going to address are:
⎯ the 1983 episode (B);
⎯ the issue of the mistreatment which Mr.Diallo suffered at the time of his arrest and his
expulsion in 1995-1996 (C);
⎯ the legal basis for that expulsion under the 1994 Constitution (D); and
⎯ the legal value in Mr. Diallo’s parts sociales in Africom-Zaire and Africontainers-Zaire (E).
I would like to say that, although this is my presen tation, it is the product of teamwork in which all
Guinea’s counsel have participated, including Prof essors Forteau and Thouvenin, who are, to their
great regret, kept from this courtroom today by pressing commitments made prior to the wrath of
the Icelandic Vulcan.
A. Violation of Mr. Diallo’s consular rights (reply to the
question by Judge Cançado Trindade)
6. Mr.President, at the end of Monday morning’s hearing, JudgeCançadoTrindade asked
the Parties whether, in their opinion,
“the provisions of Article36, paragraph1 (b), of the 1963Vienna Convention on
Consular Relations apply solely to relati ons between the sending State or State of
nationality and the receiving State?
10 Was Mr.Diallo himself informed about consular assistance immediately after
his detention? Who is the holder of the right to information regard2ng consular
assistance: the sending State or State of nationality, or the individual?”
7. According to the DRC, “while the right to information is an ‘ individual’ right, it is
nevertheless inextricably linked to the sending St ate’s right to communicate with its nationals” 3.
2
CR 2010/3, p. 37.
3
The DRC’s reply to the question of Judge Cançado Trindade, 27 Apr. 2010; emphasis added by the DRC. - 4 -
Furthermore, “these rights do not apply solely to relations between the sending State or State of
nationality and the receiving State, nor do they appl y solely to relations between the individual and
the receiving State” 4. It follows, again according to the Respondent’s reply transmitted to the
Court yesterday afternoon, that the mere fact th at Guinea had “made diplomatic approaches to the
Congolese authorities on behalf of its national . . . is sufficient to establish that the purpose of the
5
right to information was achieved” . I confess, Mr.President, that this response leaves me rather
puzzled.
8. Under Article36 (1) ( b) of the 1963 Vienna Convention ⎯ which I think it is helpful to
read in its entirety:
“if he so requests, the competent authorities of the receiving State shall, without delay,
inform the consular post of the sending State if, within its consular district, a national
of that State is arrested or committed to prison or to custody pending trial or is
detained in any other manner. Any comm unication addressed to the consular post by
the person arrested, in prison, custody or detention shall be forwarded by the said
authorities without delay. The said authorities shall inform the person concerned
without delay of his rights under this subparagraph.”
9. This last sentence leaves no room for doubt: the authorities of the receiving State have a
duty to inform the person concerned of his rights to consular assistance and that person has a right
to be informed of them. This is in actual fact su fficient to give a definitive reply to the first of the
two “theoretical” strands of JudgeCançado Trindade’s question: no, Article36(1)( b) of the
1963Vienna Convention on Consular Relations does not apply sole ly to relations between the
sending State or State of nationality and the receiving State. The Court has indeed expressly
11
acknowledged this in LaGrand: “Article 36, paragraph 1, creates individual rights [for the national
concerned], which... may be invoked in this Cour t by the national State of the detained person”
(LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 494, para. 77),
and this wording was repeated in Avena 6.
10. Conversely, this does not mean that Article 36 applies solely to that latter relationship.
Using the terminological distinction drawn by the Court in its 2004 Judgment, the last sentence of
4
The DRC’s reply to the question of Judge Cançado Trindade, 27 Apr. 2010; emphasis added by the DRC.
5
Ibid.
6Avena and Other Mexican Nationals (Mexico v. United States of America), J udgment, I.C.J. Reports 2004 (I),
p. 36, para. 40. - 5 -
Article 36 (1) (b) confers on the person concerned a right to be informed of his rights to consular
assistance; and the beginning of the subparagraph gives the consular authorities of the State of
nationality the right to be notified (that is to say, gi ven notice) that its national has been arrested by
7
the authorities of the receiving State . Accordingly, to answer the second “theoretical” component
of the question posed by JudgeCançadoTrindade, th e individual is the holder of the right to be
informed about consular assistance in the strict sense of the term, and the sending State or the State
of nationality is, for its part, the holder of the “right to notification” which the provision
establishes. There is undeniably a certain “int erdependence of the rights of the State and of
individual rights”, as the Court also found in Avena 8, and, here, we are in agreement with the
Respondent. They are none the less separate rights and there is even reason to regard the right of
the State of nationality as subordinate to that of its national since, according to Article36(1) (b),
“the competent authorities of the receiving State shall, without delay, inform the consular post of
the sending State” “if [the person concerned] so re quests”. The obligations of the receiving State
and the corresponding rights of the individual and of the State of nationality are therefore
dependent on that request. Whatever the DRC may seem to think, the opposite is not, on the other
hand, true: a State party to the 1963Convention does not discharge its duties to the foreign
12 national by giving notice of the arrest to the consular authorities of the State of nationality ⎯ if
only because the person concerned is en titled to refuse consular assistance 9 ⎯ a fact which
confirms that it is indeed a right of the individual.
11. In any event, in the present case ⎯ I am now coming to the factual aspect of
Judge Cançado Trindade’s question ⎯ not only was Mr.Diallo not informed of his rights to
consular assistance but also, while Guinea was, beyond any doubt, aware of his detention, it was
only from hearsay. No notification to that effect had been given by the DRC. What is more, the
only matter in issue here is Mr.Diallo’s right to be informed. Here again, our reply is clear and
7
Avena and Other Mexican Nationals (Mexico v. United States of America), J udgment, I.C.J. Reports 2004 (I),
p. 26, para. 18; see also, p. 43, para. 61.
8Ibid., p. 36, para. 40; see also LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001,
p. 492, para. 74.
9See Avena and Other Mexican Nationals (Mexico v. United States of Am erica), Judgment,
I.C.J. Reports 2004 (I), p. 50, para. 91. - 6 -
unambiguous: no, Mr.Diallo himself was not informed about consular assistance either
immediately after he was placed in detention or later.
12. The DRC’s reply to the contrary is disturbing: not only is it not based on the slightest
shred of evidence but also, if it did reflect the truth, it would be hard to understand why the
Respondent’s Counter-Memorial and then its c ounsel, in his presentation on Monday morning,
remained utterly silent about the information supposedly given to Mr. Diallo “immediately after his
detention” to the effect that he had “the possibility of seeking consular assistance from his State” 10
whereas, in both instances ⎯ oral arguments and written pleadings ⎯ the DRC was at pains to
show at length that ⎯ I am quoting Mr. Kalala’s presentation ⎯ “Mr. Diallo’s case was known not
only to the Guinean consulate [counsel is in fact talking only about the diplomatic service ⎯ but be
that as it may! ⎯ not only, I was saying, to the Guinean consulate] in Kinshasa but also to the
11
President of the Republic and the Minister for Foreign Affairs of Guinea” . My opponent also laid
“great emphasis” (those are his words)
“on the fact that the aim to be achieved through Article 36 (1) (b) in question here is to
ensure that the consular officers of the sending State are informed whenever a national
of that State living in the receiving State is being held in detention, so that they can see
to it that his individual rights are respected and can provide consular assistance to him
under proper conditions” . 12
13 13. This is looking at the wrong right, however, Mr.President: the right about which
Professor Kalala has argued so vigorously (and which is also the subject of the reply given by the
Respondent yesterday afternoon) is the right of Guinea itself to be notified ⎯ a right which is not
in issue here ⎯ and not Mr. Diallo’s right to be informed of his rights. It is not the same thing at
all, since, as the Court noted in LaGrand,
“[i]t is immaterial for the purposes of the present case whether the LaGrands would
have sought consular assistance from Germany, whether Germany would have
rendered such assistance, or whether a different verdict would have been rendered. It
is sufficient that the Convention conferre d these rights, and that Germany and the
LaGrands were in effect prevented by the breach of the United States from exercising
them, had they so chosen.” ( LaGrand (Germany v. United States of America),
Judgment, I.C.J. Reports 2001, p.492, para.74; see also Avena and Other Mexican
Nationals (Mexico v. United States of America), Judgment, I.C.J.Reports2004(I) ,
p. 52, para. 102.)
1The DRC’s reply to Judge Cançado Trindade’s question, 27 Apr. 2010.
11
CR 2010/3, p. 29, para. 51. See also the DRC’s Counter-Memorial (CMDRC), pp. 15-16, paras. 1.20-1.22.
1CR 2010/3, p. 30, para. 53. - 7 -
Here too, the fact is that Mr.Diallo, as he expressly confirmed in his statement which the
Respondent has never disputed 13, was not informed of his rights. This is where the DRC’s
internationally wrongful act lies and there is no reason to speculate about what would have
happened had he been informed. To drive this point home, I would add that the Court held, in
Avena, that even if the authorities of the sending State had learned by other means that certain of
their nationals had been detained, the lack of notif ication “did nonetheless constitute a violation of
the obligations incumbent upon [it] under Article 36, paragraph 1 (b)” (Avena and Other Mexican
Nationals (Mexico v. United States of America), Judgment, I.C.J. Reports 2004 (I), p. 51, para. 95),
even assuming that the lack of notification by the competent authorities did not have serious
consequences for the individuals concerned.
14. This is, Mr.President, what we wished to say in reply to JudgeCançadoTrindade’s
question. As regards more generally the Res pondent’s violation of Article36 of the Vienna
Convention on Consular Relations, I take the liberty , Members of the Court, to refer you to what
14 15
we said on the subject in our Reply and to Professor Thouvenin’s statements last week . I thus
come to my second point: the 1983 episode.
14
B. The 1983 episode
15. Mr.President, ProfessorKalala’s virtual j ourney in Mr.Diallo’s Citroën began with the
1983 episode, which he criticizes us for concealing from the Court. He based his arguments about
the episode on two newspaper articles, annexed to Guinea’s Memorial, in which sees proof that it
was “established . . . that Mr. Diallo was arrested and detained in Kinshasa for a month in 1983 for
attempted bribery of an official” 1. I do not think it helpful for me to dwell on the problems
Mr. Diallo’s cook had with the Zairean justice system because his papers were not in order, nor on
his employer’s attempt to “buy him a plane ticket for Ouagadougou by signing a cheque for
17
10,000 zaires at the request of the Zairean prison warden” , an attempt which led to Mr. Diallo’s
13Guinea’s Reply (RG), Ann. 1.
14RG, pp. 24-26, paras. 1.49-1.53.
15
CR 2010/1, pp. 35-36, paras. 27-30.
16CR 2010/3, p.14, para. 6.
17Guinea’s Memorial (MG), Ann. 18. - 8 -
imprisonment ⎯ without trial ⎯ for a month. I note, however, that my opponent refrained from
reading out the next sentence in that article published in the Réussite column in the newspaper
Jeune Afrique on 16 February 1984, which I shall now read : “Since his release, with the apologies
of the security services, Diallo has been compla ining of the insult to his honour.” Similarly,
ProfessorKalala took care to omit the following paragraph, in which one reads: “a high-ranking
official of the Zairean security services, commenting on AmadouSadioDiallo’s short stay in
prison, told us: ‘We released him because we had no case against him. It was a purely Guinean
affair.’” The statement by Mr. Diallo reproduced in Annex 1 to Guinea’s Reply bears out the facts
reported in Jeune Afrique.
16. Under those circumstances, Mr.President, without wishing to attach to this episode
greater importance than it has for the purposes of this case, I cannot resist pointing out with a
degree of surprise ProfessorKalala’s robust affirm ation that “[i]f there was a country which was
giving Diallo a hard time, it was Guinea and not the DRC” 18⎯ it was after all Zaire which
imprisoned him and detained him without tria l back in 1983... However, unlike the
1988 episode, this one has no direct bearing on the case which brings us here ⎯ which is why we
had not aired it previously (without howeve r concealing it: as the Congo commented, it was
15 Guinea which filed the two documents and Mr.Dia llo’s statement referring to it is appended to
Guinea’s Reply 19. The DRC, for its part, had never mentioned it until this week.).
20
17. In fact, we submitted the Jeune Afrique article on which the DRC is relying, not
because the episode in question is relevant to the case ⎯ it is not relevant at all ⎯ but because it
gives an accurate account of Mr.Diallo’s ex ceptional success in the mid-1980s and of his
personality. On the first point, ProfessorKalala makes fun of our Mr.Diallo’s “splendid Citroën
CX” which, “like many cars in Kinshasa [had] no brake pads or exhaust pipe”, but he is careful not
to refer to the “brilliant idea” which the newspa per describes, the idea which made Mr.Diallo “a
prosperous man” at the head of “a team of 120 including nine executives” and which enabled him
1CR 2010/3, p.14, para. 6.
19
RG, Ann. 1.
2MG, Ann. 18. - 9 -
to secure “a colossal market: the container tran sport of copper from the wealthy Gécamines which
produces Zaire’s cobalt and copper”.
18. And the paper ⎯ Jeune Afrique is a highly respected publication ⎯ depicts an engaging
portrait of Mr.Diallo, which, naturally, Mr.Ka lala forgets to mention (and the article does
supplement and counterbalance the description of the Citroën):
“Yet he is sincere and his everyday life matches the man. He invites his guests
to the best restaurants in Kinshasa and offers them the finest champagne, without
touching a drop himself. His apartment, in an elegant tower on the Boulevard du
30Juin, is like his suits: clean and plain. It is tastefully furnished, with no gadgets
and nothing flashy.”
21
My opponent’s highly selective reading of th is paper and the names he calls Mr.Diallo reflect
very inaccurately the truth, which is much more flattering.
19. Once again, Mr.President, the 1983 episode has no connection whatsoever with the
present case: it is impossible to discern in it any conscious intention on the part of the highest State
authorities to harm Mr.Diallo and to damage his reputation; the competent authorities
acknowledged that they were wrong and apologized to him; his arrest and imprisonment, which
were not ordered by the executive, were totally un related to the conduct of his business and had no
16 effect on its prosperity, as the Jeune Afrique article, amongst others, shows. This is not at all so as
regards the events of 1988, on the one hand, and the ⎯ decisive ⎯ events of 1995-1996, on the
other: the successive arrests and detentions of Mr.Diallo, culminating in his expulsion manu
militari on 31January1996, not only represented much more serious infringements of his human
rights, but also dealt a decisive blow to his business by rendering him unable to run and control his
companies ⎯ which is what they were intended to do.
C. The mistreatment Mr. Diallo suffered on his
arrest and his expulsion in 1995-1996
20. Mr.President, I shall not go over these ser ious incidents in detail; we have already
analysed them fully in our written and oral pleadings . The relevant references are contained in the
table we have produced ⎯ and I would draw your attention most particularly, Members of the
Court, to the references to para graphs8 to 10 and 11 to 13 of the hearing of the morning of
21
CR 2010/4, p. 21, para. 32. - 10 -
26 April, which concern the serious episode in 1988, passages in which Professor Kalala repeated
paragraphs1.13 and 1.15 to 1.17 of the Rejo inder, reading them out during his speech.
Professor Thouvenin had replied to them in paragraphs 5 to 17 of his oral pleadings of 19 April 22.
I shall not revisit the matter.
21. I cannot however pass in complete silen ce over the accusations of “deafening silences”
which ProfessorKalala aimed at us at length in his statement on Monday morning ⎯ at least as
regards the first two accusations, which have led our opponent to assert that Guinea has abandoned
its claims based on the mistreatment inflicted on Mr .Diallo in 1995-1996. I shall refer also in a
moment to our two other silences ⎯ although these, for their part, are indeed deliberate silences.
22. A few words first on our silence last week on the accusation of mistreatment inflicted on
17 Mr. Diallo when he was detained in 1995-1996 23. The criticism is somewhat curious. The fact that
Guinea did not revisit that mistreatment was quite simply because the DRC had not seen fit to reply
on the merits, in its Rejoinder, to the arguments in the Reply.
23. Guinea’s Reply added three clarifications to what it had said in its Memorial:
⎯ first, we stated that although Mr. Diallo had been fed in prison, it was only thanks to the help of
his family and non-governmental organizations 24. The DRC did not dispute this either in its
25
Rejoinder or during its first round of oral argument . Quite the reverse: it drew the
conclusion that Mr. Diallo had been “properly fed during his detention” 26 and that it therefore
could not be said that Mr. Diallo was “held unde r perilous conditions and . . . received no food
27
from the Congolese authorities” . The reasoning is interesting: the DRC is inventing
compliance with international law by proxy. Th e fact that Mr.Diallo’s fate may have been
improved thanks to his family a nd charitable organizations is one thing. That is not the point,
however. The point is whether the DRC complied with its obligations to give him the
minimum treatment to which any person in prison is entitled. It did not. “The detention centre
2CR 2010/1, pp. 27-31.
23
CR 2010/3, pp. 18-20, paras. 16-20.
24
RG, pp. 16-17, para.1.34.
2DRC’s Rejoinder (RDRC), p. 4, paras. 1.04-1.05; CR 2010/3, pp. 19-20, paras. 18-19.
2RDRC, p. 4, para.1.05.
2CR 2010/3, p.18, para. 16. - 11 -
did not give [Mr. Diallo] anything to eat” and when his family stepped into the breach, it had
28
“to pay a bribe in zaires amounting to the equivalent of US$20 or 25” ; similarly, the family
also managed to have Mr. Diallo examined by a doctor, but this was at its own expense 29. This
constituted, quite clearly, treatment in breach of the minimum standard and, specifically, of the
30
18 minimum rules for the treatment of prisoners adopted by ECOSOC in 1955 , whose great
value and influence were reaffirmed by the United Nations General Assembly in 1990 31;
⎯ secondly, Guinea set out in its Reply how and why Mr.Diallo had managed to have some
32
contact with the outside world . Here again, however, those contacts were possible only
despite the Zairean authorities or, in any event, without their permitting or facilitating them
and, I would point out, without those authorities discharging their duties in respect of consular
assistance 3;
⎯ thirdly, and lastly, the DRC has not, to date, asserted anything to refute the statement by
Mr.Diallo appended to the Reply, in which he reports that, although he was not “beaten” ⎯
which he admits ⎯, the fact is even so that during “the first four days of [his] detention [he]
was kept secretly in a mosquito-infested cell that was permanently illuminated by a very bright
34
light and . . . was deprived of food” ; being kept in a cell under those conditions is completely
incompatible with Article 10 of the 1966 Covena nt, according to which “[a]ll persons deprived
of their liberty shall be treated with humanity and with respect for the inherent dignity of the
35
human person” .
24. The second “deafening silence” which counsel for the Respondent accuses us of
concerns the fact that Guinea did not, at last week’s hearings, revisit the circumstance that the
28
RG, Ann. 1, p. 6.
2Ibid.
3See the Standard Minimum Rules for the Treatment of Prisoners , adopted by the First United Nations Congress
on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955 and approved by the Economic and
Social Council in resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977, in particular Principles 20,
22-26 and 87.
3United Nations General Assemb ly resolution45/111, 14Dec.1990, “Bas ic Principles for the Treatment of
Prisoners”.
3RG, pp. 16-17, paras. 1.34-1.35.
3See above, paras. 6-14.
3RG, Ann. 1, pp. 6-7.
35
See also General Comment No. 21 of the Human Rights Committee of 10 Apr. 1992 on Art. 10 of the Covenant
(Official Records of the General Assembly, Forty-seventh Session, Supplement No. 40 (A/47/40), pp. 242-244). - 12 -
Congolese authorities did not question Mr. Diallo or bring him before a court when he was arrested
in 1995 and before he was expelled 3. Here too, I shall confine myself to three brief comments on
the topic:
19 ⎯ first, we take note of the fact that, as the DRC itself admits, Mr. Diallo “was not accused of any
particular criminal offence justifying pre-trial detention” ⎯ the detention was, according to the
DRC, merely part of the “administrative” expulsion procedure 37; this confirms that, plainly,
the very serious accusations made by the DRC ag ainst Mr.Diallo throughout the proceedings
38
before the Court are completely without foundation, as Guinea pointed out last Monday ;
⎯ secondly, as a corollary, Mr.Diallo’s detention prior to his expulsion, which exceeded the
maximum period of eight days established by the 1983 Legislative Order, was therefore totally
groundless and, indisputably, infringed Article 9 of the 1966Covenant, which prohibits
arbitrary detention;
⎯ thirdly and lastly, in the procedural sphere, I am bound to point out that the authorities
concerned have a duty, in the case of pre-expulsion detention, to allow the person subject to
that administrative measure, before his expulsion (and therefore during his detention), “to
submit the reasons against his expulsion and to have his case reviewed by, and be represented
for the purpose before, the competent author ity...”, as indicated by Article13 of the
1966Covenant. MathiasForteau observed in our first round of oral arguments that none of
those procedural rights was respected by the D RC, and referred, in particular, to the Views
adopted by the Human Rights Committee in Hammel 39; Mr. Diallo was at no time informed of
the legal basis for his detention and his expulsion, the reason for which was never notified to
him and whose lawfulness, in consequence, he was unable to challenge before his enforced
removal from Congolese territory 40.
3CR 2010/3, pp. 20-22, paras. 21-26.
3CR 2010/3, p. 21, para. 23.
38
CR 2010/1, pp. 45-48, paras. 20-33 (Forteau).
3CR 2010/1, p. 51, para. 41 (v).
4CR 2010/1, p. 51, para. 41 (iii), (vi) and (vii). - 13 -
D. The legal basis of the expulsion
41
25. “Expulsion” or “refusal of entry” ? That is not the question. Or rather, the question
was answered by the Court in its 2007 Judgment: “the expulsion was characterized as a ‘refusal of
20 entry’ when it was carried out” and “Mr. Diallo, as the subject of the refusal of entry, was justified
in relying on the consequences of the legal charact erization thus given by the Zairean authorities”
(AhmadouSadioDiallo (Republic of Guinea v. Democratic Republic of Congo), Preliminary
Objections, Judgment, I.C.J. Reports 2007, p.601, para.46). Guinea adhered to this approach in
its Reply 42 and last Monday explained unequivocally how the two concepts relate to each other in
43
this case and the consequences of that for the unlawfulness of Mr. Diallo’s expulsion .
26. The DRC returned on Monday, however, to a related argument, touched upon in its
Rejoinder, according to which the decree expelli ng Mr.Diallo was not defective for lack of
authority. To support the notion that the decree was validly signed by the PrimeMinster, rather
than by the President of the Republic as none the less established in the 1983Legislative Order
concerning immigration control, ProfessorKalala again relied on the entry into force, in 1994
(indeed, we have never had any problem with that date, Mr. President) ⎯ as I was saying, on the
entry into force in 1994 of a new constitution whic h purportedly transferred the power to expel
from the President to the Prime Minister 44.
27. The Respondent’s line of argument consis ted, however, merely of citing a number of
provisions from that new constitution. Two brief comments on those passages, if you will allow
me, Mr. President:
1. Article 80 (2) of the 1994 Constitution provides that “[t]he PrimeMinister shall exercise
regulatory power by means of decrees voted on by the Council of Ministers” 45; I would note
that, despite ProfessorKalala’s assertion that this provision replaced the clear wording of
Article15 of the 1983Legislative Order, what ha ppens in practice has remained true to the
Legislative Order: in contrast to other decrees adopted by the Prime Minister which the DRC
41See CR 2010/3, p. 33, para. 61.
42RG, p. 33, para. 1.17 and pp. 46-49, paras. 1.114-1.122.
43
CR 2010/1, pp. 40-41, paras. 3-5 (Forteau).
44CR 2010/3, pp. 36-37, paras. 71-73 and CR 2010/4, pp. 8-9.
45CR 2010/3, p. 36, para. 72. - 14 -
has appended to its written pleadings and has again reproduced at tab 1 in its judges’ folder for
Monday morning, the decree expelling Mr.Diallo does not contain the recital referring to a
46
decision by the Council of Ministers ; and,
21 2. in any event, the explanations advanced by the Respondent on Monday patently do not answer
in any respect whatsoever the arguments presente d by Mathias Forteau last Monday, 19 April,
when he demonstrated that the Respondent had always, until this week, asserted that the power
to expel remained the prerogative of the President of the Republic notwithstanding the grant of
regulatory power to the PrimeMinister. The DRC’s reports of 2005 to the Human Rights
Committee and in 2007 to the African Commission on Human and Peoples’ Rights clearly bear
this out47.
28. Those reports, which are quite unambi guous, show beyond any doubt that the new
constitution did not amend the 1983Legislative Orde r in the way claimed by the DRC, to suit its
purposes, at this stage of the proceedings. Mr. Dia llo’s expulsion, therefore, had to be based on a
reasoned order issued by the President, and under no circumstances on a decree of the
Prime Minister.
E. The value of Mr. Diallo’s parts sociales in
Africom-Zaire and Africontainers-Zaire
29. Mr.President, I now turn to a completely separate issue, that of the “value of
Mr. Diallo’s parts sociales” in Africom-Zaire and Africontainers-Zaire, to use ProfessorKalala’s
48
phrase , even though, as I shall now endeavour to show, this is actually a premature question that
the Court is not required to decide at this stage in the proceedings.
30. It is common ground between the Parties that the two companies were still in existence in
1995-1996: each obviously considers this to have been the case 4. On the other hand, we cannot
accept the contention put forward anew by the D RC in its oral argument on Monday that
Africom-Zaire and Africontainers-Zaire were “in undeclared bankruptcy” at the time of
46RG, p. 44, para. 1.110.
47
CR 2010/1, pp. 52-53 (Forteau).
48
CR 2010/4, p. 17, B.
49See ibid., pp. 16-17, para. 20 (Kalala) and CR 2010/2, pp. 45-48, paras. 26-32 (Pellet). - 15 -
22 Mr.Diallo’s expulsion from the Congo. The Respo ndent has fabricated this contrived argument
solely with a view to denying that the parts sociales held by the Guinean national had any
economic value whatsoever 50; that is both untrue and based on sloppy reasoning on two counts.
31. The first lies in the mistaken equating of a company’s lack of commercial activity with
its entry into bankruptcy. In the present case, the DRC has not denied that Mr.Diallo’s two
51 52
companies at the time of his expulsion were debt-free , had assets and continued to employ staff ;
these circumstances alone preclude the possibility of their bankruptcy, declared or not. The second
error vitiating the DRC’s reasoning arises from its forg etting that a debt claim, even if disputed,
remains an asset until such time as it has been definitively rejected.
32. Now, Africom-Zaire, described as a “phantom” company, without “commercial activity”,
having registered “no orders since the mid-1980s” 53, nevertheless was owed a debt, one that was
never disputed, of nearly 1 million United States dollars of the time, by the Congolese State arising
out of sales of listing paper in 1983 and 1986 54. And steps were actively taken, by Mr.Diallo’s
companies and at his instigation, to collect othe r debts, until Mr.Diallo was forced to leave the
Congo. I am referring to:
⎯ negotiations which Africontainers had been e ngaged in since 1992 with Gécamines, bringing
55
the parties together for the last time on 8June1995 , with a view to reaching a settlement
concerning the compensation owed by the national company for the 32containers which it
admitted to having abandoned;
23 ⎯ the dispute with Zaire Fina, which had b een referred to the Congolese courts for a
determination of the value of the direct and in direct consequences of the undenied loss by the
56
oil company of two containers which Africontainers had leased to it ;
50CR 2010/4, pp. 17-21, paras. 21-33.
51CR 2010/2, p. 39, para. 12.
52
See RG, Ann. 1, Mr. Diallo’s response to question 35.
53
CR 2010/4, p. 17, para. 23 (Kalala).
54CR 2010/1, pp. 19-21, paras. 14-17 (Wordsworth).
55MG, Ann. 151.
56Preliminary Objections of the DRC (PODRC), Anns. 53 and 54 and MG, Ann. 149. - 16 -
⎯ the “PLZ” lawsuit, in which the Kinshasa Tribunal de grande instance found a number of
breaches by PLZ under the lease it had granted to Africom-Zaire 57; and
⎯ the dispute with Zaire Shell, ultimately the cause of Mr. Diallo’s expulsion after Africontainers
obtained a provisionally enforceable decision by the Congolese courts ordering the oil
58
company to pay it more than 13 million dollars .
33. These claims all gave rise, at one stage or another in their treatment, to decisions in
favour of Mr.Diallo’s companies and none of those I have cited ⎯ not one ⎯ had been finally
settled by 31 January 1996, when the DRC expelled him. Thus, the view has to be taken that these
claims, some substantial in amount ⎯ the “listing paper” case alone is proof enough of this 59⎯,
were part of the property belonging to Mr.Diallo’s companies at that date and, in the absence of
any liabilities, the parts sociales in the companies, all of which he owned, were not worthless, far
from it.
34. What were they worth? This is not the time to argue the question, Mr. President, because
that would amount to fixing the quantum of the re paration and Guinea has asked the Court to defer
consideration of this to a later stage ⎯ which will become necessary only if the Parties fail to reach
a negotiated agreement on this point. It suffices at this stage to find that the Respondent’s
internationally wrongful acts have infringed Mr.Diallo’s property rights in the parts sociales he
owned in the two companies. Determining the amount of the compensation the DRC owes in
reparation is another problem.
24 35. With your leave, Mr. President, I would nevertheless like to say a word about the “divine
truth” represented, to ProfessorKalala’s mi nd, by the Permanent Court’s Judgment in the
60
Oscar Chinn case . I would be loath, Members of the Court, to call into question this “Bible verse
where nothing can be added or subtracted” 61⎯ to be sure, more satanic verses do exist. But I
57MG, Anns. 130 and 146.
58MG, Ann. 153.
59
MG, Anns. 46 to 51.
60CR 2010/4, p. 20, para. 30.
61Ibid. - 17 -
cannot go along with our opponent when he claims that the conclusions reached by the Court in
1934 “are wholly transposable to the present case” 62.
36. They are absolutely not: aside from the f acts that the Congo is the setting and that the
two cases each involve a transport company, there is simply no similarity between the legally
relevant circumstances of them: the PCIJ found in Oscar Chinn that the British investor’s
economic troubles had been caused by the economic crisis ⎯ the “great crisis” of the 1930s; what
is more, and more important, the measure comp lained of by the applicant was general and
impersonal 63, whereas in our case the DRC’s internationally wrongful acts precisely targeted
Mr. Diallo individually and were performed pursuant to decisions taken at the highest levels of the
Congolese Government.
F. The distinction between the rights of the companies and the rights
of Mr. Diallo (answer to Judge Bennouna’s question)
37. Mr.President, JudgeBennouna asked the following question at the end of the second
hearing in our first round:
“The Republic of Guinea is asking the Court to declare that Mr. Diallo has been
the victim of expropriation as a result of the decisions of the Democratic Republic of
the Congo. How does the Republic of Guinea reconcile this claim with
paragraph (3) (c) of the operative clause of the Judgment of 24May2007 on the
preliminary objections, in which the Court ‘[d]eclares the Application of the Republic
of Guinea to be inadmissible in so far as it concerns protection of Mr. Diallo in respect
64
of alleged violations of rights of Africom-Zaire and Africontainers-Zaire’ ?”
25 38. This question, Mr.President, affords me the opportunity to bring together what
Daniel Müller and I (speaking through Jean-Marc Thouve nin) said last week and, at the same time,
to recapitulate the essential points in our argument.
39. But first of all I wish to reassure Professor Kalala 65: of course, we have read the Court’s
Judgment from 2007; we even think that we understand it and have paid it the greatest heed!
40. In it the Court held “the Application of the Republic of Guinea to be inadmissible in so
far as it concerns protection of Mr.Diallo in respect of alleged violations of rights of
62CR 2010/4, p. 20, para. 30.
63
See Oscar Chinn, Judgment, 1934, P.C.I.J., Series A/B, No. 63, p. 65.
64
See CR 2010/2, p. 53.
65CR 2010/4, p. 17, para. 20; see also RDRC, pp. 1-2, para. 05. - 18 -
Africom-Zaire and Africontainers-Zaire” and also held it to be admissible “in so far as it concerns
protection of Mr.Diallo’s rights as an indivi dual” and “of Mr.Diallo’s direct rights as associé in
Africom-Zaire and Africontainers-Zaire” ( Ahmadou SadioDiallo (Republic of Guinea v.
Democratic Republic of the Congo), Preliminar y Objections, Judgment, I.C.J.Reports2007 ,
pp. 617-618, para. 98 (3) of the operative clause).
41. Since the Republic of Guinea was unable to exercise its diplomatic protection on behalf
of Mr.Diallo’s companies “by way of substitution”, it is clearly impossible for it to claim
reparation for injuries caused to the two companies themselves. Moreover, a number of arguments
are unavailable to us and we have indeed refrained from raising them. This, for example, explains
why we have said nothing ⎯ another deafening silence ⎯ about the denials of justice suffered not
by “Mr. Diallo” directly (contrary to how Professor Kalala has described it 66) but by Africom-Zaire
and Africontainers. Likewise, as our opponent has noticed, we have avoided any reliance, in the
form of freestanding claims, on the “breaches of contract” resulting from the non-performance
attributable to the Respondent of certain undertakin gs not to Mr.Diallo directly but to one or the
other of his companies 67.
42. But, and this is an important “but”, the fact that it is not possible for Guinea to act to
26 protect these companies in no way negates Mr. Diallo ’s direct rights, including of course those tied
to the existence and success of his companies and to his ownership of the parts sociales. These
internationally protected rights subs ist: Mr.Diallo’s rights in his parts sociales in the two
companies and the right to oversee and control their management, rights belonging to him as
associé. I shall not go back over this second aspect, the rights of the associé, which was the subject
of Sam Wordsworth’s thorough presentation last week 68, a presentation to which there has yet to be
any response. By contrast, I propose, with your leave, Mr. President, to return briefly to the right
of ownership in his parts sociales, which Mr. Diallo was deprived of by virtue of the DRC’s
internationally wrongful acts. And I shall point out in passing that this right of ownership held by
associés in the parts sociales is expressly recognized under Congolese law, pursuant to Article 52
6CR 2010/3, p. 22 (c); see pp. 22-23, paras. 27-30.
67
Ibid., pp. 23-24, paras. 31-33.
6CR 2010/2, pp. 8-21. - 19 -
of the Decree of 27February1887 on commercial corporations: “The parts sociales are
indivisible. In the event of several persons owning a single part sociale, the company is entitled to
suspend the exercise of rights deriving from that share until such time as one person is designated
69
as, for the company’s purposes, the owner of that part sociale .” There can be no doubt that the
right of ownership in the parts sociales is recognized to be vested in the associé or shareholder
[actionnaire], not in the company itself.
43. In order to show that this right of Mr. Diallo’s can be protected by the Applicant and that
a violation of it gives rise to the Respondent’s responsibility, it is necessary, and sufficient, to look
to the general scheme of State responsibility for internationally wrongful acts and to ask the
following two questions:
1. Has an internationally protected right been violated?
2. Is this violation attributable to the DRC?
44. First question: has an internationally protected right been violated? As I just said, quite
apart from the rights of the companies themselves, Mr.Diallo’s right in his parts sociales in the
companies was violated and this is, most definitely, an internationally protected right: it is a human
27 right guaranteed by Article14 of the African Charter on Human and Peoples’ Rights and by
customary international law, as Mr. Müller explained last week 70.
45. Second question: is this violation of Mr.Diallo’s right of ownership attributable to the
Respondent? Here too the answer is inargua ble: beginning in the late 1980s, the DRC
endeavoured by every possible means ⎯ including the most unlawful ⎯ to prevent Mr.Diallo
from enjoying his right of ownership in his parts sociales and his right, as sole associé in the two
companies, to control and supervise their management:
⎯ in 1988 authorities of the Respondent threw Mr. Diallo in jail and kept him there for a year to
prevent him from looking after his companies’ interests ⎯ the effect of which was to rein in
their business significantly (let us not forget that Mr. Diallo is the “jack of all trades” of the two
companies: sole associé, sole gérant and sole executive) and to force him to be more
circumspect in his actions afterwards;
69
See also Art. 54.
70
See ibid., pp. 22-23, paras. 3-5 (Müller). - 20 -
⎯ notwithstanding this circumspection, the same au thorities, acting at the request of powerful oil
companies ⎯ led by ZaireShell ⎯ in debt to Mr.Diallo’s companies, again deprived him of
his freedom in disregard of fundamental human rights principles in 1995-1996 after his
victories in litigation;
⎯ it was the Prime Minister of Zaire himsel f who signed the “decree of expulsion” of
31October 1995, which was to culminate in MrD . iallo being “refused entry” on
31January1996; in practical terms that d ecision deprived him once and for all of any
possibility of taking action and led to the idling and then disappearance of his companies ⎯ I
shall reiterate on this point that the default judgment rendered by the Kinshasa/Gombe Court of
Appeal on 20 June 2002 notes that Africontainers is “[c]urrently without known address in the
71
Democratic Republic of the Congo” .
46. Mr. President, it could hardly be clearer th at this chain of breaches by the Respondent of
obligations it bears under international law ⎯ whether we see this as a conjunction of
internationally wrongful acts or as a complex or continuing act, but which in all events was aimed
at Mr. Diallo’s brutal expulsion ⎯ that these breaches deprived him of his right of ownership in his
28 parts sociales in the two companies, Africom-Zaire and Africontainers-Zaire. As we showed last
Monday, whether the companies are considered to be extant (which we do not believe) or to have
disappeared de jure as well as de facto, the result is the same: Mr. Diallo has been expropriated of
the parts sociales he held in the two companies: he no longer has the usus, or the fructus, or the
72
abusus, and that is indeed the consequence of the Respondent’s unlawful conduct .
47. Mr.President, one might at first glance th ink this argument an attempt to circumvent
paragraph3 of the operative clause in the 2007Judgment. But that is not at all so: this feeling
arises from a factual element specific to this case: the fact that Mr. Diallo is the sole associé in the
two companies, that is to say, the only owner of the parts sociales in Africom and Africontainers.
As a consequence, even though officially they have separate legal personalities, the very special
characteristics of the relationship between Mr. Diallo and his companies means that, from the
factual perspective, which is the perspective of expropriati on (expropriation is a question of fact),
71
PODRC, Ann. 64.
72
CR 2010/2, pp. 49-50, para. 37 (Pellet); see also ibid., pp. 29-32, paras. 20-25 (Müller). - 21 -
the property of the two companies merges with his. Thus, in expropriating his companies, the DRC
infringed Mr. Diallo’s ownership right in his parts sociales.
48. Once again, this is entirely a product of the particular circumstances and follows from the
unipersonal nature of the companies in question ⎯ and I shall point out in passing that it is in cases
of this type that the European Court of Human Rights, for example, has accepted that the sole
owner of a company may claim to be a “victim” within the meaning of Article34 of
the1950Rome Convention of measures taken ag ainst his company, because in the case of a
single-shareholder company there can be no risk of differences of opinion among shareholders or
between shareholders and the board of directors as to the fact of infringements of the rights
protected under the Convention (the European Convention on Human Rights) or concerning the
most appropriate way of reacting to such infringements 7.
49. If the companies had had other associés besides Mr.Diallo, it would be a different
matter: let us assume there to be not one but four associés, each ⎯ including Mr.Diallo ⎯
holding one fourth of the capital. In this case Mr.Diallo would be entitled to compensation only
for the infringement of his personal right of ownershi p, that is to say 25 per cent of the value of the
29 company, and the legally unassailable distinction made by the Court between the rights of the
company and the rights of Mr.Diallo would be apparent and its consequences plain. Here, the
consequences of the distinction are obscured by a factual circumstance, but this in no way involves
a challenge to the Court’s decision in paragraph 3 of the operative part of its 2007 Judgment: it is
because the internationally wrongful acts committed by the Respondent amount to an infringement
of Mr. Diallo’s right of ownership in the parts sociales in the two companies ⎯ of which he was
(or is) the sole owner ⎯ that the DRC’s responsibility has been engaged and that it owes reparation
under the heading of diplomatic protection of Mr. Diallo’s right of ownership.
50. Once an internationally unlawful act has caused damage, that damage must be repaired in
full. That is one of the consequences ⎯ undoubtedly the main one ⎯ of the international
responsibility of a State. And, as we showed during the first round of this oral argument, reparation
for the material injury caused to Mr.Diallo in the present case by the actions of the DRC must
73
See Ankarcrona v. Sweden (dec.), No.35178/97, 27June2000; Dyrwold v. Sweden, No.12259/86,
Commission decision, 7 Sep. 1990; and, more recently, Nosov v. Russia (dec.), No. 30877/02, 20 Oct. 2005. - 22 -
necessarily take the form of compensation 74. But determining the amount of that compensation is
not within the scope of the present phase of the pro ceedings. It will have to be set by the Court
later, if the Parties are unable to reach a negotia ted agreement on it within a reasonable period of
time.
51. Mr. President, throughout the proceedings the DRC has emphasized the financial aspects
of this case, which Professor Kalala has described as “a case involving large sums of money”, as “a
75
base trap set by Mr.Diallo” . It is certainly true that economic and financial interests are at
stake ⎯ and there is no shame in that: there is no reason why a small, poor country like Guinea
cannot come to the defence of its nationals’ material interests; this is plainly one of the functions
of the institution of diplomatic protection. But our case cannot be reduced to merely that: besides
these economic rights which the RDC has scoffed at , it also involves a Guinean national’s human
rights and it is much to the credit of the Applicant to defend these.
52. Mr. President, Members of the Court, I thank you for having listened so patiently to this
somewhat long statement. But your patience will be rewarded because, without using up the
30
speaking time available to the Republic of Guin ea, its Agent will now offer a few concluding
remarks before reading its final submissions, if you would be so good, Mr. President, to call him to
the lectern.
The VICE-PRESIDENT, Acting President: Thank you, Professor. I shall now give the floor
to the Agent of the Republic of Guinea. You have the floor, Sir.
M RM. ARA:
1. Mr.President, Members of the Court, it falls to me, in my capacity as Agent of the
Republic of Guinea, to conclude this oral argu ment, and I shall thus shortly have the honour of
reading the submissions of my Government.
2. First, however, I wish to draw your attention, Members of the Court, to a particular aspect
of this case which concerns the factual evidence. By expelling Mr.Diallo overnight from the
country where he had lived for the previous 32y ears, without allowing him to recover any of his
74
See CR 2010/2, pp. 50-52, para. 42 (Pellet).
75
CR 2010/4, pp. 20-21, par. 32. - 23 -
property, the Respondent has made defending the ri ghts of Mr.Diallo, who was then completely
dispossessed, much more complicated. We have done all that we could in presenting the evidence
available to us, but I cannot say that the attitude of our Congolese brothers has helped in
discovering the truth: they have shown themselv es to be unable (or unwilling) to supply the Court
with documents which it is difficult to believe they would have not been able to produce, had they
carried out an even vaguely systematic search.
3. Instead of submitting the evidence which woul d have allowed the record to be completed,
they have done no more than make sweeping accu sations, as if they adhere to the principle,
however disgraceful, that I am told is attributed to Beaumarchais: “Throw dirt enough, and some
will stick.” However, we are in no doubt that you, Members of the Court, will be able to
distinguish the true from the false, what has been established from what remains uncertain, and it is
with great confidence that my country awaits your verdict in this case, in which, as Professor Pellet
has just reminded us, there are not just financial in terests at stake, but also principles — principles
which must offer the same protection to small count ries such as mine and to their nationals as they
do to the bigger, richer and more powerful countries.
31 4. The presence in this hall today of Colonel Siba Lohalamou, Minister of Justice and Keeper
of the Seals, and of a substantial delegation fro m Conakry reflects the exemplary importance that
we attach to this case.
5. Before I conclude, both on my own behalf a nd on behalf of the Government I represent, I
should like to express my thanks for your attention over these two days of hearings, as well as for
your patience throughout these proceedings. My si ncere thanks also go to the Registrar, the
interpreters and the entire Registry staff: it is their receptiveness and assistance in particular which
have allowed these hearings to be held, in spite of the furies of the Icelandic volcano. I also wish to
reiterate our thanks to Guinea’s Counsel, who ha ve shown great dedication over the past nine
years, and who have ensured that my country’s arguments are based on a sound analysis of the
facts and of the applicable law. - 24 -
6. In accordance with Article60, paragraph2, of the Rules of Court, I shall now read the
final submissions of the Republic of Guinea:
1. On the grounds set out in its Memorial, its Reply and the oral argument now being concluded,
the Republic of Guinea requests the International Court of Justice to adjudge and declare:
(a) that, in carrying out arbitrary arrests of its national, Mr.AhmadouSadioDiallo, and expelling
him; in not at that time respecting his right to the benefit of the provisions of the 1963 Vienna
Convention on Consular Relations; in submitting him to humiliating and degrading treatment;
in depriving him of the exercise of his rights of ownership, oversight and management in
respect of the companies which he founded in the DRC and in which he was the sole associé;
in preventing him in that capacity from pursuing recovery of the numerous debts owed to the
said companies both by the DRC itself and by othe r contractual partners; and in expropriating
de facto Mr.Diallo’s property, the Demo cratic Republic of the Congo has committed
internationally wrongful acts which engage its responsibility to the Republic of Guinea;
(b) that the Democratic Republic of the Congo is accordingly bound to make full reparation on
account of the injury suffered by Mr. Diallo or by the Republic of Guinea in the person of its
national;
32 (c) that such reparation shall take the form of compensation covering the totality of the injuries
caused by the internationally wrongful acts of the Democratic Republic of the Congo, including
loss of earnings, and shall also include interest.
2. The Republic of Guinea further requests the Court kindly to authorize it to submit an
assessment of the amount of the compensation due to it on this account from the Democratic
Republic of the Congo in a subsequent phase of the proceedings in the event that the two
Parties should be unable to agree on the amount thereof within a period of six months following
delivery of the Judgment.
Thank you, Mr. President.
The VICE-PRESIDENT, Acting President: Thank you very much, Mr. Camara. The Court
takes note of the final submissions which you have just read out on behalf of the Republic of - 25 -
Guinea. The Democratic Republic of the C ongo will present its second round of oral argument
tomorrow, Thursday 29 April, from 4 p.m. to 6 p.m. The hearing is closed.
The Court rose at 5.15 p.m.
___________
Traduction