12245
INTERNATIONAL COURT OF JUSTICE
CASE CONCERNING
AHMADOU SADIO DIALLO
(REPUBLIC OF GUINEA v. DEMOCRATIC REPUBLIC OF THE CONGO)
MEMORIAL OF
THE REPUBLIC OF GUINEA
6 December 2011
[Translation by the Registry] T ABLE OF C ONTENTS
INTRODUCTION ........................................................................
........................................................... 1
Section 1 Legal bases for Guinea’s position........................................................................
......... 2
A. The purpose of compensation ........................................................................
..................... 3
B. Breaches of international law found by the Court............................................................... 4
Section 2 Financial criteria for assessing the damage suffered by Mr. Diallo.............................. 4
A. Compensation for the mental harm and moral damage suffered by Mr. Diallo.................. 5
B. Loss of earnings ........................................................................
.......................................... 8
C. Other material damage ........................................................................
.............................. 11
D. Loss of earning potential........................................................................
........................... 13
C ONCLUSIONS ........................................................................
.......................................................... 14
Annexes:
Annex1: Letter (No.131) to the Ambassador and Agent of the Democratic Republic of the
Congo dated 30 March 2011 from the State Judicial Agent of the Republic of Guinea
Annex 2: Letter (No. 265) to the Registrar date d 27 May 2011 from the State Judicial Agent of
the Republic of Guinea2
INTRODUCTION
1. In its judgment delivered on 30 November 2010 1in the case concerning
Ahmadou SadioDiallo (Republic of Guinea v. Democratic Republic of the Congo) , the
International Court of Justice in The Hague found inter alia that:
⎯ “in respect of the circumstances in which Mr. Diallo was expelled from Congolese
territory on 31January1996, the Democratic Republic of the Congo violated
Article13 of the International Covenant on Civil and Political Rights and
Article12, paragraph4, of the Afri can Charter on Human and Peoples’ Rights”
(operative paragraph, subpara. (2));
⎯ “in respect of the circumstances in which Mr. Diallo was arrested and detained in
1995-1996 with a view to his expulsion, the Democratic Republic of the Congo
violated Article 9, paragraphs 1 and 2, of the International Covenant on Civil and
Political Rights and Article6 of the African Charter on Human and Peoples’
Rights” (operative paragraph, subpara. (3));
⎯ “by not informing Mr.Diallo without de lay, upon his detention in 1995-1996, of
his rights under Article 36, paragraph 1 (b), of the Vienna Convention on Consular
Relations, the Democratic Republic of the Congo violated the obligations
incumbent upon it under that subparagraph” (operative paragraph, subpara. (4));
⎯ “the Democratic Republic of the Congo is under obligation to make appropriate
reparation, in the form of compensati on, to the Republic of Guinea for the
injurious consequences of the violations of international obligations referred to in
subparagraphs (2) and (3) above” (operative paragraph, subpara. (7)).
2. The Democratic Republic of the Congo (D RC) is therefore under a legal obligation to
make “appropriate reparation” in the form of compensation to the Republic of Guinea on account
of the violations of Mr.Diallo ’s individual rights, excluding, how ever, the breach of the Vienna
Convention on Consular Relations, for which the Court considers that adequate reparation has
already been made by virtue of the very finding of that breach.
3 3. Furthermore, the Court also acceded to Guin ea’s request for both Parties to be given time
to seek an agreed settlement on the amount of compensation to be paid in reparation for the
injurious consequences of the internationally wrongful acts committed by the DRC 2. It
3
emphasized that “the Parties should indeed engage in negotiation” to that end.
4. More explicitly, it states:
“In light of the fact that the Appli cation instituting proceedings in the present
case was filed in December 1998, the Court considers that the sound administration of
justice requires that those proceedings soon be brought to a final conclusion, and thus
that the period for negotiating an agreem ent on compensation should be limited.
Therefore, failing agreement between the Parties within sixmonths following the
1Case concerning Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo) , Judgment
of 30 November 2010.
2
Ibid., paras 162-164.
3
Ibid., para. 163. - 2 -
delivery of the present Judgment on the amount of compensation to be paid by the
DRC, the matter shall be settled by the Court in a subsequent phase of the
proceedings. Having been sufficiently inform ed of the facts of the present case, the
Court finds that a single exchange of writte n pleadings by the Parties would then be
sufficient in order for it to decide on the amount of compensation.” 4
5. As part of the engagement process recomme nded by the Court, and in the absence of any
initiative from the DRC, the Republic of Guinea, through its diplom atic mission in Central Africa
and the Congolese mission in Conakry, then addressed to the DRC letter No. 131 of 30 March 2011
containing, as a basis for negotiation, an assessmen t of the various heads of damage suffered by
Mr. Diallo. That letter was forwarded by Note Verbale No. 0344 of 6 April 2011.
6. Having obtained no response from the Congolese authorities to the letter of
30 March 2011 and having therefore noted that th e DRC showed no sign of any concern to comply
with the Court’s wishes ⎯ for which it should bear the legal consequences ⎯ the Republic of
Guinea so informed the Registrar of the Court by letter No. 265 of 27 May 2011.
7. On 20 September 2011 the President of the Court issued an Order fixing 6 December 2011
4
and 21February2012, respectively, as the time- limits for the filing of the Memorial of the
Republic of Guinea and the Counter-Memorial of the Democratic Republic of the Congo on the
sole question of compensation owed by the latter to the former under paragraphs 163 and 165 (7) of
its Judgment of 30November2010. Those time-l imits were fixed taking account of the views
expressed by the Parties at a meeting which th e President of the Court held with their
representatives on 14 September 2011 in The Hague.
8. The purpose of the present Memorial is, precisely, to establish the Republic of Guinea’s
legal and financial positions on the question of compen sation. It will thus be structured around the
following two points:
⎯ the legal bases for Guinea’s position;
⎯ the financial criteria for assessing the damage suffered by Mr. Diallo.
Section 1
Legal bases for Guinea’s position
9. While the Court drew attention to the international law principle that the purpose of
compensation must be to make full reparation for injury, that principle must be viewed in the
context of the violations of international law wh ich it found against the DRC in the present case.
These constitute the two bases for Guinea’s position on the question of compensation for the injury
suffered by Mr. Diallo as a result of the DRC’s conduct.
4
Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo) , Judgment of
30 November 2010, para. 164. - 3 -
A. The purpose of compensation
10. Since it is materially impossible to restor e the situation which existed previously, given
how long ago the facts occurred and the particul ar nature of some of the heads of damage,
reparation not only may 5 but must take the form of payment of compensation.
11. This is the intent of the Court’s Judgment, which states in paragraph 161:
5 “In the light of the circumstances of the case, in particular the fundamental
character of the human rights obligations breached and Guinea’s claim for reparation
in the form of compensation, the Court is of the opinion that, in addition to a judicial
finding of the violations, reparation due to Guinea for the injury suffered by
Mr. Diallo must take the form of compensation.”
T1he. amount of that compensation must be determ ined in accordance w ith the rules of
international law, not domestic law. In the exer cise of diplomatic protection by a sovereign State,
the compensation that may be due to that State must, in addition, be assessed in the light of the
injury suffered by the protected national 6, as the Court noted in paragraph163 of its Judgment,
which reads as follows:
“The Court is of the opinion that the Parties should indeed engage in negotiation
in order to agree on the amount of compensation to be paid by the DRC to Guinea for
the injury flowing from the wrongful deten tions and expulsion of Mr.Diallo in
1995-1996, including the resulting loss of his personal belongings.”
13. As for the starting point for the calculation of damages , these must be assessed in
accordance with the general principle of law that the compensation needed to make good the injury
must be calculated on the basis of the value of the damage on the day of the judgment.
14. Since the specific purpose of compensati on is to restore as exactly as possible the
balance disturbed by the injury and to enable the victim, at the responsible party’s expense, to
return to a position identical to that in which he would have found himself had the injurious act not
taken place, it follows that the amount of damages must take account of the effects of any currency
depreciation that has occurred since the injurious act was committed.
15. The compensation must therefore include interest at the statutory rate.
16. Consequently, Guinea considers that it is entitled to claim compensation for each of the
heads of damage suffered by Mr.Diallo which ar e the direct consequence of an internationally
wrongful act found against the DRC by the International Court of Justice.
5
Factory at Chorzów, Merits, Judgment No. 13, 1928, P.C.I.J., Series A, No. 17, p. 27.
6
Factory at Chorzów, Merits, Judgment No. 13, 1928, P.C.I.J., Series A, No. 17. - 4 -
6 B. Breaches of international law found by the Court
17. The Court found that the DRC had violated a number of its international obligations in its
treatment of Mr.Diallo, at the time of the arrest, detention a nd expulsion measures taken agains7
him in 1995-1996, the only period considered in the context of the present proceedings .
18. First of all, it found that the Respondent had breached the provisions of Article 13 of the
International Covenant on Civil and Political Right s and of Article 12, paragraph 4, of the African
Charter on Human and Peoples’ Rights, which re quire non-nationals legally admitted to the
territory of a State Party to be protected against any unlawful expulsion. Mr. Diallo’s expulsion on
31January1996 was not preceded by consultation of the National Immigration Board, nor was it
8
based on reasoned grounds, thereby contravening the provisions of the DRC’s own national law .
19. Furthermore, the conditions in which the expulsion took place deprived Mr. Diallo of his
right, under Article 13 of the Covenant, to challenge that measure before a “competent authority”.
20. The Court also decided that the DRC was internationally responsible for the arbitrary
deprivation of liberty which Mr.Diallo suffered in breach of Article9, paragraphs1 and 2, of the
Covenant and Article6 of the African Charter. As the Court found, Mr.Diallo’s arrests and
detentions between 5November 1995 and 31January1996 were not only not in accordance with
Congolese law , they were also arbitrary, since the Congolese authorities did not at any stage seek
to give the reasons for his 10ing held for a “particularly long” time or to ascertain whether his
detention was necessary . Furthermore, the fact that Mr. Dia llo was not at any stage informed of
the reasons for his detention constitutes an additional breach by the Respondent of the
above-mentioned obligations.
7 21. Lastly, it should be pointed out that11in the Court’s view, the human rights obligations
breached are of a “fundamental character” , which must be taken into account for determining the
“adequate . . . reparation” 12 to be paid to Guinea.
Section 2
Financial criteria for assessing the damage suffered by Mr. Diallo
22. In its resolution 60/147 of 16 December 2005, the United Nations General Assembly set
out the following rules governing financial compen sation for damage resulting from violations of
internationally protected individual rights:
“ Compensation should be provided for any economically assessable damage, as
appropriate and propor tional to the gravity of the violation and the circumstances of
Cf. Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo) , Judgment of
30November 2010, para. 47: “For all of the reasons set out above, the Court finds that the claim concerning the arrest
and detention measures to which Mr. Diallo was subject in 1988-1989 is inadmissible.”
Ibid., para. 71.
Ibid., para. 79.
10
Ibid., para. 82.
1Ibid., para. 161.
1United Nations General Assembly, resolution 60/147, 16 December 2005, Ann. VII (b). - 5 -
each case, resulting from gross violations of international human rights law and
serious violations of international humanitarian law, such as:
(a) Physical or mental harm;
(b) Lost opportunities, including employment, education and social benefits;
(c) Material damages and loss of earnings, including loss of earning potential;
(d) Moral damage;
(e) Costs required for legal or expert assistance, medicine and medical services, and
13
psychological and social services.”
23. The Republic of Guinea considers that the damage suffered by Mr. Diallo as a result of
the serious violations of his fundamental rights may be assessed on the basis of those rules in order
to determine the most adequate reparation.
8 A. Compensation for the mental harm and moral damage suffered by Mr. Diallo
24. It cannot be disputed that Mr.Diallo suffered moral and mental harm, including
emotional pain, suffering and shock, as well as the loss of his position in society and injury to his
reputation as a result of his arrests, detentions and expulsion by the DRC:
(i) first of all, it should be emphasized that he was the victim of serious violations of his
rights by the public authorities in a country where he had spent most of his life developing
economic activities that were unques tionably useful to that country 14. Mr.Diallo was
continuously and permanently resident in C ongolese territory for almost 32 years; he had
established all his personal and professional ties there, and he had no assets or property in
his country of origin that might enable him to live in equivalent or even normal
circumstances;
(ii) it must also be emphasized that, as stated by the Court, “ it is difficult not to discern a link
between Mr. Diallo’s expulsion and the fact th at he had attempted to recover debts which
he believed were owed to his companies by, amongst others, the Zairean State or
companies in which the State holds a substan tial portion of the capital, bringing cases for
this purpose before the civil courts” 15; the serious injustice felt by Mr. Diallo as a result
of his arrests, detentions and expulsion caused him deep psychological trauma and
consequent moral damage;
(iii) that trauma was all the greater since Mr. Diallo, who belonged to the country’s wealthiest
section of society, was expelled from the DRC in conditions which prevented him from
being able to take any of his belongings with him; he was thus suddenly left utterly
destitute, falling from the highest to the lowest rung of the social ladder, where he has
remained for more than 15years, with no hope of one day returning to the Democratic
9 Republic of the Congo, although that is where he has all his personal and professional ties;
1United Nations General Assembly, resolution 60/147, 16 December 2005, Ann. VII (b).
14
See Memorial of the Republic of Guinea (MG) of 23 March 2001, pp. 12 et seq.
1Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo) , Judgment of
30 November 2010, para. 82. - 6 -
(iv) the fact that, prior to his arrests and expulsion, Mr.Diallo belonged 16to the country’s
wealthiest social class can be seen from the fact that he was the sole associé and the
gérant of two companies, the main partners of which are the Congolese State and major
public, semi-public and private companies in the country.
The first company, Africontainers, had signed an exclusive contract with Gécamines, the
country’s biggest public company, for the c ontainer transport of the country’s mining
17
products . It fulfilled its contractual obligations for the execution of that contract, which
included the purchase of 600containers. It also had ties with oil companies through
contracts for the container transport of oil products. In return for its undertakings, it
received the total amount of US$2,500 per cont ainer of products transported for a round
trip between Lubumbashi and Kinshasa. It was even preparing to buy a self-propelled
container barge capable of carrying 56 containers.
The second company, Africom-Zaire, owns plots of land with a total surface area of over
one hectare in the very centre of Kinshasa, accommodating warehouses, offices and
apartments, surrounded by 4metre-high rein forced concrete perimeter walls with
2 metre-deep foundations.
Both companies are owed considerable sums of money by the Congolese State and
18
various other partners , and they employed more than 120 staff, including:
⎯ Mr. Paul Bandoma, Minister of National Defence for six years;
10
⎯ Mr. Ngutu, a university professor, responsible for market research;
⎯ Mr. Poto, a former economic adviser to the DRC Presidency;
⎯ Mr.Tamboué, former assistant managing director of Citibank-Zaire, Finance
Director;
⎯ Mr. Teza, an accountant who had resigned from Coopers;
⎯ Baldé Abdoulaye, a Canadian of Guin ean origin, a Doctor of Business
Administration;
⎯ Mr.Saba, a captain in the Zairean army, who had just been acquitted of plotting
against national internal security;
⎯ Mr. Meyers, a Belgian;
⎯ Mr. Philippe, a Frenchman.
25. Mr. Diallo was an extraordinary personality:
16
For more details on the facts, including Mr. Diallo’s history, see MG of 23 March 2001, under the heading “The
relevant facts”, pp. 10-15, and MG of 7 July 2003 on theliminary Objections of the Democratic Republic of the
Congo (PODRC), chapter on “The salient facts”, pp. 4 et seq.
17
See leasing agreement of 29 June 1982, Ann. 12, MG of 23 March 2001.
1For more detail, see MG of 23 March 2001, pp. 10 et seq., and pp. 55 et seq. - 7 -
⎯ he lived in a five-star hotel for nineteen year s, first in apartment 202 at the Memling Hotel,
then in the residential district in an apartm ent on the 9th floor of the Losonia building owned
by PLZ;
⎯ he drove a Citroën CX Prestige armoured car;
⎯ neither he nor either of his companies owes a penny to anyone;
⎯ he was publicly presented by PresidentMobutu as an exemplary foreign investor and
successful role model for African investors in Zaire. As such he was even visited at his offices
on the 16th floor of the Centre commercial international du Zaïre (CCIZ) by the French
19
President Valéry Giscard d’Estaing, accompanied by President Mobutu ;
⎯ as gérant of Africom-Zaire and Africontainers his monthly salary was the equivalent of
US$25,000;
11 ⎯ as the French weekly Jeune Afrique reported in its issue of 16February1984, he entertained
guests at the best restaurants in Kinshasa . These included:
⎯ MU r.hant, then United Nations Secretary-General, accompanied by
Mr. Diallo Telly, Secretary-General of the OAU, on the sidelines of an OAU summit
in Kinshasa;
⎯ Nicéphore Soglo, former President of Benin;
⎯ Babacar Ndiaye, President of the African Development Bank;
⎯ Pelé, the famous Brazilian footballer;
⎯ Kamanda Wa Kamanda, Adviser to President Mobutu, then Minister of Justice;
⎯ Cheick Anta Diop, a Senegalese scientist;
⎯ Joseph Ki Zerbo, an historian from Burkina Faso;
⎯ Mr. Bissengué Mana, Director of President Mobutu’s private office for 15 years;
⎯ Mr.Siradiou Diallo, vice-president of Jeune Afrique , his wife and many other
journalists;
⎯ Djouga Kébé and Djilli Mbaye, both wealthy Senegalese businessmen;
⎯ President Mitterrand’s aide-de-camp;
⎯ Sennen Andriamirado, editor-in-chief of Jeune Afrique;
⎯ Bah Mouctar, an expert from the Afri can Development Bank, and many other
colleagues;
⎯ Mr. Boussokota, Zairean State Secretary for Planning, etc.
19
Photographs of this visit were left behind in the DRC.
20
See MG of 23 March 2001, pp. 11 and 12 and Ann. 18. - 8 -
26. Furthermore, it will be noted that, ever since having problems with the DRC, Mr. Diallo
has consistently been portrayed by that country as a dangerous criminal, not just at the time of his
12
arbitrary arrests and expulsion, but also before the Court and publicly since the start of the
hearings, with no valid justification, as the Court held in paragraph82 of its Judgment; this has
caused serious injury to his reputation and image and, at the same time, equally serious moral
injury.
27. The mental and moral harm suffered by Mr. Diallo as a result of the repeated accusations
of corruption and fraud made against him by the DRC has been exacerbated by the fact that those
accusations were designed solely to tarnish his honour and reputation; the consequences for him
have been disastrous: for more than 15years he has been unable to engage in any economic
activity whatsoever because third parties who might work with him now shun him, fearing that they
are dealing with a fraudster.
28. The Republic of Guinea assesses the mental harm and moral damage suffered in this case
by Mr. Diallo at US$250,000.
B. Loss of earnings
29. As the Court found, Mr.Diallo was arrested arbitrarily and detain ed equally arbitrarily,
first from 5 November 1995 to 10 January 1996, then a second time from 25 to 31January 1996,
before finally being expelled on the latter date.
30. A person who is unlawfully arrested and detained, then expelled, suffers material damage
which the Inter-American Commission on Human Rights has described as follows:
“Consequential damages have been understood as pertaining to the direct and
immediate consequence of the acts. In this sense, the effects on patrimony derived
immediately and directly from the acts are considered in relation to costs incurred by
the affected party to obtain justice, in this case, relating to the efforts taken to free [the
person detained]. On the other hand, the loss of profits is understood as the loss of
income or benefits that have not been obt ained because [the person detained] had to 21
leave his job and can be quantified based on measurable and objective indicators.”
31. It will be recalled in the present case that Mr .Diallo was, at the time of his arrest, the
manager and sole associé of two companies, Africom-Zaire and Africontainers-Zaire. Moreover,
as paragraph82 of the Court’s Judgment states, it was because he was the gérant of those
13 companies and had brought cases before the courts on their behalf that he suffered the harmful
consequences recognized as unlawful by the Court.
32. The salaries he received in that capacity were his main source of income.
33. Throughout the period of his detention Mr.Diallo was unable to carry out his normal
management activities or ensure that his companies ⎯ for which he was solely responsible ⎯ were
being run properly, or to receive the monthly fruits of his activity and, consequently, that of his
companies.
21
Inter-American Commission on Human Rights, Lysias Fleury and his family v. Republic of Haiti (Case 12.549),
5 August 2009, para. 111. - 9 -
34. It should be noted that Mr.Diallo’s monthly income, in his capacity as gérant of
Africom-Zaire and Africontainers, was equivalent to US$25,000 at the time prior to his arrest,
amounting to US$10,000 for the first company and US$15,000 for the second.
35. Taking account of inflation, the Republic of Guinea estimates at US$80,000, at today’s
rates, the direct injury suffered by Mr.Diallo as a result of not receiving his professional income
during the 72 days of his detention.
36. The Republic of Guinea considers that it is also entitled to claim full compensation for its
national’s loss of earnings following his expulsi on, even if, as the Court notes, “[w]hile the
performance of Mr.Diallo’s duties as gérant may have been rendered more difficult by his
presence outs22e the country, Guinea has failed to de monstrate that it was impossible to carry out
those duties” .
37. Although outside the territory of the DRC, Mr. Diallo could, admittedly, have performed
the role of gérant through an intermediary. If he had delegate d his functions to a third party, or if
he had simply given a third party the power to act on his instructions in the DRC, that would,
subject to certain reservations, have allowed his companies to continue their activities and even
given them the economic vitality and sound mana gement which had been the key to their
dynamism at a given time.
38. However, the fact that Mr. Diallo did not entrust the gérance of his companies to a third
party does not exempt the DRC from its responsibility for any of the heads of damage, including
14 loss of earnings; the more so because such delegation of powers would have meant that Mr. Diallo
was exercising a prerogative, not fulfilling an obligation, particularly since it would not be
sufficient to guarantee that he would receive his us ual income despite being outside the territory of
the DRC. As the Court noted in para graph131 of its Judgment, Article 17 of
Africontainers-Zaire’s Articles of Incorporation states:
“The gérance may delegate to one of the associés or to third parties or confer on
one of its managers any powers necessary for the performance of daily managerial
duties. It shall determine the powers to be conferred and, where necessary, the
remuneration of such agents; delegated powers may be revoked at any time.”
39. Furthermore, it should be noted that, despite his expulsion, Mr.Diallo remained the
gérant in law; however, he ceased to be the de facto gérant, a role which he would now be forced
to entrust to a third party in order to ensure that the companies continued their activities. While it
is true, as the Court noted, that it was not impossible for him to act as gérant because he was
outside the territory of the DRC, the fact remains that the cond itions in which he was expelled
prevented him from entrusting the gérance to a third party with all due precautions, and this was
not without consequences for his chances of being able to continue to receive the same professional
income as in the past.
40. When he was released on 10January1996 on the order of PresidentMobutu himself,
after more than two months in detention, Mr. Diallo was not yet aware that he was the subject of an
expulsion measure and that, in spite of everything, he would immediately be sent back to prison
22
Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo) , Judgment of
30 November 2010, paras. 135 ff. - 10 -
and then taken to the airport a few days later a nd expelled, without having had the opportunity to
entrust the gérance of his companies to anyone at all. At the time of his expulsion, therefore, it was
absolutely impossible for Mr. Diallo to entrust that gérance to a third party.
41. Furthermore, Mr. Diallo was expelled with out being able to take with him any personal
effects or any documents that might show the precise circumstances of his companies, without
being able to entrust them to a third party before his departure, and without any hope of one day
returning to the DRC. He could not, therefore, explain the true position of those companies to any
new gérant. In other words, he was not able, from Guinea, to entrust the gérance of those
companies to a third party in accordance with proper procedures.
15 42. [Opening text missing] only to those still in the DRC, even if it would be better to choose
a person resident elsewhere, given that he cannot afford the travel and installation costs of the
person concerned.
43. The DRC’s conduct towards Mr.Diallo is al so discriminatory. Contrary to customary
practice in this respect and, in particular, the cases of the 86foreign nationals (mainly Lebanese)
who were the subject of Expulsion Decree No. 4 of 22February1995 and the 84other foreign
nationals (again m23nly Leba nese) who were the subject of the Expulsion De24ee of
27 February 1995 , which the DRC sought to equate with the present case , Mr.Diallo was not
notified of the expulsion decree against him and did not leave Congolese territory of his own
accord; consequently, unlike the 170 foreign nationals concerned by the above-mentioned decrees,
he was unable to reorganize the management of his affairs before he left; that would have allowed
him to avoid his current state of destitution, to be able to choose a new gérant even outside the
DRC, if that was found to be the best choice, and above all to give himself some chance of
continuing to receive a monthly income. Furtherm ore, unlike Mr.Diallo, the Lebanese nationals,
after their arrest, had not been detained beyond the statutory time-limit and, as is clear from the
preamble to the expulsion decrees, had been expelled following consultation of the National
Immigration Board.
44. Moreover, because of his expulsion, Mr. Diallo is himself prevented from doing his usual
work, that is to say, from carrying out the functions of gérant in person, which guaranteed him the
substantial monthly income he received prior to his arrests and expulsion; gérance by proxy, had it
come about, would not have provided that guarantee , in view of the conditions in which he was
expelled.
45. There is nothing to prove, a priori, that despite the conditions in which he was expelled,
Mr. Diallo would have continued to receive the sa me monthly income as in the past, provided that
he entrusted the gérance of his companies to a third party, even if that third party, who, for the
reasons explained above, would have to be chosen from among the persons left behind in the DRC,
was not the best choice.
16 46. In other words, while it is true that the conditions in which Mr. Diallo was expelled, as
described earlier, did not prevent him from entrusting the gérance of his companies to a third party,
the fact remains that those conditions were liable seriously to affect the smooth running of those
23See Ann. 76, PODRC.
24
See Counter-Memorial of the Democratic Republic of the Congo (CMDRC) of 27 March 2008, pp. 10 and 11,
para. 1.08. - 11 -
companies’ affairs and therefore to compromise his chances of being able to continue to receive his
usual professional income, which, needless to repeat, placed him, prior to his arrests and expulsion,
among the wealthiest people in the DRC.
47. To sum up, Mr. Diallo’s expulsion had the following injurious consequences:
(i) it was made impossible or, at least, considerably more difficult for him to perform his
functions as managing director and gérant, given that he could no longer go back;
(ii) in being expelled before he could entrust his functions as gérant to a third party, in
accordance with proper procedures, he was de prived of his usual professional income,
even if he retained the right to appoint a third party to replace him in performing his
functions;
(iii) the expulsion of the sole associé and gérant, reducing him to penury, has driven his
companies to the brink of bankruptcy.
48. Taking account of the period that has elapsed since his expulsion, the Republic of Guinea
assesses the damage suffered by Mr. Diallo as a result of the loss of his professional income over
that period at US$4,755,500, which must be adju sted for inflation and cannot now be less than
US$6,430,148.
25
49. Lastly, as Guinea noted in its earlier submissions , Mr.Diallo was expelled from the
DRC very abruptly, with no possibility of taking with him his personal belongings, let alone his
records, some of which were subsequently recove red by a few friends, but in a haphazard and
17 unsystematic fashion. As a result it has been ex tremely difficult to gather evidence. Guinea has
endeavoured to present, in a reasonably orderly manner, all the evidence it has in its possession, but
it respectfully asks the Court to u se its investigating powers under Ar ticle44, paragraph2, of its
Statute and Article 66 of its Rules to gather what ever additional evidence it might consider useful,
if any, at this stage of the proceedings.
C. Other material damage
50. Given the particularly abrupt manner of Mr . Diallo’s expulsion and the fact that he was
held in detention for most of the three months pr ior to the implementation of that measure, he was
unable to make satisfactory arrangements for the transfer or disposal of his assets.
51. The resulting de facto expropriation of his personal effects, borne out by the fact that
none of his personal possessions in the territory of the DRC have been returned to him, constitutes
a first head of damage in respect of other material injury.
52. Mr.Diallo, who had live d continuously on Congolese territory for almost 32years and
belonged to the wealthiest social class in the country, owned, at the time of his expulsion,
considerable tangible and intangible assets which are now irretrievably lost.
25
MG of 23 March 2001, p. 5, para. 1.9. - 12 -
53. Furthermore, the inventories of the propert y owned by Mr. Diallo and his companies, far
from being exhaustive, reflect what was found at th e time they were drawn up in this case, rather
than the actual state of affairs on the date of his expulsion, many days earlier. It should be noted
that Mr. Diallo was expelled without being able to entrust his property or that of his companies to
anyone before he left, and there is no evidence or even suggestion that the Congolese State took
appropriate steps to ensure the security of that property.
54. In any event, it will come as no surprise that objects were fraudulently removed between
the date of his expulsion and the dates of the inve ntories, which in fact are far from reflecting the
true situation. The inventory of Africontainers’ movable property, for instance, which was drawn
18 up on 9February 1996, nine days after Mr.Diallo was expelled, lists for the drawing room in the
main building “one radio or TV stand with two speakers” , suggesting that there was no device on
the stand, whereas there had been a large Grundig satellite radio.
27
55. Likewise, the inventory of movable property in Mr.Diallo’s residence , drawn up on
12 February 1996, 12 days after he was expelled, lists for the bedroom, for example, a ridiculously
small number of very minor items, including a sweater, a shirt, a new suit and a jacket, thus
manifestly concealing many other similar items, as well as expensive curtains, shoes and suits, to
give just a few examples. Yet the French weekly Jeune Afrique, in its issue of 16February 1984
referred to earlier, talked about the extraordinary personality of Mr. Diallo in the following terms:
“His apartment, in an elegant tower on the Boulevard du 30 Juin, is like his suits: clean and plain.
It is tastefully furnished . . .” Mr. Diallo himself had fitted out that apartment, and his offices too,
with Roche Bobois furniture from an order placed with the company Techno France , and his suits
came from the great French couturiers Ted de Lapidus and Yves Saint-Laurent.
56. The inventory of 12February1996 also lists, again in Mr.Diallo’s bedroom, a locked
trunk and a mini-safe, without specifying their cont ents. It fails to mention, for example:
jewellery; a Cartier watch with 16 small di amonds, purchased in 1979 from the Place Vendôme in
Paris; a top-of-the-range Leica camera purchased at the Hayat Hotel in Canada; a LouisVuitton
wallet; three Chinese carpets purchased at a trade fair in Kinshasa; a bookcase; the complete
memoirs of GeneraldeGaulle; a bronze Yolo statue; 50gold ballpoint pens as gifts for visitors;
19 and two Salvador Dali paintings, one depicting his wife, the other Voltaire.
57. All these tangible and intangible assets belonging to Mr.Diallo are now irretrievably
lost. The value of those lost assets can be put at a total lump sum of US$550,000 (including his
bank assets).
58. Moreover, although Certificate of Lack of Means No. 1 of 12 July 1995 30 was issued in
favour of Mr. Diallo, it was in fact intended to allow him to defer payment of over US$1,500,000
in costs for registering Judgment RC63.824 of 3July1995, and not to exempt him from that
payment at the expense of the national exchequer. The certificate contains the words “temporarily
destitute”, and Mr. Diallo had also given the tax authorities an undertaking to pay the costs in full
once the judgment was enforced.
2See CMDRC of 27 March 2008, p. 5, and Ann. 12, heading “Building No. 2 (large building)”.
2MG of 23 March 2001, Ann. 200.
28
See MG of 23 March 2001, pp. 4-5, para. 2.6, and Ann. 18.
29
The invoices for this furniture were left behind in the DRC.
3Observations of the Republic of Guinea (OG), Ann. 22. - 13 -
59. It is clear that, first, in that judgment the Kinshasa Tribunal de grande instance had
ordered Shell to pay Africontainers the sum of US$13,156,704 in respect of the principal amount
plus interest of US$50,000, and, second, that the cost of registering that judgment would amount to
over US$1,500,000.
60. Furthermore, an indigent person obviously does not live in a five-star hotel while still,
moreover, not owing anyone a penny, as was the ca se with Mr.Diallo. Nor does such a person
employ more than 120 workers for almost 20 years only to be hauled one day before the police or
the courts, as Mr. Diallo was.
61. On the same point, it should lastly be emphasized that the issuing of the certificate of
temporary lack of means enabled Mr. Diallo to avoid having to pay such huge registration costs for
a judgment which would subsequently not be enforced precisely because of his abrupt and arbitrary
expulsion.
20 D. Loss of earning potential
62. In order to assess the material damage resulting from an internationally wrongful act,
account must also be taken of “the potential loss of earnings” where that is a direct consequence.
Non-receipt of salary comes under this head of damage 31and its distinctive characteristic resides in
the fact that it appreciates relative to the time elapsed since the injurious act was committed.
63. In this particular case, having been pr evented from administering his companies by his
unlawful arrest, which was designed precisely to achieve that purpose, Mr.Diallo was also
obstructed in the pursuit of his activities at the head of the two companies and, in particular, in the
assignment of his shares to third parties before being expelled. As a result of his expulsion and the
conditions in which it was carried out, the fortun es of both companies, and in par32cular of
Africontainers, immediately went into sharp decline and their assets were dispersed .
64. The financial consequences of the resulting “potential loss of earnings” can be valued at
a fraction of the exchange value of the shares making up the entire share capital of the two
companies. In case of sale, th e value of the two companies, which had no liabilities, would have
taken account of:
⎯ the value of the movable and immovable property which they owned, as catalogued in the case
33
of Africontainers , in a non-exhaustive inventory; and
⎯ the debts owed to them by their various c lients, including the Congolese State itself in the
34
“listing paper” case .
65. In view of Mr. Diallo’s central and essentia l role in the activities of the two companies,
the potential earnings he lost can be put at 50 per cent of the exchange value of the shares he held
on the date of his first arrest, namely, a total value of US$4,360,000.
31See paras. 26-39 above.
32OG, Anns. 31, 32 and 33.
33
MG, Ann. 199.
34MG, Anns. 46-50. - 14 -
21 66. This valuation takes account of the debt of US$1,000,000 owed to Africom-Zaire by the
Congolese State in connection with the “listing pape r” case, and of the value of the two plots of
land in the very centre of Kinshasa, mentioned earlier, of which it is the legitimate owner.
Warehouses for both of MrD . iallo’s companies are sited on one of those plots of
8,000 square metres; the other, of 2,400square metres, is the site of Africontainers’ offices and
accommodation.
67. Africom-Zaire had invested US$5,000,000 in the purchase and development of the first
of those plots, and US$2,000,000 in the second. The sale of the plots had been notarized, but in
view of the circumstances of the expulsion the re lated documents were le ft behind in the DRC,
together with the invoices relating to their development.
68. The valuation also takes account, in th e case of Africontainers, of the cost of
600 containers, assessed at a knockdown price of US$1,200 per unit, giving a total of US$720,000.
C ONCLUSIONS
69. In compensation for the damage suffered by Mr. Ahmadou Sadio Diallo as a result of his
arbitrary detentions and expulsion, the Republic of Guinea begs the Court to order the Democratic
Republic of the Congo to pay it (on behalf of its national) the following sums:
⎯ US$250,000 for mental and moral damage, including injury to his reputation;
⎯ US$6,430,148 for loss of earnings during his detention and following his expulsion;
⎯ US$550,000 for other material damage; and
⎯ US$4,360,000 for loss of potential earnings;
amounting to a total of eleven million five hundred and ninety thousand one hundred and
forty-eight American dollars (US$11,590,148), not including statutory default interest.
22 Furthermore, as a result of having been fo rced to institute the present proceedings, the
Guinean State has incurred unrecoverable costs which it should not, in equity, be required to bear
and which are assessed at US$500,000. The Republic of Guinea also begs the Court to order the
DRC to pay it that sum.
The Democratic Republic of the Congo should also be ordered to pay all the costs.
Then justice will be done!
Dec6e20ber,
(Signed) Hassane II D IALLO ,
Co-Agent of the Republic of Guinea.
___________
Memorial of the Republic of Guinea - Compensation due to Guinea