INTERNATIONAL COURT OF JUSTICE
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Summary
Not an official document
Summary 2016/6
7 December 2016
Immunities and Criminal Proceedings
(Equatorial Guinea v. France)
Application and Request for the indication of provisional measures (paras. 1-19)
The Court begins by recalling that, by an Application filed in the Registry on 13 June 2016,
Equatorial Guinea instituted proceedings against France with regard to a dispute concerning
“the immunity from criminal jurisdiction of the Second Vice-President of the
Republic of Equatorial Guinea in charge of Defence and State Security
[Mr. Teodoro Nguema Obiang Mangue], and the legal status of the building which
houses the Embassy of Equatorial Guinea, both as premises of the diplomatic mission
and as State property”.
On 29 September 2016, Equatorial Guinea submitted a Request for the indication of
provisional measures, asking, inter alia, that France suspend all the criminal proceedings brought
against the Vice-President of Equatorial Guinea; that it ensure that the building located at
42 avenue Foch in Paris is treated as premises of Equatorial Guinea’s diplomatic mission in France
and, in particular, assure its inviolability; and that it refrain from taking any other measure that
might aggravate or extend the dispute submitted to the Court.
Further to a request by Equatorial Guinea, the Vice-President of the Court, acting as
President in the case, drew the attention of France, in accordance with Article 74, paragraph 4, of
the Rules of Court, “to the need to act in such a way as will enable any order the Court may make
on the request for provisional measures to have its appropriate effects”.
Factual background (paras. 20-30)
The Court then presents the background to the case. It explains that, beginning in 2007,
some associations and private individuals lodged complaints with the Paris Public Prosecutor
against certain African Heads of State and members of their families, in respect of acts of
“misappropriation of public funds in their country of origin, the proceeds of which have allegedly
been invested in France”. The Court notes that one of these complaints, filed on 2 December 2008,
by the association Transparency International France, was declared admissible by the French
courts, and a judicial investigation was opened in respect of the handling of misappropriated public
funds, complicity in the misappropriation of public funds, misuse of corporate assets and
complicity in misuse of corporate assets, and concealment of each of these offences. It adds that
the investigation focused in particular on the methods used to finance the acquisition of movable - 2 -
and immovable assets in France by several individuals, including the son of the President of
Equatorial Guinea, Mr. Teodoro Nguema Obiang Mangue, who was at the time Minister for
Agriculture and Forestry of Equatorial Guinea.
The Court states that the investigations more specifically concerned the way in which
Mr. Teodoro Nguema Obiang Mangue acquired various objects of considerable value and a
building located at 42 avenue Foch in Paris. It notes that, although he challenged the measures
taken against him and invoked on a number of occasions the immunity from jurisdiction that he
considered himself to enjoy in light of his functions, Mr. Teodoro Nguema Obiang Mangue was
indicted. In addition, the building on avenue Foch was attached (saisie pénale immobilière), and
various objects therein were seized.
Finally, the Court indicates that, at the end of the investigation, Mr. Teodoro Nguema
Obiang Mangue was referred to the Paris Tribunal correctionnel to be tried for alleged offences
committed between 1997 and October 2011. The trial is to be held from 2 to 12 January 2017.
I. Prima facie jurisdiction (paras. 31-70)
The Court first observes that, when a request for the indication of provisional measures is
submitted to it, it need not satisfy itself in a definitive manner that it has jurisdiction as regards the
merits of the case before deciding whether to indicate the measures requested; it need only satisfy
itself that the provisions relied on by the Applicant appear, prima facie, to afford a basis on which
its jurisdiction could be founded.
The Court states that Equatorial Guinea seeks to found the Court’s jurisdiction, first, on
Article 35 of the Convention against Transnational Organized Crime, in respect of its claim relating
to the immunity of Mr. Teodoro Nguema Obiang Mangue, and, second, on the Optional Protocol to
the Vienna Convention on Diplomatic Relations, in respect of its claim regarding the alleged
inviolability of the premises at 42 avenue Foch. It notes that both Article 35, paragraph 2, of the
Convention against Transnational Organized Crime and Article I of the Optional Protocol make the
Court’s jurisdiction conditional on the existence of a dispute arising out of the interpretation or
application of the Convention to which they relate. It will therefore ascertain whether, prima facie,
such a dispute existed on the date the Application was filed, since, as a general rule, it is on that
date, according to the jurisprudence of the Court, that its jurisdiction must be determined.
(1)The Convention against Transnational Organized Crime (paras. 41-50)
The Court observes that Equatorial Guinea asserts that a dispute exists between the Parties
concerning the application of Article 4 of the Convention against Transnational Organized Crime.
That provision, entitled “Protection of sovereignty”, reads as follows:
“1. States Parties shall carry out their obligations under this Convention in a
manner consistent with the principles of sovereign equality and territorial integrity of
States and that of non-intervention in the domestic affairs of other States.
2. Nothing in this Convention entitles a State Party to undertake in the territory
of another State the exercise of jurisdiction and performance of functions that are
reserved exclusively for the authorities of that other State by its domestic law.”
The Court notes that according to Equatorial Guinea, Article 4 of the Convention is not
merely a “general guideline”, in light of which the other provisions of the Convention should be
interpreted. The principles of sovereign equality and non-intervention to which that Article refers
encompass important rules of customary or general international law, in particular those relating to - 3 -
the immunities of States and the immunity of certain holders of high-ranking office in the State. In
the Applicant’s view, the rules in question are binding on States when they apply the Convention,
since they are embodied in the above-mentioned principles. Equatorial Guinea thus claims that,
when initiating proceedings against the Vice-President of Equatorial Guinea, France was obliged,
in applying the Convention, to respect the rules relating to the immunity ratione personae of the
Vice-President of Equatorial Guinea, deriving from Article 4 of that instrument.
For its part, France denies the existence of a dispute concerning the application of the
Convention, and, consequently, that the Court has jurisdiction. In its view, the reference in
Article 4 to the principles of sovereign equality and territorial integrity of States, and to that of
non-intervention in the domestic affairs of other States, merely indicates the manner in which the
other provisions of the Convention must be applied. It adds that the provisions of the Convention
which Equatorial Guinea claims were not implemented in accordance with the principles set out in
Article 4 of that instrument, for the most part, do nothing more than oblige States to legislate or
regulate.
The Court observes that it is clear from the case file that the Parties have expressed differing
views on Article 4 of the Convention against Transnational Organized Crime. Nonetheless, in
order to determine, even prima facie, whether a dispute within the meaning of Article 35,
paragraph 2, of the Convention exists, the Court cannot limit itself to noting that one of the Parties
maintains that the Convention applies, while the other denies it. It must ascertain whether the acts
complained of by Equatorial Guinea are prima facie capable of falling within the provisions of that
instrument and whether, as a consequence, the dispute is one which the Court has jurisdiction
ratione materiae to entertain pursuant to Article 35, paragraph 2, of the Convention.
The Court notes that the obligations under the Convention consist mainly in requiring the
States parties to introduce in their domestic legislation provisions criminalizing certain
transnational offences and to take measures aimed at combatting these crimes. The Court indicates
that the purpose of Article 4 of the Convention is to ensure that the States parties to the Convention
perform their obligations in accordance with the principles of sovereign equality, territorial
integrity of States and non-intervention in the domestic affairs of other States. In its view, the
provision does not appear to create new rules concerning the immunities of holders of high-ranking
office in the State or incorporate rules of customary international law concerning those immunities.
Accordingly, any dispute which might arise with regard to “the interpretation or application” of
Article 4 of the Convention could relate only to the manner in which the States parties perform
their obligations under that Convention. It appears to the Court, however, that the alleged dispute
does not relate to the manner in which France performed its obligations under the articles of the
Convention invoked by Equatorial Guinea; rather, it appears to concern a distinct issue, namely
whether the Vice-President of Equatorial Guinea enjoys immunity ratione personae under
customary international law and, if so, whether France has violated that immunity by instituting
proceedings against him.
Consequently, the Court considers that, prima facie, a dispute capable of falling within the
provisions of the Convention against Transnational Organized Crime and therefore concerning the
interpretation or the application of Article 4 of that Convention does not exist between the Parties.
Thus, it does not have prima facie jurisdiction under Article 35, paragraph 2, of that instrument to
entertain Equatorial Guinea’s request relating to the immunity of Mr. Teodoro Nguema
Obiang Mangue.
(2)The Optional Protocol to the Vienna Convention on Diplomatic Relations (paras. 51-70)
The Court recalls that Article I of the Optional Protocol to the Vienna Convention on
Diplomatic Relations, invoked by Equatorial Guinea in relation to its claim regarding the alleged
inviolability of the premises at 42 avenue Foch, confers jurisdiction on the Court over disputes - 4 -
relating to the interpretation or application of the Vienna Convention on Diplomatic Relations. It
further recalls that Equatorial Guinea claims that a dispute exists between the Parties regarding the
application of Article 22 of the Vienna Convention, paragraph 3 of which provides that the
“premises of the mission, their furnishings and other property thereon and the means of transport of
the mission shall be immune from search, requisition, attachment or execution”. The Court will
accordingly ascertain whether, on the date the Application was filed, a dispute arising out of the
interpretation or application of the Vienna Convention appeared to exist between the Parties.
In this regard, the Court notes that the Parties do indeed appear to have differed, and still
differ today, on the question of the legal status of the building located at 42 avenue Foch in Paris.
While Equatorial Guinea has maintained at various times that the building houses the premises of
its diplomatic mission and must therefore enjoy the immunities afforded under Article 22 of the
Vienna Convention, France has consistently refused to recognize that this is the case, and claims
that the property has never legally acquired the status of “premises of the mission”. In the view of
the Court, there is therefore every indication that, on the date the Application was filed, a dispute
existed between the Parties as to the legal status of the building concerned.
In order to determine whether it has jurisdiction — even prima facie — the Court must also
ascertain whether such a dispute is one over which it might have jurisdiction ratione materiae on
the basis of Article I of the Optional Protocol. In this regard, the Court notes that the rights
apparently at issue may fall within the scope of Article 22 of the Vienna Convention, which
guarantees the inviolability of diplomatic premises, and that the acts alleged by the Applicant in
respect of the building on avenue Foch appear to be capable of contravening such rights. Indeed,
the premises which, according to Equatorial Guinea, house its diplomatic mission in France were
searched on several occasions and were attached (saisie pénale immobilière); they could also be
subject to other measures of a similar nature.
The Court considers that the aforementioned elements sufficiently establish, at this stage, the
existence between the Parties of a dispute capable of falling within the provisions of the Vienna
Convention and concerning the interpretation or application of Article 22 thereof. Consequently,
the Court considers that it has prima facie jurisdiction under Article I of the Optional Protocol to
the Vienna Convention to entertain this dispute. It is of the view that it may, on this basis, examine
Equatorial Guinea’s request for the indication of provisional measures, in so far as it concerns the
inviolability of the building located at 42 avenue Foch in Paris. It adds that, since there is no
manifest lack of jurisdiction, it cannot grant France’s request to remove the case from the List.
II. The rights whose protection is sought and the measures requested (paras. 71-81)
The Court recalls that its power to indicate provisional measures under Article 41 of the
Statute has as its object the preservation of the respective rights claimed by the parties in a case,
pending its decision on the merits thereof. It follows that the Court must be concerned to preserve
by such measures the rights which may subsequently be adjudged by it to belong to either party.
Therefore, the Court may exercise this power only if it is satisfied that the rights asserted by the
party requesting such measures are at least plausible. Moreover, a link must exist between the
rights which form the subject of the proceedings before the Court on the merits of the case and the
provisional measures being sought.
The Court thus first considers whether the rights claimed by Equatorial Guinea on the merits,
and for which it is seeking protection, are plausible. Having found that it does not have prima facie
jurisdiction to entertain the alleged violations of the Convention against Transnational Organized
Crime, the Court addresses only Equatorial Guinea’s alleged right to “the inviolability of the
premises of its diplomatic mission”, in respect of which Article 22 of the Vienna Convention is
invoked. - 5 -
The Court notes in this regard that Equatorial Guinea maintains that it acquired the building
located at 42 avenue Foch on 15 September 2011 and has used it for its diplomatic mission in
France as from 4 October 2011, which the Applicant claims to have indicated to the Respondent on
several occasions. The Court further notes that Equatorial Guinea contends that, since that date, the
building in question has been searched a number of times and has been attached (saisie pénale
immobilière) — acts which, in the view of the Applicant, infringe the inviolability of those
premises.
The Court is of the opinion that, given that the right to the inviolability of diplomatic
premises is a right contained in Article 22 of the Vienna Convention, that Equatorial Guinea claims
that it has used the building in question as premises of its diplomatic mission in France since
4 October 2011, and that France acknowledges that, from the summer of 2012, certain services of
the Embassy of Equatorial Guinea appear to have been transferred to 42 avenue Foch, it appears
that Equatorial Guinea has a plausible right to ensure that the premises which it claims are used for
the purposes of its mission are accorded the protections required by Article 22 of the Vienna
Convention.
The Court then turns to the issue of the link between the rights claimed and the provisional
measures requested. In this regard, it considers that, by their very nature, these measures are aimed
at protecting the right to the inviolability of the building which Equatorial Guinea presents as
housing the premises of its diplomatic mission in France. It concludes that a link exists between
the right claimed by Equatorial Guinea and the provisional measures being sought.
III. Risk of irreparable prejudice and urgency (paras. 82-91)
The Court recalls that it has the power to indicate provisional measures when irreparable
prejudice could be caused to rights in dispute, but that that power will be exercised only if there is
urgency, in the sense that there is a real and imminent risk that irreparable prejudice will be caused
to the rights concerned.
Observing once again that the record before the Court shows that France does not accept that
the building forms part of the premises of Equatorial Guinea’s diplomatic mission in France, and
that it refuses to grant it the immunity — and thus the corresponding protection — afforded to such
premises under the Vienna Convention, the Court considers that there is a continuous risk of
intrusion. It notes that while the Parties disagree as to whether any searches have been conducted
recently, they recognize that such acts did indeed occur in 2011 and 2012. And, given that it is
possible that, during the hearing on the merits, the Tribunal correctionnel may, of its own initiative
or at the request of a party, request further investigation or an expert opinion, it is not inconceivable
that the building on avenue Foch will be searched again. If that were to happen, and if it were
established that the building houses the premises of Equatorial Guinea’s diplomatic mission, the
daily activities of that mission — the representation of a sovereign State — would risk being
seriously impeded, as a result, for example, of the presence of police officers or the seizure of
documents, some of which might be highly confidential.
The Court considers that it follows from the foregoing that there is a real risk of irreparable
prejudice to the right to inviolability of the premises that Equatorial Guinea presents as being used
as the premises of its diplomatic mission in France. Indeed, any infringement of the inviolability of
the premises may not be capable of remedy, since it might not be possible to restore the situation to
the status quo ante. Furthermore, that risk is imminent, in so far as the acts likely to cause such a
prejudice to the rights claimed by Equatorial Guinea could occur at any moment. The criterion of
urgency is therefore also satisfied in the present case. - 6 -
The Court recalls that Equatorial Guinea also asks it to indicate provisional measures in
respect of items previously located on the premises of 42 avenue Foch, some of which have been
removed by French authorities. As to these items, the Court observes that Equatorial Guinea failed
to demonstrate the risk of irreparable prejudice and the urgency that the Court has identified in
respect of the premises at 42 avenue Foch. Accordingly, it finds no basis to indicate provisional
measures in respect of these items.
IV. Conclusion and measures to be adopted (paras. 92-98)
The Court concludes from all the above considerations that the conditions required by its
Statute for it to indicate provisional measures in respect of the building located at 42 avenue Foch
in Paris have been met. It is of the view that, pending a final decision in the case, the premises
presented as housing the diplomatic mission of Equatorial Guinea at 42 avenue Foch in Paris
should enjoy treatment equivalent to that required by Article 22 of the Vienna Convention, in order
to ensure their inviolability. With regard to the attachment (saisie pénale immobilière) of the
building at 42 avenue Foch and the risk of confiscation, the Court notes that there is a risk that such
confiscation may occur before the date on which the Court reaches its final decision. It therefore
considers that, in order to preserve the respective rights of either Party, the execution of any
measure of confiscation is to be stayed until the Court takes that decision. Finally, although
Equatorial Guinea has requested it to indicate measures aimed at ensuring the non-aggravation of
the dispute, the Court states that, in this case, given the measures it has decided to take, the Court
does not deem it necessary to indicate additional measures of that nature.
Operative clause (para. 99)
The full text of the final paragraph of the Order reads as follows:
“For these reasons,
T HE COURT ,
I. Unanimously,
Indicates the following provisional measures:
France shall, pending a final decision in the case, take all measures at its
disposal to ensure that the premises presented as housing the diplomatic mission of
Equatorial Guinea at 42 avenue Foch in Paris enjoy treatment equivalent to that
required by Article 22 of the Vienna Convention on Diplomatic Relations, in order to
ensure their inviolability;
II. Unanimously,
Rejects the request of France to remove the case from the General List.”
Judge X UE appends a separate opinion to the Order of the Court; Judges GAJA and
G EVORGIAN append declarations to the Order of the Court; Judge ad hoc K ATEKA appends a
separate opinion to the Order of the Court.
___________ Annex to Summary 2016/6
Separate opinion of Judge Xue
Judge Xue wishes at this preliminary stage to place on record her reservation to the Court’s
interpretation, albeit not yet definitive, of Article 4 of the United Nations Convention against
Transnational Organized Crime (hereinafter “the Convention”).
She recalls that the Court states in paragraph 49 of the Order that Article 4 does not create
any new rules on immunities of holders of high-ranking office of a State. Accordingly, any dispute
concerning the interpretation or application of Article 4 could relate only to the manner in which a
State party performs its obligations under the Convention. The Court is of the view that the alleged
dispute between the Parties appears to concern a distinct issue which is not capable of falling
within the provisions of the Convention. Thus it does not have jurisdiction prima facie under
Article 35, paragraph 2, of the Convention.
Judge Xue considers that this interpretation begs a number of questions. First, the intention
of the States parties, as reflected in the travaux préparatoires of Article 4, not to create new rules of
immunities of customary international law in the Convention cannot be interpreted to mean that the
existing rules on the same subject-matter are precluded in the application of the Convention. On
the contrary, as a guideline, Article 4 provides a legal framework within which the other provisions
are to be implemented. What is governed under the principle of sovereign equality of States under
general international law should remain intact and applicable, when circumstances of a case so
require. Rules of jurisdictional immunity of State and its property and jurisdictional immunity of
high-ranking officials in foreign courts are, among others, two relevant régimes that directly derive
from that principle.
Secondly, the question of jurisdictional immunity ratione personae bears on “the manner” in
which a State party performs its obligations under the Convention. It is no less relevant to the
principle of sovereign equality than an operation being conducted in a foreign territory. In the
present case, Mr. Teodoro Nguema Obiang Mangue is a foreign national holding high-ranking
office in his country. Although all the acts alleged by Equatorial Guinea were carried out in the
French territory and under the French internal law, the essence of the dispute between the Parties is
the applicability of the Convention.
Thirdly, whether an incumbent President or a Vice-President of a State enjoys jurisdictional
immunity in foreign courts under customary international law is not a “distinct issue” that does not
fall within the provisions of the Convention. In implementing its obligations under Article 6
(criminalization of laundering of the proceeds of crime), Article 12 (measures to enable
confiscation and seizure), Article 14 (disposal of confiscated proceeds of crime or property), and
Article 18 (mutual legal assistance), a State party may have to act differently if rules of
jurisdictional immunities apply. The dispute in the present case appears to concern that very
question.
Given the above considerations, she maintains the view that the Court has, prima facie,
jurisdiction under Article 35, paragraph 2, of the Convention.
Declaration of Judge Gaja
In its orders on provisional measures the Court, when it indicates some measures, does not
state in the operative part (dispositif) that it rejects some other requests. In the present case, no
reference is made in the dispositif to the request concerning the immunity of
Mr. Teodoro Nguema Obiang Mangue, even if a large part of the Order discusses that issue. In the
interest of greater transparency, the dispositif of orders on provisional measures should include the
decision on all the main issues and the names of the judges who voted in favour and against. - 2 -
Declaration of Judge Gevorgian
Judge Gevorgian concurs with the conclusions and reasoning of the Order. At the same
time, with regard to paragraph 49 of the Order, he finds it necessary to clarify that the rules on the
immunity of State officials from foreign criminal jurisdiction derive from the principle of sovereign
equality mentioned in Article 4 of the Palermo Convention. In his view, this is supported by the
recent work of the International Law Commission and the Court’s case law.
Separate opinion of Judge ad hoc Kateka
1. While Judge Kateka is in favour of the provisional measure granted by the Court, his
opinion differs from the Court’s Order in two main aspects. First, while he acknowledges the
Court’s jurisprudence on the prima facie jurisdiction of the Court, he considers that the threshold
for prima facie jurisdiction is low. As such, Judge Kateka is unable to agree with the Court’s
interpretation of Article 4 of the United Nations Convention against Transnational Organized
Crime (the Palermo Convention) and its conclusion that it has no prima facie jurisdiction under
Article 35 (2) of the said Convention. Specifically, he takes issue with the finding of the Court that
a dispute capable of falling within the provisions of the Palermo Convention, and therefore
concerning the interpretation or application of Article 4 of that Convention, does not exist between
the Parties.
2. Judge Kateka disagrees with the Court that Article 4 relates only to the manner in which
States parties perform their obligations under the Palermo Convention and that it does not
incorporate any rules of customary international law concerning the immunities of holder of
high-ranking office in the State, considering that the Court did not examine Article 4 in its proper
context. Judge Kateka compared the legislative history of Article 4 of the Palermo Convention, in
conjunction with that of Article 2 (2) of the United Nations Convention against Illicit Traffic in
Narcotic Drugs and Psychotropic Substances 1988, which is similarly drafted in order to
demonstrate that Article 4 of the Palermo Convention is self-standing and can create obligations for
States parties.
3. After considering the arguments of both Equatorial Guinea and France on Article 4 of the
Palermo Convention, Judge Kateka points out that the Vice-President of Equatorial Guinea is
prosecuted in France for a series of crimes, including money laundering, criminalization of which
is required by Article 6 of the Palermo Convention. This crime falls within the scope of the
Palermo Convention, under Article 3 (1), because it is not only a “serious crime” that is
“transnational in nature”, but also it is an offence listed under Article 6 of the Convention. In his
view, the requirement of an “organized criminal group” is met because some of the charges brought
against the Vice-President of Equatorial Guinea include “complicity”, which by definition requires
the involvement of others.
4. Concluding on his first point of divergence with the Court’s Order, Judge Kateka argues
that the procedural conditions set out in Article 35 (2) of the Palermo Convention are met due to
the refusal of France to negotiate with Equatorial Guinea for the settlement of the dispute. In sum,
a dispute exists between the Parties, which concerns the interpretation and application of Article 4
of the Palermo Convention, therefore meeting the prima facie jurisdiction threshold and as such the
Court should have entertained the request by Equatorial Guinea relating to the immunity
ratione personae of the Vice-President. Moreover, Judge Kateka is of the view that the right of
Equatorial Guinea to the immunity of its Vice-President, who is number two in the Government,
plausibly exists under the Palermo Convention. The criterion of urgency is met given that real and
imminent risk will be caused to the right of Equatorial Guinea in light of the fact that a criminal
trial will be conducted before the Paris Tribunal correctionnel in January 2017 against the
Vice-President, whose functions would be compromised. - 3 -
5. Secondly, Judge Kateka finds the provisional measure indicated by the Court inadequate.
He criticizes the wording adopted by the Court, namely that France shall take all measures at its
disposal to ensure that the premises presented as housing the diplomatic mission of
Equatorial Guinea at 42 avenue Foch in Paris enjoy treatment “equivalent to that required by
Article 22 of the Vienna Convention on Diplomatic Relations”. He disagrees with the use of the
term “equivalent”, pointing out that the requirements of Article 22 are clear: the premises of the
mission shall be inviolable. The Court should therefore have issued an unequivocal measure as
requested by Equatorial Guinea, namely that “France ensure that the building located at
42 avenue Foch in Paris is treated as premises of Equatorial Guinea’s diplomatic mission in France
and, in particular, assure its inviolability . . .”.
___________
Summary of the Order of 7 December 2016