DJF
CR 2008/5 (translation)
CR 2008/5 (traduction)
Friday 25 January 2008 at 10 a.m.
Vendredi 25 janvier 2008 à 10 heures - 2 -
8 The PRESIDENT: Please be seated. The sitting is open. The Court meets today to hear the
continuation of the first round of oral argument of the French Republic. I now give the floor to
Professor Ascensio.
AMSr.ENSIO:
THE ALLEGED VIOLATIONS OF THE T REATY OF FRIENDSHIP AND C O-OPERATION OF
27 JUNE 1977 AND THE CONVENTION ON M UTUAL ASSISTANCE INC RIMINAL
M ATTERS OF 27 SEPTEMBER 1986
1. Madam President, Members of the CourtI concluded my statement yesterday evening
with an explanation of the reason why the arentation leading to the Republic of Djibouti’s
principal submission could only be rejected. Thus , our attention should turn this morning to the
Applicant’s two subsidiary lines of argument.
B. The Applicant’s arguments in the alternative
2. In the alternative, the Republic of Djibou ti maintains that France breached its obligations
under Article 1 of the 1986 Convention by its unlawful refusal to transmit the Borrel file, that
refusal being set out in a lette r dated 6 June 2005 or,is the second submission in the
1
alternative, in a letter dated 31 May 2005 difference between the two submissions thus lies
exclusively in identifying the letter which informed the Djiboutian authorities of the refusal of
mutual assistance. We will note, by the way, that the Republic of Djibouti is not in fact very sure
of its assertion that it never received the letter of 31 May 2005, because it goes to the trouble of
putting forward a second submission in the alternative.
3. As for the rest, the argument offered the Applicant’s counsel was identical and
consisted of analysing the substance and implementation of Articles2 and 17 of the Mutual
Assistance Convention at the time when the French authorities considered Djibouti’s letter rogatory
of 3 November 2004. While the Republic of Djibouti alleges a violation of Article 1, it does so by
linking Articles2 and 17, or rather merging them, which leads it to subsume these two articles
1
CR 2008/3, p. 36, para. 4 (Doualeh). - 3 -
9 under the most general provision of the Convention, namely Article 1. This plainly results from the
interpretation of these articles first offered during the first round of oral argument.
4. The position of the Republic of Djibouti set out in the Memorial was completely different.
There, the legal argument involving the alleged violation of the 1986 Convention was split into two
prongs. The first dealt with execution of the in ternational letter rogatory and the second the
obligation to state reasons for the refusal of mutual assistance 2. The Republic of Djibouti there
maintained that there had been two violations of the Convention, one involving Articles3 and 5,
and the other Article17. Thus, it very clearly severed Article17 from the rest of the Convention
and complained that France had failed to notif y it of the reason for the refusal of mutual
assistance 3.
5. In the view of the French Republic, and in accordance with the Djiboutian authorities’
initial position, the two issues must still be analy zed separately, because the legal obligations in
question, that is to say those deriving from Article2 and those deriving from Article17, are
distinct. That is why I shall respond to the Republic of Djibouti’s two alternative lines of argument
together, distinguishing the issue of the ground fo r the refusal of mutual assistance (A) from the
obligation to give reasons (B).
6. It will thus become apparent that the reasons underlying the refusal to transmit the Borrel
file were fully in accordance with the Convention, more specifically the provisions of Article 2 (c).
Accordingly, this article, just like Article 1, was not violated by the French Republic. It will then
become clear that France has in no way breached the obligation to state reasons appearing in
Article 17 of the Convention, since the Republic of Djibouti is fully informed of the reasons having
led to the refusal of mutual assistance. Moreover, a mere violation of Article 17 would not in and
of itself constitute a violation of Article 1 of the Convention.
(1)The reason for the refusal of mutual assistance
7. Madam President, the grounds for the refusal of mutual assistance must now be examined.
Under Article 2 of the Convention a refusal was possible; it was imperative in this case, because
2
MD, pp. 43 and 45.
3
MD, pp. 46-48, paras. 119-124. - 4 -
10 France considered that execution of the letter rogatory from Djibouti would have conflicted with its
essential interests. These are the two points which will be expounded.
8. First of all, a refusal of mutual assist ance is possible under Article 2 of the Convention on
one of the three grounds there set out. The relevant one in the present case is the third, which the
Convention describes as follows:
“Assistance may be refused:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c) if the requested State considers that execution of the request is likely to prejudice
its sovereignty, its security, its ordre public or other of its essential interests.”
(Emphasis added.)
9. The language employed expressly conf ers on the requested State the exclusive
discretionary power to determine on its own what are its essential interests. This follows from the
wording “the requested State considers”. The sa me wording is moreover used in the first ground,
which is to say the case of a request concerning a political offence, an o ffence connected with a
political offence or a fiscal, customs or foreign ex change offence. On the other hand, it does not
appear in the second, which corresponds to the clas sic dual-criminality requirement. This is one
more reason to accord it all the importance it deserves in the third ground.
10. Professor Condorelli was kind enough to point out in his statement that a series of
possessive pronouns underscores the fact that it is for the requested State alone to interpret this
provision 4. Similarly, he observed that this type of provision was standard in conventions on
mutual assistance in criminal matters and he cited Article 2 of the European Convention on Mutual
Assistance in Criminal Matters of 20 April 1959 5.
11. I shall however carefully avoid taking up the term “a self-judging clause”, which he
used 6. Aside from the fact that it is not easy to translate into French, it obviously carries a
pejorative connotation in the mind of counsel for the Applicant. This is probably undeserved,
11 given the substantial State practice in this area, as he himself observed. It might be added that
provisions of the same type as those we are now discussing appear not only in bilateral conventions
4CR 2008/2, p. 18, para. 18 (Condorelli).
5
CR 2008/2, p. 17, para. 17 (Condorelli).
6CR 2008/2, p. 18, para. 18 (Condorelli). - 5 -
on subjects other than mutual assistance in crimin al matters, such as some bilateral investment
treaties, but also in multilateral conventions. Here we might mention ArticleXXI of the General
Agreement on Tariffs and Trade, Article XIV bis of the General Agreement on Trade in Services,
and Article 73 of the Agreement on Trade-Related Aspects of Intellectual Property Rights.
12. In respect of criminal matters, it is easy to understand why such a clause exists. Penal
affairs are among those which i nvolve the sovereignty of States and put their security or ordre
public at risk. As this is a particularly sensitive fiel d, States pay particular heed to the scope of the
undertakings they assume in the matter. That is why States, while willing to negotiate and enter
into conventions on mutual assistance in criminal matters, do so only on certain conditions, very
standard ones by the way, in order to prevent the mutual assistance provided from prejudicing their
sovereignty, security, ordre public or other essential interests. It follows that, unless we are to
emasculate the provisions establishing exceptions to the principle of mutual assistance ⎯
exceptions which, I repeat, are very standard ⎯ it is for the requested State, and it alone, to decide,
in accordance with procedures under its internal law, whether or not a particular instance of mutual
assistance prejudices its essential interests.
13. After the treaty practice, let us now turn our attention to the international jurisprudence.
Here again, Professor Condorelli has lightened the task for me, because he quoted at length from
the Court’s 1986 Judgment in the case concerning Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America 7. There the Court recognized the
existence of clauses stating that the State concerned, and it alone, was entitled to define its essential
interests, and it applied this a contrario to find jurisdiction in that case, as it was dealing with a
clause that did not so state (Merits, Judgment, I.C.J. Reports 1986, p. 116, para. 222).
12 14. Counsel for the Applicant attempts however to limit the reach of this dictum of the Court
in two ways, by relying first on general international law and second on the 1986 Convention itself.
15. In respect of general international law, he cites the case concerning Rights of Nationals of
the United States of America in Morocco (France v. United States of America) 8, specifically the
passage in which the Court stated, in respect of the latitude enjoyed by Moroccan customs
7
CR 2008/2, p. 20, paras. 21 and 22 (Condorelli).
8
CR 2008/2, p. 22, para. 26 (Condorelli). - 6 -
authorities in calculating the customs value of goods under Article 95 of the Act of Algeciras, that
that power “must be exercised [by those authorities] reasonably and in good faith” ( Judgment,
I.C.J. Reports 1952, p. 212). But that was a matter of executing obligations under a treaty ⎯ very
specific and technical obligations moreover ⎯ not excluding the application of a treaty. Nor
obviously did it involve safeguarding a State’s essential interests.
16. The Republic of Djibouti also relies on a “r aft of recent arbitral awards relating to
investments” said to reveal “a clear tendency to interpret these clauses as in no way precluding the
jurisdiction of the arbitrator to verify whether reliance on the derogation is in fact justified” 9.
Actually, it is highly doubtful that these arbitr al awards reflect a “clear tendency”. True,
Professor Condorelli cited the award in the LG&E v. Argentina case, which supports his position 10.
11
But another award stands for the opposite: the CMS v. Argentina award . It was found in that
award that some treaties, like those adopted along the lines of the United States 2004 model
bilateral investment treaty, contained provisions granting a State unfettered discretion in assessing
its essential interests. An applicati on was lodged to annul the award and the ad hoc committee
hearing it rendered its decision on 25 September 2007 1. Committee members criticized a number
of aspects of the award, but not this one.
13 17. Thus, the groundswell of case law wished fo r by the Applicant has not occurred. Maybe
simply because the most reasonable course is to recognize the existence and effects of these
clauses.
18. In this regard, a closer look at the jurisp rudence of the Court is no doubt appropriate. It
is possible to draw a parallel between clauses of this type and reservations placed by some States
on their declarations, under Article36, paragraph2, of the Court’s Statute, recognizing the
compulsory jurisdiction of the Court. Thus, in the case concerning Certain Norwegian Loans
(France v. Norway), the Court considered the French reservation excluding from the scope of its
declaration differences “relating to matters which are essentially within the national jurisdiction as
9
CR 2008/2, pp. 22-23, para. 28 (Condorelli).
10
CR 2008/2, p. 23, para. 28 (Condorelli).
11ICSID Tribunal, arbitral award,CMS Gas Transmission Company v. Argentine Republic, No.ARB/01/8,
12 May 2005, para. 373.
12Decision of the Ad Hoc Committee on the Application for Annulment of the Argentine Republic,CMS Gas
Transmission Company v. Argentine Republic, ICSID case No. ARB/01/8 (Annulment Proceeding), 25 Sept. 2007. - 7 -
understood by the Government of the French Republic ” (Judgment, I.C.J. Reports 1957 , p. 21).
The Court, recognizing by virtue of reciprocity th at Norway could rely on the same limitation in
respect of its declaration recognizing the com pulsory jurisdiction of the Court, upheld the
application of the reservation. It then held that it was without jurisdiction, as Norway argued that
the case fell essentially under its national jurisdiction. According to the Court, “the reservation as
it [stood] and as the Parties recognize[d] it” should be given effect (ibid., p. 27).
19. In the present case, there is no need to look for the two Parties’ recognition of the
provision in question, since it is a treaty provision, the product of the joint will of the Republic of
Djibouti and the French Republic. It is simply a matter of giving the provision effect “as it stands”,
in accordance, I might add, with a time-honoured rule of the law of treaties ( Acquisition of Polish
Nationality, Advisory Opinion, 1923, P.C.I.J., SeriesB, No.7, p. 20; Territorial Dispute (Libyan
Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994, p. 25, para. 51).
20. With this last remark, we can also begin to respond to Professor Condorelli’s second
series of arguments, based on the 1986 Mutual Assistance Convention itself.
21. Under the law of treaties, Article 2 must be interpreted “in good faith in accordance with
the ordinary meaning to be given to its terms in their context and in the light of its object and
purpose” ( Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary
14 Objection, Judgment, I.C.J. Reports 1996(II) , p.812, para.23). But the interpretation offered by
the Applicant disregards the ordinary meaning of Article 2 that leads to giving it effect as it stands.
That interpretation equally disregards the object and purpose of the Convention on Mutual
Assistance in Criminal Matters, as I described it a short while ago. The only thing given
13
consideration is the context , which is said to justify merging Articles 2 and 17 of the Convention,
even though they stand far apart in the treaty. But I shall return to this subject a bit later in
connection with the true meaning of Article 17.
22. It is also very curious to seek support in the “good practices” adopted within the
European Union by means of the Joint Action of 29 June 1998 14. The Joint Action is an instrument
13
CR 2008/2, p. 23, para. 29 (Condorelli).
14
CR 2008/2, p. 27, para. 38 (Condorelli). - 8 -
adopted under a treaty, the Treaty on European Union, which bears no relation to the 1986
Convention between France and Djibouti.
23. What remains is the contention that th e 1986 Convention would be rendered ineffectual
by the French Republic’s interpretation of Article 2. This is a great exaggeration and in no way in
keeping with international mutual assistance practic e. Moreover, the obligations of means in the
Convention plainly remain applicable to all requests. It is precisely thanks to the implementation
of its internal procedure that the requested Stat e will be in a position to determine whether or not
the request prejudices its essential inte rests. Not only does this not constitute a violation of the
1986 Convention, this is the only reasonable interpretation possible of Articles 1, 2 and 3.
24. But it is undoubtedly high time to put an end to a rather abstract discussion. France felt
able to provide the Court with a set of documents the material in which was sufficient to allow you,
Members of the Court, to conclude that there has been full compliance with Article 2 of the 1986
Convention in the present case. These documents were annexed to the Counter-Memorial of the
15
French Republic .
25. In Annex XXI of its Counter-Memoria l France provided a complete copy of the
8 February 2005 order [soit communiqué ] by investigating judge SophieClément, deciding to
refuse to transmit the Borrel file. The decision was expressly based on the ground set out in
15 Article 2 (c), thereby honouring the obligations under the 1986 Mutual Assistance Convention.
Furthermore, the decision provides details on the ri sks of prejudice to the sovereignty, security,
ordre public and essential interests of France. It is thus apparent that the decision by the French
judicial authorities is not open to challenge.
26. During the investigation into Judge Borre l’s murder, the investigating judge successfully
requested the declassification of notes prepared by the French secret services.
27. The procedure for declassification is laid down in the Act of 8July1998. Under
Article 4, the French judicial authority is al one authorized to have possession of these documents,
because that authority alone is entitled to request them. When a judge seeks the declassification of
a document, he or she must submit a request to that end to the administrative authority responsible
15
CMF, Anns. XV and XXI. - 9 -
for the classification. In practice, the judge’s request is sent to the competent minister, who himself
or herself refers the matter to the Commission consultative du secret de la défense nationale
[National Defence Secrets Consultative Committee]. It is only after receiving the Committee’s
opinion that the minister can decide to declassify and ultimately provide the document to the judge.
This procedure is justified by the sensitivity, no tably in respect of fundamental interests of the
nation, of the information contained in classifi ed documents. Nevertheless, the Consultative
Committee’s opinions themselves are easily accessible, since they are published in the Official
Journal of the French Republic.
28. Under current French law, the Consultative Committee cannot respond to a request for
communication from a foreign or international judicial authority. As France stated in its
Counter-Memorial, a bill to amend French law to enable the International Criminal Court to obtain
documents in this way is currently under study; this may be explained by the role assigned to the
Court in its Statute.
29. Now that the French procedure for seeking declassification has been described, we can
return to the request made by the Djiboutian authorities.
30. As the investigating judge explained, transmitting the file to the Djiboutian authorities
“would entail indirectly delivering French intelligence service documents to a foreign political
authority”. It is therefore impossible to transm it a file containing such information, especially
since, and I shall return to this, the entire file is by now rife with information of this sort.
16 31. Commenting on this decision, the Applicant launched in its first round of oral argument
into a completely conjectural discussion of the cont ent of the declassified notes. The Co-Agent of
the Republic of Djibouti thus referred to the opinion given on 27January2005 by the National
Defence Secrets Consultative Comm ittee. He observed that only two pages had been declassified
and doubted that the information on those two pages could have permeated the entire file of the
investigation in the Borrel case 1.
32. Once again, our opponents feign ignorance of basic elements of the case.
16
CR 2008/2, p. 50, para. 69 (van den Biesen). - 10 -
33. In fact, the French Republic only annexed the 27 January 2005 opinion of the National
Defence Secrets Consultative Committee to its Counter-Memorial as an illustration. But a different
exhibit, Annex XV, referred to a large number of documents which were included in the Borrel file
and the communication of which would be likely to prejudice essential interests of France.
Annex XV is a letter from the Director of Criminal Affairs and Pardons at the Ministry of Justice to
the Paris State Prosecutor on the subject of transmitti ng the Borrel file. Here is what the relevant
passage says:
“I would draw your attention to the need to omit from the certified copy of the
proceedings any documents likely to prej udice the sovereignty, the security, the ordre
public or other essential interests of the Nation, in particular those referred to by the
Minister of Defence in his note, a copy of which is attached, namely twelve notes
from the DGSE transmitted to the judicial authority on 29March 2004 and three
further notes from the DGSE and ten notes from the DPSD transmitted on
13 December 2004.”
34. The Director of Criminal Affairs and Pardons concluded as follows:
“The communication of French intelligence service documents cannot therefore
be envisaged, in so far as it would provide a foreign political authority with
information likely seriously to compromise the above-mentioned interests.”
35. I will point out that the initials “DGSE” stand for Direction générale de la sécurité
extérieure [Directorate-General for External Security] and “DPSD” Direction de la protection de
la sécurité de la défense [Directorate for the Protection of Defence Security]. The first of these
intelligence agencies reports to the Ministry of the Interior and the second to the Ministry of
Defence.
36. Thus, more than 25 notes containing protected information were declassified and
17
included in the investigation file requested by Djibouti.
37. Further, in the order [soit transmis] of 8February 2005, the investigating judge Sophie
Clément did not confine herself to referring to a single declassified note. She spoke of a number of
documents. Once again, I shall quote the relevant passage from the document, found in
Annex XXI of the French Counter-Memorial:
“On several occasions in the course of our investigation, we have requested the
Ministry of the Interior and the Ministry of Defence to communicate documents
classified under ‘defence secrecy’.
The Commission Consultative du Secret de la Défense Nationale delivered a
favourable opinion on the declassification of certain documents. - 11 -
The above-mentioned ministries, follo wing that opinion, transmitted those
documents to us.”
38. The Court’s attention needs to be draw n to the fact that these numerous notes were
incorporated at different times into the file of the investigation then under way in the chambers of
Vice-President Sophie Clément. As a result, it w as as and when the notes became part of the file
that the investigating judge made use of them in taking various steps in the investigation:
questioning, letters rogatory, expe rt opinions. Because of this constant process, it was impossible
to consider elements of the file to be separable from the content of the notes.
39. Indeed, these notes could in particular: bear out ⎯ or not ⎯ the earlier orientation of the
investigation; lead it in a new direction; be so important as to receive frequent citation in later
proceedings and as to steer the course of subse quent investigation. It is self-evident, Madam
President, that I have no knowledge of the content of these notes. Accordingly, the conjecture by
the Applicant does not induce me to disclose any specific information, if that was the goal.
40. Madam President, Members of the Court, since the French Republic executed the request
for mutual assistance in acco rdance with Articles 2 and 3 of the 1986 Mutual Assistance
Convention, and a fortiori in accordance with Article 1 of that Convention, it did not violate any of
its international obligations. It therefore rema ins to be determined whether the Republic of
18 Djibouti can legitimately accuse France of having breached the obligation, found in Article 17 of
the Convention, to state reasons for the refusal of mutual assistance.
(2) The obligation to give reasons
41. The Republic of Djibouti cannot argue that there has been a violation of the obligation to
give reasons for the refusal of mutual assistance. It cannot do so because the process of co-
operation between the two States unfolded in such a way that the Djiboutian authorities
unquestionably knew the reason for the refusal.
42. We must first look again at the content of Article 17 of the 1986 Convention and at its
position in the Convention. The article merely states that “[r]easons shall be given for any refusal
of mutual assistance”. There is no denying that the wording is terse, that it imposes no specific
form, no time-limit and no particular degree of specificity and that it does not expressly require an
official communication to the requesting State. Incidentally, when requiring an official
communication, other conventions of this type add a notification obligation to this provision. - 12 -
43. Furthermore, this article is relegated to th e end of the treaty. If the Parties had intended
to make this a requirement for the lawfulness of a refusal of mutual assistance, they would have
placed a paragraph on this subject in Article 2 itself, or would have so specified in the provision. It
must be inferred from this that the obligation la id down in Article 17 is separate from those which
have been discussed thus far.
44. The question which then arises is what cont ent must appear in the statement of reasons
required to be given to the requesting State. Wh en a refusal serves to protect information relating
to the State’s essential interests, it is quite obvious that the content must not amount to
communicating that information. The only remaining possibility is therefore to specify which
ground is being asserted under Article2 of the C onvention to justify the refusal of mutual
assistance. In the present case, this was the ground provided for in Article2 (c). Thisishow
Article17 relates to Article2. And to say so in no way conflicts with the idea that the two
provisions are legally autonomous and lay down separ ate legal obligations, contrary to what the
17
Republic of Djibouti claims .
19 45. In the present case, France communicated the reason for the refusal to the Djiboutian
authorities. The Director of Criminal Affairs and Pardons at the Ministry of Justice of the French
Republic addressed a letter on this subject, on 31 May 2005, to the Ambassador of the Republic of
Djibouti in Paris. The document appears as Anne x V of the Counter-Memorial. After explaining
that, in accordance with domestic law, the French executive auth orities had transmitted the request
for mutual assistance to the judicial authority, he wrote:
“the investigating judge . . . considered that Article 2 (c) of the Convention on Mutual
Assistance in Criminal Matters betwee n France and Djibouti of 27September 1986
had to be applied and that this did not a llow a favourable response to be given to the
request from your judicial authorities”.
46. The reference to Article 2 (c) of the 1986 Convention was sufficient to satisfy in full the
obligation to state reasons appearing in Article 17. Nothing requir ed a fuller statement of reasons;
on the contrary, everything called for confining the statement to the reasons set out in Article 2.
Otherwise, the requested State would have been fo rced to disclose the very information which it
had the right to withhold under the Convention in order to protect its essential interests.
17
CR 2008, p. 26, para. 36. - 13 -
47. The French authorities were surprised to learn of the letter addressed by the Ambassador
of Djibouti in Paris to the Public Prosecutor of Djibouti on 25 July 2007. This letter is one of the
supplementary documents transmitted to the Registry of the Court by the Republic of Djibouti on
21 November 2007. In it, the Ambassador informed the Agent of the Republic of Djibouti that the
efforts made to find the letter from the French authorities had been unsuccessful.
48. Unfortunately, France is no more able to show that the letter was received by the
embassy of the Republic of Djibouti in Paris. Th e reason is very simple. French administrative
bodies, confident of the efficiency of the post office on French soil, send their correspondence by
ordinary post, that is to say without asking fo r an acknowledgment of receipt. France therefore
does not have proof of receipt.
49. Nevertheless, the reason given in the letter of 31 May 2005 was perfectly consistent with
the previous exchanges between the two States. In this respect, and contrary to what the
Ambassador of Djibouti maintains, direct exch anges between him and the French Ministry of
Justice are not out of place. For proof, one need only refer to a document which the Republic of
20
Djibouti annexed to its Memorial, as Annex 19, which is an example of such an exchange. As for
the 1986 Convention, its Article 14 provides for direct communications between the Ministries of
Justice of the two States and even, in case of ur gency, between judicial authorities of the two
States. Transmittal through the embassies and Ministries of Foreign Affairs is thus merely a
convenient practice, given the distance between the two States, and in no way a requirement of
protocol.
50. It is also necessary to place the letter of 6 June 2005, from France’s Ambassador to
18
Djibouti to the Djiboutian Minister for Foreign Affairs and International Co-operation , in context.
He informed him that France was not in a position to comply with the request for the transmission
of the Borrel file. He wrote “is not” in a position, not “is no longer” in a position, as the Republic
of Djibouti asserted in its Memorial 19. While it is true that he did not state the reason for the
refusal, that is understandable, because the French authorities thought that the statement of reasons
had been given on 31 May to Djibouti’s Ambassador in Paris by the Director of Criminal Affairs
18
CMF, Ann. XXII.
19
MD, p. 46, para. 119, and p. 37, para. 90. - 14 -
and Pardons at the Ministry of Justice. Otherw ise, it is obvious that the Ambassador would have
stated the reason. Thus, the good faith of the French authorities cannot be questioned.
51. In any event, the argument that no information at all was provided is refuted by the
conduct of the Djiboutian authorities. First, if the letter of 31 May 2005 was never received, it is
very hard to understand why the Republic of Djibouti never expressed the least surprise or
undertook the slightest diplomatic demarche to learn the reason for the refusal, whether with the
French Ambassador to Djibouti or directly with the Ministry of Justice. This is even harder to
grasp in that, as we have seen, regular contacts ha ve always been maintained. And this silence
lasted until the time when Djibouti’s Application was filed with the International Court of Justice
on 9 January 2006.
52. Secondly, it was known even before the request was made that there was a risk that the
presence of documents covered by defence secrecy would prevent the transmission of the Borrel
file. On 16 December 2003, Djibouti’s Minister for Foreign Affairs and International Co-operation
21
wrote to the French Minister for Foreign Affairs, expressing his desire to see the French judicial
proceedings concerning Judge Borrel’s murder brought to a conclusion. He asked him “to remove
all obstacles . . . including the ‘defence-secret’ claim”20. As the investigating judge had succeeded
in having the “defence-secret” status lifted, the issu e of the declassified information was certain to
arise in connection with any request for transmission of the Borrel file.
53. It is apparent from the words themselves of the Application instituting proceedings that
the Republic of Djibouti is fully aware of th e ground for the refusal of mutual assistance.
Paragraph 13 asserts that “[t]he i nvestigating judge refused... to transmit the Borrel file to the
Djiboutian judicial authorities on the ground that ‘the transmission of this record is contrary to
France’s fundamental interests’”. The same know ledge of the reason appears in paragraph 146 of
the Memorial, where the Republic of Djibouti is careful to use the conditional, but the phrase
“contrary to France’s fundamental interests” is to be found there as well. Moreover, it is specified
that the refusal figures in a letter from Sophie Clém ent, the investigating judge in Paris. The
specificity with which both the source and the ground are identified shows that Djibouti knows, and
20
MD, Ann. 13. - 15 -
has always known, the result of the internal pro cedure and the ground for the refusal of mutual
assistance. It can moreover be seen from what follo ws in the Memorial that Djibouti understands
only too well that this reason is linked to Article2 (c) of the 1986 Convention, all the while
21
denying any linkage ⎯ but that is not the problem here .
54. Lastly, the Republic of Djibouti itself is conscious of the weakness of its argument. That
is no doubt why it had to claim twice in its Memori al that the French Ambassador to Djibouti had
22
written “is no longer”, instead of “is not” . This was plainly done to create an impression that the
French authorities were guilty of self-contradiction, an impression which is not in the least
produced by other facts. And yet these words were never written.
55. It is therefore patently obvious that the Djiboutian authorities were fully informed of the
reason for the refusal of mutual assistance.
56. In the alternative, if the Court were neve rtheless to find that Article 17 has not been
22 complied with, it would be necessary to consider th e consequences of that. First, a violation of
Article 17 does not imply a violation of Article 1 at the same time. Accordingly, the Court should
in all events reject the Republic of Djibouti’s two submissions in the alternative. What is more, by
now the Republic of Djibouti undeniably has full knowledge of the grounds for the refusal of
mutual assistance. The exchange of written pleadings and the oral proceedings before the Court
have elucidated them, probably to a degree greater than required by Article 17 of the Convention.
Consequently, the aspect of the dispute concerning the statement of reasons for the refusal of
mutual assistance has become moot.
57. Madam President, Members of the Court, it remains for me to conclude by recalling the
main points of this statement:
(i)no legal obligation under the 1977 Treaty of Friendship and Co-operation has been
violated by the French Republic;
(ii) the claim cannot be upheld that the 1977 Treaty of Friendship and Co-operation has been
violated by virtue of an alleged violati on described as “serious” of the Convention on
Mutual Assistance in Criminal Matters of 27 September 1986;
21
MD, p. 55, paras. 147-150.
22
MD, p. 46, para. 119, and p. 37, para. 90. - 16 -
(iii) the 1986 Convention on Mutual Assistance in Criminal Matters has not been violated as a
result of the refusal to carry out the undertaking supposedly represented by the letter of 27
January 2005, because the internal procedure was still then in progress;
(iv) the refusal to transmit a copy of the Borre l file to the Republic of Djibouti was justified
under the 1986 Convention on Mutual Assistance, in particular Article 2 thereof;
(v) France has not violated the obligation under Article 17 of the Convention to give reasons
for the refusal of mutual assistance;
(vi) in the alternative, the violation of the ob ligation to give reasons for the refusal of mutual
assistance does not constitute a violation of Article 1 of the Convention;
(vii)further in the alternative, the aspect of the dispute concerning the obligation to give
reasons for the refusal of mutual assistance has become moot.
58. Madam President, Members of the Court, I thank you sincerely for your attention and ask
you, Madam President, to give the floor to Professor Pellet.
23 The PRESIDENT: Thank you, Professor. I now give the floor to Professor Pellet.
Mr. PELLET: Thank you very much, Madam Pr esident. Madam President, Members of the
Court, let me begin by imparting a piece of news that I believe you will not be sad to hear: we
think that we shall be able ⎯ at the risk, perhaps, of having you to ask you to allow us a few extra
minutes after 1 p.m. ⎯ to complete our first round of oral argument this morning, and will not need
to use the hour and a half scheduled for this afternoon.
THE ALLEGED ATTACKS ON THE IMMUNITY OF CERTAIN D JIBOUTIAN OFFICIALS
1. Madam President, it falls to me to dem onstrate that Djibouti’s claims concerning the
alleged violations of the obligation to preventattacks on the person, freedom and dignity of an
internationally protected person are unfounded. Ther eafter, in a separate pleading, but following
on immediately, I shall briefly consider ⎯ though entirely in the alternative-- the matter of the
legal consequences of the allegedly wrongful acts committed by France.
2. Madam President, the Republic of Djibouti thought it appropriate to tack on to the Case
concerning certain questions of mutual assistance in criminal matters, which has given its name to - 17 -
these proceedings, a number of episodes that are li nked only indirectly and artificially to those
questions, such as the invitation to testify that was addressed to the President of Djibouti or the
arrest warrants issued against two Djiboutian o fficials in connection with a different matter,
concerning not the judicial investigation into the death of Bernard Borrel, but another investigation,
conducted by a different judge at a different court and relating to subornation of perjury.
3. In any event, as I demonstrated yesterday, none of those events is connected, from a legal
perspective, with the “refusal by the French gove rnmental and judicial au thorities to execute an
international letter rogatory”, issued on 3 November 2004 by an investigating judge at the Djibouti
Tribunal de grande instance and seeking “the transmission by the French side of the record of the
23
24 investigation in the Borrel case” , which forms the exclusive subject-matter of the Republic of
Djibouti’s Application. Consequently, the Court does not have jurisdiction to hear these claims,
and, indeed, some of them relate to acts that occurred after the Application was made and are
patently not covered by the consent to the Cour t’s jurisdiction given by letter of the French
Minister for Foreign Affairs of 25 July 2006 in respect of “the subject of the Application and
24
strictly within the limits of the claims formulated therein . . .” It is, therefore, only absolutely in
the alternative that I shall seek to demonstrate that the claims of the Republic of Djibouti are not, in
any event, justified on the merits.
4. As I do so, I shall distinguish, as we did in out Counter-Memorial 2, and as Djibouti’s
representatives also did in the course of their oral arguments, between the invitations to testify
addressed to President Guelleh, on the one hand, and the witness summonses and arrest warrants
issued against other Djiboutian nationals, on the other.
I. THE INVITATIONS TO TESTIFY ADDRESSED TO THE P RESIDENT
OF THE R EPUBLIC OF D JIBOUTI
5. On the first point, let me begin by reitera ting that France recogni zes in full the absolute
nature of the immunity from criminal jurisdiction and the inviolability that foreign Heads of State
enjoy. I shall then demonstrate that the invitations to testify that were addressed, in 2005 and 2007,
23Application, para. 2; see also para. 12 and MD, p. 9, para. 3.
24
MD, Ann. 2.
25CMF, p. 47-62. - 18 -
to President Ismaël Omar Guelleh, involved no attack on those immunities or the President’s
dignity.
A. France recognizes the absolute nature of the immunity from criminal jurisdiction
and the inviolability that foreign Heads of State enjoy
6. Madam President, Djibouti is deploying cons iderable efforts to show that “the French
State acknowledged the existence of customary principles and rules protecting inter alia the
26
freedom and dignity of Heads of State” . To that end, Djibouti cites several international
25 instruments, foremost among them, the Convention on the Prevention and Punishment of Crimes
27
against Internationally Protected Persons of 14 December 1973 .
7. Although France in no way disputes that foreign Heads of State benefit, under
international law, from complete protection for thei r freedom and dignity (and this is reflected in
the absolute nature of their immunity, at least wh en in office), it cannot agree that this principle
derives from the 1973 Convention. The definition of internationally protected persons is set out in
Article1 of the Convention only “[f]or the purpo ses of this Convention”; and the offences to
which it relates are exclusively murder, kidnapping or other attacks “upon the person or liberty of
an internationally protected person” and “likely to endanger his person or liberty”. That bears no
relation to the facts of this case. I imagine that even our adversaries will grant France that.
8. In contrast, we have little difficulty in accepting that, by analogy, the guarantees laid down
for the benefit of the representatives of States by the 1961 Vienna Convention on Diplomatic
Relations and the 1969 New York Convention on Special Missions “apply a fortiori to the highest
28
organs of States and in particular to the Heads of Foreign States” , even though the legal regime
governing immunity for which the two provide may vary in detail -- in relation to immunity from
civil jurisdiction, for instance. But there is no need scour conventions to establish that, under
customary law, in the exercise of their duties, foreign Heads of State enjoy full immunity from
criminal jurisdiction ( Arrest Warrant of 11April2000 (Democratic Republic of the Congo v.
Belgium), Judgment, I.C.J. Reports 2002, pp. 20-21, para. 51) and, a fortiori, inviolability.
26MD, p. 49, para. 130.
27
See Application, p. 9, para. 16 or MD, p. 49, para. 129-130.
28MD, p. 50, para. 131. - 19 -
9. We therefore accept, without hesitation or restriction that, to use the words which the
Institute of International Law employed in its Vancouver resolution of 2002 on “[i]immunities
from Jurisdiction and Execution of Heads of Stat e and Government in International Law”, the
authorities of a State must take “all reasonable st eps to prevent any infringement of a [Head of
26
29
State’s] person, liberty or dignity” and that “[i]n criminal matters, the Head of State shall enjoy
immunity from jurisdiction before the courts of a foreign State for any crime he or she may have
30
committed, regardless of its gravity” .
10. And France is not taking this approach this approach as a matter of expediency. In the
case of Certain Criminal Proceedings in France , which is currently pending before the Court, the
representatives of the French Republic had the honour to make the following submission
concerning specifically, invitations to testify addressed to a foreign Head of State:
“32. In conformity with international law, French law embodies the principle of
the immunity of foreign Heads of State . . . There are no written rules deriving from
any legislation relating to the immunities of States and their representatives. It is the
jurisprudence of the French courts which, referring to customary international law and
applying it directly, have asserted clearly and forcefully the principle of these
immunities. The clearest and most recent expression of this jurisprudence lies in the
important judgment handed down on 13 March 2001 by the Criminal Chamber of the
Court of Cassation in the Khadafi case, so called from the name of the Libyan Head of
State . . .
33....this decision makes it perfectly clear that the French courts apply
international custom and, in particular, the customary principle which confers
immunity from jurisdiction and enforcement on foreign Heads of State . . .
[a]s regards immunities, French law is very clear about the absolute immunity which
attaches to the person of a foreign Head of State . . .” 31
And to cite a further example:
“We have promised nothing, we have said that French law does not allow of the 32
prosecution of a foreign Head of State; that is not a promise, it is a finding of law.”
11. In its Order for the indication of provisional measures of 7 June 2003, the Court noted
33
those statements , which are equally applicable to the case that has brought us here today.
2IIL Yearbook, Vol. 69, 2000-2001, p. 744 (www.idi-iil.org/idiF/resolutionsE_van_02_en.PDF), Art. 1.
30
Ibid., Art. 2.
31
CR 2003/21, p. 10 (Abraham).
3Ibid., p. 14 (Abraham).
3Certain Criminal Proceedings in France (Republic of the Congo v. France), Provisional Measures, Order of
17 June 2003, I.C.J. Reports 2003, p. 109-110, para. 33. - 20 -
Moreover, they can be summed up in just a few word s: French law does not just recognize, it also
guarantees absolute immunity from criminal jurisdiction (the only jurisdiction material to this case)
and complete inviolability for Heads of State when in office. And the invitations to testify
27 addressed to the President of the Republic of Djibouti in 2005 and 2007 surely do not cast doubt on
that.
B. The invitations to testify addressed to the President of the Republic of Djibouti did not
infringe his immunity from jurisdiction or his dignity
12. Madam President, the quotations which I have ventured to make from our pleadings of
2003 are taken from oral arguments which very specifically concerned an invitation to testify
which the Republic of Congo claimed ⎯ mistakenly, in fact ⎯ had been addressed to the
Congolese Head of State in connection with a crimin al investigation; and this had been done on
the basis of Article 656 of the French Code of Cr iminal Procedure. Given the role which that
provision plays in this case also, it is no doubt helpful to quote the whole text of the first
subparagraph of that article:
“The written statement of a representative of a foreign power shall be requested
through the intermediary of the Minister for Fo reign Affairs. If the request is granted,
the statement shall be received by the presi dent of the court of appeal or a judge
delegated by him.”
13. In other words:
⎯ contrary to what the Djiboutian side is cl aiming, the “requests” made pursuant to that
provision are not “summonses” but merely invitatio ns which the addressee is free to accept or
not to accept;
⎯ that is apparent from the entirely unambiguous expr ession: “If the request is accepted . . .”; if
it is not, the refusal to make a statement puts an end to the procedure, and no further action is
possible;
⎯ if it is accepted, the statement, after having been requested through the diplomatic channel, is
received by the president of the court of appeal or the judge whom he has delegated;
⎯ it can only be a written statement.
14. Madam President, I do not believe that there has been an attack or the threat of an attack
on the person, freedom or dignity of President Guellah. There is nothing ignominious about - 21 -
“telling the whole truth”, and the French legal system is such that a foreign Head of State is entirely
at liberty to maintain his silence, if he so wish es, without anyone being able to criticize him for it.
28 And should he decide ⎯ freely ⎯ to disclose what he knows, his statement is received with the
discretion, solicitude and respect that the high ra nk of the office of the person who has chosen to
provide a statement merits, when that individual is the representative of a foreign State.
15. Such statements are in all respects compatible with the requirements of international law
34
which, contrary to what the Djiboutian side claims , certainly does not preclude internationally
protected persons being invited to testify in connection with a criminal investigation. Furthermore,
the 1961 Convention on Diplomatic Relations and the 1969 Convention on Special Missions are
35
very clear about this: “A diplomatic agent is not obliged to give evidence as a witness” ; and,
indeed: “The representatives of the sending State in the special mission and the members of its
36
diplomatic staff are not obliged to give evidence as witnesses.” They are not obliged; but they
may do so, and, of course, there is nothing to say that they cannot be invited to do so.
16. The requests to that effect which we re addressed to President Guellah could not,
therefore, constitute an attack on his honour or hi s dignity. But since the circumstances in which
they were made differ, I shall consider them separately.
1. The “witness summons” of 17 May 2005
17. Madam President, let me say this straight out: the “witness” summons that
Mrs. Sophie Clément, an investigating judge at the Paris Tribunal de grande instance, addressed to
37
the President of the Republic of Djibouti on 17 May 2005 failed to comply with the provisions of
Article 656 of the Code of Criminal Procedure, which are the only provisions that permit a French
judge to take the statement of a foreign Head of State. That procedural act, which was not followed
up, is null and void under French law and, th erefore, clearly, did not cause any harm to the
Applicant.
18. Moreover, there are three points which should be made clear:
34MD, p. 50, para. 131, or p. 51, para. 135.
35
Vienna Convention on Diplomatic Relations of 4 April 1961, Art. 31(2).
36New York Convention on Special Missions of 8 Dec. 1969, Art. 31(3).
37MD, Ann. 28. - 22 -
⎯ firstly, the request involved no element of threat: “I invite you to attend . . .”;
29 ⎯ secondly, no wrongful act was imputed to President Guelleh, who was invited to testify “in
respect of the acts alleged against: X”; and
⎯ thirdly, the fact that this procedural act was not founded on any kind of “suspicion” ⎯ contrary
38
to Djibouti’s contentions ⎯ is also apparent from the fact that the President was invited to
testify as an ordinary witness and not as a témoin assisté [legally represented witness].
19. A brief explanation is probably called for here. In French law, since the Law of
15 June 2000, a distinction has been made between two categories of witness:
⎯ “normal” or “ordinary” witnesses, whom the i nvestigating judge wishes to interview because
he considers that they may have information that will help uncover the truth, but who are
certainly not suspects. As Article 101 of the Code of Criminal Procedure states, the
investigating judge may summons “any person whose statement appears useful to him”;
however, “persons in relation to whom serious and corroborating evidence exists that they have
taken part in the acts which the investigating judge is reviewing may not be heard as
[ordinary] witnesses” 39; and
⎯ in those cases they have, of necessity, to be interviewed as témoins assistés [legally represented
witnesses] whom the judge, in fact, regards as su spects, believing that he has evidence against
40
them ; if that evidence is confirmed, the judge may proceed to “charge” (or, as we used to
say, indict) the person concerned 4.
20. If President Guelleh had been summoned as a témoin assisté [legally represented
witness], there would certainly have been grounds for debate, but he was not and could not have
been, since the testimony of the representative of a foreign power cannot be requested other than
within the strict confines laid down by Article 656 of the Code of Criminal Procedure, failing
which it is null and void. That perhaps is why, in both its Application and its Memorial, Djibouti
claimed that President Guelleh was “summoned to give statement[] as témoin[] assisté[] [legally
38See Application, p. 14, para 16. See also MD, p. 26, para. 60 and pp. 30-31, para. 71-72.
39
Code of Criminal Procedure, Art. 105.
40
Art. 113-1 and 113-2.
41Art. 113-8. - 23 -
represented witness] in connection with a crim inal complaint against X for subornation of
perjury” 42. That claim is wrong on two counts: the summons in question was addressed to him in
30
connection with the judicial investigation into the death of Bernard Borrel, as an ordinary
witness ⎯ and certainly not as a témoin assisté [legally represented witness], as the Applicant
43
finally recognized, moreover, in the words of Mr. van den Biesen, last Monday .
21. There is something else that is very stri king. At Monday’s hearing, counsel for Djibouti
stressed that the witness summonses were based on a standard form, and he made much of the
similarities between those that were addressed to Djibouti’s Ambassador in Paris in 2004 and
President Guelleh in 2005, on the one hand, and another addressed to one MadamFoix on
44
15 October 2007 ⎯ those documents appear in Annex es 25 and 28 of Djibouti’s Memorial and
in Annex 7 of the documents which Djibouti produced on 21 November last year respectively, and
they have been reproduced in the dossiers which have been distributed to you here. And yet,
Mr.van den Biesen felt compelled to comme nt on “the striking difference between the
convocations addressed to the Ambassador and the President, on the one hand, and the one
addressed to Madam Foix, on the other: the summons addressed to MadamFoix contains an
avertissement ⎯ a warning ⎯ explaining the legal consequences of a refusal to appear before the
judge”, whereas the documents addressed to the Ambassador and the Head of State contain no such
warning 45. Surprisingly, Mr.van den Biesen fails to draw any conclusion from that observation:
“One may only guess, Madam President, the reasons for the respective judges of instruction to not
include this avertissement in the convocations sent to the Ambassador and the President.” 46. And
that is it; he does not even attempt to answer the conundrum he has described... and yet the
answer is simple ⎯ I would go as far as to say obvious: the investigating judge had no intention of
subjecting these high-ranking figures from Djibouti to any form of threat of compulsion. In regard
to the requests to testify which were addressed to them, the implication of opening formula (“I
4Application, para. 13; see also MD, p. 30, para. 70 and pp. 67-68 , “Submissions”, paras. 2 and 6.
4CR 2008/1, p. 37, para. 13.
44
CR 2008/1, p. 37, para. 18 (van den Biesen).
4CR 2008/1, pp. 38-39, paras 19-20 (van den Biesen).
4Ibid., p. 39, para. 20. - 24 -
invite you . . .”) becomes patently clear: these invitations to testify are entirely devoid of any threat
of compulsion.
31 22. Let me read out, with your permission, Madam President, the aptly described “witness
47
summons”, addressed to Madam Foix on 15 October 2007 . It starts in the same way, but it is the
end that is relevant: the “warning” follows after the reference to the “[n]ature of the acts” -- let me
read it to you in full:
“If you fail to attend or refuse to attend, you may be compelled to do so by the
law enforcement agencies, in accordance w ith the provisions of Article109 of the
Code of Criminal Procedure.
The witness is further informed that, under Article 434-15-1 of the Penal Code,
failure to attend without excuse or justification is punishable by a fine of €3,750.” 48
23. Neither the invitation to testify that w as addressed to the Ambassador of Djibouti, nor
that addressed to President Guelleh included those statements, although they are quite customary.
This is because while Madam Foix is summonsed to appear, those high-ranking figures are simply
invited. To use an analogy that is, perhaps, more familiar to lawyers within the common law
system, an “ordinary” witness like Madam Foix (I have no idea who she is, Madam President, but,
clearly, she is not an internationally protected person...) must testify sub poena, whereas the
Ambassador and the President are invited to do so of their own free will and without threat.
24. Against all the evidence, Mr.van den Bi esen claims: “However, the non-inclusion of
this warning in the convocations, obviously does not suspend Article 109 of the French Code of
Criminal Procedure nor the above-mentioned provi sion of the French Criminal Code”-- and he
stresses: “non-appearance is punishable under Fr ench law and may lead to the use of public
force” 49. That is all quite true, Madam President ⎯ perfectly true in the case of ordinary witnesses
who, like Madam Foix, are summoned subject to th e application of Article109 of the Code of
Criminal Procedure and Article 434-15-1 of the Pena l Code. However, that is absolutely not the
case for the representatives of foreign powers, who fall exclusively within the scope of Article 656,
the provisions of which guarantee them full resp ect for their immunity. I would add that the
4Ann. 7 of the documents lodged with the Court’s Registry on 21 Nov. 2007.
48
In bold in the text.
4CR 2008/1, p. 39, paras 20 and 21. - 25 -
“warning” that appears on the summons addressed to Madam Foix is the customary and general
formula which is applied to all “ordinary” witnesses under the French system, pursuant to
50
32 Article101(3) of the Code of Criminal Procedure . Its omission was clearly not accidental and
plainly indicated that it was not the intention of Judge Clément to rely on Articles 101 et seq of the
Code of Criminal Procedure ⎯ just as she could not have relied on them, had she wished to
interview the President of the French Republic, as we can see from the decision of the Court of
51
Cassation which counsel for Djibouti cited . I have to confess that I do not see the connection:
Mr. Chirac -- in relation to whom that judgment was handed down -- was not, so far as I know, the
representative of a foreign power.
25. I would add in passing that the Mr.va n den Biesen’s repeated reference to the
52
Hostages case seems to me to be rather gratuitous: to compare an invitation to testify (which is
not accompanied by any threat of compulsion whatsoever) to an attempt to compel hostages to
testify borders on the ludicrous. And the Court’s judgment in the Yerodia case, which counsel for
53
Djibouti also cites , it is not relevant either ⎯ although the comparison is less insulting ⎯
specifically because, in this case, the investigating judge was carefu l to ensure that the invitation
contained no element of threat whatsoever. Whereas, as is clear from the extract from the
judgment that the Applicant cited, “[t]he fact that the warrant is enforceable is clearly apparent
from the order given to ‘all bailiffs and agents of the public authority... to execute this arrest
warrant’” Arrest Warrant of 11April2000 (Democratic Republic of the Congo v. Belgium),
Judgment, I.C.J. Reports 2002, p. 29, para. 70); in this case, the removal of the customary
enforcement clause shows, equally clearly, that the invitation addressed to President Guelleh was
not enforceable.
Madam President, I need some further time to complete this section. Would you like me to
stop now for the pause?
5See CMF, Ann. XXV.
51
CR 2008/1, p. 41, para. 27 (citing: Court of Cassation, sitting in plenary, 10 Oct. 2001).
52
CR 2008/1, p. 40, para. 25; see also p. 49, para. 54 and p. 51, para. 59.
5Ibid., para. 26. - 26 -
The PRESIDENT: Yes, Professor Pellet. We’ll take a short pause at this juncture.
The Court adjourned from 11.25 a.m. to 11.40 a.m.
33 The PRESIDENT: Please be seated.
Mr. PELLET: Thank you very much.
26. Madam President, as I said before the pause, Judge Clément invited the President of the
Republic of Djibouti to testify as an ordinary witness and not a témoin assisté [legally represented
witness]; that means that she did not consider th at there was any charge imputable to him, and,
indeed, that this was no ordinary witness summons but an invitation to testify which involved no
threat of compulsion. Nonetheless this was an irregular procedural act, in terms not of international
but of French law, as France acknowledged unequi vocally immediately Djibouti’s Ambassador to
France had protested against that document by Note Verbale of 18 May 2005, pointing out that the
54
document in question did not observe the provisions of French law .
27. It is a fact that the investigating judge failed to take account of the formal requirements
contained in Article656 of the Code of Crim inal Procedure, which are the only provisions
applicable in this case and which preclude any po ssibility of the representative of a foreign power
testifying other than voluntarily. A request to that effect ought to have been addressed to him
“through the intermediary of the Minister for Fore ign Affairs”, to whom the investigating judge
failed to refer the matter; and the statement ought to have been received by the president of the
court of appeal or a judge delegated by him.
28. And so, on the evening of 18 May (that is to say the same day as the Embassy’s protest
was received, and the day after the invitation to t estify had been dispatched), the spokesperson for
the Ministry for Foreign Affairs issued a clarifi cation which took full account of the concerns of
Djibouti’s Ambassador. That clarification was read out on the airways by the spokesperson, and, in
particular, was broadcast on Radio-France-Internationale (RFI) ⎯ the radio station with the largest
audience outside France in the world.
54
MD, Ann. 29. - 27 -
55
A copy of the text of the spokesperson’s statement to RFI , which reproduces the terms of
the communiqué broadcast that same day by the Ministry for Foreign Affairs, was sent, on the
34 56
following day, 19 May, to Djibouti’s Ambassador in Paris . At that day’s press briefing, the
spokesperson for the Quai d’Orsay, reiterated the previous day’s statement 57.
29. Counsel for Djibouti made a mistake duri ng Monday’s oral argument. He affirmed, on
several occasions, that the “convocation” addressed to President Guelleh on 17 May 2005 could not
be related to Article 656 of the C ode of Criminal Procedure, claimi ng that “this Article 656 is part
of a written procedure” 58. However, Madam President, that is also largely true of the procedures
under Articles 101 et seq. The testimony of persons heard on th e basis of the latter is received not
by the president of the court of appeal but by the investigating judge (or a police officer delegated
by him) and, usually, in the judge’s office ⎯ whereas Article 656 contains no such specification.
But, in both cases, the testimony is transcribed in writ ing: that is specified within the actual text of
Article656, whereas it is provided for not in Article101 itself but in Articles106 and107. But
there the differences end. In both cases, the testimony takes the form of a written document placed
in the investigation file and, finally, the form of a written statement.
30. Aside from the fact that a person called upon to testify on the basis of Article 656 does
not take an oath, the real ⎯ and only material ⎯ difference for our purposes, is that an “ordinary
witness” is summoned to testify under threat of be ing compelled to do so by the law enforcement
agencies, whereas the representative of a foreign power is invited to do so of his own free will. In
the present case, it is perfectly clear that, alt hough the “convocation” of 17 May 2005 from the
investigating judge failed to observe the formal requirements of Article 656, the judge did rule out
both the application of Article 101 and the possibility of any form of compulsion. Similarly,
although the invitation addressed to President Gue lleh failed to comply with the provisions of
Article656, it was not contrary to any of the ru les of international law protecting the immunity,
honour and dignity of foreign Heads of State.
55CMF, Ann. XXIX.
56
Ibid.
57
CMF, Ann. XXX.
58CR 2008/1, p. 39, para 23; see also, p. 45, para. 42 and p. 48, para. 53 (van den Biesen). - 28 -
31 The Applicant’s allegation that France has made itself responsible for “breaches of the
59
35 elementary principles of international court esy and customary law relating to immunity” , is,
consequently, a fabrication. It is not easy to define the concept of the respect due to the dignity of a
60
Head of State, an “elusive notion”, to cite my much lamented friend, Sir Arthur Watts ; and it is
not entirely clear whether the Applicant is relating th e issue merely to international courtesy or to
an obligation under customary international law. But I do not consider it necessary to embark upon
these Byzantine disputes. It is hard to see how a simple invitation to testify, which was not
accompanied by any threat of enforcement, could, in any way, constitute an attack on the dignity of
a Head of State.
32. Madam President, several conclusions may be drawn from this episode, whose
significance the Applicant has exaggerated in an extremely contrived manner.
33. Firstly, the mistake by the investigati ng judge caused no damage to the Republic of
Djibouti: neither the immunity from jurisdiction of President Guelleh, nor his dignity were called
into question by an inappropriately termed “witness summons”, which reflected no suspicion in
regard to the President and was not followed up. Nor, of course, could it be: contrary to what
Mr. van den Biesen claims 61, it goes without saying that there is no threat, not the slightest threat,
that the testimony requested under the “convocatio n” of 17 May could have been compulsorily
obtained:
⎯ there was never any question of this, and the wo rding of the document shows that this was
specifically not the intention of the investigating judge;
⎯ there was never any question of this, and nor could there have been; any attempt of that nature
would have been null and void, since only th e provisions of Article 656 of the Code of
Criminal Procedure are applicable.
34. Secondly, if France’s responsibility coul d have been engaged as a result of this ⎯ it
could not, but let us make the assu mption for the purposes of the debate ⎯ the investigating
judge’s retraction, immediately after the document at issue had been dispatched (the very next day,
59
CR 2008/1, p. 16, para 9 and CR 2008/3, p. 535, para. 2 (Doualeh).
60
“The Legal Position in International Law of Heads of States, Heads of Governms and Foreign Ministers”,
RCADI, 1994-III, 247, p. 41.
6CR 2008/1, p. 44, para. 35. - 29 -
36 remember), in a particularly clear and formal manner, would at least constitute amply sufficient
reparation. It is barely worth mentioning that satisfaction ⎯ which “may consist in an
62
acknowledgment of the breach” ⎯ is a method of reparation that is perfectly acceptable in
international law 63, something that the Djiboutian side appears to accept, moreover . That method
of reparation is particularly appropriate for “m oral” damage “arising from the very fact of the
breach of the obligation”, which would constitute the worst case here 65. I repeat, we do not believe
that France’s international responsibility could have been engaged by this episode, which has
caused no damage to the Applicant State (even though French law has not been fully complied
with). But, in the unlikely even that the Court were to take the opposite view, the recognition by
the Minister for Foreign Affairs that the Paris i nvestigating judge had made a mistake, should have
(and did) put an end to the dispute on that point. And that bring me to the third conclusion that
Djibouti’s application elicits on the matter.
35. Thirdly, and in any event, as France has demonstrated in its Counter-Memorial 66,
regardless of the improbable hypothesis which I ha ve just described, there is no reason for the
Court to rule on Djibouti’s request for the wit hdrawal or annulment of a request for testimony
which was never followed up and was immediately retracted by the Minister for Foreign Affairs.
However, we look at it, the (again, very contrived) dispute which Djibouti feels it must contest,
clearly exists no longer and the “[t]he present case [namely that episode] is one in which
‘circumstances that have... arisen render any adjudication devoid of purpose” ( Northern
Cameroons (Cameroon v. United Kingdom), Preliminary Objec tions, Judgment, I.C.J Reports
1963, p. 38; Nuclear Tests, Judgments, I.C.J Reports 1974, p. 271, para. 58 and p. 477, para. 61)
37 Let us not forget, Madam President that, according to the Court’s very wise words “[w]hile judicial
settlement may provide a path to international harmony in circumstances of conflict, it is none the
62
Art. 37(2) of the Articles of the ILO on Responsibility of States for internationally wrongful acts, annexed to
resolution 83/56 of the General Assembly of 12 Dec. 2001.
63
See Art. 34 and 37, ibid.
64See MD, PP. 64-65, paras 178-180; CR 2008/3, p. 32, para. 48 (van den Biesen).
65United Nations, Official Records of the General Assembly, Fifty-sixth Session, Supplement No. 10, Report of the
International Law Commission to the General Assembly, do c. A/56/10, commentary on Art. 37 (Report of the
International Law Commission, Fifty-third session, 2001, p. 263, para. (3) of the commentary); see also para. (4) of the
commentary.
66CMF, p. 53, para. 4.22. - 30 -
less true that the needless continuation of litigation is an obstacle to such harmony” (ibid.; see also
Northern Cameroons (Cameroon v. United Kingdom), Preliminary Objections, Judgment, I.C.J.
Reports 1963, p. 38).
36. Last but not least, I would reiterate that the Court does not have jurisdiction to entertain
that aspect of the case.
2. The invitation to testify of 14 February 2007
37. This consideration holds good a fortiori regarding the invitation to testify addressed to
President Guelleh on 14 February 2007.
38. This procedural act is not related to th e 2004 international letter rogatory, any more than
the one in 2005 ⎯ which is enough to leave the Court without jurisdiction over the Djiboutian
claims (which are somewhat unclear) in this conne ction. In addition, however, this is an act
subsequent to the Application, which therefor e obviously cannot be covered by the consent given
by France to the Court’s jurisdiction.
39. That being said, in contrast to the summons of 17May 2005, the invitation to testify
addressed to PresidentGuelleh on 14February 2007 by the investigating judge in the case on the
death of Bernard Borrel scrupulously obeys the provis ions of Article 656 of the Code of Criminal
Procedure, which I read before the break.
40. Firstly, it was requested “through the Minist er for Foreign Affairs”, as evidenced by the
letter from Mme. Clément to the Minister of Justice dated 14 February 2007 67.
41. And so:
⎯ on 15 February 2007 the Minister of Justice sent the request to his colleague in Foreign Affairs
68
(by a letter in which he referred expressly to Article 656 of the Code of Criminal Procedure ;
38 ⎯ on the same day the Director of the Private Office of the Minister for Foreign Affairs
communicated the request to the Diplomatic Advi ser to the President of the French Republic
for this to be transmitted to the President of Djibouti, who was attending a France-Africa
summit in Cannes; he also referred to Article 656;
67
CMF, Anns. XXXII and XXXIV.
6CMF, Ann. XXXII. - 31 -
⎯ on 16February the Minister for Foreign Affairs informed the Minister of Justice that
Mme. Sophie Clément’s request had been transm itted to the representatives of the President of
69
the Republic of Djibouti , and
⎯ on 19February he informed him that “the Djiboutian delegation has since confirmed that
70
President Guelleh does not intend to respond to this request” .
42. The invitation to testify addressed to Presi dent Guelleh on 14 February 2007 confirms in
all respects that France scrupulously observes the immunity enjoyed by foreign States, as illustrated
by Article656 of the Code of Criminal Procedure. This episode also shows that Mme.Clément,
guided by the 2005 precedent, fully intended to abide strictly by these rules: in her letter of
14 February in which she asks the Minister of Justice to make contact with the Minister for Foreign
Affairs “with a view to seeking the consent of Mr.IsmaëlOmarGuelleh”, she states that she
“wish[es] to obtain the testimony of [the latter]” 71. It is not possible to show greater deference.
43. Last Monday Mr. van den Biesen was wondering why this invitation had been addressed
to the President of Djibouti during a France-Africa conference held in Cannes. The other side’s
counsel could easily have answered the question ha d he not made the mistake that I pointed out a
few moments ago on the meaning of the word “written” in the text of Article656: of course the
statement envisaged by this provision is made in writing, but is received by a senior judge. It is
therefore natural and lawful for the investigating judge to address this request to him while he was
on French territory, and the Minister for Foreign Affa irs had no reason not to give effect to it. At
39 the same time, if I may say so, the Minister of Justice “dotted the i’s” by stating in a communiqué
issued the same day that “having regard to intern ational custom and the law, heads of State enjoy
the same immunities as diplomats and consequently cannot be compelled to testify in French legal
proceedings” 72.
44. The press communiqué the same day from the embassy of the Republic of Djibouti in
Paris says the same when it refers to “the immun ity from jurisdiction to which any head of State in
69Cf. CMF, Ann. XXXIII.
70
Ibid.
71CMF, Ann. XXXIV (emphasis added).
72Documents submitted to the Court by Djibouti on 21November 2007, Ann. 3; see also the dispatch of
14 February 2007, Ann. 2.3. - 32 -
73
office is entitled when travelling abroad” . Even if this communiqué might have been issued
somewhat hastily, because it states that the invitation to testify was not sent through the Ministry of
Foreign Affairs although this formality was observed in full, the fact remains that the embassy did
not dispute the possibility that a “summons” (the word used by the communiqué) could be
addressed “to a representative of a foreign State” when travelling in this way.
45. This is doubtless because it is apparent that Mr. van den Biesen, rather than disputing the
validity of the invitation to give evidence cont ained in the investigating judge’s letter of
14 February 2007, directed all his forces to an invitation to give evidence which he says “must have
existed” 74early in the afternoon of 1 February and allegedly did not meet the requirements of
Article656. There is no trace in the file of this phantom request, which exists only in the
imagination of Djibouti’s counsel, anxious to prove by all possible means that the episode of 2007
75
was “a clear repetition of the events that took place on 17 May 2005” . Had this been the case, the
“invitation” would again have been contrary to th e provisions of Article 656 of the French Code of
Criminal Procedure, but it would not have infringed the immunities or the dignity of
PresidentGuelleh. Anyway, this time the invita tion to testify of 14February 2007 cannot be
criticized in any way from the viewpoint of French law.
40 46. Since the Djiboutian head of State had declar ed that he did not wish to comply with this
request, there the matter rested. We are a long way from the “kind of judicial hounding of the
76
Republic of Djibouti” to which the latter refers in its Memorial .
47. The conclusions are self-evident, Madam President:
⎯ there has been no infringement of the immunities of the President of the Republic of Djibouti,
or of his dignity, of course, by an invitation to testify which he was entirely free to accept or
reject;
7Documents submitted to the Court by Djibouti on 21 November 2007, Ann. 1.
74
CR 2008/1, p. 48, para. 50.
7CR 2008/1, p. 47, para. 48; see also p. 49, para. 56.
7MD, p. 40, para. 99. - 33 -
⎯ this invitation, which was not accompanied by any compulsion or threat thereof conforms in all
respects to diplomatic customs and to the principles of international law applicable to the heads
of foreign States;
⎯ the refusal, which did not have to be justified and was not justified, by PresidentGuelleh to
give written testimony has closed the episode a nd any decision by the Court here on this point
is in any case without object;
⎯ in any event, Madam President, Members of th e Court, I say again that your honourable Court
has no jurisdiction to rule on Djibouti’s claims concerning it because the invitation to testify of
14February 2007 bears no relation to the subject of the Djiboutian Application in respect of
which France has agreed to appear before you, and furthermore is subsequent to that
Application.
II.PROCEDURAL ACTS REFERRING TO OTHER D JIBOUTIAN OFFICIALS
48. Madam President, in addition to its grievan ces, real or imaginary, over procedural acts
relating to PresidentGuelleh, the Republic of Djibouti asserts that France has flouted its
international obligations by summonses addressed to “high-ranking figures in Djibouti, and by
issuing international arrest warrants against the latter” 77, calling for these to be withdrawn and
78
cancelled .
49. I do not think that these requests relate to the “arrest warrants against two Djiboutian
citizens” of October 2006, which are mentioned in passing in the Memorial, doubtless to add
weight 79: these are private individuals who are entitled to no special protection under international
41
law and the other side does not claim that the issue of those warrants amounts to a breach of
France’s international obligations.
50. Similarly I do not think we should spend time on the invitation to testify issued on
2December 2004 to the Ambassador of Dji bouti in Paris by investigating judge
77MD, p. 67, Conclusions, para. 2.
78
Ibid., p. 68, para. 6.
79MD, p. 33, para. 78. - 34 -
BaudouinThouvenot as part of defamation proceedings following the filing of a civil action for
80
public defamation by Mrs. Borrel .
51. I can understand why the Republic of Dji bouti is formulating no submission in this
connection and I note that the lengthy catalogue of claims by Djibouti read by its Agent during the
hearings on Tuesday afternoon does not mention this episode.
52. The claims that remain for us to deal with are those that concluded the Memorial:
⎯ the summoning as legally represented witnesses of Messrs Hassan Saïd Khaireh and Ali Djama
Souleiman, which you can find, Madam President, Members of the Court, in Annex 11 of the
documents submitted to the Court on 21 November; and
⎯ the arrest warrants issued against the same persons by the Chambre d’instruction of the
Versailles Court of Appeal on 27September 2006; these, which had not been produced by
Djibouti to this Court, form Annexes VII and VIII to the French Counter-Memorial.
53. The witness summonses addressed to these tw o persons by Mr. Thierry Bellancourt, the
Vice-President of the Versailles Tribunal de grande instance and investigating judge in the
proceedings relating to the action for subornation of perjury filed by Mrs. Borrel in October 2002,
were transmitted to the persons concerned by the French Minister of Justice through his Djiboutian
81
opposite number , in accordance with the provisions of Articles13 and 14 of the Convention on
Mutual Assistance of 27 September 1986 ⎯ about which you have heard much on quite a different
subject.
42 54. Since the persons concerned did not comply with these summonses, the Chambre
d’instruction of the Versailles Court of Appeal, taking th e view that “there are... serious or
corroborative indications making it likely that [the persons concerned] may have participated in
committing the offence of subornation of perjur y”, by judgment dated 27September 2006 issued
arrest warrants against them and decided that th ese warrants should “also be executed in the form
82
of European arrest warrants” .
80
MD, Ann. 25. See CMF, pp. 6-7, paras. 1.13-1.14.
81
See MD, Ann. 30 and documents submitted to the C ourt by Djibouti on 21 November 2007, Anns. 11.1 and
11.2.
8CMF, Ann. VII. - 35 -
55. From the international law viewpoint these procedural acts raise the same questions and
call for the same comments.
56. And first, as I have just stated, these also are not related to the case about which the
investigating judge of the Djibouti Tribunal de grande instance issued an international letter
rogatory in November 2004. So I shall once again re fer merely in the alternative to the reasons of
substance, for which in any event these claims can only be rejected.
57. These are chiefly two in number:
⎯ firstly, the persons concerned are not entitled to special international protection by virtue of
their duties;
⎯ secondly, Djibouti cannot hide behind the breaches of the 1986Convention that it imputes to
France in order to evade (or help its nationa ls to evade) obligations derived from that
instrument.
1. The immunity from jurisdiction relied on by Djibouti for the benefit
of its nationals is inadmissible
58. According to the information given by the Republic of Djibouti, those concerned are
“respectively the State Prosecutor of the Republic of Djibouti and the Djiboutian Head of National
83
Security” . Contrary to what is asserted by our opponents, those duties are not of a kind to
exonerate those performing them from their obligati ons in criminal matters. And I must make it
unequivocally clear that it is obviously not enou gh that the Government of Djibouti should have
deemed it expedient to appoint one of the two pa rties concerned as agent, then counsel, of the
43 Republic of Djibouti before this Court for that appointment to confer on that person immunities
from which he cannot benefit as regards facts prior to that appointment. At the most,
Mr. Souleiman can rely on the immunities ne cessary to him to perform that mission ⎯ immunities
which France has always scrupulously respected itself and ensured are respected by others.
59. Having said this, there is no reason to gr ant a State prosecutor of the Republic or a head
of national security immunities from jurisdiction fo r ordinary crimes or offences. Seeking to
83
MD, p. 52, para. 138. - 36 -
establish the contrary, Djibouti, which deals with this question in its Application via paralipsis,
84
relied, in a short passage in its Memorial , on:
⎯ the 1973 Convention on the Prevention and Puni shment of Crimes against Internationally
Protected Persons;
⎯ the Judgment of this Court in the Arrest Warrant case; and
⎯ the 1961 Convention on Diplomatic Relations and the 1969 Convention on Special Missions.
However, none of these texts is of much help to it.
60. Madam President, the fascination which th e 1973Convention apparently holds for our
opponents is hard to understand. As I have already said, that Convention has strictly no connection
with the facts of our case and there seems to me little point in reverting to it ⎯ other than to note
that, in any event, the definition of the persons protected other than heads of State or government
and ministers for foreign affairs provides no pa rticular argument which might enable the two
interested parties to be included:
“For the purposes of this Convention:
1. “internationally protected person” means:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) any representative or official of a State... who... is entitled pursuant to
international law to special protection . . .”.
This is answering the question whether officials are entitled to special protection by the question
itself: it is they who are so entitled under international law. And this, you will agree, does not take
us very far.
44 61. The Judgment of the Court in the Arrest Warrant case is certainly more instructive, even
though your distinguished Court took care to explicitly state that it was only considering the
question of the immunity from criminal jurisdic tion “of a . . . Minister for Foreign Affairs” ( Arrest
Warrant of 11April2000 (Democratic Republic of the Congov. Belgium), Judgment, I.C.J.
Reports 2002, p. 21, para. 51), which, in customary law, is only granted immunities “to ensure the
effective performance of [his] functions on behalf of [his] respective State” 85. I am not going to
84
MD, pp. 51-52, paras. 137-138.
85
Ibid., p. 21, para. 53. - 37 -
read out paragraphs53 and 54 of your 2002 Judgmen t; they are reproduced in paragraph 4.31 of
the French Counter-Memorial. This is a most important passage ⎯ and one which broadly
explains the solution you adopted in that case, which turns upon the wholly “exogenous” character,
(originating outside) of the functions of a minister for foreign affairs. Patently, this is not the case
of a head of national security or of a prosecutor.
62. In an attempt to prove the contrary, Djibouti, on 21 November last, produced two sets of
documents “concerning the international functions” respectively of the Prosecutor of the Republic
of Djibouti and the Head of National Security of Djibouti. In both cases these are a somewhat
mixed bag of documents, comprising above all ⎯ besides certain more exotic documents ⎯
invitations abroad and various mission orders issued recently.
Just a few remarks here:
1. It is surprising to note a sudden, curious multiplication in the foreign missions contemplated by
the two Djiboutian officials in recent months. As regards Mr. Souleiman Ali, Djibouti issued a
86 87
mission order dating from 1999 , another in 2004 (to travel to France) , a third in
88
January 2006 ; and the four others are concentrat ed in the period between 19June and
7 November 2007 89. The documents produced in support of the assertion of the internation
al
nature of Mr.SaïdKhaireh’s functions are simila rly spread out in time. Both of them show
that, when preparing the written pleadings in th e present case, the Applicant noticed that it
45 could be important to establish the international na ture of the functions of these two officials.
And let no one tell us that these are examples taken at random or easier to find than other older
ones: the files of all States are replete with documents of this type and it would have been an
easy matter, for very capable counsel of Djibou ti, to make a more convincing selection if the
facts had come up to their expectations.
2. With reference more particularly to Mr. Saïd , I would point out that the organizational diagram
of the presidency of the Republic of Djibouti produced by Djibouti in November 90absolutely
8Documents submitted to the Court by Djibouti on 21 November 2007, Ann. 9.1.
8Ann. 9.2.
88
Ann. 9.3.
8Anns. 9.4-98.
9Ann. 10.1. - 38 -
does not show that his functions were essentially related to other countries. Moreover, Djibouti
expressly acknowledges that, “[w]ith respect to his functions, France is right to emphasize that,
91
like those of the Public Prosecutor they are ‘essentially internal’” .
3. Where Mr.Souleiman is concerned, ProfessorCondorelli also immediately conceded that
92
“[t]here is no denying... that hi s duties are ‘essentially internal’” . This limitation of his
international role fits in with the description of his functions, as shown by the texts instituting a
93
Prosecutor of the Republic which are quoted a nd analysed in the French Counter-Memorial .
Moreover, it is remarkable that, of the six documents produced, three concern Djibouti’s
representation at the Conference of States Parties to the ICC Statute. In general, with the
possible exception of one of them, which it must be acknowledged is really intuitu personae or,
rather, intuitu functionis (it is an invitation to attend the regional conference of the Associat
ion
of Prosecutors of Africa) 94, these invitations and missions are in no way linked to the function
of State Prosecutor performed by Mr. Souleiman: he was appointed for them (essentially after
the present dispute crystallized); any number of other Djiboutian officials could easily also
have been appointed. And,
46 4. if I may add a brief personal note, I can assure you, MadamPresident, that as professor and
public servant of the French Republic, I receive more invitations and make more trips abroad
than Messrs.Saïd and Souleiman put together ⎯ and yet, I fear I could not reasonably claim
the immunities they claim ⎯ unless I am wrongly arrested by the Dutch police when I have the
privilege of pleading before you . . .
63. This is because immunities are not granted to officials of the State simply because, in the
exercise of their functions, they may, fairly occasionally, or even regularly, have to make trips
abroad. This only applies if such immunities are indispensable to those missions being carried out
and provided they are inherent to the functions concerned. It is this reasonably restrictive ⎯ or
simply reasonable view ⎯ which is expressed by your Judgment of 2002, which stresses “the
9CR 2008/3, p. 13, para. 19.
92
CR 2008/3, p. 8, para. 7 (Condorelli quoting the CMF, p. 57, para. 4.32).
93
CMF, pp. 57-58, para. 4.32.
9Documents submitted to the Court by Djibouti on 21 November 2007, Ann. 9.4. - 39 -
nature of the functions exercised by a Minister for Foreign Affairs” ( Arrest Warrant of
11April2000 (Democratic Republic of the Congo v. Belgium), Judgment , I.C.J. Reports 2002 ,
p.21, para.53), who represents the State “solely by virtue of his or her office” ( ibid., p.22,
para. 53), which is clearly not the case either of a head of national security or State Prosecutor, to
whom it may fall to represent their State, but w ho must, in order to do so, be entrusted with a
special missions and present full powers ⎯ which also means that they may not represent the State
(in that the special missions with which they ma y be entrusted may just as well be performed by
others).
64. This is also why Djibouti’s reliance on the 1969 Convention on Special Missions 9, to
which, moreover, neither France nor Djibouti are parties, is equally unconvincing. As its name
indicates, a “special” mission is set up on an ad hoc basis in order to, in accordance with the
definition given in Article 1 (a) of the Convention, “[deal] . . . on specific questions or perform . . .
a specific task”. It consists of “representativ e[s] of the sending State” an expression which means
“any person on whom the sending State has conferred that capacity” 96 ⎯ which also means both
47 that anyone may have the status of representing the State in connection with a special mission
whenever the sending State so d ecides and informs the receiving State thereof and when the latter
does not object to it, and that no one enjoys this status, ipso facto, by virtue of his functions within
the State. Messrs.Saïd and Souleiman no more than anybody else. In consideration of which, if
Djibouti and a third State agree to use a special missi on “to deal with . . . [a] specific question” and
if the Republic of Djibouti decides to nominate either of the two persons concerned to it, it might
be agreed that the immunities laid down in Artic le 31 of the 1969 Convention would in any event
be opposable to the States parties to that Convention 97. But apart from the fact that, as I have said,
this is not the case either of France or Djibouti, it is , in any event, not in this way that the problem
is posed in this case, and it is therefore pointless to question the codifying character (or not) of this
provision: neither of the two persons concerned was arrested or threatened with arrest on the
occasion of a special mission.
95MD, p. 53, para. 139.
96
Art. 1 (e).
97CR 2008/3, p. 9,. para. 9 (Condorelli). - 40 -
65. It goes without saying that the 1961 Vienna Convention is not relevant either 98: neither
Colonel Saïd nor Mr. Souleiman are diplomats a nd the immunities laid down for diplomats are not
applicable to them.
66. It follows from all this that neither of the two leading figures concerned, by virtue of his
functions, enjoys the immunity from jurisdiction on which Djibouti relies and there was nothing to
prevent them being summoned as legally represented witnesses by the Ve rsailles investigating
judge, or to prevent the Chambre d’instruction of the Court of Appeal from issuing arrest warrants
against them following their refusal to answer that summons to appear.
67. Before concluding on this point, I must point out the curious argument by
ProfessorCondorelli according to which, if I have understood him properly, the pressures
concerned were brought to bear by the State Pr osecutor in the exercise of his official duties ⎯ or,
99
perhaps, in connection with a special mission the person concerned made to Brussels in 2002 ? In
any event, if such a “mission” was meant to pr ovide the person concerned with the protection of
48 certain immunities, that could only have been with respect to Belgium (if that country had agreed
100
to that mission ⎯ which there is serious reason to doubt), but in any case that would be without
effect vis-à-vis France, which was completely foreign to the “mission” in question.
68. As neither the exercise of the functions, nor the law applicable to special missions could
reasonably be relied on in support of the clai med immunities the person concerned supposedly
enjoyed in the context of the acts of which he is suspected and which earned him a summons to
appear as a legally represented witness by the inves tigating judge in Versailles, then an arrest
warrant, counsel of Djibouti doggedly takes anothe r tack. He questions the jurisdiction of the
French judge to investigate the case ⎯ the case, I would remind you, relating to subornation of
perjury and not the case concerning the causes of th e death of Bernard Borrel. Apart from its lack
of jurisdiction to rule on Djibouti’s submissions concerning this other case, it is clear that there is
no way in which the Court could be called upon to assess the scope of the jurisdiction of a national
court ⎯ at least, in such circumstances.
9Application, p. 9, para. 16; MD, p. 52, para. 139.
99
CR 2008/3, pp. 9-10, paras. 10-11 and p. 12, para. 17 (Condorelli).
10See Art. 2 of the Convention on Special Missions of 8 Dec. 1969. - 41 -
69. But even if, for the sake of the discussi on, we leave aside the manifest lack of
jurisdiction of this Court in this respect ⎯ which, moreover, counsel of Djibouti eventually
101
acknowledges ⎯ but only after having sought to sow doubt in peoples minds, a doubt I wish to
remove, it goes without saying that Mr. Condorelli’s arguments on this point cannot be accepted.
70. To begin with, he makes a show of indign ation at the alleged exercise of a “kind of
peculiar universal jurisdiction... which would en able a French criminal court to exercise its
authority to prosecute a foreigner accused of offen ces manifestly unrelated to international crimes,
which were allegedly committed abroad, against a victim, who was also foreign and was allegedly
102
implicated in events also said to have happened abroad!” . Shortly afterwards, Mr.Condorelli
made the same allegations about the suspected pressures on witnesses to which Mr.Saïd was
103
subjected . In both cases, this is a very poor way of posing the problem ⎯ and this way of doing
it takes hardly any note of the terribly painful human aspects of the present case. But in legal
49
terms, such an assertion cannot withstand examina tion of the conditions in which the Versailles
Tribunal was seised.
71. In this connection, it will suffice to r ecall that, on 19November 2002, Mrs.Borrel, a
French citizen, brought a civil action with the senior investigating judge of the Tribunal de grande
instance in Paris for subornation of perjury on the ground of the pressures allegedly brought to bear
on a certain Mr. Alhoumekani, to get him to wit hdraw the terms of his testimony implicating
Djiboutian dignitaries in the death of her husband, Bernard Borrel. Following the transfer of the
104
case ordered by the Cour de cassation , that case was investigated at the Tribunal de grande
instance in Versailles.
72. Articles 113-6 to 113-8 of the French Criminal Code lay down the jurisdiction of French
courts for every crime perpetrated abroad against a French victim ⎯ which is the case here ⎯ on
condition that the victim has filed an offi cial complaint with the French courts ⎯ as occurred also
10CR 2008/3, p. 12, para. 16 (Condorelli).
102
CR 2008/3, p. 10, para. 13 (Condorelli).e
103
CR 2008/3, pp. 13-14, para. 20 (Condorelli).
10CMF, Ann. VI. - 42 -
in this case. This has nothing to do with an y claim to exercise universal jurisdiction by the
Versailles Tribunal.
73. As regards the argument that the position of the French courts constitutes “an impressive
example of double standards” 10, on the pretext that an investigating judge in Paris, by an order not
106
to proceed of 7February 2002 , found that the French courts lacked jurisdiction to entertain a
civil action initiated by Messrs.Hassan Saïd a nd MahdiAhmedCheick for false testimony and
107
complicity , it is no more solidly established: ind eed, the plaintiffs, Djiboutian (not French)
nationals, reported facts committed abroad by one of their compatriots. This is not a case of double
standards ⎯ simply of different solutions to problems po sed in different terms. In the case of
MadamBorrel’s complaint, the French courts can base themselves on a title of jurisdiction linked
to the nationality of the victim, in the case of th e complaint of Messrs. Saïd and Cheick, the court
50
seised could not rule ⎯ without being accused (rightly this time) of exercising a universal
jurisdiction with no title as basis.
74. But in legal terms, the principal argument put forward by Professor Condorelli (which is
novel when compared with the arguments in the Me morial) is stranger still. It is based on the
principle that “any State must regard the acts of th e organ of a foreign State acting in an official
capacity as attributable to that State, and not to the person possessing the status of organ, who
cannot be held criminally liable for it as an individual” 108. In fact, by itself, there is nothing
extravagant about this proposition, and I would be careful not to contradict the authorities asserting
it, which my learned opponent quoted at length 109. What is debatable is not the principle; it is the
truly unacceptable consequences he draws from it ⎯ moreover, more by implication than
explicitly.
75. Hence, Madam President, the point of depart ure is that, when they act in an official
capacity, the organs of the State do not engage th eir own responsibility, but that of the State;
consequently their acts enjoy the immunities of the State. So far, no problem. And we are also
105CR 2008/3, p. 11, para. 13 (Condorelli).
106Ann. 8.2 to the documents filed in the Registry of the Court on 21 November 2007.
107
CR 2008/3, pp. 10-11, para. 13 (Condorelli).
108CR 2008/3, p. 12, para. 17; see also p. 14, para. 21 and p. 15, para. 23 (Condorelli).
109CR 2008/3, pp. 15-17, paras. 24-30 (Condorelli). - 43 -
agreed, still with Professor Condorelli, that on the other hand, outside certain organs or categories
of organs that can be counted on the fingers of one hand (head of State, minister for foreign affairs,
head of government and diplomats ⎯ to varying extents moreover), it is totally excluded “that it
can be claimed that persons enjoying the status of an organ of State, even of a high rank, benefit
from personal immunity (also known as ratione personae) in any way comparable to that which
110
international law accords to the highest organs of States!” . Where the shoe pinches is the “join”
between these two propositions.
76. For ProfessorCondorelli, while virtuously defending himself against the charge of
“heresy” consisting in granting absolute immuniti es to the organs of the State other than the
handful I have just mentioned, resolutely commits heresy in the facts. Although he recognizes that
these other organs ⎯ including the State Prosecutor and the Head of National Security of
111
51 Djibouti ⎯ enjoy not personal immunities (as Djiboutian claimed in its Memorial) , but only
112
functional immunities , my opponent in fact deprives the distinction of all effect: for him,
everything falls within the latter, for ev erything falls within official functions ⎯ including, it
would seem, subornation of perjury.
77. This cannot be the law ⎯ or rather, this cannot be the consequence of the just principles
enunciated on behalf of our opponents. There must be ⎯ and is ⎯ a difference between the
absolute immunities enjoyed by certain organs of the State (of which the State Prosecutor and Head
of National Security of Djibouti do not form part) and the functional immunities, which apply to all
the other organs. The difference resides in a “pre sumption”: in the case of an incumbent Head of
State (or Minister for Foreign Affairs) the “pr esumption of immunity” is absolute and probably
irrebuttable. It is covered by the immunities a nd that is all; on the other hand, where the other
officials of the State are concerned, that presu mption does not operate and the granting (or refusal
to grant) of immunities must be decided on a case-by-case basis, on the basis of all the elements in
the case. This supposes that it is for national courts to assess whether we are dealing with acts
performed ⎯ or not ⎯ in the context of official functions.
11CR 2008/3, p. 15, para. 23 (Condorelli).
111
MD, pp. 51-52, paras. 137-138.
11CR 2008/3, p. 15, para. 23 (Condorelli). - 44 -
78. Any argument to the contrary would be devastating and would signify that all an official,
regardless of his rank or functions , needs to do is assert that he was acting in the context of his
functions to escape any criminal prosecution in a foreign State. This defies reason and happily
does not correspond to the practice of States. To quote just one example taken from French case
law: the executive director of the merchant shippi ng directorate of the Malta Maritime Authority,
in this capacity responsible for delivering the flag, was personally indicted in the legal proceedings
opened following the sinking of the oil tanker Erika . His status as official in no way prevented
criminal proceedings being taken against him. And it was only after “normal” criminal
proceedings that the French Cour de cassation recognized the merits of his position that he was
“accused of acts of public power performed in the context of his duties on behalf and under the
52 control of the State of Malta”; consequently, the Cour de cassation ruled that he should, as agent
113
of the State, enjoy the immunity from criminal jurisdiction granted to foreign States .
79. In this case of subornation of perjury, there was obviously nothing to prevent ⎯ or
which now prevents ⎯ those concerned from invoking the immunities Djibouti now relies on in
their name before the French Criminal Court. But to do so, they must enable it to appraise their
arguments to this effect. Neither of the two has availed itself of those immunities ⎯ even by letter.
Admittedly, as I showed a few moments ago, the curious arguments put forward by
Professor Condorelli on this point are scarcely likely to convince judges. Instead of doing so, those
concerned have focused on the so-called non-reciprocity allegedly constituted by France’s conduct.
80. Madam President, it is highly paradoxical to note that the Applicant, which sets so much
store by full compliance with the 1986 Convent ion, openly breaches it where summonses of those
persons as legally represented witnesses are concer ned, since it refused to allow the witnesses
concerned to answer them.
81. Madam President, at the end of this statement, I think I have shown that the procedural
actions taken by France in connection with the various cases (which the Applicant wrongly
presents as a whole, when they concern completely separate cases) in no way infringed the
immunities or dignity of the Djiboutian officials concerned;
113
Chambre criminelle, 23 Nov. 2004, No. de pourvoi 04-84265, Bull. crim. 2004, No. 292, p. 1096 (available at
http://www.legifrance.gouv.fr). - 45 -
(1) the request to testify addressed to the Djibou tian Head of State in 2005 did not fall within the
provisions of Articles101 et seq. of the Code of Criminal Procedure and was obviously not
accompanied by any threat of enforcement; it had no repercussions and is not such as to form
the object of a legal decision by the Court;
(2) on the other hand, the invitation to testify a ddressed to President Guelleh in 2007 was perfectly
valid in form and substance and in keeping with diplomatic usage; th e refusal by the senior
official to whom it was addressed to answer it drew a line under that episode; all the same,
(3) France fully acknowledges the absolute principle of the immunity from criminal jurisdiction of
foreign heads of State;
53 (4) matters are different where Messrs. Saïd and Souleiman are concerned, whose functions in no
way justify the absolute, general immunity fr om jurisdiction invoked by Djibouti in their
favour; consequently,
(5) the summonses to testify as legally represente d witnesses which they did not answer and the
arrest warrants issued against them are not at odds with any international obligation of France;
on the other hand,
(6)by standing in the way of those persons testifying, the Republic of Djibouti violated the
international obligations incumbent upon it under the 1986 Convention on Mutual Assistance in
Criminal Matters;
(7) and lastly, I repeat, I am only formulating these conclusions in the alternative: these procedural
actions are not covered by the consent given by the French Republic to consideration of the
Application by the Court, which therefore does not have jurisdiction to entertain it.
With your permission, Madam President, I now tu rn, without any link, to the second part of
my presentation which, in fact, is a separate short pleading.
T HE LEGAL CONSEQUENCES OF THE ALLEGED WRONGFUL
ACTS OF THE FRENCH REPUBLIC
1. This last presentation of the first round on behalf of the French Republic will, one might
almost say “according to custom”, be given over to an examination of the consequences of the
alleged wrongful acts for which Djibouti holds France responsible. It must be said, however, that
there is a slightly “masochistic” element to this compulsory exercise: the Respondent, after having - 46 -
explained at length the reasons for which the grievances held against it are ill founded and the
engagement of its responsibility completely out of the question, now comes, in its last presentation,
to envisage the consequences of internationally wron gful acts of which it refutes the reality. It is
appropriate to do so, but it can only be in the alternative, “out of precaution”, in the entirely
unlikely perspective that you, Members of the Court, uphold a part of the argumentation which the
Republic of Djibouti has presented to you.
2. Moreover, in the present instance, Chapte r 5 of the Counter-Memorial of France analyses
in a fairly comprehensive manner the consequences which could ensue from the — hypothetical —
54 engagement of the responsibility of France in the present case 114and I must say that I did not notice
anything in the otherwise lengthy presentation by Mr. van den Biesen on the “remedies” requested
by Djibouti such as to make us alter our position. I would consequently be most unhappy with
myself if I were to inflict on you, Members of the Court, a long presentation, which could only be
of academic rather than practical interest. And it seems that I can confine myself to summarising
the concrete facts of the matter in the light of the elements presented on Tuesday afternoon by the
other Party.
3. Nonetheless, to do so I will follow a different pattern to that adopted by
Mr. van den Biesen. It seems highly artificial to address at the same time and in an undifferentiated
and vague manner all of the very numerous requests made by Djibouti such as they were expressed
in the submissions presented by its Agent at th e hearing on Tuesday. In particular, the same
“remedies” cannot be applied to th e alleged violation constituted by the refusal to comply with the
letter rogatory on the one hand and to the alleged violations of immunities on the other. Thus I will
address separately the submissions regarding the one matter and the other, while following more or
less the order of the submissions of the Republic of Djibouti (in their new version).
4. However, two caveats of a general nature need to be made clear:
⎯ first, submissions 1 and 2 are quite clearly rela ted to the refusal by France to comply with the
international letter rogatory of November2004 and those listed as numbers3 to 8 with the
114
CMF, pp. 63-72. - 47 -
issues of immunities, the three following submissi ons appear to me to be of a “transversal”
nature”;
⎯ second, I insist on reiterating in the strongest ma nner possible that the French Republic did not
give its consent to the Court to examine the issues relating to the immunities of Djiboutian
officials, which are not covered by the subject of the Application as defined by the applicant
State.
It goes without saying that I will not return to the issue of compensation, since Djibouti has now
officially withdrawn its submissions on the matter 115.
1. Djibouti’s submissions regarding the refusal to comply
55
with the international letter rogatory
5. MadamPresident, the Applicant’s submissions with respect to the letter rogatory have,
between the Memorial and the oral proceedings , become extremely complicated. The objective
remains unchanged: Djibouti asks the Court to enjoin France to transmit the “Borrel file”, but both
the reasoning for and method of such a handover have undergone “refinements”, which call for
brief commentary in both cases.
6. According to submission No.1, the Court is requested to adjudge and declare “that the
116
French Republic has violated its obligations under the 1986 Convention” . That is a submission
aimed at obtaining satisfaction and on the principle of which we have nothing more to say, if not,
of course, that we dispute its validity; however, I do not think that it is of interest to return to the
matter: it was the subject of Chapter 3 of our Counter-Memorial and of the entire presentation of
my friend and colleague Hervé Ascencio.
7. But it is what follows which is more dist urbing, as the Republic of Djibouti actually does
revisit the reasons (in the alternative) which s hould, in its opinion, prompt you to draw such
conclusions. Indeed, it asks you to conclude that France violated its obligations:
(i)by not acting upon its undertaking of 27January2005 to execute the letter rogatory
addressed to it by the Republic of Djibouti dated 3 November 2003;
115
CR 2008/3, p. 18, para. 2 (van den Biesen).
116
CR 2008/3, p. 36, para. 4.1 (Doualeh). - 48 -
(ii)in the alternative, by not performing its obligation pursuant to Article1 of the
aforementioned Convention following its wr ongful refusal given in the letter of
6 June 2005;
(iii) in the further alternative, by not perfo rming its obligation pursuant to Article1 of the
aforementioned Convention following its wr ongful refusal given in the letter of
117
31 May 2005;
118
In so doing, Djibouti definitely confuses the grounds and the submissions ; to use the formula
employed by the Court in the Fisheries case: “[t]hese are elements which might furnish reasons in
56 support of the Judgment, but cannot constitute the decision” ( Fisheries (United Kingdom v.
Norway), Judgment, I.C.J. Reports 1951, p. 126) 119.
8. Be that as it may, it is not of great importa nce, even if the Court has in the past warned
120
against the disadvantages of such confusion . However, the alternative reasons put forward by
the applicant State call for a number of comments:
121
⎯ as was demonstrated by Hervé Ascencio on Thursday afternoon , it is completely impossible
to speak of an “undertaking” in reference to the letter from the Principal Private Secretary to
the Minister of Justice to the Ambassador of Djibouti in Paris dated 27 January 2005 122, in any
respect as an undertaking to transmit the file, a decision which could only be taken by the
investigating judge; if there is any “undertaki ng”, it was only made by the author of the letter
with respect to speeding up the procedure; but that obligation of conduct cannot be viewed as a
promise regarding the result; the now principa l submission of the other Party cannot therefore
11Ibid.
11See CMF, p.13, para.2.19, and the cited jurisprude nce and the response of Djibouti in CR2008/2, p.27,
para. 16 (Condorelli).
11See also Minquiers and Ecrehos (France/United Kingdom), Judgment, I.C.J. Reports 1953, p. 52; Nottebohm
(Liechtenstein v. Guatemala), Second Phase, Judgment, I.C.J. Reports 1955, p. 16; Nuclear Tests (Australia v. France),
Judgment, I.C.J. Reports 1974, p. 262, para. 29; and Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court,
Judgment, I.C.J. Reports 1998, p. 449, para. 32.
12See Fisheries (United Kingdom v. Norway), Judgment, I.C.J. Reports 1951 , pp. 125-126. See also Temple of
Preah Vihear (Cambodia v. Thailand), Merits, Judgment, I.C.J. Reports 1962, p.32; and Right of Passage over Indian
Territory (Portugal v. India), Merits, Judgment, I.C.J. Reports 1960, p. 28.
12CR 2008/4, p. 55, para. 40.
12MD, Ann. 21. - 49 -
be upheld; the problem for Djibouti is that the reasons invoked to support its conclusions in the
alternative are not any more solidly founded;
⎯ they attest to an interesting incertitude and demonstrate that even the Applicant itself has
considerable difficulty in determining what coul d be the act giving rise to the internationally
wrongful act which it attributes to France: is it the letter of 6 June 2005 or that of 31 May 2005
(which incidentally it claims never to have re ceived— although it quoted the text of it in its
Application; in any event, the fact that it is referred to in its submissions runs counter to the
request that it be held as “non-existent” “for the purposes of the present case”)?123
⎯ further, if the Court were to hold that any one of those reasons was valid, quod non, it would
57 certainly not mean that it could or should order the French Republic to transmit all or part of
the “Borrel file” to the Republic of Djibouti.
9. And that brings me to the second of Dji bouti’s submissions which is aimed at precisely
that. But it seems to me that serious objections stand in the way of this request, both because, as a
general rule, it is not the function of the Court to issue orders to sovereign States and because, in
the present case, it would be in marked conflict with the spirit itself of the 1986Convention on
Mutual Assistance.
10. As the Court clearly indicated in a famous passage of the Judgment in the Northern
Cameroons case: “There are inherent limitations on the exercise of the judicial function which the
Court, as a court of justice, can never ignore.” ( Northern Cameroons (Cameroon v. United
Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 1963, p. 29.)
11. Among those limitations, the most fundament al is the one which prompts the Court to
refrain from issuing orders to sovereign States. As early as 1925, in the Mavrommatis Jerusalem
Concessions case, the Permanent Court of International Justice emphasized that “the fact that the
Court has been enabled to affirm the concessionaire’ s right to have his contracts readapted, cannot
give it the power itself to determine the method of such readaptation” ( Mavrommatis Jerusalem
Concessions, Judgment No. 5, 1925, P.C.I.J., Series A, No. 5, p. 50).
123
CR 2008/2, p. 34, para. 20 and p. 41, para. 45 (van den Biesen). - 50 -
12. The present Court has reiterated the principle of that position in, among others, the
Judgment in the LaGrand case: “the United States of America, by means of its own choosing, shall
allow the review and reconsideration of the conviction and sentence by taking account of the
violation of the rights set forth in that Convention” ( LaGrand (Germany v. United States of
America), Judgment, I.C.J. Reports 2001, p. 516, para. 128 (7); see also Avena and Other Mexican
Nationals (Mexico v. United States of America), Judgment, I.C.J. Reports2004 , p.62, para.31).
And you adopted a comparable position in the Arrest Warrant case ( Arrest Warrant of
11April2000 (Democratic Republic of the Congo v. Belgium), Judgment, I.C.J. Reports 2002 ,
p. 32, para. 76). Similarly, the European Court of Human Rights concluded very clearly that:
“[i]t is not the Court’s function to indicate which measures Ireland should take in this
connection; it is for the State concerned to choose the means to be utilised in its
124
58 domestic law for performance of its obligation under Article 53” .
In the present case, the Court is in even less of a position to act in place of the French Republic to
impose the precise consequences arising from its d ecision in that, to quote the terms of the
1951 Judgment in the Haya de la Torre case, the choice of the method of execution “could not be
based on legal considerations, but only on considerations of practi cability or political expediency;
it is not part of the Court’s judicial function to make such a choice” ( Haya de la Torre
(Colombia/Peru), Judgment, I.C.J. Reports 1951, p. 79).
13. These considerations of a general natu re are, in the present case, borne out and
strengthened by the very spirit of the 1986Convention on Mutual Assistance, which
ProfessorAscencio has demonstrated does not po sses the absolute and automatic character that
Djibouti would like to attribute to it. He has also shown that its drafting reflects, on the contrary,
the concern of the Parties to safeguard their respective sovereignty and to accord each other a
considerable power of appreciation which, and I say this with all the respect which I have for the
Court, I do not think could be s ubstituted by this Court. That is particularly apparent from the
drafting of Article 2, paragraphs (a) and (c).
124
Case of Johnston and Others v. Ireland, Judgment of 18December1986, Application No.9697/82, SeriesA
No. 112, para. 77. - 51 -
14. In any case, Madam President, and this is a point which is crucial to my mind, I have
great difficulty understanding how the other Party can establish as a principle at one and the same
time:
125
⎯ that the Borrel case is not the subject of the present proceedings ; and
⎯ that, nevertheless, the Court could order Fran ce to hand over the “Borrel file” to Djibouti,
without any knowledge of its contents.
There is nothing fortuitous in the central role attributed by the 1986Convention to the
judicial authorities by each of the contracting parties, nor to the exclusive role which French law
acknowledges for the investigating judge in ruling on international letters rogatory such as those
issued by the Djiboutian authorities in the presen t case: only those authorities are and only that
judge is, in theory, in possession of the record of investigation; only those authorities and that
judge have all the information necessary to enab le them to assess the possibilities for executing
59 such international letters roga tory. Without the complete documentation, any assessment will
necessarily be based on an incomplete apprecia tion which does not make it possible to take a
decision in full knowledge of the facts.
15. As for Djibouti’s submission requesting, in the alternative, that the “Borrel file” should
be transmitted “to the Republic of Djibouti within the terms and conditions determined by the
Court” 126, this presumably refers to the ⎯ very strange ⎯ “proposal” made by Mr. van den Biesen
whereby we could hand over to the Court the docum ents (two pages, he said) in respect of which
defence secrecy has been lifted, so as to enable it to assess whether or not their transmission would
127
be likely to prejudice the essential national interests of France . Without dwelling on the
unusualness of this suggestion, it seems to me th at this really changes nothing, and once again
comes down to asking the Court to substitute its own assessment for that of the investigating judge,
on the basis of documentation which will still be incomplete, whereas the domestic judge took her
decision on the basis of the case file as a whole.
12See MD, p. 10, para. 5 and p. 15, para. 20; CR 2008/1, p. 13, para. 3 (Doualeh).
126
CR 2008/3, p. 36, para. 4.2 (ii) (Doualeh).
12CR 2008/2, p. 51, para. 72 (van den Biesen). - 52 -
16. The order for execution requested by Djibouti being ruled out, and the Applicant having
abandoned seeking compensation for the damage it h as allegedly suffered, satisfaction would then
be the only means of providing reparation for this prejudice which, in any event, is certainly no
more than moral ⎯ if one accepts both that France’s c onduct constituted an internationally
wrongful act, quod non, and that it caused prejudice to the Applicant, quod non. If, by some
remote chance, the Court were to find that to be the case, France considers that, as the Republic of
Djibouti indicated in its Memorial, “the determ ination by the Court of the wrongfulness of the
conduct of the French Republic in this case will constitute appropriate satisfaction” 128.
17. Appropriate ⎯ and, to my mind, more than adequate ⎯ satisfaction. But Djibouti does
not stop there, and has no hesitation in requestin g further that the Court should decide “that the
French Republic shall cease its wrongful conduct a nd abide strictly by the obligations incumbent
on it in the future” ⎯ there is no problem with that ⎯ and that it “shall provide the Republic of
60 Djibouti with specific assurances and guarantees of non-repetition of the wrongful acts complained
129
of” . Of what kind? Mr.van den Biesen spelle d them out: France would firstly have to
undertake to apply the 1986 Convention in good faith in future; secondly, not to refuse requests for
judicial assistance for reasons other than those set out in Article 2; and lastly, even if such a reason
existed under Article2, to resolve the problem in accordance with the principle of good faith and
with the European guidelines laid down in the Joint Action adopted by the Council of the European
Union in 1998 on “good practice in mutual legal assistance in criminal matters” 130!
It does not seem helpful to me to dwell on the eccentricity of this last request ⎯ why on
earth should the Parties to this dispute have to appl y an internal text of the European Union? Not
only are these submissions as a whole somewhat offensive to my country ⎯ and ill-founded ⎯
they are also certainly not in keeping with the spirit of the guarantees of non-repetition whose
131
principles have been accepted by the Court , but which it has always applied with moderation and
discernment. The object of the guarantees sought by Djibouti is, no more and no less, that France
12MD, p. 65, para. 180.
129
CR 2008/3, p. 37, paras. 4.10-4.11 (Doualeh).
13CR 2008/3, pp. 25-26, paras. 26-28 (van den Biesen).
13Cf. LaGrand (Germany v. United States of America), Judgment , I.C.J. Reports 2001, pp.512-514,
paras. 123-125. - 53 -
should undertake to apply in good faith the Convention on Mutual Assistance which it concluded
with Djibouti in 1986. However, Madam President , the simple fact that France ratified it is
sufficient to establish that it undertook to comply with its provisions. Such a submission reflects a
worrying abuse of the concept of guarantees of non-repetition. Furthermore, I have the gravest
doubts as to whether ⎯ even if the violation of the Conve ntion relied upon by Djibouti were to be
established, because of the non-transmission of the Borrel file ⎯ that single violation, which could
only result from a misapplication of Article 2 (c), would be likely to justify a request for guarantees
of non-repetition. As far as I am aware, with this one exception, France has never refused to
execute a request for mutual assistance from Djibouti. In any event, it seems to me absurd that the
Court should be called upon to declare in the operative part of its judgment that pacta sunt
servanda ⎯ but that it is what the opposing Party is asking it to do.
61 II.D JIBOUTI S SUBMISSIONS REGARDING THE ALLEGED VIOLATIONS
OF THE IMMUNITIES OF D JIBOUTIAN OFFICIALS
18. Madam President, the Applicant’s submissi ons Nos.3 to 8 seek to draw conclusions
from the alleged attacks on the immunities, honour a nd dignity of the President of the Republic of
Djibouti and on the person, freedom and honour of the Public Prosecutor and the Head of National
132
Security of Djibouti . I shall comment only very briefly on these lengthy submissions, even if it
means returning to them next Tuesday, should the need arise.
19. Submissions Nos. 3 to 5 concern the invitations to testify addressed to President Guelleh.
They call for the following comments, in telegraphic style:
(1) even though neither invitation is an attack on the dignity of the Djiboutian Head of State, a
careful distinction should be made between th e invitation, or “summons”, of 17May 2005
(which did not comply with the procedures laid down by Article656 of the French Code of
Criminal Procedure) and that of 14 February 2007;
(2) the first, in 2005, has been the subjectof an apology from the French authorities ⎯ which in
itself would be a form of reparation, if an internationally wrongful act had been involved;
moreover, this procedural document is in any case obsolete and there would be no point in
132
CR 2008/3, pp. 36-37 (Doualeh). - 54 -
“declar[ing] it null and void”, if only becau se, even though it has not been formally
“withdrawn”, it is null and void in the eyes of the French law, and was in any event replaced by
the invitation to testify of 14 February 2007;
(3) the latter, addressed properly and with all the necessary respect to President Guelleh, was not in
any way an attack on his honour or dignity, and his refusal to respond to it drew a line under
the episode; I would add that
(4) there is a free press in my country and, even if one may perhaps regret some of the reporting of
these procedural steps in the media, that does not engage France’s responsibility, in accordance
with the well-established principle of internati onal law whereby the State is never responsible
for the actions of individuals.
20. As regards the submissions concerning the State Prosecutor of Djibouti (I would recall
that, at the time of the events, he had not yet been appointed Public Prosecutor) and the Head of
62 National Security, we do not dispute that, on the basis of what the Court decided in the Arrest
Warrant case, it could take the view that France is obliged to declare “null and void” not the
summonses for them to attend as témoins assistés [legally represented witnesses], but the arrest
warrants issued against them be cause they had not responded to those summonses. For that,
however, the Court would have to find either th at these were internationally protected persons ⎯
which Djibouti no longer seems to be claiming ⎯ or that the subornation of perjury of which they
are not accused (they fully benefit from the presumption of innocence), but suspected, fell within
the exercise of their functions; however, since it is established that they do not enjoy the
immunities which they are claiming by virtue of their offices, such a finding can only be made by a
French judge, on the basis of the evidence put before him.
21. Madam President, Members of the Court, these brief remarks bring to an end the first
round of France’s oral argument, since as I indicat ed at the beginning of the sitting, we did not
think it necessary to use the half of this afternoon which was also available for the first round. I am
grateful for the few extra minutes which you have allowed me. Thank you for your attention, and I
wish you all an excellent weekend. - 55 -
The PRESIDENT: Thank you, Professor Pellet.
The Court notes that the French Government has thus completed its first round of oral
argument this morning. The Court will therefore not hold a sitting this afternoon at 3 p.m., as was
initially scheduled.
I am now going to put a question to France, before giving the floor to Judges Koroma,
Simma and Bennouna and Judge ad hoc Guillaume, who also have questions to put to the Parties.
Here is my question. Ce matin, le conse il a indiqué que la République française n’avait
aucun moyen de savoir si la lettre du 31 mai 2005 adressée à l’ambassadeu r de Djibouti par le
directeur des affaires criminelles et des grâces avait jamais été reçue.
La République française garde-t-elle trace des lettres qu’elle adresse à des représentants
d’autres Etats ? Si tel est le cas, le document en question pourrait-il être présenté à la Cour?
63 I now give the floor to Judge Koroma. Judge Koroma.
Le JUGE KOROMA: Je vous remercie, Madame le président. Dans sa requête introductive
d’instance, la République de Djibouti a prié la C our de dire et juger que la république française
était juridiquement tenue d’exécuter la commiss ion rogatoire internationale concernant la
transmission aux autorités judicaires djiboutiennes du dossier relatif à la procédure d’information
ouverte dans l’«Affaire contre X du chef d’assassinat sur la personne de Bernard Borrel» et que les
autorités françaises devaient immédiatement remettr e le dossier aux autorités djiboutiennes. La
République de Djibouti pourrait-elle davantage préciser le but de la commission rogatoire ? Merci.
Le PRESIDENT : Je vous remercie, Monsieur le juge Koroma. Judge Simma, you have the
floor.
Judge SIMMA: Thank you, Madam President. I should like to put the following question to
France. Article17 of the Convention of 27 September 1986 on Mutual Assistance in Criminal
Matters between Djibouti and France provides: “Reas ons shall be given for any refusal of mutual
assistance”. - 56 -
What is the practice of France with regard to the obligation to provide reasons for a refusal to
comply with requests that are based on treaty clauses corresponding to Article3 of the said
Convention? Could France provide the Court with examples of its practice in this regard?
Is France’s practice relating to this obligation applied to Member States and non-Member
States of the European Union in the same manner? Thank you.
The PRESIDENT: Thank you. Judge Bennouna, you have the floor.
Judge BENNOUNA: Thank you, Madam President . My question is to the Republic of
Djibouti and is as follows. The Republic of Djibouti requested in the alternative on
22 January 2008 that “the French Republic shall i mmediately after the delivery of the Judgment by
the Court . . . transmit the “Borrel file” to the Republic of Djibouti within the terms and conditions
64 determined by the Court” (CR2008/3, p.36). Can the Republic of Djibouti explain what
conditions, in its view, the Court might attach to this transmission? Thank you.
The PRESIDENT: Thank you. Mr. Guillaume, you have the floor.
Judge GUILLAUME: Thank you, Madam Presi dent. My question is as follows. In
paragraph 146 of its Memorial, the Republic of Djibouti cites a letter from the investigating judge,
Mrs. Sophie Clément, dated 11 February 2005. Could we have a copy of that letter? Thank you,
Madam President.
The PRESIDENT: Thank you very much. The texts of these questions will be transmitted
to the Parties in writing as soon as possible. The Court would be grateful if the Parties could reply
to these questions during the second round of oral argument.
That brings today’s sitting to an end. Th e hearings will resume on Monday 28January at
10 a.m. with the second round of oral argument of the Republic of Djibouti. Djibouti will present
its final submissions at the end of the sitting. I would recall that the French Republic will take the
floor on Tuesday 29 January at 3 p.m. for its second round of oral argument. France will present its
final submissions at the end of that sitting. Each of the Parties will have a session of three hours
available to it. - 57 -
The purpose of this second round of oral argument is to enable each of the Parties to reply to
the arguments advanced orally by the other Part y. The second round must therefore not constitute
a repetition of statements made earlier by the Parties, which are also not obliged to avail
themselves of the entire time allocated to them.
Thank you very much, and the sitting is closed.
The Court rose at 1.15 p.m.
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