Non Corrigé Traduction
Uncorrected Translation
CR 2010/3 (traduction)
CR 2010/3 (translation)
Lundi 26 avril 2010 à 10 heures
Monday 26 April 2010 at 10 a.m. - 2 -
8 The VICE-PRESIDENT, Acting President: Please be seated. The hearing can at last be
opened. The Court meets today to hear the first round of oral argument of the Democratic Republic
of the Congo, in accordance with the reorganized schedule resulting from the difficulties in the air
transport sector following the volcanic eruption in Iceland.
I would like to say at the outset that, for compelling reasons, the President is unable to sit in
the case this week. Pursuant to Article13 of th e Rules of Court, it therefore falls to me, as
Vice-President of the Court, to preside in this case so long as the President is unable to sit.
Judge Koroma has informed the President that he is recusing himself from the case.
Furthermore, for reasons duly explained to me, J udgeAbraham is unable to participate in today’s
sitting.
I now give the floor to the Co-Agent of the Democratic Republic of the Congo,
Mr. Tshibangu Kalala. You have the floor, Mr. Kalala.
Mr. KALALA: Mr. President, Members of the Court, the Agent of the Democratic Republic
of the Congo is unable, for professional reasons, to be present at today’s hearing. He has therefore
charged me with reading the speech which he woul d have made to the Court had he been here
himself.
Mr. President, Members of the Court, I have the honour today of speaking on behalf of my
country before the highest international court, following the complaint brought by the Republic of
Guinea on the basis of the diplomatic prot ection which it believes it should grant to
Mr. Ahmadou Sadio Diallo.
Before anything else, however, I should like to perform a pleasant duty, that of gratefully
acknowledging the Court’s decision, at the request of my country and at the eleventh hour, to
reorganize the schedule of hearings so as to enab le the Democratic Republic of the Congo defence
team, trapped in that country by the closure of European airspace for reasons known to all of us, to
appear before the Court and to present a proper defence of the interests of the DRC.
9 Please allow me by means of my speech to e xpress appreciation, coupled with great respect
on the part of my Government, for this demonstr ation of the importance which the Court attaches
to the sacrosanct principles of fairness. - 3 -
The Democratic Republic of the Congo also acknowledges, at the same time, the Republic of
Guinea’s gracious response to the Court’s consu ltation on our request for rearrangement of the
schedule, notwithstanding the one small cloud on th e clear horizon of the relations happily existing
between our two countries, as noted by Mr.Mohame dCamara. Our gratitude is all the greater
because we are aware of the inconvenience and disturbance which such a deferral has no doubt
caused.
At this stage, allow me just for one moment, Mr. President, Members of the Court, to explain
that the Democratic Republic of the Congo, which I am proud to represent here, is not a rogue state
as depicted in the sinister portrayal by the other Party. My country is a hospitable one chosen by
many foreigners as their second homeland. They live there peaceably, complying with the laws
and regulations laid down by the authorities. They create wealth. Some of them even buy vaults so
that they can be buried there. Proof of this is the fact that Mr. Ahmadou Sadio Diallo himself, who
came to the country at the age of 17, lived there for over 30 years.
I can take the liberty of saying that he knows my country better than his own. He clearly
would not have spent all that time there had our country been the one of which Guinea now paints
so black a picture. The principle of equality for all before the law is guara nteed in my country for
everyone, without distinction based on sex or race and even less on nationality.
Is not the fact that Mr.Sadio was able to amass all his purported wealth eloquent proof,
Mr.President, that he felt more comfortable there than at home? And if it is the case, moreover,
that Mr. Ahmadou Sadio Diallo was expelled on the orders of the Prime Minister, one must believe
that there were sufficiently serious grounds which prompted that man of the law to take such an
unusual and serious decision. Because, Mr. President , decisions of that kind are extremely rare in
the DRC, and each time this has occurred, th e legal procedure has always been followed
scrupulously, allowing the facts to be easily traced.
10 The DRC also regrets that Guinea, a brother country and friend, did not, at a preliminary
stage, in line with custom and practice and with African ways of doing things, see fit to seek an
amicable settlement before bringing proceedings before this esteemed Court.
duchussions à deux between States would without the slightest doubt, Mr.President,
have enabled Mr. Diallo’s murky dealings to have been revealed. Guinea would not have allowed - 4 -
itself to be used by this individual. Lastly, please allow me, Mr. President, to use this opportunity
to acknowledge the patriotism of our lawyers, who have not faltered in the face of the difficulties
our country is experiencing. They have met deadlin es even though not able to work under the best
of circumstances.
It is worth noting, indeed, that this case began at a time of serious crises in our country’s
history.
With your consent, Mr.President, Members of the Court, I now give the floor to the
Co-Agent of the DRC who will present our country’s oral argument, and I thank you,
Mr. President, for giving me your attention.
Now, Mr. President, Members of the Court, I would ask you to allow me once again to take
the floor.
The VICE-PRESIDENT, Acting President: Pleas e take the floor and continue, Mr.Kalala,
this time presenting your oral argument on behof your country. I understand that you have
given an opening speech on behalf of the Agent. You now have the floor as Co-Agent and Counsel
and Advocate, representing your country before the Court. You have the floor.
Mr.KALALA: Thank you very much, Mr.President. I now return to being myself, and
therefore Counsel. Thank you.
THE D EMOCRATIC R EPUBLIC OF THE C ONGO HAS NOT VIOLATED THE
INDIVIDUAL RIGHTS OF M R. HMADOU SADIO DIALLO AS A PERSON
1. Mr.President, Members of the Court, I would like first of all to express my immense
pleasure at appearing for the third time befothis prestigious Court to defend my country’s
interests. It is a rare privilege for a teinternational law to plead before this, the principal
11 judicial organ of the United Nations, thereby combining the theory and practice of international
law. I am deeply grateful to the Congolese Gove rnment for the honour it does me and for the trust
it has placed in my humble self to defend the interests of our country in this important case between
it and the Republic of Guinea.
Before embarking on my argument on the merits of the case, I must not miss this
opportunity, Mr.President, in my personal capac, to express my sincere thanks to the Court - 5 -
which, following the unkind and untimely intervention of the Icelandic volcano in the normal
course of the proceedings, made a wise and just decision by rearranging the schedule of the
hearings, urgently and at the very last moment, to meet my country’s request so that it could
present its defence in the best possible circumstance s. That decision of the Court, Mr.President,
merely further increases the trust which the Democr atic Republic of the Congo has always placed
in it as the ultimate embodiment of justice anywhere throughout humanity.
2. Mr. President, Members of the Court, in the words of the operative part of its Judgment on
preliminary objections delivered on 24 May 2007, the Court held as follows:
“(3) (a) Declares the Application of the Republic of Guinea to be admissible in so far
as it concerns protection of Mr. Diallo’s rights as an individual;
(b)Declares the Application of the Republic of Guinea to be admissible in so far
as it concerns protection of Mr.Diallo’s direct rights as associé in
Africom-Zaire and Africontainers-Zaire.” ( Ahmadou Sadio Diallo (Republic
of Guinea v. Democratic Republic of the Congo), Preliminary Objections,
Judgment, I.C.J. Reports 2007, p. 618, para. (3) of the operative part.)
It is only these two clearly defined issues which the Court confirmed and referred for argument on
the merits of the dispute between the two Parti es. In these oral proceedings, therefore, the
Democratic Republic of the Congo (hereinafter “the DRC”) will focus solely on these two
questions. During this morning’s presentation, then, I am going to address the first issue of the
alleged violations of Mr.Diallo ’s individual rights as a person. The second question concerning
the alleged violations of . iallo’s direct rights as associé in Africom-Zaire and
Africontainers-Zaire will be examined this afternoon.
12
I.T HE DRC DID NOT COMMIT INTERNATIONALLY WRONGFUL ACTS
WHEN M R. DIALLO WAS ARRESTED AND DETAINED
3. Mr.President, Members of the Court, Guinea, espousing the cause of its national
Mr.Diallo, accused the DRC in its Memorial filed with the Court of committing internationally
wrongful acts at the time of Mr.Diallo’s a rrest and expulsion in 1995-1996 and of thereby
violating the individual rights of the party concerned as a natural person. It also asserts in its Reply
that Mr. Diallo’s arrest and detention in 1988, 22 years ago, were internationally wrongful acts. In
its closing submission, Guinea asks the Court to find that the DRC breached its international
obligations when those acts were committed. I sh all therefore answer t hose accusations, starting - 6 -
with Mr. Diallo’s arrest and detention in 1988 (B) and then dealing with the arrests and detentions
which took place in 1995-1996 (C). Before that, however, Mr.President, I shall say something
about the arrest and detention of Mr. Diallo which took place much earlier, in 1983 (A) — an arrest
and a detention which Guinea and Messrs.Forteau and Thouvenin have p assed over in complete
silence, without any explanation whatsoever. Mr.President, Members of the Court, you will
understand very soon the reasons for that extraord inary and unaccustomed silence on the part of
Guinea.
A. Mr. Diallo’s arrest and detention in 1983
4. Mr. President, Members of the Court, the Applicant has submitted to the Court in its case
file Annexes 18 and 208 included in Volume II of its Memorial. In these documents, dating from
1984, 26years ago, we read that Mr.Diallo, the chairman and chief execu tive of two companies,
headed a team of 120 including nine executives, “a ll Zaireans”. All except his gorgeous secretary,
who was West Indian, and a Guinean, Balde, whose strategic role was to tone down his employer’s
“extravagances” from time to time. For the boss had fits of inspiration. The documents—
documents submitted by Guinea itself— show that Mr.Diallo, boss though he was, drove a
Citroen with no brake pads or e xhaust pipe. Mr.President, Members of the Court, one has to
concede that this is a curious paradox in a supposedly highly prosperous Guinean millionaire whom
Mr.Vidal portrayed in glowing terms in his oral argument last Monday, and whom Guinea has
13 presented to the Court as having been dispossessed by the DRC. I shall return to look in detail at
Mr. Diallo’s true fortune in my presentation this afternoon.
5. I shall pursue my argument because we are coming to the most important points,
Mr.President. Again according to the documents, AhmadouSadioDiallo, a confirmed bachelor,
lived alone with his cook Moussa, whose misadventure cost his boss a month in prison during the
last quarter of 1983. A native of Burkina Faso, Moussa had been stopped by the police because his
residence papers were not in order. He wa s then imprisoned before being notified of his
deportation. Diallo-Cravates, his employer, tried to buy him an air ticket to return to Ouagadougou
by signing a cheque for 10,000 zaires at the request of the Zairean prison warden. Diallo then also
found himself behind bars for “attempted bribery of an official”. Whether this was true or false, we - 7 -
shall never know. It was the case, however, that a number of high-profile Guineans in Kinshasa
were involved in diamond trafficking which came to light in 1983 at Ngobila Beach, by the river
port (between Kinshasa and Brazzaville).
The documents detail further that Diallo did not invest in his own country, Guinea. That is
what many of his compatriots held against him af ter his expulsion. It should be borne in mind —
and this is important, Mr.Pr esident, Members of the Court ⎯ that this was because the Guinean
Embassy in Kinshasa, by dragging his name through the mud, had led him to disown his
nationality. Mr.Diallo did not have peaceful re lations with the Guinean Embassy in Kinshasa,
which was constantly — to cite the expression u sed in the documents produced by Guinea itself —
“causing him problems”; testifying to this, the newspaper Jeune Afrique Economie of
16February1984 subtitled an article on Dial lo-Cravates “As a Guinean or Zairean?”.
Senen Andriamirado wrote: “Is Diallo-Cravates free? Not completely. The Embassy of Guinea in
Kinshasa has withdrawn his passport. Since wh ich he has been doing his damndest to obtain
Zairean nationality.” Diallo told the paper: “I have always been Guinean, but Guinea wants
nothing more to do with me. I want to carry on working — just that. But as a Zairean this time.”
In another interview given to a Conakry newspa per after his expulsion, Diallo stated that:
“the [Congolese] police officer who arrested me [in 1983] was in cahoots with Guineans in
Kinshasa who were plotting against me. They ar e jealous of my success, as personally, I have
14 never been involved in politics, on either side...” In that document, Diallo recounted his
altercations with the Guinean Ambassador in Kins hasa, Mrs. Fatou Diarra, who allegedly tried to
poison him by offering him poisoned orange juice at her residence.
6. Mr.President, Members of the Court, the passages I have just cited are taken from
documents included in the case file by Guinea itself. Furthermore, on page11 of its Memorial,
1
Guinea confirms some of the facts I have just me ntioned. In line with your case law on evidence ,
since those documents were produced by the Party against whom they are being used, they must be
given their full probative value. It is thus establis hed, Mr. President, that Mr. Diallo was arrested
and detained in Kinshasa for a month in 1983 for attempted bribery of an official, that he had poor
1See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), Merits, Judgment, I.C.J. Reports 1986, p. 41, para. 64. - 8 -
relations with the Guineans in Kinshasa, including with the Guinean Ambassador, and that he was
trying to give up his Guinean nationality in order to acquire Congolese nationality because, in his
own words, Guinea wanted nothing more to do with him. It is easy to see, Mr. President, the kind
of life that Mr.Diallo led in Kinshasa, and his quality of life. If there was a country which was
giving Diallo a hard time, it was Guinea and not the DRC, whose nationality he was seeking to
acquire. Mr.President, you will understand why Gu inea’s counsel did not dare, either in the
Applicant’s written pleadings or in their oral argum ent, to invoke Mr. Diallo’s arrest and detention
in 1983. It is quite simply because the situa tion is a very awkward one for Guinea and for its
counsel who successively appeared before you last Monday. Mr. President, Members of the Court,
there must be a stop to presenting the DRC to the Court as a country which has done nothing but
harm to Mr.Diallo, to the point of dispossessing him of his property. There must be a stop to
presenting Mr. Diallo as a flourishing multimillionaire who was living an opulent life in the DRC
and was dispossessed by the Congolese State. I ha ve read some completely unacceptable things
about Mr.Diallo in my opponents’ statements. Mr .President, the reality is quite different, and I
shall return to this point at length in my pr esentation this afternoon. I shall now broach the
question of Mr. Diallo’s arrest and detention in 1988, which appear to suit Guinea’s purposes.
15 B. Mr. Diallo’s arrest and detention in 1988-1989
7. Mr.President, Members of the Court, in its Reply of 19November2008 2, the Applicant
for the very first time accused the Respondent of violating Mr. Diallo’s individual rights at the time
of his arrest and his detention in 1988-1989. The DRC replied amply to that accusation in its
3
Rejoinder of 5 June 2009 . I stand by the DRC’s response on this issue, and to avoid unnecessary
repetition will not return to it in detail here. I would therefore ask the Court to refer to the
Rejoinder.
8. I would take the liberty of pointing out, however, that the Rules of Court provide as
follows, in Article 38, paragraph 2:
“The application shall specify as far as possible the legal grounds upon which
the jurisdiction of the Court is said to be b ased; it shall also specify the precise nature
2
See the Reply of Guinea (RG), p. 6.
3
See the Rejoinder of the DRC (RDRC), pp. 5-12. - 9 -
of the claim, together with a succinct statement of the facts and grounds on which the
4
claim is based.”
On that basis, the DRC raised the issue that the Applicant had not indicated either in its Application
or its Memorial the facts and grounds concerning Mr.Diallo’s arrest and his detention from
20January 1988 to 28January 1989, and that this therefore constituted a new claim made out of
time to the Court by Guinea by means of its Reply of 19November2008, that is to say,
Mr. President, Members of the Court, 20 years after the facts in question, ten years after the filing
of the Application and eight years after the f iling of the Memorial. The Respondent asked the
Court to reject this new allegation by Guinea as a new claim having no link to or connection with
the main claim concerning the events of 1995-1996, and which was submitted to the Court at a late
stage of the proceedings. Further, because it is a new claim, the DRC is entitled to raise
preliminary objections concerning the Court’s juri sdiction and the admissibility of the claim, in
particular the defence of non-exhaustion of local remedies in respect of th ese facts, which occurred
several years ⎯ several years, I would emphasize, Mr. President ⎯ before Mr. Diallo’s expulsion.
16 9. Professor Thouvenin, whom I respect and admire greatly, offered no substantial or
5
convincing thesis on the issue in his oral argument last Monday . I therefore cannot but reproach
the legal strategy used by ProfessorThouvenin, consisting of hiding behind the Judgment on
preliminary objections of 24May2007, instead of demonstrating that Guinea had both in its
Application and in its Memorial set out the facts and grounds in respect of the claim concerning
Mr.Diallo’s arrest and detention in 1988-1989. ProfessorThouvenin’s line of argument on this
point suggests that he has himself secretly amended the Rules of Court, so as to stipulate that it is in
a judgment of the Court and not in the applica tion instituting proceedings, and in the memorial
which expands on that application, that the applicant must state the facts and grounds on which its
claim is based. I think, Mr. President, Members of the Court, that Professor Thouvenin himself is
not convinced by his reasoning and that he propounded it before the Court merely for amusement.
10. The reality is that Guinea did not, either in its Application instituting proceedings of
28 December 1998 or in its Memorial on the merits of the dispute of 23 March 2001, state the facts
and grounds concerning Mr. Diallo’s arrest and detention in 1988-1989. That was done only in its
4
Rules of Court (1978) as amended on 5 Dec. 2000, ed. 2000, p. 118.
5
CR 2010/1, pp. 30-31 (Thouvenin). - 10 -
Reply of 19 November 2008. The Court therefore ca nnot entertain a claim ma de for the first time
at such a stage in the proceedings. The claim should quite simply be dismissed by the Court
because it is out of time.
11. For information, Mr. President, I would point out that the fact that Mr. Diallo’s arrest and
detention in 1988-1989 were lawful and procedur ally correct was amply demonstrated in our
Rejoinder 6. In order to avoid unnecessary repetition, I shall not revisit the Rejoinder here. I would
therefore ask the Court to refer to it. I would merely note that ProfessorThouvenin has turned a
blind eye to the letter from Mr.LouncenyKouy ate, counsellor at the Guinean Embassy in
Kinshasa, to the Guinean Government in Conakry, dated 3 February 1988, that is to say, around a
week after Mr. Diallo’s arrest, in which he stated that Mr. Diallo had been arrested and detained for
embezzlement and that he had been taken to the Prosecutor’s Office in Kinshasa for the purposes of
17
interrogation. Mr. President, this appears clearly, in black and white, in the letter from the Guinean
diplomat. Mr.President, Members of the Court, you will find a transcription of the letter on
pages17 and18 of Guinea’s Observations of 3Ju ly2003 on the Preliminary Objections of the
DRC. Despite this irrefutable evidence produced by Guinea itself, ProfessorThouvenin
nevertheless continued to state in his oral argume nt that Mr.Diallo had never been arrested and
detained in connection with a judicial investig ation, and that he had never been accused of
embezzlement, whereas in fact the Guinean State itself has acknowledged that he had.
12. In these circumstances, Mr.President, if the fact that Mr.Diallo was taken to the
Prosecutor’s Office in Kinshasa was not as part of a judicial investigation against him by the
Congolese justice system, I would then ask Guinea whether the Prosecutor’s Office in Kinshasa,
where, according to Guinea itself, Mr.Diallo had been taken in 1988 before being transferred to
prison, was a garage to which he had gone to have repairs done to his Citroen with no brake pads or
exhaust pipe, or whether the Prosecutor’s Office wa s a restaurant where he had gone to entertain
his customers?
13. Guinea also expresses surprise that Mr. Diallo spent a year of his life in pre-trial
detention. I am not going to describe here, Mr. Pr esident, Members of the Court, what is currently
6
RDRC, pp. 5-12. - 11 -
happening at Guantánamo Bay in Cuba with t hose accused of the attacks of 11 September 2001 in
the United States. I would merely ask ProfessorThouvenin, who raised this issue in his oral
argument, to take himself to C onakry and have a look at the Gu inean prisons. He will no doubt
find Guineans held in pre-trial detention there for valid reasons connected with the requirements of
judicial investigations by Guinean law officers, aw aiting trial by a competent court. The situation
is scarcely different in France or elsewhere in the world.
14. In sum, Mr.President, the DRC asks the Court to declare Guinea’s claim in respect of
Mr. Diallo’s arrest and detention in 1988-1989 to be inadmissible as out of time, or to dismiss it as
unfounded. I shall now proceed to the events of 1995-1996 which directly gave rise to the present
dispute before the Court.
18 C. Mr. Diallo’s arrest and detention in 1995-1996
15. Mr.President, Members of the Court, to facilitate our understanding of the issue of
Mr. Diallo’s arrest and expulsion from Congolese terr itory in January 1996, which lies at the heart
of this dispute before the Court, I shall firsbriefly review the prevailing political, economic and
social conditions in the DRC when the measures in question were taken (2). I shall then explain
the total lack of justification for the Applicant’s allegations that the Congolese authorities
mistreated Mr.Diallo, violated Article36 of the Vienna Convention on Consular Relations by
failing to inform Guinea’s consular officials of Mr. Diallo’s detention and deprived Mr. Diallo of
his personal property (3). But before expanding on these points, I shall first comment on Guinea’s
silence in respect of certain accusations it has levelled against the Respondent (1).
1. Guinea’s deafening silences
(a) Silence concerning the mistreatment allegedly inflicted on Mr. Diallo
16. The first example of silence on Guinea’s part concerns the alleged mistreatment suffered
by Mr. Diallo when he was arrested and detained in 1995-1996. In its Memorial, Guinea accused
the DRC of having mistreated Mr. Diallo during hi s imprisonment and expulsion in 1995-1996. In
this connection Guinea asserts that, in execution of the order of expulsion, Mr.Diallo was taken
away on 5November1995 by law enforcement authorities and secretly imprisoned in an
immigration department jail without any form of ju dicial process or even examination and that he - 12 -
remained a prisoner there without receiving any vi sit from his lawyers or members of the Guinean
Embassy until 10January1996, that is, for 75days. He is said to have been held under perilous
conditions and to have received no food from the Congolese authorities 7.
17. In its Counter-Memorial of 27March2008, the DRC denied all of these allegations by
the Applicant and showed that there was no solid, credible evidence to back them up 8. The
Respondent pointed out in particular that, during the period in which Mr. Diallo was described by
19 Guinea as having been locked up in prison without an y contact with the outside world, that is to
say, from 5November1995 to 10January1996, he sent three personally signed letters dated
30 November 1995 to the Prime Minister of Zaire and the Finance and Planning Ministers. We
may well wonder how Mr. Diallo could have been able to write and dispatch these three letters at a
time when, according to the Republic of Guinea, he was locked up and mistreated in a jail
maintained by the Congolese immigration authorities. What is more, Mr. Diallo made no reference
in his letters to the ordeal the very same Congolese Prime Minister was supposedly secretly putting
him through in prison. More over, although Guinea describes Mr.Diallo as having been
imprisoned, mistreated and in the process of being expelled from Zaire, the sole concern expressed
in his letters was recovering the debts owed to Africontainers-Zaire, without any mention,
Mr.President, Members of the Court, of concerns relating to the conditions under which he was
being held. All in all, it is strange. Lastly, it is hard to believe that Mr.Diallo could have spent
dozens of days locked up, with nothing to eat or drink, as Guinea claims. The DRC concluded by
asking the Court to reject Guinea’s allegations for lacking any credibility and being unsupported by
any solid, persuasive evidence.
18. Mr. President, Members of the Court, th e DRC asks the Court to take note of Guinea’s
dramatic 180-degree volte-face in its Reply of 19 November 2008 on the subject of the accusations
made against the DRC which I have just referred to. Guinea stated:
“At the time in Zaire, contacts betw een prisoners and pe ople outside were
frequent, proper and even officially provided for in some ways, since the authorities
typically relied on such contacts to keep the prisoners fed. ‘As a rule, the prisoners are
fed by non-governmental organizations, church associations and their own families’,
in the words of a report on the situation of human rights in Zaire dated
7
See Memorial of Guinea (MG), pp. 30-51.
8
See Counter-Memorial of the DRC (CMDRC), pp. 13-14. - 13 -
19 December 1994. As a matter of fact [says Guinea], during Mr. Diallo’s whole time
in detention it was thanks exclusively to he lp provided by his family that he was able
to eat. And it was also because he had contact with those outside the prison that he
was able to give instructions to write the 30 November letters and able to sign them.” 9
20 Guinea adds: “other channels were ava ilable to alert the public: ... and on 21 December 1995
[when Mr. Diallo is supposed to have been in custody] Guinea’s ambassador in Kinshasa reported
to his superiors on the situation” 10.
19. Mr.President, Members of the Court, it was with great joy and pleasure that the
Congolese authorities drank a champagne toast in reading these splendid sentences written in clear
terms by the Republic of Guinea, to which they moreover express their sincere gratitude. Whereas
we were awaiting proof of its accusations against the DRC in respect of the mistreatment allegedly
suffered by Mr.Diallo in prison, Guinea produced the opposite, proof that the DRC properly
protects prisoners’ rights. The Applicant even points out that Mr.Diallo was well fed and had
regular, officially sanctioned contacts with the outside world while in detention. It adds that
Guinea’s Ambassador in Kinshasa was well aware of the Diallo case and regularly reported on it to
the Guinean authorities in Conakry. As I have sa id, I shall return to this point later in this
statement.
20. Professor Thouvenin maintained utter silence on this accusation during his statement last
Monday. In light of what I have just explained, Mr. President, the DRC asks the Court to find that,
by Guinea’s own admission, Mr.Diallo did not suffer any mistreatment during his detention and
his expulsion from Congolese territory. That explai ns the deafening silence which all the speakers
who appeared in turn before the Court last M onday maintained on these serious allegations. The
DRC heard Guinea’s silence and accordingly asks the Court to hear it as well and to draw all the
requisite inferences.
(b) Silence concerning the DRC’s failure to question and try Mr. Diallo before his expulsion
21. Mr. President, Members of the Court, I shall now address the second silence maintained
by Guinea, this one on the issue of the alleged breach by the DRC in having neither questioned nor
tried Mr.Diallo before his expulsion. In its written pleadings, Guinea criticizes the DRC for
9
See RG, p. 17; emphasis added.
10
Ibid.; emphasis added. - 14 -
having failed to conduct either an examination or a trial of Mr.Diallo and for having failed to
arrange for him to have access to counsel. Guinea concludes from this that Mr. Diallo’s detention
11
21 and expulsion were arbitrary and internationally wrongful acts . They were nothing of the sort,
Mr. President, as I am going to explain in a moment.
22. On the subject of this accusation, the Respondent pointed out in the Counter-Memorial
that Guinea was confusing two entirely separate typ es of proceedings. Mr. Diallo was not arrested
and held pursuant to criminal proceedings initiated in the context of a judicial investigation by the
State Prosecutor with a view to a possible arraignment before a competent court after completion of
the investigation. It is in criminal proceedi ngs of that type that provision is made for the
examination of, and a defence statement by, the individual who may be brought before the court.
23. In the present case Mr.Diallo, by contr ast, was merely the subject of administrative
detention preliminary to his removal from Congolese territory for having engaged in conduct which
the Congolese authorities deemed inimical to public order. Mr.Diallo was not accused of any
particular criminal offence justifying pre-trial detention as part of criminal proceedings brought
against him.
24. Article15 of the Congolese Legislativ e Order of 12September1983 on immigration
control provides for a maximum period of eightda ys between the date on which an alien deemed
undesirable in Congolese territory is arrested and the date he is expelled. This Legislative Order
therefore provides for an alien’s administrativ e detention for purposes of expulsion, not for
purposes of prosecution. In special administrative pr oceedings of this sort it is inappropriate to
speak of an examination of, or defence statement by, the individual concerned.
25. The Respondent added that Guinea had faile d to offer any evidence of a refusal by the
Congolese authorities to allow Mr.Diallo’s lawy ers to visit him during his detention pending
expulsion from Congolese territory. In fact, Mr.Diallo maintained regular contact with people
outside the prison and was therefore free to consult his lawyers.
26. In the face of this argument by the DRC, Guinea did not repeat this accusation in its
statements last Monday. The only valid conclusion to be drawn from this silence is that Guinea
11
See MG, pp. 51-53. - 15 -
22 itself has retracted the accusation, considering it un justified. Thus, the DRC asks the Court to find
and declare that Guinea’s allegations on this point are unfounded.
(c) Silence concerning a denial of justice to Mr. Diallo
27. Mr. President, I now turn to the third sile nce maintained by Guinea, this one concerning
the supposed denial of justice suffered by Mr. Diallo at the hands of the Congolese authorities. The
Applicant has claimed in its written pleadings that Mr . Diallo was the victim of two types of denial
of justice by the Congolese authorities: a denial of justice in respect of enforcement of the
3July1995 judgment ordering Zaire Shell to pay Africontainers-Zaire US$13million; and a
general denial of justice lying in the fact th at Mr.Diallo’s deten tion and expulsion made it
impossible for him to pursue the settlement of the disputes relating to his dealings in the DRC.
28. Mr.President, the DRC has vigorously rebutted this denial-of-justice claim by showing
that it leads to the exercise by Guinea of diplomatic protection in regard to rights belonging to
Africontainers and Africom-Zaire, in contrave ntion of the Judgment on preliminary objections
handed down by the Court in the present case on 24May2007. In that Judgment Guinea’s
Application was declared inadmissible in this respect. Indeed, these two types of denial of justice,
had they occurred, would have been directed at Africontainers-Zaire and Africom-Zaire, the
holders of the claimed debts, not at Mr. Diallo in his individual capacity.
29. The Court has already observed in its Judgment of 24 May 2007 that it is undisputed that
all of the financial claims (arising from commerc ial litigation or otherwise) relied on by Guinea
concern rights belonging to the commercial companies as legal persons, not to Mr.Diallo as a
natural person. This is true of all the co mmercial disputes, including the dispute between
Africontainers-Zaire and the oil company Zaire Shell which Guinea cites.
30. In response to the strong arguments ela borated by the DRC in its written pleadings,
Professor Thouvenin considered the more prudent cour se to be to maintain complete silence in his
statement last Monday on the subject of the deni als of justice alleged by Guinea to have been
23 suffered by Mr.Diallo at the hands of the Congolese State. I therefore request the Court to take
note of the Applicant’s deafening silence on these ac cusations and, in consequence, to rule that
they are unfounded. - 16 -
(d) Silence concerning breaches of contract
31. Mr.President, Members of the Court, I am now going to address the fourth and last
silence maintained by the Applican t, on the subject of the alleged violation by the DRC in respect
of contractual commitments to Mr. Diallo. The A pplicant has asserted in its written pleadings that
a State’s breach of contractual commitments assumed to an alien may constitute an internationally
wrongful act where that breach is accompanied by other internationally wrongful acts. Guinea
claims that this is the case of breaches by Géca mines of the contract of carriage of 13July1983
and of the refusal by the Department of Finance to pay the 178millionzaire debt owed to
Africom-Zaire, which, Guinea contends, were acco mpanied by other internationally wrongful acts,
notably unlawful detention and expulsion, arbitrary interference and denial of justice.
32. Mr.President, the DRC rebutted this argument as well in its Counter-Memorial,
explaining that this reasoning would lead to Guinea’s exercise of diplomatic protection on behalf of
Africontainers and Africom-Zaire, in contrave ntion of the Judgment on preliminary objections
handed down by the Court in the present case on 24 May2007. Indeed, the tripartite contract of
13July1983 was entered into by, and the listi ng paper order placed with, Africom-Zaire and
Africontainers-Zaire as legal entities. Thus, any of the alleged contractual breaches, if established,
would have been committed against the companies as legal entities, not against Mr.Diallo as a
natural person. Thus, the situation is the same here as the one I just referred to a moment ago in
respect of denial of justice. Accordingly, th e DRC concluded that it has not committed any breach
of contract against Mr. Diallo in his individual capacity.
33. Mr.President, Members of the Court, in response to the D RC’s solid, irrefutable
arguments, Guinea has chosen to flee from any cour troom debate on this accusation and to retreat
24 into silence. Thus, Guinea has to remain sile nt for good on this accusation, which is patently
unjustified.
34. To sum up, in the light of Guinea’s vari ous silences which I have just pointed out, the
DRC requests the Court to reject Guinea’s corresponding allegations as unfounded.
The time has now come, Mr. President, to examine the social conditions generally prevailing
in the DRC during the period of Mr. Diallo’s arrest and detention in 1995-1996. - 17 -
2. The national backdrop when Mr. Diallo was arrested and detained in 1995-1996
35. Mr.President, on 24April1990, 22 years ago to the day, MarshalMobutu decided to
restore pluralist democracy and to abolish the di ctatorial single-party régime which had ruled the
country for nearly 25years. But Marshal M obutu and leading figures in his régime, who had
become a minority by a wide margin in the country , chose to cling desperately to their power and
privileges. They adamantly refused to play fair and to put in place an open democratic system
acceptable to the Congolese people and to all the de mocratic forces. Those forces then set off
radical, systematic political opposition to the reig ning régime. This serious political situation
created a social environment characterized by the decline of the Congolese State, the collapse of
the economy and currency, destitution of the population and widespread political protest against the
ruling powers. Mismanagement of the economy and public finances, together with the régime’s
corruption, forced the Bretton Woods institutions and the DRC’s bilateral pa rtners to cut off all
co-operation with the Congolese Government for more than ten years.
36. It was against this backdrop of political, economic, social and moral crisis that mass
rioting, featuring and facilitated by the mutiny of the Congolese army, broke out in
September1991 in Kinshasa, the DRC capital. This rioting on an unprecedented scale triggered
massive looting of private businesses throughout the city of Kinshasa and exacerbated the damage
to the country’s economic fabric. In January1 993, further mass rioting, in which the French
Ambassador to the DRC was killed, erupted in Kinshasa and gave rise to wide-scale looting of
public and private property in the city. Most of the expatriates still controlling the Congolese
25 economy fled the country. Africontaine rs-Zaire, of which Mr. Diallo was gérant and associé, also
suffered the disastrous effects of these riots on its bus iness, as did other private companies. This is
in very large part the reason why Africontainers-Zaire, a company specializing in the containerized
transport of goods, found itself in undeclared bankruptcy. Mr.President, I shall return in greater
detail in my statement this afternoon to the actua l position of this company, which Guinea falsely
describes ⎯ I repeat, falsely describes ⎯ to the Court as a thriving company at the time of
Mr. Diallo’s expulsion.
37. In a speech given on 14August2003 at the Kinshasa International Fair (Foire
internationale de Kinshasa (FIKIN)), the Governor of the Central Bank of the Congo described the - 18 -
Congolese economy over the decade from 1990 to 2000. He specifically pointed out the
deterioration of basic infrastructures, the pillaging of production plant ⎯ I repeat, the pillaging of
production plant ⎯, the accumulation of arrears of foreign debt and the breakdown of structural
co-operation with the international community. The Central Bank of the Congo, in its annual
report in 1994 on the state of the Zairian (DRC) eco nomy in 1993, noted that the inflation rate had
been 2989 per cent in 1992 and 4651 per cent in 1993. The report also pointed out the harm caused
to the Congolese economy by the looting in January 1993.
38. Taking advantage of these general cond itions of decline of the apparatus of the
Congolese State, of deterioration of the economy and widespread moral degeneration, set against a
backdrop of political struggle for control over the country and access to privileges, certain aliens
who had remained in the DRC took up economic crime in the pursuit of riches by any and all
means. To deal with this serious state of affairs, in which organized crim e groups sought to profit
from the weakness and instability of State authorities ⎯ seizing control of the country’s economy,
counterfeiting the currency, trafficking in forei gn currency, defrauding the tax authorities, and
destroying the public finances ⎯ the Congolese Government resolved in early 1995 to launch a
fierce, determined campaign against economic crime and destabilization.
39. As part of that campaign, Mr.President, Members of the Court, the Congolese
Government took a number of steps to expel certain aliens involved in economic crime. Thus, the
Congolese Government issued a decree on 22 February 1995 expelling 86 aliens for involvement in
26
economic and financial crime. Five days late r, on 27February1995, the Congolese Government
issued another decree expelling 84aliens for the same reasons. Eight months later, on
31October1995, the Congolese Government i ssued the decree expelling Mr.Diallo from
Congolese territory on the same grounds ⎯ this is the decree that will be the subject of this
statement. A number of months after Mr. Dia llo’s expulsion, the Congolese Government issued a
further decree, on 20September1996, expelling 24aliens impli cated in economic crimes.
Mr. President, Members of the Court, you will find c opies of these decrees at tab 1 of the judges’
folder you have before you.
40. Thus, it was against this national backdrop which I have just described that the decree
expelling Mr. Diallo was adopted on 31 October 1995. As you can see, Mr. President, Members of - 19 -
the Court, the expulsion measure taken against Mr.Diallo was not an isolated action aimed at
arbitrarily harming Mr.Diallo’s interests and taken by the Congolese State against him out of
vengeance. Under the terms of the decree itself, the justification for the measure was that
Mr.Diallo’s presence and conduct were breaching Congolese public order, especially in the
economic, financial and monetary areas. Mr. President, you will find a copy of this decree at tab 2
in the judges’ folder.
41. Mr.President, Members of the Court, I have just set out for you the reasons for, and
circumstances surrounding, Mr.Diallo’s arrest a nd detention and his expulsion from the DRC on
31 January 1996. I shall now explain to the Court how all these measures were taken in accordance
with Congolese law and in compliance with the DRC’s international obligations.
3. Legality of Mr. Diallo’s arrest and detention in 1995-1996
42. Mr.President, Members of the Court, in its written pleadings the DRC has already
12
thoroughly set out its position on MrD . iallo’s arrest and de tention in 1995-1996 .
27 Professor Thouvenin returned to these subjects in his statement last Monday 13. As what he said did
not materially undermine the DRC’s responses figur ing in the Counter-Memorial and Rejoinder, I
do not think it necessary to go over these aspects once again in this statement by rehashing what the
Respondent has already clearly said in its written plea dings. I shall therefore ask the Court to refer
to the DRC’s written pleadings on these issues, so as to avoid, as I have said, pointless repetition.
But I must however respond to statements made by Professor Thouvenin on certain points which I
think significant and on which the Parties remain divi ded in respect of this issue. Those are: the
alleged violation of Article36 of the Vi enna Convention on Consular Relations ( a); and the
deprivation of Mr. Diallo’s personal property (b).
(a) Alleged violation of Article 36 of the Vienna Convention on Consular Relations
43. Mr.President, Members of the Court, the Applicant further asserts in its written
pleadings that the DRC violated Article 36 (1) (b) of the Vienna Convention on Consular Relations
12
See the Preliminary Objections of the DRC (PODRC), pp. 39-42; CMDRC, pp. 8-24 and RDRC, pp. 3-15.
13
See CR 2010/1, pp. 31-39 (Thouvenin). - 20 -
by failing to allow contact between Mr.Diallo a nd Guinea’s consular officers in Kinshasa when
14
Mr. Diallo was being held in detention .
44. In his statement ProfessorThouvenin raised this issue, on which, as I just said, the
Parties remain divided. Guinea’s allegations are unfounded, Mr.President, as I shall demonstrate
in a few moments.
45. Article 36 (1) (b) of the Vienna Convention on Consular Relations provides:
“if he [an arrested, imprisoned or detained alien] so requests, the competent authorities
of the receiving State shall, without delay, inform the consular post of the sending
State if, within its consular district, a national of that State is arrested or committed to
prison or to custody pending trial or is detained in any other manner . . .”.
46. Mr.President, the DRC is well aware that the Court has recently ruled on the
interpretation of this treaty provision, specifically in the LaGrand case between Germany and the
28 United States of America 15. Like all other judgments of the Court, the Judgment the Court handed
down in that case, Mr.President, has effects erga partes considering the facts and all the
circumstances of the case. The distinguish ing feature of that case, Mr.President ⎯ LaGrand
(Germany v. United States of America) ⎯ lies in the fact that the United States, the Respondent,
acknowledged without argument that it had violat ed the treaty provision invoked by Germany by
failing to afford the LaGrand brothers the possib ility of receiving consular protection by Germany,
the country of their nationality. Thus, there was manifestly ⎯ and inarguably ⎯ a clearly
established breach by the United States of its inte rnational obligations, a breach aggravated by the
fact that the LaGrand brothers were tried, sentenced to death and indeed executed.
It was against this backdrop that the Court began by observing ⎯ rightly ⎯ as follows in its
Judgment:
“when the sending State is unaware of the detention of its nationals due to the failure
of the receiving State to provide the requis ite consular notifica tion without delay,
which was true in the pre sent case during the period between 1982 and 1992, the
sending State has been prevented for all practical purposes from exercising its rights
under Article 36, paragraph 1” (LaGrand (Germany v. United States of America),
Judgment, I.C.J. Reports 2001, p. 492, para. 74; emphasis added).
14
See MG, pp. 43-44 and RG, pp. 24-26.
15
See LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001. - 21 -
47. Drawing the logical conclusion from this observation, and we agree with the Court, the
Court found that:
“by not informing Karl and WalterLaGrand without delay following their arrest of
their rights under Article36, paragraph1 (b), of the Convention, and by thereby
depriving the Federal Republic of Germany of the possibility, in a timely fashion [I
stress, ‘in a timely fashion’], to render the assistance provided for by the Convention
to the individuals concerned, the United Stat es of America breached its obligations to
the Federal Republic of Germany and to the LaGrand brothers under Article36,
paragraph 1” (ibid., p. 515, point (3) of the operative part; emphasis added).
48. Mr.President, Members of the Court, the situation in the present case is completely
different, as I shall explain in a moment.
49. In this connection, I point out to the C ourt that Guinea itself has produced a letter dated
21December1995 from its then Ambassador in Kinshasa, Mr.AbdoulayeSylla, a lawyer by
profession. That letter was sent to the Guinean Mini stry of Foreign Affairs, with a copy to the
29 President of the Republic of Guinea for his information, and concerned Mr. Diallo’s situation. In it
Guinea’s Ambassador in Kinshasa stated as follo ws, Mr.President, Members of the Court, and I
quote AmbassadorSylla: “In any case, the Embassy , for its part, will proceed with the cautious
and measured diplomatic action that it has already initiated [I stress, the ‘diplomatic action that it
has already initiated’] at all levels to ensure a felicitous outcome to the case.” 16 Mr. President, you
will find a copy of this letter at tab 6 of the judges’ folder before you. I would also stress that the
phrase “diplomatic action... already initiated” used in December1995, before Mr.Diallo’s
expulsion, clearly shows that Guinea’s diplomatic approaches on Mr.Diallo’s behalf had begun
much earlier, that is to say, at the time he was arre sted. It must also be noted that this letter was
written, as I said, more than a month before Mr. Diallo was expelled. Guinea’s Ambassador also
sent the Ministry of Foreign Affairs in Conakry clippings of articles published in the Congolese
press reporting on Mr. Diallo’s situation.
50. When Mr. Diallo was still being held in Kinshasa prior to expulsion, Guinea’s Embassy
instructed Africontainers-Zaire’s senior executives on 25 January 1996 (Mr. President, Members of
the Court, on 25January1996 Diallo was still in the Congo) to prepare an inventory of all the
containers belonging to the company 17. It will be added that, on 15 April 1996, Guinea’s Minister
16
See the copy of this letter in MG, Vol. II, Ann. 192; emphasis added.
17
See the inventory list: MG, Vol. II, Ann. 199. - 22 -
for Foreign Affairs wrote to the Secretary-Genera l of the Presidency of the Republic of Guinea to
18
report to him on Mr. Diallo’s situation .
51. Mr.President, Members of the Court, it is thus demonstrated beyond doubt that
Mr.Diallo’s case was known not only to the Guin ean consulate in Kinshasa but also to the
President of the Republic and the Minister for Fore ign Affairs of Guinea; what is more, Guinea’s
Ambassador in Kinshasa had made diplomatic approaches on Mr. Diallo’s behalf to the Congolese
Government. Guinea, unlike Germany in the LaGrand case, therefore was able, in a timely
30 fashion, to repeat the phrase employed by the Cour t, to afford Mr.Diallo the consular assistance
contemplated in the Vienna Convention on Consular Relations. Where then is the problem?
52. It is clear to the DRC that the Applican t’s litigation strategy is to take refuge behind
purely theoretical considerations while deliberately closing its eyes to what actually happened.
Guinea does not cite any injury which Mr.Diallo allegedly suffered as a result of Guinea’s
consular post not having been informed of his detention. As I have just explained in detail, the fact
is that Mr. Diallo received support and protection from Guinea’s consular officers in Kinshasa from
the outset of his arrest and detention, for they were well aware of his situation. Given Mr. Diallo’s
extensive network of social relations in Kinshasa, his arrest could not have gone unnoticed. Guinea
itself has moreover admitted that “other channels were available to alert the public” as to
Mr. Diallo’s detention.
53. Mr. President, to conclude on this point, I must yet again lay great emphasis on the fact
that the aim to be achieved through Article 36 (1) (b) in question here is to ensure that the consular
officers of the sending State are informed whenever a national of that State living in the receiving
State is being held in detention, so that they can see to it that his individual rights are respected and
can provide consular assistance to him under proper conditions. In the present case, this aim was
fully achieved, as I explained a moment ago. This is indeed far, far removed from the situation in
the case of the LaGrand brothers. Once again, the DRC accordingly fails to see any issue.
54. In the light of what I have just said, Mr. President, the Respondent requests the Court to
reject as unfounded Guinea’s allegation th at the DRC violated Article36(1) (b) of the Vienna
18
See the copy of this letter appearing in MG, Vol. II, Ann. 203. - 23 -
Convention on Consular Relations by failing to allow contact between Mr .Diallo and Guinea’s
consular officers in Kinshasa. In any case, Guin ea has failed in the present case to show that the
Congolese authorities prevented Mr.Diallo from entering into contact with Guinea’s Embassy in
Kinshasa during his detention or neglected to notif y Guinea’s consular post of the detention. On
31 the contrary, Guinea’s Ambassador in Kinshasa, Mr. Abdoulaye Silla, was fully informed in timely
fashion of Mr. Diallo’s arrest and detention with a view to expulsion to Conakry.
(b) Mr. Diallo’s personal property
55. I shall now address the last point raised in Guinea’s Application concerning Mr. Diallo’s
personal property. On the subject of Mr.Diallo’s personal property, I must point out here that
Guinea’s Ambassador in Kinshasa had an inventory of this property prepared, as well as of the
19
containers and other property belonging to Africontainers-Zaïre . He never approached the
Congolese authorities to protest against the confiscation or disappearance of Mr. Diallo’s property.
Mr.President, when a State expels an alien unde r the circumstances and for the reasons I have
described in this statement, international law does not oblige it to charter an aircraft or other means
of transport for the alien’s benefit for purposes of arranging his removal together with all his
moveable property. There is no precedent to this effect in State practice.
56. The Guinean State itself knows exactly what happened to Mr. Diallo’s personal property
which had been in the apartment where he was liv ing, for Guinea took custody of it after having it
inventoried.
57. In conclusion to this statement, the DRC requests the Court to find that the DRC did not
commit any internationally wrongful act in connection with Mr.Diallo’s arrest and detention in
1995-1996. I shall now turn to ProfessorForteau, who prepared a fine presentation on Guinea’s
behalf on the issue of the expulsion, which he read to the Court during his statement last Monday.
Mr.President, not knowing whether you can en tertain this possibility, in your wisdom, I
would like to ask whether one might take a recess, if only for a few minutes, so that we can resume
our statement afterwards.
19
See MG, Vol. II, Anns. 199 and 200. - 24 -
The VICE-PRESIDENT: Thank you, Mr. Kala la. I understand that you would like a short
32 recess so that you can continue your statement; I believe that you still have 20 minutes to go, but I
understand that you are requesting a break. In that case, I shall call a 10-minute coffee break. The
hearing will resume at 11.35 a.m. The session is adjourned.
Mr. KALALA: Thank you very much, Mr. President.
The Court adjourned from 11.25 a.m. to 11.35 a.m.
The VICE-PRESIDENT, Acting President: Please be seated. The hearing resumes and I
shall now give the floor to ProfessorTshibanguKalala to continue his statement. You have the
floor, Mr. Kalala.
Mr. KALALA: Thank you very much, Mr. President, for giving me the floor. The break has
enabled me to take breath.
II.T HE DRC DID NOT COMMIT INTERNATIONALLY WRONGFUL ACTS IN
CONNECTION WITH M R . IALLO S EXPULSION ON 31 JANUARY 1996
58. Mr. President, Members of the Court, as part of its legal strategy of accusing the DRC of
every evil under the sun, in the hope that e Court will uphold what it sees fit to uphold, the
Applicant also criticizes the DRC for expelling Mr. Diallo on the basis of a decision not made in
accordance with the law. By so doing, according to Guinea, the DRC violated Article9 of the
International Covenant on Civil and PoliticalRights, as well as Article13, whereby an alien
lawfully in the territory of a State can only be expelled from it in pursuance of a decision reached
in accordance with law.
ProfessorForteau addressed the topic at length in his statement last Monday 2. The
Applicant’s claims will not stand up, Mr.President, as I shall explain very shortly by replying to
Professor Forteau’s assertions on this issue which continues to divide the Parties.
20
CR 2010/1, pp. 41-55 (Forteau). - 25 -
33 59. Mr. President, Members of the Court, I shall first draw attention to the fact that the DRC
expelled Mr.Diallo rather than refusing him entry (A) and will then explain to the Court that this
measure was lawful (B).
A. Mr. Diallo’s expulsion or refusal of entry
60. I have already explained, in the course of this statement, the reasons and circumstances
surrounding Mr. Diallo’s expulsion from Congolese territory in January 1996. Many pages of the
Congo’s written pleadings have also been devoted to this question. I shall not go back over them in
detail. I would therefore ask the Court to refer to those pleadings.
61. It is clear, Mr.President, that Mr.Diallo was arrested by the police and expelled to
Guinea on 31 January 1996 on the basis of the Decr ee of 31 October 1995 issued by the Congolese
PrimeMinister. Guinea speaks sometimes of refusal of entry and sometimes of expulsion,
depending on which concept suits its purposes. I note that in their oral argument last Monday,
however, Mr.Vidal used the word “expulsion” six times, ProfessorThouvenin seven, and
ProfessorForteau beat all records by using it 75tim es, no less. The DRC has been criticized for
using the expression “refusal of entry” instead of “expulsion” in the notice drawn up at Ndjili
airport on the day that Mr.Diallo was expe lled. However, I have noted, Mr.President ⎯ and I
would ask the Court to note likewise ⎯ that, before the Court, Guinea uses the term “expulsion”
instead of “refusal of entry”. If no one is right , then no one is wrong. The DRC can therefore no
longer be criticized. Mr. Diallo was indeed expelled and not refused entry. That is why Guinea is
attacking as unlawful the Prime Minister’s expulsion decree, and not the notice of refusal of entry
issued by an official of the State.
B. Mr. Diallo’s expulsion was lawful
62. In the course of his presentation, Prof essorForteau challenged the lawfulness of the
Prime Minister’s expulsion decree, invoking both the provisions of Congolese immigration control
law and those of the International Covenant on Civil and Political Rights.
34 63. I would first like to point out, Mr.President, Members of the Court, that the decree in
question was issued under Article15 of the Co ngolese Legislative Order of 12September1983
concerning immigration control, according to which - 26 -
“The President of the Republic may, by a duly reasoned Order, deport from
Zaire any alien who, by his presence or conduct, breaches or threatens to breach the
21
peace or public order.”
Mr.President, as you will soon realize, the reason on which the decree to expel Mr.Diallo was
based was the fact that “Mr.Diallo’s presence and conduct have breached Zairean law and order,
especially in the economic, financial and moneta ry areas, and continue to do so”, applying
Article 15 which I have just read out. This was indeed therefore a decision reached in accordance
with law within the meaning of Article13 of the International Covenant on Civil and Political
Rights.
64. At the same time, under Article15 of the Legislative Order of 12September1983
concerning immigration control,
“An alien against whom deportation proceedings have been initiated and who is
likely to evade implementation of this measure may be imprisoned by the General
Administrator of the [intelligence services or the immigration service] or his
representative for a period of 48 hours. In cases of absolute necessity this period may
be extended by 48 hours at a time, but shall not exceed eight days.”
The length of Mr.Diallo’s detention was also in accordance with Congolese legislation. Here,
Guinea’s assertion that Mr.Diallo was detained for a total of no less than 75days (from
5 November 1995 to 10 January 1996, and then fro m 17 January to 31 January 1996) is groundless
and not supported by any persuasive evidence. This assertion is based solely on newspaper
sources, which for their part reproduce an “Avocats Sans Frontières” press release. I have already
described in this statement how Guinea’s presentation of the facts stands in contradiction to the
material before the Court because, during the period when Mr.Diallo was supposedly detained
with no contact with the outside world, he wr ote various letters to the Congolese Government
signed by his own hand in which he made no compla int about his detention. I shall not rehearse
this point again.
35 65. In the same vein, the Applicant also accu ses the DRC of failing to give Mr.Diallo the
opportunity to submit the reasons against his expulsion and to have his case reviewed by the
competent authority. According to Guinea, th is conduct by the Respondent likewise infringed
Article 13 of the International Covenant on Civil and Political Rights.
21
Judges’ folder, tab 3. - 27 -
66. Mr.President, Members of the Court, Artic le13 of the International Covenant on Civil
and Political Rights provides as follows:
“An alien lawfully in the territory of a State Party to the present Covenant may
be expelled therefrom only in pursuance of a decision reached in accordance with law
and shall, except where compelling reasons of national security otherwise require, be
allowed to submit the reasons against his expulsion and to have his case reviewed by,
and be represented for the purpose before, the competent authority . . .”
67. The Parties are divided on the fundamental question ⎯ and this is precisely the point
which divides them ⎯ of whether or not Mr.Diallo had an opportunity to submit any reasons
against his expulsion, in accordan ce with the treaty provision which I have just read out. In
Mr.Diallo’s case, his daily scheming ⎯ I have described the circumstances in which the
gentleman in question was expelled ⎯ had become so serious that the Congolese Government, in
the exercise of its discretion, found that it wasurgent and compelling, for reasons of maintaining
public order, that he be removed from the territory.
68. The Congolese legal system, Mr.President, provides a means of redress ⎯ this is the
point of contention with Guinea ⎯ against any decision taken by a central administrative authority
which infringes a person’s rights. The Congolese Constitution of 9 April 1994, which was in force
in 1996 (it did not enter into force then, and Guinea is confused on that point), provided in
Article102 that: “[t]he Supreme Court of Justice has jurisdiction over... applications for
nullification of acts and decisions of the central authorities of the Republic”. For its part, the
Legislative Order of 31March1982 concerning procedure before the Supreme Court of Justice
establishes specifically in Articles 87 to 90 that appl ications for nullification of acts, decisions and
regulations of the central authorities can be subm itted by any aggrieved individual. Mr. President,
you will find the text of this Legislative Order in the judges’ folder at tab 4.
36 69. Even after his expulsion, therefore, th ere was an administra tive means of redress
available to Mr.Diallo to seek nullification of the 31October1995 Decree issued against him by
the Congolese Prime Minister, before the Administrative Division of the Supreme Court of Justice.
He was therefore allowed to submit any reas ons against his expulsion, in accordance with
Article13 of the International Covenant on Civ il and Political Rights. I am bound to point out,
Mr. President, Members of the Court, I am bound to point out that Mr. Diallo, who had instructed
Congolese lawyers to act in defence of his financial interests, did not instruct those lawyers to bring - 28 -
administrative proceedings for annulment of the e xpulsion decree, using the procedure available in
the administrative courts.
70. Having clarified those points, the DRC asks th e Court to find that Mr. Diallo’s expulsion
was decided upon in accordance with Congolese law and that the Respondent did not violate
Article 13 of the International Covenant on Civil and Political Rights.
71. Guinea also claims on page 22 of its Repl y that the Decree of 31 October 1995 to expel
Mr. Diallo breaches the 1983 Congolese Legislative Order concerning immigration control because
the decree was issued by the PrimeMinister and not by the President of the Republic.
Mr.President, the text of Article15 of the Le gislative Order of 12September1983 does indeed
refer to the President of the Republic, and specifically to the President of the Mouvement Populaire
de la Révolution, President of the Republic (at the time, Field Marshal Mobutu Sese Seko), who, in
the period of the Cold War and single-party rule, held a monopoly of supreme executive power.
72. Following abolition of the single-party system on 24April 1990, a new constitution
based on democratic principles and characterized by the sharing of executive power between the
President of the Republic and the Government led by a PrimeMinister was adopted on
9 April 1994. Article 80, second paragraph, of that Constitution gave the Prime Minister regulatory
power in the following terms ⎯ I am reading the Congolese Constitution of the time: “The Prime
Minister shall exercise regulatory power by means of decrees voted on by the Council of
Ministers.” Mr.President, Members of the Court, you will find the text of Article80 of the
1994 Congolese Constitution in the judges’ folder at tab 5.
37 73. It was therefore on the basis of Article80, second paragraph, of the Congolese
Constitution in force at the time of the facts that the Prime Minister exercised his regulatory power
to implement the laws of the Republic by issui ng the Decree of 31December1995, in order to
apply the 1983Legislative Order concerning immigr ation control to Mr.Diallo. Mr.President, it
had become inconceivable in a democratic régime that a President of the Republic might be able, as
at the time of the single-party dictatorship, to issue an administrative decision to expel an alien
when there was a Government, headed by a Prim eMinister, with regulatory power to implement
the laws of the Republic. In other words, the unlawfulness of the Decree of 31 October 1995 which
Guinea has raised before the Court is apparent only to a foreigner unfamiliar with Congolese law. - 29 -
In short, Guinea’s argument is untenable in th e context of the Congolese domestic legal system.
That is why the DRC asks the Court to dismiss Guinea’s allegations in this respect.
Mr.President, Members of the Court, I have finished my presentation for this morning. It
being lunch time, may I wish you, Mr.President , distinguished Members of the Court and the
Guinean delegation, bon appétit. Thank you.
The VICE-PRESIDENT, Acting President: Than k you for your presentation, Mr.Kalala.
Before closing the hearing, I should like to give the floor to Judge Cançado Trindade, who wishes
to ask a question. You have the floor, Judge Cançado Trindade.
Judge CANÇADO TRINDADE: Thank you, Mr. President. I have a question to put to both
Parties. In your opinion, do the pr ovisions of Article36, paragraph1 (b), of the 1963Vienna
Convention on Consular Relations apply solely to relations between the sending State or State of
nationality and the receiving State? Was Mr.Diallo himself informed about consular assistance
immediately after his detention? Who is the holder of the right to information regarding consular
assistance: the sending State or State of nationality, or the individual? Thank you, Mr. President.
38 The VICE-PRESIDENT, Acting President: Tha nk you. The written version of the question
will be transmitted to the Parties as soon as possible, shortly after the closure of the hearing.
Finally, I should like to ask you for a factual detail, Mr. Kalala. You made reference to the
new Constitution of the Democratic Republic of the Congo which was adopted on 9April1994,
and you mentioned that this C onstitution entered into force in 1996. Could you tell us this
afternoon the exact date of the entry into force of the 1994Constitution? It is simply a point of
information. Thank you.
The hearing is closed. The Court will meet again this afternoon at 3p.m. to hear the
continuation of the oral argument of the Democratic Republic of the Congo. The sitting is closed.
The Court rose at 12.15 p.m.
___________
Translation