Non Corrigé Traduction
Uncorrected Translation
CR 2010/6 (traduction)
CR 2010/6 (translation)
Jeudi 29 avril 2010 à 16 heures
Thursday 29 April 2010 at 4 p.m. - 2 -
8 The VICE-PRESIDENT, Acting President: Please be seated. The hearing is now open. The
Court is meeting today to hear the second round of oral arguments of the Democratic Republic of
the Congo. I now give the floor to Mr. Tshibangu Kalala. You have the floor, Mr. Kalala.
Mr. KALALA: Mr. President, thank you for giving me the floor.
THE D EMOCRATIC REPUBLIC OF THE C ONGO HAS NOT COMMITTED ANY
INTERNATIONALLY WRONGFUL ACTS AGAINST
THE R EPUBLIC OF G UINEA
1. Mr. President, Members of the Court, I would like first of all to reassure the Court that I
shall not, during this presentation, reiterate in detail what the DRC has thoroughly explained in its
written pleadings and in my statements on M onday concerning the alleged violations of
Mr.Diallo’s individual personal rights and of his direct righassocié in Africom-Zaire and
Africontainers-Zaire. I shall confine myself to highlighting a few fundamental issues which
continue to divide the Parties and to which ofessor Alain Pellet returned in his presentation
yesterday. I shall then conclude my statement today by presenting the DRC’s final submissions in
my capacity as Co-Agent.
2. Before going to the core of the matter, I would first like to make two comments: about
establishing the facts and about the evidence.
First, ProfessorPellet took the view yesterday that any fact not expressly disputed by the
DRC had to be considered proven. As a process for establishing the facts, this one advocated by
Guinea is unacceptable. Only those facts on which both Parties have indicated their agreement can
be treated as uncontested and, accordingly, as established.
By contrast, allegations by Guinea which are not supported by solid evidence cannot be
considered proven.
Secondly, in respect of the evidence, Guin ea yesterday further criticized the DRC for not
playing by the rules. It should be pointed out here that Guinea has produced numerous documents
concerning the litigation involving Africom-Zaire and Africontainers-Zaire.
Guinea therefore cannot claim now that it iunable, owing to Mr.Diallo’s expulsion, to
obtain the other documents concerning those companies. - 3 -
9 For its part, the DRC would emphasize here that these documents relate essentially to
commercial companies. What is more, given what the country has gone through since 1996, which
is public knowledge internationally, many documen ts from before that time have been lost or
misfiled and the DRC is therefore unable to produce them to the Court.
I. MR. DIALLO ’S INDIVIDUAL PERSONAL RIGHTS
A. The alleged violation of Article 36 (1) (b) of the 1963 Vienna
Convention on Consular Relations
3. Mr.President, Members of the Court, ProfessorPellet returned in his oral arguments
yesterday to the issue of whether or not the DRC informed Mr.Diallo of his right to consular
assistance. He maintained that the DRC failed to discharge this international obligation imposed
on it by international law by not informing Mr. Diallo of his consular rights.
4. I shall respond to this statement by Prof essorAlainPellet by saying that, in general,
international law is not formalistic and that the Vienna Convention does not prescribe the manner
in which the receiving State must inform detainees of their consular rights. According to the
established practice in that regard in the DRC, and I think the situation is hardly different in
Guinea, when a person is detained or imprisoned by the police or the pro secutor’s office, he is
asked to give the address of a relative or close frie nd who is to be informed of his arrest and the
place where he is being held. The person is not sent a letter requesting acknowledgement of receipt
asking him to tell his family or friends about his detention. That is what happened when Mr. Diallo
was arrested and detained in 1995-1996. He was informed orally by the competent official that he
was entitled to contact his family and his embassy to obtain the necessary consular assistance.
Guinea itself acknowledges that he was indeed given such assistance.
5. It is a well-established general principle of law that the party asserting a fact bears the
burden of proving it. It is therefore for Guinea to adduce solid persuasive evidence to the contrary
proving that the DRC did not inform Mr.Diallo of his consular rights. Mr.Diallo’s belated
declarations contained in an affidavit drawn up in Conakry, by Diallo and his cronies, and
uncorroborated by credible and varied independent sources, are simply a farce which cannot
10
constitute evidence meeting the standards of proof defined by the Court in inter alia the Nicaragua - 4 -
case (see Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), Merits, Judgment, I.C.J. Reports 1986, pp. 40-41, paras. 62-64).
B. Mr. Diallo’s arrest and detention in 1988-1989
6. The DRC asserted in its written pleadings and its oral arguments on Monday that the
Court should decline to examine the facts conc erning Mr.Diallo’s arrest and detention in
1995-1996 because Guinea had failed to indicate th e facts and grounds on which its claim was
based in its Application instituting proceedings or in its Memorial, contrary to Article38 of the
Rules of Court, and that it did so for the first time only at a late stage, in its Reply of
19 November 2008.
7. Professor Pellet said not a word about this in his presentation yesterday. I conclude from
this that he appreciated the force of the DRC’s ar gument and avoided any discussion of the matter.
I therefore ask the Court to draw all the inescapable conclusions.
C. The mistreatment suffered by Mr. Diallo
8. Mr.President, ProfessorPellet roused himself during his presentation yesterday to air
once again the question of the mistreatment al legedly suffered by Diallo, which Guinea had
forgotten to address in its oral arguments on 19April. He relied basically on Mr.Diallo’s
statements in the affidavit which I mentioned a moment ago, an affidavit with no serious
evidentiary value, above all when account is taken of the character of Mr. Diallo, described in the
documents submitted by Guinea itself as someone prone to fits of inspiration.
9. Professor Pellet maintains that it was NGOs, religious organizations and Diallo’s family
which fed him, not the Congolese State itself, which in his view failed to discharge its international
obligations. This assertion is surprising and wrong, given that it is the Congolese State, through the
Ministry of Social Affairs and Humanitarian Acti on, which enters into partnerships with local
NGOs, giving them the financial and logistical means to take responsibility for prisoners’ living
11 conditions. If we follow the logic of ProfessorPe llet’s argument, then we would have to see
Congolese ministers themselves in prisons dishing out food to prisoners to be certain that it is the
Government which feeds them. In addition, the Congolese Government always sends food into the
prisons, but it is the prisoners themselves who pr efer the food prepared by their own families, - 5 -
considered to be better than that prepared in th e prison. Mr.Diallo’s other assertions that he was
mistreated in prison are accordingly completely groundless.
D. The lawfulness of Mr. Diallo’s expulsion
10. Mr.President, I elaborated at length du ring my presentation on Monday 26April, in
reply to the question from the Vice-President on the legal basis of the power of the Prime Minister,
instead of the President of the Republic, to i ssue a decree expelling an alien. ProfessorPellet
disputed that explanation, relying on recent official reports presented on the international stage by
the Congolese authorities and stating that the President of the Republic still holds that power
according to the 1983 Legislative Order concerning i mmigration control. I am a little surprised at
ProfessorPellet’s objection because a State official charged with writing a report on the current
state of Congolese legislation on immigration control is going to reproduce verbatim what he reads
in the law in preparing his report. He is not going to carry out an in-depth legal analysis in order to
explain the Prime Minister’s power to act by decree to expel an alien, doing so in the stead of the
President of the Republic, following the adoption of a new constitution that repealed all conflicting
legal, regulatory and constitutional provisions. Professor Pellet’s objection is therefore untenable.
E. Notification of the expulsion decree
11. Professor Pellet also stated yesterday that Mr. Diallo had not received notification of the
expulsion decree. That statement does stand up. Th e material before the Court in fact shows that
the organization Avocats Sans Frontières, which had had contact with Mr. Diallo, went to the press
1
12 to denounce and demand annulment of th e Prime Minister’s expulsion decree . The fact that this
NGO was aware of the decree presupposes that Mr. Diallo was aware of it.
F. Mr. Diallo’s wealth
12. In his statement on what he called “the 1983episode”, ProfessorAlainPellet portrayed
Mr.Diallo as a wealthy man whom the DRC was describing, perhaps out of malice, as a
completely unscrupulous common adventurer. That is not the DRC’s fault, Professor Pellet. Quite
1
Memorial of Guinea (MG), Anns. 192 and 193. - 6 -
the reverse: it is Mr.Diallo himself who conf ounds the fine words you uttered in a spirit of
generosity and good faith in order to defend him.
13. In fact, on 12 July 1995, that is to say, a year before his expulsion from the DRC, Diallo
approached the Congolese authorities to apply for a certificate declaring him to be officially
“destitute” so that he could obtain benefits in connection with the Africontainers-Zaire v. Zaire
Shell case then pending before the Kinshasa/Gombe Tribunal de grande instance. That document
states that:
“Mr.DialloAmadouSadio, of Guinean nationality, statutory administrator of
the company Africontainers SPRL, resident at No. 20, Immeuble PLZ, 9th floor, in the
zone of Gombe, is declared temporarily d estitute, insolvent and lacking any means of
subsistence, after examination of his file.”
14. This official document was submitted by Guinea itself as Annex22 to its Observations
on the DRC’s preliminary objections. Mr.Presi dent, Members of the Court, you will find the
certificate in the judges’ folder in front of you at tab1. Mr.President, what kind of
multimillionaire acts like this and describes hims elf as destitute, that is to say, as a pauper
deserving of welfare assistance? Does Guinea know of a rich man anywhere in the world who
lives in a foreign country and behaves like this w ith the authorities of the host country? Can the
DRC expropriate such a person, someone destitute, a poor unfortunate seeking welfare assistance?
Mr. Diallo has seriously misled the Guinean authorities and they, being honourable and dignified,
like ProfessorAlainPellet, have believed, in good fa ith, that their compatriot indeed left behind
13 immense wealth in the Congo. It is easy to see, in the light of Mr.Diallo’s own behaviour, that
there is no such fortune. I shall return to this point. In fact, Mr.President, Diallo has taken
everyone in Guinea for a ride to the point of bringing the Congolese and Guinean peoples ⎯
fraternal peoples and friends ⎯ into conflict internationally in a completely fabricated case all
about money.
G. The debts owed to Africom and Africontainers by third parties
15. Mr.President, Guinea attempted in its oral arguments yesterday to demonstrate, while
not denying that Africom and Africontainers had not conducted any business since 1991, that
Mr. Diallo’s parts sociales still had a certain value by virtue, on the one hand, of debts owed to - 7 -
those companies by third parties and forming part of their assets and, on the other, of the fact that
those companies were themselves free of debt.
16. As regards debts owing by the companies, Professor Pellet’s assertion is incorrect. There
is no annual turnover figure, no balance sheet, no accounting record to demonstrate that the two
companies had no debts. Have all taxes and the like been paid to the State? No one knows.
Furthermore, so long as a commercial company is not in liquidation, which the two companies in
question are not, one cannot assert in the absence of any evidence whatsoever that it has no debts.
17. As regards claims for payment which are certain, recognized and due, these belong prima
facie to the companies and Mr. Diallo is not entitled to them so long as the companies continue to
exist. In the present case, save as regards the listing paper, none of the debt claims cited by Guinea
is based on goods or services actually provided to third parties; rather, they are wild claims for
damages strenuously disputed by the companies identified as the debtors. The DRC already gave a
full picture of all these debt claims at the preliminary objections stage of proceedings 2. I shall not
revisit it here and would refer the Court to the preliminary objections.
18. In reality, as I have just said, the sums which those companies claim were owing to them
at the time of Mr. Diallo’s removal consist of completely outrageous demands which are not based
on invoices issued for goods or services provided by e ither of the companies. They are claims for
14 damages sought often on completely baseless grounds, but above all in inordinate amounts. Guinea
in fact now acknowledges that the figures in its Application based on the sums allegedly owing to
those companies were exaggerated. Indeed, we should not be talking about debts held ⎯ that is a
misuse of the term ⎯ but rather of overblown claims by the two companies which their former
partners have regarded as pa tently unfounded and completely preposterous given the amounts
claimed.
19. I shall now, Mr.President, with your permission, say a few words about the amounts
allegedly owing which Professor Pellet cited during his presentation yesterday as evidence for the
value of Mr.Diallo’s parts sociales , referring to the claims of the two companies in the
2
Preliminary Objections of the DRC (PODRC), paras. 1.09 to 1.52. - 8 -
proceedings between those companies and, respect ively, PLZ, a subsidiary of the multinational
Unilever, Gécamines and Zaire Shell.
1. Africom-Zaire v. PLZ
20. This dispute concerns compliance with a lease granted by Plantations Lever au
Zaire (PLZ), a subsidiary of the multinational Unile ver, to Africom-Zaire for an apartment owned
3
by PLZ and occupied by Mr. Diallo for seventeen years . Since Diallo had been unable to pay the
rent since 1991, the same year as the bankruptcy of Africontainers, as I explained in my
presentation on Monday 19April, in 1992 PLZ br ought proceedings seeking a judgment against
Africom-Zaire in the amount of some US$32,000 for unpaid rent, together with Mr.Diallo’s
eviction from the premises. Africom-Zaire, in turn, asked the court to order PLZ to pay over
US$32million, alleged to represent the “overpayment of monthly rent for 17years, given that
Africom-Zaire paid the rent for a furnished apartment, whereas the apartment rented was
4
unfurnished” , and US$200,000 in damages.
21. Mr.President, Members of the Court, you have indeed heard correctly that the sum
Africom-Zaire ⎯ and therefore Diallo ⎯ claimed was US$32 million just for alleged overpayment
of monthly rent on an unfurnished apartment! Indeed, it is none too clear how Mr. Diallo obtained
15
a judgment, of 24August1993, from the Kinshasa Tribunal de grande instance ordering PLZ to
5
pay nearly US$33million representing the overpayment of rent and damages . How many
apartment blocks could be built in Conakry for that amount? That decision, clearly handed down
by a judge bribed by Diallo, was quashed at s econd instance in March 1994 by the Kinshasa Court
of Appeal, which upheld PLZ’s action for the payment of rent due and for eviction 6.
Africom-Zaire has brought an appeal, currently pending, to the Supreme Court against that
decision 7. At the current stage of proceedings, Mr.President, one might also point out that since
under Congolese law appeals to the Supreme Court do not stay enforcement in civil cases, it is
3MG, Ann. 130.
4MG, Ann. 130.
5
Ibid.
6See in this regard the appeal to the Supreme Court to which the appellate judgment gave rise, MG, Ann. 146.
7MG, Ann. 146. - 9 -
Africom-Zaire which is in debt to PLZ, not the reverse. Professor Pellet was therefore wrong and
mistaken when he relied on this case to show that there was a sum owing which made Mr. Diallo’s
parts sociales worth something. Quite the contrary: the position is completely unfavourable to
Mr. Diallo.
2. Africontainers v. Gécamines
22. The dispute between Africontainers and Gécamines, to which ProfessorPellet referred,
likewise shows how grossly excessive Africontainers’ claims are. I would point out here that, apart
from the fact that Gécamines has argued that many of Africontainers’ demands are unfounded 8,
Africontainers-Zaire since filing its initial claims has repeatedly revised its claims on the basis of
the number of containers it considered to have been left idle at the Gécamines facilities, or
improperly used by Gécamines, and also on the basis of a unilateral revision of its rates, and this
has led it to assert ever bigger financial claims. So, whereas in 1992 Africontainers put the loss it
16 had incurred as a result of the situation at more than US$30 million 9, by 1996 the estimate of that
damage had grown to a total of US$14billion ⎯ in the space of three years Diallo goes from
US$30million to US$14billion, that is to say, more than the DRC’s entire external debt 10! That
Africontainers’ claims were out of all proportion emerges also from the fact that Africontainers was
seeking US$32,000 from Gécamines for the replacement of each damaged container, whereas a
new container was worth US$3,000 according to in formation obtained by Gécamines from a
11
foreign freight operator .
23. Mr.President, negotiations conducted betw een Africontainers-Zaire and Gécamines in
12 13
1992-1995 continued until late September1997 , that is to say, nearly two years after
Mr.Diallo’s expulsion, in an attempt to reach a final settlement of the dispute. During those
negotiations, Gécamines wrote to Africontainers protesting at the fraudulent schemes carried out by
PODRC, paras. 1.11 to 1.20.
9
See the minutes of the meeting held between the parties on 1 June 1995, MG, Ann. 151, p. 2.
10
See the formal demand for payment served by bailiff on Gécamines at the request of Africontainers-Zaire on
5 Feb. 1996, MG, Ann. 198.
1Letter of 16 July 1991, MG, Ann. 90.
1See Gécamines’ letter of 20 Oct.1992, PODRC, Ann. 12, and the minutes of the meeting held between the
parties on 1 June 1995, MG, Ann. 151.
1See the minutes of meetings of 2 and 7 July 1997, MG, Anns. 224 and 226. - 10 -
14
Africontainers-Zaire staff to the detriment of Gécamines which had just come to light .
Mr.President, you will find that document in the ju dges’ folder at tab2. Those schemes, put in
place in order to swindle Gécamines, which Gécamines had just discovered, consisted ⎯ and this
shows another aspect of Mr.Diallo’s character ⎯ of “introducing into the batch of containers for
Gécamines despatched to its base at Lubumbashi” a number of additional containers which were
despatched to the same town by Africontainers for other local companies. Returning those
containers empty to Kinshasa would have cost Africontainers about US$1,000perunit. By
fraudulently incorporating them into the group of containers regularly sent to Gécamines,
Africontainers had Gécamines cover the cost of their return to Kinshasa. Gécamines found
15
186 instances of such fraud in its initial revi ew and intended to pursue its investigations . That is
17 how Diallo was getting rich by defrauding the interests of the Congolese State.
24. It was the exposure of that fraudulent practice, engaged in for many years by Mr. Diallo,
as gérant of Africontainers, which explains why Africontainers, from Conakry, instructed its
representatives in the negotiations to stop particip ating in the negotiations with Gécamines and
16
why, despite several threats that it would , Africontainers never dare d bring its dispute with
Gécamines before the Congolese courts.
25. In any event, it transpired that the prospects for final settlement offered by the
negotiations carried on in September1997 we re borne out for several other companies ⎯
Kincontainers, ATAF, and FLUCOCO ⎯ which recovered several hundreds of thousands of
United States dollars in total at the outcome of the negotiations 1. I would point out to the Court
that the documents recording those agreements s how clearly that these companies rented out their
18
containers at rates of between one-sixth and one-twentieth of those charged by Africontainers .
1Letter DAT/DIR/54.137/97 of 17 Sep. 1997, PODRC, Ann. 8.
15
Ibid.
16
See, amongst other documents, the formal demand for payment served by bailiff on Gécamines at the request of
Africontainers-Zaire on 5 Feb. 1996, MG, Ann. 198.
1See PODRC, Ann. 9, pp. 36-39.
1Ibid., pp. 29-39. - 11 -
26. To conclude on this point, it is difficu lt to see where there is any sum owing to
Africontainers, one which is certain and acknowle dged by Gécamines, which can reasonably be
counted as an Africontainers asset.
3. Africontainers v. Zaire-Shell
27. Mr. President, Professor Pellet also referred to Africontainers’ claims against Zaire-Shell.
28. In that dispute as well, Africontainers ’ claims, expressed through Mr. Diallo, turned out
to be wildly exaggerated and totally unfounded. Let us recall that the dispute between
Africontainers and Shell also arose out of the 198 3 tripartite contract. In May 1992 Africontainers
18 19
suddenly asserted various claims against the oil company . Africontainers accused Shell of having
improperly terminated the 1981 and 1983 contracts and it demanded US$10,000,000 from Shell as
compensation for the termination of the contracts and US$1,700,000 as compensation for unfair
competition 20. Shell was quick to reject these claims and argued, as did other companies, that there
was no clause granting any exclusivity to Africontainers-Zaire in this ⎯ that is to say, in this
contract 21. Africontainers kept quiet for nearly two years, making no demands whatsoever.
29. Two and a half years later, in early 1995, Africontainers decided to bring this dispute
before the courts, seeking in its principal cl aim a judgment against Shell ordering it to pay
Africontainers slightly more than US$13,000, 000 for terminating the 1981 and 1983 contracts,
together with US$10,000,000 in damages. The trial court in Kinshasa, ruling at first instance and
in default proceedings vis-à-vis Zaire-Shell, uphe ld the first of these claims in its judgment of
22
3 July 1995 . Essentially, the court based its decision on the fact that “the amount owed [was]
certain and has been verified and acknowledged by the defendant” 23. This was incorrect: Shell has
always denied that the debt was certain and most definitely has never acknowledged it.
30. In fact, it was on the basis of an accounting document submitted by Africontainers that
the court reached that conclusion. This was a document prepared by the auditors Coopers and
19See Africontainers-Zaire’s letter to Shell of 25 May 1992, PODRC, Ann. 59.
20Ibid.
21
See Africontainers-Zaire’s letter to Shell of 17 July 1992, PODRC, Ann. 60.
22MG, Ann. 153.
23Ibid. - 12 -
Lybrand, who had been engaged by Shell to aud it its accounts for 1993. In connection with this,
the oil company sent a form letter in February 1994 to all its suppliers of goods and services asking
them, in accordance with customary practice, to c ontact the auditors for the purpose of confirming
the existence of any debts owed by Shell 24.
19 31. Africontainers-Zaire received this letter, as did all other suppliers of goods and services
to Shell 25. This is settled business practice. Taking advantage of the opportunity thus presented,
Africontainers-Zaire forwarded the document to Coopers and Lybrand on 15 March 1994, having
entered on it, next to the minor receivables acknow ledged by Shell in the total amount of US$540,
a bogus debt supposedly owed by the oil company in the amount of US$13,000,000 26. This,
Mr. President, is thus nothing but a unilateral demand that the Kinshasa-Gombe Tribunal de grande
instance unfortunately considered to have been acknowledged by Shell because it was noted in one
of the auditors’ documents.
32. However that may be, Mr. President, that judgment was quashed by one handed down by
27
the Kinshasa-Gombe Court of Appeal on 20June2002 ordering Shell to pay Africontainers
US$540 for the principal debt and US$1,000 in dama ges. The Court of Appeal thus rejected
Africontainers’ claims concerning violations of the 1983 contract for which Shell was allegedly
liable.
33. Mr.President, Professor Pellet was only inter ested in the beginning of the story of the
so-called 13-million-dollar debt he cited, but the Court now knows the end of the story. Mr. Diallo
is free at any time to ask Guinea’s Embassy in Ki nshasa or his lawyers in Kinshasa to go pick up
the 540dollars ⎯ not 13million, but 540dollars ⎯ to be handed over to Africontainers, which
holds no 13-million-dollar debt owing by Shell, and that is the “debt” to which Professor Pellet was
referring yesterday.
24PODRC, Ann. 61.
25
PODRC, Ann. 62.
26Ibid.
27Ibid. - 13 -
4. Africontainers v. Onatra
34. I am going to conclude the section on the purported debt claims with the dispute between
Africontainers and Onatra and this will show, yet again, an aspect of Mr.Diallo’s character. The
dispute was the subject of a properly concluded settlement in 1990 pursuant to the terms of which
Onatra, a State-owned undertaking, was to pay 150 million zaires to Africontainers to put an end to
28
20 the disagreement . Onatra honoured its commitments by paying the agreed amount in full to
Africontainers. After collecting that sum, Mr. Diallo a few days later repudiated the settlement
which had been agreed to and already carried out, and demanded 42billion for misuse of
29
containers . The State-owned undertaking rejected this claim, asserting in particular that the
settlement covered both cases of immobilization and those of improper use 30.
35. Mr.President, that then is what made up the fortune left behind by Mr.Diallo in the
Congo, the fortune of which he was allegedly expropriated by the DRC: parts sociales in Zairean
companies which had been inactive since the early 1990s and whose gross assets consisted
essentially of claims by them against their former trading partners. Aside from the fact that most of
these claims have been deemed unjustified by all of the companies’ partners, they are patently out
of all proportion, and Guinea itself so admitted in court in its argument on Monday. Can such
claims be considered real assets of a company, worthy of being counted as such and capable of
giving any certain, proven economic value to its share capital?
H. The right to manage and control the companies
36. Mr. President, I now come to another completely unfounded assertion made by Guinea.
During his statement yesterday, Professor Pellet claimed that Mr. Diallo’s expulsion prevented him
from managing the companies and more particular ly from pursuing Africontainers’ so-called
creditors. And yet, apart from the fact that everyday corporate management falls within the
gérant’s authority, as I already pointed out in my statement on Monday, and is not therefore part of
the associé’s direct rights, we may well ask what, in practical terms, there was left to manage in
1995-1996.
2MG, Ann. 69.
29
MG, Ann. 72.
3PODRC, Ann. 22. - 14 -
37. As I have just said, the only activ ity of the companies, as ProfessorPellet
acknowledged— and I agree with him on this point—, was making certain claims against their
21 former trading partners, be this in correspondence or even before the cour ts. Now, Mr.Diallo’s
deportation did not prevent these “activities” from contin uing. To give an example, Mr.Diallo’s
expulsion in January1996 did not adversely affect the management of the dispute between
Africontainers and Gécamines, the DRC’s leading mining company. Here I would point out that if,
as Guinea contends, the DRC’s aim was to prev ent Mr.Diallo from pursuing his companies’
alleged creditors, it is difficult to see why a State concern such as Gécamines would have continued
to negotiate with Africontainers after Mr. Diallo ’s expulsion. And yet it is clear from the evidence
in the record that the negotiations initiated between Africontainers and Gécamines in 1992-1995 31
32
continued until the end of September 1997 , and that Guinea was directly represented at them by a
diplomatic agent expressly entrusted with that task.
38. In this connection, Mr.President, on 1 Ju ly 1997— almost two years, rather, over one
year after Mr.Diallo’s expulsion— Guinea’s am bassador in Kinshasa wrote the following to the
Guinean Minister for Foreign Affairs:
“[t]he Embassy has recommended Mr.Diallo ’s representatives to attend the meeting
[on the Africontainers-Gécamines negotiations], to listen to the proceedings, to gather
as much information as possible on Gécamines’ intentions, and to bring it to the
attention of Mr. Diallo”.
The Guinean ambassador in Kinshasa went on to say: “Mr. Touré, First Secretary for Financial and
Consular Affairs, will accompany them discreetly.”
39. You will find the proof that Guinea was it self a direct participant in the negotiations
between Gécamines and Africontainers in the judges’ folder at tab 3. These events occurred more
than one year after Mr.Diallo’s expulsion. Th e same can be said, Mr.President, of the progress
report on the negotiations with Gécamines sent by the new gérant of Africontainers to the Guinean
ambassador in Kinshasa on 9January1997. So , despite Mr.Diallo’s removal from Congolese
territory in January 1996, Africontainers continued to participate in and to be represented at those
22 negotiations by two of its representatives, Mr. Ka nza Ne Kongo and Mr. Ibrahim Diallo, as well as
31
See the Gécamines letter of 20 Oct.1992, PODRC, Ann. 12, and the minutes of the meeting held between the
parties on 1 June 1995, MG, Ann. 151.
32
See the minutes of 2 and 7 July 1997, MG, Anns. 224 and 226. - 15 -
by two of its lawyers . The company’s representatives participated in those meetings until the end
34
of September1997 , after which they were not heard from again. Likewise, in respect of the
Africontainers–Shell dispute, Africontainers conti nued to attend the hearings before the Kinshasa
Court of Appeal after Mr.Diallo’s expulsion. The judgment rendered by the Kinshasa Court of
Appeal on 20June2002 shows that Africontaine rs had attended the hearings of 14February,
35
27 March, 24 April, 24 July and 3 October 1996 , nine or ten months after Mr. Diallo’s expulsion.
It was only at the hearing of 10 August 2001 before the Court of Appeal that, for reasons unknown,
Africontainers would fail to appear. Therefore, Mr.President, Guinea is wrong to persist in
contending that Mr. Diallo’s expulsion prevented Africom-Zaïre and Africontainers from operating
and more particularly from pursuing their alleged creditors.
I. The DRC is not responsible for Mr. Diallo’s difficulties or
for the bankruptcy of the companies
40. Mr.President, the entire argument laid out by Guinea throughout these proceedings is
based on the erroneous and unproved assertion that the DRC is responsible for Mr.Diallo’s
destitution and the bankruptcy of his Congolese compan ies, of which he is, says Guinea, the sole
associé and the sole gérant. I will return to this last point in a few moments.
41. During my presentation of last Monday, I explained at length, with evidence to support
this, how Africontainers was in a state of undeclared bankruptcy from 1991 onwards, the year in
which it ceased its activities. And given that the only known “activity” of the second company,
Africom, was its 60 per cent holding in the capital of Africontainers, Mr. President, it therefore has
to be accepted that the logical and inevitabl e consequence of the bankruptcy of one—
Africontainers— was also the bankruptcy of the other— Africom. Here let me bring in an
additional piece of evidence further confirming that the two companies were in undeclared
bankruptcy from at least 1991.
23 42. During the negotiations held between Gécamines and the freight forwarders,
Africontainers included, on 9December1991, almost 12months after Diallo left, the Chairman
3Ibid.
34
Ibid.; see also PODRC, Ann. 7.
3PODRC, Ann. 64. - 16 -
and Chief Executive Officer of Gécamines explai ned the source of the company’s difficulties,
which also accounted for the difficulties encountered by the companies which had contracted with
it. Gécamines revealed that its copper and cobalt production had fallen from 480,000 tonnes a year
to 50,000 tonnes a year and, in addition, that serious operational problems had arisen on the railway
line between Kinshasa and Lubumbashi, which was used for the containerized transport of both the
lubricants it ordered from oil companies and its own products. For these reasons, Gécamines was
no longer in a position to require their transport services. Mr. President, you will find the minutes
from that meeting in the judges’ folder at tab 4. I would point out that this document was appended
by Guinea itself to its Memorial. This explains Africontainers’ statement that all orders coming
from Gécamines fell each year, before stopping altoge ther in 1991. I have already provided this
document to the Court in the judges’ folder presented at my oral argument last Monday. On top of
this came the serious events and rioting which the country experienced in 1991 and 1993 and which
negatively affected the country’s economic structure, a subject I addressed on Monday.
43. Further, in a letter sent on 14April1992 to Africontainers by Zaire Fina, the latter
clearly stated that Africontainers was having severe operating difficulties. It promised to resume
its business dealings with Africontainers once Africontainers had resolved the difficulties it faced.
Mr. President, you will also find that letter in the judges’ folder at tab 5. Once again, I would point
out that Guinea appended this document to its Memorial.
44. Under those circumstances, I cannot see any reasonable, persuasive grounds on which
Guinea can hold the DRC responsible for Mr.Diallo’s misfortunes, the lack of any further
investment on his part, the dwindling value of the capital, or the undeclared bankruptcy of the
companies, because of his arrest in 1988 and expulsion a few years later. Professor Pellet remained
silent on this matter and, in any case, has failed to supply a single probative document which would
allow for the conclusion that Mr.Diallo’s arrest in 1988 and then his expulsion ⎯ and, may I
24 remind you, he was already destitute at the time, despite being gérant of the companies ⎯ were the
cause of his poverty and the bankruptcy of the compan ies, when in fact they had already ceased all
activities at least five years before the expulsion, in 1991.
45. The DRC cannot therefore be held responsible for Mr.Diallo’s difficulties, the
diminishing value of his parts sociales, or his personal troubles. On all of those counts, the DRC - 17 -
categorically rejects Guinea’s approach, which consists of making the DRC the scapegoat for the
misfortunes of an alleged Guinean millionaire who, in reality, was just a pauper who, like other
companies, was the indirect victim of the situation in the country at the time.
J. The expropriation of Mr. Diallo’s parts sociales
46. In his statement yesterday, ProfessorPellet revisited at length the question of the
expropriation of Mr. Diallo’s parts sociales. I will now respond to his arguments on that issue.
47. In effect, Guinea’s general argument is built on the erroneous assertion that
Africontainers and Africom are one and the same as Mr. Diallo because he is their sole associé and
sole owner, and that any injury caused to them is an injury cau sed to Mr.Diallo, for which the
DRC is answerable. ProfessorAlainPellet made this very clear again in his statement yesterday,
Wednesday 28 April, when he said:
“[O]ne might at first glance think this argument an attempt to circumvent
paragraph 3 of the operative clause in the 2007Judgment. But that is not at all so:
this feeling arises from a factual element specifi c to this case: the fact that Mr. Diallo
is the sole associé in the two companies, that is to say, the only owner of the parts
sociales in Africom and Africontainers. As a consequence, [he added] even though
officially they have separate legal personaliti es, the very special characteristics of the
relationship between Mr.Diallo and his companies means that, from the factual
perspective, which is the perspective of expropriation (expropriation is a question of
fact), the property of the two companies merges with his [with Mr. Diallo’s]. Thus, in
expropriating his companies, the DRC infringed Mr.Diallo’s ownership right in his
parts sociales.”
He added that “this is entirely a product of the particular circumstances and follows from the
36
unipersonal nature of the companies in question” .
25 48. Mr.President, Members of the Court, Guinea’s arguments should be rejected both on
legal and factual grounds. On lega l grounds, first. How can it still be maintained at this stage of
the proceedings that the DRC should compensate for the injury allegedly suffered by the companies
without calling into question the very authority of the Court’s decision on the Preliminary
Objections? The Court already stated in its 2007 Judgment on the Preliminary Objections,
referring in this connection to the decision in the Barcelona Traction case, that: “[c]onferring
independent corporate personality on a company implies granting it rights over its own property,
rights which it alone is capable of protecting”. The Court continued:
36
See CR 2010/5, p. 28, para. 47 (Pellet). - 18 -
“Congolese law accords an SPRL independe nt legal personality distinct from
that of its associés, particularly in that the property of the associés is completely
separate from that of the company, and in that the associés are responsible for the
debts of the company only to the extent of the resources they have subscribed.”
(AhmadouSadioDiallo (Republic of Guinea v. Democratic Republic of the Congo),
Preliminary Objections, J udgment, I.C.J. Reports 2007, pp6 .05-606, paras6.1
and 63.)
49. I note that, in deeming the property of Africom and Africontainers to be merged with,
and therefore not separate from, that of Mr.Diallo, ProfessorPellet is championing an argument
completely at variance with the Court’s view and, in doing so, is disregarding Congolese law,
which is clear on that issue, and the position of the Court. I therefore believe this to be a direct
attack on the Court’s authority and the DRC asks th e Court to defend against this challenge to its
authority. For my part, I can only reject the factual, ad hoc analysis set out by Professor Pellet in
favour of an analysis based on Congolese law, which makes no provision for unipersonal
companies.
50. Furthermore, Professor Pellet stated during his oral argument yesterday that “in
expropriating his companies, the DRC infringed Mr.Diallo’s ownership right in his parts
sociales”37. Mr.President, I admit that I am completely baffled by this statement from
ProfessorPellet because this has never been about the expropriation of the companies, but rather
the expropriation of Mr.Diallo’s parts sociales . And yet this can be explained by Guinea’s
26 litigation strategy, which consists of hiding behind Diallo, assuming the guise of Diallo, to raise the
issue of reparation for damages and losses actually suffered by the companies.
51. Further, Guinea’s argument is based on a truncated version of the facts, and on
unsubstantiated facts. Guinea thus port rays Mr.Diallo to us as the sole associé in Africontainers
and Africom, and therefore as indirectly control ling Africontainers, of which Africom-Zaire holds
60percent. However, Guinea, to whom it fall s to prove this, has failed to supply a single
evidential document to show that Mr.Diallo was an associé in Africom-Zaire at the time of his
expulsion from Congolese territory and, if he were, how many parts sociales he held. In addition,
Guinea has failed to produce the register of the parts sociales in the company which, pursuant to
Article 55 of the Decree of 27 February 1887 on commercial corporations, must be kept by SPRLs
37
See CR 2010/5, p. 28, para. 47, in fine (Pellet). - 19 -
38
to allow associés and third parties to identify the holders of parts sociales . In respect of
Africontainers, in 1980, 60 per cent of its shar e capital was held by Africom-Zaire and 40 per cent
by Mr. Diallo. There would appear to have been no subsequent change in this situation. Therefore,
neither Guinea’s description of Mr. Diallo as the sole associé in Africom-Zaire nor its claim that he
directly or indirectly controlled Africontainers can be accepted: the only thing that is certain is that
in 1980 Mr.Diallo held 40percent of the cap ital in Africontainers, the remaining 60percent
belonging to a company, Africom-Zaire, about which we in the end know very little today.
Mr.President, the concept of a company with a sole associé or sole owner does not exist under
Congolese law. Guinea also raised the issue of Mr. Diallo’s investments in the Congo.
K. Mr. Diallo’s investments
52. Guinea also contends that Mr.Diallo made substantial investments in the 1970s in the
two companies 39. However, none of the evidence produ ced by Guinea provides any basis for
27 believing that investments were made in Africom-Za ire. In respect of Africontainers, Guinea now
contends that the investments were made by Mr. Diallo. This is not entirely accurate. Indeed, as
Guinea itself stated in its Memorial, those invest ments, used for the most part to purchase
containers and trailers, were made by Africontainers, a legal entity, thus entitled to tax and customs
40
benefits under the Investment Code to be deducted from its taxable profit. Accordingly, those
investments were not made by Mr. Diallo in his individual capacity. The fact that the investments
were made by Africontainers, and not by Mr. Di allo, is further confirmed by documents produced
41
by Guinea itself .
Likewise, Guinea presents Mr.Diallo as the sole gérant of those companies, but here too,
although there is no dispute as to his being their gérant, there has been no evidence produced to
38Counter-Memorial of the DRC (CMDRC), Ann.15 (Decre e of 27 Feb.1887 on commercial corporations).
Guinea is in no position to offer as an excuse that it was un able to produce a credible document relating to Mr.Diallo’s
position as associé in that company because of his expulsion from the territory, in view of the impressive number of
documents it has produced on other aspects of the dispute and notably on the so-called debts owed to Mr. Diallo. In this
respect, see PODRC, paras. 0.08 and 0.09. The DRC, for its part, has not un covered any documents relating to the parts
sociales in that company.
39
Reply of Guinea (RG), para. 2.83.
40MG, para. 2.15.
41MG, Anns. 9 and 16. - 20 -
prove that he was the sole gérant. Mr. President, I will now address the issue of the bankruptcy of
the companies.
L. The bankruptcy of the companies
53. The two companies, which Guinea is toda y wrongly seeking to impute to the DRC or to
its former trading partners, we re nothing out of the ordinary. In the 1980s, Africontainers’
activities centred on the tripartite contract among itself, three oil companies— Mobil Oil, Zaire
Shell and Zaire Fina— and Gécamines 42. Under that agreement, the oil companies supplied
Gécamines with petroleum products, using Africontainers’ secure containers to transport them from
Kinshasa to regions in the interior of the c ountry. Furthermore, Africontainers undertook to
transport some of Gécamines’ production from the areas where it was mined to the ports of
Kinshasa, or from Matadi to Kinshasa. A number of things were to bring an end to those transport
activities. Firstly, in 1986, major redevelopment work was started at the port of Kinshasa, as a
result of which container-unloading operations were relocated from the port of Kinshasa to that of
28 Matadi, 350km away. As a result of that decision, the traffic of containers of the various freight
forwarders operating on that railway line was hampered 4. Next, at the end of the 1980s, following
on from the unrest experienced by the country, Gécamines’ annual production fell— as I have
said— from almost 470,000tonnes to just 50,000tonnes. At a meeting between Gécamines and
the freight forwarders, Africontainers included, Gécamines explained the source of its problems. It
was under those circumstances that the oil comp anies, no longer supplying products to the
struggling Gécamines, had no further need of Afric ontainers. As a result of this, Africontainers,
whose only customers were those companies, found itself without any business in 1991.
54. Furthermore, need I mention here the ser ious political, economic and social crisis that
swept through the DRC at the start of the 1990s ? Thus, in 1991, unprecedented mass rioting
destroyed the economic fabric of the DRC and led to large-scale plundering of public and private
enterprise, proving fatal for many companies in the country. Likewise, in 1993, further mass
42
MG, Ann. 13 and PODRC, paras. 1.07 et seq.
43PODRC, para. 1.08. - 21 -
rioting broke out— during which, as I pointed out, the French ambassador in Kinshasa was
44
killed — leading to substantial plundering of both public and private property .
Guinea cannot now pretend that Africom and Africontainers miraculously escaped unscathed
from that situation. Furthermore, the fact that at the start of the 1990s Africontainers was no longer
able to pursue its containerized transport activities is confirmed by letters sent to it by one of its
former trading partners, Zaire Fina, in 1992, in which the latter pointed out that it was not
responsible for the interruption in performance of the tripartite contract, but rather that it was
Africontainers which had been unable to supply th e services required by the agreement owing to
the wretched state of its containers, as well as to difficulties encountered by Africontainers at a
45
particular time . Zaire Fina thus suggested that Afric ontainers get back in touch with it if
46
Africontainers thought itself in a position to resume its activiti es under the agreement .
29 Africontainers took no action on Za ire Fina’s suggestion, which would confirm that its condition
hardly improved afterwards. Mr.President, ProfessorPellet raised the issue of the valuation of
Mr. Diallo’s parts sociales.
M. Valuation of Mr. Diallo’s parts sociales
55. The DRC believes it clear beyond doubt that Mr.Diallo’s parts sociales can only be
valued, if required, after the assets and liabilities of Africom and Africontainers have first been
valued. However, the only existing assets of the two companies are the purported debts or claims
for monies allegedly owed to them by third parties. It is self-evident that the Court would thus
have to reverse itself by allowing Guinea to concern itself with rights and debt claims of companies
not having its nationality in order to determine the value of the parts sociales held by Mr. Diallo in
those companies, which would be at variance with the Court’s Judgment of 24 May 2007.
56. Furthermore, Guinea does not make it clear from what point or date the expropriation of
Mr. Diallo’s part sociales is alleged to have taken place becau se, as I explained just a moment ago
during this pleading, Africontainers continued to operate after Mr.Diallo’s expulsion until
September 1997 under Guinea’s direct control by means of its embassy in Kinshasa.
44CMDRC, paras. 1.04 to 1.06.
45
PODRC, Anns. 50 and 51.
46PODRC, Anns. 50 and 51. - 22 -
57. To sum up, I have just explained to the Court how all of Guinea’s claims are unfounded.
The DRC has never violated Mr.Diallo’s individua l personal rights. Nor has it interfered in any
way with Mr. Diallo’s rights as associé in Africom and Africontainers. I therefore ask the Court to
reject all of Guinea’s claims.
58. Mr. President, Members of the Court, I thank you for your attention.
59. Mr.President, if you would be so kind as to give me the floor, I will present the
submissions of the Respondent in my capacity as Co-Agent.
The VICE-PRESIDENT, Acting President: This is what the Court is now expecting from
you and what is provided for by the Rules of Cour t, and I would add that those final submissions
30 should be transmitted in writing, duly signed by eith er the Agent or the Co-Agent, to the Registry
on the conclusion of the hearing. You have the floor, Mr. Kalala.
Mr. KALALA: Thank you very much for giving me the floor, Mr. President. I can reassure
you that the submissions have already been signed a nd that the Court’s administration is already in
possession of the signed documents. Mr.President, before reading the final submissions of the
DRC, I would like to say a few words in my cap acity as Co-Agent. The Democratic Republic of
the Congo greatly appreciates the patience shown by Members of the Court and all staff during
these oral proceedings. The Democratic Republic of the Congo once again puts its faith in the
Court and trusts in its wisdom to settle this di spute between two fraternal and friendly countries,
who have and will continue to ha ve good and amicable relations, in spite of this unfortunate
incident brought on by Mr. Diallo. The DRC woul d like to reassure the Court and Guinea that, in
light of this case, it has revisited its legislation on the rights of aliens and that a bill, based on the
laws of Belgium and France in this area, which are among the most advanced in the world, is
currently in the Congolese Parliament and will soon be adopted to replace the existing law at issue
in these proceedings. This will afford nationals of Guinea, and other aliens, living in the Congo
better protection for themselves and for their property. If the Court wished, for its information, to
be supplied with the documents relating to this new legislation, as it was for the Constitution, for
instance, the Congolese Government would be happy to submit these to it on request, and even also
to Guinea. To conclude, should the Court so de cide, the Democratic Republic of the Congo is - 23 -
prepared to apologize to Guinea, as it requested in its Application, in respect of the matters
concerning Mr.Diallo’s expulsion and detention, and it would do so with the aim of maintaining
good relations between two brotherly, friendly countries. However, the DRC’s willingness to do so
should not be interpreted in any way as an admi ssion of having violated Mr.Diallo’s individual
rights. Mr.President, I shall now present the s ubmissions of the Democratic Republic of the
Congo.
31 II. SUBMISSIONS
In the light of the arguments referred to a bove and of the Court’s Judgment of 24 May 2007
on the preliminary objections, whereby the Court declared Guinea’s Application to be inadmissible
in so far as it concerned protection of Mr.Diallo in respect of alleged violations of rights of
Africom-Zaire and Africontainers-Zaire, the Respondent respectfully requests the Court to adjudge
and declare that:
1. the Democratic Republic of the Congo has not committed any internationally wrongful acts
towards Guinea in respect of Mr. Diallo’s individual personal rights;
2. the Democratic Republic of the Congo has not committed any internationally wrongful acts
towards Guinea in respect of Mr.Diallo’s direct rights as associé in Africom-Zaire and
Africontainers-Zaire;
3. accordingly, the Application of the Republic of Guinea is unfounded in fact and in law and no
reparation is due.
Thank you, Mr. President.
The VICE-PRESIDENT, Acting President: Thank you, Professor, firstly for your
presentation as Counsel and Advocate, and then for your statement in your capacity as Co-Agent of
the Democratic Republic of the Congo. The Cour t takes note of the final submissions which you
have just read on behalf of the Democratic Republic of the Congo, as it took note yesterday of the
final submissions presented by the Republic of Guinea.
This brings us to the end of the hearings devot ed to the oral arguments in this case. I would
like to thank the Agents, Counsel and Advocates of the two Parties for their statements during these - 24 -
two weeks. In accordance with the usual practice, I would ask that the Agents remain at the
Court’s disposal to provide any further information that the Court may require.
With this proviso, I now declare closed th e oral proceedings in the case concerning
Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo). The Court will
now retire for deliberation. The Agents of the Parties will be advised in due course as to the date
on which the Court will deliver its Judgment. As the Court has no other business before it today,
the sitting is now closed.
The Court rose at 5.20 p.m.
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