Certain Criminal Proceedings in France (Republic of the Congo v. France) - The Court rejects the request for the indication of a provisional measure submitted by the Republic of the Congo

INTERNATIONAL COURT OF WSTICE

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Press Release
Unofficial

No. 2003/20
17 June 2003

Certain Criminal Proceedings in France
(Republic of the Congo v. France)

The Court rejects the reguest for the indication of a provisional measure

submitted by the Republic of the Congo

THE HAGUE, 17 June 2003. Today the International Court of Justice (ICJ), the principal

judicial organ of the United Nations, rejected the request for the indication of a provisional measure
submitted by the Republic of the Congo in the case concerning Certain Criminal Proceedings in
France (Republic of the Congo v. France).

In its Order, the Court finds, by fourteen votes to one, "that the circumstances, as they now

present themselves to [it], are not such as to require the exercise of its power under Article 41 of
the Statute to indicate provisional measures".

History of the proceedings

On 9 December 2002, the Republic of the Congo filed in the Registry of the Court an
Application instituting proceedings against France seeking the annulment of the investigation and
prosecution measures taken by the French judicial authorities further to a complaint for crimes
against humanity and torture allegedly committed in the Congo against individuals having
Congolese nationality filed by varions human rights associations against the President of the

Republic of the Congo, Mr. Denis Sassou Nguesso, the Congolese Minister of the Interior,
General Pierre Oba, and other individuals including General Norbert Dabira, Inspector-General of
the Congolese Armed Forces, and General Blaise Adoua, Commander of the Presidential Guard.

The Congo contends that by "attributing to itself universal jurisdiction in criminal matters

and by arrogating to itself the power to prosecute and try the Minister of the Interior of a foreign
State for crimes allegedly Cûmmitted byhim in Cûnnection with the exercise of his powers for the
maintenance of public arder in his country", France violated "the principle that a State may not, in
breach of the principle of sovereign equality among all Members of the United Nations ... exercise

its authority on the territory of another State". The Congo further submits that, in issuing a warrant
instructing police officers to examine the President of the Republic of the Congo as witness in the
case, France violated "the criminal immunity of a foreign Head of State- an international
customary rule recognized by the jurisprudenceof the Court".

In its Application, the Congo indicated that it proposed to found the jurisdiction of the Court,
pursuant to Article 38, paragraph, ofthe Rules of Court, "on the consent of the French Republic,
which will certainly be given". In accordance with this provision, the Congo's Application was
transmitted to the French Government and no action was taken in the proceedings. By a letter -2-

dated 8 April 2003 and addressed to the Registry, France stated that it "consent[ed] to the
jurisdiction of the Court to entertain the Application pursuant to Article 38, paragraph 5". This
consent made itpossible to enter the case in the Court's List and to open the proceedings.

The Congo's Application was accompanied by a request for the indication of a provisional
measure "seek[ing] an order for the immediate suspension of the proceedings being conducted by
the investigatingjudge of the Meaux Tribunal de grande instance". Public hearings were held on

28 and 29 April 2003. At those hearings, the Congo confirmed its request for the indication of a
provisional measure while France asked the Court to reject that request and not to indicate any such
measure.

Reasoning of the Court

The Court begins by recalling that the power to indicate provisional measures has as its

object to preserve the respective rights of the parties pending a final decision in the case and that it
presupposes that irreparable prejudice should not be caused to rights which are the subject of
dispute. It adds that such measures arejustified solely ifthere is urgency.

The Court examines the Congo's argument according to which the French criminal
proceedings are a cause of irreparable prejudice to the honour and reputation of the highest
authorities of the Congo, and to internai peace in the country, to its international standing and to

Franco-Congolese friendship. Itnotes that it has not been informed in what practical respect this
has occurred and finds that no evidence has been placed before it of any serious prejudice or threat
of prejudice of this nature.

The Court goes on to determine whether the criminal proceedings currently pending in
France entail a risk of irreparable prejudice to the right of the Congo to respect by France for the
immunities of President SassouNguesso as Head of State. In this regard, the Court takes note of

the statements of French representatives during the hearings according to which "France in no way
denies that President SassouNguesso enjoys, as a foreign Head of State, 'immunities from
jurisdiction, both civil and criminal'". The Court concludes from the foregoing that as regards
President SassouNguesso, there is at the present time no risk of irreparable prejudice.It adds that
it is not established either that any such risk exists as regards General Oba, Minister of the lnterior
of the Republic of the Congo.

The Court further considers the existence of a risk of irreparable prejudice in relation to the
claim of the Congo that the unilateral assumption by a State of universal jurisdiction in criminal
matters constitutes a violation of a principle of international law. It rejects this allegation after
reaching a number of conclusions. As regards President SassouNguesso, the Court stresses that
the request for a written deposition made by the investigatingjudge on the basis of Article 656 of
the French Code of Criminal Procedure has not been transmitted to the person concerned by the

French Ministry of Foreign Affairs, while this is the only way to take evidence from him. As
regards General Oba and General Adoua, the Court observes that they have not been the subject of
any procedural measures by the investigating judge. There is therefore no urgent need for
provisional measmes. As fm Geneml Dabim, the Comt notes that the criminal pwceedings
instituted in Meaux have had an impact upon his own legal position, inasmuch as he possesses a
residence in France, and was present in France and heard as a témoinassisté,and in particular
because, having returned to the Congo, he declinedto respondto a summons from the investigating

judge, who thereupon issued a mandat d'amener against him. The Court however indicates that the
practical effect of a provisional measure of the kind requested would be to enable General Dabira
to enter France without fear of any legal consequencesbut that the Congo has not demonstrated the
likelihood or even the possibility of any irreparable prejudice to the rights it claims resulting from
the procedural measures taken in relation to GeneralDabira.

Since the Court does not see, in the circumstances of the case, any need for measures to be

indicated independently of the requests submitted by the Parties, it rejects the Congo's request, not -3-

without having recalled that its decision in no way prejudges the question of its jurisdiction to deal
with the merits of the dispute.

Composition of the Court

The Court was composed as follows: President Shi; Vice-President Ranjeva;

Judges Guillaume, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Al-Khasawneh,
Buergenthal, Elaraby, Owada, Simma, Tomka; Judge ad hoc de Cara; Registrar Couvreur.

Judges Koroma and Vereshchetin append ajoint separate opinion to the Order; Judge ad hoc

de Cara appends a dissenting opinion to the Order.

A brief summary of the Order is published in the document entitled "Summary No. 200311",
to which a summary of the opinions is attached. The full text of the Order and of the opinions
appears on the Court's website (www.icj-cij.org).

Information Department:
Mr. Arthur Witteveen, First Secretary of the Court (tel: +31 70 302 2336)

Mrs. Laurence Blairon and Mr. Boris Heim, Information Officers (tel: +31 70 302 2337)
E-mail address: [email protected]