Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo) - The Court finds that in carrying out the arrest, detention and expulsion of Mr. Diallo in 1995-1996, the DRC violated hi

INTERNATIONAL COURT OF JUSTICE

Peace Palace, Carnegieplein 2, 2517 KJ The Hague, Netherlands
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Website: www.icj-cij.org

Press Release
Unofficial

No. 2010/39
30 November 2010

Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo)
The Court finds that in carrying out the arrest, detention and expulsion of
Mr. Diallo in 1995-1996, the DRC violated his fundamental rights,
but that it did not violate his direct rights as “associé” in the

companies Africom-Zaire and Africontainers-Zaire

THE HAGUE, 30November2010. The Interna tional Court of Justice(ICJ), the principal
judicial organ of the United Nations, today de livered its Judgment in the case concerning

Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo).

In its Judgment, which is final, without appeal and binding on the Parties, the Court

(1) finds, by eight votes to six, that the claim of the Republic of Guinea concerning the arrest and
detention of Mr. Diallo in 1988-1989 is inadmissible;

(2) finds, unanimously, that, in respect of the circumstances in which Mr. Diallo was expelled from
Congolese territory on 31January1996, the Democratic Republic of the Congo violated
Article13 of the International Covenant on Civil and Political Rights and Article12,
paragraph 4, of the African Charter on Human and Peoples’ Rights;

(3) finds, unanimously, that, in respect of the circum stances in which Mr.Diallo was arrested and
detained in 1995-1996 with a view to his e xpulsion, the Democratic Republic of the Congo
violated Article9, paragraphs 1 and2, of the International Covenant on Civil and Political
Rights and Article 6 of the African Charter on Human and Peoples’ Rights;

(4) finds, by thirteen votes to one, that, by not informing Mr.Diallo without delay, upon his
detention in 1995-1996, of his right s under Article36, paragraph1(b) , of the Vienna
Convention on Consular Relations, the Democr atic Republic of the Congo violated the
obligations incumbent upon it under that subparagraph;

(5) rejects, by twelve votes to two, all other submissions by the Republic of Guinea relating to the
circumstances in which Mr. Diallo was arrested and detained in 1995-1996 with a view to his
expulsion;

(6) finds, by nine votes to five, that the Democratic Republic of the Congo has not violated

Mr. Diallo’s direct rights as associé in Africom-Zaire and Africontainers-Zaire; - 2 -

(7) finds, unanimously, that the Democratic Republic of the Congo is under obligation to make
appropriate reparation, in the form of compensation, to the Republic of Guinea for the injurious

consequences of the violations of international obligations referred to in subparagraphs (2) and
(3) above;

(8) decides, unanimously, that, failing agreement between the Parties on this matter within

six months from the date of this Judgment, the question of compensation due to the Republic of
Guinea shall be settled by the Court, and reserves for this purpose the subsequent procedure in
the case.

Reasoning of the Court

The Court recalls that the dispute between Guinea and the DRC concerns “serious violations
of international law” which are alleged to ha ve been committed by the DRC “upon the person of a

Guinean national”, Mr. Ahmadou Sadio Diallo (para.1). The latter, who founded two sociétés
privées à responsabilité limitée (private limited liability companies) in the DRC, Africom-Zaire and
Africontainers-Zaire, was arrested and impris oned on 25January1988, before being released a
year later following the closure of the case by the public prosecutor in Kinshasa for “inexpediency

of prosecution”. The Court further concludes from the evidence submitted to it by the Parties that
Mr.Diallo was arrested on 5November1995 and detained until 10January1996, then rearrested
and detained on a date no later than 25January 1996; those measures were for the purpose of
enabling the expulsion decree issued against Mr.Diallo on 31October1995 to be effected.

Mr. Diallo was finally expelled from Congolese territory on 31 January 1996.

Having declared 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” and “in so far as it concerns protection

of [his] direct rights as associé in Africom-Zaire and Africontainers-Zaire” in its Judgment of
24May2007, the Court addresses those two questions in turn, before examining the claims for
reparation made by Guinea.

1. Protection of Mr. Diallo’s rights as an individual

(a) The claim concerning the arrest and dete ntion measures taken against Mr.Diallo in

1988-1989

Before pronouncing on Guinea’s request for the Court to declare that Mr.Diallo was the
victim in 1988-1989 of arrest and detention measures which were contrary to international law, the

Court considers the DRC’s assertion that the said request is inadmissible on the grounds that it was
presented late. It notes that the claim in respect of the events in 1988-1989 was first presented by
Guinea in its Reply, in which it “describes in detail the circumstances surrounding Mr.Diallo’s
arrest and detention in 1988-1989” and states that these “inarguably figure among the wrongful acts

for which Guinea is seeking to have the Respondent held internationally responsible” (para.32).
The Court considers that the said claim is not “implicit in the Application”, nor does it “arise
directly out of the question which is the subject-matter of the Application” (para. 41). It points out
in this connection that the Application concerns “violations of Mr.Diallo’s individual rights

alleged by Guinea to have resulted from the arre st, detention and expulsion measures taken against
him in 1995-1996”. However, the cl aim in respect of th e events in 1988-1989 concerns “other
arrest and detention measures, taken at a differe nt time and in different circumstances” and,
moreover, on “completely different” legal bases (p ara.43). The Court finds that “the claim

concerning the arrest and detention measures to which Mr.Diallo was subject in 1988-1989 is
inadmissible” (para. 47). - 3 -

(b)The claim concerning the arrest, detent ion and expulsion measures taken against
Mr. Diallo in 1995-1996

The Court first considers Guinea’s claim that Mr.Diallo’s expulsion was in breach of
Article 13 of the International C ovenant on Civil and Political Rights (hereinafter the “Covenant”)
and Article 12, paragraph 4, of the African Char ter on Human and Peoples’ Rights (hereinafter the

“African Charter”). The Court observes that, in order to comply with these provisions, the
expulsion of an alien lawfully in the territory of a State which is a party to these instruments must
be decided in accordance with the domestic law app licable in that respect — which itself must be
compatible with the other requirements of the Covenant and the African Charter — and must not be

arbitrary in nature (para. 65). The Court notes that this interpretation is “fully corroborated by the
jurisprudence of the Human Rights Committee established by the Covenant” (para. 66) and by “the
case law of the African Commission on Human and Peoples’ Rights” (para. 67). The Court takes
the view that the expulsion decree of 31October1995 did not comply with the provisions of

Congolese law for two reasons: (1)it was not preceded by consultation of the National
Immigration Board, whose opinion is required by Article16 of the Legislative Order of
12 September 1983 concerning immigration control; (2)it was not “reasoned”, as required by
Article15 of that same Legislative Order (para. 72). It follows that in these two respects the

expulsion was not decided “in accordance with law” and was in violation of Article13 of the
Covenant and Article12, paragraph4, of the African Charter (para.73). The Court further
considers that Guinea is justified in contending that the right afforded by Article13 of the

Covenant to an alien who is subject to an e xpulsion measure to “submit the reasons against his
expulsion and to have his case reviewed by .. . the competent authority” was not respected in the
case of Mr.Diallo. The Court believes, moreover, that the DRC has failed to demonstrate the
“compelling reasons of national security” which sup posedly justified Mr.Diallo being denied the

right to submit the reasons against his expulsion and to have his case reviewed by the competent
authority. The Court concludes that, on these grounds too, Article 13 of the Covenant was violated
in respect of the circumstances in which Mr. Diallo was expelled (para. 74).

Second, the Court addresses Guinea’s claim that Mr.Diallo’s arrest and detention violated
Article 9, paragraphs 1 and 2, of the Covenant and Article 6 of the African Charter: in particular,
that the deprivations of liberty suffered by Mr. Diallo did not take place “in accordance with such
procedure as [is] established by law” within th e meaning of Article9, paragraph1, of the

Covenant, or on the basis of “conditions previous ly laid down by law” within the meaning of
Article 6 of the African Charter; further, that those deprivations of liberty were “arbitrary” within
the meaning of those provisions; finally, that Mr .Diallo was not informed, at the time of his
arrests, of the reasons for those arrests, nor w as he informed of the charges against him, which

constituted a violation of Article 9, paragraph 2, of the Covenant (para. 76).

In respect of the first of Guinea’s allegations, namely, that Mr. Diallo’s arrest and detention
were not in accordance with the requirements of the law of the DRC, the Court notes that

Article15 of the Legislative Order of 12Septembe r1983 provides that an alien “likely to evade
implementation” of an expulsion measure may be imprisoned for an initial period of 48hours,
which may be “extended by 48 hours at a time, but shall not exceed eight days”. The Court finds
that “Mr.Diallo’s arrest and detention were not in accordance with these provisions”. In fact,

“[t]here is no evidence that the authorities of th e DRC sought to determine whether Mr. Diallo was
‘likely to evade implementation’ of the expulsion decree and, therefore, whether it was necessary to
detain him”. The Court further observes that “[t]he overall length of time for which he was

detained ⎯ 66days following his initial arrest and at least six more days following the second
arrest ⎯ greatly exceeded the maximum period permitted by Article 15”. Finally, the Court finds
that “the DRC has produced no evidence to show that the detention was reviewed every 48 hours,
as required by that provision” (para. 79).

In respect of the second of Guinea’s allegati ons, namely, that Mr.Diallo’s arrest and
detention were arbitrary within the meaning of Article9, paragraph1, of the Covenant and - 4 -

Article 6 of the African Charter, the Court first observes that Mr. Diallo “was held for a particularly
long time and it would appear that the authoritie s made no attempt to ascertain whether his

detention was necessary”. It then notes “not onl y that the decree itself was not reasoned in a
sufficiently precise way” but that “throughout th e proceedings, the DRC has never been able to
provide grounds which might cons titute a convincing basis for Mr.Diallo’s expulsion”. Finally,
the Court finds that the allegations of “corruption” and other offences made against Mr. Diallo did

not give rise to any proceedings before the courts or, afortiori , to any conviction. The Court
concludes that Mr.Diallo’s arrest and detention were arbitrary within the meaning of Article9,
paragraph 1, of the Covenant and Article 6 of the African Charter (para. 82).

In respect of the third of Guinea’s allegations , namely, that Mr. Diallo was not informed, at
the time of his arrests, of the reasons for those arrest s, in violation of Article 9, paragraph 2, of the
Covenant, the Court considers that “[t]he DR C has failed to produce a single document or any
other form of evidence to prove that Mr. Diallo was notified of the expulsion decree at the time of

his arrest on 5 November 1995, or that he was in some way informed, at that time, of the reason for
his arrest”. The Court notes that it has also not b een established that, at the time of his arrest in
January1996, Mr.Diallo was informed that he was being forcibly removed from Congolese
territory in execution of an expulsion decree. It further observes that “on the day when he was

actually expelled, he was given the incorrect information that he was the subject of a ‘refoulement ’
on account of his ‘illegal residence’”. The Court finds that the requirement for him to be informed,
laid down by Article9, paragraph2, of th e Covenant, was not complied with on those two

occasions (paras. 84-85).

Third, the Court examines Guinea’s claim that Mr.Diallo suffered conditions in detention
comparable to forms of inhuman or degrading treat ment prohibited by international law. It finds
that “Guinea has failed to demonstrate convincin gly that Mr.Diallo was subjected to such

treatment during his detention” (para. 88).

Finally, the Court considers Guinea’s claim th at Mr. Diallo was not informed, when he was
arrested, of his right to request consular assistance from his country, in violation of

Article 36 (1) (b) of the Vienna Convention on Consular Relations of 1963. The Court notes that
the DRC’s assertion that it “orally informed Mr. Diallo immediately after his detention of the
possibility of seeking consular assistance from his State” was made “very late in the proceedings,

whereas the point was at issue from the beginning”, and that there is “not the slightest piece of
evidence to corroborate it” (paras.94-96). It fi nds that there was a violation by the DRC of
Article 36, paragraph 1 (b), of the Vienna Convention on Consular Relations (para. 97).

2. Protection of Mr D.iallo’s direct rights as associé in Africom-Zaire and
Africontainers-Zaire

After clarifying certain matters relating to th e legal existence of the two companies and to

Mr. Diallo’s role and participation in them, the Court addresses the claims made by Guinea relating
to Mr. Diallo’s direct rights as associé.

(a) The right to take part and vote in general meetings

The Court first notes that it follows from Article 79 of the Congolese Decree on commercial
corporations of 1887 that “the right to particip ate and vote in general meetings belongs to the

associés and not to the company” (para. 119). Next, it observes that under Article 83 of that same
Decree, associés have the right to request that a general me eting be convened if they hold a fifth of
the total number of shares. In view of the evid ence submitted to it by the Parties, the Court finds
that there is “no proof that Mr. Diallo, acting either as gérant or as associé holding at least one-fifth

of the total number of shares, has taken any action to convene a general meeting, either after having - 5 -

been expelled from the DRC, or at any time when he was a resident in the DRC after 1980”. In the
opinion of the Court, “the right of Mr.Diallo to take part in general mee tings and to vote could

only have been breached if general meetings ha d actually been convened after his expulsion from
the DRC”. The Court notes in this respect that,

“even assuming that Article 1 of Legislative Order No. 66-341 of 7 June 1966 were to

oblige corporations having their administra tive seat in the DRC to hold their general
meetings on Congolese territory, no evidence has been provided that Mr. Diallo would
have been precluded from taking any action to convene general meetings from abroad,
either as gérant or as associé” (para. 121).

The Court then turns to the question of whether

“Mr.Diallo has been deprived of his right to take part and vote in any general

meetings because, as Guinea argues, after his expulsion he could only have exercised
that right through a proxy, whereas Congolese law afforded him the right to choose
between appointing a representative or attending in person” (para. 122).

The Court believes that it follows from the relevant provisions of Congolese law that “an associé ’s
right to take part and vote in general meetings may be exercised by the associé in person or through
a proxy of his choosing”. On the other hand, the Court finds that it cannot be inferred with
certainty from the said provisions that they establish “the right . . . for the associé to attend general

meetings in person” (para.124). Therefore, it cannot sustain Guinea’s claim that the DRC has
violated Mr. Diallo’s right to take part and vote in general meetings (para. 126).

(b) The rights relating to the “gérance”

The Court observes that Guinea has asserted that, by unlawfully expelling Mr.Diallo, the
DRC has committed: (1) a violation of his alleged right to appoint a gérant , (2) a violation of his
alleged right to be appointed as gérant , (3) a violation of his alleged right to exercise the functions

of a gérant, and (4) a violation of his alleged right not to be removed as gérant (para. 127).

As regards the first assertion put forward by Guinea, the Court recalls that, under the terms
of Article65 of the 1887 Decree, “[g]érants shall be appointed either in the instrument of

incorporation or by the general meeting”. The C ourt finds that when the appointment of the gérant
takes place by decision of the general meeting, it falls under the responsibility of the company
itself, without constituting a right of the associé . Accordingly, the Court concludes that Guinea’s

claim that the DRC has violated Mr. Diallo’s right to appoint a gérant must fail (para. 133).

As regards the second assertion put forward by Guinea, the Court finds that Mr.Diallo’s
right to be appointed gérant cannot have been violated in this instance because Mr.Diallo has in

fact been appointed as gérant, and still is the gérant of both companies in question (para. 134).

As regards the third assertion put forward by Guinea, the Court refers to Article69 of the
1887Decree, which provides that “the gérance may entrust the day-to-day management of the
company and special powers to agents or other proxies, whether associés or not”, and to the

Articles of Incorporation of Africont ainers-Zaire, which entitle the gérance to establish
administrative bases and offices in the DRC or ab road. The Court finds that “[w]hile the
performance of Mr.Diallo’s duties as gérant may have been rendered more difficult by his

presence outside the country, Guinea has failed to de monstrate that it was impossible to carry out
those duties” (para. 135). Further, it observes that “it is clear from various documents submitted to
the Court that, even after Mr.Diallo’s expulsi on, representatives of Africontainers-Zaire have
continued to act on behalf of the company in the DRC and to negotiate contractual claims with the - 6 -

Gécamines company” (para.136). The Court conc ludes that “Guinea’s cl aim that the DRC has
violated a right of Mr. Diallo to exercise his functions as gérant must fail” (para. 137).

As regards the fourth assertion put forward by Guinea, the Court obser ves that Mr.Diallo
could not have been removed “for good cause, by a general meeting”, in accordance with
Article 67 of the 1887 Decree, in so far as “no evidence has been provided to it that Mr. Diallo was

deprived of his right to remain gérant, since no general meeting was ever convened for the purpose
of removing him, or for any other purpose”. It finds that although “it may have become more
difficult for Mr.Diallo to carry out his duties as gérant from outside the DRC following his
expulsion . . . he remained, from a legal standpoint, the gérant of both Africom-Zaire and

Africontainers-Zaire”. The Court concludes th at “Guinea’s claim that the DRC has violated
Mr. Diallo’s right not to be removed as gérant must fail” (para. 138).

(c) The right to oversee and monitor the management

The Court addresses Guinea’s contention that in detaining and expelling Mr.Diallo, the
DRC deprived him of his right to oversee and monitor the actions of management and the

operations of the two companies. It concludes from Article71, paragraph3, of the 1887Decree,
which provides that “[i]f the number of associés does not exceed five, the appointment of auditors
is not compulsory, and each associé shall have the powers of an auditor”, that “since both
Africom-Zaire and Africontainers-Zaire had fewer than five associés , Mr. Diallo was permitted to

act as auditor”. The Court finds that while Mr .Diallo’s detentions and expulsion from the DRC
could have rendered the business activity of the co mpanies more difficult, “they simply could not
have interfered with his ability to oversee and monitor the gérance , wherever he may have been”
(para. 147). The Court concludes that “Guinea’s claim that the DRC has violated Mr. Diallo’s right

to oversee and monitor the management fails” (para. 148).

(d) The right to property of Mr.Diallo over his “parts sociales” in Africom-Zaire and

Africontainers-Zaire

The Court considers Guinea’s contention that

“Mr. Diallo, no longer enjoying control over, or effective use of, his rights as associé ,

has suffered the indirect expropriation of his parts sociales in Africom-Zaire and
Africontainers-Zaire because his property right s have been interfered with to such an
extent that he has been lastingly deprived of effective control over, or actual use of, or

the value of those rights” (para. 149).

The Court first observes that “international law has repeatedly acknowledged the principle of
domestic law that a company has a legal personality distinct from that of its shareholders”.

Therefore, “the rights and assets of a company must be distinguished from the rights and assets of
an associé” (para.155). The Court recalls that “the capital is part of the company’s property,
whereas the parts sociales are owned by the associés ”: “[t]he parts sociales represent the capital
but are distinct from it, and confer on their holders rights in the operation of the company and also

a right to receive any dividends or any monies payable in the event of the company being
liquidated”. The Court finds that there is “no ev idence that any dividends were ever declared or
that any action was ever taken to wind up the compan ies, even less that any action attributable to
the DRC has infringed Mr.Diallo’s rights in resp ect of those matters” (para.157). The Court

concludes that “Guinea’s allegations of infringement of Mr. Diallo’s right to property over his parts
sociales in Africom-Zaire and Africontainers-Zaire have not been established” (para. 159). - 7 -

3. Reparation

In the light of the circumstances of the case,in particular the fundamental character of the
human rights obligations breached and Guinea’s clai m for reparation in the form of compensation,
the Court finds that, “in addition to a judicial finding of the violations, reparation due to Guinea for
the injury suffered by Mr. Diallo must take the form of compensation” (para. 161). The Court is of

the opinion that the Parties should “engage in negotiation in order to agree on the amount of
compensation to be paid by the DRC to Guinea for the injury flowing from the wrongful detentions
and expulsion of Mr. Diallo in 1995-1996, incl uding the resulting loss of his personal belongings”
(para.163). It believes that, in the interest of the sound administration of justice, “failing

agreement between the Parties within six months following the delivery of the present Judgment on
the amount of compensation to be paid by the D RC, the matter shall be settled by the Court in a
subsequent phase of the proceedings” (para. 164).

Composition of the Court

The Court was composed as follows: President Owada; Vice-President Tomka;
JudgesAl-Khasawneh, Simma, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov,

Cançado Trindade, Yusuf, Greenwood; Judges ad hoc Mahiou, Mampuya; Registrar Couvreur.

JudgesAl-Khasawneh, Simma, Bennouna, Can çadoTrindade and Yusuf append a joint
declaration to the Judgment of the Court; JudgesAl-Khasawneh and Yusuf append a joint

dissenting opinion to the Judgment of the Cour t; JudgesKeith and Greenwood append a joint
declaration to the Judgment of the Court; JudgeBennouna appends a dissenting opinion to the
Judgment of the Court; Judge Cançado Trindade appends a separate opinion to the Judgment of the
Court; Judgeadhoc Mahiou appends a dissenting opinion to the Judgment of the Court;

Judge ad hoc Mampuya appends a separate opinion to the Judgment of the Court.

*

A summary of the Judgment appears in the document “Summary No.2010/3”. This press
release, the summary, and the full text of th e Judgment can be found on the Court’s website

(www.icj-cij.org), under the heading “Cases”.

___________

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