Summary of the Judgment of 4 June 2008

INTERNATIONAL COURT OF JUSTICE

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Summary
Not an official document

Summary 2008/2
4 June 2008

Certain Questions of Mutual Assistance in Criminal Matters
(Djibouti v. France)

Summary of the Judgment of 4 June 2008

Chronology of the procedure and submissions of the Parties (paras. 1-18)

On 9 January 2006, the Republic of Djibouti (her einafter “Djibouti”) filed in the Registry of
the Court an Application, dated 4 January 2006, against the French Republic (hereinafter “France”)

in respect of a dispute:

“concern[ing] the refusal by the French governmental and judicial authorities to
execute an international letter rogatory regarding the transmission to the judicial
authorities in Djibouti of the record relating to the investigation in the Case against X

for the murder of Bernard Borrel, in violation of the Convention on Mutual Assistance
in Criminal Matters between the [Djiboutian] Government and the [French]
Government, of 27September1986, and in br each of other international obligations
borne by [France] to . . . Djibouti”.

In respect of the above-mentioned refusal to execute an international letter rogatory, the
Application also alleged the violation of the Treaty of Friendship and Co-operation concluded
between France and Djibouti on 27 June 1977.

The Application further referred to the issuing, by the French judicial authorities, of witness

summonses to the Djiboutian Head of State and senior Djiboutian officials, allegedly in breach of
the provisions of the said Treaty of Friendship and Co-operation, the principles and rules governing
the diplomatic privileges and immunities laid down by the Vienna Convention on Diplomatic
Relations of 18April1961 and the principles established under customary international law

relating to international immunities, as reflected in particular by the Convention on the Prevention
and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents,
of 14 December 1973.

In its Application, Djibouti indicated that it sought to found the jurisdiction of the Court on

Article38, paragraph5, of the Rules of Court and was “confident that the French Republic will
agree to submit to the jurisdiction of the Court to settle the present dispute”.

The Registrar, in accordance with Article38, paragraph5, of the Rules of Court,
immediately transmitted a copy of the Application to the Government of France and informed both

States that, in accordance with that provision, the Application would not be entered in the General - 2 -

List of the Court, nor would any action be ta ken in the proceedings, unless and until the State
against which the Application was made consente d to the Court’s jurisdiction for the purposes of

the case.

By a letter dated 25July2006 and received in the Registry on 9August2006, the French
Minister for Foreign Affairs informed the Court that France “consents to the Court’s jurisdiction to

entertain the Application pursuant to, and solely on the basis of . . . Article 38, paragraph 5”, of the
Rules of Court, while specifying that this con sent was “valid only for th e purposes of the case,
within the meaning of Article 38, paragraph 5, i.e. in respect of the dispute forming the subject of
the Application and strictly within the limits of th e claims formulated therein” by Djibouti. The

case was entered in the General List of the Court under the date of 9 August 2006.

By letters dated 17 October 2006, the Registrar informed both Parties that the Member of the
Court of French nationality had notified the Court of his intention not to take part in the decision of

the case, taking into account the provisions of Article 17, paragraph 2, of the Statute. Pursuant to
Article31 of the Statute and Article37, paragr aph1, of the Rules of Court, France chose
Mr. Gilbert Guillaume to sit as judge ad hoc in the case. Since the Cour t included upon the Bench
no judge of Djiboutian nationality, Djibouti proceeded to exercise its right conferred by Article 31

of the Statute to choose a judge ad hoc to sit in the case: it chose Mr. Abdulqawi Ahmed Yusuf.

By an Order dated 15November2006, the Court fixed 15March2007 and 13July2007,
respectively, as the time-limits for the filing of the Memorial of Djibouti and the Counter-Memorial

of France; those pleadings were duly filed within the time-limits so prescribed. The Parties not
having deemed it necessary to file a Reply and a Rejoinder, and the Court likewise having seen no
need for these, the case was therefore ready for hearing.

Public hearings were held between 21 and 29 January2008. At the conclusion of the oral
proceedings, the Parties presented the following final submissions to the Court:

On behalf of the Government of Djibouti,

“The Republic of Djibouti requests the Court to adjudge and declare:

1. that the French Republic has violated its obligations under the 1986 Convention:

(i) by not acting upon its undertaking of 27January2005 to execute the letter
rogatory addressed to it by the Republic of Djibouti dated 3 November 2004;

(ii) in the alternative, by not performing its obligation pursuant to Article 1 of the

aforementioned Convention following its wrongful refusal given in the letter
of 6 June 2005;

(iii)in the further alternative, by not performing its obligation pursuant to

Article1 of the aforementioned Convention following its wrongful refusal
given in the letter of 31 May 2005;

2. that the French Republic shall immediat ely after the delivery of the Judgment by

the Court:

(i) transmit the “Borrel file” in its entirety to the Republic of Djibouti;

(ii) in the alternative, transmit the “Borrel file” to the Republic of Djibouti within
the terms and conditions determined by the Court; - 3 -

3. that the French Republic has violated its obligation pursuant to the principles of
customary and general international law not to attack the immunity, honour and

dignity of the President of the Republic of Djibouti:

(i) by issuing a witness summons to the President of the Republic of Djibouti on
17 May 2005;

(ii)by repeating such attack or by attempting to repeat such attack on
14 February 2007;

(iii)by making both summonses public by immediately circulating the
information to the French media;

(iv)by not responding appropriately to the two letters of protest from the
Ambassador of the Republic of D jibouti in Paris dated 18May2005 and

14 February 2007 respectively;

4. that the French Republic has violated its obligation pursuant to the principles of
customary and general international la w to prevent attacks on the immunity,

honour and dignity of the President of the Republic of Djibouti;

5. that the French Republic shall immediat ely after the delivery of the Judgment by
the Court withdraw the witness summons dated 17May2005 and declare it null

and void;

6. that the French Republic has violated its obligation pursuant to the principles of
customary and general international law not to attack the person, freedom and

honour of the procureur général of the Republic of Djibouti and the Head of
National Security of Djibouti;

7. that the French Republic has violated its obligation pursuant to the principles of

customary and general international law to prevent attacks on the person, freedom
and honour of the procureur général of the Republic of Djibouti and the Head of
National Security of the Republic of Djibouti;

8. that the French Republic shall immediat ely after the delivery of the Judgment by
the Court withdraw the summonses to attend as témoins assistés and the arrest
warrants issued against the procureur général of the Republic of Djibouti and the
Head of National Security of the Repub lic of Djibouti and declare them null and

void;

9. that the French Republic by acting contra ry to or by failing to act in accordance
with Articles 1, 3, 4, 6 and 7 of the Treaty of Friendship and Co-operation of 1977

individually or collectively has violated the spirit and purpose of that Treaty, as
well as the obligations deriving therefrom;

10. that the French Republic shall cease its wrongful conduct and abide strictly by the

obligations incumbent on it in the future;

11.that the French Republic shall provide the Republic of Djibouti with specific
assurances and guarantees of non-repetition of the wrongful acts complained of.”

On behalf of the Government of France,

“For all the reasons set out in its Counter-Memorial and during its oral

argument, the French Republic requests the Court: - 4 -

(1) (a) to declare that it lacks jurisdiction to rule on those claims presented by the
Republic of Djibouti upon completion of its oral argument which go beyond the

subject of the dispute as set out in its Application, or to declare them inadmissible;

(b) in the alternative, to declare those claims to be unfounded;

(2) to reject all the other claims made by the Republic of Djibouti.”

The facts of the case (paras. 19-38)

The Court notes initially that the Parties concur that it is not for it to determine the facts and
establish responsibilities in the Borrel case, and in particular, the circumstances in which
Mr.Borrel met his death. It adds that they ag ree that the dispute before the Court does however
originate in that case, as a result of the opening of a number of judicial proceedings, in France and

in Djibouti, and the resort to bilateral treaty mech anisms for mutual assistance between the Parties.
The Court describes at length the facts, some admitte d and others disputed by the Parties, and the
judicial proceedings brought in connection with the Borrel case.

Jurisdiction of the Court (paras. 39-95)

The Court recalls that Djibouti sought to found the Court’s jurisdiction on Article38,

paragraph5, of the Rules of Court. It notes that while France acknow ledges that the Court’s
jurisdiction to settle the dispute is “beyond question” by virtue of that provision, it contests the
scope of that jurisdiction ratione materiae and ratione temporis to deal with certain violations
alleged by Djibouti

Preliminary question regarding jurisdiction and admissibility (paras. 45-50)

The Court notes that in determining the scope of the consent expressed by one of the parties,

it pronounces on its jurisdiction and not on the admissibilit y of the application. It then proceeds to
examine the objections raised by France relating to the scope of its jurisdiction.

Jurisdiction ratione materiae (paras. 51-64)

After stating the positions of the Parties, the Court notes that its jurisdiction is based on the
consent of States, under the conditions expressed ther ein, and that neither the Statute of the Court
nor its Rules require that the consent of the par ties which thus confers jurisdiction on the Court be

expressed in any particular form. The Court recalls that it has also interpreted Article36,
paragraph 1, of the Statute as enabling consent to be deduced from certain acts, thus accepting the
possibility of forum prorogatum . Thus for it to exercise juri sdiction on the basis of forum
prorogatum, the Court is of the opinion that the element of consent must be either explicit or clearly

to be deduced from the relevant conduct of a State.

The Court observes that this is the first time it falls to the Court to decide on the merits of a
dispute brought before it by an application based on Article 38, paragraph 5, of the Rules of Court.

It indicates that this provision, introduced by the Court into its Rules in 1978, allows a State which
proposes to found the jurisdiction of the Court to en tertain a case upon a consent thereto yet to be
given or manifested by another State to file an application setting out its claims and inviting the
latter to consent to the Court dealing with them, without prejudice to the rules governing the sound

administration of justice. It notes that the State which is asked to consent to the Court’s jurisdiction
to settle a dispute is completely free to respond as it sees fit; if it consents to the Court’s
jurisdiction, it is for it to specify, if necessary, the aspects of the dispute which it agrees to submit
to the judgment of the Court. It explains that the deferred and ad hoc nature of the Respondent’s

consent, as contemplated by Article 38, paragraph 5, of the Rules of Court, makes the procedure set - 5 -

out there a means of establishing forum prorogatum . The Court adds that its jurisdiction can be
founded on forum prorogatum in a variety of ways, by no means all of which fall under Article 38,

paragraph 5. It stipulates, however, that no appli cant may come to the Court without being able to
indicate, in its Application, the State against which the claim is brought and the subject of the
dispute, as well as the precise nature of that claim and the facts and grounds on which it is based.

Extent of the mutual consent of the Parties (paras. 65-95)

The Court then turns to discerning the extent of the mutual consent of the Parties. To this
end, it examines the terms of France’s acceptance of the jurisdiction of the Court and the terms of

Djibouti’s Application to which that acceptance responds.

The Court notes that France has taken the view that it has only accepted the Court’s
jurisdiction over the stated subject-matter of the case which is to be found, and only to be found, in

paragraph 2 of the Application, under the heading “Subject of the dispute”.

That paragraph reads as follows:

“The subject of the dispute concerns the refusal by the French governmental

and judicial authorities to execute an in ternational letter rogatory regarding the
transmission to the judicial authorities in Djibouti of the record relating to the
investigation in the Case against X for the murder of Bernard Borrel , in violation of

the Convention on Mutual Assistance in Criminal Matters between the Government of
the Republic of Djibouti and the Government of the French Republic, of
27September1986, and in breach of other international obligations borne by the
French Republic to the Republic of Djibouti.”

Basing itself upon its jurisprudence, the Court indicates that the subject of the dispute was
not to be determined exclusively by reference to matters set out under the relevant section heading
of the Application. The Court thus notes that th e Application, taken as a whole, has a wider scope

than that described in the aforementioned paragr aph and that it includes the summonses sent to the
Djiboutian President on 17May2005 and those sent to other Djiboutian officials on 3 and
4 November 2004.

The Court indicates that the Parties do not contest that the claims relating to the Djiboutian
letter rogatory of 3November2004 and thus the qu estion of compliance, in particular, with the
1986 Convention on Mutual Assistance in Criminal Ma tters are subject to its jurisdiction. It notes,
however, that they disagree on the issue of whethe r the claims relating to the summonses sent by

France to the Djiboutian President, the procureur de la République of Djibouti and the Djiboutian
Head of National Security, as well as the arrest warr ants issued against the latter two officials, fall
within its jurisdiction.

The operative phrases in France’s response to Djibouti’s Application read as follows:

“I have the honour to inform you that the French Republic consents to the
Court’s jurisdiction to entertain the Applica tion pursuant to and solely on the basis of

said Article 38 paragraph 5 [of the Rules of Court].

The present consent to the Court’s jurisdiction is valid onl y for the purposes of
the case within the meaning of Article38, paragraph5, i.e. in respect of the dispute

forming the subject of the Application and strictly within the limits of the claims
formulated therein by the Republic of Djibouti.” - 6 -

After examining the France’s letter of acceptan ce, the Court declares that on the basis of a
plain reading of the text of that letter, by its choice of words, the consent of the Respondent is not

limited to the “subject of the dispute” as described in paragraph 2 of the Djibouti’s Application. It
finds that when France, which had full knowledge of the claims formulated by Djibouti in its
Application, sent its letter to the Court, it did not seek to exclude certain aspects of the dispute
forming the subject of the Application from its ju risdiction. The Court consequently holds that,

with regard to jurisdiction ratione materiae , the claims concerning both subject-matters referred to
in Djibouti’s Application, namely, France’s refusal to comply with Djibouti’s letter rogatory and
the summonses to appear sent by the French judiciary, on the one hand to the President of Djibouti
dated 17May2005, and on the other hand to two senior Djiboutian officials dated 3 and

4 November 2004 and 17 June 2005, are within the Court’s jurisdiction.

The Court then turns to the question of its jurisdiction over the witness summons of 2007
served on the President of Djibouti and the arr est warrants of 2006 issu ed against the senior

Djiboutian officials [actions which took place after the filing of the Application]. It recalls that, in
its Memorial, Djibouti argued that it had reserve d the right, in the Application, “to amend and
supplement [it]” and that it noted that the claims based on violations of the international law on
immunities which took place after 9January2006 were not “new or extraneous to the initial

claims” and that they “all relate[d] to the claims set out in the Application and [were] based on the
same legal grounds”. The Court notes that France , for its part, has submitted that any possible
jurisdiction of the Court to address such violations could not be exercised in respect of facts

occurring after the filing of the Application

With respect to the arrest warrants issued fo r senior Djiboutian officials, the Court indicates
that it is clear from France’s letter that its consen t does not go beyond what is in that Application.
It emphasizes that where jurisdiction is based on forum prorogatum , great care must be taken

regarding the scope of the consent as it has been circumscribed by the respondent State. The Court
recalls that France’s consent is valid “only for th e purposes of the case”, that is, regarding “the
dispute forming the subject of the Application a nd strictly within the limits of the claims

formulated therein by the Republic of Djibouti”; that in Djibouti’s Application there are no claims
relating to arrest warrants; and that, although the arrest warrants could be perceived as a method of
enforcing the summonses, they represent new legal acts in respect of which France cannot be
considered as having implicitly accepted the Court’ s jurisdiction. Therefore the Court is of the

opinion that the claims relating to the arrest warrants arise in respect of issues which are outside the
scope of the Court’s jurisdiction ratione materiae.

With respect to the summons addressed to the President of Djibouti on 14 February 2007, the

Court indicates that it was in relation to the same case as the initial summons sent to the President
of Djibouti on 17 May 2005, was issued by the same judge, and it was in relation to the same legal
question, but that this time it followed the proper form under French law. The Court finds that,
even though it had been corrected as to form, it was a repetition of the witness summons of

17May2005. It emphasizes that in the list of the legal grounds on which Djibouti bases its
Application (see paragraph 3 of that document), it referred expressly to the attacks on the person of
a Head of State. Noting that France has accepted the jurisdiction of the Court in relation to the
“claims formulated” in Djibouti’s Application, the Court reaches the conclusion that it has

jurisdiction to examine both of the aforementioned summonses.

The alleged violation of the Treaty of Friendship and Co-operation between France and

Djibouti of 27 June 1977 (paras. 96-114)

Djibouti argues that France violated a genera l obligation of co-operation provided for by the
Treaty of Friendship and Co-operation (singe d by the two States on 27June1977) by not

co-operating with it in the context of the judicial investigation into the Borrel case, by attacking the
dignity and honour of the Djiboutian Head of St ate and other Djiboutian authorities and by acting - 7 -

in disregard of the principles of equality, mutual respect and peace set out in Article1 of the
Treaty. France, for its part, contends that any interpretation of the Treaty resulting in the

acknowledgment of the existence of a general obliga tion to co-operate which is legally binding on
it in respect of the execution of the international letter rogatory is inconsistent not only with the
wording of the Treaty, but also with its object, its purpose, its context, and the will of the parties.

The Court engages in a meticulous examination of the provisions of the Treaty. While it
notes that the respective obligations of the Treaty are obligations of law, articulated as obligations
of conduct, committing the Parties to work towards the attainment of certain objectives, it finds that
mutual assistance in criminal matters, the subject regulated by the 1986 Convention, is not a matter

mentioned among the fields of co-operation enumerated in the Treaty of 1977.

If, moreover, the Court concludes that the Treaty of Friendship and Co-operation of 1977
does have a certain bearing on the interpretation and application of the Convention on Mutual

Assistance in Criminal Matters (of 27 September 1986 between Djibouti and France), inasmuch as
it must be interpreted and applied in such a way as to take into consideration the friendship and
co-operation established by France and Djibouti as the basis for their mutual relations in the 1977
Treaty, it notes nevertheless that that is as far as the relationship between the two instruments can

be explained in legal terms. The Court is thus of the opinion that, in the light of its jurisprudence
and of the customary rule laid down in Article31, paragraph3, of the Vienna Convention on the
Law of Treaties of 23 May 1969, an interpretation of the 1986 Convention duly taking into account
the spirit of friendship and co-operation stipulated in the 1977 Treaty cannot possibly stand in the

way of a party to that Convention relying on a clause contained in it which allows for
non-performance of a conventional obligation under certain circumstances.

The alleged violation of the Convention on Mu tual Assistance in Criminal Matters between
France and Djibouti of 27 September 1986 (paras. 115-156)

Djibouti claims that France violated the af orementioned Convention by refusing to execute

the letter rogatory issued on 3November2004 by the Djiboutian judicial authorities. The Court
examines in turn the three arguments presented by Djibouti to support this claim.

The obligation to execute the international letter rogatory (paras. 116-124)

According to Djibouti, the obligation to execute the international letter rogatory laid down in
Article 1 of the 1986 Convention allegedly imposes on the two Parties an obligation of reciprocity
in implementing the Convention. The Court notes in this respect that in the relations between

Djibouti and France, Article 1 of the Convention of 1986 refers to mutuality in the performance of
the obligations laid down therein. It considers in this regard that each request for legal assistance is
to be assessed on its own terms by each Party. It notes, moreover, that the Convention nowhere
provides that the granting of assistance by one St ate in respect of one matter imposes on the other

State the obligation to do likewise when assistance is requested of it in turn. The Court accordingly
considers that Djibouti cannot rely on the prin ciple of reciprocity in seeking execution of the
international letter rogatory it submitted to the French judicial authorities.

As for the obligation to execute international letters rogatory laid dow n in Article3 of the
1986 Convention, the Court observes that it is to be realized in accordance with the procedural law
of the requested State. It indicates that the ultim ate treatment of a request for mutual assistance in
criminal matters clearly depends on the decision by the competent national authorities, following

the procedure established in the law of the requested State. While it must of course ensure that the
procedure is put in motion, the State does not th ereby guarantee the outcome, in the sense of the
transmission of the file requested in the letter rogatory. The Court notes that Article 3 must be read
in conjunction with Articles 1 and 2 of the Convention. - 8 -

The alleged undertaking by France to execute the international letter rogatory requested by Djibouti
(paras. 125-130)

The Court then comes to the assessment of a letter dated 27January2005 addressed to the
Ambassador of Djibouti in Paris by the Principal Private Secretary to the French Minister of Justice
written as follows:

“I have asked for all steps to be taken to ensure that a copy of the record of the
investigation into the death of Mr.Bernard Borrel is transmitted to the Minister of
Justice and Penal and Muslim Affairs of th e Republic of Djibouti before the end of

February2005 (such time being required b ecause of the volume of material to be
copied).

I have also asked the procureur in Paris to ensure that there is no undue delay in

dealing with this matter.”

Djibouti argues that this amounted to an unde rtaking by the Principal Private Secretary
(which was binding on the French Ministry of Justice and the French State as a whole) and that that

undertaking gave rise to a legitimate expectation on its part that the file would be transmitted.

The Court notes that the terms of the letter of 27January2005, when given their ordinary
meaning, entail no formal undertaking by the Principal Private Secretary to the Minister of Justice

to transmit the Borrel file; the letter rather info rmed the Ambassador of Djibouti to France of the
steps that had been undertaken to set in motion the legal process to make possible the transmission
of the file. It adds that in any event the PrincipalPrivateSecretary could not have given a
definitive commitment, because French law (Art. 694-2 of the French Code of Criminal Procedure)

grants the authority to execute letters rogatory ex clusively to investigating judges. Accordingly,
the Court considers that, by virtue of its c ontent and the factual and legal circumstances
surrounding it, the letter of 27 January 2005 does not, by itself, entail a legal undertaking by France
to execute the international letter rogatory transmitted to it by Djibouti on 3 November 2004.

France’s refusal to execute the international letter rogatory (paras. 131-156)

Djibouti argues that France cannot rely on the provisions of Article 2 (c) of the Convention

of 1986, by virtue of which a State may refuse mu tual assistance, if it considers that execution of
the request is likely to prejudice its essential interests. It further indicates that French law cannot
be interpreted as giving the investigating judge sole authority to determine the essential interests of
the State. Djibouti asserts that France, in th e letter from its Ambassador in Djibouti to the

Djiboutian Minister for Foreign Affairs of 6J une2005, omitted to provide any reason for its
“unilateral” refusal of mutual assistance, in vi olation of Article17 of the Convention of 1986,
which lays down that “[r]easons shall be given fo r any refusal of mutual assistance”. According to
Djibouti, the obligation to give reasons is in fact a condition of the validity of the refusal. It points

out in this respect that the mere mention of Article 2 (c) is at best to be considered as a very general
sort of “notification”, which is in its opinion certainly not the same as providing “reasons”.

France, for its part, points out that it is not for another State to determine how France should

organize its own procedures. It notes that pena l matters, more than others, affect the national
sovereignty of States and their security, ordre public and other essential interests, as mentioned in
Article 2 (c) of the Convention of 1986. It adds that not only did it inform Djibouti on
31May2005, in a letter from the Director of Crim inal Affairs and Pardons at the Ministry of

Justice to the Ambassador of Djibouti to France, of the investigating judge’s refusal of the request
for mutual assistance concerned, but that it also gave explicit reasons for its refusal by referring to
Article 2 (c) of the Convention of 1986. France considers in that respect that the citation of that
article suffices as the statement of reasons required by Article 17 of the Convention. - 9 -

As Djibouti denies that its Ambassador in Pa ris ever received the letter dated 31May 2005
and as France was unable to demonstrate that it had indeed been sent to the Djiboutian authorities,

the Court concludes that it cannot take this documen t into consideration in its examination of the
present case

After recalling the circumstances in which the French judicial authorities took the decision to

refuse to execute the international letter rogatory and how Djibouti was informed of that decision,
the Court indicates that it is unable to accept th e contention of Djibouti that, under French law,
matters relating to security and ordre public could not fall for determination by the judiciary alone.
It declares that it is aware that the Ministry of Justice had at a certain time been very active in

dealing with such issues. However, the Court adds , where ultimate authorit y lay in respect of the
response to a letter rogatory was settle d by the Chambre de l’instruction of the Paris Court of
Appeal in its judgment of 19 October 2006. The Chambre de l’instruction held that the application,
in one way or another, of Article 2 of the 1986 Convention to a request made by a State is a matter

solely for the investigating judge (who will have available information from relevant government
departments). The Court of App eal further determined that such a decision by an investigating
judge is a decision in law, and not an advice to the executive. It is not for this Court to do other
than accept the findings of the Paris Court of Appeal on this point.

As to whether the decision of the competen t authority was made in good faith, and falls
within the scope of Article2 of the 1986 Conven tion, the Court recalls that JudgeClément’s
soit-transmis of 8 February 2005 states the grounds for her decision to refuse the request for mutual

assistance. The judge explained in it that transmission of the file was considered to be “contrary to
the essential interests of France”, in that the file contained declassified “defence secret” documents,
as well as information and witness statements in respect of another case in progress, the
transmission of which to a foreign political author ity would have amounted “to an abuse of French

law”, as they were “documents that are accessibl e only to the French judge”. The Court indicates
moreover that it was not evident from this soit-transmis why Judge Clément found that it was not
possible to transmit part of the file, even with some documents removed or blackened out. It

explains, however, that it was able to deduce from the written and oral pleadings of France that the
intelligence service documents and information permea ted the entire file. Consequently, the Court
finds that those reasons that were given by Judge Clément do fall within the scope of Article 2 (c)
of the 1986 Convention.

The Court is unable to accept, as France contends, that there has been no violation of
Article 17 on the ground that Djibouti was allegedly informed that Article 2 (c) had been invoked.
Equally, the Court is unable to accept the contentio n of France that the fact that the reasons have

come within the knowledge of Djibouti during th ese proceedings means that there has been no
violation of Article 17. A legal obligation to notify reasons for refusing to execute a letter rogatory
is not fulfilled through the requesting State learning of the relevant documents only in the course of
litigation, some long months later. As no reasons were given in the letter of 6 June 2005, the Court

concludes that France failed to comply with its obligation under Article 17 of the 1986 Convention.

The Court observes in this respect that even if it had been persuaded of the transmission of
the letter of 31 May 2005, the bare referen ce it was said to contain to Article 2 (c) would not have

sufficed to meet the obligation of France under Arti cle17. It considers that some brief further
explanation was called for and that this is not on ly a matter of courtesy. It also allows the
requested State to substantiate its good faith in refusing the request.

The Court observes finally that there is a certain relationship between Articles2 and 17 of
the Convention in the sense that the reasons that may justify refusals of mutual assistance which are
to be given under Article17 include the grounds specified in Article2. At the same time,
Articles 2 and 17 provide for distinct obligations, and the terms of the Convention do not suggest - 10 -

that recourse to Article 2 is dependent upon compliance with Article 17. The Court thus finds that,
in spite of the non-respect by France of Article 17, the latter was entitled to rely upon Article 2 (c)

and that, consequently, Article 1 of the Convention has not been breached.

The alleged violations of the obligation to prev ent attacks on the person, freedom or dignity

of an internationally protected person (paras. 157-200)

Djibouti considers that France, by sending witness summonses to the Head of State of
Djibouti and to senior Djiboutian officials, has violated “the obligation deriving from established

principles of customary and general international law to prevent attacks on the person, freedom or
dignity of an internationally protected person”.

The alleged attacks on the immunity from jurisdiction or the inviolability of the Djiboutian Head of
State (paras. 161-180)

Djibouti calls into question two witness summonses in the Borrel case, issued by the French
investigating judge, JudgeClément, to the Presi dent of the Republic of Djibouti on 17May2005
and 14 February 2007 respectively.

⎯ The witness summons addressed to the Djiboutian Head of State on 17 May 2005

The Court recalls that the investigating judge responsible for the Borrel case sent a witness

summons to the President of Djibouti, on an offi cial visit to France at the time, on 17May2005,
simply by facsimile to the Djiboutian Embassy in France, inviting him to attend in person at the
judge’s office the following day. For Djibouti, th is summons was not only inappropriate as to its

form, but was, in the light of Articles101 and 109 of the French Code of Criminal Procedure, an
element of constraint. Djibouti has, moreover, inferred from the absence of an apology and from
the fact that that summons was not declared voi d that the attack on the immunity, honour and
dignity of the Head of State has continued.

France, for its part, submits that the summoni ng of a foreign Head of State as an ordinary
witness in no sense constitutes an infringement of “the absolute nature of the immunity from
jurisdiction and, even more so, from enforcement that is enjoyed by foreign Heads of State”. In its

view, the witness summons addressed to the Djiboutian Head of State was purely an invitation
which imposed no obligation on him.

The Court indicates that it has already recalled in the Arrest Warrant of 11April2000

(Democratic Republic of the Congo v. Belgium) case “that in international law it is firmly
established that . . . certain holders of high-ranking office in a State, such as the Head of State . . .
enjoy immunities from jurisdiction in other States, both civil and criminal” (Judgment, I.C.J.
Reports 2002 , pp.20-21, para.51). In its opinion, a Head of State enjoys in particular “full

immunity from criminal jurisdiction and inviolabilit y” which protects him or her “against any act
of authority of another State which would hinder him or her in the performance of his or her duties”
(ibid., p. 22, para. 54). Thus the determining fact or in assessing whether or not there has been an
attack on the immunity of the Head of State lies in the subjection of the latter to a constraining act

of authority.

In the present case, the Court finds that the summons was not associated with the measures
of constraint provided for by Article 109 of the Fren ch Code of Criminal Procedure; it was in fact

merely an invitation to testify which the Head of State could freely accept or decline.
Consequently, the Court holds that there was no attack by France on the immunities from criminal
jurisdiction enjoyed by the Head of State. - 11 -

However, the Court notes that the investigating judge, JudgeClément, addressed the
summons to Djibouti’s President notwithstanding the formal procedures laid down by Article656

of the French Code of Criminal Procedure, which deals with the “written statement of the
representative of a foreign Power”. The Court consid ers that by inviting a Head of State to give
evidence simply through sending him a facsimile and by setting him an extremely short deadline
without consultation to appear at her office, the i nvestigating judge failed to act in accordance with

the courtesies due to a foreign Head of State.

Having taken note of all the formal defects surrounding the summons under French law, the
Court considers that these do not in themselves cons titute a violation by France of its international

obligations regarding the immunity from crimin al jurisdiction and the inviolability of foreign
Heads of State. Nevertheless, the Court obser ves that an apology would have been due from
France.

The Court recalls, moreover, that the rule of customary international law reflected in
Article 29 of the Vienna Conven tion on Diplomatic Relations, whereby receiving States are under
the obligation to protect the honour and dignity of diplomatic agents, necessarily applies to Heads
of State. The Court observes, in this respect, that if it had been shown by Djibouti that confidential

information relating to the witness summons addre ssed to its President had been passed from the
offices of the French judiciary to the media, such an act could have constituted, in the context
concerned, not only a violation of French law, but also a violation by France of its international
obligations. However, the Court recognizes that it does not possess any probative evidence that

would establish that the French judicial authorities are the source behind the dissemination of the
confidential information in question.

⎯ The witness summons addressed to the Djiboutian Head of State on 14 February 2007

With respect to the second summons, the C ourt finds that it was issued following the
procedure laid down by Article656 of the French Code of Criminal Procedure, and therefore in
accordance with French law. It notes that the consent of the Head of State is expressly sought in

this request for testimony, which was transmitted th rough the intermediary of the authorities and in
the form prescribed by law. The Court conse quently considers that this measure cannot have
infringed the immunities from jurisdiction enjoyed by the Djiboutian Head of State.

As for Djibouti’s argument, that the disclos ure to the media of confidential information
regarding the second witness summons, in breach of the confidentiality of the investigation, must
be regarded as an attack on the honour or the dignity of its Head of State, the Court indicates once

again that it has not been provided with probativ e evidence which would establish that the French
judicial authorities were the source behind the di ssemination of the confidential information at
issue here.

The alleged attacks on the immunities said to be enjoyed by the procureur de la République and the
Head of National Security of Djibouti (paras. 181-200)

The Court examines the four summonses as témoins assistés addressed in 2004 and
2005 by French judges to senior Djiboutian officials, MrD . jamaSouleiman Ali and

Mr. Hassan Said Khaireh, respectively procureur de la République and Head of National Security
of Djibouti. According to Djibouti, these witn ess summonses violate international obligations on
immunities, both conventional and deriving from general international law.

The Court recalls that in the event of summonses as témoins assistés, the situation envisaged
by French law is one where suspicions exist re garding the person in question, without these being
considered sufficient grounds to proceed with a “mise en examen” . The person concerned is thus

obliged to appear before the judge, on pain of being compelled to do so by the law enforcement
agencies (Art. 109 of the French Code of Criminal Procedure). - 12 -

Djibouti initially contended that the procureur de la République and the Head of National
Security benefited from personal immunities from cr iminal jurisdiction and inviolability, before

rejecting this argument during the oral proceedings. It then argued in terms of “functional
immunity, or ratione materiae ”. For Djibouti, it is a principle of international law that a person
cannot be held as individually criminally liable for acts performed as an organ of State, and while
there may be certain exceptions to that rule, there is no doubt as to its applicability in the present

case. The Court observes that such a claim is, in essence, a claim of immunity for the Djiboutian
State, from which the procureur de la République and the Head of National Security would be said
to benefit.

France, in replying to this new formulation of Djibouti’s argument, indicated that as
functional immunities are not absolute, it is for th e justice system of each country to assess, when
criminal proceedings are instituted against an indi vidual, whether, in view of the acts of public
authority performed in the context of his duties, that individual should enjoy, as an agent of the

State, the immunity from criminal jurisdiction that is granted to foreign States. According to
France, the two senior officials concerned have never availed themselves before the French
criminal courts of the immunities which Djibouti claims on their behalf.

The Court observes, initially, that it has not been “concretely verified” before it that the acts
which were the subject of the summonses as témoins assistés issued by France were indeed acts
within the scope of their duties as organs of State. It then points out that it is not apparent from the
terms of the final submissions of Djibouti that the claim that Mr.DjamaSouleimanAli and

Mr. Hassan Said Khaireh benefited from functional immunities as organs of State still constitutes
the only or the principal argument being made by Djibouti.

The Court notes that there are no grounds in international law upon which it could be said

that the officials concerned were entitled to pe rsonal immunities, not being diplomats within the
meaning of the Vienna Convention on Diploma tic Relations of 1961, and the Convention on
Special Missions of 1969 not being applicable.

The Court must also observe that at no stage have the French courts (before which the
challenge to jurisdiction would normally be expected to be made), nor indeed this Court, been
informed by the Government of Djibouti that the acts complained of by France were its own acts of
the State of Djibouti and that the procureur de la République and the Head of National Security

were its organs, agencies or instrumentalities in carrying them out.

The Court emphasizes that the State which seek s to claim immunity for one of its State
organs is expected to notify the authorities of the other State concerned, thereby enabling the court

of the forum State to ensure that it does not fail to respect any entitlement to immunity and might
thereby engage the responsibility of that State. Further, the State notifying a foreign court that
judicial process should not proceed, for reasons of immunity, against its State organs, is assuming
responsibility for any internationally wrongful act in issue committed by such organs.

Given all these elements, the Court does not uphold the sixth and seventh final submissions
of Djibouti.

Remedies (paras. 201-204)

Having found that the reasons invoked by France, in good faith, under Article2(c) fall

within the provisions of the 1986Convention, th e Court will not order the Borrel file to be
transmitted with certain pages removed, as Djibouti h as requested in the alternative. Having itself
no knowledge of the contents of the file, the Court considers that it would not have been in a
position so to do. - 13 -

With respect to remedies to the violation by France of its obligation to Djibouti under
Article17 of the 1986Convention, the Court declar es that it will not order the publication of the

reasons underlying the decision, as specified in the soit-transmis of Judge Clément, underlying the
refusal of the request for mutual assistance, th ese having in the meantime passed into the public
domain. The Court determines that its finding that France has violated that obligation constitutes

appropriate satisfaction.

Operative clause (para. 205)

“For these reasons,

T HE COURT ,

(1) As regards the jurisdiction of the Court,

(a) Unanimously,

Finds that it has jurisdiction to adjudicate upon the dispute concerning the execution of the
letter rogatory addressed by the Republic of Djibouti to the French Republic on 3 November 2004;

(b) By fifteen votes to one,

Finds that it has jurisdiction to adjudicate upon the dispute concerning the summons as
witness addressed to the President of the Republic of Djibouti on 17 May 2005, and the summonses

as “témoins assistés” (legally assisted witnesses) addressed to two senior Djiboutian officials on
3 and 4 November 2004 and 17 June 2005;

IN FAVOUR : President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Shi,

Koroma, Buergenthal, Owada, Simma, To mka, Keith, Sepúlveda-Amor, Bennouna,
Skotnikov; Judges ad hoc Guillaume, Yusuf;

AGAINST : Judge Parra-Aranguren;

(c) By twelve votes to four,

Finds that it has jurisdiction to adjudicate upon the dispute concerning the summons as

witness addressed to the President of the Republic of Djibouti on 14 February 2007;

IN FAVOUR : President Higgins; Vice-President Al-Khasawneh; Judges Shi, Koroma,
Buergenthal, Owada, Simma, Keith, Se púlveda-Amor, Bennouna, Skotnikov;

Judge ad hoc Yusuf;

AGAINST : Judges Ranjeva, Parra-Aranguren, Tomka; Judge ad hoc Guillaume;

(d) By thirteen votes to three,

Finds that it has no jurisdiction to adjudicate upon the dispute concerning the arrest warrants
issued against two senior Djiboutian officials on 27 September 2006;

IN FAVOUR : President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Shi,
Koroma, Parra-Aranguren, Buergenthal, Si mma, Tomka, Keith, Sepúlveda-Amor,
Bennouna; Judge ad hoc Guillaume;

AGAINST : Judges Owada, Skotnikov; Judge ad hoc Yusuf; - 14 -

(2) As regards the final submissions of the Republic of Djibouti on the merits,

(a) Unanimously,

Finds that the French Republic, by not giving the Republic of Djibouti the reasons for its
refusal to execute the letter rogatory presented by the latter on 3 November 2004, failed to comply

with its international obligation under Article 17 of the Convention on Mutual Assistance in
Criminal Matters between the two Parties, signed in Djibouti on 27September1986, and that its
finding of this violation constitutes appropriate satisfaction;

(b) By fifteen votes to one,

Rejects all other final submissions presented by the Republic of Djibouti.

IN FAVOUR : President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Shi,

Koroma, Parra-Aranguren, Buergenthal, Owada, Simma, Tomka, Keith,
Sepúlveda-Amor, Bennouna, Skotnikov; Judge ad hoc Guillaume;

AGAINST : Judge ad hoc Yusuf.”

*

Judganseoa,Parar,a-Aranguren append separate opinions to the Judgment of the
Court; Judge Owada appends a declaration to the Judgment of the Court; Judge Tomka appends a

separate opinion to the Judgment of the Court; Judges Keith and Skotnikov append declarations to
the Judgment of the Court; Judge ad hoc Guillaume appends a declaration to the Judgment of the
Court; Judge ad hoc Yusuf appends a separate opinion to the Judgment of the Court.

___________ Annex to Summary 2008/2

Separate opinion of Judge Ranjeva

In the opinion of Judge Raymond Ranjeva, th e Judgment failed to meet the requirements of

forum prorogatum when, by finding that the second witness summons, dated 14 February 2007, fell
within the Court’s jurisdiction, it extended that jurisdiction ratione materiae . While the errors
which marred the first witness summons explain wh y the second was issued, the fact remains that,
in law, the latter is an independent judicial act.

Indeed, for the second witness summons to ex ist in legal form, it was necessary for the
investigating judge to use discretion and deliberately opt to take a new judicial decision.
JudgeRanjeva considers that the Judgment arri ved at the above finding by abandoning the

definition of the subject of the dispute as set out in the Application and adopting instead the
definition contained in the Memorial: “in breach of . . . obligations . . .” (see the Application)
under the Convention on Mutual Assistance in Cr iminal Matters cannot mean, in French, the
official language of both Parties, “as well as the . . . breaching of . . . international obligations” (see

the Memorial). In this case, the Respondent’s consent was founded on the definition of the subject
of the dispute according to the terms used in the Application. In the event of doubt, a critical
analysis of the terms of the Application s hould have been made, but the Judgment did not
undertake this. Consequently, and contrary to the rules of forum prorogatum , by extending the

Court’s jurisdiction ratione materiae, the Judgment has considered not the justiciable dispute itself,
but the dispute in its entirety.

Separate opinion of Judge Koroma

In his separate opinion, Judge Koroma stat es that he voted in favour of the operative
paragraphs, for various reasons, including the decision by France to give its consent under

Article 38, paragraph 5, of the Rules of Court, which allowed the Court to exercise its jurisdiction
in this case.

In Judge Koroma’s view, the issue before the Court is not whether the 1986 Convention on

Mutual Assistance in Criminal Matters allows for the non-performance of a conventional obligation
under certain circumstances but rath er whether, in applying that Convention in the context of an
investigation into the murder of a citizen of one of the parties to the Convention, due regard ought
not to be paid to the 1977 Treaty of Friendshi p and Co-operation betw een the two parties,

especially when the Treaty is being invoked not wi th the intention of impeding or subverting the
investigation but to further it. Allowing the Par ties to avail themselves of the Treaty in this way
not only serves their interests but also accords w ith its object, purpose and spirit, as both Parties
have an interest in uncovering the facts and circumstances surrounding the death of Judge Borrel.

Judge Koroma also points out in his separate opinion that, apart from the obligation of the
two parties to the 1977 Treaty to co-operate, the Treaty also recognizes equality and mutual respect
to be the basis of relations between the two countries. In applying the 1986 Convention due

account ought to have been taken of those principles, especially when Djibouti, in a spirit of
co-operation, equality and mutual respect, had complied with France’s request to execute the
international letters rogatory relating to the inv estigation of Mr. Borrel’s death, providing access to
necessary documents, witnesses and sites, including the presidential palace in Djibouti. On the

other hand, had Djibouti declined such co-operati on by not executing France’s letters rogatory, not
only could it have been regarded to be in breach of its obligation to co-operate in the investigation
of the death but a negative inference would have arisen as to its culpability. - 2 -

The Judge further recalls that a party to a treaty may not invoke its domestic law as
justification for the non-fulfilment of its obligation, responding to the contention of the Respondent

that it had to comply with the domestic law in discharging its obligation under the 1986 Convention
on Mutual Assistance in Criminal Matters between the two countries.

In JudgeKoroma’s view, the Court should have taken into account the principle of

reciprocity ⎯ a principle which is inherent and comprehe nded within a bilateral treaty, such as the
1986 Convention. He emphasizes that a State enters into a treaty relationship expecting that the
other party will perform its own treaty or conventional obligati ons. Accordingly, Djibouti was
entitled to expect that France would comply, on the basis of reciprocity, with Djibouti’s request for

the execution of its letter rogatory, since it had earlier complied with France’s requests dealing with
the same subject-matter, namely, the investigation into the death of Mr. Borrel.

JudgeKoroma takes the view that the obligation to respect the dignity and honour of the

Djiboutian Head of State was violated by the French magistrate not only when the witness
summonses were sent to him by facsimile and setting him a short deadline to appear at her office,
but also when these were leaked to the press. The Judge points ou t that international law imposes
on receiving States the obligatio n to respect the inviolability , honour and dignity of Heads of

State ⎯ meaning immunity from all interference whether under colour of law or right or otherwise,
and connotes a special duty of protection from such in terference or from mere insult, on the part of
the receiving State. In his view, the matters complained of involved not merely matters of courtesy

but the obligation to respect the immunity of the Head of State from legal process. In
JudgeKoroma’s view, when the Court came to th e conclusion that there was a violation and an
apology due in the form of a remedy, this should have been reflected in the operative paragraph as
a finding of the Court, as such paragraph has a legal significance of its own and for a party in

whose favour a determination has been made and who is entitled to have it enforced.

Separate opinion of Judge Parra-Aranguren

1. Judge Parra-Aranguren’s vote in favour of paragraph205, subparagraphs(1) (a) and (d),
and of subparagraph (2) of the Judgment does not mean that he agrees with each and every part of
the Court’s reasoning in reaching its conclusions. The limited time available to present the separate

opinion within the period fixed by the Court did not permit him to set out a complete explanation of
his disagreement with paragra ph 205, subparagraphs (1) (b) and (c). He has however advanced
some of his main reasons for voting against them.

2. Djibouti sought in its Application to f ound the jurisdiction of the Court on Article38,
paragraph5, of the Rules of Court. France informed the Court, by a letter from its Minister for
Foreign Affairs dated 25July2006, of its consen t “to the Court’s jurisdiction to entertain the

Application pursuant to and solely on the basis of said Article38, paragraph5”, of the Rules of
Court specifying that its consent was valid only “in respect of the dispute forming the subject of the
Application and strictly within the limits of th e claims formulated therein by the Republic of
Djibouti”.

3. In the opinion of France, the jurisdiction of the Court is restricted to deciding only “the
dispute forming the subject of the Application” as de termined in its paragraph2, i.e., “the refusal

by the French governmental and judicial authoriti es to execute an international letter rogatory
regarding the transmission to the judicial authorities in Djibouti of the record relating to the
investigation in the ‘Case against X for the murd er of Bernard Borrel’, in violation of the
Convention on Mutual Assistance in Criminal Matte rs between the Government of the Republic of

Djibouti and the Government of the French Republic, of 27 September 1986, and in breach of other
international obligations borne by the French Republic to the Republic of Djibouti”. - 3 -

4. Djibouti maintains to the contrary that “the dispute forming the subject of the Application”
in respect of which France gave its consent invol ves not only the French authorities’ refusal to

execute the letter rogatory issued on 3November 2004, but also all violations by France of its
obligation to prevent attacks on the person, the freedom and the dignity of Djibouti’s Head of State,
Djibouti’s procureur général and Djibouti’s Head of National Security.

5. In determining its ju risdiction ratione materiae in the Judgment, the Court accepts
Djibouti’s contention.

6. The Court maintains that the subject-ma tter of the dispute may be discerned from a
reading of the whole Application and observes: that paragraph 2 of Djibouti’s Application, entitled
“Subject of the dispute”, does not mention any other matters which Djibouti also seeks to bring
before the Court, namely, the various summonses sent to the President of Djibouti and two senior

Djiboutian officials; that said summonses are mentioned in Djibouti’s Application under the
heading “Legal Grounds” and “Nature of the Claim” ; that the Application, “despite a confined
description of the subject of the dispute in its second paragraph, taken as a whole, has a wider

scope which includes the summonses sent to th e Djiboutian President on 17May2005 and those
sent to other Djiboutian officials on 3 and 4 Nove mber 2004”; and that France had full knowledge
of the claims formulated by Djibouti in its Application when sending its letter of 25July2006 to
the Court but did not seek to exclude certain aspects of the dispute forming the subject of the

Application from its jurisdiction.

7. Judge Parra-Aranguren considers that Fran ce did not consent to the jurisdiction of the

Court in the present case in respect of all claims mentioned in Djibouti’s Application, because, had
that been the case, its letter of 25 July 2006 would have simply stated that France consented to have
the Court decide on Djibouti’s Application, with no further elaboration. In his opinion, the
reference to Djibouti’s Application in general terms is found in th e first paragraph of the French

letter, not in the second, where France expresses its lim ited consent to the jurisdiction of the Court.
Consequently, France did not agree to have the Court decide all claims mentioned by Djibouti in its
Application but only some of them, i.e., those “in respect of the dispute forming the subject of the
Application” and “strictly within the limits of the claims formulated” by Djibouti. Therefore,

contrary to the finding in the final sentence of paragraph83 of the Judgment, the French
declaration “read as a whole”, interpreted “in harmony with a natural and reasonable way of
reading the text”, leads to the conclusion that France’s true intention was to consent to the
jurisdiction of the Court only over “the dispute forming the subject of the Application”, as it was

unilaterally defined by Djibouti in paragraph 2 of its Application.

8. Moreover Judge Parra-Aranguren observes that in the second paragraph of its letter dated

25July2006 France consented to the Court deciding “the dispute forming the subject of the
Application”, not to its deciding the Applicati on as a whole. Therefore, France’s consent was
given in respect of the dispute described by D jibouti not in the whole Application but only in
paragraph2, under the heading “Subject of the Dispute”, which does not mention any alleged

violations by France of its obligation to prevent attacks on the person, the freedom or the dignity of
Djibouti’s Head of State, Djibouti’s procureur général or Djibouti’s Head of National Security.
Consequently, in his opinion, these are not part of “the dispute forming the subject of the
Application”, which is the only matter in respect of which France consented to a decision by the

Court, and for this reason the Court does not have jurisdiction to rule upon them.

9. Additionally, Judge Parra-Aranguren notes that, in paragraphs 1 and 22 of its Application,

Djibouti describes the “Subject of the Dispute” in sim ilar terms to those used in paragraph2. As - 4 -

noted in the Judgment, Djibouti mentions the su mmonses issued by France in violation of its
international obligations under the headings “Legal Grounds” and “Nature of the Claim”.

However, Judge Parra-Aranguren observes that they are also mentioned in the Application under
the headings “Statement of Facts” and “Statement of the Grounds on Which the Claim is Based”’
and that, notwithstanding these references to them, the last section of the Application, under the
heading “Jurisdiction of the Court and Admissib ility of the Present Application”, describes the

“Subject of the Dispute” in the same manner as in paragraph 2.

10. Given the above, in Judge Parra-Aranguren’s opinion, “the dispute forming the subject of

the Application” referred to by France in the second pa ragraph of its letter dated 25 July 2006 is to
be understood to be that described in paragr aph2 of Djibouti’s Application under the heading
“Subject of the Dispute”, as well as in paragraphs 1 and 22.

11. Finally, Judge Parra-Aranguren observes th at no mention of any alleged violations by
France of its obligation to prevent attacks on the person, the freedom or the dignity of Djibouti’s
Head of State, Djibouti’s procureur général or Djibouti’s Head of National Security is found in

DocumentsI, III or IV attached to Djibouti’s App lication: i.e., the letter of 4January2006 from
Mr.Djama Souleiman Ali, State Prosecutor of the Republic of Djibouti, to the President of the
International Court of Justice; the “Delegation of Powers” signed by the President of the Republic
of Djibouti on 28 December 2005; and an undated letter from the Minister for Foreign Affairs and

International Co-operation of the Republic of Djibouti to the President of the International Court of
Justice. Therefore, in Judge Parra-Aranguren’s opinion it may be concluded from the silence of
Djibouti’s State Prosecutor, its President and its Minister for Foreign Affairs and International
Co-operation, that none of them c onsidered “the dispute forming the subject of the Application” to

include any alleged violations by France of its obligation to prevent attacks on the person, the
freedom or the dignity of Djibouti’s Head of State, Djibouti’s procureur général or Djibouti’s Head
of National Security.

12 The above-indicated reasons led Judge Parra -Aranguren to conclude that the Court does
not have jurisdiction ratione materiae to decide any claims mentioned by Djibouti but not included
in paragraph2 of its Application. Therefore, it is mainly because of the Court’s lack of

jurisdiction, not for the reasons set out in the Judgment, that he voted in favour of
subparagraphs (1) (d) and (2) (b).

Declaration of Judge Owada

Judge Owada appends a short declaration to th e Judgment. In this declaration Judge Owada
explains the reason why he has voted against subparagraph1(d) of the operativeclause of the

Judgment, relating to jurisdiction to adjudicate over the dispute concerning the arrest warrants
issued against the two senior Djiboutian officials on 27 September 2006.

In the view of Judge Owada, while it is true that “[f]or the Court to exercise jurisdiction on
the basis of forum prorogatum , the element of consent must be either explicit or clearly to be

deduced from the relevant conduct of a State” (Judgm ent, para.62), the task of the Court in the
present case should not be any different from a case based on two declarations under the optional
clause, given the fact that the Respondent in th e present case has given its express consent ad hoc

to the jurisdiction of the Court in a written form by the letter of the Respondent of 25 July 2006 in
relation to the Application of the Applicant. All that is required is to interpret and apply the two
relevant documents, so that the precise scope of the common consent of the parties may be defined
through identifying the overlapping elements common to the two relevant documents. - 5 -

However, in determining whether the Court h as jurisdiction over events that took place after
the filing of the Application, i.e., the witness summons of 2007 served on the President of Djibouti

and the arrest warrants of 2006 issued against the Djiboutian senior officials, the Judgment departs
from the criteria established in its jurisprudence as to whether those facts or events which are
subsequent to the filing of the Application are inseparably connected to the facts or events
expressly falling within the purview of the Court’s ju risdiction, so that they may be covered by the

scope of the subject of the dispute (e.g., Fisheries Jurisdiction (Federal Republic of Germany v.
Iceland); LaGrand (Germany v. United States of America) ; and Arrest Warrant of 11 April 2000
(Democratic Republic of the Congo v. Belgium)). The Judgment makes a distinction in the present
case by stating that “[i]n none of these cases was the Court’s jurisdiction founded on forum

prorogratum” and declares that “[a]lthough the arrest warra nts could be perceived [to be] a method
of enforcing the summonses, they represent new legal acts in respect of which France cannot be
considered as having implicitly accepted the Court’ s jurisdiction”. On this basis, the Court
concludes that “[t]herefore, the claims relating to the arrest warrants arise in respect of issues which

are outside the scope of the Court’s jurisdiction ratione materiae” (Judgment, para. 88), whereas the
issuance of the new summons to the President was “a repetition of the preceding one”, and thus “in
its substance, it is the same summons” (Judgment, para . 91), thus bringing this latter act within the

purview of the jurisdiction of the Court.

In Judge Owada’s view, the issue in both instances is the same. It is the issue of whether the
acts subsequent to the filing of the Application fall within the scope of the acceptance by France of

the Court’s jurisdiction ratione materiae as deduced from the language used in France’s letter of
25July 2006, in particular the expression “in r espect of the dispute forming the subject of the
Application and strictly within the limits of th e claims formulated therein by the Republic of
Djibouti” (Judgment, para. 77). In this context, the jurisprudence of the Court as established in the

above cases is of relevance to the present case in de termining the scope of jurisdiction accepted by
France in its letter of 25 July 2006.

For these reasons Judge Owada cannot agree with the Judgment, in that the Judgment departs

from the established jurisprudence on the issue of the scope of the “subject-matter of the dispute”
in introducing a new criterion of whether the subsequent events after the submission of the
Application were “new legal acts” or not (Judgment, para. 88).

Separate opinion of Judge Tomka

In his separate opinion, Judge Tomka deals with the question of forum prorogatum ,
explaining that, in this case, to determine the scope of the Court’s jurisdiction, the agreement of the

Parties concluded by unilateral acts must be in terpreted: the Application and the Respondent’s
reply. He states that it was the Applicant which, in its Application, introduced a contradiction
between the subject of the dispute specified expressis verbis and the claims which did not wholly
correspond with the subject of the dispute as circumscribed by the Applicant. He presents the

arguments that it was possible for the Court to conclude that its jurisdiction was limited to France’s
refusal to execute an international letter rogatory from Djibouti. In the light of France’s somewhat
elliptical reply to Djibouti’s Application, it was also possible for the Court to conclude that its

jurisdiction ratione materiae was broader and included the invitations to appear as witnesses sent to
the Head of State and certain Djiboutian senior offici als. The majority decided in favour of this
extended jurisdiction and Judge Tomka concurred with the majority. But he could not subscribe to
the conclusion on one aspect of the jurisdiction ratione temporis . For him, that jurisdiction was

limited to the claims formulated in the Applica tion relating to the facts which occurred before the
Application was filed on 9 January 2006, but not to the claims relating to the facts which occurred
after the filing of the Application. France consen ted to the jurisdiction “in respect of the dispute
forming the subject of the Application and strictly within the limits of the claims formulated

therein”. - 6 -

Judge Tomka notes that, in order to avoid problem s relating to the scope of jurisdiction, it is
always preferable for States to conclude a sp ecial agreement submitting qu estions agreed by the

Parties to the Court for settlement.

Declaration of Judge Keith

Judge Keith in his declaration explains his conclusion that France, in the person of the
investigating judge, did not exercise its power of refusal under Article 2 (c) of the 1986 Convention
in accordance with the purpose of the Convention and relevant principles of law. In particular, the

judge did not expressly consider whether she might hand over part of the file or suggest to Djibouti
that it reformulate its request. That conclusi on would not however have led JudgeKeith, for
reasons he sets out, to the conclusion that the file should be transferred to Djibouti.

Declaration Judge Skotnikov

Judge Skotnikov disagrees with the Court’s reading of France’s consent to its jurisdiction as
excluding developments arising directly out of th e questions which constitute the subject-matter of

the Application of Djibouti but which occurred af ter it was filed. The claims contained in
Djibouti’s Application, for which, as found by the Court, France accepted adjudication by the
Court, refer to the dispute in progress. By gi ving its consent, France has not “frozen” the ongoing
dispute. JudgeSkotnikov considers that the Court should have decided that it has jurisdiction in

respect of the arrest warrants issued against tw o senior Djiboutian officials on 27 September 2006.
This would have been in line with the Court’s jurisprudence which has been dismissed by the Court
on the grounds that its jurisdiction in the present case is founded on forum prorogatum . In

Judge Skotnikov’s view this jurisprudence is pertinent in the present case and in forum prorogatum
cases in general. For these reasons he voted against paragraph (1) (d) of the operative clause.

For exactly the same reasons he voted in favour of the Court’s finding in paragraph (1) (c) of
the operative clause that it has jurisdiction to ad judicate upon the dispute concerning the summons

to testify as witness addressed to the President of Djibouti on 14 February 2007 (after the date the
Application was filed). However, he disagrees with the Court’s reasoning on that subject.

Judge Skotnikov is critical of the Court’s conclusion that, if it was established that

information concerning the two invitations to t estify addressed to the President of Djibouti had
been passed to the media from the offices of the French judiciary, it could have constituted a
violation by France of its international obligations (see Judgment, paras. 176 and 180). In his view,

providing the media with information about these pr ocedural acts, which, as it has been found by
this Court, do not constitute a violation of the terms of Article29 of the Vienna Convention on
Diplomatic Relations, cannot be c onsidered a violation of these ve ry same terms. Further, he
points out that the terms of Article29 relate to th e inviolability of the person of a Head of State.

They do not provide for protection from negative media reports. He agrees with the Court that “the
determining factor in assessing whether or not th ere has been an attack on the immunity of the
Head of State lies in the subjection of the latte r to a constraining act of authority”. A media
campaign directed against a foreign Head of State, even if it is based on leaks from the authorities

of the receiving State, cannot in itself be seen as a constraining act of authority. Had it been proven
that the relevant information was passed to the pr ess from the offices of the French judiciary, this,
under the circumstances of the present case, concl udes JudgeSkotnikov, c ould have constituted a
failure by France to act in accordance with the courtesy due to a foreign Head of State rather than a

violation of its obligations under international law. - 7 -

Declaration of Judge ad hoc Guillaume

In this case, France consented to the Court’ s jurisdiction in accordance with the procedure
laid down in Article 38, paragraph 5, of the Rules of the Court, but made it clear that its consent
was valid “only for the purposes of the case, i.e. in respect of the dispute forming the subject of the
Application and strictly within the limits of the claims formulated therein”.

Consequently, the Court does not have jurisdic tion to deal with those claims by Djibouti
which are not formulated in the Application and concern decisions taken by the French
investigating judges after the Application was filed. That applies, as the Court has held, to the

claim concerning the arrest warrants issued on 27 September 2006 against two senior Djiboutian
officials. But that same approach should have been adopted with regard to the claim concerning
the witness summons addressed to the Djiboutian Head of State on 14 February 2007.

Moreover, France had restricted its consent to the Court’s jurisdiction to the dispute forming
the subject of Djibouti’s Application. That dis pute was defined in an extremely confused manner
in the Application, and France could legitimately have understood it to relate solely to its refusal of
mutual assistance to Djibouti. Indeed, the Court itself entitled the case “Certain Questions of

Mutual Assistance in Criminal Matters”.

In the end, however, the Court has opted to give the Application a broad interpretation,
taking the view that its subject included the su mmonses to appear as witnesses or témoins assistés

(legally assisted witnesses) issued by the investig ating judges before the Application was filed.
That decision is understandable, but it seems to me to set a bad precedent. It is, in fact, likely to
encourage the submission of applications drafted ⎯ sometimes deliberately ⎯ with a total lack of
rigour, and to deter recourse to Article 38, paragra ph 5, of the Rules of Court. I have supported it

in the interest of Franco-Djiboutian relations, in order to secure a more comprehensive settlement
of the dispute, but wished to record here my regrets and my concerns.

Separate opinion of Judge ad hoc Yusuf

The Court has decided that it has jurisdiction to adjudicate not only the dispute regarding
execution of the letter rogatory addressed by the Republic of Djibouti to France on

3 November 2004, but also those concerning the witness summonses addressed to the President of
the Republic of Djibouti (on 17 May 2005 and 14 February 2007) and to senior Djiboutian officials
(on 3 and 4November2004 and 17June2005), and I am glad that it has done so. On the other
hand, I cannot subscribe to the decision of the Court that it lacks jurisdiction to entertain the dispute

regarding the arrest warrants issued on 27 Septem ber 2006 against two senior Djiboutian officials.
In my view, the Court should have applied the same criteria to both the acts subsequent to the filing
of the Application (the arrest warrants issued against the two senior Djiboutian officials and the
summons of 14 February 2007 addressed to the Djiboutian Head of State).

I agree entirely with the decision of the Cour t that France has breached its international
obligation under Article 17 of the 1986 Convention by not giving reasons for its refusal to execute
the letter rogatory presented by Djibouti on 3Nove mber2004. However, I take the view that

France’s violation of its obligations under the 1986Convention goes much further, extending to
Article 1, paragraphs 1, 2 (c) and 3, and Article 3, paragraph 1.

In my opinion, by twice refusing to grant th e requests for mutual assistance presented by the

Republic of Djibouti, France has not afforded that State “the widest measure” of mutual assistance
in accordance with Article1, paragraph1, of the Convention, thereby en gaging its international
responsibility. Without reciprocity and mutual co -operation, the Convention would no longer be a
convention for mutual assistance in proceedings, but an instrument to assist one or other of the - 8 -

Parties. It would be deprived of all meaning, and would answer the purpose for which it was
concluded for one of the Parties only (in this case France).

I take the view with regard to Article 3, paragraph 1, of the Convention that the lawfulness of
France’s conduct should have been assessed by the Court on the b asis of whether it complied with
the relevant procedures laid down by French internal law. In my opinion, France has not acted in

accordance with those procedures, especially as re gards the authority that has the capacity, under
the French Code of Criminal Procedure, to assess th e concepts of prejudice to sovereignty, security
and ordre public . Failure to comply with internal le gal procedures entails a violation of the
Convention, and when the Court is seised by th e Parties to such a convention, it can and must

exercise some degree of review. In the present Judgment, however, the Court has not done so.

With regard to the attacks on the immunity and inviolability of the Djiboutian Head of State,
the Court concludes in its reasoning that “an apol ogy would have been due from France”, in view

of the fact that the French judge had not followe d French procedure in the summons addressed to
the Djiboutian Head of State on 17May2005. It also acknowledges in the Judgment, in
accordance with recent case law, that the rule of customary international law reflected in Article 29
of the Vienna Convention on Diplomatic Relations “translates into positive obligations for the

receiving State as regards the actions of its own au thorities, and into obligations of prevention as
regards possible acts by individuals” (Judgment, para.174). In addition, it imposes on receiving
States “the obligation to protect the honour and dign ity of Heads of State, in connection with their
inviolability” (Judgment, para. 174). In the opera tive clause, however, the Court does not address

the requirement for apologies.

For my part, I consider that the two summons es addressed to the Djiboutian Head of State
(on 17 May 2005 and 14 February 2007) are not merely a breach of the “courtesy due to a foreign

Head of State”; they also amount to a viola tion of France’s obligation to protect the honour and
dignity of foreign Heads of State. Given that the French courts can neither summon nor compel the
President of their own country to appear before them during his term of office, it is difficult to
accept that they should be able to ask foreign Heads of State to attend at their offices in order to be

heard as witnesses. The Court had the opportuni ty in the present case to state clearly and
unambiguously that this practice was a violation of international law, and that by acting in this way,
the French judges were engaging France’s international responsibility. Unfortunately, the language

used in the reasoning of the Judgment, together with the absence of a clear decision in the operative
clause, could lead to repetition of a practice that is disrespectful of international law. For these
reasons, I take the view that the Court should have enjoined France to offer formal apologies, not
only in the reasoning of the Judgment, but also in its operative clause.

The fact that the Republic of Djibouti and France wished to submit their dispute to the Court
by mutual consent and by way of forum prorogatum is evidence of their willingness to find a
complete and final solution to this dispute in order to strengthen the traditional ties of friendship

between the two countries. The finding by the C ourt of all the violations described above could
have made a further contribution to a return by the two States to better co-operation in their
relations in general, as well as to more effective mutual assistance in criminal matters, and on a
clearer legal basis.

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