Memorial of the Republic of the Congo

Note: This translation has been prepared by the Registry for internal purposes and has no official
character
9283
INTERNATIONAL COURT OF JUSTICE
CASE CONCERNING CERTAIN CRIMINAL PROCEEDINGS IN FRANCE
(REPUBLIC OF THE CONGO v. FRANCE)
MEMORIAL OF THE REPUBLIC OF THE CONGO
[Translation by the Registry]
International Court of Justice ............................................................................................................. 1
Case concerning Certain Criminal Proceedings in France (Republic of the
Congo v. France) ..................................................................................................................... 1
Memorial ....................................................................................................................................... 1
I. Statement of the facts ................................................................................................................. 1
1. The denunciations characterized as “complaints” that led to the disputed
criminal proceedings ........................................................................................................... 1
2. The initial reactions of the prosecutor to the denunciations ................................................. 6
3. The preliminary enquiries .................................................................................................... 8
4. Prosecutor’s originating application ..................................................................................... 9
5. The initial measures of judicial investigation..................................................................... 10
6. The first steps in the investigation against General Dabira ................................................ 10
7. The claim to jurisdiction submitted by the prosecutor of the Brazzaville
Tribunal de grande instance to the prosecutor of the Meaux Tribunal de
grande instance regarding the acts under investigation by the latter court ....................... 11
8. The Meaux prosecutor’s failure to respond and the continuing judicial
investigation in France; further measures taken against General Dabira ......................... 12
9. The attempt by the investigating judges to take testimony from His Excellency
President Denis Sassou Nguesso ....................................................................................... 12
10. Unofficial representations to the French political authorities by the
Congolese political authorities .......................................................................................... 13
II. Proceedings before the Court .................................................................................................. 13
11. Initiation of proceedings before the Court ....................................................................... 13
12. Consent to the Court’s jurisdiction by the French Republic ............................................ 13
13. Order of 17 June 2003 on the request for the indication of a provisional
measure ............................................................................................................................. 14
III. Discussion ............................................................................................................................. 15
A. Nature and scope of the prosecutor’s originating application of
23 January 2002 ................................................................................................................ 15
14. Subject-matter of the originating application; against a named or unnamed
person; in rem nature of seisin ......................................................................................... 15
15. Indication of offence prosecuted; reference to appended documents ............................. 15
16. The prosecutor’s discretionary power .............................................................................. 16
- 2 -
17. Irrevocability of the investigating judge’s seisin ............................................................. 16
18. Situation of individuals not placed under judicial examination but named in a
complaint ........................................................................................................................... 17
19. Scope of documents appended to originating application; burden of
suspicion on persons denounced ....................................................................................... 17
B. The first ground of the Application (violation of the principle that a State may
not exercise its authority on the territory of another State and of the principle
of sovereign equality, as laid down in Article 2, paragraph 1, of the Charter of
the United Nations) ........................................................................................................... 18
20. No general principle of universal jurisdiction .................................................................. 18
21. Non-conformity with international law of legislation enacted by a State
which purports to establish its universal jurisdiction; case of the Belgian Law
of 16 June 1993 ................................................................................................................. 18
21. The territoriality principle: rejection of universal jurisdiction ........................................ 19
22. Territoriality as a corollary of sovereignty ....................................................................... 20
23. No French statute establishing universal jurisdiction in respect of crimes
against humanity ............................................................................................................... 20
24. The provisions of French law applicable to international jurisdiction in
respect of torture ............................................................................................................... 21
25. Definition of torture ......................................................................................................... 21
26. Obligations of the States parties to the New York Convention ........................................ 22
27. Subsidiarity of universal jurisdiction in respect of torture ............................................... 23
28. Failure by the French judicial authorities to respect the principle of
subsidiarity ........................................................................................................................ 23
29. Maintenance of public order, an essential attribute of sovereignty:
consequence in respect of the Minister of the Interior ...................................................... 23
C. The second ground of the Application (violation of the immunity of a foreign
Head of State).................................................................................................................... 24
30. No dispute over the principle of immunity for foreign Heads of State ............................ 24
31. Scope of immunity of foreign Heads of State in French criminal procedure;
prohibition on applications seeking the opening of an investigation against
persons unknown if a foreign Head of State is named in a complaint .............................. 25
32. Prohibition on the taking of testimony as a witness from a foreign Head of
State named in a complaint ............................................................................................... 26
33. Violation of the immunity of H.E. the President of the Republic of the Congo
in the criminal proceedings in question ............................................................................ 27
- 3 -
Submission ....................................................................................................................................... 27
INTERNATIONAL COURT OF JUSTICE
Case concerning Certain Criminal Proceedings in France
(Republic of the Congo v. France)
Memorial
For: The Republic of the Congo
having as its Agent His Excellency Mr. Jacques Obia, Ambassador Extraordinary and
Plenipotentiary of the Republic of the Congo to the European Union, to His Majesty the King
of the Belgians, to Her Majesty the Queen of the Netherlands and to His Royal Highness the
Grand Duke of Luxembourg,
residing at 16, Avenue Franklin Roosevelt, 1050 Brussels
against: The French Republic
I. Statement of the facts
1. The denunciations characterized as “complaints” that led to the disputed criminal
proceedings
On 7 December 2001, three organizations which describe their constitutional purpose
as the defence of human rights, that is to say the International Federation for Human
Rights (FIDH), the Congolese Human Rights Observatory (OCDH) and the Ligue française
pour la défense des droits de l’homme (the League), instructed the same lawyer,
Maître Henri Leclerc, to file with the Procureur de la République of the Paris Tribunal de
grande instance documents which they described as “complaints”, alleging crimes against
humanity and torture said to have been committed in the Congo.
(a) Nature and scope of the denunciations of 7 December 2001
Before undertaking any analysis of the documents in question, it is important to
consider their nature and scope in terms of French criminal procedure.
The main function of the ministère public, which is represented before the Tribunal de
grande instance by the Procureur de la République (public prosecutor), is to commence a
prosecution, in other words to bring criminal proceedings on behalf of the State, by referring a
case to a criminal court, more specifically to an investigating judge, and then to pursue those
proceedings subsequently. To set the prosecution in motion, the prosecutor relies on the
findings of investigations by judicial police officers, who transmit the information to him in
reports. He also relies on information (notice of offence) received from “constituted
authorities”, public officers or officials who obtain knowledge of an indictable offence (crime
or délit) in the performance of their duties, or from individuals. Information submitted by
individuals who claim to have suffered harm as a result of an offence is referred to as a
complaint, or more precisely an ordinary complaint (plainte simple), and that submitted by
third parties is a denunciation (dénonciation). The prosecutor decides what kind of action to
take on such information in the light both of the legal basis and of the propriety of prosecution
(Article 40 of the Code of Criminal Procedure). In other words, he has a discretionary power
to decide whether or not to refer the matter to a criminal court.
1
2
- 2 -
A party which claims to have personally suffered harm as a direct result of an offence
has the right, in parallel to the power enjoyed by the prosecutor, to initiate a public
prosecution. When such a party refers the matter to an investigating judge, its complaint is
accompanied by what is known as a civil-party application (constitution de partie civile).
Such a complaint also requires the prosecutor himself to seise the investigating judge unless
the prosecution would be unlawful (proceedings inadmissible or time-barred, inadmissibility
of the civil-party application in the absence of direct, personal harm caused by the alleged
offence, acts complained of not constituting a criminal offence).
In the present case, the “complaints” by the above-mentioned organizations were not
accompanied by civil-party applications, for the very good reason that the organizations were
obviously unable to claim that they had suffered direct harm as a result of the alleged crimes,
and such applications would thus have been declared inadmissible. Moreover, as the
so-called “complainant” organizations were unable to show they had suffered any harm, even
indirectly, as a result of the alleged crimes they described, the documents in question were not
even ordinary complaints but denunciations. It follows that the documents did not directly set
a prosecution in motion but merely consisted in allegations submitted to the prosecutor, and it
was left to him to take full responsibility for pursuing the matter further, if necessary after
directing judicial police officers to conduct preliminary enquiries.
The prosecutor nevertheless admitted the denunciations as if they were ordinary
complaints.
(b) Analysis of the denunciations
The denunciations were presented in the form of two documents with annexes.
1. The first document, on letter-headed paper of the law firm Henri Leclerc & Associés,
was a letter addressed to the Procureur de la République of the Paris Tribunal de grande
instance, bearing the reference “FIDH v. Sassou Nguesso and Others HL . . .”.
It read as follows:
“Sir,
I have the honour, on behalf of:
the International Federation for Human Rights (FIDH);
the Congolese Human Rights Observatory (OCDH) [Observatoire
congolais des Droits de l’Homme];
the French Human Rights League [Ligue Française pour la Défense des
Droits de l’Homme/Ligue des Droits de l’Homme]
To lodge with you a complaint against:
Mr. Denis Sassou Nguesso, President of the Republic of the Congo;
General Pierre Oba, Minister of the Interior, Public Security and
Territorial Administration;
General Norbert Dabira, Inspector-General of the Armed Forces;
3
- 3 -
General Blaise Adoua, Commander of the Republican Guard/Presidential
Guard;
and all others.
On account of crimes against humanity, disappearances and acts of
torture, as set out in the attached complaint.
Notwithstanding that the facts occurred on the territory of the Republic of
the Congo, the French courts have jurisdiction in respect of crimes against
humanity by virtue of international custom and, in any event, in respect of acts of
torture pursuant to Article 689-2 of the Code of Criminal Procedure and to the
Convention against Torture and other Cruel, Inhuman or Degrading Treatment
or Punishment, adopted in New York on 10 December 1984.
I append to this complaint:
 a report by the International Federation for Human Rights (FIDH report,
June 1999);
 a report by the International Commission of Enquiry on Congo Brazzaville
(FIDH report, April 2000);
 a report by Médecins sans frontières dated October 1999;
 a report by the United Nations High Commissioner for Refugees dated
21 May 1999;
 a statement by Mr. Linot Bardin Duval Tsieno, a survivor from Brazzaville
Beach, giving an account of the facts witnessed by him.
I shall be happy to provide any such further particulars as you may
require.
Yours, etc.
Henri Leclerc.”
The party making the denunciation added the following postscript:
“P.S. May I draw your attention to the fact that General Dabira is currently in France,
for what may be a short stay.”
2. The second document was headed “International Federation for Human Rights” and
was dated 5 December 2001. It was 27 pages long and referred to the same annexes as the
first, except for the report by Médecins sans frontières.
It was presented as a “complaint” addressed to the same prosecutor by the three
organizations mentioned in the first document, which named Maître Henri Leclerc as lawyer
and gave his office as their address for service (which, incidentally, would only make sense if
it were a civil-party application). This denunciation indicated as signatories Mr. Siki Kaba,
President of FIDH, and Mr. Michel Tubiana, President of the French Human Rights League
(LDH), but only the former had signed the document and appended the seal of his
organization.
4
5
- 4 -
It stated in an opening passage:
“[The organizations calling themselves ‘complainants’] have the honour to
depose the following information with a view to the opening of a judicial
investigation and seeking any necessary measures for the commencement of
proceedings against the following individuals, it being noted that
General Norbert Dabira is currently present on French territory. They
accordingly request you, pursuant to Article 6 of the Convention Against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment, to take the
necessary interim measures to ensure the detention of that individual or his
presence on French territory.
The persons against whom this claim is directed are the following:
Mr. Denis Sassou Nguesso,
President of the Republic of the Congo
Born in 1943 at Edou, Oyo District
Of Congolese nationality
Residing at Brazzaville, BP 2947
General Pierre Oba
Minister of the Interior, Public Security and Territorial Administration;
General Norbert Dabira
Inspector-General of the Armed Forces,
Residing at 54, Allée des Tilleuls
Bois Parisis
77240 Villeparisis
General Blaise Adoua
Commander of the Republican Guard, known as the ‘Presidential Guard’;
And all such other persons as the investigation may disclose.”
Under the heading “Context”, the denunciation then presumed to give an account of the
three civil wars that took place in the Congo from 1993 to 1999, and proceeded to give details
of alleged disappearances of individuals between 5 and 14 May 1999. According to the
report, these were people who had taken refuge in the Pool region (a forested area south of
Brazzaville) during the 1998 civil war and crossed over to the Democratic Republic of the
Congo, on the other bank of the Congo River, and then returned to the Republic of the Congo
through the river port of Brazzaville pursuant to a tripartite agreement concluded under the
auspices of the Office of the United Nations High Commissioner for Refugees (UNHCR),
which established a humanitarian corridor. The complainant organizations named some of
these individuals, citing in support of their allegations certain testimony that they claimed to
have obtained directly or indirectly. They intimated, basing themselves on the discovery of
6
- 5 -
two bodies, that the individuals whose disappearance they alleged could have been summarily
executed.
The same passage of the denunciation reproduced, without the slightest critical
analysis, statements of retired Gendarmerie Colonel Marcel Touanga, a notorious member of
the Congolese opposition, concerning the arrest of his son, Gendarmerie Sergeant Narcisse
Touanga, and the unsuccessful steps he allegedly took to trace him.
The authors of the denunciation relied finally on written statements appended thereto,
reportedly received from a Mr. Tsieno, an alleged massacre survivor.
The authors accused the Brazzaville prosecutor’s office of inertia in prosecuting the
alleged offences.
This presentation of the “context” was followed by a section entitled “Attributability”.
The complainant organizations, having asserted that the four named individuals were
responsible for the crimes allegedly committed in the Congo in their capacity as direct
superiors of the actual perpetrators of the crimes, set out to demonstrate, more specifically,
the responsibility of H.E. President Denis Sassou Nguesso and of General Norbert Dabira.
In the case of the President of the Republic of the Congo, they purported to infer his
responsibility from the authority he exercised as Head of State over the Presidential Guard
and the “Cobra” militia, the alleged direct perpetrators of the offences in question.
Under the heading “The immunity of Mr. Sassou Nguesso as Head of State”, a passage
in this section sought to argue that
“[i]t used generally to be held that a Head of State in office traditionally enjoyed
immunity from jurisdiction and execution. However, in light of the practice in
international relations over recent years, it would seem, on the basis of
international instruments as well as of international custom, that those principles
might be susceptible to change”.
Invoking a hotchpotch of special provisions in a number of international instruments (ranging
from the Treaty of Versailles to the Statute of the International Criminal Court and including
the Statute of the Nuremberg International Military Tribunal and the International Criminal
Tribunal for the former Yugoslavia), as well as the order of a Belgian judge concerning
General Pinochet, the denouncers felt justified in concluding that “Mr. Sassou Nguesso
cannot benefit from the principle of immunity”.
In the case of General Dabira, it failed to cite any specific act attributable to him and
inferred solely from his office as Inspector-General of the armed forces that he “could have
played an important role in the prevention of arbitrary arrests and the ensuing
disappearances”. It is self-evident that the complainant organizations really only implicated
him because he had a residence in France, which gave them a pretext, for the reasons set out
below, for invoking the jurisdiction of the French courts.
The denunciation then contained, under the heading “Applicable law”, various
arguments entitled “Definition of the crime of disappearance” (A), referring to a draft
Convention on the Protection of all Persons from Enforced Disappearances, “Disappearances
constitute crimes of torture” (C  read B), “The universal nature of the crime of torture” (C)
and “Enforced disappearances as a crime against humanity” (D). The last head of argument
concluded as follows:
7
- 6 -
“The acts of torture, murder and forced disappearance, as well as of
simple imprisonment or other form of serious deprivation of physical liberty, as
alleged and established in the present complaint, thus constitute crimes against
humanity by reason of the fact that they were committed for political and racial
reasons, in pursuance of a concerted plan.”
The closing arguments dealt with the “jurisdiction of the French courts”.
The organizations contended in this section, first, that the offence of a crime against
humanity, which was said to exist “formally in customary international law”, entails "the
universal jurisdiction of all States to prosecute such crimes” and that “even in the absence of
express provisions in the domestic law of the prosecuting State enabling it to exercise
jurisdiction, international law empowers domestic courts to exercise universal jurisdiction
over crimes against humanity”. They considered it justified to conclude:
“Domestic courts are therefore entitled to look to international custom as
the source of their right to exercise jurisdiction to prosecute the perpetrators of a
crime against humanity alleged to have been committed outside France where
neither the perpetrator nor the victim is a French national.”
With regard to the charge of the crime of torture, they cited the provisions of
Articles 689-1 and 689-2 of the French Criminal Code and those of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment adopted in New
York on 10 December 1984, for the implementation of which (Article 6) the aforementioned
Article 689-2 was enacted.
The denunciation referred again to the “presence” of General Dabira at his address in
France and proceeded to draw the following general conclusion:
“The information contained in the present complaint testifying to the
responsibility of the Congolese authorities for crimes against humanity, enforced
disappearances and torture committed in the Republic of the Congo is sufficient
to entitle FIDH, OCDH and LDH to request you as Procureur de la République,
acting under Article 6 of the aforementioned Convention and Article 659-1 of the
Code of Criminal Procedure, to open a judicial investigation and take all such
steps as are necessary to bring proceedings in light of the presence on French
territory of the persons named in the present document and any such other
persons as the investigation may disclose.” [Translation by the Registry]
2. The initial reactions of the prosecutor to the denunciations
(a) On 7 December 2001, the very day on which the denunciations were filed with the
office of the prosecutor of the Paris Tribunal de grande instance, a senior assistant prosecutor
(premier substitut), head of section, acting on behalf of the latter, transmitted them to the
prosecutor of the Tribunal de grande instance under cover of a document known as a “soit
transmis” (transmittal order), worded as follows: “Order of transmittal to the Procureur de la
République in Meaux, who appears to have jurisdiction pursuant to the terms of
Articles 689-1 and 693 of the Code of Criminal Procedure”.
It should be noted in this connection that Article 689-1 of the Code of Criminal
Procedure stipulates that “[p]ursuant to the international conventions referred to in the
following articles, a person who has committed, outside the territory of the Republic, any of
the offences enumerated in these articles may be prosecuted and tried by French courts if that
person is present in France”, and Article 693 stipulates that, in cases where French courts
8
9
- 7 -
have extraterritorial jurisdiction, the competent court shall be that situated in the place of
residence of the accused.
Villeparisis, where General Dabira has a residence, is in the judicial district of the
Meaux Tribunal de grande instance. Hence the decision to transmit the file to the prosecutor
of that court by his counterpart in Paris.
(b) On 8 December 2001 the Meaux prosecutor issued a document called “Notice of
extension of jurisdiction” (decision under Article 18, paragraph 4, of the Code of Criminal
Procedure, the purpose of which is to authorize judicial police officers to operate elsewhere
on French territory, outside the territory in which they have jurisdiction, which read as
follows:
“The Procureur de la République of the Meaux Tribunal de grande
instance,
Having regard to the preliminary enquiries currently being undertaken by
the Versailles SRPJ (acronym for the Regional Judicial Police Service, which is
established in the judicial district of each appeal court to investigate the most
serious or complex cases) into acts constituting crimes against humanity
[emphasis added]
Against: person or persons unknown
Having regard to the urgency
Having regard to the provisions of Article 18, paragraph 4, of the Code of
Criminal Procedure,
Whereas evidence should be taken from Mr. Tsieno and Mr. Tounga
Hereby requests Mr. Dupeyroux (one of the judicial police officers
involved in the investigation) or any assistant he may designate to travel to
Montfermeil and the Paris Region, and if necessary over the whole of the
national territory, to conduct any examinations, searches or seizures and, in
general, any operations that may assist in uncovering the truth, including, in
particular, any appropriate interviews and enquiries.” [Translation by the
Registry]
Thus, even before the application was issued, the Versailles SRPJ had, very [sic]
pursuant to an informal application by the same prosecutor (the summary report on the
preliminary enquiry, which will be mentioned below, refers to a transmittal order by an
assistant prosecutor dated 8 December), conducted preliminary enquiries into the acts
denounced. In the absence of any written evidence in the case file, it must be assumed that
the Meaux prosecutor reacted to the denunciations transmitted immediately upon receiving
them, on 8 December 2001.
It should be noted in passing that such a speedy, not to say precipitate, response by the
public prosecutors, in both Paris and Meaux, to mere denunciations by private associations is
quite unusual. It will be necessary to return to this point later.
10
- 8 -
3. The preliminary enquiries
The preliminary enquiries involved, in particular, the taking of evidence from
Mr. Tsieno on 17 December 2001 and from Mr. Touanga on 18 January 2001.
Police Captain Franck du Peyroux (or Dupeyroux), the officer heading the investigation
mentioned in the application for extension of jurisdiction cited above, prepared a summary
report of those enquiries on 22 January 2002, to which were appended records
(procès-verbaux) of the 14 statements prepared in the course of the enquiries (numbered
2001/2530), for the Director of the Versailles SRPJ, who transmitted it to the prosecutor in
Meaux.
That report, after reviewing the circumstances in which the enquiries had been
conducted, stated that General Dabira had been identified and his address in Villeparisis
verified, and went on to analyse the interviews with Mr. Tsieno and Mr. Touanga.
It noted, in the statements by Mr. Tsieno, that the summary executions had allegedly
taken place not far from the presidential palace. Looking at the records of these statements,
we find that Mr. Tsieno, replying to the question “Who, do you think, ordered the
executions?”, said: “I don’t know. All I can say is that the executions took place at the
presidential palace of Mr. Sassou Nguesso and were carried out by the Cobra, who report to
Mr. Sassou Nguesso”.
In the case of Mr. Tounga’s interview, the report recorded inter alia that he “implicated
the current President, Mr. Sassou Nguesso” as the source of the instructions to commit the
criminal acts reported by Mr. Tsiena and himself  summary executions followed by
incineration of the victims. With regard to the possible implication of General Dabira, the
officer leading the investigation noted that Mr. Touanga “had no evidence” and that “he
implied that he could not have been unaware of the facts because he had headed a
commission responsible for elucidating the conduct of the presidential forces vis-à-vis
civilians”.
The following are the specific passages from that interview to which the summary
report referred.
With regard to the implication of H.E. President Sassou Nguesso:
“Question: What did General Adoua mean when he referred to
instructions from superiors?
Reply: He meant that it was Mr. Sassou Nguesso who had ordered those
executions so as to traumatize the population in the south and get the situation
fully under control.”
With regard to the responsibility of General Dabira:
“Personally, I have no evidence of his physical involvement but I know
that he was aware of what was happening in the Presidential Guard, because he
had been appointed Chairman of the Commission set up to look into the conduct
of the security services towards civilians.” [Translation by the Registry]
11
- 9 -
4. Prosecutor’s originating application
On 23 January 2002, the prosecutor of the Meaux Tribunal de grande instance issued a
réquisitoire, an originating application requesting an investigating judge to proceed with a
judicial investigation (instruction or information), under the conditions and with the effects
set out below.
The prosecutor’s originating application represents the key document in the present
proceedings before the Court. That document forms the basis of the violations of international
law committed by the judicial authorities of the French Republic which have caused prejudice
to the Republic of the Congo. All subsequent breaches can be traced back to that source.
It is necessary to reproduce that document in full:
“The Procureur de la République of the Meaux Tribunal de grande
instance
Having regard to the appended documents, and in particular
PV No. 2530/2001
Whereas it being apparent from said documents that there are against a
person or persons unknown
Indicia suggesting that he (she, they) participated in the following acts:
 Crimes against humanity: massive and systematic abductions of individuals,
followed by their disappearance
 torture or inhuman acts for ideological reasons in implementation of a
concerted plan against a group of the civilian population
Having regard to Article 212-1 of the Criminal Code and
Article 689-1 of the Code of Criminal Procedure
Having regard to Articles 80, 80-1 and 86 of the Code of Criminal
Procedure
Hereby requests his honour the investigating judge to commence an
investigation by all available legal means
Done at the public prosecutor’s office, 23 January 2001 [this should
read 2002]
On behalf of the Procureur de la République
C. KRIEF, Assistant Prosecutor”
[Translation by the Registry]
As indicated above, the reference “PV No.°2530/2001” denotes the records prepared in
the course of the preliminary enquiries. These are not the only documents appended to the
réquisitoire. The denunciations discussed earlier are also of course appended thereto.
12
- 10 -
Article 212-2 of the Criminal Code is the text providing for the punishment of crimes
against humanity other than genocide.
Article 689-1 of the Code of Criminal Procedure contains the above-mentioned
provisions concerning certain cases where French courts have extraterritorial jurisdiction.
Article 80 of that same Code provides for the prosecutor’s originating application and
Article 80-1 for the conditions under which a person may be placed under judicial
examination.
The provisions of Article 86, which concerns the opening of a judicial investigation on
the basis of a complaint with a civil-party application, is clearly irrelevant in the present case
and can be disregarded.
5. The initial measures of judicial investigation
In accordance with the duty rota of investigating judges at the Meaux Tribunal de
grande instance, drawn up by order of the President of that Court pursuant to Article 83 of the
Code of Criminal Procedure, Mr. J. Gervillie was entrusted with the investigation pursuant to
the above-mentioned application. At his request, the President of the Court, by order of
4 February 2002, “having regard to the seriousness and the complexity of the case”, further
assigned to the case Mme Odette-Luce Bouvier, Investigating Vice-President.
It is only necessary to relate here those events occurring at the beginning of that judicial
investigation which are pertinent in light of the Congolese Republic’s claims.
On 31 January 2002, Mr. Tsieno filed an application to join the proceedings as a civil
party, pursuant to Article 87 of the Code of Criminal Procedure. He was heard by the
investigating judges on 22 March 2002. On that occasion, he reiterated his previous
statements.
Mr. Touanga was later heard as a witness on 17 June 2002.
In the meantime, the investigating judges had issued a commission rogatoire
(instructions given to judicial police officers, pursuant to Articles 151 et seq. of the Code of
Criminal Procedure, for the undertaking of certain investigative measures on behalf of the
investigating judge) to the Chief Inspector of the Paris Criminal Investigation Unit (section de
recherches) of the Ile de France Division of the Gendarmerie.
6. The first steps in the investigation against General Dabira
On 23 May 2002, judicial police officers from the Paris Criminal Investigation Unit,
placed General Dabira in custody and interviewed him as a witness.
Later, on 8 July 2002, the investigating judges took testimony from him as a témoin
assisté (a legally represented witness: the status defined by Articles 113-1 and 113-2 of the
Code of Criminal Procedure applying to a person who is specifically mentioned by name in
the prosecutor’s originating application and is not placed under judicial examination, or who
has been implicated by the victim or by a witness, or against whom there is evidence as to the
likelihood of that person having participated in the offence of which the investigating judge is
seised), in the presence of his counsel and without taking an oath, as provided for in
Articles 113-3 and 113-7 of the Code of Criminal Procedure. General Dabira denied any
participation in the alleged crimes and explained that his duties as Inspector-General of the
13
14
- 11 -
Armed Forces did not grant him any hierarchical authority over the members of the
Republican Guard alleged by the complainants to have committed the offences in question.
Following that hearing, the investigating judges notified General Dabira that they
would summon him to appear again on 11 September 2002 at 9.30 a.m. with a view to his
being placed under judicial examination («mise en examen», a measure provided for under the
above-mentioned Article 80-1 of the Code of Criminal Procedure, formerly known as
“inculpation”, which consists of informing a person that there is strong or concordant
evidence as to the likelihood of that person having participated in the offences of which the
investigating judge is seised).
The judges thus addressed to him, on 23 August 2002, a Summons for First
Appearance, with a view to the possibility of his being placed under judicial examination in
accordance with the said Article 80-1, paragraph 2.
General Dabira then returned to Brazzaville and reported the measures taken against
him to the President of the Republic of the Congo, who instructed him not to appear in
response to the summons by the investigating judges, because French courts lacked
jurisdiction to prosecute the alleged offences in question.
7. The claim to jurisdiction submitted by the prosecutor of the Brazzaville Tribunal de
grande instance to the prosecutor of the Meaux Tribunal de grande instance regarding
the acts under investigation by the latter court
On 9 September 2002, the prosecutor of the Brazzaville Tribunal de grande instance
sent the prosecutor of the Meaux Tribunal de grande instance a detailed letter, in which he
stated that he was informed of the proceedings initiated in Meaux against General Dabira and
indicating that one of the above-mentioned complainant organizations, the Congolese Human
Rights Observatory (OCDH) had published the same accusations in the Congo in 2000, thus
leading the Congolese Minister of Justice to initiate an investigation.
The Brazzaville prosecutor added:
“Following that enquiry, the Minister of Justice, considering that the
statements of certain persons interviewed could contain facts capable of being
characterized as offences under the criminal laws of the Republic, requested the
public prosecutor to apply for the opening of a judicial investigation against
persons unknown on account of abductions and disappearances of persons. By
an originating application of 29 August 2000, the public prosecutor thus
requested the opening of a judicial investigation on the above grounds. The
senior investigating judge at the Brazzaville Tribunal de grande instance has
accordingly been seised of the facts and has already carried out a number of acts
of investigation.” [Translation by the Registry]
He then stated that the initiation of a judicial investigation into the same facts by the
Meaux prosecutor raised “a serious problem of conflict of jurisdiction between two courts
belonging to two sovereign States” and that the Congolese courts alone should have
jurisdiction, for three reasons that he set out in the remainder of his letter.
The first of those reasons was that the jurisdiction of a State to try offences committed
on its territory constituted an attribute of sovereignty and a principle of international public
order.
15
- 12 -
The second was that, even if the French courts had a basis of jurisdiction, which was
far from being the case, the conflict of jurisdiction must be settled in favour of the Congolese
courts: first, because the acts cited by the complainants were alleged to have taken place in
the Congo, and, secondly, because the perpetrators and victims of those alleged crimes were
said to be Congolese, and thirdly, since the alleged perpetrators, victims and witnesses were
to be found in the Congo, the Congolese courts were in a position to conduct a meaningful
investigation, whereas the French courts were not.
The third reason was that the jurisdiction provided for under the above-mentioned
Article 689-1 of the French Code of Criminal Procedure could only be subsidiary to that of
the State on whose territory the alleged offences were said to have been committed.
The Brazzaville prosecutor concluded as follows:
“The proceedings undertaken by the investigating judge of the Meaux
Tribunal de grande instance thus lacks any proper legal basis. Accordingly, the
termination of those proceedings by the French Court for lack of jurisdiction
would be the appropriate means for bringing an end to this unfortunate conflict,
which could become a serious impediment to the proper administration of
international criminal justice.” [Translation by the Registry]
8. The Meaux prosecutor’s failure to respond and the continuing judicial investigation
in France; further measures taken against General Dabira
The Meaux prosecutor did not deign to respond to the letter from his Brazzaville
counterpart.
To make matters worse, since General Dabira had not appeared before the investigating
judges on 11 September 2002, having informed them through his lawyer that the Congolese
authorities forbade him from doing so because the judges lacked jurisdiction, on
16 September 2002 those judges issued a warrant for his immediate presentation (mandat
d’amener), pursuant to Article 122, paragraph 3, of the Code of Criminal Procedure (that is to
say, an instruction by the investigating judge to the police to bring before him forthwith the
person against whom it is issued).
On 24 September 2002, reporters from the television channel France 2 produced a news
item in the Villeparisis area, where they went to film General Dabira’s house. Their report
was broadcast in a number of news bulletins, which cited the allegations made against
General Dabira by the complainants.
The next day, in the early morning of 25 September, four gendarmes arrived at his
house to enforce the warrant and searched the entire premises, showing scant consideration
for General Dabira’s wife and small children.
9. The attempt by the investigating judges to take testimony from His Excellency
President Denis Sassou Nguesso
Whilst His Excellency President Denis Sassou Nguesso was on a State visit to France,
the investigating judges sent a request to the Minister for Foreign Affairs, purportedly
pursuant to Article 656 of the Code of Criminal Procedure (which, as will be seen later, does
not concern foreign Heads of State), to obtain a written deposition from the President.
The Minister for Foreign Affairs did not accede to that request.
16
17
- 13 -
10. Unofficial representations to the French political authorities by the Congolese
political authorities
That situation led the Congolese political authorities to draw the attention of their
French counterparts to the violation of international law constituted by the proceedings,
initiated proprio motu by members of the French judiciary, and to request them to do
everything in their power to put an immediate end to those proceedings. However, the French
political authorities, whilst convinced of the correctness of the Congolese position, considered
themselves unable to intervene effectively in this case, in light of the independence of the
judiciary under French municipal law.
That conflict between international law, as invoked by the Republic of the Congo, and
municipal law, as invoked by the French Republic, has thus created a legal dispute between
the two States.
II. Proceedings before the Court
11. Initiation of proceedings before the Court
It was in these circumstances that the Republic of the Congo, by an Application filed in
the Registry on 9 December 2002, referred the dispute to the Court.
The Application requested the Court to declare that the French Republic should cause
to be annulled the measures of investigation and prosecution taken, as stated above, by the
Procureur de la République of the Paris Tribunal de grande instance, the Procureur de la
République of the Meaux Tribunal de grande instance and the investigating judge of that
court. The Congo contends, as will be shown below, that those measures were taken in
violation of the rules of international law concerning the jurisdiction of States in criminal
matters and the criminal immunity of Heads of State and Ministers responsible for public
order.
The Application was accompanied by a request for the indication of a provisional
measure, that is to say the suspension of the proceedings being conducted by the Meaux
investigating judge, and it is that request which we shall now discuss.
12. Consent to the Court’s jurisdiction by the French Republic
It should be recalled that, as the French Republic no longer accepted the Court’s
compulsory jurisdiction, the Republic of the Congo invited that State  with whom it
entertained friendly relations, a Treaty of Co-operation having been concluded between the
two States on 1 January 1974, Article 2 of which provides: “with due regard for the
sovereignty . . . and territorial integrity of the other party, each High Contracting Party shall
undertake to settle its disputes with the other by peaceful means, in accordance with the
Charter of the United Nations”  to consent to the Court’s jurisdiction, pursuant to
Article 38, paragraph 5, of the Rules of Court.
By a letter of 8 April 2003, received in the Registry of the Court on 11 April, the
French Republic consented to the Court’s jurisdiction, with two qualifications which the
Republic of the Congo fully endorses, concerning the limitation of that consent to the claim
submitted in the Application and the scope of Article 2 of the Treaty of Co-operation in
relation to the Court’s jurisdiction.
18
- 14 -
The Republic of the Congo addressed, and now reiterates, its sincere thanks to
H.E. President Jacques Chirac and to the Government of the French Republic for that consent.
The Congo welcomes the respect for international law and the attachment to the principles of
the United Nations Charter that France has thus once again shown.
13. Order of 17 June 2003 on the request for the indication of a provisional measure
Following hearings on the request for the indication of a provisional measure, held on
28 and 29 April 2003, the Court rendered its Order on 17 June 2003.
In that Order, the Court found that the circumstances, as they presented themselves to
the Court, were not such as to require the exercise of its power under Article 41 of the Statute
to indicate provisional measures.
In its reasoning the Court first considered the risk of irreparable prejudice within the
meaning of that Article.
On that point, the Court “noted”, word for word, a statement made by the Agent of the
French Republic during the hearing of 29 April.
For the purposes of further discussion, certain passages of that statement should be
recalled:
“In conformity with international law, French law embodies the principle
of the immunity of foreign heads of state . . .
One thing must be clear from the outset: France in no way denies that
President Sassou Nguesso, as a foreign head of State, enjoys immunities from
jurisdiction, both civil and criminal.
Up to the present time it has never been disputed, and it is certainly not
seriously disputable, that all the steps taken by the French courts in this particular
case have been strictly in conformity with French law. They have respected the
limits of their jurisdiction and have respected the immunities enshrined in French
law in conformity with international law . . .
. . . we have said that French law does not allow the prosecution of a
foreign head of State; that is not a promise, it is a statement of the law. And also
that French law subordinates the jurisdiction of the French courts over acts
committed abroad to certain conditions. That too is not a promise, it is a
statement of the law. At the very most, but it would be somewhat pointless to do
so, we might promise that the French courts will respect French law. But I think
this might be taken for granted or assumed, and if a specific judicial decision, of
which there is currently no example in the present case, were to exceed the limits
set down by the law, there would of course be means of recourse enabling any
errors to be made good.”
In light of that statement, the Court observed that it was not called upon, at that stage,
to determine the compatibility with the rights claimed by the Congo of the procedure thus far
followed in France, but only the risk or otherwise of the French criminal proceedings causing
irreparable prejudice to such claimed rights. It added that it did not appear to the Court that
the criminal proceedings in France, at the present time, presented any risk of irreparable
prejudice, either for H.E. President Sassou Nguesso or for General Oba, Minister of the
Interior.
19
20
- 15 -
As regards the procedural measures actually taken against General Dabira, the Court
found that it had not been established that any irreparable prejudice would be caused to the
rights claimed by the Congo.
With respect to the question of urgency in the sense of that same Article 41, the Court
further explained its decision by indicating, first, as regards H.E. President Sassou Nguesso,
that the request for a written deposition made by the investigating judges, pursuant to
Article 656 of the Code of Criminal Procedure, had not been passed on by the Minister for
Foreign Affairs, and second, as regards General Oba and General Adoua, that they had not
been the subject of any measures of judicial investigation, and that, accordingly, as no
measures of that nature were [threatened] against the three individuals concerned, there was
no urgency.
III. Discussion
Arguments will now be presented successively to justify each of the two grounds of the
Congo’s Application.
It is first necessary to address a point of law upon which each ground is predicated, that
is to say the nature and scope of the prosecutor’s originating application (réquisitoire) of
23 January 2002.
A. Nature and scope of the prosecutor’s originating application of 23 January 2002
(a) The relevant rules of French law will now be set out briefly
14. Subject-matter of the originating application; against a named or unnamed person;
in rem nature of seisin
The first two paragraphs of Article 80 of the Code of Criminal Procedure stipulate:
“The investigating judge may only investigate pursuant to an application
from the prosecutor.
The prosecutor’s application may be directed against a named or unnamed
person (indicated in practice as: ‘against X’).”
The application is thus the document by which the prosecutor initiates criminal
proceedings before the investigating judge. The fact that he can choose whether to direct his
application against a named or an unnamed person means that the prosecutor cannot restrict
the seisin of the investigating judge to specific named individuals. It is up to that judge to
determine which persons should be formally placed under judicial examination and then
possibly committed for trial, regardless of whether or not they were named in the originating
application: the investigating judge is seised in rem (which incidentally also means that he is
not bound by the legal characterization of the prosecuted offence as proposed by the
prosecutor) and not in personam.
15. Indication of offence prosecuted; reference to appended documents
It follows that the originating application must indicate the offence prosecuted. In
practice, it is extremely rare for this to be indicated directly. The application simply states:
“Having regard to the appended documents”, which is moreover printed on the forms issued
21
22
- 16 -
by the Ministry of Justice. According to the case law of the Criminal Chamber of the Court
of Cassation:
“The reference in the originating application to the appended documents is
deemed to take account of their contents, whose terms accordingly determine the
precise subject-matter and scope of the case referred to the investigating judge.”
(11 July 1972, Bulletin des arrêts, No. 235, p. 615.) [Translation by the
Registry]
It has further been held that, even if the originating application does not specifically cite those
documents, “by simply stating ‘having regard to the appended documents’ it is deemed to
take account of their contents” (29 September 1992, Bulletin, No. 288, p. 787).
Accordingly, when an originating application refers to appended documents which
include an ordinary complaint or a denunciation, without excluding from the judge’s seisin
specific facts alleged in that complaint or denunciation, the judge is necessarily seised thereof.
16. The prosecutor’s discretionary power
Unless a complaint is filed with a civil-party application, the prosecutor decides,
pursuant to the above-mentioned Article 40 of the Code of Criminal Procedure, on the basis
of law and propriety, on how to respond to the complaints and denunciations that he receives,
as well as to police reports transmitted to him. He is thus never obliged to initiate a judicial
investigation.
In the event of any legal bar on the proceedings, for example if the court lacks
jurisdiction or if criminal proceedings are inadmissible, in particular because of immunity
enjoyed by certain persons named in a complaint, denunciation or police report, then, by
contrast, he is under an obligation not to seek to initiate a judicial investigation.
17. Irrevocability of the investigating judge’s seisin
Once an originating application has been issued, the prosecutor can no longer limit the
seisin of the investigating judge. The Criminal Chamber [of the Court of Cassation ] has
ruled in this regard: “that the investigating judge is required to investigate all the facts of
which he has been lawfully seised; that the prosecutor is not entitled subsequently to restrict
the scope of that seisin” (24 March 1977, Bulletin, No. 112, p. 274).
That rule flows from the principle, which is inherent in the inquisitorial nature of
French criminal procedure, that the prosecutor cannot manipulate criminal proceedings as he
sees fit, because they appertain to society as a whole, on whose behalf he prosecutes.
Of course, if the prosecutor subsequently discovers that he has unlawfully applied for a
judicial investigation, in particular when the court lacks jurisdiction or the criminal
proceedings are inadmissible, he may use any appropriate remedies to correct that error
(objection to jurisdiction addressed to the investigating judge, subject to appeal before the
Examining Chamber, application for annulment to that Chamber). However, unless he does
so, the defect contained in his originating application does not deprive it of its effect and in no
way limits the seisin of the investigating judge.
23
- 17 -
18. Situation of individuals not placed under judicial examination but named in a
complaint
Under French law as it now stands, since the reform enacted by Law No. 2000-516 of
15 June 2000, “reinforcing the protection of the presumption of innocence and the rights of
victims”, certain implications attach to the situation, in the context of a judicial investigation
against persons unknown, of individuals who have not been placed under judicial examination
but who have been implicated in various ways as having possibly participated in the offence
prosecuted.
Article 80-1 of the Code of Criminal Procedure provides that “[o]n pain of nullity, the
investigating judge may place under judicial examination only those persons against whom
there is strong or concordant evidence raising a likelihood that they could have participated,
as perpetrator or accomplice, in the commission of the offences of which he is seised.”
[Translation by the Registry]
However, in the absence of any such evidence, individuals who can only be heard as
legally represented witnesses, or who can demand that status, are ipso facto, in terms of their
legal position, under suspicion of having participated in the offences concerned.
Such individuals, in addition to those specifically named in an originating application
but not placed under judicial examination by an investigating judge (see above-mentioned
Article 113-1 of the Code of Criminal Procedure  obligation to be heard as legally
represented witness), are those who have been named in a complaint or who have been
implicated by the victim (above-mentioned Article 113-2  right to demand to be heard by
the investigating judge as a legally represented witness).
Such persons must consequently be regarded as subjects of the judicial investigation.
They are not in the situation of third parties in relation to those proceedings. To conduct a
judicial investigation, even against persons unknown, on the basis of accusations made
against specific individuals, is tantamount to taking measures against those individuals.
(b) Those principles should thus be applied to the originating application of
23 January 2002
19. Scope of documents appended to originating application; burden of suspicion on
persons denounced
As indicated above, the originating application was issued having regard to the
documents appended thereto, which included denunciations characterized as complaints and
admitted as such. Those “complaints” contained allegations of crimes against humanity and
acts of torture. They claimed that international custom attributed jurisdiction to the French
courts to prosecute such offences and rejected the immunity of Heads of State. They
denounced, by name, as perpetrators of those crimes, H.E. the President of the Congolese
Republic and H.E. the Minister of the Interior.
The originating application was issued without the slightest qualification as to the
jurisdiction of the French courts or as to the admissibility of criminal proceedings against
persons who are protected by international immunities.
It thus seised the investigating judge of the acts denounced and placed the named
individuals in a situation where, being entitled to request a hearing by the investigating judge
only as legally represented witnesses, they are under suspicion of implication in those acts.
That originating application stands as an established fact in the case.
24
- 18 -
Accordingly, the investigating judges have the power, simply by relying on the terms of
the application, to proceed without restriction, on the basis of the alleged offences denounced
by the above-mentioned organizations, against the individuals named by them.
Whilst there may well be remedies against such excesses, the fact remains that the
prosecutors have allowed a situation to develop requiring recourse to such remedies, instead
of refraining from issuing an application which, as will now be shown, was unlawful.
B. The first ground of the Application (violation of the principle that a State may not
exercise its authority on the territory of another State and of the principle of
sovereign equality, as laid down in Article 2, paragraph 1, of the Charter of the
United Nations)
(a) In respect of the alleged crimes against humanity
20. No general principle of universal jurisdiction
The French investigating judge was wrong when, in reliance upon a universal
jurisdiction incompatible with international law, he considered himself to have jurisdiction
over alleged crimes against humanity stated to have been committed abroad by and against
foreigners.
In his separate opinion appended to the Judgment rendered by the Court on
14 February 2002 (case concerning the Arrest Warrant of 11 April 2000 (Democratic
Republic of the Congo v. Belgium)), Judge Gilbert Guillaume, then President of the Court,
shows that the only real instance of universal jurisdiction recognized by customary
international law is that of piracy, as specified in Article 19 of the Geneva Convention on the
High Seas of 29 December 1958 and later in Article 105 of the Montego Bay Convention of
10 December 1982:
“[U]niversal jurisdiction is accepted in cases of piracy because piracy is
carried out on the high seas, outside all State territory. However, even on the
high seas, classic international law is highly restrictive, for it recognizes
universal jurisdiction only in cases of piracy and not of other comparable crimes
which might also be committed outside the jurisdiction of coastal States . . .”.
The only other instances of universal jurisdiction stem from specific international
instruments, none of which (until the Rome Convention of 17 July 1998) relates generally to
crimes against humanity. Domestic courts therefore remain without jurisdiction even if
legislation of the State in question purports in its own right to establish universal jurisdiction,
as was the case for the Belgian Law of 1993-1999.
21. Non-conformity with international law of legislation enacted by a State which
purports to establish its universal jurisdiction; case of the Belgian Law of
16 June 1993
The Belgian Law of 16 June 1993 on the Punishment of Serious Violations of
International Humanitarian Law, as extended by the Law of 10 February 1999 to cover
genocide and crimes against humanity, violated two principles of classic international law:
the territoriality standard and immunities of members of foreign governments. Thus, it
allowed for criminal proceedings to be initiated solely on the basis of a civil-party complaint
filed with an investigating judge, even in the absence of the persons against whom the
proceedings were taken, even against individuals entitled to claim immunity.
25
26
- 19 -
On 17 October 2000 the Democratic Republic of the Congo (DRC) seised the Court of
a dispute arising out of the international arrest warrant issued by Judge Vandermeersch
against the incumbent Minister for Foreign Affairs of the DRC, Mr. Yerodia Abdoulaye
Ndombasi. In its Application the DRC accused Belgium of violating, by that warrant, the
sovereignty of the Democratic Republic, as well as the principle that a State may not exercise
its powers on the territory of another. Belgium’s position was particularly inconsistent, since
the 1999 Law withdrew immunity for foreign government members, yet Belgian law
continued to confer a special status on Belgian ministers and to protect them from assize
jurisdiction. In its Judgment of 14 February 2002 the Court found in favour of the DRC.
Judge Guillaume, in his above-mentioned separate opinion, even warned of the judicial chaos
and international disorder which the Belgian Law could cause if copied by all States.
The Belgian Law of 1993-1999 was applied in the trial of the “Butare Four”: four
individuals responsible for the Rwandan genocide, who had fled to Belgium, were tried
before the Brussels Assize Court and convicted in June 2001 of crimes against humanity.
Unfortunately, this precedent led to a proliferation of complaints and Belgium proved unable
to cope with this either at judicial or at diplomatic level. A new Law of 5 April 2003 brought
Belgium back into line with the general law: a complaint is now only admissible if the
offence has been committed in Belgium, if the suspected offender is Belgian or present in
Belgium, or if the victim is Belgian or has resided in Belgium for at least three years.
Belgium had committed the “offence of impudence”, in the words of Mr. Benoît de
Jemmepe, Procureur du Roi (Crown Prosecutor) in Brussels. Not wishing to confine itself to
advocating international punishment for the most serious crimes, it aspired to the role of
global legislator. As Mr. Bertrand Badie notes in his essay on “the diplomacy of human
rights” (Paris, 2002), “speaking on behalf of all humanity is inevitably liable to be seen as a
form of power”. The ambiguity of the Belgian Law revealed a certain arrogance in respect of
others’ justice, and the arrogance of the former colonizer towards the justice of the formerly
colonized, as shown by the Arrest Warrant case.
21. The territoriality principle: rejection of universal jurisdiction
If domestic courts lack jurisdiction even when legislation of the State in question
purports in its own right to establish their universal jurisdiction, as was the case for the
Belgian Law, then such lack of jurisdiction applies a fortiori in the absence of such
legislation, as in the case of the French Republic here.
This lack of jurisdiction follows from the principle of the territorial character of
criminal law, which is “fundamental” “in all systems of law”, as the Permanent Court of
International Justice observed in its Judgment of 7 September 1927 in the Lotus case. In his
award of 4 April 1928 in the Island of Palmas case, Max Huber noted the “principle of the
exclusive competence of the State in regard to its own territory”. True, as the Lotus Judgment
showed, classic international law does not bar a State from the possibility of exercising its
jurisdictional power over offences committed abroad; in that case Turkey had invoked a
customary rule allowing it to prosecute the party responsible for injury caused to Turkish
nationals outside Turkish territory (here, the French officer of the watch on duty when the
French vessel “Lotus” collided on the high seas with a Turkish collier) and the Permanent
Court recognized the existence of such a customary rule. But, as Judge Guillaume points out
in his separate opinion in the Arrest Warrant case, that exercise is not without its limits:
27
- 20 -
“Under the law as classically formulated, a State normally has jurisdiction
over an offence committed abroad only if the offender, or at the very least the
victim, has the nationality of that State or if the crime threatens its internal or
external security. Ordinarily, States are without jurisdiction over crimes
committed abroad as between foreigners.”
22. Territoriality as a corollary of sovereignty
In truth, the principle of territoriality is a corollary of the principle of sovereignty.
Sovereign power cannot but be supreme, cannot emanate from any superior power: “only one
who is absolutely sovereign derives nothing from another”, observed Jehan Bodin in his “Six
Books of the Commonwealth”. And the original exegete of sovereignty stressed from the
start the formal equality which sovereignty confers on newly independent political entities:
“a minor king is just as sovereign as the greatest monarch in the world”. This is now
confirmed in Article 2, paragraph 1, of the Charter of the United Nations: “The Organization
is based on the principle of the sovereign equality of all its Members”.
23. No French statute establishing universal jurisdiction in respect of crimes against
humanity
This is the context in which a case similar in nature to the Arrest Warrant case has
arisen between the Republic of the Congo (Brazzaville) and France. Also eager to set an
example and hold themselves out as a model to an ex-colony, French judicial officers,
specifically the Procureurs de la République of the Paris and Meaux Tribunaux de grande
instance, decided to pursue the same objective, that of universal jurisdiction, but in this case
without the benefit of any domestic legislation to justify that ambition. Seised of a complaint
by three humanitarian associations for crimes against humanity and torture, these French
judicial officers, failing to consider the conformity of their actions with international law or
the consequences of the existence of Congolese sovereignty, took actions leading, after a
preliminary enquiry, to an application originating a judicial investigation.
In fact, there is no provision of French law, leaving aside two temporary, very specific
implementing statutes, which establishes universal jurisdiction in respect of crimes against
humanity.
Of course, this does not mean that the concept is unknown. The notion of crime against
humanity saw the light of day with the Charter of the International Military Tribunal of
Nuremberg, annexed to the London Agreement of 8 August 1945. Under Article 6 (c), crimes
against humanity include “murder . . ., enslavement, deportation and other inhumane acts
committed against any civilian population, before or during the war; or persecutions on
political, racial or religious grounds”. The Criminal Chamber of the Court of Cassation has
explained that crimes against humanity “are common crimes committed under particular
circumstances and on particular grounds” and that the term covers “inhumane acts and
persecutions . . . in the name of a State practising a policy of ideological hegemony”,
“systematically committed not only against individuals because of their membership in a
racial or religious group but also against opponents of that policy, whatever the form of their
opposition” (20 December 1985). The Charter has outlived the Nuremberg Tribunal, as is
evidenced by the Law of 26 December 1964 on the inapplicability of any statute of limitations
to crimes against humanity, or the Law of 13 July 1990 supplementing the Law of 1881 on
freedom of the press with a provision dealing with denial of the existence of such crimes.
However, as interpreted by the Court of Cassation, the Charter’s definition of offences
applied only to crimes committed during the Second World War by nationals of the European
Axis Powers. While the French Criminal Code which entered into force on 1 March 1994
28
29
- 21 -
does define crimes against humanity as criminal offences (Articles 211-1 to 213-5), it does
not do so retroactively.
Nonetheless, French law does not provide for universal jurisdiction in this area.
Under French law today, almost all offences, whether consummated or attempted,
which are subject to universal jurisdiction and denote conduct prohibited by international
treaty law are enumerated in Articles 689-1 to 689-9 of the Code of Criminal Procedure, as
amended by the Laws of 16 December 1992 and of 15 and 30 June 2000: torture, terrorism,
illegal use of nuclear materials, unlawful acts against the safety of maritime navigation and
fixed platforms, unlawful acts against the safety of civil aviation, corruption or offence
detrimental to the financial interests of the European Communities, acts of terrorism
committed with explosive or deadly devices . . . Only two temporary implementing
statutes  the Laws of 2 January 1995 and 22 May 1996 adapting French statute law to
United Nations Security Council resolutions 827 and 955 setting up the International Criminal
Tribunals for the Former Yugoslavia and for Rwanda  provide for universal jurisdiction in
respect of crimes against humanity.
Thus, there is even less to justify the ambition of French judicial officers to assume the
role of global judges than there was in respect of the short-lived ambition of Belgian judges,
who were supported by their parliament, posing as global legislature.
(b) The alleged instances of torture
24. The provisions of French law applicable to international jurisdiction in respect of
torture
The French investigating judge was wrong when, in reliance on a universal jurisdiction
which is no more than residual, he considered himself to have jurisdiction over alleged acts of
torture committed abroad by and against foreigners.
Unlike crimes against humanity, the crime of torture is the subject of both a specific
international instrument and a text of French law.
Further to Article 689-1 as cited above, Article 689-2 of the French Code of Criminal
Procedure refers to the New York Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment of 10 December 1984, which entered into force on
26 June 1987.
25. Definition of torture
Torture is defined in Article 1 of that Convention as any act by which severe suffering,
whether physical or mental, is intentionally inflicted on a person by or at the instigation of a
public official for a particular purpose (obtaining a confession or information, inflicting
punishment for an act committed, intimidating, coercing a third person etc.). This definition
takes up the three constituent elements defined, at the regional level, by the European
Commission of Human Rights in the Greek Case (concerning the admissibility of applications
3321/67 and 4448/70, submitted by the three Scandinavian States and also, in respect of the
first, the Netherlands): the intensity of the suffering, wilful intention, a specific objective; it
leaves unaddressed the notions of inhuman or degrading treatment, considered “lesser” than
torture; it establishes an exception for pain or suffering arising from sanctions “légitimes”, a
more subjective concept than sanctions “légales”, introduced in Article 7 of the Rome Treaty
of 11 July 1998 laying down the Statute of the International Criminal Court and including
torture among the acts constituting crimes against humanity.
30
31
- 22 -
26. Obligations of the States parties to the New York Convention
The New York Convention lays down the obligations of States parties. Those
obligations fall into four categories: prevention, criminalization and punishment, extradition
or prosecution, judicial protection of victims and compensation. It would appear that the
Convention founds this legal power of the State party to assert jurisdiction in respect of the
crime of torture first of all, and in keeping with the traditional approach, on the State’s
personal jurisdiction over its nationals and on its territorial jurisdiction: under Article 5 (1),
each State party is required to establish its jurisdiction in the following three cases: the
offence is committed in its territory, the alleged offender is one of its nationals, or the victim
is one of its nationals. But Article 5 (2) broadens the jurisdiction of the State party to cover
cases where an individual suspected of having committed an offence is found in its territory;
Articles 6 and 7 describe the conditions under which such person shall be identified, taken
into custody and tried. Thus, from Article 5 (2) onwards, the Convention would appear to be
indifferent to nationality as regard the implementation of its provisions: a State party is under
an obligation to identify, arrest and try any alleged perpetrator of the crime of torture who is
found in its territory, irrespective of the nationality of offender or victim.
The drafters of the New York Convention would thus appear to have sought to
establish a mechanism for universal jurisdiction. The originality of the Convention, like that
of other human rights instruments with specialized subject-matters, ostensibly lies in the fact
that it embodies law which is international in origin but domestic in object and is ultimately
aimed at a transnational community of individuals distinct from the community of States.
However, the general scheme of the Convention calls for greater caution.
First: since an alleged perpetrator of torture discovered on the territory of a State party
can be detained and tried by that State, irrespective of his nationality and of where the offence
was committed, it would be tempting to consider that nationals of a third State claiming to
have been victims of Convention violations can rely on the Convention’s provisions, even
though those provisions are not binding on their own State. Those individuals would
therefore have standing to invoke the Convention before the judicial organs of any State
party.
Second: the Convention establishes a monitoring process after an act of torture has
taken place, but that process is at each stage completely subordinate to acceptance by States.
The Convention sets up a “Committee against Torture”, whose powers are, admittedly, broad:
it can examine reports by States parties, inter-State complaints and individual complaints and
can even take the initiative in conducting inquiries . . . but review by the Committee of
inter-State and individual complaints is possible only if the State directly concerned has
submitted an optional declaration accepting this procedure. Another limitation: enquiries
may be instigated only if the Committee “receives reliable information . . . that torture is
being systematically practised in the territory of a State Party”; moreover, a State which
becomes a party to the Convention enjoys the possibility of rejecting in toto the Committee’s
powers of investigation.
Thus, there is conflict in the New York Convention between the principles of
sovereignty and interventionism: how are Articles 5 (2), 6 and 7, which facilitate
prosecutions involving non-party States, to be reconciled with Articles 20-22, which establish
a strict framework for the Convention’s monitoring system?
The fact is that the system established by the New York Convention against Torture
represents the new approach developed, beginning in 1970, in a series of conventions
designed to combat international terrorism. The first example was the Hague Convention of
16 December 1970 for the Suppression of Unlawful Seizure of Aircraft: the State in whose
32
- 23 -
territory a hijacker takes refuge must extradite or prosecute him; but the Convention imposes
on States the obligation to establish the jurisdiction of their courts for this purpose. The same
family of treaties includes, in addition to the Convention against Torture: the Montreal
Convention of 23 September 1971 for the Suppression of Unlawful Acts against the Safety of
Civil Aviation; the New York Convention of 14 December 1973 on the Prevention and
Punishment of Crimes against Internationally Protected Persons, including Diplomatic
Agents; the New York Convention of 17 December 1979 against the Taking of Hostages; the
Vienna Convention of 3 March 1980 on the Physical Protection of Nuclear Material; the
Montreal Protocol of 24 February 1988 for the Suppression of Unlawful Acts of Violence at
Airports; the Rome Convention and Protocol of 10 March 1988 for the Suppression of
Unlawful Acts against the Safety of Maritime Navigation and the Safety of Fixed Platforms
located on the Continental Shelf; the New York Conventions of 15 December 1997 and
9 December 1999 for the Suppression of Terrorist Bombings and of the Financing of
Terrorism.
27. Subsidiarity of universal jurisdiction in respect of torture
The mechanism established by the Convention against Torture is thus one of universal
jurisdiction which is compulsory but subsidiary. Compulsory jurisdiction: prosecution is no
longer subject to the existence of jurisdiction; jurisdiction must be established in order to
allow for prosecution. Subsidiary jurisdiction: the State in whose territory the offender is
present must extradite or prosecute him, but the States most directly concerned remain those
referred to “in Article 5, paragraph 1”, i.e., the State of which the alleged offender is a
national, the State of which the victim is a national, the State in whose territory the acts were
committed.
A State detaining an alleged offender is under an obligation of mutual assistance and
co-operation with those States: it can keep the alleged offender in custody only so long as
necessary to allow for the bringing of criminal proceedings . . . or extradition proceedings; it
must immediately notify the States referred to “in . . . paragraph 1”.
28. Failure by the French judicial authorities to respect the principle of subsidiarity
It is this duty of mutual assistance and co-operation which was obviously ignored here:
the Meaux prosecutor took no account of the proceedings which had been brought, in respect
of the same acts, in the Congo  proceedings which, as stated above, had been drawn to his
attention by the Brazzaville prosecutor in a letter dated 9 September 2002.
He ignored the subsidiary nature of the universal jurisdiction of the State in which the
suspect is present and the primacy, under the principles of international law recalled above, of
the jurisdiction of the State in whose territory the alleged crime of torture was committed.
(c) The proceedings against the Minister of the Interior of a sovereign State
29. Maintenance of public order, an essential attribute of sovereignty: consequence in
respect of the Minister of the Interior
The above-noted principle that a State cannot exercise its authority on the territory of
another State has a further consequence in the present case.
In seeking the opening of an investigation against H.E. General Oba on the grounds of
the alleged crimes denounced, the prosecutor took it upon himself, as representative of the
French judicial authorities, to prosecute and try the Minister of the Interior of a foreign State
33
34
- 24 -
for alleged offences he had committed in the exercise of his duties relating to the maintenance
of public order in his country.
A foreign State claiming jurisdiction over such acts thereby interferes in the exercise by
the Minister in question of the sovereignty of his country in its most fundamental form.
In this regard, reference may be made, a contrario, to the case law of the Court of
Justice of the European Communities concerning violations ascribable to Member States for
failing to take appropriate police and judicial action to prevent obstacles to the free movement
of goods caused by physical, and sometimes violent, action by private individuals (Judgments
of 9 December 1997, Commission v. France, case C-265/95, Reports of Cases, p. I-6959, and
opinion of Advocate General C. O. Lenz, and of 12 June 2003, Schmidberger, case 112/00,
not yet published in the Reports of Cases, opinion of Advocate General F. G. Jacobs).
However, while the Court of Justice considers itself entitled to pass judgment on the way in
which Member States maintain public order, that is because of the specific obligation imposed
by the Treaty of Rome on those States to allow the free movement in their territory of goods
coming from or bound for other Member States and to refrain from imposing any quantitative
restriction or other measure having equivalent effect. And even so the Court held that:
“Member States . . . retain exclusive competence as regards the maintenance of public order
and safeguarding of internal security” and “[i]t is therefore not for the Community institutions
to act in place of the Member States and to prescribe for them the measures which they must
adopt and effectively apply in order to safeguard the free movement of goods”. The only
power which that Court recognizes for itself is the power to verify whether the Member State
concerned has adopted appropriate measures for complying with its obligations. Moreover,
limited as it is, the power to review the exercise of the authority to maintain public order
belongs here to a court independent of the Member States, not to another Member State.
In the case of two States not bound by obligations similar in nature to those laid down
in the Treaty of Rome, it is a fortiori unacceptable for one to seek to pass judgment 
moreover after criminal proceedings  on the manner in which the other State exercises the
essential attribute of sovereignty represented by the maintenance of public order.
It follows from this that a Minister of the Interior, in respect of acts falling within the
scope of his duties to maintain public order, should enjoy an immunity analogous to that
accorded, for other reasons, to Ministers for Foreign Affairs.
C. The second ground of the Application (violation of the immunity of a foreign Head of
State)
30. No dispute over the principle of immunity for foreign Heads of State
International law has been violated in that the prosecutors seised of the
above-mentioned complaint failed to find at the outset that it was inadmissible by virtue of the
principle of absolute immunity from criminal jurisdiction which protects foreign Heads of
State from criminal proceedings before French courts, and in that the Meaux investigating
judge failed to refuse to commence judicial proceedings against the President of the Republic
of the Congo.
Given that the French Republic, speaking through its Agent, has stated that French law
fully recognizes the principle of immunity for foreign Heads of State, this point is undisputed.
The Republic of the Congo therefore has nothing to add to its Application in respect of this
principle.
On the other hand, it disputes the position of the French Republic on the question
whether this principle has been respected by the French authorities in the present case.
35
36
- 25 -
31. Scope of immunity of foreign Heads of State in French criminal procedure;
prohibition on applications seeking the opening of an investigation against persons
unknown if a foreign Head of State is named in a complaint
It is axiomatic that this immunity precludes any act of prosecution directed at a foreign
Head of State by name, such as issuing a prosecutor’s originating application designating him
by name, or placing him under judicial examination.
However, in light of the particular characteristics of French criminal procedure, as
described above, it is clear that no other act may be carried out which would amount to a
manifestation of suspicion against a Head of State and to the conduct of an investigation with
a view to establishing guilt on his part.
Immunity prohibits, inter alia, the issue of an application for an investigation against
persons unknown when the Head of State has been named in a complaint included among the
documents annexed to the application.
The rationale for this prohibition lies in the status, as described above, of an individual
named in a complaint: the fact that he can demand to be heard by the investigating judge only
as a legally represented witness means that he is officially under suspicion.
The leading decision by the Criminal Chamber of the French Court of Cassation on the
immunity of foreign Heads of State (13 March 2001, Bulletin, No. 64, p. 218) implicitly, but
necessarily, imposes the prohibition in question.
In that case, an association and an individual had lodged a complaint as civil parties
against the Libyan Head of State for aiding and abetting the destruction of property caused by
an explosive substance involving the death of a third party, in connection with a terrorist
undertaking (case concerning the UTA DC-10). On the basis of the immunity enjoyed by
foreign Heads of State, the prosecutor had submitted that no investigation should be opened.
The investigating judge rejected those submissions and held that an investigation should be
commenced against the Libyan Head of State. Acting on the prosecutor’s appeal, the
Indictments Chamber upheld the investigating judge’s order on the ground that “whilst
immunity for foreign Heads of State has always been recognized by the international
community, including France, no immunity can cover the offences” alleged to have been
committed by the Libyan Head of State.
The Criminal Chamber of the Court of Cassation quashed that decision, stating that, “in
so ruling, notwithstanding that under international law the offence alleged, regardless of its
gravity, does not come within the exceptions to the principle of immunity from jurisdiction
for incumbent foreign Heads of State, the Indictments Chamber misconstrued the principle”
of that immunity.
It is particularly noteworthy that no act of prosecution or investigation naming the
Libyan Head of State had been carried out in that case before the prosecutor made his
submissions against the opening of an investigation. The Libyan Head of State had been
named only in the complaint lodged by civil parties. In response to such a complaint, the
prosecutor could simply have issued an application limited to the opening of an investigation
against persons unknown, and the investigating judge was under no obligation to place the
Head of State in question under judicial examination; he could have confined himself to
taking testimony from him as a legally represented witness.
This judgment must therefore be interpreted as meaning that, in itself, the existence of a
complaint (whether or not accompanied by a civil-party application) naming a foreign Head
37
- 26 -
of State bars the prosecutor from requesting the opening of an investigation, even against
persons unknown.
32. Prohibition on the taking of testimony as a witness from a foreign Head of State
named in a complaint
Even if it were accepted that a judicial investigation could be opened under such
circumstances, the investigating judge would be barred from taking testimony from the Head
of State as a legally represented witness.
In respect of the immunity of the President of the French Republic, the Court of
Cassation, sitting as a full court, held in a formal judgment of 10 October 2001 (B, No. 206,
p. 660) that the President could not be heard as a witness, even as a non-represented witness.
That judgment states:
“Whereas, read in conjunction with Article 3 and Title II of the
Constitution, Article 68 must be interpreted as meaning that, having been
directly elected by the people in order, inter alia, to ensure the proper
functioning of the public administration as well as the continuity of the State, the
President of the Republic cannot, during his term of office, be heard as a legally
represented witness, or be placed under judicial examination, summoned to
appear or committed for trial for any offence before any organ of ordinary
criminal jurisdiction; whereas neither can he be obliged to appear as a witness
pursuant to Article 101 of the Code of Criminal Procedure, since, under
Article 109 of the said Code, there attaches to that obligation a measure of
publicly enforceable constraint and it is sanctioned by a criminal penalty.”
[Translation by the Registry]
A fortiori, the President of the Republic cannot be heard as a legally represented
witness.
What holds good for the President of the French Republic must apply also by analogy
to foreign Heads of State.
An investigating judge cannot take advantage of the procedure laid down in Article 656
of the Code of Criminal Procedure to circumvent the prohibition on taking testimony as a
legally represented witness from a foreign Head of State named in a complaint.
That Article provides:
“The written deposition of a representative of a foreign power shall be
requested through the intermediary of the Minister for Foreign Affairs. If the
request is granted, such deposition shall be taken by the President of the Court of
Appeal or by such judge as he shall have delegated.
Subsequent proceedings shall be governed by Article 654, paragraph 2,
and Article 655.” [Translation by the Registry]
There is a first, compelling, reason militating against use of this procedure in respect of
a foreign Head of State: he is not a “representative” of a foreign power within the meaning of
Article 656; he is the supreme organ of that power. In its commentary on this article, the
General Instruction of 11 March 1959 for the Application of the Code of Criminal Procedure
uses the terms “diplomatic representative in France of a foreign power” and “foreign
diplomat” (Art. C.763). One particularly well-qualified author defines the representatives of a
38
- 27 -
foreign power as being “the members of a diplomatic mission whose functions consist in
representing the sending State in the receiving State” and “some members of a consular post”
(Juris-Classeur de Procédure pénale, Arts. 652 to 656, commentary by Mr. Pierre Gonnard).
There is a further, second reason: it would be a deliberate attempt to violate the right of
a person named in a complaint to demand that he be heard by the investigating judge only in
the capacity of legally represented witness.
33. Violation of the immunity of H.E. the President of the Republic of the Congo in the
criminal proceedings in question
There has been a violation of the immunity of the President of the Republic of the
Congo in this case, notwithstanding that H.E. Mr. Denis Sassou Nguesso was neither named
in the prosecutor’s applications referred to above, nor placed under judicial examination, nor
summoned as a legally represented witness.
As observed above, an application requesting the opening of an investigation was
issued on the basis of documents received in the form of a complaint naming him personally,
whereas the prosecutor should have opposed an investigation on grounds of the immunity
enjoyed by that foreign Head of State.
Moreover, the investigating judges manifested their intention to open an investigation
against H.E. the President of the Republic of the Congo by attempting, through unlawful
recourse to the procedure under Article 656 of the Code of Criminal Procedure, to obtain his
written testimony.
SUBMISSION
The Republic of the Congo requests the Court to declare that the French Republic shall,
by appropriate legal processes under its domestic law, cause to be cancelled the application
requesting the opening of an investigation submitted by the Procureur de la République of the
Meaux Tribunal de grande instance on 23 January 2002 and cause to be terminated the
criminal proceedings which he has initiated.
Done at Brussels, 4 December 2003.
(Signed) Jacques OBIA
Ambassador Extraordinary and Plenipotentiary
Agent of the Republic of the Congo.
___________
39
LIST OF ANNEXES TO THE MEMORIAL
I: Extracts from the French Code of Criminal Procedure
II: Judgment of the Criminal Chamber of the Court of Cassation, 11 July 1972 [Not translated]
III: Judgment of the Criminal Chamber of the Court of Cassation, 24 March 1977 [Not translated]
IV: Judgment of the Criminal Chamber of the Court of Cassation, 29 September 1992 [Not
translated]
V: Judgment of the Criminal Chamber of the Court of Cassation, 13 March 2001
VI: Copies of documents from the criminal case file at the Meaux Tribunal de grande instance.
NB. These are mostly unofficial scanned reproductions made by one of General Dabira’s
lawyers, who was unable to obtain all the official copies from the registry.
1. “Complaint” filed by Maître Henri Leclerc
2. “Complaint” filed by the International Federation for Human Rights
3. Notice of extension of jurisdiction
4. Police interview with Mr Tsieno during preliminary enquiry
5. Police interview with Mr Touanga during preliminary enquiry
6. Summary police report
7. Prosecutor’s originating application of 23 January 2002
8 and 9. Documents relating to the appointment of investigating judges [Not translated]
10. Civil-party application by Mr. Tsieno
11. Hearing of Mr. Tsieno as civil party
12. Police interview with General Dabira, in police custody, on a warrant
13. Witness statement of Mr. Touanga
14. Statement of General Dabira as legally represented witness
VII: Claim of jurisdiction by the Brazzaville prosecutor
VIII and IX: Letters from General Dabira to his then lawyer, Maître Jacques Vergès, dated 1 and
25 September 2002.
___________