Counter-Memorial of France

Note: This translation has been prepared by the Registry for internal purposes and has no official
character
INTERNATIONAL COURT OF JUSTICE
CASE CONCERNING CERTAIN CRIMINAL PROCEEDINGS IN FRANCE
(REPUBLIC OF THE CONGO v. FRANCE)
COUNTER-MEMORIAL OF FRANCE
11 MAY2004
[Translation by the Registry]
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CONTENTS
Page
INTRODUCTION ................................................................................................................................... 1
CHAPTER 1 STATEMENTOFTHEFACTS ............................................................................................. 3
Section 1 -The circumstances which led to the issue of the originating application ................. 3
§ 1. The comp1aint of 7 December 2001 ................................................................................... 3
§2. Transmission of complaint and preliminary enquiry .......................................................... 5
§3. The originating application ................................................................................................ 5
Section 2-Relevant developments in France since 23 January 2002 ........................................ 6
§ 1. Proceedings against General Dabira ................................................................................... 6
§2. The request to examine President Sassou Nguesso ............................................................ 8
§3. The course of events since the filing of the Memorial of the Republic of the Congo ........ 8
Section 3-Subsequent events within the Republic of the Congo .............................................. 9
§ 1. The course of the judicial investigation initiated in Brazzaville ........................................ 9
§2.Accession of the Republic of the Congo to the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment.. ...................................... 11
CHAPTER 2 THE PURPORTED VIOLATION OF THE PRINCIPLE THAT A STATE MAY NOT
EXERCISE ITS POWER ON THE TERRITORY OF ANOTHER STATE AND OF THE PRINCIPLE OF
SOVEREIGN EQUALITY ................................................................................................................. 12
Section 1- France is entitled under general international law to exercise its crirninal
jurisdiction in the proceedings having given ri se to the present dispute ................................ 13
§ 1. The consequences of the princip le of sovereign equality ................................................. 13
A. The rules of international law reflected by the Judgment of the Permanent
Court of International Justice in the Lotus case .......................................................... 13
B. The Applicant must demonstrate the existence of a prohibitive rule .......................... 15
§2. The existence of a rule recognizing the right of a State to establish its criminal
jurisdiction in respect of the offences in question ............................................................. 18
A. The specifie nature of the offences in question ........................................................... 18
(1) Offences which constitute delictajuris gentium ................................................... 18
(2) Offences whose international character justifies their prosecution
worldwide ............................................................................................................. 21
(a) The relationship between treaty law and customary international law .......... 22
(b) The laws and practice of States ...................................................................... 24
( c) The position of international bodies ............................................................... 26
B. The requirement that the offender must be present on the territory of the
prosecuting State ......................................................................................................... 28
Section 2-In any event, the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishrnent of 10 December 1984, to which the Congo is
party, requires France to establish the jurisdiction of its criminal courts in respect of
situations such as that having given rise to the present dispute ............................................. 29
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§1. The aim of the Convention's provisions is to increase the effectiveness worldwide
of the fight against torture and other cruel, inhuman or degrading treatment or
punishment ........................................................................................................................ 30
§2. The accession of the Republic of the Congo to the Convention ...................................... 31
A. The immediate effect of accession .............................................................................. 31
B. The effect of the Convention ratione temporis ........................................................... 33
Section 3 - The criminal proceedings initiated in France are in breach neither of a
purported principle of subsidiarity nor of the rule non bis in idem ........................................ 34
§ 1. "Universal jurisdiction" is not necessarily of a subsidiary nature .................................... 35
A. "Subsidiarity" and customary international law ......................................................... 35
B. "Subsidiarity" and the Convention against Torture .................................................... 37
§2. The rule non bis in idem has no relevance in the present case ........................................ 40
A. The non bis in idem rule in public intemationallaw .................................................. .40
B. The non bis in idem rule in French law ...................................................................... .42
CHAPTER 3 THE ALLEGED VIOLATION OF THE JURISDICTIONAL IMMUNITIES OF CERTAIN
CONGO LESE OFFICIALS ................................................................................................................ 45
Section 1 - The jurisdictional immunity which the Republic of the Congo is entitled to
claim does not have the sc ope which the Applicant ascribes to it... ....................................... 45
§1. The prosecutor's originating application does not violate any immunity which the
Congo would be entitled to claim ..................................................................................... 46
A. The scope ofthe originating application of 23 January 2002 .................................... .46
B. The scope of the immunities invoked by the Congo in regard to the originating
application of23 January 2002 ................................................................................... 48
§2. Only the Congolese Head of State is covered by jurisdictional immunity ....................... 52
A. The Congo cannot claim any immunity on behalf of Generais Adoua, Dabira
and Oba ....................................................................................................................... 53
B. The Congo is entitled to claimjurisdictional immunity on behalf of the Head of
State ............................................................................................................................. 55
Section 2- There has been no violation ofMr. Sassou Nguesso's immunity ............................ 56
§ 1. The originating application of the Meaux prosecutor does not violate the
jurisdictional immunity of the President of the Republic of the Congo ............................ 57
§2. Inviting the President of the Republic of the Congo to testify did not represent a
violation of his jurisdictional immunity ............................................................................ 59
A. The decision re garding the President of the French Republic .................................... 60
B. A Head of State is a representative of that State ......................................................... 61
SUBMISSIONS .................................................................................................................................... 63
ANNEXES .......................................................................................................................................... 64
1 INTRODUCTION
1. By letter of 9 December 2002 the Registrar of the International Court of Justice informed
the French Minister for Foreign Affairs that the Republic of the Congo had that day filed an
Application against the French Republic, alleging that the latter had, first,
"[ violated] the princip le that a State may not, in breach of the princip le of sovereign
equality among all Members of the United Nations, as laid down in Article 2,
paragraph 1, of the Charter of the United Nations, exercise its authority on the territory
of another State,
by unilaterally attributing to itself universal jurisdiction in criminal matters
and by arrogating to itselfthe power to prosecute and try the Minister of the Interior of
a foreign State for crimes allegedly committed in connection with the exercise of his
powers for the maintenance of public order in his country"
and, second, "[ violated] the criminal immunity of a foreign Head of State- an international
customary rule recognized by the jurisprudence of the Court".
2. By that Application the Congo requested the Court
"to declare that the French Republic shall cause to be annulled the measures of
investigation and prosecution taken 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 investigatingjudges ofthose courts".
The Congo further indicated that it proposed to found the Court's jurisdiction in the case on
such consent as France might give pursuant to Article 38, paragraph 5, of the Rules of Court.
2 3. By a letter dated 8 April2003 addressed to the Registrar of the Court, the French Minister
for Foreign Affairs stated that, pursuant to Article 38, paragraph 5, of the Rules, France accepted
the Court's jurisdiction to entertain the Congo's Application, while qualifying that acceptance as
follows:
"Article 2 of the Treaty of Cooperation of 1 January 1974 between the French
Republic and People's Republic of the Congo, to which the latter refers in its
Application, does not constitute a basis of jurisdiction for the Court in the present
case.
The present consent to the jurisdiction of the Court applies only for the purposes
of the case within the meaning of the above Article 38, paragraph 5, that is to say, for
the dispute which is the subject-matter of the Application and strictly within the limits
of the claims formulated by the Republic of the Congo."
4. By Order of 17 June 2003 the Court declined to accede to the request for the indication of
provisional measures submitted by the Congo concurrently with its Application, emphasizing inter
3
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a lia that in this case it perceived no "threat of irreparable prejudice which would justify, as a matter
ofurgency, the indication ofprovisional measures"1•
5. By Order of 11 July 2003 the Court fixed 11 December 2003 and 11 May 2004 as
respective time-limits for the filing of the Memorial of the Republic of the Congo and the
Counter-Memorial of the French Republic.
6. In the submission which concluded the Memorial filed by it on 4 December 2003, the
Republic of the Congo
"request[ ed] the Court to declare that the French Republic shall, by appropria te legal
means according to its own domestic law, ... nullify the originating application filed
by the Procureur de la République of the Meaux Tribunal de grande instance on
23 January 2002 and take steps to secure the termination of the criminal proceedings
instituted by him".
7. After briefly setting out the relevant facts of the case (Chap. 1), the French Republic will
in this Counter-Memorial address successively the alleged breaches of the principle that a State
may not exercise its authority on the territory of another State and of the principle of sovereign
equality (Chap. 2) and then the alleged violation of the immunities from jurisdiction of certain
Congolese high officiais (Chap. 3).
1Certain Criminal Proceedings in France (Republic of the Congo v. France), Request for the Indication of a
Provisional Measure, Order of 17 June 2003, para. 36.
4
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CHAPTER1
STATEMENT OF THE FACTS
1.1. Article 49 of the Rules of Court provides:
"1. A Memorial shall contain a statement of the relevant facts ...
2. A Counter-Memorial shall con tain: an admission or deniai of the facts stated
in the Memorial; any additional facts, ifnecessary ... "
1.2. In certain respects, the statement of facts with which the Memorial of the Republic of
the Congo opens appears to be incomplete and often biased, and indeed on occasion mistaken. It is
therefore necessary to explain the circumstances surrounding the issue, on 23 January 2002, of the
prosecutor's originating application (réquisitoire introductif d'instance), which, according to the
Republic of the Congo, is "the key document in the present proceedings before the Court"2
(Section 1 ). It is also necessary to determine the precise nature and scope of the procedural acts
effected in France since that date (Section 2). Finally, it is necessary, in so far as this is possible, to
set out the course of events in the Republic of the Congo, which the latter has to sorne extent failed
to describe adequately or completely in its Memorial (Section 3).
Section 1 -The circumstances which led to the issue of the originating application
1.3. For the sake of clarity, we shall deal in turn with the complaint filed on
7 December 2001 (§1), its transmission and the ensuing preliminary enquiry (§2), and then the
originating application of23 January 2002 (§3).
§1. The complaint of7 December 2001
1.4. On 7 December 2001 three non-govemmental organizations, the International
Federation for Human Rights, the Congolese Human Rights Observatory and the Human Rights
League, filed with the Procureur de la République of the Paris Tribunal de grande instance a
complaint for "crimes against humanity, disappearances and torture" against
Mr. Denis Sassou Nguesso, President of the Republic of the Congo, General Pierre Oba, Minister
of the Interior, General Norbert Dabira, Inspector-General of the Armed Forces, and
General Blaise Adoua, Commander of the Presidential Guard3• That complaint contained a
statement regarding the relevant facts and their attributability. To found the jurisdiction of the
French courts, the complainants relied inter alia on Article 689-1 of the Code of Criminal
Procedure, which provides:
"Pursuant 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. The provisions of the present article are applicable to
attempts to commit such offences, in cases where such attempts are punishable."
[Translation by the Registry.]
2Memorial, p. 12.
3 Annexes VI-l and VI-2 to the Memorial of the Republic of the Congo.
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The complainants also relied on Article 689-2 ofthat Code, which provides:
"For purposes of the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, adopted in New York on 10 December 1984,
any persan who has committed torture within the meaning of Article 1 of that
Convention may be prosecuted and tried in accordance with the provisions of
Article 689-1." [Translation by the Registry]
The French Republic deposited its instrument of ratification of the New York Convention on
18 February 1986. The Republic of the Congo acceded to that Convention on 30 July 20034•
1.5. In its Memorial the Republic of the Congo contends that the document filed by the three
non-govemmental organizations is a "denunciation" and not a complaint in the sense that that term
is used for purposes of French criminal procedure. However, the Applicant fails to explain what, if
any, interest in the proceedings initiated by it could attach to that distinction, whose importance it
failed to make apparent either in its Application or at the hearings on the request for the indication
of a provisional measuré.
6 1.6. In French law there is indeed a distinction between complaints and denunciations, which
has been explained as follows:
"[a denunciation] is an act whereby a third party, who has not himselfbeen a victim of
the offence, brings the attention of the police or judicial authorities to that offence; it
thus stands in contrast with a 'complaint', which is a denunciation emana ting from the
victim himself'6. [Translation by the Registry]
This distinction does not however involve any consequences in regard to the possible results of
these acts. Thus, under Article 40 of the Code of Criminal Procedure, in the version current at the
date in question:
"The Procureur de la République receives complaints and denunciations and
determines what action should be taken on them. He informs the complainant if the
case is discontinued, as well as the victim where the latter has been identified."
[Translation by the Registry]
Thus, in the case both of a complaint and of a denunciation, the Procureur de la République retains
a discretion to determine whether it is appropriate to proceed. By contrast, where the complainant
decides to file a "civil party" application, action by the public authorities must necessarily be
initiated7. That is clearly not the situation in the present proceedings, since the three
non-govemmental organizations did not seek to join a civil suit to what they themselves described
as their "complaint"8• Renee France cannat see any reason why, at this stage of the proceedings,
4Annex 1, see below para. 1.32. As to the effects of that accession for purposes of the present proceedings, see
below Chapter 2, paras. 2.64 to 2.74.
5The Application and the Congo's oral pleadings refer to "a complaint for crimes against humanity and torture"
(see in particular the Application, "III- Statement of facts" and the oral statement of Maître Vergès (CR 2003/20,
28 April2003, p. 12) and Mr. Decocq (CR 2003/22, 29 April2003, p. 11).
6G. Stefani, G. Levasseur, B. Bouloc, Procédure pénale, Dalloz, Paris, 18th ed., 2001, p. 360.
7Subject as provided in Article 86, penultirnate paragraph. Asto civil party proceedings, see Articles 85 et seq. of
the Code ofCriminal Procedure.
8However, nine individuals have joined the proceedings as civil complainants since the initiation of the judicial
investigation.
7
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the terminology initially adopted by the Congo should be discarded- a terminology moreover
espoused by the Court in the Order made by it in the present proceedings on 17 June 20039•
§2. Transmission of complaint and preliminary enquiry
1.7. In its Memorial, the Applicant expresses surprise at the "speed", not to say
"precipitation", with which the public prosecutor's office is claimed to have reacted, in a "quite
unusual way", to the filing of the complaint by the three non-govemmental organizations10• Such a
criticism, even implicit, of the diligence shown by the competent authorities might appear curious;
it is in any event unfounded. Far from demonstrating any kind of malicious or threatening
intention, the series of acts carried out immediately after the filing of the complaint followed the
customary course of French criminal procedure.
1.8. That is in particular the case in regard to transmission of the complaint to the prosecutor
at the Meaux Tribunal de grande instance by the transmittal order (soit transmis) of
7 December 2001. According to the information available to him, including in the complaint itself,
the Paris prosecutor noted that only one of the individuals named by the complainants was likely to
be present on French territory. General Dabira has a home at Villeparisis (Seine-et-Marne), a
municipality falling within the territorialjurisdiction ofthe Meaux Tribunal. Under Article 693 of
the Code of Criminal Procedure, the Court having jurisdiction to deal with the matter is that of the
place where the accused resides, that of his last known residence or that of the place where he is
found. Under that provision, the Paris prosecutor was thus bound, as he did, to transmit the
complaint without delay to his counterpart in Meaux.
1.9. The notice of extension of jurisdiction (réquisitions aux fins d'extension de competence)
issued by the Meaux prosecutor on 8 December 2001 and the preliminary enquiry initiated by him
do not require detailed comment, since they, too, are a normal element of criminal procedure.
Under the fourth paragraph of Article 18 of the Code of Criminal Procedure, the former is
necessary where the prosecutor deems it necessary to interview individuals who are not present
within his area of jurisdiction. Such was the case of the two witnesses expressly identified in the
notice of extension of jurisdiction. The preliminary enquiry initiated by police officers on the
prosecutor's instruction is essential where the latter, as in the present case, is seised of a complaint
with no civil party proceedings which involves serious charges. It provides the prosecutor with
evidence on the basis of which he may make a determination as to the action to be taken on the
complaint. In the present case it was in particular on the basis of the result of that enquiry that the
Meaux prosecutor decided to place the matter before the investigating judge by his originating
application of23 January 2002.
8 §3. The originating application
1.10. In its statement of facts, the Republic of the Congo devotes little space to the
originating application issued on 23 January 2002, which, in its own words, represents "the key
document in the present proceedings before the Court "11 • It is clear that that document, in terms
both of its purpose and of its content, conforms in all respects with the relevant requirements of the
Code of Criminal Procedure.
90rder on the request for a provisional measure, paras. 10, 11 and 13.
10Memorial of the Republic of the Congo, p. 10.
11Jbid., p. 12; original emphasis.
9
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1.11. Thus it should be recalled that, under Article 79 of the Code, "a judicial investigation is
compulsory in the case of serious offences". Renee, once he has determined that the evidence
before him justifies further proceedings, the prosecutor must initiate a judicial investigation by
informing the investigating judge of the matters alleged to constitute serious offences. Such was
the purpose of the originating application issued by a Meaux senior assistant prosecutor (substitut
du procureur) on 23 January 2002.
1.12. Under Article 80 of the Code of Criminal Procedure, the originating application must
state the alleged offences of which the investigating judge is seised. In the present proceedings, the
application of 23 January 2002 refers to the following:
"Crimes against humanity: on a massive and systematic scale
abduction of individuals, followed by their disappearance
torture or inhumane acts, on ideological grounds and in implementation of a
concerted plan against a group of the civilian population."
Article 80 further provides that "the application may be issued against a named or unnamed
person". The decision in the present case to initiate the judicial investigation "against X" will be
analysed in depth in this Counter-Memorial12• For purposes of the present section, it suffices to
recall that, in so acting, the Meaux prosecutor indicated that it was not possible for him, in light of
the information available to him, to identify and list the individuals responsible for the offences in
question. In such circumstances it is for the investigating judge, if he is able, to identify the
perpetra tors of the offences of which he has been seised.
Section 2 -Relevant developments in France since 23 January 2002
1.13. At the hearing on the request by the Republic of the Congo for the indication of a
provisional measure, the French Republic was able to inform the Court of the main developments
in the judicial investigation opened by the originating application of 23 January 2002, as weil as of
the relevant rules of domestic law13 . France accordingly does not consider it necessary to go over
this ground again, except in order to clarify what the Congo has stated regarding acts taken in
relation to General Dabira ( § 1) and re garding the request to question President Sas sou N guesso
(§2). lt is also necessary to provide the Court, as is permitted by Article 49 of its Rules, with a
statement of "additional facts" having occurred sin ce the Republic of the Congo filed its Memorial,
in so far as these may be relevant to the present proceedings (§3).
§1. Proceedings against General Dabira
1.14. As the Applicant's statement of facts demonstrates by its silence, no procedural
measure had been taken against Generais Oba and Adoua at the date of filing of the Memorial of
the Republic of the Congo (nor, moreover, has any been taken since). The sole target of the
judicial investigation conducted by the Meaux investigatingjudges has been General Dabira14 .
12See below Chapter 3, paras. 3.6 to 3.15.
13See in particular Mr. Abraham's oral statement of28 April2003 (CR 2003/21, paras. 24-31 and 41-46).
141n accordance with Article 83 of the Code of Criminal Procedure, "where the seriousness or the complexity of
the case cali for it'', the President of the Meaux Tribunal de grande instance decided on 4 February 2002 to second an
additional investigating judge to the judge initial! y charged with conducting the investigation.
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1.15. Under a warrant (commission rogatoire) issued by the investigating judges on
16 May 2002, police officers instructed by those judges took General Dabira into custody (garde à
vue) and examined him as a witness on 23 May 2002. Following that examination, he was
summoned to appear as a "legally represented witness" (témoin assisté), that is to say as a persan
"against whom there is evidence raising a likelihood that he may have participated, as perpetrator
10 or accompli ce, in the commission of offences of which the investigating judge is seised"15 • At the
close of this second hearing, on 8 July 2002, the investigating judges informed General Dabira that
he would be summoned on 11 September 2002 in arder to be placed under judicial examination
(mis en examen). Under the first subparagraph of Article 80-1 ofthe Code ofCriminal Procedure,
11
"On pain of nullity, the investigating judge may place under judicial
examination only those persans 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 ofwhich he is seised." [Translation by the Registry]
Placing under judicial examination may thus be defined as the act whereby the judge notifies a
persan that he is officially the subject of proceedings; that persan then enjoys defence rights and is
entitled, inter alia, to be assisted by a lawyer and to have access to the case file.
1.16. On 9 September 2002 General Dabira informed the Chargé d'affaires of the French
Embassy in the Congo that he had received "formai instructions from [his] Govemment" which
prevented him from appearing before the Meaux investigating judges. In support of his refusai to
obey the summons, General Dabira argued first that he did not have to ''justify [his] actions in the
exercise of [his] duties before a court other than that of [his] country, unless an intemationalletter
ofrequest has been issued"; he also invoked the principle of non bis in idem16•
1.17. Noting this situation, on 16 September 2002 the investi ga ting judge issued a warrant
for immediate presentation (mandat d'amener) against General Dabira. In execution of that
warrant, which is defined in Article 122 of the Code of Criminal Procedure as "an arder given by
the judge to the law-enforcement authorities forthwith to bring before him the persan against whom
it has been issued", senior police officers from the Paris Criminal Investigation Unit (Section de
Recherches) presented themselves on 25 September at the home of General Dabira in Villeparisis,
where the latter's wife informed them that her husband was in Brazzaville. On the instructions of
the Meaux judge, the officers charged with executing the warrant then entered General Dabira on
the register of wanted persans. It should moreover be noted that the "unsuccessful search record"
(procès-verbal de perquisition et de recherches infructueuses), drawn up at the time and co-signed
by Mrs. Dabira, makes no mention of any kind of disturbance, contrary to what the Republic of the
Congo appears to allege in its statement of the facts 17•
1.18. On 15 January 2004 the investigating judge issued an arrest warrant (mandat d'arrêt)
against General Dabira, charging him with offences of torture and crimes against humanity. Unlike
a mandat d'amener, an arrest warrant, which instructs the law enforcement authorities to "find the
persan against whom it is issued and bring him to [a] place of detention"18 , may be circulated
intemationally. That is what occurred in the case of the warrant issued against General Dabira,
which was circulated through Interpol and through the Schengen system (SIS) on 26 March 2004.
15 Article 113-2 of the Code of Crimina1 Procedure. A represented witness is entitled to be assisted by a 1awyer;
he does not take an oath and cannot be arrested or p1aced under court supervision (contrôle judiciaire).
16Annex II. On the nature and scope of the princip1e non bis in idem, see be1ow Chapter 2, paras. 2.94 to 2.105.
17Memoria1, p. 16.
18Article 122, fifth paragraph, of the Code ofCrimina1 Procedure.
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§2. The request to examine President Sassou Nguesso
1.19. As the French Republic has already had occasion to point out19, no procedural act has
been carried out against President Sassou Nguesso. It is true that twice, on 18 December 2002 and
19 February 2003, the Meaux investigating judges expressed the wish to receive his testimony.
However, by derogation from the general law, such a request must meet specifie conditions, which
apply to all holders of public office representing their State at international level and, hence, to
foreign heads of States.
1.20. Thus Article 656 of the Code ofCriminal Procedure provides:
"The written deposition of a representative of a foreign power shall be requested
[by the investigating judge] through the intermediary of the Minister for Foreign
Affairs. If the request is granted [i.e., accepted by the addressee], the deposition shall
be taken by the President of the Court of Appeal or by such judge as he shall have
delegated." [Translation by the Registry]
In other words, a foreign Head of State is in no way obliged to accede to a request to give evidence
communicated to him through diplomatie channels. Renee his refusal to testify cannat be subject
to penal sanction, by contrast to what is provided in the Criminal Code in relation to the position
under the generallaw20.
12 1.21. In the present case, as will be shawn subsequent1l1, the investigating judges were
quite correct in basing their request to examine President Sassou Nguesso on Article 656 of the
Code of Criminal Procedure. It should moreover be recalled that that request was not transmitted
toits addressee.
§3. The course of events sin ce the filing of the Memorial of the Republic of the Congo
1.22. In addition to the issue and international circulation of an arrest warrant against
General Dabira22, the French Republic deems it necessary to inform the Court, in the chronological
arder of their occurrence, of certain events having taken place since the filing of the Memorial of
the Republic of the Congo.
1.23. Acting on a warrant (commission rogatoire) from the investigating judges, on
4 February 2004 the Paris Criminal Investigation Unit requested the Ministry of Foreign Affairs to
inform it whether certain individuals, including General Oba, "were currently present in France on
an official mission for the Republic of the Congo and enjoying diplomatie accreditation on that
account". In response to a request from the Ministry, the Embassy of the Republic of the Congo in
France stated that, unlike the other individuals named in the police request, General Oba was
"temporarily in Paris on State business"23 . On the basis ofthat information the Ministry of Foreign
19See for example, Mr. Abraham's oral presentation of28 April2003 (CR 2003/21, para. 45).
20See Article 434-15-1 ofthe Criminal Code.
21See be1ow Chapter 3, paras. 3.60-3.63.
22See above, para. 1.18.
23Ann. III.
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Affairs informed the Criminal Investigation Unit that General Oba was in France on an official
mission and accordingly enjoyed immunity under customary intemationallaw24•
1.24. On 26 March 2004 the investigating judge addressed an international letter of request
to the Swiss authorities with a view to securing certain documents and examining a number of
representatives of the United Nations High Commission for Refugees, whose seat is at Geneva.
13 1.25. On 8 April2004, the President of the Examining Chamber (chambre de l'instruction)
14
of the Court of Appeal, having been seised by the Meaux prosecutor of an application for the
cancellation of certain acts carried out in the course of the investigation, ordered that the judicial
investigation opened on 23 January 2002 be suspended until that application had been examined.
That decision, which does not termina te the investigation and does not amount to a disseisin of the
judges charged with conducting it, will enable the scope oftheir seisin to be more closely defined.
Section 3 -Subsequent events within the Republic of the Congo
1.26. In its Memorial the Republic of the Congo provides only a partial account of the
judicial investigation opened in Brazzaville, on which it nonetheless seeks to found its request for
cessation of the criminal proceedings in France (§ 1). Equally inexplicably, it fails to mention its
accession on 30 July 2003 (§2) to the Convention of 10 December 1984 against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment.
§1. The course of the judicial investigation initiated in Brazzaville
1.27. In its statement of facts the Republic of the Congo reproduces the substance of a letter
dated 9 September 2002, whereby the Procureur de la République of the Brazzaville Tribunal de
grande instance advises his counterpart in Meaux that it would be expedient to terminate the
proceedings initiated in France because of a "serious problem of conflict of jurisdiction between
two courts of two sovereign States"25 . In support of his argument, the prosecutor states that the
Congolese Minister of Justice has asked his office "to apply for the opening of a judicial
investigation against persons unknown on account of abductions and disappearances". The
prosecutor continues:
"By an originating application of 29 August 2000, the Procureur de la
République requested the opening of a judicial investigation on the above grounds.
The senior investigating judge of the Brazzaville Tribunal de grande instance has
accordingly been seised of the facts and has already carried out a number of acts of
investigation. "26
1.28. The manner in which this document is presented in the Congo's Memorial calls for a
number of comments. First, the "detailed letter"27 cited by the Applicant gives no detail whatever
of the nature and result of the "acts of investigation" carried out by the Brazzaville judge. Y et,
according to that same document, the letter was sent to the Meaux prosecutor over two years after
the date of initiation of a judicial investigation in the Congo. Secondly, there are no grounds for
24Ann. III.
25Memorial, p. 15; the letter is reproduced as a "daim to jurisdiction" in Annex 7 to the Congo's Memorial.
26Ibid.
21Ibid., p. 15.
15
- 10-
asserting, from a reading of that letter alone, that the Meaux investigating judge has in fact been
seised of the "same facts"28 as his Brazzaville counterpart. Thus the letter of 9 September 2002
refers solely to "abductions and disappearances" and makes no mention of the acts of torture on the
basis of which the judicial investigation was opened in Meaux on 23 January 200229• Finallyparticularly
paradoxically in light of this remarkable lack of precision - the Republic of the Congo
makes no mention whatever of a number of relevant documents sent by it to the Court on
21 May 2003 30•
1.29. However, from a reading of those documents it is possible to appreciate- albeit not
make good- the deficiencies in the Congo's argument. Thus, even if one includes in the "acts of
investigation" the originating applications issued by the Brazzaville prosecutor, it is apparent that,
as at 21 May 2003, the Republic of the Congo was able to provide the Court with just three items
relating to the judicial investigation conducted on its territory. The first is the "application for a
judicial investigation" of 29 August 2000, cited by the Brazzaville prosecutor in his letter to his
Meaux counterpart. The second is a document entitled "supplemental application" dated
11 November 2002 and signed by the same prosecutor. The third is a letter ofrequest addressed on
2 October 2002 by the senior Brazzaville investigatingjudge to the investigatingjudge ofKinshasa
(Democratie Republic of the Congo). Given that the se two latter documents post-date the "claim to
jurisdiction" addressed to the Meaux prosecutor, the "acts of investigation" allegedly carried out in
the Congo between the initiation of the judicial investigation on 29 August 2000 and
9 September 2002 remain a mystery, both to the French Republic and to the Court.
1.30. Moreover, the assertion that the investigating judges of Brazzaville and Meaux had
been seised "of the same facts" is not corroborated by a careful examination of the documents
provided to the Court by the Republic of the Congo. It is true that the letter of request issued on
2 October 2002 by the senior Brazzaville investigating judge begins with a citation in the following
terms: "Having regard to the investigation initiated against X ... , on account of acts of murder,
torture, crimes against humanity, rape". However, that citation does not appear faithfully to reflect
the scope of the investigating judge's seisin, pursuant to the originating application of
29 August 2000. Notwithstanding the poor legibility of the copy of this latter document provided
by the Republic of the Congo, it is clearly apparent that the word "torture" is used only in
connection with a statement of facts not falling within the terms of Law 21-99 of
20 December 1999 Providing Amnesty for Acts of War in Connection with the Civil Wars of
1993-1994, 1997 and 1998-1999. However, there is no mention of torture among the offences in
respect of which the judicial investigation is initiated, the application itself being drafted in the
following terms: "May it please the senior investigating judge to open an investigation by alllegal
means against X, against whom there are serious suspicions of rape and murder". Nor is torture
mentioned in the document entitled "supplemental application", signed on 11 November 2002 by
the Brazzaville prosecutor. Thus that document confines itselfto requesting the investigatingjudge
to extend the scope of his investigation to "serious suspicions of violations of professional secrecy
and failure to provide assistance to persons in danger".
1.31. Thus, to date, the French Republic is aware of no solid evidence capable of
substantiating the proposition that the investigating judges in Brazzaville and Meaux have been
28/bid.
29See above, para. 1.12.
30Those documents are reproduced in Annex IV of this Counter-Memorial.
16
- 11-
seised of the same facts, irrespective of such legal conclusions as might drawn from that assertion
if it were proven31 .
§2.Accession of the Republic of the Congo to the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment
1.32. In its Memorial, the Republic of the Congo inexplicably fails to mention that on
30 July 2003 it acceded to the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, adopted in New York on 10 December 1984. That accession, which
took effect on 29 August 2003, is however undoubtedly of crucial importance for purposes of the
present proceedings32•
*
* *
1.33. Before addressing the points of law raised by the arguments presented by the Republic
of the Congo in its Application and Memorial, the French Republic wishes to deny in the strongest
terms the assertions by the Applicant at the conclusion of its statement of facts. In their bilateral
relations with their Congolese counterparts, which have been characterized by friendship and
cooperation, the French political authorities have never suggested in any manner whatever that they
are "convinced of the correctness of the Congolese position". That assertion, which is unsupported
by any factual evidence, is completely untrue.
31 See below, Chap. 2, paras. 2.75 ff.
32/bid., paras. 2.64-2.74.
17
- 12 -
CHAPTER2
THE PURPORTED VIOLATION OF THE PRINCIPLE THAT A ST ATE MA Y NOT EXERCISE ITS POWER
ON THE TERRITORY OF ANOTHER STATE AND OF THE PRINCIPLE
OF SOVEREIGN EQUALITY
2.1. The first ground invoked by the Republic of the Congo in its Memorial concerns
France's exercise of its criminal jurisdiction in the proceedings in question. This first ground has
two limbs, one concerning the jurisdiction of French courts in regard to crimes against humanity,
the other their jurisdiction in regard to torture. The argument under the first limb concerns both
French law and general international law. That in the second appears to relate primarily to treaty
law. The manner in which the Applicant has thus presented its legal arguments caUs for two
preliminary observations.
2.2. The first concerns the argument relating to crimes against humanity. The Memorial
seeks to show that under French law there is no head of universal jurisdiction for crimes against
humanity. France does not dispute that the jurisdiction of the French courts in this case is founded
on Article 689-2 of the Code of Criminal Procedure, and bence relates to acts of torture or other
cruel, inhuman or degrading treatment or punishment- according to the mann er in which such
acts are characterized under French law.
2.3. The second observation concerns the section of the Memorial devoted to torture. In this
part the Republic of the Congo relies essentially on the Convention of 10 December 1984 against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Although the Memorial
remains silent on the point, this is doubtless a consequence of the fact that the Republic of the
Congo is now a party to that Convention. Otherwise, it would be difficult to understand how the
Applicant could seek to rely on the provisions of that Convention. The French Government
accordingly concludes that the Applicant considers the Convention of 10 December 1984 to be
applicable in legal relations between itself and France. That is also the view of the French
Government.
18 2.4. Out of a concern to provide a complete reply to the legal arguments raised or capable of
being raised regarding the exercise by France of its criminal jurisdiction in the proceedings in
question, three points will be successively addressed. First, it will be shown that the conduct of the
French authorities complies fully with the rules of general international law regarding State
jurisdiction (Section 1 ). Those rules in no way preclude it from exercising its jurisdiction against a
foreign national in respect of the offences concerned, including where the acts have taken place
abroad, provided that the offender is present on its territory. Moreover, the French State is in any
event under an obligation to establish its jurisdiction in respect of such offences pursuant to the
Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment of
10 December 1984, whose provisions are applicable to the present dispute (Section 2). Finally,
since one of the points raised by the Memorial of the Republic of the Congo concerns the
relationship between the criminal jurisdiction of two or more States in respect of the same acts, it is
necessary to consider what- if any- are the applicable rules of international law in this regard,
both customary and conventional (Section 3).
- 13-
Section 1 -France is entitled un der general international law to exercise its criminal
jurisdiction in the proceedings having given rise to the present dispute
2.5. Under general international law, France is entitled to exercise its jurisdiction in respect
of offences such as those alleged against General Dabira, a Congolese national, even where they
were committed abroad and against foreigners, provided that the offender is present on its territory.
This follows in the first place from a presumption in favour of a State's freedom of action, which
means that it is for the Applicant to demonstrate the existence of a contrary rule prohibiting such
exercise. These are the true consequences of the princip le of sovereign equality (§ 1 ). The French
Govemment can further show that, at least in international law, there exists a specifie rule allowing
aState to establish suchjurisdiction in respect of the offences in question (§2).
19 § 1. The consequences of the princip le of sovereign equality
2.6. Contrary to what the applicant State contends, the principle of sovereign equality is in
no way opposed to the exercise by France of its jurisdiction in the proceedings the subject-matter of
the dispute. The Judgment of the Permanent Court of International Justice in the Lotus case, on
which the Applicant relies33, demonstrates on the contrary that States enjoy a broad measure of
freedom in this regard, provided that no coercive action is taken outside State territory. It is
accordingly for the Applicant to demonstrate the existence of a prohibitive rule of international law
restricting that freedom, the corollary of sovereignty.
A. The rules of international law rejlected by the Judgment of the Permanent Court of
International Justice in the Lotus case
2. 7. The Memorial of the Republic of the Congo wrongly treats the rules of international law
applied in the Lotus Judgment as simply an application of the territoriality principle, exclusive of
any other basis of jurisdiction. The Lotus Judgment itself denies this in the following passage:
"Though it is true that in all systems of law the principle of the territorial
character of criminal law is fundamental, it is equally true that all or nearly all these
systems of law extend their action to offences committed outside the territory of the
State which adopts them, and they do so in ways which vary from State to State. The
territoriality of criminallaw, therefore, is not an absolute princip le of international law
and by no means coincides with territorial sovereignty."34
2.8. The confusion derives from the fact that the Memorial fails to distinguish between a
State's executive jurisdiction and its normative jurisdiction, which covers both legislative and
judicial jurisdiction. That distinction is however fundamental, inasmuch as it entails differing
effects in relation to the operation of the principle of sovereign equality, as the Permanent Court
made perfectly clear in its Judgment of7 September 1927.
20 2.9 As regards executive jurisdiction, the territoriality principle does indeed operate in an
exclusive manner, that is to say it prohibits the State from any "exercise of its power", namely any
coercive act, on the territory of another State35 . This was also the approach adopted by arbitrator
33Memorial, p. 27.
34P.C.I.J., Lotus case, Series A, No. 9, p. 20.
35P.C.I.J., Lotus case, Series A, No. 9, p. 18.
- 14-
Max Huber when, in his award of 4 April 1928 in the Island of Palmas case, he enunciated the
principle that "the State has exclusive competence in regard toits own territory"36•
2.10. However, in the proceedings in respect ofwhich the Republic of the Congo has seised
the International Court of Justice, France has at no time violated this principle of territoriality.
Thus it should be emphasized that no exercise of the executive jurisdiction of the French State has
taken place on the territory of another State. The only coercive act effectively carried out has been
the taking into custody of General Dabira on 23 May 2002 at the Claye-Souilly Gendarmerie after
he had been visited by police at Villeparisis, that is to say on French soil. lt is moreover the
general practice, where proceedings require the taking of certain actions on foreign territory, for the
French judicial authorities to have recourse to the classic instruments of judicial co-operation
between States, founded on the consent of the requested State and on strict respect for its
sovereignty. Such instruments include an internationalletter of request (commission rogatoire) and
a request for extradition. The same applies to an arrest warrant (mandat d'arrêt), which, ifit is to
be executed abroad, must then comply with the procedure for mutual judicial assistance. By
contrast, a warrant for immediate presentation (mandat d'amener) is enforceable only on the
terri tory of the French Republic.
2.11. As regards normative jurisdiction, the princip le of sovereign equality- a reflection of
sovereign coexistence- produces completely different effects. In the words of the Permanent
Court of International Justice:
"Far from laying down a general prohibition to the effect that States may not
extend the application of their laws and the jurisdiction of their courts to persons,
property and acts outside their territory, it leaves them in this respect a wide measure
of discretion which is only limited in certain cases by prohibitive rules; as regards
other cases, every State remains free to adopt the principles which it regards as best
and most suitable."37
21 This wide measure of discretion on the part of the State, a corollary of its sovereignty, exp lains the
great variety of domestic legal régimes. Only the existence of a rule of international law
restricting the legislative and judicial jurisdictions of States could rebut the presumption in favour
of State freedom. While aware of the "difficulties resulting from such variety" in practice, the
Permanent Court was nonetheless able to give a ruling on an issue of principle in a manner fully
compatible with the sovereignty principle38•
2.12. The remainder of the Judgment deals more specifically with criminal proceedings.
Whatever the latter's individual characteristics, the principle just stated is equally applicable in this
field. Any challenge to the compatibility with international law of a criminal statute having
extraterritorial scope must always be on the basis, whether conventional or customary, of a
restrictive rather than a permissive rule39. As the Judgment quite clearly points out, "within these
limits, [the State's] title to exercise jurisdiction rests in its sovereignty"40.
36Reports of International Arbitral Awards, Vol. II, p. 838.
31P.C.I.J, Series A, No. 9, p. 19.
38/bid., p. 19.
39/bid., in particular, pp. 20-21.
40/bid., p. 19.
22
- 15 -
2.13. Doubtless, by comparison with the era when the Lotus Judgment was rendered,
internationa1law toda y contains a far greater number of rules specifie to criminal matters. Y et it is
still necessary to ascertain how these rules operate whenever there is more than one State entitled to
exercise its jurisdiction. The issue must be approached in a specifie way, in accordance with the
method suggested by the Permanent Court itself: "[t]his must be ascertained by examining
precedents offering a close analogy to the case under consideration; for it is only from precedents
of this nature that the existence of a general principle applicable to the particular case may
appear"41 . This is also the method recommended in the literature dealing with the issue of State
jurisdiction42• In the absence of a specifie rule, the governing principle in relation to normative
jurisdiction is necessarily that of State freedom, since, as the Permanent Court pointed out,
"restrictions upon the independence of States cannot ... be presumed"43 •
2.14. The princip les of international law as interpreted by jurisprudence are thus particularly
clear. If the existence of a specifie rule concerning a given situation cannot be effectively
demonstrated, then there is a presumption that a State is complying with international law when, in
exercising its legislative and judicial jurisdiction, it limits the coercive effects of such exercise to its
own territory.
B. The Applicant must demonstrate the existence of a prohibitive rule
2.15. Since the Republic of the Congo is the Applicant in the present case, it is for it to show
that there has been a violation of international law attributable to France. To hold otherwise would
be to violate the principle actori incumbit probatio, whereby the party seeking to put forward a
proposition must prove it44• That rule applies not only to issues offact, but also to those of law. It
applies with particular force in the present dispute, inasmuch as what has to be demonstrated is the
existence of a prohibitive rule, rebutting the presumption that jurisdictional title lies in sovereignty.
2.16. One is bound, however, to note that the Memorial makes seant effort to demonstrate
the existence of a rule prohibiting France from exercising its criminal jurisdiction in respect of the
offences alleged against General Dabira. The Applicant's few arguments are either couched in
extremely general terms and not tied to the particular facts of the case, or el se marred by errors of
comprehension or interpretation in regard to the texts cited.
2.17. First, a mere reference to the princip le of sovereign equality cannot be regarded as a
form of proof. Qui te apart from its brevity, it adds nothing of substance in terms of legal argument
in relation to the law applied at the time of the Lotus case. While sovereign equality is indeed cited
in Article 2 of the United Nations Charter, in reality it is one of the oldest basic principles of
23 international law, having existed long before the Lotus Judgment and being to sorne extent one of
the fundamental premises of international law itself. The Permanent Court's solution simply
41Ibid., p. 21.
4Zrhe conclusion is that the principle of universality is applicable to international crimes. See, in particular,
F. A. Mann, "The Doctrine of Jurisdiction in International Law", Recueil des cours de l'Académie de droit international,
1964-I, Vol. 111, p. 82; C. Blakesley, "Extraterritorial Jurisdiction", in M. CherifBassiouni (ed.), International Criminal
Law, Vol. II (Procedural and Enforcement Mechanisms), Transnational Publishers Inc., Ardsley, New York, 2nd ed.,
1999, pp. 39-40.
43P.C.1J, Series A, No. 9, p. 18. See also P.C.I.J., Nationality Decrees Issued in Tunis and Morocco, Advisory
Opinion, P.C.lJ., Series B, No. 4, pp. 21-24 (Advisory Opinion of7 February 1923).
44J.C. Witenberg, "Onus Probandi devant les juridictions arbitrales", RGDIP, 1951, p. 234; Mojtaba Kazazi,
Burden of Proof and Related Issues -A Study on Evidence before International Tribunats, Kluwer Law International,
pp. 137-138 and 221 ff.; H.W.A. Thirlway, "Evidence before International Courts and Tribunals", in R. Bernhard (ed.),
Encyclopedia of Public International Law, Vol. 1, 1981, p. 59.
24
- 16-
represented an application of that principle. It is therefore necessary to show that contemporary
international law contains more specifie rules in the field of criminal law - rules which would
have the effect of restricting the freedom of States in situations like that with which the present
dispute is concerned.
2.18. The other arguments relied on by the Republic of the Congo are founded on errors. It
has already been explained above how the princip le of territoriality is to be understood in terms of
the rules of international law45• The applicant State contends that, in the Lotus Judgment, "the
Permanent Court accepted the existence of such a customary rule", that is to say, of a rule which
"in the circumstances" authorized Turkey to exercise its jurisdiction46• That assertion is quite
simply wrong. The Congo completely stands the Permanent Court's reasoning on its head. The
Court started from the assumption that, in arder to restrict Turkey's freedom, there would have to
be a specifie rule. It concluded that such a rule did not exist, either in conventional law or in
customary law. It was thus in the absence of, and not by reason of, a specifie customary rule
applicable "in the circumstances" that the Court accepted that Turkey was entitled to exercise its
criminal jurisdiction in respect of events arising out of a collision on the high seas between a
French vessel and a Turkish vessel, ofwhich Turkish nationals were victims47•
2.19. Equally mistaken is the interpretation placed by the Republic of the Congo on the
separa te opinion of Judge Guillaume in the case concerning the Arrest Warrant of 11 April 200048•
In accordance with the method described above49, Judge Guillaume focuses the reasoning in his
opinion on a search for precedents most closely analogous with the situation in question. That
situation consisted in "universal jurisdiction in absentia", that is to say, where the offender is not
present on the territory of the State exercising its criminal jurisdiction in respect of offences
committed abroad by a foreigner. That was precisely, in regard to jurisdiction, the problematic
aspect of the Belgian Law of 16 June 1993, as amended by the Law of 10 February 1999, which
was being addressed. However, the French statute differs very clearly from the Belgian Law as
then applicable, since it requires the presence of the offender on French terri tory at the time when
proceedings are initiated. There is thus no question of "universal jurisdiction in absentia". The
French statute is moreover cited in the opinion in question as distinguishable from the Belgian Law
and is presented in a positive light in that regard 5°.
2.20. The Congo even implicitly accepts, in its discussion of the Belgian Law of
16 June 199351 , that the French statute is fully in conformity with international law. The Belgian
statute is criticized because it allowed:
"public proceedings to be initiated solely on the basis of a civil-party complaint filed
with an investigating judge, even in the absence of the persans against whom the
proceedings were taken, even against individuals entitled to claim immunity"52•
45Paras. 2. 7-2.12.
46Memoria1, p. 27.
47 P. C.I.J, Series A, No. 9, pp. 22-31, and in particu1ar p. 31: "It must therefore be he1d that there is no principle
of international law ... which precludes the institution of the criminal proceedings under consideration."
48Memorial, p. 27, citing paragraph 4 of President Guillaume's separate opinion.
49Para. 2.13.
501n paragraph 12 of President Guillaume's separate opinion.
51Memorial, pp. 26-27.
52Memorial, p. 26 ( emphasis added).
- 17-
Contrary to what is suggested in the Congo' s abbreviated language, the International Court of
Justice did not, in its Judgment of 14 February 2002 in the case concerning the Arrest Warrant of
11 April 2000, "find in favour of the DRC" in regard to the criminal jurisdiction of the Belgian
courts53, since the parties to the dispute had avoided addressing that issue and the Court ruled solely
on the question of immunities. It is, however, true that the disputed statute was revised shortly
after the Judgment had been rendered, including in relation to jurisdiction. The Congo, after
severely criticizing the previous state of the law, concludes its historical analysis of the Belgian
legislation in the following terms:
"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."54
25 That is a statement of the various alternative heads of jurisdiction set out in the revised Belgian
Law, the Congo' s description of which is in fact incomplete, for universal jurisdiction in absentia
remained possible, subject to various procedural restrictions55• Moreover, that Law of April2003
was further amended by a Law of 7 August 200356. It is true that all of these imprecisions are of
relatively minor importance here. The essential point, and a particularly striking one, is that the
Republic of the Congo regards the Law of 5 April2003 as a reversion to the "general law", as long
as a link with Belgium can be shown, which link could- according to the very terms of the
Memorial- consist in the fact that "the suspected offender . . . is present in Belgium". That
"general law" corresponds precisely to the manner in which France contempla tes the exercise of its ·
criminal jurisdiction.
2.21. The Republic of the Congo has thus failed to discharge the burden upon it as Applicant
of demonstrating the existence of a prohibitive rule. Indeed, so singularly has it failed to do so that
one is bound to ask oneself whether it has not in truth accepted the correctness of the French
position. For its part, the French Govemment can readily demonstrate the existence in
contemporary international law of a rule which, at its lowest, recognizes its right to exercise its
53 Ibid.
54Ibid., pp. 26-27 (emphasis added).
55Law amending the Law of 16 June 1993 concerning the Punishment of Grave Breaches of International
Humanitarian Law and Article 144ter ofthe Judicial Code, Moniteur Belge, 7 May 2003, Article 7:
"(L.2003-04-23, Art. 5; Entry into force: 07-05-2003)
1. Subject to disseisin in the circurnstances provided for in the following paragraphs, Belgian
courts shall have jurisdiction in respect of the offences specified in this Law, irrespective of the place
where such offences shall have been committed and even if the suspected perpetrator thereof is not
present in Belgium.
However, public proceedings may be initiated only at the request ofthe Federal Prosecutor where:
1. the offence was not committed on the terri tory of the King dom;
2. the suspected perpetrator is not Belgian;
3. the suspected perpetrator is not present on the territory of the Kingdom, and
4. the victim is not Belgian or has not resided in Belgium for at !east three years.
It accordingly impliedly follows that, in the contrary circumstances, the ordinary criminal
procedure is applicable- including, in particular, civil-party proceedings.
56Law concerning Grave Breaches of International Humanitarian Law, Moniteur Belge, 7 August 2003.
Article 18 of th at Law (new Art. 12bis from the Preliminary Title of the Code of Criminal Procedure) continues to rnake
provision for the exercise of universal jurisdiction under certain conditions.
- 18 -
criminal jurisdiction over that category of offences which includes both torture and crimes against
humanity. In the French Government's view, such a demonstration goes beyond what the
principles in regard to burden of proof require of it. It will nonetheless do so, thereby manifesting
its wish to co-operate in full with the Court in the discharge of its mission to ascertain the rules of
law applicable in the present proceedings.
26 §2. The existence of a rule recognizing the right of a State to establish its criminal jurisdiction
27
in respect of the off en ces in question
2.22. The offences involved in the proceedings which are the subject-matter of the present
dispute fall within the category of crimes under international law ( delicta juris gentium). In
consequence, France is undeniably entitled to exercise its jurisdiction in respect of the offences in
question, wherever they may have been committed and whatever the nationality of their
perpetrator(s) or victim(s). However, the presence on its territory of the individual suspected of
having committed such offences is a condition of the existence of such jurisdiction. That condition
has been satisfied in the present case.
A. The specifie nature of the off en ces in question
(1) Offences which constitute delictajuris gentium
2.23. There are many offences which are today defined in international terms. Over and
above those contained in international conventions dealing with criminal matters, it is accepted that
certain of them also derive from customary law. Within this corpus, a special place must be
reserved for offences which constitute grave violations of the fundamental values of the community
of nations and impugn the dignity of the human persan. They may be characterized as
"international offences by nature"57• Their commission is subject to universal condemnation and
hence their prosecution is organized on a universal basis. They today include bath crimes against
humanity and torture and also, in particular, genocide and certain acts ofterrorism58 .
2.24. The special character of such offences was noted by the International Court of Justice,
in regard to genocide, in its Opinion of 28 May 1951 on Reservations to the Convention on the
Prevention and Punishment of the Crime of Genocide. Taking the Convention as the starting point
for its reasoning, the Court drew important consequences in terms of general international law:
"The origins of the Convention show that it was the intention of the United
Nations to condemn and punish genocide as 'a crime under international law'
involving a deniai of the right of existence of entire human groups, a deniai which
shocks the conscience ofmankind and results in great lasses to humanity, and which is
contrary to moral law and to the spirit and aims of the United Nations (Resolution
96 (I) of the General Assembly, December 11 th 1946). The first consequence arising
from this conception is that the principles underlying the Convention are principles
which are recognized by civilized nations as binding on States, even without any
conventional obligation. A second consequence is the universal character bath of the
57 Claude Lombois, Droit pénal international, Dalloz, 2nd ed., 1979.
58 Antonio Cassese, International Criminal Law, Oxford University Press, 2003, pp. 23-25; Victoria Abellan
Honrubia, "La responsabilité internationale de 1 'individu", RCADI, 1999, Vol. 180, p. 294.
- 19-
condemnation of genocide and of the co-operation required 'in order to liberate
mankind from such an odious scourge' (Preamble to the Convention)."59
2.25. A comparable intention, that is to say an intention linked to the principle ofhumanity
and the purposes of the United Nations, is to be found in the Convention against Torture and Other
Cruel Inhuman or Degrading Treatment and Punishment of 10 December 1984. Thus the preamble
refers to "recognition of the equal and inalienable rights of all members of the human family", and
to "the inherent dignity of the human person"60. It links the Convention to the "principles
proclaimed in the Charter of the United Nations" and in particular to Article 55 thereof, pursuant to
which States are under an obligation "to promote universal respect for, and observance of, human
rights and fundamental freedoms"61 • It refers to a number of previous international instruments
having universal scope which place an ab solute prohibition on torture: Article 5 of the Universal
Declaration of Human Rights; Article 7 of the International Covenant on Civil and Political
Rights; the Declaration of 9 December 1975 on the Protection of All Persons from Being
Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment62•
Moreover, the Convention was adopted by the United Nations General Assembly on
10 December 1984- the anniversary of the adoption of the Universal Declaration of Human
Rights -by consensus63 • The intention to organize the suppression of torture at internationallevel
is beyond doubt, since the articles in the first part deal essentially with penal matters, whether in
order to define what can constitute acts of torture or to impose obligations in regard to jurisdiction
and criminal procedures64•
28 2.26. Reflecting the Convention's special nature, the rules prohibiting grave violations of the
fundamental rights of the human person crea te obligations erga omnes. In this regard, we would
recall the position taken by the Court in its Judgment of 5 February 1970 in the Barcelona Traction
case:
"33. . . . In particular, an essential distinction should be drawn between the
obligations of a State towards the international community as a whole, and those
arising vis-à-vis another State in the field of diplomatie protection. By their very
nature the former are the concem of all States. In view of the importance of the rights
involved, all States can be held to have a legal interest in their protection; they are
obligations erga omnes.
34. Such obligations derive, for example, in contemporary international law,
from the outlawing of acts of aggression, and of genocide, as also from the princip les
and rules concerning the basic rights of the human persan, including protection from
slavery and racial discrimination."65
59ICJ, Opinion of 28 May 1951, Reservations to the Convention on the Prevention and Punishment of the Crime
ofGenocide, I.C.J. Reports 1951, p. 23.
60Preamb1e, second and third paragraphs.
61Preamble, second and fourth paragraphs.
62Preamble, fifth and sixth paragraphs.
63General Assembly resolution 39/46.
64There are also provisions on administrative measures and victims' rights.
65ICJ Judgment of 5 February 1970, Barcelona Traction, Light and Power Company, Limited, Second Phase,
I.C.J. Reports 1970, p. 32, paras. 33-34.
-20-
2.27. Torture clearly represents such a case of grave violation of the "basic rights of the
human person". Its extreme stigmatization under contemporary international law is notably
apparent in particular from a reading of the conventions for the protection of human rights, the
prohibition on torture being always included in those norms from which no derogation may be
made66 • The international community of States thereby manifests its attachment to "elementary
considerations of humanity"67 . Furthermore, international humanitarian law likewise regards acts
of torture as a criminal offence where they are committed in the context of an armed conflict and,
as the Congo points out68 , in the course of a general or systematic attack on a ci vi lian population.
Such acts may then properly be characterized either as a war crime or as a crime against humanity.
This confirms - if confirmation were necessary - that the prohibition on torture is not only an
obligation erga omnes69 , but has also become an intransgressible principle of customary law70 .
29 2.28. It is thus particularly unacceptable to seek, as the Applicant does7\ to draw a
distinction according to whether or not the act is committed in connection with the "maintenance of
public order". To accept such a reasoning would amount to emptying the rules of international law
of all substance, for there is a strong likelihood that the perpetrators of acts of torture or acts
constituting a crime against humanity would seek to shelter behind an official duty to "maintain
public order", or indeed invoke it in order to commit the offence. Such a "defence" is moreover
excluded by Article 1, paragraph 1, of the Convention of 10 December 198472 •
2.29. The Congo seeks to draw an analogy in this regard between the present case and
certainjudgments rendered by the Court of Justice of the European Communities73 • Such a parallel
is thoroughly unconvincing. First, it is curious, not to say inappropriate, to compare the free
movement of goods in Europe, however eminent that princip le may be within the Community legal
order, with the prohibition on torture, which forms part of the most basic norms of international law
and derives from the necessary respect for human dignity. Moreover, the judgments cited are
judgments which represent findings of violations in relation to the conduct of a State, and rulings
on the international responsibility ofthat State, under Community law. That has nothing to do with
the proceedings before the French courts which are the subject of the present dispute. These
con cern the criminal responsibility of certain individuals and not the responsibility of the Republic
of the Congo. The fact that such offences may have been committed by officiais responsible for
the maintenance of order in no way exempts them from responsibility, whether in domestic law or
in international law. The rules of international criminallaw correctly reflect a notion of individual
criminal responsibility which includes public officiais. Under the Nuremberg principles, "the
official position of defendants ... shall not be considered as freeing them from responsibility or
66See Articles 4 (2) and 7 of the International Covenant on Civil and Political Rights; Articles 3 and 15 of the
European Convention on the Protection of Human Rights and Fundamental Freedoms; Articles 5 and 27 (2) of the
American Convention on Human Rights; Article 5 of the African Charter on Human and Peoples' Rights.
67ICJ, Judgment of 9 April 1949, Corfu Channel, Merits, /. C.J. Reports 1949, p. 22.
68Memorial, p. 31.
69 As to which, see International Criminal Tribunal for the former Yugoslavia, Judgment, Prosecutor v.
Anto Furundzija, No. IT-95-1711-T, 10 December 1998, para. 153.
700n this concept and on the criteria applied by the Court, see Opinion of 8 July 1996 on the Legality of the
Threat or Use ofNuclear Weapons, /.C.J. Reports 1996, p. 257, para. 79.
71Memorial, pp. 34-35.
72"For the purposes of this Convention, the term 'torture' means any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on a person ... by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an official capacity."
73Memorial, pp. 34-35, para. 29.
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mitigating punishment"74• This principle has been espoused by the General Assembly of the
30 United Nations and by the latter's International Law Commission75 • It appears in the statutes of
international criminal courts as one of the principles governing international criminal
responsibility76, and in the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment in the definition of the offence77. It undeniably forms part of general
international law.
31
2.30. In effect, the Memorial of the Republic of the Congo has confused the notion of
individual criminal responsibility with that of international immunity. Thus it concludes its
argument with an invitation to accord to the "Minister of the Interior, in respect of acts falling
within the scope of his duties to maintain public order, an immunity analogous to that accorded, for
other reasons, to Ministers for Foreign Affairs"78 • The issue raised thus relates not to criminal
jurisdiction, but to the scope of international immunities. However, the fact that certain individuals
enjoy international immunity does not extinguish their responsibility, if only because the State
which they represent retains the power to withdraw such immunity. The question of immunities
will be examined later on in this Counter-Memorial79• Here, we will confine ourselves to noting
that the passage ends, curiously, with a claim to immunity restricted to the Minister of the In teri or
al one, contradicting the overall thrust of the preceding argument80.
2.31. Thus contemporary international law clearly establishes that the commission of an act
of torture is always prohibited, whatever the context, and constitutes an international criminal
offence (delicta juris gentium/1• The rights and obligations attaching to that rule under
international law are rights and obligations erga omnei2• Every State accordingly has a legal
interest in securing the punishment of acts of torture.
(2) Offences whose international character justifies their prosecution worldwide
2.32. The international nature of the offence means that no State can dispute the right of
another State to establish its jurisdiction to secure prosecution of the offence, wherever it may have
been committed or whatever the nationality of those involved, provided sorne connection exists
with the State of jurisdiction. As the International Court of Justice emphasized in its Opinion of
28 May 1951 in regard to genocide, one of the consequences of the nature of the offence is "the
74Article 7 of the Statute of the International Military Tribunal, annexed to the London Agreement of
8 August 1945. See also Judgrnent of the International Military Tribunal, Trials of Major War Criminals Before the
International Military Tribunal, Official Text in the English Language, Vol. I, Official Documents, Nuremberg, 1947,
p. 235.
75General Assembly resolutions 3 and 95 (1) of 13 February and 11 December 1946; Report of the International
Law Commission on the work of its second session, 5 June to 29 July 1950 (Princip le III).
76Article 7 (2) of the Statute of the International Criminal Tribunal for the former Yugoslavia; Article 6 (2) of the
Statute of the International Criminal Tribunal for Rwanda; Article 27 ofthe Statute ofthe International Criminal Court.
77See above, para. 2.28.
78Memorial, p. 35.
79See below, Chapter 3.
80Memorial, pp. 34-35, para. 29.
81See also the following paragraphs.
82See, mutatis mutandis, in relation to genocide, the ICJ Judgrnent of 11 July 1996, Application of the Convention
on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary
Objections, !. C.J Reports 1996 (Il), p. 616, para. 31: "the rights and the obligations enshrined by the Convention are
rights and obligations erga omnes".
32
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universal character both of the condemnation ... and of the co-operation required ... "83 • The
existence of this specifie rule of customary international law is apparent from: (a) the relationship
between treaty law and customary law; (b) the laws and practice of States; (c) the position of
international bodies.
(a) The relationship between treaty law and customary international law
2.33. The need for co-operation at international level explains today's high number of
international conventions defining offences and recognizing the right, or laying down the
obligation, for States to add other heads of jurisdiction to their territorial and personal jurisdiction.
In certain cases they call for what the Republic of the Congo, using the language of a major current
of doctrine, describes as "universal jurisdiction"84. In reality that expression is not to be found in
the conventions in question. lt is a linguistic short-eut- perhaps a disputable one85 - used to
designate an obligation on States either to extradite or to prosecute offenders present on their
territory86• Such a provision appears in the following conventions: Geneva Convention of
20 April 1929 for the Suppression of Counterfeiting Currency (Article 9); Convention of
26 June 1936 for the Suppression of the Illicit Traffic In Dangerous Drugs (Article 8); Hague
Convention of 16 December 1970 for the Suppression ofUnlawful Seizure of Aircraft (Article 4);
Single Convention of 30 March 1961 on Narcotic Drugs (Article 36); Vienna Convention of
21 February 1971 on Psychotropic Substances (Article 22); Montreal Convention of
23 September 1971 for the Suppression of Unlawful Acts Against the Safety of Civil Aviation
(Article 5); United Nations Convention of 14 December 1973 on the Prevention and Punishment
of Crimes against Internationally Protected Persans (Article 3); European Convention of
27 January 1977 on the Suppression ofTerrorism (Article 6); OAU Convention of3 July 1977 for
the Elimination of Mercenarism In Africa (Article 8); Vienna Convention of 26 October 1979 on
the Physical Protection of Nuclear Material (Article 8); New York Convention of
17 December 1979 Against the Taking of Hostages (Article 5); United Nations Convention of
10 December 1984 against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (Article 5); Inter-American Convention of 9 December 1985 to Prevent and Punish
Torture (Article 12); Rome Convention of 10 March 1988 for the Suppression of Unlawful Acts
against the Safety of Maritime Navigation (Article 6); European Convention of 4 November 1988
on the Protection of the Environment Through Criminal Law (Article 5); United Nations
Convention of 4 December 1989 against the Recruitment, Use, Financing and Training of
Mercenaries (Article 9); United Nations Convention of 9 December 1994 on the Safety of United
Nations and Associated Personnel (Article 3); Convention of 15 December 1997 for the
Suppression of Terrorist Bombings (Article 6); International Convention of 9 December 1999 for
the Suppression of the Financing of Terrorism (Article 7); United Nations Convention of
15 November 2000 against Transnational Organized Crime (Article 15). The Republic of the
Congo is moreover party to a certain number of these instruments, such as the Montreal
Convention of 1971, and, recently, the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment.
2.34. The characteristic feature of these conventional instruments is the obligation they
impose on States parties to establish within their domestic law the specifie heads of jurisdiction for
which the instruments provide. However, to include in a treaty an obligation on States parties to
establish a particular head of jurisdiction implies that they already have the right to do so under
83ICJ Opinion of 28 May 1951, Reservations to the Convention on the Prevention and Punishment of the Crime of
Genocide, I.C.J Reports 1951, p. 23.
84Memorial, pp. 25 ff.
85See below, para. 2.52.
86In this regard, see below para. 2.54.
33
34
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general international law. The extremely high number of ratifications and accessions to these
conventions demonstrates, moreover, a recognition of the customary nature of the right to exercise
the jurisdictions in question.
2.35. If this had not been the underlying assumption of the States parties, it would have been
necessary to provide for both right and obligation on the basis of reciprocity and to make the
exercise of jurisdiction subject to the condition that any other State or States having an interest in
the offence ratione loci or ratione personae were also parties to the convention. However, none of
these conventions includes a clause of this kind, for a somewhat obvious reason. To make the
exercise of a State's jurisdiction subject to the agreement of the State where the offence has been
committed and/or the agreement of the State of nationality of the offender, or even possibly to the
agreement of the State of nationality of the victims, would have been contrary to the very purpose
of those conventions, which is to encourage the suppression of the most serious kinds of crimes.
Moreover, it would hardly have been compatible with the erga omnes nature of the obligations of
which it is sought to secure respect, since all States have a "legal interest" in having those
obligations respected87 . The absence of any reciprocity provision in regard to heads of jurisdiction
thus shows that States' right to establish such heads of jurisdiction was, at the time of adoption of
those instruments, regarded as already existing under customary international law. The purpose of
those conventions is to transform into an obligation the right derived by every State from general
international law.
2.36. Thus, focusing on the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, we find the States parties stating in the preamble that they
"[ d]esir[ e] to make more effective the struggle against torture and other cruel, inhuman or
degrading treatment or punishment throughout the world". The expression "throughout the world"
clearly excludes the notion of an implied condition of reciprocity. The travaux préparatoires also
demonstrate the universal character of the Convention, including in its penal aspects:
"The two important elements of the draft convention were the system of
universal jurisdiction and the implementation system. The first was of value in
ensuring that persons who had practised torture could be prosecuted no matter where
they were. It was important that the international community should assume
responsibility for investigating claims of torture and initiating proceedings."88
2.37. It should be noted that the Republic of the Congo has never expressed any objection
regarding the principles on which the Convention is based. Quite to the contrary, the attitude of the
Congolese authorities, prior to the Convention's entry into force for the Republic of the Congo,
was always favourable to the Convention. Thus, in the report submitted in 1997 by the Congo to
the Human Rights Committee in respect of its obligations under the International Covenant on
Civil and Political Rights, it is stated that the new Congolese Constitution of 15 March 1992 now
includes a provision prohibiting torture and other cruel, inhuman or degrading treatments or
punishments (Art. 16), intended to enable it to accede to the Convention89• Subsequently, a Law
authorizing accession was adopted by the National Transitional Council and promulgated by the
President of the Republic of the Congo on 15 August 1999. Finally, on 30 July 2003, when the
present proceedings before the International Court of Justice had already commenced, the Republic
of the Congo acceded to the Convention without attaching any reservation or declaration.
87ICJ Judgment of 5 February 1970, Barcelona Traction, Light and Power Company, Limited, Second Phase,
I.C.J. Reports 1970, p. 32, para. 34.
88United Nations Commission on Human Rights, 40th session, doc. E/CN.4/1984/SR.34.
89Doc. CCPR/C/63/Add.5, 5 May 1997, para. 20.
35
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(b) The laws and practice of States
2.38. Anticipating or following the trend fostered by the above-mentioned conventions, a
large number of States have adopted domestic legislation aimed at ensuring the prosecution of
international crimes irrespective of their place of commission or of the nationality of those
involved. That legislation is not confined, however, to the offences defined in the Conventions, but
also covers grave violations of international customary law. That is particularly true of crimes
against humanity, a definition of which is now to be found in Article 7 of the Statute of the
International Criminal Court. Such legislative activity is evidence not only of a widespread
practice, but also of an opinio juris on the part of the various legislators to the effect that
international law in no way precludes them from adopting rules of this kind in regard to criminal
jurisdiction90• None of this legislation includes any restriction on the basis ofreciprocity.
2.39. One ofthe oldest examples is the Ethiopian Criminal Code of 1957, whose Article 17,
paragraph 1 (a), provides that the Ethiopian courts may prosecute any person having committed
abroad "an offence against international law or an international offence specified in Ethiopian
legislation, or an international treaty or a convention to which Ethiopia has adhered"91 • That
provision thus permits prosecution by reference to international law, both customary and
conventional. A similar technique is also used in relation to the principle of universality by
El Salvador (Article 10 of the Criminal Code of 1998) and by Georgia (Articles 5 and 6 of the
1999 Criminal Code). Other States, such as the Netherlands, enumerate or define the offences
concerned in terms of domestic law, or combine the two techniques, like Spain (Article 23-4 of the
Organic Law on Judicial Power) or Ghana (Article 56 (4) of the Courts Act). In general terms, it
can be seen that all the major legal systems are represented: common law (United Kingdom),
Roman-Germanie law (Article 6 of the German Criminal Code), Chinese law (Article 9 of the
Chinese New Criminal Code of 1997), Islamic law (Article 8 of the Iranian Criminal Code). It is
apparent from the information provided by States to the Committee against Torture that more than
80 States have the power, under their domestic law, to bring prosecutions on account of acts of
torture committed abroad by foreigners against foreigners92•
2.40. Certain State jurisdictions have had occasion to implement the universality principle, in
particular in relation to crimes against humanity. The reasoning in such cases is founded on the
nature of the offence. This was the approach of the Jerusalem District Court in its judgment of
12 December 1961 in the celebratedEichmann case:
"The abhorrent crimes defined in this Law are not crimes under Israel law
alone. These crimes, which struck at the whole of mankind and shocked the
conscience of nations, are grave offences against the law of nations itself ( delicta juris
gentium). Therefore, so far from international law negating or limiting the jurisdiction
of countries with respect to such crimes, international law is, in the absence of an
International Court, in need of the judicial and legislative organs of every country to
901t is noteworthy in this regard that in many cases the national legislator has sought to transpose into domestic
law rules of international law relating to the offences in question.
91Quoted and commented on by Philippe Graven, An Introduction to Ethiopian Penal Law (Arts. 1-84 Penal
Code), Faculty of Law, Haile Selassie 1 University, Addis Ababa, Oxford University Press, 1965, p. 46.
92This paragraph and those which follow are based in particular on Antonio Cassese and Mireille Delmas-Marty
(ed.), Juridictions nationales et crimes internationaux, Presse universitaires de France, Paris, 2002, vi-673p, and on the
Amnesty International study, Universal Jurisdiction: The Duty of States to Enact and Implement Legislation, AI index:
lOR 53/002-018/2001, September 2001 (CD-rom), based rnainly on information provided by States in their periodic
reports to the international monitoring bodies set up by treaty. See also the texts and decisions available on the website of
the International Committee of the Red Cross: www.icrc.org.
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give effects to its criminal interdictions and ta bring the criminals ta trial. The
jurisdiction tatry crimes under international law is universal."93
This analysis by the Jerusalem District Court was confirmed by the judgment of 29 May 1962 of
the Israel Supreme Court94•
36 2.41. In the United States a federal appeal court, ruling on a habeas corpus petition in respect
of extradition proceedings against Mr. John Demjanjuk, had ta address the issue of title ta
jurisdiction based on the principle ofuniversality. In itsjudgment of31 October 1985, after citing
Section 404 of the Restatement (Third) of the Foreign Relations Law of the United States, which
expressly accepts such a title sa as ta punish "certain offenses recognized by the community of
nations as of universal concem, such as piracy, slave trade, attacks on or hijacking of aircraft,
genocide, war crimes, and perhaps terrorism", the Court stated:
"This 'universality principle' is based on the assumption that sorne crimes are
sa universally condernned that the perpetrators are the enemies of ali people.
Therefore, any nation which has custody of the perpetrators may punish them
according ta its law applicable ta such offenses. "95
2.42. In equally clear terms, the Canadian Supreme Court, in its judgment of 24 March 1994
in the Finta case, held that:
"The principle of universality permitted a state to exercise jurisdiction over
criminal acts committed by non-nationals against non-nationals wherever they took
place if the offence constituted an attack on the international legal arder. In addition,
there were acts which were crimes under international law which could be punished
by any state which had custody of the accused. "96
2.43. On the same basis, trials have been held in various countries in the course of the 1990s.
In November 1994 a Bosnian Muslim was convicted in Denmark for crimes committed in a
Bosnian prison camp97• Between 1997 and 1999, four Bosnian Serbs were convicted in Germany
for war crimes committed in the former Yugoslavia against Bosnian Muslims98 • In July 1997 a
similar case resulted in an acquittai in Switzerland for lack of evidence99 . Rwandan nationals have
93English translation in International Law Reports, Vol. 36, pp. 275-276, at p. 276 (para. 12).
94English translation in International Law Reports, Vol. 36, pp. 277-342, at p. 287: "The State oflsrael therefore
was entitled, pursuant to the princip le of universal jurisdiction and in the capacity of a guardian of international law and
an agent for its enforcement, to try the appellant."
95International Law Reports, Vol. 79, p. 545 (Demjanjuk v. Petrovsky).
96International Law Reports, Vol. 104, p. 287.
97See Rafaelle Maison, "Les premiers cas d'application des dispositions pénales des Conventions de Genève par
les juridictions internes", European Journal of International Law/Journal européen de droit international, Vol. 6, No. 2,
pp. 260-263.
98Djaji, Bayerisches Oberlandesgericht, judgment of 23 May 1997, 3 StR 20/96; Jorgi, Oberlandesgericht
Düsseldorf, judgment of 6 September 1997, affirmed by the Federal Supreme Court, judgment of 30 April1999,
3 StR 215/98; Sokolovi, Oberlandesgericht Düsseldorf, judgment of 29 November 1999, affirmed by the Federal
Supreme Court, judgment of 21 February 2001, 3 StR 372/00; Kuslji, Bayerisches Oberlandesgericht, judgment of
15 December 1999, affirmed by the Federal Supreme Court on 21 February 2001, 3 StR 244/00.
99Case concerning G., Military Tribunal, Division 1, Lausanne, 18 April1997, and Military Tribunal, Cassation,
5 September 1997. SeeAmerican Journal of International Law, 1997, Vol. 92, p. 78.
37
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been convicted m Switzerland and m Belgium for crimes committed during the Rwandan
genocide100 .
2.44. Although not resulting in a criminal trial, the Pinochet case is undoubtedly the most
well known in regard to torture. The House of Lords decision of 24 March 1999 in the proceedings
conducted in the United Kingdom, where Augusto Pinochet had been staying, constitutes an
important precedene01 • Lord Browne-Wilkinson, summarizing their Lordships' position, stated:
"the basic proposition common to all, save Lord Goff of Chieveley, is that torture is an
international crime over which international law and the parties to the Torture
Convention have given universal jurisdiction to all courts wherever the torture
occurs".
The majority of six judges all accepted that the special nature of the offence in international law
provided a basis of jurisdiction for both the English and the Spanish courts.
2.45. The Dutch courts have also addressed the issue of torture, in the Bouterse case102• The
Amsterdam Court of Appeal held that in 1982, when the offences had been committed in Surinam,
customary international law accorded States competence to exercise "extraterritorial (universal)
jurisdiction".
(c) The position of international bodies
2.46. The United Nations Security Council showed itself favourable to the approach aut
dedere aut judicare, urging States to adopt it in the context of the fight against terrorism. Thus in
resolution 1333 (2000) the Council recalls "the relevant international counter-terrorism conventions
and in particular the obligations of parties to those conventions to extradite or prosecute terrorists";
38 it further reaffirms that "the suppression of international terrorism is essential for the maintenance
of international peace and security". In resolution 1373 (2001), the Council "calls upon all States"
to "[b ]ecorne parties as soon as possible to the relevant international conventions and protocols
relating to terrorism, including the International Convention for the Suppression of the Financing of
Terrorism of9 December 1999", which includes such a provision.
2.4 7. In relation to the violation of the fundamental rights of the human person, the United
Nations has set an example. On 6 June 2000, the Special Representative of the United Nations
Secretary-General, Head of the United Nations Transitional Administration in East Timor, issued
an Order setting up special judicial bodies ("panels") with "universal jurisdiction" to try certain
categories of serious offences103 • The offences in question are genocide, crimes against humanity,
10°For Switzerland: Fugence Niyonteze, Military Tribunal, Division 2, Lausanne, judgment of 30 April 1999, as
amended by Military Appeal Tribunal of 26 May 1999, appeal affirmed by Cassation Tribunal, 27 April2001. For
Belgium: case of Higanirio, Ntezimana, Mukangango and Kizito, Cour d'assises de l'arrondissement administrative de
Brnxelles-Capitale, 8 June 2001.
101House of Lords (committee of seven judges), Regina v. Bartle and the Commissioner for the Metropolis and
Others Ex Parte Pinochet- Regina v. Evans and Another and the Commissioner of Police and Others Ex Parte
Pinochet,judgment of24 March 1999.
102 Amsterdam Court of Appeal, 5th Chamber, 20 November 2000, applications R 97 /163/12SV and
R 97/176/12Sv. However the Supreme Court, by decision of 18 September 2001, held that the offender must be present
on Dutch territory. See below, para. 2.53.
1030rder of6 June 2000, Doc. UNTAETIREG/2000/15, Sections. 2.1. and 2.2.
39
-27-
war crimes, torture104• While these panels are for practical purposes of a domestic nature, their
constituent act is formally of an international character, since it was adopted by a subsidiary organ
of the United Nations on the basis of Security Council resolution 1272 (1999).
2.48. Mention should also be made of the jurisprudence of the International Criminal
Tribunal for the former Yugoslavia. Thus, in its Judgment of 10 December 1998 in the Furundzija
case, a Trial Chamber of the Tribunal held in qui te clear terms in favour of the universal character
of the right to prosecute torture:
"Furthermore, at the individual level, that is, that of criminal liability, it would
seem that one of the consequences of the jus cogens character bestowed by the
international community upon the prohibition of torture is that every State is entitled
to investigate, prosecute and punish or extradite individuals accused of torture, who
are present in a territory under its jurisdiction. Indeed, it would be inconsistent on the
one hand to prohibit torture to such an extent as to restrict the normally unfettered
treaty-making power of sovereign States, and on the other hand bar States from
prosecuting and punishing those torturers who have engaged in this odious practice
abroad. This legal basis for States' universal jurisdiction over torture bears out and
strengthens the legal foundation for such jurisdiction found by other courts in the
inherently universal character of the crime. It has been held that international crimes
being universally condemned wherever they occur, every State has the right to
prosecute and punish the authors of such crimes. As stated in general terms by the
Supreme Court of Israel in Eichmann, and echoed by a USA court in Demjanjuk, 'it is
the universal character of the crimes in question i.e. international crimes which vests
in every State the authority to try and punish those who participated in their
commission' ."105
The legal force of the prohibition of torture is an issue which we consider it unnecessary for the
International Court of Justice to address, since it is clear that this is an intransgressible principle of
customary internationallaw106, confirming that prosecution of the offence must be organized on an
international basis. It places torture on an equal footing in terms of reprehensibility with grave
breaches of international humanitarian law, which may be defined as violations of humanitarian
law that entail a right of States to establish their jurisdiction wherever the offence may have been
committed and irrespective of the nationality of the offenders.
2.49. In conclusion, both international law and many domestic systems accept the
proposition that the international character of certain offences means that every State has the right
to secure their prosecution. This is, however, generally subject to one restriction: the presence of
the offender on the territory of the State exercising its so-called "universal" jurisdiction. That
restriction represents a balance between the need to respect State sovereignty as regards criminal
jurisdiction and the need for effective and coherent international co-operation. It also allows
consideration to be given to the question of the existence of a specifie connection with the
prosecuting State.
104The offences are defined in Sections 4 to 7 ofürder 2000115.
105ICTY, Judgment, Prosecutor v. Anto Furundzija, No. IT-95-17/1-T, 10 December 1998, para. 156. The
Judgment was affirmed on appeal (ICTY, Judgment, Prosecutor v. Anto Furundzija, No. IT-95-1711-A, 21 July 2000).
106See above, para. 2.27.
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B. The requirement that the offender must be present on the territory of the prosecuting
State
2.50. In the absence of a jurisdictional title based on the place of commission of the offence
(territorial jurisdiction) or on the nationality of those involved (personal jurisdiction), or on a
violation of the State's specifie interests (in rem jurisdiction), the presence of the offender creates a
link with the prosecuting State which justifies the exercise of its criminal jurisdiction.
40 2.51. It would indeed be strange if international law prevented a State from prosecuting an
41
individual present on its own territory in respect of whom there were serious grounds for believing
that he bad committed a crime under international law. A violation of the fundamental values of
the community of States represents, by definition, a disturbance to the public order of each of its
component States. This is particularly so where the State bas defined the offence both, jointly with
its peers, in the international order and in its own domestic legal order. In the present case, the acts
of which General Dabira is accused would, if they were proved, constitute offences under both
international law and French law. That is the basis of the jurisdiction exercised by the French
judicial authorities in this case.
2.52. In view of this element connecting the case to French territory, it is not certain that the
expression "universal jurisdiction" is the most appropriate term, even if it is more convenient to
use107. In their Opinion appended to the Judgment of 14 February 2002 in the case concerning the
Arrest Warrant of Il April 2000, sorne of the Court's judges considered that this was not a case of
universal jurisdiction stricto sensu, stating in this regard:
"By the loose use of language the latter bas come to be referred to as 'universal
jurisdiction', though this is really an obligatory territorial jurisdiction over persons,
albeit in relation to acts committed elsewhere."108
This analysis is in line with that adopted in the litera ture, which pre fers to speak of a jurisdictional
title based on the forum deprehensionis, and insists on the presence of the offender on the
territory109 . The expression "universaljurisdiction" should logically be reserved for ajurisdictional
title established in the absence of any connection with the forum State, in particular that constituted
by the presence of the offender on its territory. True universal jurisdiction is an absolute and
unconditional jurisdiction. However that situation in no way corresponds to the circumstances of
the present dispute, since the French statu te requires the presence of the offender on the territory of
the Republic as a condition enabling the French courts to prosecute acts constituting international
offences committed abroad by foreigners against foreigners. In so doing, French law follows the
"general law", to adopt the language used by the Republic of the Congo in its Memorialll0 .
2.53. Ifwe analyse the practice of States, it can readily be seen that the condition of presence
on the territory is always required, either because it is expressly imposed by law, or because it is
asserted by the courts. Thus, in the Bouterse case, the Dutch Supreme Court held that the offender
107For convenience, we shall hereafter use the expression "universal jurisdiction" in relation to the French statu te,
but always in quotation marks.
108 Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, para. 41.
109Henri Donnedieu de Vabres, Les principes modernes du droit pénal international, Sirey, Paris, 1928,
pp. 135-136; M. Cherif Bassiouni, "Uni versai Jurisdiction for International Crimes- Historical Perspectives and
Contemporary Practices", Virginia Journal of International Law, Vol. 42, No. 1, Fall2001, pp. 136-137.
110See above, para. 2.20.
42
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must be present on the territory in order for the Dutch statute to be applicable111 • In this regard, the
Belgian Law of 16 June 1993 constituted an exception, since it permitted prosecution in absentia, a
situation to which the Law of August 2003 put an end.
2.54. Above all, this condition appears in international conventions providing for the
prosecution of serious violations of international law through the medium of the principle aut
dedere aut prosequi. That clearly constitutes a significant technical refinement, in that it both
clarifies States' jurisdictional titles and renders international co-operation more effective. If a State
has a choice between extraditing or prosecuting, this implies that, whichever alternative it chooses,
it is potentially in a position where it may be seised of an extradition request from another State,
and hence that the suspected individual is present on its territory. There are different ways in
which this choice of alternatives may be exercised according to the various conventional
régimes m. However, in any event, the principle presupposes: (i) that the offender is present on the
territory of the State which has undertaken to extradite or prosecute him; (ii) that that State has in
any case a title of criminal jurisdiction at the time when the offender is found on its territory,
without which there would be no choice of alternatives.
2.55. The French statute is fully compatible with the trend of international conventions and
of comparable State practice: it does not provide for absolute universal jurisdiction. Article 689-1
of the Code of Criminal Procedure provides that the perpetrator must be present on French terri tory
in order for the French judicial authorities to have jurisdiction to initiate proceedings, in cases
where the acts were committed abroad and neither the perpetrator nor the victims are of French
nationality. That provision was fully complied with in the case presently before the Court, since
General Dabira, who has a home in France, was staying there at the time when the investigating
judge was seised of the matter.
2.56. Thus the Republic of the Congo has no basis for challenging the attitude of the French
judicial authorities in light of general international law. That said, and irrespective of the right
accorded to France by international custom, France could still rely on the provisions of the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of
10 December 1984, which require it to establish its jurisdiction where the perpetrator of an act of
torture is present on its territory.
Section 2 -In any event, the Convention against Torture and Other Cruel, lnhuman
or Degrading Treatment or Punishment of 10 December 1984, to which the Congo is
party, requires France to establish the jurisdiction of its criminal courts in respect
of situations su ch as that having given rise to the present dispute
2.57. The Convention is applicable to the present dispute, as the Applicant itself admits.
Otherwise, it would be difficult to see why so much space would be devoted to it in the
Memorial113 • lt is accordingly necessary to set out precisely the resultant rights and obligations in
regard to criminal jurisdiction for States which, like France, are parties to the Convention (§ 1 ).
Moreover, the Congo's accession to the Convention represents a new development in relation to
the preceding phases of the proceedings before the International Court of Justice; it is necessary to
examine the effects of this (§2).
111See above, para. 2.45.
112For torture, see below, paras. 78-79.
113Memorial, pp. 30-33.
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43 §1. The aim of the Convention's provisions is to increase the effectiveness worldwide of the
44
fight against torture and other cruel, inhuman or degrading treatment or punishment
2.58. Torture as envisaged by the Convention is a fundamental violation ofindividual rights,
the commission or attempted commission of which engenders individual criminal responsibility.
Under Article 4, States parties shaH ensure that "all acts of torture" are offences under their
criminallaw. The provisions of the Convention dealing with States' jurisdictional titles are to be
read in relation to the offences referred to in that Article.
2.59. The principal abject of the Convention is to establish States' titles ofjurisdiction with a
view effectively to combating torture. Under Article 5 (1), each State Party is required to establish
its jurisdiction when the offence has been committed "in any territory under its jurisdiction or on
board a ship or aircraft registered in that State" (Article 5 (1) (a)), or when the alleged offender is a
national ofthat State (Article 5 (1) (b)). Where the victim is a national ofthat State, the latter may
establish its jurisdiction (Article 5 (1) (c)). A further obligation is set out in Article 5 (2), which is
directly relevant to the case concerned by the present dispute before the Court, and applies to the
situation where "the alleged offender is present in any territory under [the State's] jurisdiction and
it does not extradite him". This is not a case of unconditional universal jurisdiction, but of a régime
of the kind aut dedere aut prosequi which the State is required to provide for in its domestic law.
The alternative of aut prosequi requires provision to be made in domestic law for criminal
jurisdiction in respect of acts of torture committed by foreigners, abroad, against foreigners, where
the offender is present on any terri tory under the jurisdiction of the State Party. France complies
with this obligation through Articles 689, 689-1 and 689-2 of its Code of Criminal Procedure.
2.60. lt should further be noted that the Convention against Torture includes a provision
permitting States to go beyond the jurisdictional titles envisaged in paragraphs 1 and 2 of Article 5
and recognizing their freedom in regard to jurisdiction. Under Article 5 (3), "this Convention does
not exclude any criminal jurisdiction exercised in accordance with internallaw". Such a provision
is indeed a classic one and appears in other criminal conventions114•
2.61. The requirement of extradition or prosecution clearly represents a key element of the
prosecution régime. And that obligation is notably strengthened by Article 7 (1), which lays dawn
detailed rules for the implementation of Article 5. The State where the alleged perpetrator of an act
of torture is "found" is required to submit the case "to its competent authorities for the purpose of
prosecution", if it does not extradite him. That provision is particularly noteworthy, inasmuch as it
emphasizes the role of the State on whose terri tory the offender is found. It highlights the principal
purpose of the Convention, which is to enable torture to be effectively prosecuted by preventing its
perpetrators from seeking refuge on another terri tory.
2.62. Furthermore, Article 7 (2) provides for States to have recourse to their internai
procedures applicable to "any ordinary offence of a serious nature" for purposes of exercising the
titles ofjurisdiction provided for or authorized under Article 5. In the present case, the proceedings
have been conducted in accordance with the provisions ofthe French Code ofCriminal Procedure.
2.63. Every State Party is bound by its obligations under the Convention, whether in relation
to Article 5 orto Article 7, and irrespective of whether other States potentially having jurisdiction
in the same case are parties to the Convention. That accords both with the logic of individual
114See inter ali a Article 3 (3) of the Tokyo Convention of 14 September 1963 on Off en ces and Certain Other Acts
Committed onboard Aircraft.
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criminal responsibility and with the object of the Convention, and no provision of the Convention
or anything in the travaux préparatoires suggests otherwise. France, in exercising its jurisdiction
in the proceedings subject-matter of the dispute before the International Court of Justice, has thus
acted in pursuance of the rights and obligations deriving from the United Nations Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of
10 December 1984. And that is confirmed by the fact that the Convention also applies in mutual
relations between France and the Republic of the Congo as a result of the latter's accession thereto.
45 §2. The accession of the Republic of the Congo to the Convention
2.64. The instrument whereby the Republic of the Congo acceded to the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was deposited on
30 July 2003 with the United Nations Secretary-General. Pursuant to its Article 27 (2), the
Convention entered into force for the Republic of the Congo on 29 August 2003. Accession took
immediate effect on that date, rendering it applicable to the present dispute. Moreover, it is clear
from its terms that the Convention has an effect ratione tempo ris which covers the entirety of the
proceedings conducted in France. Thus the Republic of the Congo cannot challenge France's
exercise of a criminal jurisdiction which is fully compatible with the rights and obligations deriving
from a convention by which the Congo is likewise bound.
A. The immediate effect of accession
2.65. The law oftreaties provides that a treaty takes effect in relation to aState party on the
date when it enters into force for that State115 . The Convention of 10 December 1984 contains a
specifie provision in this regard, Article 27 (2), which provides that it shall enter into force for a
State "on the thirtieth day after the date of the deposit of its . . . instrument of ratification or
accession". The Congo's accession thus took effect on 29 August 2003.
2.66. However, the proceedings initiated in France which are the subject-matter of the
present dispute before the International Court of Justice have continued beyond 29 August 2003
and are still continuing. The presence of General Dabira on French territory at the time when the
prosecution was initiated enabled the investigating judge to be properly seised of the case, and his
jurisdiction remains established. The French judicial authorities have thus initiated a prosecution
for an ordinary offence of a serious nature, in accordance with Article 7 (2) of the Convention116•
The investigation conducted by the French investi ga ting judge continues to relate to acts of torture
on Congolese territory and continues to rely on a jurisdictional title recognized in the Convention
46 of 10 December 1984. The Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment thus forms part of the law applicable to the dispute.
2.67. However, this clear finding faces a potential challenge as a result of the biased manner
in which the Applicant presents the grounds of its Application, which are claimed to depend on a
preliminary "point of law"117• Thus the Memorial seeks to reduce the prosecution to the
prosecutor's originating application (réquisitoire introductif) 118• It is contended that the
prosecution is frozen at a precise moment intime-a snapshot, as it were; whereas, by definition,
115 Article 24 (3) of the Vienna Convention on the Law of Treaties of 23 May 1969, which on this point reflects
customary law.
116See above para. 2.62.
117Memorial, p. 21.
118Memorial, pp. 21-25.
47
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any legal proceeding is an ongoing process, with no restriction as to its duration. Moreover, this in
no way corresponds to the terms in which the dispute was submitted to the International Court of
Justice by the Applicant itself in the Application filed in the Registry on 9 December 2002. The
subject-matter of the dispute, as set out in the Application's first ground, relates to a title of
criminal jurisdiction under international law, and not to a specifie procedural act. We would recall
the terms of the Application, namely that France had:
"[ violated] the principle that a State may not, in breach of the princip le of sovereign
equality among all Members of the United Nations, as laid dawn in Article 2,
paragraph 1, of the Charter of the United Nations, exercise its authority on the territory
of another State,
by unilaterally attributing to itself universal jurisdiction in criminal matters
and by arrogating to itself the power to prosecute and try the Minister of the Interior of
a foreign State for crimes allegedly committed in connection with the exercise of his
powers for the maintenance of public arder in his country".
It is clearly the jurisdictional title, or "power" of the State, which is the subject-matter of the
dispute. Moreover, in the section following that entitled "Nature and scope of the originating
Application of23 January 2002", the Memorial consistently presents the first ground as a challenge
to "universal jurisdiction"119•
2.68. This case involves a challenge to the jurisdiction exercised by the French courts in
certain proceedings. It follows that the proceedings conducted in France must be considered in
their entirety. In that sense, the legal issue involved is identical to that addressed by the Permanent
Court of International Justice in the Lotus case, where the Court stated the following:
"The violation, if any, of the principles of international law would have
consisted in the taking of criminal proceedings against Lieutenant Demons. It is not
therefore a question re la ting to any particular step in these proceedings - such as his
being putto trial, his arrest his detention pending trial or the judgment given by the
Criminal Court of Stamboul- but of the very fact of the Turkish Courts exercising
criminal jurisdiction. "120
If each procedural act had to be considered in isolation, this would no longer be a dispute between
two States over the exercise of State jurisdictions, but either a dispute concerning the application of
French law by the French courts, or el se a dispute re la ting to the exercise by the Republic of the
Congo of its right of diplomatie protection in favour of one of its nationals. In the latter case, it
will be recalled that the procedure is only at the investigation stage, and that local remedies have
not been exhausted by General Dabira. The Republic of the Congo moreover admits as much 121 .
2.69. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment must therefore be so applied as to determine the rights and obligations of the Parties to
the dispute before the International Court of Justice; it is, moreover, clear from its terms that the
Convention has an effect ratione tempo ris which covers the entirety of the acts in question.
119See the headings to paragraphs 20 (p. 25), 21 (p. 26), 21 (sic, p. 27), 23 (p. 28), 24 (p. 30), 27 (p. 33).
120P.C.I.J., Series A, No. 9, p. 12.
121Memorial, p. 25.
48
49
- 33-
B. The effect of the Convention ratio ne tempo ris
2.70. A clear distinction must be drawn between the question of the date when a treaty enters
into force and that of its effects over time122• The former relates to the treaty qua legal act, the
latter toits substance qua legal norm. Article 28 of the Vienna Convention on the Law ofTreaties,
entitled "Non-Retroactivity of Treaties", concerns this second aspect and raises a presumption
regarding the effects of a treaty ratione temporis. However, it concerns only certain ofthe possible
legal situations:
"Unless a different intention appears from the treaty or is otherwise established,
its provisions do not bind a party in relation to any act or fact which took place or any
situation which ceased to exist before the date of entry into force of the treaty with
respect to that party."
2.71. The question oflaw raised in the present dispute in regard to the first ground, namely
the jurisdiction of the Frenchjudicial authorities, constitutes neither an act or fact precisely situated
intime, nor a situation which has "ceased to exist": it is a continuous, ongoing situation123 • The
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
itself contains no provision on the matter. It is moreover accepted that retroactivity- in the
present case more apparent than real, since we are dealing here with an immediate effect upon
ongoing proceedings which arose as soon as the Convention entered into force - can follow
implicitly from the object of a treaty. The Judgment of30 August 1924 ofthe Permanent Court of
International Justice in the case of the Mavrommatis Palestine Concessions is a well-known
precedent in this regard124• Where a treaty is silent asto its effects on situations which are ongoing
at the time ofits entry into force, then regard must be had toits object and purpose.
2.72. The purpose of the Convention of 10 December 1984 is to protect the "inherent dignity
of the human person" and, to that end, "to make more effective the struggle against torture and
other cruel, inhuman or degrading treatment or punishment throughout the world"125• The
Convention's overall régime must be interpreted in light ofthat objective. The reasoning followed
by the International Court of Justice in its Opinion of 28 May 1951 on Reservations to the
Convention on the Prevention and Punishment of the Crime of Genocide may serve as a guide in
this regard: .
"The Convention was manifestly adopted for a purely humanitarian and
civilizing purpose . . . In such a convention the contracting States do not have any
interests of their own; they merely have, one and all, a common interest, namely, the
accomplishment ofthose high purposes which are the raison d'être of the convention.
Consequent! y, in a convention of this type one cannot speak of individual advantages
or disadvantages to States, or of the maintenance of a perfect contractual balance
between rights and duties. The high ideals which inspired the Convention provide, by
122See inter alia Sir Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice, Vol. I,
Grotius Publications Ltd., 1986 (republished, Cambridge University Press, 1993), p. 388.
1230n the different cases, see Paul Tavernier, Recherches sur l'application dans le temps des actes et des règles
en droit international public (Problèmes de droit intertemporel ou de droit transitoire), LGDJ, 1970, pp. 289 ff;
Max Sorensen, "Le problème du droit dit intertemporel dans l'ordre international", Annuaire de l'Institut de droit
international, 1973, Vol. 55, pp. 35-47.
124P.C.IJ., Series A, No. 2, p. 35.
125Preamble, third and seventh recitals.
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virtue of the cornmon will of the parties, the foundation and measure of all its
provisions. "126
For these same reasons, the Court has jurisdiction here to apply the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment to the entirety of the acts which are
the subject of the present dispute.
2.73. Furthermore, the relevant provisions of the Convention relate to a question of judicial
jurisdiction. Such provisions inherently imply an effect ratione temporis covering the entirety of
proceedings which are ongoing at the time of the Convention's entry into force. The Permanent
Court of International Justice held as a matter of princip le that its own jurisdiction was established
in relation to disputes concerning facts prior to the entry into force of the instrument conferring
suchjurisdiction127• One cannot see why the effect ratione temporis of an international convention
conferring a jurisdictional title should be different where that title is exercised by a domestic court
rather than an international one. It should further be noted that it is generally accepted in the case
of extradition treaties that these are applicable to proceedings in respect of offences cornmitted
before their entry into force 128• This is particularly pertinent in regard to jurisdiction deriving from
Article 5 (2) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, since the requirement aut dedere aut prosequi presupposes a close connection
between jurisdiction and extradition.
2.74. The Convention of 10 December 1984 is accordingly applicable to legal relations
between France and the Republic of the Congo, thus further confirming the jurisdictional title of
the Frenchjudicial authorities under conventionallaw. It should, however, be recalled that, even in
the absence of an obligation in this regard, France in any event has the right to establish its
jurisdiction in such a situation pursuant to general international law.
50 Section 3 - The criminal proceedings initiated in France are in breach neither of a purported
princip le of subsidiarity nor of the rule non bis in idem
2.75. Paragraph27 ofthe Memorial ofthe Republic ofthe Congo seeks to address-in its
own words- the "subsidiarity of universal jurisdiction in respect of torture", whilst paragraph 28
is entitled "Failure by the French judicial authority to respect the princip le of subsidiarity". In the
first of these two paragraphs, the argument of the Republic of the Congo refers in surnmary fashion
to what it caUs "the mechanism established by the Convention against Torture"; in the following
paragraph, it criticizes the French judicial authorities for having failed to take account of the
proceedings initiated before the Brazzaville Tribunal de première instance, of which they had been
informed in a letter of 9 September 2002.
The Applicant thus confuses two distinct, albeit often related, issues: on the one hand that of
subsidiarity, a characteristic often attached in the literature to the exercise of "universal
jurisdiction"; on the other, that of the possible effect of the rule non bis in idem, which prohibits
the duplication of proceedings in respect of the same facts.
As these are in reality two qui te distinct issues, each must be addressed in its own tum.
126ICJ, Opinion of 28 May 1951, Reservations to the Convention on the Prevention and Punishment of the Crime
ofGenocide, I.C.J. Reports 1951, p. 23.
127PCIJ, Mavrommatis Palestine Concessions, P.C.I.J., Series A, No. 2, p. 35; PCIJ, Phosphates in Morocco,
P.C.I.J., Series AIB, No. 77, p. 24.
128Paul Tavernier, op. cit., pp. 187-189; Max Sorensen, op. cit., p. 42.
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§1. "Universal jurisdiction" is not necessarily of a subsidiary nature
2.76. Contrary to what the very briefparagraph 27 of the Congolese Memorial suggests, the
question of the "subsidiarity" attaching to "universal jurisdiction" is not confined to an examina ti on
of the New York Convention of 1984 against Torture. The extent to which that Convention
represents a lex specialis has to be determined, in particular as regards its significance and scope,
on the basis ofwhat it adds to the already existing relevant rules of general international law. Thus,
here again, we have to take as our starting-point the position under customary international law, in
order then to consider how this has been supplemented or modified by the provisions of the 1984
Convention.
51 A. "Subsidiarity" and customary international law
52
2.77. As has been shown in the preceding section of this chapter, customary law in regard to
the exercise of judicial jurisdiction in respect of offences committed abroad by foreigners against
foreigners contains no prohibition of principle. The matter has to be viewed in terms simply of
rights or powers, rather than of an obligation to establish or exercise such jurisdiction. As we have
seen, this is shown in particular by the jurisprudence of the Permanent Court of International
Justice in the Lotus case129: in the case of normative jurisdiction as opposed to executive
jurisdiction, the Judgment showed that every State has "a wide measure of discretion which is only
limited in certain cases by prohibitive rules"130: only persons not enjoying immunity from
jurisdiction by reason of their status may be prosecuted by a State other than that of their
nationality, a condition fully satisfied by France in the present case131; prosecution on the basis of
"universal jurisdiction" is possible only in respect of certain types of offence, sufficiently serious to
impugn the rights and interests accorded to and by all States, one such offence being the practice of
torture; finally, the existence of a sufficient connecting factor between the prosecuting State and
the suspected offender must be established. The presence of the suspected offender on the terri tory
of the State at the time when it commences prosecution against that individual constitutes a
sufficient connection in this regard. That condition was satisfied at the time when the prosecution
was initiated against General Dabira.
2. 78. It follows that "universal jurisdiction" cannot generally operate as readily as the
jurisdiction exercisable by the State on whose territory the offence has been committed, or by the
State ofnationality of the offender, both ofwhich can act unconditionally.
Although, under general international law, "universal jurisdiction" is conditional, it is
nonetheless not "supplemental". Thus, if the conditions precedent are complied with, as is the case
here, general international law permits the concurrent exercise of judicial jurisdiction by two States
in respect of the same individuals having committed the same offences. That applies, for example,
in the case of concurrent prosecutions by the State of the locus delicti commissi or active
nationality on the one hand and, on the other, prosecution by a different State, which need not
necessarily be that of passive nationality.
2.79. How then should the exercise of concurrent jurisdictions best be organized? We are
bound to observe here that general international law, addressing the issue in terms of the right or
power to exercise judicial jurisdiction and not of obligation, contains no rule necessarily or
automatically, for example, accordingpriority to the jurisdiction of the State where the offence was
129See above, paras. 2.7-2.14.
130P.C.I.J., Series A, No. 9, p. 19.
131See below, paras. 3.33-3.47.
53
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committed over that of another State whose actions satisfy the requirements imposed by positive
law.
In this sense it can be said that there is nothing in customary international law from which
there might be derived sorne "principle of subsidiarity" over and above the conditions already
described for the exercise of "universal jurisdiction".
2.80. In particular, one would seek in vain a solid basis in customary law for any form of rule
lending support for the adage primo dedere secundo prosequi. It is indeed notably because of this
lack of any rule governing relations between criminal jurisdictions exercised concurrently in
different countries that a dense network of bilateral or multilateral treaties has grown up governing
the conditions for extradition of an individual from one country to another. Moreover, the subject
of extradition is not governed sol ely by treaty law. It also derives from the combined effects of the
respective domestic laws of the States concerned132•
2.81. In international practice, at most all that can be said, in terms of fact rather than law, is
the following: the State where the offence has been committed or the State of the offender's
nationality is often, in practice, in a better position successfully to prosecute an individual whom it
has reason to suspect of having committed a serious offence of the type previously described. That
applies particularly to the gathering of evidence.
It is this question of ease of prosecution which exp lains why States other than the State of the
locus delicti or that of active nationality often prefer to extradite individuals apprehended on their
terri tory to one of those States rather than to prosecute them in their own courts.
There is, however, no obligation to do so; at least under customary law, that is to say, in the
absence of a treaty obligation, a State is perfectly entitled to refuse to extradite, without thereby
committing a wrongful act. The practice in this regard is extremely abundant. Thus the United
Kingdom, for example, frequently refuses, in the absence of an extradition treaty with a given
State, to accede to a request from the latter for the extradition of a specifie individual. Y et no one
has ever dreamt of characterizing such a practice as a breach of customary international law. It
would be for the Republic of the Congo to demonstrate the contrary as regards the current position
under international law; yet, in its Memorial, it does not even venture to tell us what customary
law has to say on the subject. Thus the only requirements governing a State's exercise of its
"universal jurisdiction" are those recalled above133•
In other words, in general international law we must not confuse the issue of the conditions
governing a prosecution based on "universal jurisdiction" with that of its subsidiarity.
2.82. A quite separate question, wrongly confused in the Congo's Memorial with the
preceding one, is the matter of whether and to what extent the non bis in idem rule applies in a
given situation. However, as we shall see later, in the second part of the present section, that
question is not one of priorities as between competing jurisdictions but concerns the principle of
substantive law whereby offenders cannot be tried twice for the same acts.
2.83. Remaining with the specifie examination of the question of the "subsidiarity" of
"universal jurisdiction", we must now tum to treaty law, and specifically to that constituted by the
132See inter alia G. Gilbert, Aspects of Extradition Law, Nijhoff, Dordrecht, 1991, XIII-282 p.; Y. Dinstein,
"Sorne Reflections on Extradition", German Yearbook of International Law, 1993, pp. 46-59.
133See above, same section, §3.
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New York Convention of 1984, in arder to ascertain whether, contrary to customary law, that
Convention attaches a condition of "subsidiarity" to the "universal jurisdiction" which it requires
States parties to establish in relation to that exercisable unconditionally by the State of the locus
delicti or the State of the offender's nationality.
54 B. "Subsidiarity" and the Convention against Torture
2.84. As regards the exercise of judicial jurisdictions, we have already seen above134 that the
provision establishing the key obligation is to be found in Article 5. That Article first provides that
each State party shall take the measures necessary to establish its jurisdiction in respect of acts of
torture committed in two categories of situation, which may be summarized as follows: (a) when
the offence is committed on its terri tory or in any area or means of transport under its jurisdiction;
(b) when the alleged off en der is its own national (or if it considers it appropria te, when the victim
of such acts is its national). This does not, however, mean that a State party does not have
jurisdiction in respect of offences committed outside its territory, or where the alleged offender is
not its national. In such cases, customary law continues to apply; and, as we have seen, it permits
prosecution subject to the conditions previously indicated.
Moreover there is a specifie provision in the Convention which obliges States parties to
establish the "universal jurisdiction" of their courts. Article 5 (2) merits particular attention in this
regard. That provision requires every State party to take
"such measures as may be necessary to establish its jurisdiction over such offences in
cases where the alleged offender is present and in any territory under its jurisdiction
and it does not extradite him ... "
2.85. In regard to Article 5 of the Convention against Torture, the Republic of the Congo
attempts to set up a legal argument. According to its Memorial, it is in that Article, and specifically
in its first paragraph, that we will find evidence of the "subsidiary" nature of "universal
jurisdiction" over the offences covered by the Convention. The Memorial expresses this as
follows:
"Subsidiary jurisdiction: the State in whose territory the offender is present
must extradite or prosecute him, but the States most directly concemed 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."135
55 2.86. The Applicant's Memorial impliedly refers to Article 7 of the Convention against
Torture. For it is that Article which defines the conditions for the exercise of the rule aut dedere
aut prosequi, which, as we know, is to be found in a number of conventions dealing with the
134See preceding section, § 1.
135Memorial of the Republic of the Congo, p. 33, para. 27.
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suppression of various offences affecting the interests common to ali States. A number of those
instruments, although not ali, concern the fight against various forms ofterrorism136•
It is unnecessary for us to involve ourselves here in an abstract reflection on the question
whether provision of a choice of alternatives by definition establishes parity between the two
alternatives or whether, in certain cases, it could be considered togo further and lay down an order
of priority. Certain considerations might doubtless suggest that sorne of the conventions providing
for such a régime were conceived with the implicit notion of conceding priority to the State of the
locus delicti or the State of active nationality.
2.87. However, in the present case we must focus our attention solely on the
1984 Convention against Torture, in the form resulting from the intention of its authors. The
intention of the parties thereto is ascertainable in particular from the authorized commentaries on
the Convention137, and still more so from its travaux préparatoires.
In respect of suspected perpetra tors of acts of torture detained on the terri tory of a Member
State other than that of their nationality, Article 7 restates the classic option: extradite or
prosecute 138•
Article 7 (1) must be read here in conjunction with Article 5 (2), which, as we have seen
above139, requires States parties to give their courts the necessary jurisdiction to prosecute acts of
torture in cases other than those cited in Article 5 (1) (territorial jurisdiction; active and, if deemed
appropriate, passive nationality).
56 2.88. It is the combination of these two provisions which makes the exercise of so-calied
"universal" jurisdiction possible, whilst there is nothing in any provision of the Convention to
indicate the latter's purported subsidiary character.
Article 7 also confirms, as was already indicated in Article 5 (3), that a State party which
exercises its criminal jurisdiction over an offender whom it has decided to prosecute shali do so
within the framework ofits own domestic criminallaw140•
As is shown by the very terms of Article 7 (1), this provision accords afreedom of choice as
between the two possibilities offered to the State on whose terri tory the suspected perpetrator of an
136See, inter alia, the Hague Convention of 16 December 1970 for the Suppression of Unlawful Seizure of
Aircraft, prepared under the auspices of the International Civil Aviation Organization; Montreal Convention of
23 September 1971 for the Suppression of Unlawful Acts Against the Safety of Civil Aviation; New York Convention of
14 December 1973 on the Prevention and Punishment of Crimes Against Diplomatie Agents; New York Convention of
17 December 1979 Against the Taking of Hostages; Vienna Convention of 3 March 1980 on the Physical Protection of
Nuclear Material; Montreal Protocol of24 February 1988 for the Suppression ofUnlawful Acts of Violence at Airports;
Rome Convention of 10 March 1988 for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation;
Protocol of 10 March 1988 conceming the Safety ofFixed Platforms located on the Continental Shelf.
137See, inter alia, the commentary to this effect by J. Hermann Burgers and H. Danielius, The United Nations
Convention against Torture -A Handbook on the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, Dordrecht/Boston/London, 1988, pp. 133 and 137; M. Henselin, Le principe de l'universalité
en droit pénal international - Droit et obligations pour les Etats de poursuivre et juger selon le principe de
l'universalité, Helbing & Lichtenhahn, Bâle/Genève/Munich, Bruylant, Bruxelles, 2000, p. 349.
138Regarding extradition, Article 8 automatically extends to any extradition treaty concluded by a State party to
the Convention against Torture the option established by the latter in Article 7.
139See above, para. 2.87.
140See in this regard the observation by Judges Higgins, Kooijmans and Buergenthal in paragraph 38 oftheir joint
separate opinion appended to the above-mentioned Judgment of 14 February 2002.
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act of torture has been found141 . The Article seeks to offer a true choice to the State concemed; it
does not dicta te an order of priorities but leaves the State free either to extradite or to prosecute as
it sees fit, having regard inter alia to the identity of the country requesting extradition and the status
of the suspected torturer, according to whether or not he is an agent of that State (and subject, of
course, to the special rules contained in any extradition treaties applicable between the two States).
2.89. Ifthere were any doubts asto this reading of Article 7, we would find confirmation of
its correctness in the travaux préparatoires. Thus it is apparent from these, to quote the words of
the report of the United Nations Commission on Human Rights at its Fortieth Session142, that:
"The two important elements of the draft convention were the system of
universal jurisdiction and the implementation system. The first was of value in
ensuring that persons who had practised torture could be prosecuted no matter where
they were. It was important that the international community should assume
responsibility for investigating claims of torture and initia ting proceedings."
57 Thus the overriding aim of the Convention is to ensure that crimes of torture, wherever they have
been committed, including in States not party to the Convention, do not go unpunished.
2.90. For this reason the drafters of the Convention wanted the State party on whose territory
the perpetrator of the crime of torture was arrested to have the possibility of refusing extradition.
That is in particular the case where extradition is requested by the State on whose territory the act
or acts of torture took place. If, in particular, it is apparent that the individual in question is an
agent of that State and has acted in that capacity when committing the acts of which he is accused,
extradition may appear inappropriate and may therefore be refused. The fear of the authors of the
Convention was that in such a case the judicial organs of the State requesting his repatriation would
have seant concem for proceeding with diligence against the agent of a policy often decided on or
tolerated at an upper level of its own govemment hierarchy. This is clear in particular from the
report of the Working Group on the draft 1984 Convention143 •
2.91. In any event, the idea of the State of the locus delicti or that of active nationality ( often
one and the same in practice, as is the case here) being given jurisdictional priority was expressly
rej ected in the prepara tory discussions.
Thus the delegations of Argentina and China, the former unequivocally, the latter in more
nuanced terms, had, at the session of 24 to 31 January 1983 of the Working Group set up by the
Human Rights Commission, expressed their opposition to the principle of so-called "universal
jurisdiction".
In an attempt to find a middle position between the two sides, those in favour of and those
against "universal jurisdiction", the Brazilian delegation had then proposed that the State on whose
terri tory the suspected offender had been arrested should be given jurisdiction only "if extradition
141Nothing in this provision, or indeed anywhere else in the Convention, refers to, suggests or implies, in the
event that a Contracting Party decides to prosecute a foreigner, any form of prior authorization by the latter' s State of
nationality, whether or not it is aState party. See docs. E/CN.4/1982/WG.2/WP.5 and E/CN.4/1983/63, pp. 6 and 7.
142E/CN./1984/SR.34, p. 17.
143Commission on Human Rights - 40th session E/CN.4/1984/63, p. 5, and E/CN.4/1984/72. V. Burgers and
Danelius, The UN Convention against torture: A Handbook on the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, op. cit. supra, p. 85. It shou1d be noted that China withdrew its
opposition to the principle of"universaljurisdiction" in 1984. See doc. E/CN.4/1983/63, pp. 6 and 7.
58
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[ was] not requested within 60 da ys by the categories of State cited in Article 5 (1) or if extradition
[ was] refused".
However this proposai was rejected. Thus we see confirmation that Article 7 of the
Convention does not make any exercise of "universal jurisdiction" subject to the failure of efforts
to extradite the offender to the State of the locus delicti or to that of his nationality. Between the
two terms, extradite or prosecute, there is a relationship of equality; the former does not take
priority over the latter. A fortiori, in the absence of any request for extradition, the Convention in
no way requires the State on whose territory the suspected offender is found to refrain from
initiating or pursuing a criminal prosecution simply because proceedings have been commenced, in
respect of the same facts, by the State of the locus delicti or by that of the suspect's nationality. In
other words, the Convention against Torture does not provide for the subsidiarity of "universal
jurisdiction".
2.92. Finally, the language of the Convention confirms that its au thors started from a premise
deriving from customary law: there is no need for the State of the locus delicti or that of the
nationality of the accused to be party to the Convention in order to enable the system established
by the latter to function. The participation of those States would have been necessary only on the
assumption that they have in principle sorne form of exclusive right to exercise their jurisdiction
over individuals suspected ofhaving committed the crime of torture. However, as we have already
shown, there is nothing in general international law to support this notion.
The ultimate aim of the régime established by the Convention, over and above that deriving
from customary law, is to ensure that all States parties will take the necessary measures to enable
what had been only a right of prosecution to be strengthened by a series of obligations, the
combined consequence of which will be to render more effective the punishment, by one or another
State party, of those who have committed acts of torture.
2.93. As regards the "subsidiarity" which it is often sought to attach to the exercise of
"universal jurisdiction", it canin any event be said that this has no basis either in customary law or
in the régime established by the 1984 Convention against Torture. In the former case, it is true that
the State of the locus delicti and that of active nationality (sometimes, that of passive nationality)
enjoy a practical advantage, deriving from the greater ease with which they will be able to conduct
judicial proceedings against the suspected torturer. In the latter case, it follows from the terms of
Article 7, read in conjunction with Article 5 (2), and confirmed by examination of the travaux
préparatoires, that the authors of the Convention did indeed intend to accord the State having
arrested the suspected offender the possibility of refusing to extradite him to his State of nationality
orto the State where the torture took place.
59 §2. The rule non bis in idem has no relevance in the present case
2.94. We shall show below that the rule must be considered in light both of public
international law and of the law of the country where it might potentially apply, in this case French
law.
A. The non bis in idem rule in public international law
2.95. As has already been pointed out, the Memorial of the Republic of the Congo, making
an error of law, confuses the purported "subsidiarity" of "universal jurisdiction" which it seeks to
find in the text of the Convention against Torture with the effect of the non bis in idem rule. This
confusion may be explicable by the fact that, at first sight, the alleged subsidiarity of such
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jurisdiction and the effect of this rule might appear to represent two means of establishing a prior
right of prosecution in favour either of the State of the locus delicti or of that of the offender's
nationality.
2.96. In reality, it is clear not only, as we saw above, that the alleged "subsidiarity" of such
jurisdiction is supported neither by customary law nor by the provisions of the Convention against
Torture, but that in any event the ratio legis of the two rules- even assuming that the former
exists - is totally different.
In the one case, it is sought to establish a procedural hierarchy as between the States
competent to prosecute.
In the other, that of the effect of the non bis in idem rule, it is sought to safeguard a personal
right, the beneficiary of which is the offender himself, as can be seen from paragraph 7 of
Article 14 of the International Covenant on Civil and Political Rights:
"No one shall be liable to be tried or punished again for an offence for which he
has already been finally convicted or acquitted in accordance with the law and penal
procedure of each country."
2.97. It follows from the terms in which the non bis in idem rule is stated in the United
Nations Covenant just cited that, in so far as it might be sought to derive a general principle from
that rule, as sorne have suggested in the literature, the fact would remain that its operation would
vary from one case to another according to the content of the applicable domestic legislation.
60 Moreover, it is not easy, precisely because of the variability in the conditions under which
the rule operates, to derive from it any general principle of law, stillless any general principle of
international criminallaw. While it is unnecessary to labour the point here, it should moreover be
noted, if only by way of guidance, that, while the rule is indeed included in the Statute of the
International Criminal Court in its Article 20, it does not figure among the "general principles of
criminallaw" set out in Articles 22 to 31.
2.98. We should therefore strictly confine ourselves to the terms of the rule as set out in
Article 14 (7) of the Covenant cited above, to which both the Republic of the Congo and France are
parties.
It can then be seen that the non bis in idem rule does not refer to the mere initiation of a
prosecution. On the contrary, it is conditional on the offender being "finally convicted or
acquitted" in a State. However, we know that in the present case no final verdict has been rendered
in respect of General Dabira, or indeed of any other person having participated in the same acts, by
any Congolese court.
Moreover, the United Nations Human Rights Committee has interpreted Article 14 (7) of the
International Covenant on Civil and Political Rights as applying to courts of the same State144• It
accordingly follows that, even if a final verdict were to be rendered in the trial of General Dabira in
the Republic of the Congo in respect of the same acts as those of which he is accused before a
French court, this would not bring into play the non bis in idem rule as it is understood in
international treaty law nor, a fortiori, on the basis of international customary law.
144Human Rights Committee, finding No. 204/1986 of2 November 1987.
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B. The non bis in idem rule in French law
2.99. The rule in question does indeed exist in French law. In fact, the latter goes well
beyond the requirements of international law, inasmuch as in certain cases it takes account of a
criminal verdict rendered by a foreign court. It can, however, operate only under very precise
conditions. In any event, the mere existence of proceedings commenced before the Brazzaville
Tribunal de première instance cannot have any effect on those conducted concurrently in France in
respect of the same acts. These various points will be addressed below.
61 2.100. First, French law accepts the operation of the rule, but under very precise conditions.
62
Thus the non bis in idem rule does not apply where the offences were committed on French
territory or are deemed to have been so committed. This follows from Articles 113-2 to 113-5 of
the Criminal Code. In this connection, the courts have had occasion to recall that no provision of
domestic law prevents the prosecution before the French courts of a person convicted abroad for an
offence committed on the territory of the French Republic145 . This principle applies where France
has active personality jurisdiction (French perpetrator in respect of offences committed abroad) or
passive personality jurisdiction (French victim of offences committed abroad), as can be seen from
Articles 113-6, 113-7 and 113-9 of the Criminal Code.
2.101. Moreover, Article 113-10 of the Criminal Code makes no reference to the non bis in
idem rule. The rule is not susceptible of application in cases of in rem jurisdiction ( offences
committed abroad affecting the nation's fundamental interests). France thus takes no account of
foreign judgments where its fundamental interests are at stake.
2.102. On the other hand, in the case of "universal jurisdiction", as contemplated in
Article 689 of the Code of Criminal Procedure, then, pursuant to Article 692 of that Code, the
res judicata authority of a foreign judgment does indeed preclude the commencement or pursuit of
criminal proceedings in France.
That might doubtless be the case at sorne indefini te time in the future in respect of the acts
subject to the current proceedings before the Meaux investigating judge.
2.103. In this regard, the conditions to be satisfied under French law are the following:
(a) first, as the Criminal Chamber of the Court of Cassation has recalled, on the basis of
Article 692 of the Code of Criminal Procedure as referred to above, decisions of foreign courts
only have the force of res judicata where they concem offences committed outside the terri tory
of the Republic146;
(b) further, the authority of the foreignjudgment may be relied on in the French courts only ifthe
acts prosecuted abroad are identical with those prosecuted in France;
(c) furthermore, as can be seen from a judgment of the Criminal Chamber of the Court of
Cassation of 17 October 1889147, the foreign decision must be a judgment. Mere proceedings
commenced abroad are not sufficient for proceedings in respect of the same acts to be
discontinued in France;
145Court of Cassation, Crimina1 Chamber, 17 Mar. 1999, Bull. crim., No. 44.
146Court of Cassation, Crimina1 Chamber, 3 Dec. 1998, Bull. crim. No. 331.
147Court of Cassation, Crimina1 Chamber, 17 Oct. 1889, Bull. crim. No. 312.
63
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(d) finally, it is generally agreed that the foreign judgment must be a final one. An old decision
had held that only foreign judgments of an adversarial nature could be regarded as final, and
that judgments rendered in absentia were excluded148 • In reality, the question whether a
judgment is final or not must be determined solely by reference to the legislation of the country
in which it was rendered149•
2.1 04. Further considerations, in addition to those just cited, govern the operation of the non
bis in idem rule. Although domestic law does not expressly say so, it is generally held in the
literature that the domestic court must ascertain that the foreign verdict emanates from a court
which was competent under international law. Thus, as long ago as 1928, Donnedieu de Vabre
stated in Les principes modernes du droit pénal international150:
"The task of the domestic court is not to determine whether, of the courts of the
foreign State, the one which rendered the judgment was competent to do so. That is a
question relating to the judicial organization of the foreign State and for decision by
that State alone. As regards the correctness of the foreign verdict in terms of form,
that is a matter to be assessed by the domestic court in accordance with the law of the
State where the verdict was rendered.
On the other hand, since the domestic court is guardian of the international
order, it must verify the general jurisdiction of the foreign court. It must assure itself
that such jurisdiction was properly founded, whether on the basis of the locus delicti,
of the nationality of the offender, or at least on the presence of the offender on the
terri tory. If none of those conditions is satisfied, the court, as far as its own position is
concerned, will deny any legal existence to the foreign judgment." [Translation by
the Registry.]
2.105. By way of conclusion to the present section, we are thus bound to note that
paragraphs 27 and 28 of the Memorial of the Republic of the Congo address in a superficial manner
two legally distinct questions which are wrongly treated as a single issue. Moreover, the Congo's
approach to these questions manifests a disregard for positive law, both international and domestic,
in relation both to the so-called issue of the "subsidiarity" of the exercise of"universaljurisdiction"
and to the operation of the non bis in idem rule. This latter might indeed one day become
applicable, not by virtue of international law, but on the exclusive basis of French domestic law.
That would at any rate be the case if the conditions laid down by domestic law, in particular in
regard to the finality of the judgment rendered abroad in respect of the same acts, were effectively
satisfied.
That is currently in no way the case. While it has yet to be ascertained that the proceedings
pending before the Brazzaville Tribunal de première instance indeed relate to the same acts as
those which are the subject of the proceedings initiated before the Meaux judge, it is in any event
clear that those proceedings have not yet resulted in any judgment and, a fortiori, in any final
judgment.
***
148Court of Cassation, Criminal Chamber, 21 Dec. 1861, Bull. crim. No. 282.
149See C. Lombois, Droit pénal international, Dalloz, 2nd edition, 1979, No. 398.
150Paris, Sirey, 1928, p. 316.
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2.106. It follows from all of the foregoing that:
(i) France, in exercising its jurisdiction in the proceedings which are the subject-matter of the
dispute submitted to the International Court of Justice, has acted in pursuance of the rights
and obligations deriving from the United Nations Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984, to which
the Republic of the Congo is also party;
(ii) the Republic of the Congo has no grounds for challenging the attitude of the French
judicial authorities on the basis of international treaty law;
(iii) nor can it find any justification for its action in general international law, which, in any
event, and indeed independently of the Convention, recognizes the right of France so to
act;
(iv) France, in exercising its jurisdiction in the proceedings which are the subject-matter of the
dispute submitted to the Court, has violated neither a purported principle of subsidiarity
nor the non bis in idem rule.
64
65
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CHAPTER3
THE ALLEGED VIOLATION OF THE JURISDICTIONAL IMMUNITIES OF
CERTAIN CONGOLESE OFFICIALS
3 .1. The second ground invoked by the Republic of the Congo in support of its Application
concems "the violation of the immunity of a foreign Head of State, as recognized by the
jurisprudence of the Court"151 . This ground is discussed in pages 35 to 39 of the Memorial.
3.2. The French Republic, however, queries the precise scope which the Applicant seeks to
accord to this ground: seemingly invoked solely in favour of the Congolese Head of State, it is
nevertheless also fleetingly raised in respect of the Minister of the Interior, who, according to the
Congo, should enjoy "an immunity similar to that accorded, for other reasons, to Ministers for
Foreign Affairs"152• In the interest of providing as thorough a response as possible to the
Applicant's arguments, France will thus first consider the scope of jurisdictional immunity from a
general point of view (Section 1) and then will show that there has been no violation of
Mr. Sassou Nguesso's immunity (Section 2).
Section 1 -The jurisdictional immunity which the Republic of the Congo is
entitled to claim does not have the scope which the Applicant ascribes to it
3.3. Under the Applicant's reasoning, the Meaux prosecutor's originating application of
23 January 2002153, although "against X", in reality applied to all the individuals mentioned in the
complaint filed by the International Federation for Human Rights on 5 and 7 December 2001 154,
since it "seised the investigatingjudge ofthe 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 tho se acts"155 . That is said to be
the case of the following:
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, lnspector-General of the Armed Forces; and
General Blaise Adoua, Commander of the Republican Guard, known as the Presidential Guard.
3 .4. In reality, of these four individuals only the Congo lese Head of State can claim the
immunity from jurisdiction invoked by the Applicant; more specifically, that immunity cannot
extend to the Minister of the Interior (§2). Moreover, the originating application against X has not
violated any immunities which the Congo would be entitled to claim (§1).
151 Application, p. 11.
152Application, p. 11 and Memorial, p. 35.
153Memorial, Ann. Vl-7.
154/bid., Anns VI-l and VI-2.
155Memorial, p. 24.
66
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§1. The prosecutor's originating application does not violate any immunity which the Congo
would be entitled to claim
3.5. According to the Congo, which does not challenge any other element of the procedure,
the prosecutor's originating application of 23 January 2002 "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. Al! subsequent breaches can be traced back to that
source. "156 The scope of the application should therefore be examined (A), with a view to
determining whether it is capable in any way of violating intemationally recognized
immunities (B).
A. The scope of the originating application of 23 January 2002
3.6. As the Applicant points out, Article 80 of the French Code of Criminal Procedure
provides that an originating application "is . . . the document by which the prosecutor initiates
criminal proceedings before the investigating judge"157• In light of the information available to
him, the prosecutor can choose to open a judicial investigation against a named or an unnamed
persan (in the latter case, the judicial investigation is said to be opened against "X").
3. 7. If the prosecutor feels that the information available to him justifies proceedings against
one or more suspects, he will choose to open a judicial investigation against a named persan. If, on
the other hand, he feels that the incriminating evidence is still insufficient to implicate anyone by
name, he will choose to open a judicial investigation against "X". As has been noted in the
literature: "in respect of the individuals against whom the prosecution is to be initiated, the
ministère public is not required to name them unless the information already gathered makes it
possible to identify them and hold them responsible for the acts in question"158 [translation by the
Registry]. In the present case, the above was the choice made by the prosecutor.
3.8. Moreover, that choice has no impact on the rights asserted by the Republic of the
Congo. The investigating judge, whether seised of an originating application against named
individuals or against X, is initially seised of facts. He is said to be seised in rem, and it is for him
to enquire into, i.e., investigate, the facts brought to his attention by the prosecutor: all of those
facts, but only those facts.
3.9. As eminent authorities have written: "[t]he prosecution is directed (and the investigating
judge is seised) in rem, not in personam. It is for the investigating judge to decide whether to place
under formai examination . . . any individual against whom there appears strong or concordant
evidence of participation in the acts of which the judge is seised."159 Moreover, he can "enquire
into all the facts of which he is seised (and do so in respect of any individual identified in the
investigation), but only those facts" 160• Thus, it is only when the initial investigation has been
completed that it becomes possible to determine the individual(s) who may be placed under formai
examination; it is only decisions to place a persan under formai examination and warrants (mandat
156Memorial, p. 12; original emphasis.
157/bid., p. 21.
158Gaston Stefani, Georges Levasseur and Bernard Bouloc, Procédure pénale, Dalloz, 18th ed., 2001, p. 547,
para. 622.
159/bid., p. 547, para. 622; italics original; see also p. 575, para. 651.
160/bid., p. 575, para. 651; emphasis added.
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67 d'amener [warrant for immediate presentation], mandat de dépôt [committal warrant], mandat
d'arrêt [arrest warrant] and mandat de comparution [or der to appear]) issued in the course of the
investigation which must specify the identity of the person against whom they are issued161 and
thus implicate a given individual. The power to place someone under formai investigation "mise
en examen" (which procedure has replaced the former "inculpation" so as better to safeguard the
presumption of innocence162) is, in a manner of speaking, a power unique to the investigating
judge163• It should further be noted that, even in that case, the person under examination is
"presumed innocent"164•
68
3.10. This rule that sei sin is exclusively in rem applies whenever the acts were committed on
national terri tory or whenever the investigating judge seeks to implicate a French national. In these
two situations the judge can place under examination any individual against whom there is strong
or concordant evidence raising a likelihood that he could have participated, as perpetrator or
accomplice, in the commission of the offences of which the judge is seised (Article 80-1 of the
Code of Criminal Procedure). On the other hand, even where the judge has jurisdiction in respect
of the acts, his seisin has to be supplemented in respect of the persons subject to investigation
whenever the facts to be dealt with by the investigating judge involve an issue of "universal
jurisdiction". Thus, pursuant to Articles 689-1 and 689-2 of the Code of Criminal Procedure,
French courts do not have jurisdiction over acts of torture and other cruel, inhuman or degrading
treatment or punishment, within the meaning of the New York Convention of 10 December 1984,
committed abroad, by and against aliens, unless the implicated individual is present on French
terri tory.
3 .11. Renee the investigating judge has jurisdiction, pursuant to "universal jurisdiction", to
conduct an investigation against a foreign national only if two conditions are met: first, he is seised
of acts allegedly committed by the party in question and, second, in the case where the individual
only came to France after the date of the originating application, the public prosecutor's office has
issued a supplemental application authorizing the judge to investi gate the person in question, just as
under the procedure provided for in Articles 80 and 82 of the Code of Criminal Procedure when the
investigating judge discovers new facts not falling within the scope of his original remit.
3.12. It is thus apparent that, except for General Dabira, who was in France at the time of the
originating application, any suspicion of involvement, developed as a result of the investigation
carried out by the investigating judge, against any other Congo lese national who happened to be in
French territory could not result in the investigating judge placing that person under examination
unless the Meaux prosecutor issued the judge with a supplemental application.
3.13. If, in the course of the investigation, which, unlike the case in other legal systems, is
carried out to establish "innocence as well as guilt"165, the investigatingjudge discovers a bar to the
continuation of the procedure against an individual, in particular ajurisdictional immunity enjoyed
161See Articles 113-8, 116 and 123 of the Code ofCriminal Procedure.
162Article 116 of the Code ofCriminal Procedure.
163See Article 176 of the Code of Criminal Procedure: "The investigating judge considers whether there exist
against the persan under judicial examination charges constituting an offence, the legal characterization ofwhich is to be
determined by the investigating judge."
164See Article 137 of the Code ofCriminal Procedure.
165 Article 81 of the Code of Criminal Procedure: "The investigating judge undertakes, in accordance with the
law, any investigative step he deems useful for the discovery of the truth. He seeks out evidence of innocence as weil as
guilt."
69
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by that individual, he is required ta make a finding ta that effect in a reasoned order166• Further,
where a supplemental application naming an individual is required167, the prosecutor cannat issue
any such application against an individual enjoying an immunity, since there would be a legal bar
preventing the continuation of the investigation, within the meaning of Article 86 of the Code of
Criminal Procedure, which authorizes a prosecutor not ta initia te a judicial investigation whenever,
for reasons affecting the prosecution, the facts of the case cannat lawfully give rise ta a prosecution
(he then makes submissions that no investigation should be opened).
3.14. Moreover, all procedural acts adopted in the course of the investigation are open ta
appeal and can be annulled in whole or in part168•
3.15. It is clear from the foregoing that the originating application of the Meaux prosecutor:
cannat cause harm or prejudice ta anyone, because, like any such application, it seises the
investigating judge in rem, not in personam, of facts on the basis of which an investigation may
be opened and in no sense represents a charge against individuals (even when they are
expressly named therein, which, moreover, is not the case here);
having been issued against X, implicates no one and cannat prejudice the legal interests of any
persan, including, and this is self-evident, those of the Republic of the Congo;
does not prejudice individuals who might la ter be prosecuted- a matter for determination by
the investigating judge in the course of his investigations, and which will require a
supplemental application in the event that it should prove necessary ta proceed against named
individuals on the basis of "universal jurisdiction" who were not present in France at the time
of the originating application.
Furthermore, it is only if during the investigation the judge discovers a bar ta the
continuation of the proceedings (notably, an immunity) in respect of an individual that he must sa
state in a reasoned arder.
B. The scope of the immunities invoked by the Congo in regard to the originating
application of 23 January 2002
3 .16. In an attempt ta escape the consequences of these facts, the Congo puts forward the
following arguments:
1. the reference in the originating application ta the documents appended thereto is deemed ta
take account oftheir contents, whose terms accordingly determine the subject-matter and scope
of the case referred ta the investigatingjudge169;
2. once the investigating judge has been seised, seisin is irrevocable and, unless the prosecutor
uses the appropriate remedies ta correct any error, he cannat subsequently restrict the scope of
his seisin170• '
trial.
166Article 81 ofthe Code ofCriminal Procedure, p. 576, para. 652.
167See para. 3.11, supra.
168See Article 174 of the Code of Criminal Procedure; see also Article 182, providing for partial committals for
169Memorial, p. 22.
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3. the prosecutor is under an obligation not to seek to initiate a judicial investigation if certain of
the named individuals enjoy immunity171 ; and
4. persons named in a complaint should be regarded as subjects of the judicial investigation and
can be heard as legally represented witnesses, which places them under suspicion of having
participated in the offences concemed172.
70 3.17. Aside from the fact that it rests on certain technical misconceptions- or on
71
transparent "artifices" of presentation- this line of argument is vitiated by two fundamental
mistakes in reasoning.
3 .18. First, the Republic of the Congo' s en tire argument is underpinned by a mistaken
assumption: that the application by the Meaux prosecutor charged the investigating judge with
investigating the conduct of particular individuals. Y et, as explained above (A), in cases of
"universal jurisdiction", the two elements of the judge's jurisdiction, seisin in rem and seisin
in personam, must be combined.
3.19. The investigating judge is first seised of facts, and those facts delimit the scope of his
jurisdiction. Further, he was only entitled to find himself competent in respect of General Dabira,
because General Dabira was present within the Meaux judicial district at the time the criminal
proceedings were initiated by the prosecutor, and that is the only circumstance in which a
prosecution may be conducted against foreign nationals pursuant to "universal jurisdiction".
3.20. By contrast, as pointed out above173 , the investigating judge cannot investigate any
other Congolese national unless two conditions are met: the Congolese individual is present on
national territory and the investigating judge has obtained from the Meaux prosecutor a
supplemental application expressly naming the new individual implicated. lt cannot be said that
the inclusion of names in the ordinary complaint initially filed, which concemed individuals not
present on national territory, is sufficient to confer jurisdiction on the investigating judge to
investigate those persons. In the absence of a supplemental application, the investi ga ting judge is
without jurisdiction over them.
3.21. Secondly, the Republic of the Congo's reasoning misses a crucial legal point. The
Applicant would appear to claim that individuals named in a complaint can give statements only in
the capacity of persons under examination or of legally represented witnesses. It deduces
therefrom that the scope of the sei sin of the investigating judge is unlimited and viola tes the rules
on immunities174• However, while it is true Article 113-2 of the Code of Criminal Procedure does
pro vide that a person named in an ordinary complaint can be heard as a legally represented witness
and that, when appearing before the investigating judge, that person must be heard in that capacity
if he so requests, the Congo overlooks a necessary precondition: the se provisions apply only if the
investi ga ting judge has jurisdiction to investigate the person implicated. Further, even when seised
of a supplemental application against a named individual, the investigating judge remains free, in
light of the information in the case file, to choose to place that person under examination or to
170Memorial, p. 23.
171/bid., p. 22.
172/bid., pp. 23-24.
173Paras. 3.10-3.12.
174Memorial, p. 24, para. 19.
72
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allow him the bene fit of the safeguards in respect of defence rights afforded by the status of le gall y
represented witness.
3.22. Moreover, it is legally incorrect to maintain, as the Congo does175, that the prosecutor
was not entitled to open ajudicial investigation since one of the individuals named in the complaint
could claim an immunity recognized both by international custom and by French domestic law.
True, the complaint named President Sassou Nguesso, but the Meaux prosecutor did not open a
judicial investigation against him- an act which could have been open to challenge not only
under the rules of territorial connection in respect of "universal jurisdiction" but also under those
conceming immunity. On the other hand, there was no legal bar to the bringing of criminal
proceedings against the only foreigner who was both named in the complaint and present on
national terri tory at the time the judicial investigation was initiated- General Dabira; hence, there
was nothing to prevent the prosecutor from deciding to initiate criminal proceedings on
22 January 2002.
3.23. It should be stressed that the investigatingjudge never opened an investigation against
President Sassou Nguesso, which, according to the Republic of the Congo's mistaken reasoning, he
could have done176• That reasoning would lead to wholly unacceptable results. If it were to be
followed, then it would suffice for a complaint to name, among many others, one person covered
by immunity in order for any investigation to become barred. The result would be a kind of
"immunity by contagion": all persons implicated in an unlawful act in which one individual
enjoying immunity might have taken part would then find themselves shielded from any
investigation or prosecution. That, assuredly, cannot be the law.
3.24. True, the prosecutor is not required to follow up on a complaint (if it is not
accompanied by a civil-party application), but he must ensure enforcement of the criminallaw177
and he certainly cannot refrain from initiating criminal proceedings for the sole reason that certain
individuals named in the complaint cannot be prosecuted because of their immunity.
3.25. As Sir Arthur Watts has written,
"the grant of immunity to a head of State [does not] necessarily mean that the
proceedings may not go ahead; it means simply that they may not continue as regards
that particular defendant, who is not subject to the jurisdiction of the forum State's
courts. If there are other defendants, it will be a separa te question whether there is any
bar to the continuation of the proceedings against them."178
3.26. In light of those observations, and in order to reply more specifically to the Congo's
argument179, it should be noted that:
(1) While it is true that the reference in the originating application to the documents appended
thereto may have the effect of determining the subject-matter and scope of the investigating
175Memorial, p. 24, para. 19.
116/bid., p. 24, para. 19.
177See Articles 31 and 35 of the Code ofCriminal Procedure.
178Sir Arthur Watts, "The Legal Position in International Law of Heads of States, Heads of Govemments and
Foreign Ministers", RCADI 1994-III, Vol. 247, p. 54.
179See para. 16, above.
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judge's in rem seisin, this element applies only to the acts in question and, in cases of
"universal jurisdiction", requires supplementation as regards the criterion of territorial
connection.
(2) While it is true that the investigating judge's selSln under an ongmating application is
irrevocable, that in no sense presupposes his "universal jurisdiction" in the case of any foreign
nationals implicated.
(3) On the other hand, it is legally incorrect to contend that the prosecutor was not entitled to
73 initiate a judicial investigation because certain of the individuals named in the complaint
enjoyed immunity. As long as at least one individual who might be prosecuted was present on
national territory and enjoyed no immunity, the prosecutor was entitled to initiate a judicial
investigation.
(4) Nor is it correct to contend that individuals named in a complaint should or could be regarded
as suspected of having participated in the offences in question because they could be heard as
legally represented witnesses. They could only be heard in that capacity if the investigating
judge had jurisdiction in relation to them.
3.27. The Congo is mistaken in this regard in suggesting that the possibility ofbeing heard as
a legally represented witness could violate potential immunities. Thus the Court has consistently
held that it rules on facts, not on possibilities: "the function of the Court is to state the law, but it
may pronounce judgments only in connection with concrete cases where there exists at the time of
the adjudication an actual controversy involving a conflict oflegal interests between the parties"180•
That sensible approach applies particularly in the present case, given, as France has already pointed
out above, that, if in the course of his investigation the investigating judge considered that he
needed to enquire into acts attributable to foreign nationals who were not present on French
territory at the time when the originating application was issued, he would have to obtain a
supplemental application against a named individual, which the prosecutor could not issue if the
individual in question enjoyed immunities or was not present on French territory. He could also
decide proprio mo tu not to investigate by reason of the immunities in question.
3.28. It should be noted that the possibility raised by the applicant State has not materialized:
from the time when the Congo submitted its Application to the International Court of Justice up to
the date of the present Counter-Memorial, only General Dabira has been heard as a legally
represented witness. However, as France will subsequently demonstrate (§2), he enjoys no
7 4 immunity for purposes of the present case. As regards the only individual on behalf of whom the
Congo could claim jurisdictional immunity, President Sassou Nguesso, not only has no step of this
kind been taken, but the proceedings conducted by the investigating judges show clearly that they
are fully aware that the immunity enjoyed by him in principle protects him against any such
measure181 •
3.29. The position taken by the Republic of the Congo is moreover both contradictory and
paradoxical. According to the Applicant, the mere fact that their names have been mentioned in a
complaint referred to in the originating application places such individuals "under suspicion of
180ICJ, Judgment of 2 December 1963, Northern Cameroons, I.C.J. Reports 1963, pp. 33-34; see also separate
opinion of Sir Gerald Fitzmaurice, ibid., p. 99; PCIJ, Judgment of 13 September 1928, Factory at Chorz6w (Claim for
Indemnity- Merits), Series A, No. 17, p. 57; ICJ, Judgment of20 December 1974, Nuclear Tests, I.C.J. Reports 1974,
p. 272, para. 59, and p. 477, para. 62; Judgment of 25 December 1997, Gabcikovo-Nagymaros Project, l.C.J. Reports
1997, pp. 41-45, paras. 53-56; Judgment of6 November 2003, Oil Platforms, para. 93.
181See below, paras. 3.55-3.56 and 3.66-3.73.
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having participated in the offences concemed"182• Not only is this not correct- such "suspicion"
cannot arise un til the matter has been investigated- but the Congo' s argument would lead to the
following results:
refusai by the prosecutor to issue an originating application would in itself demonstrate his
belief that the individual or individuals protected by immunity had committed the acts
complained of;
by the same token, his refusai would lend credibility to the complaint, even before any
credible, neutral or objective judicial investigation has been conducted.
3.30. Moreover, the Applicant's thesis is further weakened inasmuch as it misconstrues the
scope of the immunities accorded by international law. As the Court emphasized in its Judgment
of 14 February 2002:
"the immunity from jurisdiction enjoyed by incumbent Ministers for Foreign Affairs
does not mean that they enjoy impunity in respect of any crimes they might have
committed, irrespective of their gravity. Immunity from criminal jurisdiction and
individual criminal responsibility are quite separate concepts. While jurisdictional
immunity is procedural in nature, criminal responsibility is a question of substantive
law. Jurisdictional immunity may well bar prosecution for a certain period or for
certain offences; it cannot exonerate the person to whom it applies from all criminal
responsibility. "183
75 Although the Court strictly confined the scope of its Judgment to the particular case before it184, the
above passage is applicable to all immunities, irrespective of the persons entitled to rely thereon.
3.31. It follows that immunity enjoyed by an individual vested with official functions
undoubtedly protects him from prosecution, but not from "suspicion": if such a suspicion is
justified, that person may, subject to the conditions imposed by intemationallaw185, be called upon
to answer for his actions.
3.32. At all events, as France has shown, the originating application of 23 January 2002
could not, and did not, engender any form of suspicion against any person whatever. A fortiori, it
does not represent an act of prosecution or indictment. It could not, and did not, violate any
immunity on which the Congo might be entitled to rely.
§2. Only the Congolese Head of State is covered by jurisdictional immunity
3.33. The Congo contends that the disputed criminal proceedings concem four persons, since
these are specifically named in the complaint which is the basis for the originating application by
the Meaux prosecutor of 23 January 2003. As has been recalled above186, they are the President of
the Republic, Mr. Sassou Nguesso, the Minister of the Interior, General Oba, the Inspector-General
182Memorial, p. 23.
183Para. 60.
184See paragraph 51 of the Judgment: "For the purposes of the present case, it is only the immunity from criminal
jurisdiction and the inviolability of an incumbent Minister for Foreign Affairs that faU for the Court to consider."
185See ibid., para. 61; see also below, paras. 3.43-3.47.
186See para. 3.3.
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of the Armed Forces, General Norbert Dabira, and the Commander of the Republican Guard,
General Blaise Adoua.
3.34. Apart from the fact that the mention ofthese individuals by name does not amount to
proceedings against them187 and that, of the four, only General Dabira has been the subject of
procedural measures directed at him personally, it should be noted that, in the legal part of its
argument, the Congo makes no mention either of General Adoua or of General Dabira. The fact is
that, as regards the issue of immunities, these two individuals are in the same position as
76 General Oba, of whom the Applicant observes simply that, "in respect of acts falling within the
scope of his duties to maintain public order, [he] should enjoy an immunity analogous to that
accorded, for other reasons, to Ministers for Foreign Affairs"188 . The same argument may thus be
applied to all three ofthese individuals (A).
77
3.35. By contrast, the rules applicable to them differ from those applying to
Mr. Sassou Nguesso, President of the Congolese Republic, who, by virtue ofthat office, is entitled
to the immunity accorded to foreign heads of State (B).
A. The Congo cannot claim any immunity on behalf of Generais Adoua, Dabira and Oba
3.36. Notwithstanding the elliptical nature of the Congo's argument regarding the immunity
to be accorded to a Minister of the Interior, which consists of a single short paragraph189 and is
linked to that regarding universal jurisdiction, it would seem that it impliedly relies on the Court's
reasoning in the case concerning the Arrest Warrant of Il April 2000, which resulted in the
Judgment of 14 February 2002.
3.37. According to that decision:
"In customary international law, the immunities accorded to Ministers for
Foreign Affairs are not granted for their persona! benefit, but to ensure the effective
performance of their functions on behalf of their respective States. In order to
determine the extent of these immunities, the Court must therefore first consider the
nature of the functions exercised by a Minister for Foreign Affairs."
Having laid down this general principle, the Court then sets out in detail the very specifie functions
of a Minister for Foreign Affairs:
"He or she is in charge of his or her Government' s diplomatie activities and
generally acts as its representative in international negotiations and intergovernmental
meetings. Ambassadors and other diplomatie agents carry out their duties under his or
her authority. His or her acts may bind the State represented, and there is a
presumption that a Minister for Foreign Affairs, simply by virtue of that office, has
full powers to act on behalf of the State (see, for example, Article 7, paragraph 2 (a),
of the 1969 Vienna Convention on the Law ofTreaties). In the performance ofthese
functions, he or she is frequently required to travel internationally, and thus must be in
a position freely to do so whenever the need should arise. He or she must also be in
constant communication with the Government, and with its diplomatie missions
around the world, and be capable at any time of communicating with representatives
187See § 1 above.
188Memorial, p. 35.
189Reproduced above, para. 3.34.
78
-54-
of other States. The Court further observes that a Minister for Foreign Affairs,
responsible for the conduct of his or her State' s relations with all other States,
occupies a position such that, like the Head of State or the Head of Government, he or
she is recognized under international law as representative of the State solely by virtue
of his or her office. He or she does not have to present letters of credence: to the
contrary, it is generally the Minister who determines the authority to be conferred
upon diplomatie agents and countersigns their letters of credence. Finally, it is to the
Minister for Foreign Affairs that chargés d'affaires are accredited."
It is these considerations, quite exclusively based on the specifie functions of a Minister for Foreign
Affairs, which lead the Court to conclude:
"that the functions of a Minister for Foreign Affairs are such that, throughout the
duration of his or her office, he or she when abroad enjoys full immunity from
criminal jurisdiction and inviolability. That immunity and that inviolability protect the
individual concerned against any act of authority of another State which would hinder
him or herin the performance of his or her duties."190
3.38. These considerations are not transposable to a Minister of the Interior, nor to a Head of
the Republican Guard, nor to an Inspector-General of the Armed Forces. Just as in the case of
Ministers of Education, these individuals' duties do not in volve "frequent foreign travel"191 • None
of these persons is in princip le called upon to represent the Congo lese State abroad; nor is any of
them vested, by virtue of his office, with a power to enter into international treaties, or with any
form of dispensation from the obligation to produce full powers in the context of international
negotiations.
3.39. It is certainly not impossible that one or other of them might take part in a special
diplomatie mission, or even lead it- although, given the nature of their duties, there is little
likelihood of such a situation often arising; nor indeed does the Congo contend as much.
However, in such circumstances those concerned would in any event enjoy the benefit of the
provisions of Article 1, paragraph 2, of the New York Convention on Special Missions of
8 December 1969, to which neither the Congo nor France are parties, but which nonetheless
reflects customary law in the matter192• Under that provision:
"The Head of the Government, the Minister for Foreign Affairs and other
persons of higher rank, when they take part in a special mission of the sending State,
shall enjoy in the receiving State or in a third State, in addition to what is granted by
the present convention, the facilities, privileges and immunities accorded by
international law."
3.40. France in no way disputes the fact that those immunities could be relied on against it in
the event that any of the three individuals concerned were to take part in a special mission. In that
case, but in that case only, they would be entitled to the benefit of the immunities attaching to the
status of a person representing the State. But that is an exceptional situation, and it is not claimed,
either in the Congo's Application or in its Memorial, that it cornes within the scope of the present
190Ibid., paras. 53 and 54.
191See ICJ, Order of 8 December 2000, Arrest Warrant of 11 April2000 (Request for the Indication of
Provisional Measures), I.C.J. Reports 2000, p. 201, para. 72.
192See Sir Arthur Watts, "The Legal Position in International Law ofHeads of States, Heads ofGovemments and
Foreign Ministers", RCADI, 1994-III, Vol. 247, p. 38.
79
-55-
proceedings. Thus, unlike the Democratie Republic of the Congo in the Arrest Warrant case193 , the
Applicant in the present case does not claim that the disputed criminal proceedings in any way
hinder the Congo's diplomacy or the conduct ofits international relations.
3.41. On the contrary, the applicant State argues expressly that those proceedings, at least in
so far as they are directed against the Minister of the Interior, affect "the maintenance of public
order" in the Congo194• That is what rnakes this case totally different from the case which resulted
in the 2002 Judgment: there, what was at issue was an arrest warrant whose mere threat of
execution abroad compromised the exercise by the Minister for Foreign Affairs of the DRC of his
international functions; here, we are dealing with an originating application against "X", and it is
impossible to see how that could affect the exercise by the Congo' s Interior Minister of his duties
in regard to the maintenance of public arder, which, by definition, can only be performed on
Congolese terri tory and not beyond its borders.
3.42. Mutatis mutandis, the same reasoning can be applied to General Adoua, Head of the
Republican Guard, and to General Dabira, Inspector-General of the Armed Forces, and it is indeed
not disputed that, in the case of the latter, as a result of his temporary presence in France ( outside
the context of any official mission), placement under judicial examination has been announced and
an arrest warrant has been issued. However, there can be no legal objection to such acts, since
there is no immunity attaching to his office on which the individual concerned might rely.
B. The Congo is entitled to claim jurisdictional immunity on behalf of the Head of State
3.43. As the Agent of the French Republic stated at the hearings on the Congo's request for
the indication of a provisional measure:
"In conformity with international law, French law embodies the principle of
immunity of foreign Heads of State . . . There are no written rules deriving from any
legislation relating to the immunities of States and their representatives. It is the
jurisprudence of the French courts which, referring to customary international law and
applying it directly, have asserted clearly and forcefully the principle of those
immunities."195
3.44. The Court took note of these statements in its Order of 17 June 2003196, while the
Congo itself noted in its Memorial that, "[g]iven that the French Republic, speaking through its
Agent, has stated that French law fully recognizes the princip le of immunity for foreign Heads of
State, this pointis undisputed"197•
3.45. Unless it were to be found that this principle, which is fully accepted by France, had
been breached- which is not the case198 - there is thus no dispute on this point between the
193See the above-mentioned Judgment of 14 February 2002, paras. 63-64.
194Memoria1, p. 34.
195CR 2003/21, 28 April2003, p. 15, para. 32; see also Professor Allain Pellet's speech: "One thing must be
clear at the outset: France in no way denies that President Sassou Nguesso enjoys, as a foreign Head of State,
'immunities fromjurisdiction, both civil and criminal'." (Ibid., p. 24, para. 13.)
196Para. 13.
197Memorial, p. 35.
198See Section 2 below.
80
81
-56-
Parties: unlike Generais Adoua, Dabira and Oba, Mr. Sassou Nguesso is entitled by virtue of his
high office to an immunity from criminal jurisdiction which, in the absence of any treaty to the
contrary, is an absolute one.
3.46. The Criminal Chamber of the Court of Cassation recently applied the "principle of
immunity from jurisdiction for incumbent foreign Heads of State" in its judgment of
13 March 2001. In that decision, the highest French judicial body recalled that "international
custom prohibits the prosecution of incumbent Heads of State, in the absence of any contrary
international provision binding on the parties, bef ore the criminal courts of a foreign State"199• This
princip le, which was applicable to the Lib yan Head of State - subj ect of the 2001 judgmentclearly
applies equally to the President of the Republic of the Congo.
3.4 7. As the Agent of the French Republic emphasized to the Court:
"this decision makes it perfectly clear that the French courts apply international
custom and, in particular, the customary principle which confers immunity from
jurisdiction and enforcement on foreign Heads of State. lt is important to remember
that the French Court of Cassation applied this customary principle even before your
own Court made its solemn decision on the issue in the Judgment which it delivered
on 14 February 2002 in the Arrest Warrant case, since the reasoning adopted by your
Court in that case in connection with a Minister for Foreign Affairs applies a fortiori
to a Head of State. It is therefore quite clear that the French courts, which have
already recognized the princip le of the immunity of foreign Heads of State, will apply
it all the more firmly in the future for its having been forcefully reasserted by the
International Court."200
Section 2- There bas been no violation ofMr. Sassou Nguesso's immunity
3.48. Notwithstanding a passing reference to the immunity allegedly enjoyed by
General Oba201 , the Congo's second ground, based on an alleged violation of the immunity of a
foreign Head of State, concerns only Mr. Sassou Nguesso, President of the Republic of the
Congo202•
3.49. Already in its Application, the applicant State relied on this ground, in support of
which it principally invoked the Judgment rendered by the Court in 2002 in the Arrest Warrant
case203 • By contrast, the Congo lese Memorial no longer cites the jurisprudence of the International
Court of Justice, relying exclusively on two judgments of the French Court of Cassation, that of
13 March 2001 concerning the jurisdictional immunity of the Libyan Head of State204 and the other
of 10 October of the same year regarding the consequences of the immunity enjoyed by the
President of the French Republic205 • This changed approach is doubtless explicable by the fact that
199Court of Cassation, Criminal Chamber, S.O.S. Attentats et B. Castelnau d'Essenault (hereinafter, the "Qaddafi
case"), Bull. No. 64, p. 218- Annex V to the Memorial; see also submissions of Advocate-General Launay, reproduced
inAnnex V.
20°CR 2003/21, p. 16, para. 33.
201See above, para. 3.34.
202/bid., pp. 35-39.
203 Application, pp. 7-8.
204See footnote 199 above.
205Court of Cassation, Joint Chambers, Bull. No. 206, p. 660.
82
-57-
the Republic of the Congo realized that there was no difference of views between the Parties in
regard to the applicability of the principle of jurisdictional immunity of foreign Heads of State.
"On the other hand", as the Congo has rightly said, "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"206•
3.50. This ground consists of two limbs. First, the applicant State contends that
Mr. Sassou Nguesso's immunity has been violated as a result of the opening of an investigation
against X following a complaint in which he is identified by name (§ 1). Secondly, the
investigating judges are said to have "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"(§2).
§1. The originating application of the Meaux prosecutor does not violate the jurisdictional
immunity of the President of the Republic of the Congo
3.51. There would appear to be little point in devoting lengthy arguments to the first limb of
the ground. As France has already shown207, an originating application is not in itself capable of
violating anybody's immunity. In an attempt to demonstrate the contrary, the Congo puts forward
two arguments.
3.52. First, it contends that an originating application cannat be issued against persans
unknown where a Head of State has been named in a complaint included among the documents
appended to that application, because "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"208 • Over
and above the general objections to such an argumenf09, it is particularly misconceived in the case
of a foreign Head of State, whom French law protects against any risk of being required to give
evidence in any form of proceeding.
3.53. Thus the first paragraph of Article 656 of the French Code of Criminal Procedure
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." [Translation by the Registry]
3.54. Subject to the applicability of this provision- which France will demonstrate more
specifically below210 - it is thus apparent that all representatives of a foreign State (including in
particular the Head of State) are subject to a régime which derogates from the general law. It
accordingly does not provide an argument which would support the Congolese position: even
accepting that the mere fact of being entitled to demand to be heard as a le gall y represented witness
206Memorial, p. 36.
207 Section 1, § 1.
208Memorial, p. 36.
209See above, paras. 3.27 to 3.32.
210Paras. 3.64-3.71.
83
-58-
renders the individual concemed in sorne way "suspect" - which France formally denies211 -
there can be no question of that in the present case and no formai measure of investigation has been
adopted which might suggest the contrary: in seeking to secure testimony from
Mr. Sassou Nguesso, the investigating judges acted under Article 656 of the Code of Criminal
Procedure and not under Article 113-2. In so doing, the investigatingjudges, far from violating the
jurisdictional immunity of the Head of the Congolese State, on the contrary demonstrated their
belief that he was entitled to the bene fit thereof.
3.55. The second limb of the Applicant's argument is equally unfounded. According to the
Congo, the prohibition on issuing the disputed originating application followed "implicitly, but
necessarily," from the leading decision by the Criminal Chamber of the Court of Cassation in the
Qaddafi case212 . The Congo observes:
"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 le gall y represented
witness. "213
3.56. On this latter point, it should be noted that the Congo is mistaken: contrary to what it
wrongly contends, there is no question here, any more than there was in the Qaddafi case, either of
placing the Head of State in question under judicial examination or of hearing him as a legally
represented witness- simply because that is not possible under French law214•
3.57. Moreover, and above all, the Congo's argument on this point however adroitly
presented, cannot obscure the great differences between the facts in the Qaddafi case and those in
the present proceedings. It should be noted in particular that the civil-party complaint in the
Qaddafi case was directed exclusively at the Libyan Head of State215 ; since there was no doubt as
to the principle of the latter's immunity, the only uncertainty was as to whether one of the
exceptions to the principle of immunity was applicable; the Court of Cassation answered this
question in the negative216 • The circumstances of the present case are totally different: in the first
place, the complaint did not include a civil-party application; secondly, it also named persons other
than the Congolese Head of State, a fact with important implications217•
3.58. Thus, contrary to what the Republic of the Congo contends, the above judgment cannot
"be interpreted as meaning that, in itself, the existence of a complaint (whether or not accompanied
211See above, ibid.
212Memorial, p. 36.
213/bid., p. 37.
214See above, paras. 3.52 and 3.53.
215See the submissions, as previously referred to (footnote 199), of Advocate-General Launay, set out in
Annex V.
216See the above-mentioned judgment, ibid.
217See above, paras. 3.22-3.24.
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by a civil-party application) naming a foreign Head of State bars the prosecutor from requesting the
opening of an investigation, even against persans unknown"218 • At most, it shows that, where a
complaint is directed exclusively at a foreign Head of State, the prosecutor' s decision not to seek to
initia te an investigation cannot be challenged in law- at least in so far as there is no exception to
the jurisdictional immunity of the Head of State in question which might be invoked.
84 3.59. In the present case, the situation is the reverse ofthat in the Qaddafi case: this is not a
case of the prosecutor having refused to seek to initiate proceedings naming a foreign Head of
State, but of having decided to issue an application against persans unknown; the initial complaint
(without any civil-party application) names Mr. Sassou Nguesso only as one among other
individuals, who, for their part, enjoy no jurisdictional immunity.
§2. Inviting the President of the Republic of the Congo to testify did not represent a violation
of his jurisdictional immunity
3.60. According to the Congo, "the investigating judge would be barred from taking
testimony from the [Congolese] Head of State as a legally represented witness"219• That is beyond
dispute. But it is in no sense the point at issue here: Mr. Sassou Nguesso was not heard as a
legally represented witness; it was not contemplated that he would be, and he could not be, since,
under Article 656 of the Code of Criminal Procedure, representatives of a foreign power can only
be invited to make a written deposition and are under no duty whatever to accede to such a request.
3.61. For the same reason, the proposition that recourse to the Article 656 procedure "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"220 is totally
unfounded. Representatives of foreign powers fall within a completely different category: unlike
foreign nationals and foreigners not representing their country221 , they are under no obligation to
testify; and no consequence attaches to their refusai to accede to a request for a written deposition
addressed to them by an investigating judge through the Minister for Foreign Affairs. This is
assuredly a protection at least equivalent to that deriving from Article 113-2.
85 3.62. Moreover, in the present case the Congo is particularly lacking in any support for its
claim that President Sassou Nguesso's jurisdictional immunity was violated, since, while it is true
that the investigating judges did send the French Minister for Foreign Affairs a request for the
President's written deposition, the Minister, as the Congo itself admits, "did not accede to that
request"222•
3.63. However, the applicant State invokes two further arguments in support of the second
limb of its second ground. First, it relies on a decision regarding the President of the French
Republic, which it contends is applicable by analogy to foreign Heads of State (A). Secondly, it
relies on a ground, which it describes as "compelling"223, whereby it argues that a Head of State "is
not a 'representative' of a foreign power within the meaning of Article 656 [of the Code of
218Memoria1, p. 37.
219/bid.
220Memoria1, p. 38.
221See Article 109 of the Code ofCrimina1 Procedure; see be1ow, para. 3.66.
222Memoria1, p. 17.
223Ibid., p. 38
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Criminal Procedure]; he is the supreme organ ofthat power"224 (B). Neither ofthese arguments is
persuasive.
A. The decision regarding the President of the French Republic
3.64. The Congo cites, with sorne insistence225, a plenary judgment of the Court of Cassation
of 10 October 2001, holding that:
"the President of the [French] Republic cannat, 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; neither can he be obliged to appear as a witness pursuant to Article 101
of the Code of Crimina1 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"226• [Translation by the Registry]
3.65. According to the applicant State, "[w]hat holds good for the President of the French
Republic must apply also by analogy to foreign Heads of State"227. France has, to say the least,
seria us doubts as to the possibility of proceeding by anal ogy: the grounds underlying the immunity
of a Head of State in relation to domestic law on the one hand and to international law on the other
86 are not identical; furthermore, constitutional rules generally provide special procedures under
which the Head of State may be prosecuted where he is in serious breach of his duties or commits
serious criminal offences228 •
3.66. There is, however, no point in entering into that debate. It follows from the very terms
of the judgment just cited that the bar on taking evidence from the President of the French Republic
derives from the fact that, under Article 109 of the Code of Criminal Procedure, there attaches to a
witness' obligation to appear "a measure of publicly enforceable constraint and it is sanctioned by a
criminal penalty". However, that is not so in the case of a refusai to testify by a persan requested to
do so under Article 656 of the Code: such a request merely represents an invitation to testify,
which the representative of the foreign State is at full liberty to decline; and no criminal sanction
or other measure of constraint attaches to such a refusal229•
3.67. This procedure, which is founded on the freedom of decision of the persan to whom the
request is addressed, is full y compatible with Article 31, paragraph 2, of the Vi enna Convention of
18 April1961: "A diplomatie agent is not obliged to give evidence as a witness." From this it may
be concluded, in accordance with the generally accepted interpretation, that, while he is not obliged
to give his evidence, there is nothing, on the other hand, to prevent him from being asked to do
SQ230.
224/bid.
225/bid., pp. 37-38.
22610 October 2001, Bull. No. 206, p. 660.
227Memorial, p. 38.
228For France, see Article 68 of the Constitution.
229See above, paras. 3.53-3.54.
230See Jean Salmon, Manuel de droit diplomatique, Bruylant, Brussels, 1994, pp. 319-320.
- 61 -
B. A Head of State is a representative of that State
3.68. In an attempt to escape the consequences of this analysis, the Congo puts forward an
argument, which it describes as "compelling", to the effect that a foreign Head of State is not "a
representative" of a foreign power, but "the supreme organ of that power"231 .
87 3.69. France in no way disputes that a Head of State is that State's supreme organ. But that
status does not pree lude him from representing the State of which he is head; on the contrary, it is
in that capacity that he represents it. And while there can be no doubt that the provisions of
Article 656 are applicable to members of diplomatie missions and to certain members of a consular
post, that does not mean that they are not applicable to a Head of State (orto a Minister for Foreign
Affairs) of a foreign power.
3.70. That is moreover the consistent practice of the Frenchjudicial authorities, one fully in
conformity with international law. Thus, in his submissions in the Qaddafi case
Advocate-General Launay, after recalling that "[b ]roadly speaking, the legal régime governing
immunity from jurisdiction for foreign Heads of State is identical with that established by the
Vienna Convention of 18 April1961 for diplomatie personnel", justified such immunity on the
basis of"the identification of the State with its representative"232 • Similarly, in the Arrest Warrant
case the Court "observe[d] that a Minister for Foreign Affairs, responsible for the conduct of his or
her State's relations with all other States, occupies a position such that, like the Head ofState or the
Head of Government, he or she is recognized under international law as representative of the State
solely by virtue of his or her office"233 •
3. 71. This proposition applies with particular force in the present case, since the issue bef ore
the Court is not whether the investigating judges correctly applied the provisions of Article 656 of
the French Code of Criminal Procedure - it is not for the Court to interpret and apply French
la~34 - but to decide whether or not the request by the French investigating judges, which was
formulated pursuant to that provision but not transmitted by the Minister for Foreign Affairs to
President Sassou Nguesso, was compatible with international law and whether it violated the
jurisdictional immunity enjoyed by the latter. The French Republic considers that, for all of the
reasons set out above, the reply to that question must indisputably be in the negative.
*
* *
231Memorial, p. 38.
232See above, footnote 199 and Ann. V.
233Judgment of 14 February 2002, para. 53. See also, for example, Article 7, paragraph 2 (a), of the Vienna
Convention of 1969 on the Law ofTreaties, Article 21 of the 1969 Convention on Special Missions and Article 1 of the
1973 Convention on the Prevention and Punishment of Crimes against Intemationally Protected Persans.
234See PCIJ, Judgment of25 May 1926, Certain German Interests in Polish Supper Silesia, Series A, No. 7, p. 19;
Advisory Opinion of 4 February 1932, Treatment of Polish Nations and Other Persans of Polish Origin or Speech in the
Danzig Territory, Series AIB, No. 44, p. 24.
-62-
88 3.72. Following this analysis, it is clear that the second ground relied upon by the Republic
of the Congo cannat be upheld:
(i) the prosecutor's originating application of 23 January 2002 did not have- and could not
have had- the effect of giving the Meaux investigating judge jurisdiction to conduct an
investigation in respect of Congo lese nationals not present on French terri tory at the time
when it was issued, in the absence of a later supplemental application identifying such
persans by name;
(ii) General Dabira, the only individual named in the complaint (to which the originating
application of 23 January 2002 refers) who was present on French territory at that date
enjoys no jurisdictional immunity;
(iii) the same applies to Generais Oba and Adoua, who, in any event, could not be the subject
of acts of investigation unless the prosecutor issued a supplemental application identifying
them by name in the event that they were present in France otherwise than on an official
diplomatie mission; furthermore, the claims by the Republic of the Congo in respect of
those individuals are without abject, since they contemplate a purely contingent situation;
(iv) on the other hand, the French Republic does not dispute that President Sassou Nguesso is
entitled to the benefit of the immunities accorded to foreign Heads of State, which, in the
circumstances of the present case, are absolute;
(v) those immunities have not in any way been violated by the invitation to testify addressed
by the investigating judges to the French Ministry of Foreign Affairs, and to which,
pursuant to the clear rules of the French Code of Criminal Procedure, Mr. Sas sou Nguesso
would not in any case have been required to respond, even if it had reached him.
89
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SUBMISSIONS
For the reasons set out in this Memorial, the French Republic requests the International
Court of Justice to reject the claims of the Republic of the Congo.
Paris, 11 May 2004
(Signed) Ronny ABRAHAM
Agent of the French Republic.
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ANNEXES
Annex I Notification of the accession of the Congo to the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984
(31 July 2003)
Annex II Letter from General Norbert Dabira to the Chargé d'affaires of the French Embassy in
the Congo (9 September 2002)
Instruction from the Minister of State to the Presidency of the Republic of the Congo
with Responsibility for National Defence (9 September 2002)
Annex III Note Verbale from the Embassy of the Republic of the Congo m France
(5 February 2004)
Letter from the Deputy Head of Protocol, French Ministry of Foreign Affairs, to
Adjutant Cook of the Criminal Investigation Police (5 February 2004)
Annex IV Documents transmitted to the International Court of Justice by the Agent of the
Republic ofthe Congo (21 May 2003)
Annex V Submissions of the Advocate-General in the case of Procureur général près la Cour
d'appel de Paris cl Association SOS Attentats et Mme Béatrice de Boery ép. Castelnau
d'Essenault (Qaddafi case) (27 February 2001).