by Philippa Webb
On 25 September, Equatorial Guinea sought to institute proceedings against France at the International Court of Justice. It is the latest in a series of cases brought by African countries against France for purported violations of the immunity of State officials.
Equatorial Guinea claims that France has breached international law through proceedings and investigative measures taken against the President of Equatorial Guinea and the Vice-President, who is also the Minister of Agriculture and Forestry and the son of the President. Guinea makes references to an arrest warrant being issued against the Vice-President and the seizure of property and premises by French judges during an investigation. This is related to the French ‘ill-gotten gains’ investigation targeting three African leaders and their families for alleged embezzlement of State funds, including €160m worth of assets located in France invested in bank accounts, Riviera villas and luxury cars.
The first challenge that Equatorial Guinea faces is establishing the ICJ’s jurisdiction since there is no basis in the Optional Clause nor in the compromissory clause of a treaty. Equatorial Guinea has therefore brought its claim on the basis of Article 38(5) of the Rules of Court, whereby the Applicant State asks the other State to consent to the Court’s jurisdiction solely for the purpose of that case (forum prorogatum).
This provision of the Rules has been invoked three other times in cases against France. The first time was in Certain Criminal Proceedings in France, where the Republic of the Congo complained about French proceedings against its President, the Minister of the Interior and the Inspector-General. France consented to the Court’ s jurisdiction under Article 38(5), but the case was withdrawn by the Republic of the Congo in November 2010 before a judgment could be rendered:
In Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Djibouti alleged that, inter alia, witness summons against the President, the Procureur de la République and the Head of National Security breached international law. France consented to the proceedings and the Court issued its Judgment in 2008, finding that the dignity of the President had not been harmed by the summons and that the required steps for invoking the immunity of the other two officials had not been taken.
Finally, in 2007, Rwanda tried to institute proceedings against France under Article 38(5) with respect to arrest warrants issued by French officials against Rwanda’s Chief of General Staff of its Defence Forces, the Chief of Protocol attached to the Presidency and the Ambassador of Rwanda to India. It also challenged a request apparently from France to the UN Secretary-General that President Kagame should stand trial at the ICTR.
France did not consent to the ICJ’s jurisdiction under Article 38(5) so the case was never entered onto the docket or ‘General List’ of the ICJ. France apparently lifted the arrest warrants in 2010.
It will be interesting to see how France will react to Equatorial Guinea’s request. If France consents and the case proceeds to Judgment, it will raise fascinating issues of international law, including whether the ICJ’s views on the scope of the immunity of State officials has changed since the Arrest Warrant Judgment of 2002 and the limits on the pre-judgment attachment of property. It will be a complementary case to Germany v Italy, which looked at these issues from the perspective of the immunity of the State itself.