international court of justice · guinea v. fr.), press release 2016/18: the republic of equatorial...

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LONDON INTERNATIONAL MODEL UNITED NATIONS 2018

International Court of Justice

London International Model United Nations

19th Session | 2018

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Table of Contents

Introduction Letters 3

Introduction to the Committee 4

Topic: Immunities and Criminal Proceedings (Equatorial Guinea v France) 5

Introduction 5

History of the Problem 6

Statement of the Problem and Applicable International Law 8

Current Situation 133

Parties‟ positions 155

Republic of Equatorial Guinea 155

Republic of France 155

Sources 167

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Introduction Letters

Welcome to the International Court of Justice at LIMUN 2018. My name is

Meshaal Choudhary and I am thrilled to be your Director, and work with

Enrico to bring you a memorable ICJ experience. I have completed my

bachelor and vocational Law degrees in England, and have over eight years of

MUN experience. I enjoy the unique fusion of political and legal dynamics of

international affairs in this committee, and since LIMUN showcases the global

reach of MUN, I look forward to meeting participants joining us in London

from all over the world, for three days of insightful debate and exciting events.

If you have any questions regarding the committee or conference, please

contact us at [email protected]. We wish you good luck with your

preparations.

Best wishes,

Meshaal

Distinguished Delegates,

I am honoured to welcome you to the ICJ Committee of LIMUN 2018 as your

Assistant Director. My name is Enrico Amarante and I am an International

Law student graduating from Bocconi University in Milan, Italy. I sincerely

enjoy the perspective of being once again part of LIMUN: its unique mix of

challenging debates and fantastic socials really condense the MUN essence.

Under the seal of the most prominent Tribunal of the UN, you will act as

judges or advocates in a case intertwining diplomacy and law. Therefore, we

expect your legal arguments to be sharp and your judgments to be solid.

Meshaal and I will work to render your experience amazing and look forward

to meeting you soon.

Best regards,

Enrico

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Introduction to the Committee

The International Court of Justice is the primary judicial branch of the

United Nations, and is responsible for settling disputes of international law

submitted by Member States, and to provide non-binding advisory opinions

requested by select organs and agencies of the United Nations.1 The ICJ, also

known as the “World Court”, was established in June 1945 under the Charter

of the United Nations. Both the Charter and the Statute of the International

Court of Justice are used by the ICJ when following its own mandate in the

application of jurisdiction in cases that are brought to its court.2

Contentious proceedings are instituted by agreement from the parties to

a case, or an application by one State. Each State party is represented by

Advocates, and these agents are responsible for presenting submissions on

behalf of the government who has appointed them. The Court carries out both

written and oral proceedings to consider the matter. Cases are concluded

through requests of discontinuance or deliverance of a judgment. Judgments

presented by the ICJ are binding on the parties involved in the dispute.3

The ICJ must have jurisdiction to try cases within the Court, granted by

acceptance of its jurisdiction by the Member States that accept it, and through

matters which are provided for in the Charter of the United Nations or by

treaties and conventions that are presently in force.4 This has resulted in a

broad range of conflicts that the ICJ has encountered in the past 70 years,

including delimitation disputes, legalities on nuclear weapons, contested

possession of state assets, and violations of human rights.

1 Registrar of the ICJ 2013, The International Court of Justice Handbook

2 Nederlandse Vereniging voor de Verenigde Naties 2013, „The International Court of Justice ICJ‟, NVVN

3 Registrar of the ICJ 2013, The International Court of Justice Handbook

4 ICJ 1946, Article 36, Statute of the International Court of Justice

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Topic: Immunities and Criminal Proceedings

(Equatorial Guinea v France)

Introduction

In this 2016 case brought to the ICJ, the Republic of Equatorial Guinea

(„Equatorial Guinea‟) instituted proceedings against the Republic of France

(„France‟), in an effort to halt the French judicial authorities from pursuing

criminal proceedings against Mr Teodoro Nguema Obiang Mangue

(„Mangue‟), citing that the at-time Second Vice President, in charge of Defence

and State Security, was entitled to immunity from criminal proceedings

jurisdiction.5 The conflict originates from 2007, when allegations of

misappropriated public funds from African Heads of State being invested in

France were submitted. This led to an investigation into the financial methods

5 ICJ, Immunities and Criminal Proceedings (Eq. Guinea v. Fr.), Press Release 2016/18: The Republic of Equatorial

Guinea institutes proceedings against France, Press Release of 14 June 2016

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involved in the acquisition of various assets and ownership of a

building at 42 Avenue Foch by the son of the President of Equatorial Guinea,

Mr Mangue. Following police and judicial intervention in Paris, the

investigation sought to also question Mr Mangue in 2012, who did not comply.

His claim of immunity from French jurisdiction was contested by French

judicial authorities, leading to his eventual indictment. Meanwhile, Equatorial

Guinea had submitted the matter to the ICJ for intervention in 2016 and,

following the order for trial, requested provisional measures to halt French

proceedings. The ICJ presented an Order in December 2016, and the domestic

criminal trial continued to proceed in France, concluding in October 2017.

This case is the first dispute regarding mass corruption in the ICJ, which

allows for the development of precedent relating to immunities from criminal

jurisdiction within the context of sovereignty in international law. Sovereign

equality, a fundamental aspect of international law protected by the Charter of

the UN,6 requires mutual respect of nations‟ mandates to oversee their own

internal domestic affairs, free from interference of other States.7 In this recent

era, with allegations of transnational corruption and abuse of power and state

assets making headlines around the world, it is vital to reinforce the legal

framework that underpins immunity and protection in a global context, for

future clarity in such matters.

History of the Problem

Teodoro Nguema Obiang Mangue (nicknamed “Teodorin”) is a member

of the ruling élite of Equatorial Guinea, an African country plenty of gas,

timber and oil (the continent‟s third biggest producer). Despite its wealth,

profits have only benefited the governing family, while the country still suffers

widespread poverty and is regularly criticized for human rights violations. The

6 UN 1945, Article 2, Charter of the United Nations

7 Editors of Encyclopaedia Britannica 2014, Sovereignty: Sovereignty and International Law

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father of Mr Mangue, Teodoro Obiang Nguema Mbasogo, seized power

in 1979 by overthrowing the communist regime of his uncle and now rules as

the longest-running leader in the African continent. Mr Mangue served for

several years as the Minister of Agriculture and Forestry before his

appointment as Second Vice-President in charge of Defense and State Security

in 2012. After four years of service, he was promoted to the position of First

Vice-President.

In 2007, three NGOs served the French authorities with a claim alleging

Mr Mangue‟s misappropriation of public funds from Equatorial Guinea, which

had been subsequently invested in France.8 This was part of a larger inquiry

involving other African leaders in Gabon and Congo. On 13 July 2012, France

issued an international arrest warrant against Teodorin Obiang.9 A few months

later, his mansion at 42 Avenue Foch in Paris, with an estimated worth of $180

million, was seized by the police along with several of his possessions,

including luxurious furniture and sport cars.10

This was part of the

investigation related to his alleged “ill-gotten” gains, amounting to $115m,

obtained from 2004 to 2011 while serving as Minister of Agriculture and

Forestry. The police had also sought to question Mr Mangue as part of the

investigation process in 2012 but were unable to as Mr Mangue - who had by

then become the Second Vice-President of Equatorial Guinea, responsible for

Defence and State Security - did not comply, citing immunity from French

jurisdiction. The French judicial authorities, contesting the entitlement to

immunity by stating that it was not available for criminal acts undertaken as a

private individual, sought assistance from judicial authorities in Equatorial

Guinea to question Mr Mangue.

8 Baume, M 2012, „A French Shift on Africa Strips a Dictator‟s Son of His Treasures‟, New York Times, 23 August.

9 Willsher, K 2012, „France issues arrest warrant for son of Equatorial Guinea president‟, The Guardian, 13 July.

10 AFP 2012, „France seizes £118 million mansion of Equatorial Guinea leader's family‟, The Telegraph, 3 August.

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On 18 March 2014, Mr Mangue was indicted by France for

monetary felonies.11

In December 2015, the French appeals court rejected the

pleading of immunity.12

Official proceedings started in January 2017 before

French courts, but were postponed to July. After a trial in absentia, on October

27, 2017 Teodorin Obiang was sentenced with a three-year suspended jail term

by the French Court and given a fine of €30m for embezzlement, money-

laundering, corruption and abuse of trust.13

Statement of the Problem and Applicable International Law

The current legal dispute represents a complex panorama of the law of

diplomatic immunities. In the present case, a national prosecution towards a

Vice-President of a foreign State on account of corruption has met the

opposition of international proceedings as a way to contrast them.

i) Jurisdiction of the Court

The first issue is jurisdiction, which is necessary to be resolved before

proceeding to the merits. The basis for this question is found in Article 36 of

the Statute of the ICJ, where it is said that it “comprises all cases which the

parties refer to it and all matters specially provided for in the Charter of the

United Nations or in treaties and conventions in force.” According to

Equatorial Guinea, there are two covenants establishing the Court‟s

jurisdiction.14

First, Article 35(2) of the Convention against Transnational

Organized Crime provides the choice of resolution through the ICJ, where no

settlement can be reached through negotiation and organization of arbitration.

11

AFP 2017, „Timeline of French graft probes into African elites‟, The Daily Mail, 25 October. 12

Ibid. 13

Chrisafis, A 2017, „Son of Equatorial Guinea's president is convicted of corruption in France‟, The Guardian , 27

October. 14

ICJ, Immunities and Criminal Proceedings (Eq. Guinea v. Fr.), Application Instituting Proceedings, 4-10 (June 13,

2016).

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Second, Article I of the Optional Protocol to the Vienna Convention on

Diplomatic Protection declares the Court‟s jurisdiction as compulsory for any

dispute arising out of the interpretation or application of the Convention.

While issuing its Order indicating the provisional measures requested by

Equatorial Guinea on 7 December 2016, the Court assessed that the dispute

over the interpretation of Article 22 of the Vienna Convention on Diplomatic

Protection could serve as the legal basis conferring jurisdiction.15

However,

such reasoning was expressly prima facie, concerning only the provisional

measures and not the merits of the case. Therefore, the Court will have to

confirm the cited basis as a proper one for establishing its jurisdiction, or

evaluate another source provided by the parties to determine jurisdiction, or

dismiss the case for lacking a solid foundation.

Following the ruling on its jurisdiction, the Court may have to assess the

legal merits of the case.

ii) National jurisdiction and the principle of sovereign equality

The first of them concerns the principles of non-interference and

sovereign equality of the States along with the extension of national

jurisdiction. As stated in Article 2 of the Charter of the United Nations, “The

Organization is based on the principle of the sovereign equality of all its

Members”. This represents a fundamental principle of the international legal

order.16

Strictly related to this, there is the principle of non-intervention, as

established by customary international law.17

It also extends to including the

element of coercion, in the sense that the State affected is forcibly deprived of

15

ICJ, Immunities and Criminal Proceedings (Eq. Guinea v. Fr.), Order of 7 December 2016, 69 (Dec. 7, 2016). 16

ICJ, Jurisdictional Immunities of the State (Ger. v. It: Greece intervening), Judgment, 2012 I.C.J. Rep. 99, 57

(February 3). 17

ICJ, Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J. Rep. 14,

185 (June 27).

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the control over a certain matter by another one.18

Transposed to the

national arena, a court may not have competence to assert its jurisdiction over

the acts of a foreign State.19

In the realm of international law, there are five types of principles which

are the basis for establishing extraterritorial jurisdiction. The first three are

uncontroversial: the territoriality principle, extending to every act committed in

the territory of a State, the active personality principle, covering every action

of State‟s nationals wherever they are made, and the protective principle,

extending jurisdiction to acts perpetrated abroad which jeopardize a State‟s

integrity or sovereignty.20

The other two are: the passive personality principle,

based on the nationality of the victim, and the universal principle, which is not

based on any nexus with the State but derives from the inherent nature of the

crime.21

In its milestone judgment of 1927, the Permanent Court of Justice

established that States could extend their prescriptive jurisdiction to persons,

property and acts outside their national territory and that such extension could

only be restricted by an international rule prohibiting it.22

In the subject matter of this case, French courts prosecuted and

condemned Mr. Obiang, a non-French national, for money laundering,

misappropriation of public funds, breach of trust and bribery. Some of these

crimes are derived from other crimes which were originally committed in

Equatorial Guinea. In doing so, the French courts based their reasoning for

extending their jurisdiction on: the principle of autonomy of money laundering,

which permits the prosecution of money laundering regardless of the original

crime which originated the fraudulent money.23

18

OPPENHEIM‟S INTERNATIONAL LAW 432 (Robert Y. Jennings & Arthur D. Watts eds., 9th ed. 1992). 19

IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 320 (6th ed. 2003). 20

CEDRIC RYNGAERT, JURISDICTION IN INTERNATIONAL LAW 42, 88, 96 (1st ed. 2008). 21

Ibid. at 92, 100. 22

The Case of the S.S. Lotus (France v. Turkey), Judgment, 1927 P.C.I.J. (ser. A) No. 10, at 46 (Sept. 7). 23

Cour de cassation [Cass.] [supreme court for judicial matters], crim., Apr. 16, 2015, Bull. crim., No. 292. (Fr.).

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Consequently, the Court will have to adjudge whether the French

extension of jurisdiction to the alleged crimes is permissible and, if not, to

what extent these proceedings violate the principles of sovereign equality and

non-interference.

iii) Personal immunity

A strictly related issue concerns the doctrine of State immunity and the

institution of criminal proceedings. Deriving from the principle of sovereign

equality, State immunity prevents the subjection of the actions of a State or the

officials acting on its behalf to the civil and criminal jurisdiction of foreign

courts.24

Two types of immunity exist. The first is personal immunity (rationae

personae), which is an absolute form of immunity deriving from the official‟s

status or position which he occupies in a State‟s government, and covers any

act performed both in the course of official functions and private acts.

Specifically in this regard, the ICJ affirmed that high-ranking officials in a

State - namely, the Head of State, Head of Government and Minister for

Foreign Affairs - enjoy immunities from both civil and criminal foreign

jurisdiction.25

However, there is no exhaustive nor accepted list of State

positions covered by personal immunity.26

The second is material immunity

(rationae materiae), covering State officials for acts performed in their official

capacity. Former officials can invoke this type of immunity in relation to the

official acts occurred during while they were in office.27

Concerning possible exceptions to immunity, there have been many

attempts to formulate or sustain categories of actions, such as violation of

human rights or jus cogens norms, commercial acts, or as enlisted in the 24

MALCOLM N. SHAW, INTERNATIONAL LAW 507 (7th ed. 2014). 25

ICJ, Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), Judgment, 2002 I.C.J. Rep. 3, at 51. 26

HAZEL FOX AND PHILIPPA WEBB, THE LAW OF STATE IMMUNITY 566 (3rd ed. 2015). 27

Ibid. at 570.

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unratified UN United Nations Convention on Jurisdictional Immunities

of States and Their Property (2004). Nonetheless there is no uniform

definitions nor continuous practice by States nowadays.28

In relation to the case at hand, comparison will have to be made between

the present position of Vice-President in charge of State Defense and Security

and the categories listed or implied in the law of State immunity. Moreover,

attention will be required in assessing whether criminal jurisdiction for the

allegations made could trump such immunity and give leeway to a national

court to prosecute a foreign State official.

iv) Inviolability of the Mission Premises

With regard to the diplomatic immunity of mission premises, Article 22

of the Vienna Convention on Diplomatic Relations states their inviolability,

requiring the consent of the head of the mission for the entrance of any agent

of the receiving State. Moreover, paragraph (3) of the same Article states that

immunity extends to search, requisition, attachment or execution. Indeed, the

necessity of this requisite for the conduct of international relations among

States was fervidly supported by the ICJ in the Tehran Hostages Case.29

However, one must pay attention to the distinction that modern law draws

between immunity from jurisdiction and inviolability.30

This may have

repercussion in terms of jurisdictional competence by a national court and the

extent of the exceptions related thereto.

Overall, the Court will have the opportunity to further elaborate its

jurisprudence on criminal jurisdiction and immunities, specifically in the

matters of money laundering and corruption laws.

28

ROSANNE VAN ALEBEEK, THE IMMUNITY OF STATES AND THEIR OFFICIALS IN INTERNATIONAL

CRIMINAL LAW AND INTERNATIONAL HUMAN RIGHTS LAW 419 - 423 (2008). 29

ICJ, Case Concerning United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), Judgment, 1980 I.C.J.

Rep. 3, 38 (May 24). 30

EILEEN DENZA, DIPLOMATIC LAW 154 (3rd ed. 2008).

13


Current Situation

The application instituting proceedings against France was submitted by

Equatorial Guinea to the ICJ on 13 June 2016, regarding immunity for Vice-

President Mangue from French criminal jurisdiction, and the legal status of the

building at 42 Avenue Foch in Paris that is stated to house the Embassy of

Equatorial Guinea in France. Time limits for filing written pleadings was duly

set out as 3 January 2017 for the Memorial of Equatorial Guinea and 3 July

2017 for the Counter-Memorial of France.

On 29 September 2016, Equatorial Guinea submitted a request for the

indication of provisional measures, following the 5 September 2016 order by

the French Tribunal for a hearing in Paris. Equatorial Guinea stated that

measures were required in order to preserve the rights of Equatorial Guinea

under international law, citing that personal immunity of Mr Mangue and the

inviolability of the diplomatic mission at 42 Avenue Foch are protected under

principles of sovereign equality. Accordingly, Equatorial Guinea asked for

indication of the following provisional measures:

„(i) that France suspend all present and future criminal proceedings

brought against Mangue;

(ii) that France ensures the protection and inviolability of the building at

42 Avenue Foch in Paris, by treating it as the premises of Equatorial

Guinea‟s diplomatic mission in France, and restricts any intrusion,

searches, seizures;

(iii) that France does not take any further measures that extend this

dispute‟31

At the hearings for these provisional measures, over a four day period in

October 2016, France asked the Court to:

31

ICJ, Immunities and Criminal Proceedings (Eq. Guinea v. Fr.), Provisional Measures, Request of 29 September 2016,

4

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“(i) remove the case from its List;

(ii) or, failing that, to reject all the requests for provisional measures made

by Equatorial Guinea”32

The International Court of Justice carried out deliberations over the measures

and, on 7 December 2016, presented an Order that considered the jurisdiction

and urgency of the measures requested, concluding unanimously that it would

indicate a provisional measure to ensure the inviolability of the premises at 42

Avenue Foch, pending a final decision in the case, protecting the premises

under Article 22 of the Vienna Convention on Diplomatic relations, and

staying any acts of confiscation in France.

As of a Press Release on 10 April 2017, Equatorial Guinea submitted a

Memorial by the aforementioned date of 3 January 2017, and France raised

preliminary objections regarding jurisdiction of the Court on 31 March 2017,

thereby suspending proceedings on the merits of the case. The Court presented

a new time-limit for Equatorial Guinea to present a written statement on the

preliminary objections raised by France.

At conclusion of the trial in France, the French Tribunal found Mr

Mangue guilty of embezzlement and utilising public funds for his own private

lifestyle, delivering him a three-year suspended sentence and a suspended fine

of 30 million Euros. Prosecutors had argued that his forestry company was

utilised as a shell to channel public money, during his time as Minister of

Agriculture and Forestry.33

His French assets, including the mansion at 42

Avenue Foch will be seized - pending authorised confirmation by the ICJ.34

On

8 December 2017, the ICJ released a statement stating that hearings for the

32

ICJ, Immunities and Criminal Proceedings (Eq. Guinea v. Fr.), Provisional Measures, Order of 7 December 2016, 6,

18 33

BBC News 2017, „Equatorial Guinea VP Teodorin Obiang sentenced in France‟ BBC, 27 October 34

Chazan, D 2017, „France convicts Equatorial Guinea‟s vice-president of corruption in landmark trial‟ The Telegraph

27 October

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objections raised by France regarding the Court‟s jurisdiction to try this

matter will take place in late February 2018.35

Parties’ positions

Republic of Equatorial Guinea

In its application before the ICJ, the Republic of Equatorial Guinea

develops itself in three branches.36

First, it claims that the French courts which

initiated criminal proceedings against Mr Mangue have unlawfully extended

their jurisdiction to his acts, thus violating the principles of sovereign equality

among States and non-interference in its internal affairs.37

Second, such

procedures infringed on his personal immunity, since he serves as the Vice-

President in charge of in charge of Defence and State Security of his country,

i.e. a high-ranking position permitting to internationally act vis-à-vis other

State.38

Third, Equatorial Guinea asserts that the seizure of the building at 42,

Avenue Foch in Paris breached the diplomatic immunity of the Country‟s

premises. As a matter of fact, the mansion belongs to the diplomatic mission of

Equatorial Guinea and has never been used for activities of private law nor of

jure gestionis.39

Republic of France

Within the ICJ, the Republic of France has refuted the claims brought by

Equatorial Guinea for a number of reasons. First, France argues against the

allegation of a breach of Equatorial Guinea‟s sovereignty, stating that the

property at 42 avenue Foch cannot be recognised as a diplomatic mission for

35

ICJ, Immunities and Criminal Proceedings (Eq. Guinea v. Fr.), Press Release 2017/37: Preliminary Objections: The

Court to hold public hearings, Press Release of 8 December 2017 36

ICJ, Immunities and Criminal Proceedings (Eq. Guinea v. Fr.), Application Instituting Proceedings, at 41 37

Ibid., at 35 38

Ibid., at 36, 37 39

Ibid., annex 12.

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Equatorial Guinea, due to inconsistencies in the ownership for

diplomatic use.40

Second, Mr Mangue‟s diplomatic status is also contested as

France states that he does not qualify for rationnae personae41

protection under

the 1961 Vienna Convention on Diplomatic Relations42

, and that he was not

entitled to “any form of immunity from criminal process in respect of acts

allegedly committed by him in France in his private capacity”.43

However,

France has also argued that the Court does not hold jurisdiction to preside in

the case.44

In 2016, an advocate for France in the ICJ has stated the case was a

“flagrant and evident abuse of law”, and that there was no urgent reason to

delay Mr Mangue‟s criminal trial in Paris.45

The upcoming hearings to

determine ICJ jurisdiction on this matter will take place in February 2018.

40

ICJ, Immunities and Criminal Proceedings (Eq. Guinea v Fr.) Comments of France to the Reply of Eq. Guinea during

Proceedings for the Request of Provisional Measures, 31 October 2016, 17 41

ICJ, Immunities and Criminal Proceedings (Eq. Guinea v. Fr.), Provisional Measures, Order of 7 December 2016, 46 42

ICJ, Immunities and Criminal Proceedings (Eq. Guinea v Fr.) Comments of France to the Reply of Eq. Guinea during

Proceedings for the Request of Provisional Measures, 31 October 2016, 24 43

ICJ, Immunities and Criminal Proceedings (Eq. Guinea v. Fr.), Provisional Measures, Order of 7 December 2016, 7,

24 44

ICJ, Immunities and Criminal Proceedings (Eq. Guinea v. Fr.), Order of 5 April 2017 45

VOA News 2016, France: Equatorial Guinea’s World Court Case Is Abuse of Law

17


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18


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• Shaw, M.N. 2014, International law, 7th edn, Cambridge University Press,

Cambridge.

• Van Alebeek, R. 2008, The Immunity of States and Their Officials in

International Criminal Law and International Human Rights Law, Oxford


20


• United Nations, Article 2 - Charter of the United Nations [1945]

• VOA News 2016, France: Equatorial Guinea‟s World Court Case Is Abuse of

Law. Accessed at: <https://www.voanews.com/a/france-says-equatorial-

guinea-world-court-case-is-abuse-of-law/3555974.html >

• Willsher, Kim, 13 July 2012, France issues arrest warrant for son of Equatorial

Guinea president, The Guardian. Accessed at:

<https://www.theguardian.com/world/2012/jul/13/france-arrest-warrant-equatorial-

guinea>

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Conference Information

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Agenda & Rules of Procedure

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