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When No Diplomatic Immunity is Good News: Equatorial Guinea v France in the International Court of Justice

Anton Moiseienko
Commentary, 21 December 2020
Centre for Financial Crime and Security Studies, France, Law and Ethics, Africa
A ruling by the International Court of Justice is good for the global fight against corruption, and bad news for those seeking refuge under claims of diplomatic immunity.

On 11 December 2020, the International Court of Justice (ICJ) handed down its judgment in the Case Concerning Immunities and Criminal Proceedings (Equatorial Guinea v France). The facts that gave rise to the ruling are anything but ordinary. They involve the vice president of a sovereign country – Equatorial Guinea – being convicted of money laundering, as well as the government of that country shielding his property from enforcement by claiming that it forms part of its diplomatic mission.

In its judgment, the ICJ declined to give effect to this sleight of hand; it ruled that the diplomatic immunity Equatorial Guinea claimed does not extend to a Paris mansion whose confiscation has been ordered by a French court. This case is yet another demonstration that the main barriers to the prosecution of high-ranking foreign officials for economic crime are practical and political, rather than legal.

The Dispute

At the centre of the dispute is one man: Teodoro Nguema Obiang Mangue, first vice president of Equatorial Guinea. His father, Teodoro Obiang Nguema Mbasogo, has been the country’s president since 1979. The family’s apparent dedication to public service is not universally admired, and allegations of large-scale corruption have been made, including by the US Senate Permanent Subcommittee on Investigations. In 2014, the younger Obiang surrendered US$30-million worth of property, including luxury cars and a collection of Michael Jackson memorabilia, to the US Department of Justice to settle a money-laundering probe.

This did not put an end to his legal troubles. Following a criminal complaint filed by two civil society groups, the French authorities commenced an investigation into how Obiang had acquired his property in France, including a five-storey prize property mansion at 42 Avenue Foch in Paris. Shortly after French police searched it and seized a collection of luxury cars in 2011, the embassy of Equatorial Guinea informed the French government that it had purchased the building from Obiang and used it as part of the embassy’s premises.

Distinctly unimpressed, the French government refused to recognise either the diplomatic inviolability of the building or Obiang’s purported official immunities. One of France’s highest courts, the Cour de cassationruled in 2015 that official immunities did not extend to vice presidents and thus did not cover Obiang.

In October 2017, the Tribunal correctionnel – a first-instance criminal court – found Obiang guilty of money laundering in absentia and ordered a three-year suspended jail sentence as well as confiscation of his assets in France – an exceptional example of a serving vice president being convicted by a foreign court. Although the judgment was confirmed on appeal in February 2020, no steps to enforce it have been taken, pending Obiang’s second appeal to the Cour de cassation.

The Litigation

In response to the ongoing investigation, Equatorial Guinea instituted proceedings in the ICJ in 2016 on the basis that France was interfering with its internal affairs, breaching Obiang’s official immunities and violating the 1961 Vienna Convention on Diplomatic Relations, which codifies international rules on diplomatic immunities.

This decision to throw the state’s weight behind its vice president has yielded nothing.

In 2018, the ICJ declined to consider the alleged interference with Equatoguinean internal affairs and breaches of Obiang’s personal immunities as a high-ranking state official, since there was no agreement between Equatorial Guinea and France that would provide the ICJ with jurisdiction over such issues. France could not, therefore, be made to answer any such case brought by Equatorial Guinea. However, the Vienna Convention enabled the ICJ to examine the status of the building at 42 Avenue Foch because both France and Equatorial Guinea had signed up to the ICJ’s jurisdiction over matters covered by the Convention, such as the extent and application of diplomatic immunities.

In addressing this issue, the ICJ could have found itself in a predicament. The inviolability of diplomatic premises admits of no exceptions, but nor would the international rule of law be well-served by according this protection to premises potentially acquired out of the proceeds of crime.

The ICJ’s solution in its December judgment was simple, namely, to rule that the building had never acquired the status of diplomatic premises in the first place. According to the majority of the judges, the receiving state can object to the sending state’s designation of diplomatic premises so long as it does so in a manner that is timely, consistent and not arbitrary or discriminatory. France was found to have satisfied all these conditions, which is that it immediately and consistently objected to the designation of the property on Avenue Foch in Paris as diplomatic premises. 

The judgment was not unanimous, and seven out of 16 judges disagreed with this interpretation of the Vienna Convention. The gist of their criticism, as encapsulated in the Declaration of Judge Gaja, is that the majority’s stance is ‘tantamount to setting forth a general requirement of consent [to the designation of the diplomatic premises] on the part of the receiving State’.

For their part, the majority were of the view that this approach is preferable to obliging the receiving state to honour any designation by another state of its diplomatic premises. As the judgment points out, some states already require their prior consent to such assignments, and neither have diplomatic relations ground to a halt nor indeed has anyone objected to the practice.

The Implications

What makes this case unique, of course, is not the finer points of the law of diplomatic relations but the circumstances that gave rise to it. Those were treated very differently by various judges.

In determining that France’s behaviour was not arbitrary or discriminatory, the majority took into account the French criminal proceedings. In contrast, the dissenting judges treated them as irrelevant to the matter at hand. Some of the dissenters, including the ICJ’s President Abdulqawi Yusuf, were of the view that the building at 42 Avenue Foch did benefit from diplomatic inviolability but declined to find France in violation of the Vienna Convention on the somewhat bizarre grounds that the confiscation has not happened just yet.

It is not unusual for the ICJ to retreat into legal formalism. Still, as the UN’s principal judicial body, it would be unbecoming of it to overlook entirely the background to France’s actions. In effect, what the ICJ achieved by asking whether France had acted in an unreasonable or discriminatory fashion was to inject those broader considerations into an otherwise exceedingly narrow dispute.

The ICJ’s judgment is, therefore, good news, but the most significant achievement in this case has been scored by the French legal system, pending any possible revisions by the Cour de cassation. Following an initial period of prevarication, the due process of law has taken its course in France, regardless of the challenges thrown in its way, including the expense of litigation in the ICJ. This shows that, if the facts are right, there is no absolute bar to the prosecution of high-ranking foreign public officials for economic crime, which is a lesson that other countries’ authorities would do well to learn and apply.

In the meantime, it is essential to put these developments into perspective by recalling that the case stems from the payment by an embassy of €34 million to its country’s vice president for a property that, according to a French court, was purchased out of the proceeds of crime. If one accepts the French judiciary’s conclusions, it appears that it is the people of Equatorial Guinea who are continuing to pay the price for their ruling family’s conduct.

So, this story is far from promising a happy end, but at least the ICJ’s judgment declines to respect some of the most brazen abuse of a sovereign state’s prerogatives in pursuit of the ruling family’s interest.

The views expressed in this Commentary are the author’s, and do not represent those of RUSI or any other institution.

BANNER IMAGE: The Peace Palace, home to the International Court of Justice. Courtesy of Stringer Image / Adobe Stock.

Author

Anton Moiseienko
Research Fellow, Centre for Financial Crime and Security Studies

Anton Moiseienko is a Research Fellow at RUSI’s Centre for Financial Crime and Security Studies. His current and recent work covers a... read more

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