Prorogated and Universal Jurisdiction in the International Court: The Congo v. France

Pieter H.F. Bekker
April 19, 2003
On April 11, 2003, the Registry of the International Court of Justice (ICJ or Court) announced that France has given its special consent to the Court's jurisdiction to entertain an Application originally filed against it by the Republic of the Congo on December 9, 2002.  The case, which is based on "prorogated" or extended jurisdiction (i.e., the manifestation of consent to jurisdiction after a case is filed), raises important issues of universal jurisdiction.  The ICJ, which is the principal judicial organ of the United Nations entrusted with settling legal disputes between sovereign states, consists of 15 judges elected to nine-year terms by the UN General Assembly and Security Council.  The Court has its seat at the Peace Palace in The Hague, The Netherlands.
The Congo's Application accuses France of violating the rule that a state may not, in breach of the principle of sovereign equality among all member states of the United Nations, exercise its authority on the territory of another state (here, the Congo) by allowing the French judicial authorities to take investigation and prosecution measures based on a complaint for crimes against humanity and torture filed by various plaintiffs against inter alia Congolese President Denis Sassou Nguesso and Congolese Minister of the Interior Pierre Oba.  In connection with these proceedings, a local French court has issued a warrant for the Congolese president to be examined as a witness.  In the Congo's view, the French warrant violates the immunity which the Congolese president enjoys as a foreign Head of State.  The Application asks the Court to order the annulment of the measures taken by the French judiciary.
Under its Statute, which forms an integral part of the UN Charter, the Court has no jurisdiction unless both states have consented to its jurisdiction.  Consent may be expressed in several ways, including by the conclusion between states of a special agreement whereby they jointly submit their dispute to the Court, by virtue of a jurisdictional clause in an existing bilateral or multilateral treaty to which the disputing states are parties, or through the reciprocal effect of voluntary (optional) declarations made by some of the states parties to the ICJ Statute whereby one such state has accepted the Court's jurisdiction as compulsory in the event of a dispute with another state which has made a similar declaration.  At the time of the filing of its Application, the Congo acknowledged that the requisite jurisdictional basis for a case against France was lacking, but that the consent of France "will certainly be given."  In accordance with standard practice, the Registry forwarded the Congo's Application to the state named as respondent without entering the case on the Court's docket, known as the "General List." [1]
By now having specifically consented to the Court's jurisdiction to entertain the Congo's Application, France has enabled the Court to enter the case in the General List, representing the first time since the 1978 revision of the ICJ Rules of Court that an attempt to found jurisdiction by way of an "invitation letter" has resulted in an ICJ case through forum prorogatum, or prorogated jurisdiction.
The Congo also has asked the ICJ to indicate provisional measures designed immediately to suspend the proceedings being conducted by the French judiciary.  According to the Congo, the French investigation impugns the honor and reputation of high-ranking Congolese officials and the state itself and damages the relations between France and the Congo.  The ICJ will hold public hearings regarding this request on April 28, 2003 and is expected to issue an order in May or June.  In order to grant such interim relief, the Court needs only to satisfy itself that prima facie evidence of jurisdiction exists based on the existence of a dispute between the parties, that there is urgency, and that unless such relief were granted, there would be a risk of irremediable harm to the subject-matter of the case.  Although an order granting such relief is binding, it can never be taken itself as establishing jurisdiction in the case and, therefore, does not preclude a subsequent finding that the Court lacks jurisdiction over all or certain claims or that the Application is inadmissible. 
The consent expressed by France in its letter of April 8, 2003 with regard to the Court's jurisdiction in this particular case appears to be restricted to the Congo's Application, raising the issue of the Court's jurisdiction to entertain the Congo's request for the indication of provisional measures, which, although being separate from the Application introducing proceedings, was known to France at the time of its expression of consent. [2]   Thus, France could argue that its specific consent does not extend to the Court's jurisdiction to entertain the request for provisional measures.  The Congo, on the other hand, could maintain that the Court inherently has incidental jurisdiction to entertain its request, given that there exists a case (as evidenced by its appearance on the General List) and that France's letter of April 8, 2003 provides prima facie evidence of jurisdiction.
This latest proceeding appears to have been inspired by the Court's judgment of February 14, 2002 in Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium). [3]   In that case, the applicant initially also challenged the legality of the Belgian law on universal jurisdiction, raising broader questions about the permissible scope of jurisdiction by national criminal courts over international crimes committed outside the territory of the prosecuting court.  However, the applicant in that case later refined its claim, so that the ICJ only had to decide the question whether the issue and circulation of an arrest warrant by a Belgian judge against an individual who was at the time the Congolese foreign minister, but who no longer held government office, violated his immunity from criminal process and made the arrest warrant unlawful under international law.  Consequently, the case before the Court was about whether ministerial immunity affected the lawfulness of the Belgian arrest warrant, and did not deal with the question whether the disputed warrant, issued in an exercise of purported universal jurisdiction, complied with the rules and principles of international law governing the jurisdiction of national courts.  Given that the DRC had dropped its challenge to the legality of the arrest warrant based on Belgium's claim to exercise universal jurisdiction, the Court assumed solely for the purpose of this case that Belgium had jurisdiction under international law to issue and circulate the warrant.  Thus, the decision left unaffected the Belgian law on which the Brussels magistrate based his arrest warrant and the Court did not reach the issue of whether a nation (including Belgium) may adopt and enforce in its domestic courts legislation involving alleged crimes under international law against any person where the alleged criminal acts did not take place in its own territory, and none of the victims/complainants or respondents were present in that nation.  The Congolese Application now squarely places this issue before the Court. 
In this context it is interesting to note that former ICJ President Gilbert Guillaume (France) in his separate opinion in the Belgian case concluded that, had the Court addressed the issue whether the Belgian judge had jurisdiction to issue an international arrest warrant against the DRC's foreign minister, it should have found that the judge was wrong in holding himself competent to prosecute the foreign minister by relying on a universal jurisdiction incompatible with international law. [4]
Significantly, the ICJ ruled in the Belgian case that, under customary international law, sitting foreign ministers when abroad enjoy full immunity from criminal jurisdiction and inviolability protecting them from "any act of authority" by another state which would hinder them in the performance of their duties.  The Court could discern no exception to this rule in state practice.  However, its reasoning was restricted to the legal position of the DRC's foreign minister vis-à-vis the Belgian authorities [5] and did not discuss the status of other high-ranking officials, such as a Head of State or a minister of the interior. [6]   Thus, the Congolese Application's characterization of the criminal immunity of a foreign Head of State as "an international customary rule recognized by the jurisprudence of the Court" is incorrect, though it could be argued that if a foreign minister is immune, a Head of State must be immune as well.  In fact, the French case presents novel issues on which the Court has yet to pronounce itself.  Presumably, it is for this reason that France agreed to give its ad hoc consent.
The Court's conclusion that incumbent foreign ministers are protected from "any act of authority" by another state that would hinder them in the performance of their duties raises the question whether "any act of authority" refers only to criminal warrants, or also includes civil subpoenas (including material witness warrants) and other forms of process that could hinder an official's performance because of the threat of judicial compulsion or enforcement.  Civil deposition subpoenas issued in such cases carry the possibility of compulsion by a national court, including in the form of contempt sanctions.  The Congo's Application, if upheld, will require the Court to define and clarify the meaning and scope of "any act of authority."
The full text of the press communiqués regarding this case (Nos. 2002/37 and 2003/14) is available on the World Court's Web site.
For further discussion of these and related issues, please see the previous ASIL Insight, "World Court Orders Belgium to Cancel an Arrest Warrant Issued Against the Congolese Foreign Minister" February 2002.
About the Author:  
Pieter H.F. Bekker, Ph.D. practices international law and arbitration at White & Case LLP in New York City, and formerly served as a staff lawyer at the ICJ in The Hague.  He has written two books (Commentaries on World Court Decisions (1987-1996) and World Court Decisions at the Turn of the Millennium (1997-2001), both with Kluwer) and numerous articles and notes on the ICJ.  He co-chaired the 94th Annual Meeting of the American Society of International Law in April 2000.
[1]      See ICJ Rules of Court, Art. 38(5) ("When the applicant State proposes to found the jurisdiction of the Court upon a consent thereto yet to be given or manifested by the State against which such application is made, the application shall be transmitted to that State. It shall not however be entered in the General List, nor any action be taken in the proceedings, unless and until the State against which such application is made consents to the Court's jurisdiction for the purposes of the case.").  For a discussion of "prorogated" jurisdiction (forum prorogatum), where mutual consent to jurisdiction is initially lacking prima facie, see Sienho Yee, "Forum Prorogatum in the International Court," 42 German Y.B. Int'l L. 147 (1999); Mohammed Bedjaoui, "The Forum Prorogatum Before the International Court of Justice: The Resources of an Institution or the Hidden Face of Consensualism," ICJ Yearbook 1996-1997, pp. 216-34 (speech before the Sixth Committee of the UN General Assembly in 1996 as president of the ICJ).
[2]      On this issue, see Sienho Yee, "Forum Prorogatum and the Indication of Provisional Measures in the International Court of Justice," in: The Reality of International Law - Essays in Honour of Ian Brownlie, 565 (G.S. Goodwin-Gill & S. Talmon eds. 1999).
[3]      The Democratic Republic of the Congo and the Republic of the Congo are separate states.
[4]      It will be interesting to see how the Rome Statute creating the International Criminal Court, which is the only international convention dealing with the prosecution of crimes against humanity and entered into force after the Court's decision in the Belgian case, will affect this viewpoint.
[5]      Pursuant to Article 59 of the ICJ Statute, the Court's decision has no binding force except between the parties and in respect to their particular case.  In other words, ICJ decisions do not create precedents that bind third states.
[6]      For a recent discussion see , e.g., Hazel Fox, "The Resolution of the Institute of International Law on the Immunities of Heads of State and Government," 51 International and Comparative Law Quarterly 119 (2002).