In its Application of 9 December 2002, the Republic of the Congo indicates that it seeks to found the jurisdiction of the Court, pursuant to Article 38, paragraph 5, of the Rules of Court, “on the consent of the French Republic, which will certainly be given”. In accordance with the above-mentioned Article, the Application by the Republic of the Congo was transmitted to the French Government and no action was taken in the proceedings (see Press Release 2002/37). By a letter dated 8 April 2003 and received today in the Registry, the French Republic stated that it “consent[ed] to the jurisdiction of the Court to entertain the Application pursuant to Article 38, paragraph 5”. This consent has made it possible to enter the case in the Court’s List and to open the proceedings.
This is the first instance since the adoption in 1978 of Article 38, paragraph 5, of the Rules of Court in which a State has thus accepted another State’s invitation to recognize the jurisdiction of the International Court of Justice to deal with a case against it.
In its letter, France added that its consent to the Court’s jurisdiction applied “strictly within the limits of the claims formulated by the Republic of the Congo” and that “Article 2 of the Treaty of Co-operation signed on 1 January 1974 by the French Republic and the 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”.
In its Application, the Republic of the Congo seeks the annulment of the investigation and prosecution measures taken by the French judicial authorities further to a complaint for crimes against humanity and torture filed by various associations against inter alia the President of the Republic of the Congo, Mr. Denis Sassou Nguesso, and the Congolese Minister of the Interior, Mr. Pierre Oba, together with other individuals including General Norbert Dabira, Inspector-General of the Congolese Armies. The Application further states that, in connection with these proceedings, an investigating judge of the Meaux tribunal de grande instance issued a warrant for the President of the Republic of the Congo to be examined as witness.
In its Application, the Republic of the Congo contends that by “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 order in his country”, France violated “the principle that a State may not, in breach of the principle of sovereign equality among all Members of the United Nations . . . exercise its authority on the territory of another State”. The Congo further submits that, in issuing a warrant instructing police officers to examine the President of the Republic of the Congo as witness in the case, France violated “the criminal immunity of a foreign Head of State, an international customary rule recognized by the jurisprudence of the Court”.
The Application of the Republic of the Congo was accompanied by a request for the indication of a provisional measure “seek[ing] an order for the immediate suspension of the proceedings being conducted by the investigating judge of the Meaux tribunal de grande instance”. According to the request,
“[t]he two essential preconditions for the indication of a provisional measure, according to the Court’s jurisprudence, namely urgency and irreparable harm, are manifestly satisfied in the present case.
The proceedings in question are perturbing the international relations of the Republic of the Congo as a result of the publicity accorded, in flagrant breach of French law governing the secrecy of criminal investigations, to the actions of the investigating judge, which impugn the honour and reputation of the Head of State, of the Minister of the Interior and of the Inspector-General of the Army and, in consequence, the international standing of the Congo. Furthermore, those proceedings are damaging to the traditional links of Franco-Congolese friendship. If these injurious proceedings were to continue, that damage would become irreparable”.
In accordance with Article 74, paragraph 3, of the Rules of Court, the President of the Court, Judge Shi Jiuyong, has fixed 28 April 2003, at 10 a.m., as the date for the opening of the public hearings on the request for the indication of a provisional measure submitted by the Republic of the Congo.
The Republic of the Congo has appointed His Excellency Mr. Jacques Obia, Ambassador of the Congo to The Netherlands, as agent in the case. The French Republic has appointed Mr. Ronny Abraham, Director of Legal Affairs of the Ministry of Foreign Affairs, as agent.