On Immunity: Re-Reading Immunities and Criminal Proceedings (Equatorial Guinea v. France) Case


On Friday, December 11th 2018, the International Court of Justice (ICJ) issued its decision on the merits of the Immunities and Criminal Proceeding (Equatorial Guinea v. France) case. The 45-minute hearing brought an end to a 12-year relationship.


The court's findings date all the way back to December 2008, when a complaint for money laundering was filed with the Paris Public Prosecutor. Transparency International France asserted that Mr. Teodoro Nguema Obiang Mangue, the son of Equatorial Guinea's President and former Minister of State for Agriculture and Forestry, invested in France the proceeds of public money embezzlement in Equatorial Guinea. Mr. Obiang Mangue's Paris home, the building at 42 avenue Foch, was searched and luxury automobiles confiscated in late September-early October 2011 following the opening of a judicial inquiry. Despite the fact that the Equatorial Guinean Embassy sent a Note Verbale on 4 October 2011 stating that the building was used for diplomatic purposes, the French Ministry of Foreign Affairs refused to recognise the property's inviolability on the grounds that it was in the private domain and thus subject to ordinary law.


Following a series of events that included the relocation of the Equatoguinean Permanent Delegate to UNESCO to 42 avenue Foch, as well as additional searches and seizures by French authorities, the Paris High Court (Tribunal de grande instance) determined that Mr. Obiang Mangue purchased the building at 42 avenue Foch with the proceeds of the alleged crimes and ordered the "attachment of the building" (saisie pénale immobilière) on 19 July 2012. Only a week later, on 27 July, the Equatorial Guinean Embassy informed the French authorities of their relocation to 42 avenue Foch. The French Ministry of Foreign Affairs protested this move, citing an attachment order against the property, and refused to recognise the building as the 'premises of the mission.' Throughout this, Mr. Obiang Mangue was promoted to Second Vice-President of Equatorial Guinea and then to Vice-President in June 2016, a week after the application to initiate proceedings before the ICJ was filed.


Equatorial Guinea aimed to achieve three objectives with its application: ending French criminal proceedings into topics regarded to be within Equatorial Guinea's jurisdiction, and recognising Mr. Obiang Mangue and 42 avenue Foch's respective immunity and inviolability in these processes. Equatorial Guinea had abused its rights not only by promoting Mr. Obiang Mangue and granting him ratione personae immunity, but also by relocating their embassy to the property following the start of the criminal investigation in order to protect it from inviolability seizure, according to France's main counterargument. Due to a lack of prima facie jurisdiction under the Convention against Transnational Organized Crime (also called the Palermo Convention), the Court ordered provisional measures to protect 42 avenue Foch until the conclusion of international judicial proceedings under the Vienna Convention on Diplomatic Relations (VCDR), but not for Mr. Obiang Mangue's immunity (Palermo Convention). Joint dissenting opinions of Judges Xue (then-Vice-President), Robinson, Sebutinde and Judge ad hoc Kateka disagreed with the final outcome. In June 2018, the Court decided that it lacked jurisdiction under the Palermo Convention, but that it did have jurisdiction under the VCDR in the case of 42 avenue Foch, and that the questions of abuse of process and violation of rights will be decided on the merits. Vice-President Xue, Judges Sebutinde and Robinson, and ad hoc Judge Kateka wrote a joint dissenting opinion on the Palermo Convention, criticizing the majority position. The seizure order of 42 avenue Foch had been suspended since Mr. Obiang Mangue had previously been convicted in French courts. The Court answered the final outstanding question: can the building at 42 avenue Foch be inviolate as "mission premises" notwithstanding the French government's adamant opposition?


The Court's ruling begins by determining "under what circumstances a property acquires the status of "premises of the mission" within the meaning of Article 1 I of the VCDR" (para. 41), and then applies the Vienna Convention on the Law of Treaties' customary treaty interpretation rules, as set forth in Articles 31 and 32. (VCLT). Despite offering a definition of 'mission premises,' the Court decides that the VCDR is ‘of little use’ in determining how a property gets this status (para. 62). When it comes to contextual interpretation, the Court inserts the consent requirement. Since Article 2 of the VCDR specifies that "[t]he establishment of diplomatic relations between States, as well as permanent diplomatic postings, is by mutual agreement." The Court considers that this article prohibits the transmitting State from making a "unilateral designation notwithstanding the receiving State's apparent objection" (para. 63). Because the VCDR specifically says when the receiving state's approval is necessary in other sections (including paragraphs 12 and 19), Equatorial Guinea argued that the lack of this requirement regarding the naming of the premises would infer that consent is not required in this circumstance. This reasoning did not persuade the Court (para. 68), and the Court does not believe the treaty's silence is conclusive; imposing Equatorial Guinea's unilateral designation interpretation of Article 41 would be contrary to the treaty's object and purpose, which is the development of friendly relations between nations. The Court's position is strengthened by subsequent state practise, since numerous governments have clearly demanded their approval for the use of diplomatic premises. While this is not a "agreement of the parties" in the meaning of Article 31, paragraph 3 (b) of the VCLT, the Court considers that there is enough precedence to show that diplomatic premises cannot be designated unilaterally (para. 69).


The Court devises a three-step reasonableness test to address this: the receiving State's challenge to the sending State's designation of the diplomatic mission's premises must be timely, non-arbitrary, and non-discriminatory. If the objection is upheld, the property's classification as 'mission premises' is revoked (para. 74). The Court gives no appropriate justification for the three requirements, except from referring law establishing that governments must utilise discretionary powers properly and in good faith, and its short reference to Article 47 of the VCDR about non-discrimination is scarcely sufficient (para. 73).


The Court promptly concluded that France's complaint was timely (para. 92) and that France's objection had reasonable grounds that made it non-arbitrary by using this reasonableness criteria (para. 110). Certain inconsistencies in the French position were discarded by the Court because they did not amount to an implied acceptance of the building as "mission premises." In conclusion, the complaint was declared non-discriminatory since France did not treat another country differently in a comparable situation (para. 115). In determining whether the objection was arbitrary or discriminatory, the Court analyses the fact that Equatorial Guinea did not lose diplomatic facilities in France as a consequence of the objection; the French government continued to recognise the prior location as "mission premises" (para. 116). As a result, the objection passed the reasonableness test, and the Equatoguinean authorities had never received the necessary licence to build 42 avenue Foch as "mission premises." The Court decides that France has not breached its VCDR obligations by establishing that 42 avenue Foch never acquired the character of'mission premises.' Despite Judge Donoghue's robust dissent, France's major defence strategy–abuse of rights–was unsuccessful at the preliminary objections stage, it was therefore indirectly addressed.


Surprisingly, although the Court ruled by a majority of 9 to 7 that the land never acquired the character of "mission premises," it ruled by a vote of 12 to 6 that France had not violated the VCDR. The math does not seem to be correct. Who are the three people who (1) concluded that 42 avenue Foch was the Equatoguinean mission's location but (2) decided that France did not violate the VCDR, and what criteria impacted their decision?


President Yusuf, Judges Gaja and Sebutinde all voted no on the first point but yes on the second, and they have all affixed a statement or a separate position to the ruling, among other things. All three think that the property became the diplomatic mission's premises on July 27, 2012 – the date of the Note Verbale informing the relocation of the Embassy's offices to 42 avenue Foch – and that France did not breach the VCDR since the relevant events transpired prior to that date. Although they all rejected consent as a criterion, their reasons for doing so differed greatly. Judge Gaja just points out a few faults in the majority opinion's explanation for the requirement. While Judge Julia Sebutinde recognises that state practise may indicate a need to provide/receive authorization, she allows for objections based on the fact that the premises are not being used for the diplomatic mission. Another factor, such as ownership in France, cannot, in her judgement, be used to reject authorization. President Abdulqawi Yusuf takes a more strident stance, alleging that the permission requirement "appears to have been plucked out of thin air" and severely criticising the majority (para. 2, separate opinion). He notes that the terms have never been considered to need the permission of the receiving state, citing national and international case law, and points out that Equatoguinea's diplomatic station is now situated at 42 avenue Foch. Finally, he properly expresses worries about the verdict's influence for the development of friendly relations between nations. He has a point: the property is clearly being used as the mission's 'premises of operation' today; the issue is, what do we do from here?


Judges ad hoc Kateka, Vice President Xue, Judges Bhandari and Robinson, and Judge ad hoc Xue all agree France breached the VCDR, although for different reasons. In their criticism of the majority opinion on the consent requirement, Judge Robinson and Judge ad hoc Kateka date the acquisition of 'premises of the mission' status to 4 October 2011–the date of the Note Verbale stating that the building was used to perform the functions of the Equatoguinean diplomatic mission. On the date of July27,2012, Judge Bhandari agrees with President Yusuf and Judges Gaja and Sebutinde, but does not clarify what constitutes a violation of the VCDR by the French government. Although it is uncertain, it seems that he may consider the continuation of the objection beyond July 27, 2012 to be a violation. Finally, Vice-President Xue expresses his disappointment with the case's division into two sections at the jurisdictional stage–the criminal case against Mr. Obiang Mangue and the seizure of the property at 42 avenue Foch. She claims that by restricting the Court's jurisdiction, it was able to skirt key portions of the argument, such as "a State's rights and obligations under international law in conducting criminal actions involving a foreign State and its property" (para. 12, dissenting opinion).


Conclusion


Is the case genuinely closed now that it's been closed? The permission requirement and reasonableness test are insufficient, especially considering that they are aiming to settle a non-issue: 'it is the criterion of being "used for the aims of the mission"[...] that identifies a facility as diplomatic premises,' as President Yusuf puts it (separate opinion, para. 59). If a solution is found, the first concern should be what will happen to the diplomatic post at 42 Avenue Foch. The building's ownership status as "premises of the mission" is worthless even if the land title is transferred to the French government. The main issue is that Equatorial Guinea never received this status and hence cannot claim any benefits that come with it. At the end of the day, it seems that the facts (that the Equatoguinean mission operates from 42 avenue Foch) and the law (that 42 avenue Foch was never legally declared as a 'premises of the mission') are incompatible. Is it feasible to separate law from reality? The Court's practise is eerily similar to a resounding 'yes.'


Teodorin Nguema Obiang Mangue, Equatorial Guinea's vice president and president's oldest son, was convicted of embezzlement and money laundering by two subordinate courts on July 28, 2021, according to France's highest court, the Cour de Cassation. The ruling puts an end to more than a decade of legal wrangling and confirms France's sovereignty over around €150 million (US$177 million) in stolen assets that must be returned to Equatorial Guinea for the benefit of those who have been wrongfully detained. "Today is a huge win in the battle against kleptocrats stealing public money to support lavish lives overseas, robbing the people of Equatorial Guinea of their fundamental social and economic rights," said Sarah Saadoun, senior business and human rights researcher at Human Rights Watch. "France now joins the United States and Switzerland in holding a total of $237 million in confiscated assets that must be returned to help Equatorial Guinea's people."


The court's decision puts an end to a corruption case launched against Nguema Obiang by two anti-corruption organisations in France, Transparency International-France and Sherpa, in 2008. Nguema Obiang was the minister of agriculture and forestry at the time, but he was promoted to vice president in 2016 in a blatant effort to bolster his claim to diplomatic immunity. The case, which sprang from a US Senate investigation into a US bank's involvement in helping Equatorial Guinea's president and his family's wrongdoing, showed that Nguema Obiang took use of his position to syphon money from the country's accounts and launder it in France. He bought a 101-room mansion on Paris's famed Avenue Foch, as well as a fleet of high-end vehicles, art, watches, designer apparel, and fine wines, via a network of businesses. As a consequence of the court ruling, France has become the third country to seize assets from Nguema Obiang that must be returned for the benefit of Equatoguineans. On July 20, France passed laws requiring the return of seized assets in corruption cases to the people from whom they were stolen.



The US Department of Justice seized Nguema Obiang's assets in 2011 for more than $70 million, while Switzerland seized his $100 million super yacht and 25 autos in 2017. The matter was settled by the US Justice Department in 2014 when Nguema Obiang consented to pay $30 million, while Swiss prosecutors wrapped up their investigation in 2019 when Nguema Obiang agreed to relinquish the cars, which sold for $27 million at auction. Both agreements provide for forfeited assets to be transferred to the benefit of the people of Equatorial Guinea, but neither government has done so yet. Based on the facts obtained in these cases, the United Kingdom issued asset freezes and travel restrictions on Nguema Obiang on July 23. The stolen money of the three countries, which is pending repatriation to Equatorial Guinea, may finally offer tangible benefits from oil wealth to the ordinary public, which has historically been enjoyed largely by a small number of political elite. However, since Nguema Obiang is still in power and corruption is widespread in the nation, there is a significant risk that the assets would be misused if they are returned. These corruption proceedings have been described by Equatorial Guinean officials as a neocolonialist effort by other nations to plunder the country's natural resource wealth, emphasising the need of separating recovered assets from the administration that stole them.