1. Introductory remarks and relevant facts of the case
The Djibouti v. France case originated in the suspicious circumstances surrounding the death of Bernard Borrel, a French national who had been seconded as a technical adviser to the Ministry of Justice of Djibouti and whose charred body was discovered, on 19 October 1995, 80 km from the city of Djibouti. In connection with the Borrel case, a number of judicial proceedings were opened in France and in Djibouti, and bilateral treaty mechanisms of mutual assistance were resorted to by the parties. Those judicial proceedings, as well as the implementation of such mechanisms, gave rise to a dispute which Djibouti finally brought to the International Court of Justice (ICJ, Court) while seeking – and obtaining within certain limits – the consent of France to the jurisdiction of the Court under Article 38(5) of the Rules of the Court.Footnote 1
In its judgment rendered on 4 June 2008,Footnote 2 the International Court of Justice was called upon to examine several questions, including issues relating to the jurisdiction of the Court; the alleged violation by France of the Treaty of Friendship and Co-operation between France and Djibouti of 27 June 1977; the alleged violation by France of the Convention on Mutual Assistance in Criminal Matters between France and Djibouti of 27 September 1986; and the alleged violation by France of the jurisdictional immunity and/or the inviolability of three state officials, including Djibouti's head of state.
The present comments deal only with the Court's reasoning and findings on issues pertaining to the immunity from foreign criminal jurisdiction and the inviolability of state officials.Footnote 3
The judgment addresses issues relating to jurisdictional immunities in respect of Djibouti's claims in connection with (i) two witness summonses addressed by a French investigating judge to the president of the Republic of Djibouti while he was on an official visit to France on 17 May 2005, and again on 14 February 2007;Footnote 4 and (ii) a number of witness summonses as ‘témoins assistés’ addressed to the procureur de la République and to the head of national security of Djibouti on 3 and 4 November 2004 and on 17 June 2005, in the context of judicial proceedings for subornation of perjury.Footnote 5
In contrast, the Court did not pronounce itself on Djibouti's claims in connection with two arrest warrants that were subsequently issued, on 27 September 2006, by the Chambre de l'Instruction of the Versailles Court of Appeal against the procureur de la République and the head of national security of Djibouti. Those claims were considered by the Court to fall outside the acceptance by France of the jurisdiction of the Court pursuant to Article 38(5) of the Rules of the Court.Footnote 6
The question of inviolability was touched upon by the Court in relation to Djibouti's claim that, in view of the circumstances surrounding the witness summonses addressed to its head of state – in particular, the communication to the press, in breach of the confidentiality of the investigation, of information concerning the witness summonses as well as the time at which one of the summonses in particular was notified – the French authorities had violated the obligation to respect the honour and dignity of a foreign head of state.Footnote 7 On the contrary, the Court held that the 1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents,Footnote 8 which had also been invoked by Djibouti in support of some of its claims, was not relevant to the present case since it was ‘not applicable to the specific question of immunity from jurisdiction in respect of a witness summons addressed to certain persons in connection with a criminal investigation’.Footnote 9
One of the specificities of the Court's judgment in the present case is that issues relating to immunity and inviolability were examined in relation to acts which, although adopted in the context of criminal proceedings, were addressed to state officials who were not themselves accused – or not yet formally accused – of criminal conduct. This is certainly the case concerning the summonses as an ‘ordinary’ witness addressed to the Djiboutian head of state; but it is also true, to a certain extent, in relation to the summonses as ‘témoins assistés’ that were sent to the procureur de la République and to the head of national security of Djibouti.Footnote 10 Although, at a later stage, the two last officials were indeed regarded as ‘accused’ by the French authorities, as they were made subject to arrest warrants and were found guilty, in absentia, of subornation of perjury, all these events fell beyond the Court's jurisdiction in the present case.
Nevertheless, in spite of this peculiarity, the judgment rendered by the Court still constitutes an important contribution to the clarification of certain aspects of the legal regime of immunities of state officials, in particular with respect to the scope and operation of such immunities. This being said, it must be recognized that the Court's reasoning on a number of specific points does raise some questions, and that some controversial issues did not find a clear response in the judgment.
2. Types of immunities
A number of points deserve to be discussed in respect of the Court's contribution to the understanding of different types of immunities from foreign criminal jurisdiction which may accrue to state officials under international law.
2.1. Reaffirmation of the ‘personal’ immunity (immunity ratione personae) of an incumbent head of state
In its judgment the Court clearly reaffirmed the ‘personal’ immunity from foreign criminal jurisdiction of an incumbent head of state – immunity which is often also referred to as ‘ratione personae’, and sometimes even as ‘full’, ‘absolute’, or ‘total’, in the light of its broad material scope. The Court did so by recalling a passage of its judgment in the Arrest Warrant case,Footnote 11 in which it had referred to the ‘full immunity from criminal jurisdiction and inviolability’ of, inter alia, the incumbent head of state, protecting him or her ‘against any act of authority of another state which would hinder him or her in the performance of his or her duties’.Footnote 12
This immunity ratione personae which accrues to a foreign head of state while in office appears to be unchallenged.Footnote 13 It is widely recognized in legal doctrineFootnote 14 and has also been confirmed by national courts in several judicial instances.Footnote 15 Moreover, in the proceedings before the Court, the personal immunity of an incumbent head of state was also recognized by France, whose argument was not that such immunity did not exist, but that it had not been infringed by the two witness summonses addressed to the president of Djibouti.Footnote 16
This immunity is generally referred to as ‘ratione personae’, since it attaches to the status of the individual as an incumbent head of state, thus covering both official and private conduct, irrespective of whether such conduct was carried out by that individual before or during his or her term of office.Footnote 17 Moreover, it appears that such immunity accrues to the incumbent head of state irrespective of his or her presence in the forum state and, when present, of the circumstances of the visit (official, private, or even incognito).Footnote 18
2.2. Uncertainties regarding the categories of state officials possibly enjoying immunity ratione personae
Another aspect of the judgment on which some comments are warranted is the position adopted by the Court regarding the question of which categories of state officials may enjoy immunity ratione personae from foreign criminal jurisdiction, as opposed to immunity ratione materiae (also called ‘functional’ or ‘organic’ immunityFootnote 19) which is more limited in scope as regards the acts that it covers.Footnote 20
By denying in categorical terms the benefit of personal immunity to the procureur de la République and to the head of national security of Djibouti,Footnote 21 the Court appears to support the position that, apart from diplomatic agents or those state officials who may enjoy personal immunities under the 1969 Convention on Special Missions,Footnote 22 only a very limited number of incumbent high-ranking state officials such as the head of state, the head of government, and the minister for foreign affairs – that is, those officials explicitly referred to in the Court's judgment in the Arrest Warrant caseFootnote 23 – enjoy personal immunity under current international law.
It may well be that both parties, and in particular Djibouti in the oral proceedings,Footnote 24 finally agreed on this very limited scope of personal immunity as regards the categories of state officials covered by it (although in the initial submissions by Djibouti the issue of personal immunities was also specifically raised in connection with the claims regarding its procureur de la République and its head of national security).Footnote 25 However, the Court still noted that it did not appear absolutely certain that Djibouti had completely abandoned its claims relating to the alleged violation of personal immunities in respect of its procureur de la République and its head of national security.Footnote 26 Under such circumstances one could have expected the Court to address in a more detailed manner the question of the categories of state officials who may benefit from personal immunity. A need for some clarification in this respect does seem to exist in the light of the wording (‘such as’) used by the Court in its previous judgment in the Arrest Warrant case, whereby the door seemed to be left open to the possible recognition of immunity ratione personae to certain high-ranking state officials other than heads of state, heads of government, and ministers for foreign affairs.Footnote 27
It is true that the conclusion reached by the Court in the Arrest Warrant case as to the granting of immunity ratione personae to an incumbent minister for foreign affairs was largely based on the international nature of such a minister's functions, in particular on the fact that a minister for foreign affairs is frequently called upon to travel internationally and must be in constant communication with the state's diplomatic missions around the world as well as with representatives of other states.Footnote 28 In other words, it seems that, in the opinion of the Court, the ‘high rank’ criterion is not ‘conclusive as such’Footnote 29 in determining the categories of state officials who may enjoy personal immunity. It is also noteworthy that, in the proceedings before the Court, France made a similar argument by stating that the procureur de la République and the head of national security of Djibouti did not enjoy ‘absolute immunity from criminal jurisdiction or inviolability ratione personae’ precisely because of ‘the essentially internal nature of their functions’.Footnote 30
That said, the Court's judgment in the present case does not provide a clear answer to the question of whether certain incumbent high-ranking state officials, other than those identified by the Court in the Arrest Warrant case, could also enjoy immunity ratione personae under international law.Footnote 31 This question seems to remain unclear at the present stage of international law,Footnote 32 although such a possibility has recently been envisaged in the legal literatureFootnote 33 and by the Special Rapporteur of the International Law Commission on the topic ‘Immunity of State Officials from Foreign Criminal Jurisdiction’.Footnote 34 Moreover, while some instances have been reported in which domestic courts have denied immunity ratione personae to certain high-ranking state officials such as a minister of state, a minister of the interior, and a solicitor general, as well as heads of entities of federal states,Footnote 35 two recent pronouncements by British courts appear to have recognized a wider scope of immunity ratione personae by granting the benefit of such immunity to an acting defence minister and to an incumbent minister of commerce and international trade. It is to be noted, however, that these two decisions expressly referred to the Court's judgment in the Arrest Warrant case, thus relying on the functions – involving international travel and the conduct of diplomatic missions on behalf of the state – of, respectively, a defence ministerFootnote 36 and a trade ministerFootnote 37 in their own fields of activities and responsibilities. Indeed, as recently pointed out by one commentator, it may well be that the possibility of extending immunity ratione personae to other categories of state officials would depend on the degree of the involvement of such officials in international relations.Footnote 38
In any event, as underlined by the Special Rapporteur of the International Law Commission, there seems to be a real need for identifying the criteria that would have to be met by those other state officials in order possibly to enjoy immunity ratione personae.Footnote 39 According to him, the question arises, in particular, as to whether ‘the importance of the functions performed by high-ranking officials for ensuring the state's sovereignty’ could constitute ‘an additional criterion’ in this context.Footnote 40
2.3. Immunity ratione personae, immunity ratione materiae, and state immunity
Another aspect to be considered is the way in which the Court handled in its judgment the traditional distinction, which seems to be widely accepted by judicial organs and scholars,Footnote 41 between two different types of immunities which may accrue to state officials: (i) immunity ratione personae (sometimes also called ‘personal’, ‘full’, ‘absolute’, or ‘total’ immunity), which has already been alluded to and which has a broad material scope in that it exempts the state official from the jurisdiction of a foreign state in relation to both private and official conduct;Footnote 42 and (ii) immunity ratione materiae (also called ‘functional’ or ‘organic’ immunity), which, according to several commentators, would cover all state officials,Footnote 43 including former state officials, but only in relation to official conduct – that is, conduct performed by the state official in the discharge of his or her functions as organ of the state.Footnote 44 It seems that both parties to the dispute before the Court recognized the distinction between these two categories of immunities.Footnote 45
In the Arrest Warrant case, the Court did not explicitly refer to the above distinction,Footnote 46 and this may be understood in the light of the fact that the case concerned the issuance of an arrest warrant against an incumbent minister for foreign affairs who, according to the findings of the Court, enjoyed personal immunity from foreign criminal jurisdiction. In other words, although immunity ratione personae and immunity ratione materiae may well coexist and, to some extent, overlap with regard to certain conduct performed by a state official,Footnote 47 the question of the more limited immunity ratione materiae that might also accrue to a foreign minister in relation to acts performed in an official capacity did not need to be specifically addressed in the Arrest Warrant case. The situation in the Djibouti v. France case was quite different, since, as has already been mentioned, the Court denied the benefit of personal immunities to the procureur de la République and to the head of national security of Djibouti.
Under those circumstances, the issue of immunity ratione materiae could not be ignored by the Court, and this was even more the case since, in the oral proceedings,Footnote 48 the argument relating to immunity ratione materiae was developed in some detail by Djibouti in connection with its claims regarding the alleged violation of the jurisdictional immunities of its procureur de la République and its head of national security.
In its judgment the Court did make a distinction between two different types of immunity. It did so by opposing the ‘personal’ or ‘full’ immunity which, in the present case, only accrued to the Djiboutian head of state, to another type of immunity which was more limited in scope in that it only covered acts performed in the discharge of the official functions of the two other Djiboutian state officials. However, the Court apprehended the latter type of immunity through the prism of the immunity of the state itself, as opposed to an immunity that would accrue individually to state officials in respect of conduct performed in the discharge of their functions as organs of the state. Thus, with respect to Djibouti's claim to functional immunity (immunity ratione materiae) on behalf of its procureur de la République and its head of national security, the Court observed ‘that such a claim is, in essence, a claim of immunity for the Djiboutian State, from which the procureur de la République and the Head of National Security would be said to benefit’.Footnote 49 In other words, the Court substantially equated functional immunity of state officials (immunity ratione materiae) with state immunity.Footnote 50
Although this approach seems to find some support in the legal literature, in particular in relation to immunity from civil proceedings,Footnote 51 it is submitted that equating immunity ratione materiae with the immunity of the state itself may be problematic in some respects.Footnote 52
In particular, it is generally recognized that, under contemporary international law, state immunity is no longer absolute, in that it only covers so-called acta jure imperii, as opposed to acta jure gestionis.Footnote 53 Admittedly, this point did not raise any specific problems in connection with the judicial proceedings for subornation of perjury allegedly committed by the procureur de la République and by the head of national security of Djibouti; for it would be rather difficult to argue that the subornation of perjury – had it occurred and had it been attributable to Djibouti – would have constituted an actum jure gestionis. That said, if the immunity ratione materiae of a state official were nothing other – or nothing more – than the immunity of the state itself, one might be tempted to conclude that a state official would not enjoy immunity in respect of conduct performed in the discharge of his or her official functions, if such conduct were to be performed in connection with what would be considered an actum jure gestionis from the perspective of the state itself. However, due consideration should be given to the fact that an actum jure gestionis, although not covered by state immunity under current international law, may still qualify, from the perspective of the state official who performs it, as an act carried out in the discharge of his or her functions as an organ of the state.Footnote 54 Hence, since it is widely recognized that immunity ratione materiae has to be afforded to officials of a foreign state in respect of conduct performed in their capacity as organs of that state,Footnote 55 it does not appear to be acceptable to exclude acta jure gestionis from the scope of such immunity. This point is perfectly seen by one commentator who refers, inter alia, to this asymmetry between the scope of immunity ratione materiae of state officials and that of state immunity as a clear indication of the distinct nature of the two immunity regimes.Footnote 56
Moreover, as will be shown later, equating immunity ratione materiae with the immunity of the state itself might also have some implications when dealing with issues relating to invocation and waiver of immunity.Footnote 57
3. Acts covered by immunity (material scope)
Neither the Court nor the parties raised any question with respect to the acts covered by immunity in connection with Djibouti's claims regarding the witness summonses addressed to its president. The Court simply referred in this context to the ‘full immunity from criminal jurisdiction and inviolability’ of the head of state;Footnote 58 as already mentioned, it is indeed undisputed that immunity ratione personae covers both official and private conduct of the state official who enjoys that immunity. The only doubts that could be raised regarding the material scope of immunity ratione personae relate to whether or not such immunity must also be afforded in relation to conduct that would constitute a crime under international law,Footnote 59 a question which clearly did not arise in the context of the present case.
In contrast, as already recalled, it is unchallenged that immunity ratione materiae covers only official conduct – that is, acts or omissions by a state official in the discharge of his or her functions. The Court clearly confirmed the limited scope of this immunity when noting that
it ha[d] not been ‘concretely verified’ [to use the words of DjiboutiFootnote 60] before it that the acts which were the subject of the summonses as témoins assistés issued by France [against the procureur de la République and the head of national security of Djibouti] were indeed acts within the scope of their duties as organs of State.Footnote 61
Furthermore, the Court indicated that
[a]t no stage have the French courts (before which the challenge to jurisdiction would normally be expected to be made), nor indeed this Court, been informed by the Government of Djibouti that the acts complained of by France were its own acts, and that the procureur de la République and the Head of National Security were its organs, agencies or instrumentalities in carrying them out.Footnote 62
The Court's enunciation of this limited scope of immunity ratione materiae appears to be acceptable as a matter of principle. However, the reasoning followed by the Court on this issue does raise some questions.
First of all, no clarification is provided in the judgment regarding the precise criteria that need to be applied in order to distinguish between private and official conduct for purposes of immunity ratione materiae (or, following the Court's approach, for purposes of state immunity). In particular, the question arises as to whether or not such criteria should correspond to those governing the attribution of conduct to the state in the context of responsibility for internationally wrongful acts. Although the Court did not provide a clear response to this question, one may be tempted to believe that the Court's answer would be positive, especially in the light of its statement according to which ‘the State notifying a foreign court that judicial process should not proceed, for reasons of immunity, against its State organs, is assuming responsibility for any internationally wrongful act in issue committed by such organs’.Footnote 63
Assuming that the criteria applicable in the context of state responsibility are also relevant in order to circumscribe the material scope of immunity ratione materiae, it would follow that conduct carried out by a state official ‘in an apparently official capacity, or under colour of authority’ would be covered by such immunity, irrespective of the personal motives of the author of such conduct, regardless of any abuse of power that might have occurred, and even if the official, in performing such conduct, acted ultra vires by exceeding his or her authority or contravening instructions.Footnote 64
Arguably, this issue appears to be highly relevant to the present case, since it is most likely that any subornation of perjury, if perpetrated ‘under colour of authority’, would have constituted, on the part of the officials concerned, an excess of authority and should therefore be regarded as ultra vires. However, the question whether immunity ratione materiae also covers acts that are performed ultra vires remains controversial.Footnote 65 Domestic courts appear to have adopted conflicting positions on this point,Footnote 66 and the judgment rendered by the Court in the present case does not provide any indication in that respect.Footnote 67 In any event, it is submitted that excluding in general terms ultra vires acts from the scope of immunity ratione materiae from foreign criminal jurisdiction would be problematic, since this might lead to defeating the whole purpose of such immunity; for it would seem that, in most cases, official conduct giving rise to a criminal offence should probably also be regarded as ultra vires.Footnote 68
That being said, the Court's findings, according to which the official character of the conduct that was the subject of the summonses as ‘témoins assistés’ against the two Djiboutian state officials had not been ‘concretely verified’,Footnote 69 do raise some questions, both with regard to the extent to which the state invoking immunity ratione materiae needs to substantiate its claim and with regard to the determination of the material scope of such immunity in relation to a witness summons.
On the first point, there is no intention on our part to suggest that, in determining whether an act is covered by immunity ratione materiae, the position of the state invoking immunity would necessarily be decisive or should, as a matter of principle, be given more weight than the position that might be taken in this regard by the forum state.Footnote 70 In other words, as rightly pointed out by one commentator, ‘[t]he rule of functional immunity does of course not oblige courts to blindly accept any claim of a foreign state that an official has acted under its authority’; hence ‘a court may independently inquire into the reasonableness of such claim’.Footnote 71 However, it may be argued, especially in the context of an alleged immunity from testimony, that a state wishing to invoke such immunity cannot be deemed to have a duty to substantiate its claim by providing detailed information or evidence which might possibly defeat the whole purpose of that immunity.
Under the circumstances of this case it may be asked whether there were not sufficient grounds to believe that the alleged subornation of perjury, had it actually occurred, would most likely have been carried out by the two Djiboutian officials ‘under colour of authority’ – maybe by abusing their position as high-ranking state officials – and not merely in a private capacity.Footnote 72 Admittedly, Djibouti did not provide the Court with detailed information or evidence regarding the precise circumstances in which the alleged acts would have been perpetrated by the two officials concerned. It could be that the highly sensitive nature of this case discouraged Djibouti's authorities from doing so. But it could also be that the two individuals concerned might have been the only ones – or among the few – that would have been in a position to provide such information or evidence. Alternatively, it is also possible that the Djiboutian authorities might have considered that the disclosure of detailed information or evidence about the circumstances surrounding the alleged subornation of perjury would have been tantamount to a waiver of the alleged immunity from testimony. That said, it might be difficult to understand the reasons why Djibouti alluded in the oral proceedings to the need to ‘verify concretely the acts in question’.Footnote 73
Be that as it may, and without prejudice to the question of the lack of invocation of immunity before the French authorities,Footnote 74 it seems difficult to accept the Court's view that Djibouti had not informed the Court itself of the alleged official nature of the acts complained of by France.Footnote 75 For, at least in the course of the oral proceedings, Djibouti made it clear that the justification of the immunity invoked in respect of its procureur de la République and its head of national security was to be found in the fact that acts carried out in an official capacity – as opposed to private acts – ‘are to be regarded in international law as attributable to the State on behalf of which the organ acted and not to the individual acting as the organ’.Footnote 76
Some comments are also warranted concerning the way in which the Court formulated the limited scope of immunity ratione materiae in connection with a witness summons.
As already mentioned, the Court considered the relevant question to be whether the acts that were the subject of the witness summonses were indeed ‘within the scope of [the] duties [of the two officials] as organs of State’. In formulating the question in such terms, the Court was probably influenced by the specific nature of a summons as ‘témoin assisté’, which, in accordance with French law, is issued against an individual regarding whom some suspicions of criminal conduct indeed exist.Footnote 77 In other words, the subject of a summons as ‘témoin assisté’ may well relate to acts allegedly committed by the official concerned. However, the provision of information or evidence as a ‘témoin assisté’ may also concern facts which are not directly related to acts or conduct carried out by that official. Thus the criterion relied upon by the Court appears to be too restrictive when applied to a witness summons, be it as an ordinary witness or as a ‘témoin assisté’. Arguably a more appropriate criterion would be whether the required testimony possibly involves the provision of information or evidence on facts knowledge of which would have been acquired by the state official in connection with the performance of his or her functions as an organ of the state.Footnote 78 Such a broader criterion finds some support in domestic case lawFootnote 79 and seems also to be applied in the context of other types of immunity ratione materiae, such as the immunity accruing to officials of international organizations.Footnote 80 It has also been relied upon in a situation which, although arguably not involving immunity in a technical sense, raised the question of the admissibility of the disclosure, by a potential witness, of information ‘based on knowledge gathered . . . while carrying out official duties’.Footnote 81
4. Invocation and waiver of immunity
One of the decisive factors relied upon by the Court in order to reject Djibouti's claim that France had violated, through the issuance of the witness summonses, the immunity accruing to the procureur de la République and the head of national security of Djibouti, was that ‘these various claims regarding immunity were not made known to France, whether through diplomatic exchanges or before any French judicial organ, as a ground for objecting to the issuance of the summonses in question’.Footnote 82
The Court's reasoning on this point is extremely brief and raises certain questions with regard to two issues which, although interrelated, ought to be distinguished.
4.1. Invocation of immunity
The first issue relates to the invocation of immunity. In this respect, the question to be asked is whether immunity, in order to be applied, needs to be specifically invoked before the courts of the forum state by the foreign state or by the official(s) concerned, or whether those courts are under an obligation to afford immunity ex officio as soon as they become aware of the situation giving rise to it.
There may be no clear-cut answer to this question, on which divergent views have been expressed in the legal literature.Footnote 83 However, at least with respect to state immunity and immunity ratione personae, several elements may be identified which would seem to support the view that, when applicable, immunity should be given effect by the authorities of the forum state regardless of any specific invocation.
For instance, as far as state immunity is concerned, it is noteworthy that the 2004 Convention on Jurisdictional Immunities of States and Their PropertyFootnote 84 does not enunciate any requirement that immunity be specifically invoked by the state concerned in order for it to be applied by the forum state; rather, the legal regime that the Convention purports to codify appears to be based on the assumption that immunities have to be granted by the authorities of the forum state unless they have been waived by the responding state. This is confirmed by the wording of Article 6 of that convention, entitled ‘Modalities for giving effect to State immunity’; paragraph 1 thereof provides, inter alia, that a state ‘shall ensure that its courts determine on their own initiative’ that the immunity of a foreign state is respected.Footnote 85 Similarly, as regards the personal immunities accruing to diplomatic agents and members of special missions, the relevant conventions address only the question of waiver of such immunities (which must always be express) and not the question of their invocation.Footnote 86 The same solution appears to be implied, as regards the immunities of heads of state and heads of government, in the wording of the resolution adopted by the Institut de droit international at its Vancouver session in 2001.Footnote 87 Article 6 of that resolution provides that ‘[t]he authorities of the State shall afford to a foreign Head of State, the inviolability, immunity from jurisdiction and immunity from measures of execution to which he or she is entitled, as soon as that status is known to them’ (emphasis added).Footnote 88 Also, it should be noted that the Court, in its judgment in the Arrest Warrant case, held that Belgium had violated the immunity of the minister for foreign affairs of the Democratic Republic of the Congo without raising the question of whether such immunity had been properly invoked, before the Belgian authorities, by the Democratic Republic of the Congo or by the minister himself.Footnote 89
It may still be asked whether, with respect to immunity ratione materiae, a different solution should be given to the issue of its invocation.Footnote 90 Counsel for France had suggested, in the oral proceedings before the Court, that a distinction should be made in this context between personal immunity (immunity ratione personae) and functional immunity (immunity ratione materiae). While, in respect of a head of state or a minister for foreign affairs, it could be considered that ‘a presumption of immunity’ existed and that such a presumption might even be ‘absolute and probably irrebuttable’, the same was not true with regard to other state officials, who may only enjoy immunity ratione materiae. In the latter case, it was for national courts to assess, in each particular case, whether the conduct at issue had been performed by the state official in the context of his or her official functions.Footnote 91 Hence, according to counsel for France, since none of the two officials had invoked, in the present case, any immunity before the French authorities, the latter had not been given the opportunity to appraise the immunity claims that were subsequently brought to the International Court.Footnote 92 Thus, according to France, the Court did not have ‘sufficient evidence available to it to make a decision’; consequently, by issuing the summonses as ‘témoins assistés’ against the two Djiboutian officials, the French judicial authorities could not be held to have violated any international obligation.Footnote 93
Counsel for Djibouti, while rejecting the idea of any ‘presumption’ in this context, pointed to the need to assess, ‘when of course the issue of immunity has been raised’, whether the acts in question indeed fell within the scope of immunity ratione materiae.Footnote 94 Counsel for Djibouti also noted that it would be absurd to seek to apply to the present case ‘a sort of principle of prior exhaustion of local remedies’,
[j]ust as it would be absurd to claim that the fact that the two Djiboutian high officials have yet to avail themselves of their immunity within the context of the investigation into subornation of perjury wrongfully initiated against them in France prevents the Republic of Djibouti from asking the Court to adjudge and declare that France is violating to its detriment the principles of international law on immunities.Footnote 95
In substance, the Court followed the line of reasoning suggested by France, and summarily dismissed Djibouti's claims regarding the alleged violation of the jurisdictional immunities of its procureur de la République and its head of national security by stating that
At no stage have the French courts (before which the challenge to jurisdiction would normally be expected to be made), nor indeed this Court, been informed by the Government of Djibouti that the acts complained of by France were its own acts, and that the procureur de la République and the Head of National Security were its organs, agencies or instrumentalities in carrying them out.
The State which seeks to claim immunity for one of its State organs is expected to notify the authorities of the other State concerned. This would allow the court of the forum State to ensure that it does not fail to respect any entitlement to immunity and might thereby engage the responsibility of that State. Further, the State notifying a foreign court that judicial process should not proceed, for reasons of immunity, against its State organs, is assuming responsibility for any internationally wrongful act in issue committed by such organs.Footnote 96
The conclusion reached by the Court would appear highly questionable if it were to be considered that no general requirement exists in international law to the effect that immunity should be specifically invoked in order for it to be applied by the authorities of the forum state; as has been shown already, a number of elements may be found in support of that position. However, even if such a general requirement were deemed to exist, the Court's findings on this point may be problematic in some respects.
In particular, since it is generally recognized that issues relating to immunity need to be considered in limine litis,Footnote 97 it could be argued that the authorities of the forum state, when envisaging the issuance of an act which could reasonably entail the risk of infringing an entitlement to immunity ratione materiae, should preventively seek the position of the foreign state on whether the circumstances of the case might involve conduct performed by the state official in the exercise of his or her functions as an organ of the state. As has already been explained, this is not to suggest that the determination made by the foreign state should necessarily bind the forum state.Footnote 98 However, it is submitted that issuing an act without giving the potential problem of immunity the consideration which is required by the circumstances of the case could be regarded as incompatible with the principle of good faith.
In the present case, it does not appear that the French judicial authorities had ever taken any steps to seek the position of Djibouti before issuing the summonses as ‘témoins assistés’ against the two Djiboutian officials. It rather appears that Djibouti and its two officials were faced with a fait accompli. Moreover, in the event that these summonses had indeed violated the immunity of those officials,Footnote 99 it would be difficult to understand how such a violation could have been eliminated by a subsequent failure by Djibouti, or by the officials concerned, to notify the French authorities of their claims relating to immunity ratione materiae.Footnote 100 Also, given the circumstances of the case, it would be difficult to pretend that the French authorities could have found themselves in a situation of ‘excusable ignorance’ as to the potential risk of an infringement of the immunity ratione materiae of the Djiboutian officials.
Assuming, as the Court did, that immunity ratione materiae needs to be specifically invoked, an additional question would arise as to whether that invocation should necessarily be made by the home state or could also be made by the state official concerned. There does not seem to be a clear-cut answer to this question.Footnote 101 In this regard, the judgment refers to a lack of invocation by ‘the Government of Djibouti’Footnote 102 – that is, the state itself. This is not surprising, since the Court equated functional immunity with state immunity.Footnote 103 However, it should be noted that counsel for France had referred, in his pleadings, to a lack of invocation by the two officials concerned.Footnote 104
4.2. Waiver of immunity
While relying in its reasoning on Djibouti's failure to invoke immunity in respect of its procureur de la République and its head of national security, the Court did not explicitly address the question of waiver.Footnote 105 However, it could still be asked whether this alleged failure on the part of Djibouti to invoke immunity could have amounted to an implicit waiver thereof.
If, following the Court's approach, the immunity at issue were to be regarded as boiling down to the immunity of the state itself, rather than as a separate type of immunity accruing ratione materiae to the state officials,Footnote 106 the only question to be addressed would be whether, under the circumstances of the present case, Djibouti had indeed waived its own immunity; for there may be no doubt that a state is entitled to do so.Footnote 107 However, even if it were to be admitted that a waiver of state immunity need not always be express,Footnote 108 it might still be difficult to consider that, in the present case, Djibouti's conduct could have given rise to a waiver of immunity. In particular, although the letter sent by the lawyer of the two Djiboutian officials to Judge Bellancourt on 11 October 2005 did not attempt to justify non-compliance with the summonses by relying on the rules on immunity, but rather on the impossibility for Djibouti ‘as a sovereign State’ to ‘accept one-way co-operation of this kind with the former colonial Power’ and therefore to authorize the two individuals summoned to give evidence,Footnote 109 it is difficult to infer from this response any waiver of immunity on the part of Djibouti. For, besides the lack of any indication to that effect in the letter, it is widely recognized that a waiver of immunity may be made only by the state itself, through the organs that are competent to that effect in accordance with its domestic laws, and not by the official whose immunity is at issue.Footnote 110 Furthermore, it is not entirely clear until which point in time in the proceedings an immunity issue can still be raised.Footnote 111 These factors, together with the fact that the issue of waiver had not been specifically raised by France, probably explain why the Court did not state in its judgment that the relevant immunity had been waived due to a lack of invocation, but simply concluded that, because of Djibouti's failure to invoke immunity, it could not be held that France had committed any violation of such immunity.
In contrast, the question of waiver could become more problematic if immunity ratione materiae were considered to be an autonomous institution, distinct from the immunity of the state itself. In such a case, a waiver may well be conceivable if immunity ratione materiae were to be viewed, like personal immunity, as a mere procedural bar to the exercise of jurisdiction.Footnote 112 However, the situation with respect to waiver might be different if immunity ratione materiae were to be regarded, as some authors doFootnote 113 and as Djibouti itself did in the proceedings before the Court,Footnote 114 as a substantive defence predicated upon the assumption that the state official does not bear personal responsibility for conduct performed in the discharge of his or her functions as organ of the state, such conduct being only attributable to the state.Footnote 115 Arguably, if this rationale of immunity ratione materiae were accepted, a waiver of such immunity by the home state would be difficult to conceive, at least in respect of acts that have not been performed ultra vires.Footnote 116 It must be recognized, however, that this issue appears to be less problematic in the context of an alleged immunity from testimony.
5. Acts precluded by the operation of immunities: the notion of ‘constraining act of authority’ and its application to the present case
The judgment also contains some interesting considerations regarding the determination of those acts which, by their own nature, may constitute an infringement of the jurisdictional immunity of a state official.
The Court relied on a general criterion in order to determine which acts would be precluded by the operation of immunity from foreign criminal jurisdiction. According to the Court, such acts are those which qualify as ‘constraining acts of authority’.Footnote 117 This criterion appears to be consistent with the approach already followed by the Court in the Arrest Warrant case,Footnote 118 while also providing a further qualification regarding the nature of such ‘acts of authority’ which, indeed, need to be ‘constraining’ (‘contraignants’, in the authoritative French text of the judgment).
As a matter of principle, the criterion identified by the Court seems to be convincing. Also persuasive appears to be the Court's view that the concept of ‘constraining act of authority’ covers not only those acts that are addressed to state officials who are themselves accused of criminal conduct, but also certain acts – such as witness summonses or other orders – that may be notified, in connection with a judicial proceeding, to individuals who are not (or not yet) accused of criminal conduct.Footnote 119 Indeed, as has been pointed out recently, ‘the general trend appears to be to extend immunity from exercises of power by a foreign criminal justice system also to those State officials who are not themselves directly accused of a criminal act’.Footnote 120 Such a conclusion is supported by the findings of the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY), according to which the issuance of a sub poena duces tecum against a state official in order to secure the production of documents would constitute an infringement of the functional immunity enjoyed by that official.Footnote 121 Furthermore, with regard to the issuance of a witness summons, it should be recalled that, according to Article 31(2) of the Vienna Convention on Diplomatic Relations, ‘a diplomatic agent is not obliged to give evidence as a witness’.Footnote 122 The same rule is enunciated, concerning the members of a special mission, in Article 31(3) of the 1969 Convention on Special Missions.
The application of the criterion of the ‘constraining act of authority’ did not give rise to any problems in connection with the witness summonses as ‘témoins assistés’ that were issued against the procureur de la République and the head of national security of Djibouti. This was so because, as recalled by the Court, under French law an individual against whom a witness summons as ‘témoin assisté’ has been issued ‘is obliged to appear before the judge, on pain of being compelled to do so by the law enforcement agencies (Art. 109 of the French Code of Criminal Procedure), through the issuing of an arrest warrant against him’.Footnote 123 Hence these witness summonses could potentially constitute an infringement of the jurisdictional immunity enjoyed by the two Djiboutian state officials.
Similarly, although for the opposite reason, the application of the criterion of the ‘constraining act of authority’ did not raise any particular difficulty with respect to the second witness summons of 14 February 2007, notified to the Djiboutian head of state through the transmission service of the presidency of the French Republic. The Court observed that this ‘summons’ had taken the form of an invitation to testify issued following the procedure laid down by Article 656 of the French Code of Criminal Procedure, and therefore in accordance with French law. More importantly, ‘[t]he consent of the Head of State [was] expressly sought in this request for testimony, which [had been] transmitted through the intermediary of the authorities and in the form prescribed by law.’ The Court thus concluded that this measure ‘[could not] have infringed the immunities from jurisdiction enjoyed by the Djiboutian Head of State’.Footnote 124 On this point, the conclusion reached by the Court appears to be convincing.Footnote 125 Moreover, as will be shown later, the arguments invoked by Djibouti in connection with the alleged unlawfulness of this second witness summons relate more to the issue of due respect for the honour and dignity of a foreign head of state than to the question of jurisdictional immunities per se.Footnote 126
In contrast, the application of the criterion identified by the Court was more problematic with regard to the witness summons issued against the Djiboutian head of state on 17 May 2005, especially in the light of the ambiguity as to the binding effect of that summons under French law. In substance, the Court accepted the argument of France,Footnote 127 according to which this summons did not qualify as a ‘constraining act of authority’ as it was to be considered a mere ‘invitation’ addressed to the president. The Court found, in this respect, that the summons ‘was not associated with the measures of constraint provided for by Article 109 of the French Code of Criminal Procedure’, that ‘it was in fact merely an invitation to testify which the Head of State could freely accept or decline’, and that ‘[c]onsequently, there was no attack by France on the immunities from criminal jurisdiction enjoyed by the Head of State, since no obligation was placed upon him in connection with the investigation of the Borrel case’.Footnote 128
The failure by the French investigating judge to follow the formal procedures laid down by Article 656 of the French Code of Criminal Procedure, dealing with the ‘written statement of the representative of a foreign Power’, and, in particular, the channel through which the invitation was sent to the head of state – a simple fax – as well as the extremely short deadline that was set to him and the absence of previous consultation, were only regarded by the Court as a ‘regrettable’ failure to act ‘in accordance with the courtesies due to a foreign Head of State’, demands of international courtesy that French law itself took into account.Footnote 129 In other words, according to the Court, ‘all the formal defects under French law surrounding the summons’, for which ‘an apology would have been due from France’, ‘[did] not in themselves constitute a violation by France of its international obligations regarding the immunity from criminal jurisdiction and the inviolability of foreign Heads of State’.Footnote 130
The above conclusion may raise some questions in view of the consequences normally attached by French legislation to a failure to comply with a witness summons issued in accordance with Article 101 of the French Code of Criminal Procedure. It is true that no warning on such consequences was included in the summons notified to the president of Djibouti, as was indeed acknowledged by Djibouti in the proceedings before the Court.Footnote 131 However, as recalled by Judge ad hoc Yusuf in his Separate Opinion,Footnote 132 according to Article 109 of the French Code of Criminal Procedure (to which Art. 101(3) thereof expressly refers), a failure to comply with a witness summons without excuse or justification exposes the individual concerned to the risk of being compelled to appear by the law enforcement agencies and is also an offence punishable by a fine in accordance with Article 434-15-I of the French Criminal Code. Judge Yusuf also recalled that the French Cour de cassation had held, in a judgment of 10 October 2001, that the incumbent president of the French Republic was not subject to the obligation to appear as a witness in accordance with Article 101 of the French Code of Criminal Procedure precisely because such an obligation was associated with the enforcement measures provided in Article 109 of the French Code, and also because non-compliance with that obligation was regarded as a criminal offence.Footnote 133 It is worth mentioning that these elements had been specifically invoked by Djibouti in the oral proceedings.Footnote 134
Hence, irrespective of whether or not, according to French law, the consequences set forth in the above-mentioned provisions would indeed be applicable in the event of non-compliance with a witness summons which does not expressly recall them, it should be recognized that the Djiboutian head of state was put in a situation of considerable legal uncertainty as to the potentially binding nature of the witness summons and as to the consequences that he might have faced, under French law, in case of non-compliance therewith.Footnote 135 It may be argued that creating a situation in which a foreign head of state could reasonably believe him- or herself to have been made subject to a ‘constraining act of authority’ would by itself constitute a violation of his or her jurisdictional immunity. In this respect, it may be doubtful to what extent such uncertainty might have been eliminated, or attenuated, by the general assurances – referred to in the judgmentFootnote 136 – that were given by the spokesman of the French minister for foreign affairs, according to which France respected the immunity from jurisdiction enjoyed by heads of state ‘when travelling internationally’. Whether these assurances could be regarded as sufficient is highly questionable if due consideration is given, in particular, to the independence of the judiciary from the executive.
6. Issues relating to inviolability
As previously indicated, the Court found that the notification of the two witness summonses to the Djiboutian head of state did not constitute a violation of his jurisdictional immunity because those summonses did not qualify as ‘constraining acts of authority’. Moreover, the Court held that the modalities whereby the summons of 17 May 2005 had been notified to the Djiboutian head of state, although not in conformity with international courtesy, did not amount to a violation by France of its obligations under international law.
The question of jurisdictional immunities as such being now put aside, a sensitive issue still arises with regard to the distinction between a ‘simple’ disregard of ‘international courtesy’ and a violation by a state of its obligation to show respect for the honour and dignity of a foreign head of state. As suggested by the wording of Article 29 of the Vienna Convention on Diplomatic Relations, which the Court considered to reflect a customary rule that was ‘necessarily applicable’ to heads of state,Footnote 137 respect for the honour and dignity of a head of state may be viewed as one of the aspects of his or her inviolability. Moreover, according to the Court, the provision of Article 29 of the Vienna Convention
translates into positive obligations for the receiving State as regards the actions of its own authorities, and into obligations of prevention as regards possible acts by individuals. In particular, it imposes on receiving States the obligation to protect the honour and dignity of Heads of State, in connection with their inviolability.Footnote 138
Admittedly, it might be difficult to draw the line, in abstract terms, between the requirements of international courtesy and the obligations imposed by international law ‘in connection with [the] inviolability [of heads of state]’. The matter clearly needs to be addressed in the light of all the circumstances surrounding each specific case.
With respect, in particular, to the witness summons notified by fax to the Djiboutian head of state on 17 May 2005, it is worth noting that in his Separate Opinion Judge Koroma found, contrary to the Court, that France had indeed violated its obligations to respect the honour and dignity of a foreign head of state, due to the modalities of the notification of the witness summons.Footnote 139
The Court itself dealt with issues relating to inviolability in connection with the specific claims made by Djibouti regarding certain circumstances which had surrounded the issuance of the two witness summonses to its head of state.Footnote 140 In contrast, as already seen, the issuance of the witness summons as such was apprehended by the Court in relation to the question of jurisdictional immunity.
As regards the summons of 17 May 2005, Djibouti had claimed ‘that the communication to Agence France-Presse, in breach of the confidentiality of the investigation, of information concerning the witness summons addressed to its Head of State, [was] to be regarded as an attack on his honour or dignity’.Footnote 141 While considering that it ‘[did] not possess any probative evidence that would establish that the French judicial authorities [were] the source behind the dissemination of the confidential information in question’, the Court stated that, should that have been the case, such conduct ‘could have constituted, in the context of an official visit by the Head of State of Djibouti to France, not only a violation of French law, but also a violation by France of its international obligations’.Footnote 142 The Court reached the same conclusion with respect to Djibouti's similar allegations concerning the media coverage of the summons of 14 February 2007.Footnote 143
The question of the honour and dignity of a foreign head of state was also alluded to by the Court when summarily rejecting Djibouti's claimFootnote 144 that the summons of 14 February 2007 had been issued at an inappropriate time, when the president was in France to attend the 24th Conference of Heads of State of Africa and France.Footnote 145 The Court considered that this factor did not constitute a violation of the honour and dignity of the president of Djibouti.Footnote 146
Admittedly, a determination of what constitutes, in a given case, an attack on the honour and dignity of a head of state may entail delicate value judgements.Footnote 147 This is confirmed by the radically opposing assessments made by Judge SkotnikovFootnote 148 and Judge ad hoc YusufFootnote 149 regarding the media coverage of the witness summonses addressed to the Djiboutian head of state.
7. Concluding remarks
In its judgment in the Djibouti v. France case, the Court has undoubtedly made a valuable contribution to the clarification of certain aspects relating to the legal regime of immunities of state officials under international law. However, the Court's reasoning on certain points may raise concerns, and a number of important questions have not received a clear response in the judgment.
With respect to immunity ratione personae, the Court reaffirmed with no ambiguity the ‘personal’ and ‘full’ immunity of an incumbent head of state from foreign criminal jurisdiction. It also confirmed the limited scope of personal immunity in terms of the individuals covered, by denying the benefit of such immunity to the procureur de la République and to the head of national security of Djibouti. However, the Court did not expressly indicate that the two Djiboutian officials did not enjoy immunity ratione personae because of the internal nature of their functions as organs of the state; nor did the Court provide any indication as to whether and, in the affirmative, under what conditions certain high-ranking state officials other than heads of state, heads of government, and ministers for foreign affairs could enjoy immunity ratione personae under international law.
As regards immunity ratione materiae (functional immunity), the approach followed by the Court, whereby such immunity was simply equated with the immunity of the state itself, raises some difficulties, especially in relation to the material scope of that immunity and, in particular, to the issue – although arguably not relevant to the present case – of acta jure gestionis. Also, the criteria for distinguishing in this context between ‘private’ and ‘official’ conduct are still surrounded by a considerable amount of uncertainty – which the judgment did not contribute to reduce – in particular with regard to the complex and sensitive question of the legal treatment to be given to ultra vires acts. Moreover, the criterion adopted by the Court, whereby the acts at issue should be ‘within the scope of [the] duties [of the officials concerned] as organs of State’ in order to be covered by immunity ratione materiae, appears to be too restrictive when applied to a witness summons. In that case, it is submitted that immunity ratione materiae should be granted if the information or evidence potentially disclosed through the testimony concerns facts knowledge of which would have been acquired by a state official in the discharge of his or her functions as an organ of the state. Furthermore, as has been shown, the Court's treatment of the question of the invocation of immunity ratione materiae appears to be problematic in some respects, even if one were ready to acknowledge the existence of a general requirement that immunities be specifically invoked for them to be applied by the authorities of the forum state – a requirement the existence of which is doubtful in the opinion of the present writer.
The judgment provides some clarifications on the question of the acts precluded by the operation of jurisdictional immunity, be it ratione personae or ratione materiae. The Court referred in this context to the notion of ‘constraining act of authority’ as the determining factor in order to assess whether an act may constitute an infringement of immunity. While this criterion would seem to be acceptable as a matter of principle, the manner in which the Court applied it to one of the disputed acts – the first witness summons addressed to the Djiboutian head of state – appears to be questionable. The Court, in holding that the summons constituted a mere invitation to testify, relied on the rather formalistic argument that the summons did not contain any warning as to any legal consequence to which non-compliance might have led. However, it is submitted that an infringement of the jurisdictional immunity accruing to a head of state may occur when the latter is placed in a situation of considerable legal uncertainty regarding the binding character of a summons and the legal consequences which he or she could face in the event of non-compliance. As a minimum, it could be argued that the mere fact of creating a reasonable appearance that a foreign head of state may have been subjected to a ‘constraining act of authority’ would constitute by itself a violation of the honour and dignity, and therefore of the inviolability, of that head of state.
The present case confirms (if such confirmation were needed) that the issue of immunity of state officials from foreign criminal jurisdiction remains of the highest importance and sensitivity in international law and international relations. Moreover, the recent developments in the field of international criminal law and international criminal justice have made this issue even more controversial than it was in the past. It is therefore to be welcomed that the International Law Commission decided, at its 59th session in 2007, to include this topic in its current programme of work.Footnote 150 The Commission is still at a very early stage in its consideration of the topic. In 2008 a preliminary report was submitted by the Special Rapporteur, Roman Kolodkin.Footnote 151 The approach to the topic proposed therein is quite comprehensive, since it covers most of the aspects of the legal regime of immunity of state officials from foreign criminal jurisdiction. In particular, the Special Rapporteur proposed that the Commission examine the question of immunity of ‘all incumbent and former State officials’Footnote 152 (while also pointing out that the general perception in the Commission was that the scope of the topic did not include the immunities of diplomatic agents, consular officials, members of special missions, and representatives of states in and to international organizationsFootnote 153). There is little doubt that the Commission has embarked on a heavy task. This is not only because of the numerous issues to be addressed, but also – and above all – because of their enormous complexity. As the judgment in the Djibouti v. France case shows, in this area of international law the most ‘elementary’ question (according to the etymological meaning of that term) may become, in the light of the unforeseeable circumstances that may characterize or surround any given case, the most transcendental.
