ICJ International

Court of Justice

Immunities and Criminal Proceedings

(Equatorial Guinea v. )

Court: International Court of Justice

I. History

The International Court of Justice has a long back story that leads to the court that we know nowadays. The predecessor of ICJ is called the Permanent Court of International Justice, which was created after Article 14 of the Covenant of the League of Nations, that seeked an organ that would be in charge of the international disputes and give advisory services to the Council or Assembly of the League of Nations. Although the creation of PCIJ was thanks to the League of Nations, it never was part of the League, they worked as separate organizations.

The PCIJ stopped their actions in 1939, due to the starting of WWII, during the war past members of the League of Nations felt that still, an organ to seek peace between countries was needed, but because of the difficult situations the reencounter never happened. Until the war ended, there was a feeling the PCIJ belonged to an ancient era, a renewal was needed, so with the creation of the Charter, Article 33 was stipulated that an international court that seeks negotiation and peace was needed.

Officially all the judges of the PCIJ resigned on 31 January 1946. On February 6, 1946, the new judges were elected at the First Session of the United Nations General Assembly and Security Council. In April 1946 the PCIJ was officially dissolved and the first president of the International Criminal Court was elected: Judge José Gustavo Guerrero from El Salvador. He was the last president of the PCIJ and was elected the first president of the International Court of Justice.

The ICJ, located in the , is one of the main six organs of the United Nations, it counts with 15 judges, elected by a nine-year term, voted by the United Nations General Assembly and the Security Council. For a judge to be part of the ICJ, they need to have the majority of the votes on both organs. If not, then several rounds of voting are needed. The ICJ’s main objective is to settle disputes between countries and provide advice on the legal field to the United Nations committees and specialized agencies.

II. Case: The Republic of Equatorial Guinea vs the French Republic

Starting in 2007, criminal proceedings were brought against numerous African Heads of State to the Paris Public Prosecutor and France’s Tribunal de grande instance. The complaints were lodged by private individuals and associations, such as the Sherpa, Survie, and the Fédération des Congolais de la diaspora among others. The accusations revolved around money laundering, corruption, breach of trust, and misuse of corporate assets (Irujo, 2017). Among the many charged was Mr. Teodoro Nguema Obiang Mangue.

Mr. Teodoro Nguema Obiang Mangue served from 1997 to 2012 as the State Minister for Agriculture and Forestry of the Republic of Equatorial Guinea. In May of 2012, Mr. Teodoro was allotted and is still serving, as Second Vice-President in charge of Defence and State Security. This high-ranking position denotes him as the person in charge of the police, armed forces, immigration officials, and armed forces. It was during his serving time as Vice-President that he was called to appear in french court by Transparency International for judicial examination, accused of “misappropriation of public funds in their country of origin, (Equatorial Guinea)” and money laundering from corrupt practices and illegal commissions. This concerned the french authorities because they have “allegedly been invested in France'' in material form. Among the main concerns of material investment for the French court was the building at 42 Avenue Foch in Paris worth around €100 million (ICJ, 2016).

On July 13 of 2012, an arrest warrant was sent out for the Vice-President of Equatorial Guinea. Regardless, Mr. Nguema did not show up based on “immunity accorded by international law” for his position in the office. After failing to appear, French authorities searched the premises of the building at 42 Avenue Foch in Paris looking for Mr. Teodoro because he was listed as the real owner. Since Mr. Nguema was not at the property, the investigating chamber upheld an order of attachment under the Code of Criminal Procedure for the building. Since then, the case was transferred within French courts (ICJ, 2016).

On 15 December 2015, the Cour de cassation, France’s highest judicial power, officially rejected Mr. Teodoro’s criminal immunity and stated that the building at 42 Avenue Foch in Paris did not count with any form of legal protection (ICJ, 2016).

There have been various attempts to settle the dispute between Equatorial Guinea and France concerning the Vice-President’s, Mr. Teodoro Nguema, immunity, and the legal status of the property at 42 Avenue Foch. Yet, all have failed to settle the dispute. On June 13, 2016, Equatorial Guinea brought before the International Court of Justice an Application instituting proceedings against the French Republic concerning the dispute of the criminal proceedings and its implications (ICJ, 2016).

a. Matters in Doubt:

1. Mr. Teodoro Nguema immunity: Equatorial Guinea claims that as Vice-President of the nation, in charge of Defense and State Security, Mr. Teodoro holds immunity from foreign criminal proceedings. By attempting to prosecute Mr. Teodoro, France has violated international law, the Vienna Convention on Diplomatic Relations of 18 April 1961, and the United Nations Convention against Transnational Organized Crime.

2. The building on 42 Avenue Foch: This property is argued as part of Equatorial Guinea’s “diplomatic mission” and serves as an embassy. The French Republic has failed to recognize it as such and has proceeded to confiscate it, which consequently breaches the Vienna Convention on Diplomatic Relations of 18 April 1961, the United Nations Convention, and general international law.

b. Conventions and Treaties to Consider

1. Vienna Convention on Diplomatic Relations 1. Article 1 2. Article 2 3. Article 3 4. Article 22: Conditions of the premises 5. Article 31-40

ii. United Nations Convention against Transnational Organized Crime (Palermo Convention) 1. Article 4: Protection of Sovereignty

2. Articles 6: Criminalization of the laundering of proceeds of crime 3. Article 12: Confiscation and seizure 4. Article 14: Disposal of confiscated proceeds of crime or property 5. Article 18: Mutual legal assistance 6. Article 35: Settlement of Disputes 7. General provisions a. Article 4: Scope of Applications

iii. Statue of the Court 1. Article 36 2. Article 37

III. Constituents of the International Court of Justice

a. Judges

1. Judge Xue Hanqin (China) 2. Judge Peter Tomka (Slovakia) 3. Judge Ronny Abraham (France) 4. Judge Mohamed Bennouna (Morocco) 5. Judge Antônio Augusto Cancado Trindade (Brazil) 6. Judge Joan E. Donoghue (United States of America) 7. Judge Giorgio Gaje (Italy) 8. Judge Julia Sebutine (Uganda) 9. Judge Dalveer Bhandari (India) 10. Judge Patrick Lipton Robinson (Jamaica) 11. Judge James Richard Crawford (Australia) 12. Judge Kirill Gevorgian (Russian Federation) 13. Judge Nawaf Salam (Lebanon) 14. Judge Yuji Iwasawa (Japan)

b. Representatives of Equatorial Guinea

1. Mr. Carmelo Nvono Nca, Ambassador of the Republic of Equatorial Guinea to the Kingdoms of Belgium and the Netherlands 2. Mr. Anatolio Nzang Nguema Mangue, Public Prosecutor of the Republic of Equatorial Guinea, 3. Mr. Francisco Evuy Nguema Mikue avocat of the Republic of Equatorial Guinea, 4. Mr. Francisco Moro Nve Obono, avocat of the Republic of Equatorial Guinea, 5. Mr. Maurice Kamto, Professor at the University of Yaoundé II (Cameroon), member of the Paris Bar, former member and former chairman of the International Law Commission, 6. Ms. Magdalena Nanda Nzambi, the advocate of the Republic of Equatorial Guinea, 7. Mr. Miguel Oyono Ndong, Ambassador of the Republic of Equatorial Guinea to the French Republic, 8. Mr. Juan Olo Mba, Minister Delegate for Justice of the Republic of Equatorial Guinea c. Representatives of the Republic of France

1. Mr. François Alabrune, Director of Legal Affairs, Ministry of Europe and Foreign Affairs 2. Mr. Julien Boissise, Legal Consultant, Directorate of Legal Affairs, Ministry of Europe and Foreign Affairs 3. Mr. Nabil Hajjami, Legal Consultant, Directorate of Legal Affairs, Ministry of Europe and Foreign Affairs 4. Ms. Sophie Lacote, Head of the Office of Economic, Financial and Social Law, the Environment and Public Health, Directorate of Criminal Affairs and Pardons, Ministry of Justice 5. Ms. Hélène Petit, Legal Consultant, Embassy of France in the Netherlands 6. Ms. Charlotte Daniel-Barrat, chargée de mission for legal affairs, Embassy of France in the Netherlands, 7. Mr. Ludovic Legrand, Doctor of Public Law, University Paris Nanterre 8. Mr. Luis Vassy, Ambassador of the French Republic to the Kingdom of the Netherlands

IV. Student preparation

Both actors, Judges, and Representatives, must be fully familiarized with the case. It is advised that they read the International Court of Justice’s official documents concerning the case.

i. Both representatives are encouraged to look at: a. Application instituting proceedings b. Request for the indication of provisional measures submitted by the Government of Equatorial Guinea. c. Written replies of Equatorial Guinea to the questions put by Judge Bennouna and Judge Donoghue at the public sitting held on 19 October 2016 at 5 p.m. d. Comments of France on the replies of Equatorial Guinea to the questions put by Judge Bennouna and Judge Donoghue at the public sitting held on 19 October 2016 at 5 p.m.

ii. Representatives of the Republic of France: a. Preliminary objections of France b. Counter-Memorial of the French Republic c. Verbatim record 2016/17

iii. Representatives of the Republic Equatorial Guinea: a. Verbatim record 2016/14 b. Verbatim record 2018/3 c. Verbatim record 2018/5 Only representatives will be the ones creating a position paper. The position paper must include the basic facts of the case, the events leading up to the dispute, and their countries position regarding the dispute.

V. Guiding Questions:

a. Judges 1. What role has your judge played in the International Court of Justice? 2. What are their perspectives?

3. From which other cases can the International Court of Justice justify their jurisdiction over this particular case? 4. How is the record of your judge inside and outside of the court?

b. The representative of the Republic of France

1. Under what legal grounds did French authorities decide to confiscate the building at 42 Avenue Foch? 2. Why should the ICJ not pursue this case? 3. How can France justify their actions to the court?

c. Representatives of Equatorial Guinea

1. How else can you defend the court’s jurisdiction over the Vienna Convention? 2. Why should Mr. Teodoro be granted criminal immunity? 3. Why should the building at 42 Avenue Foch be protected and how?

VI. How it works (in UDEMUN)

a. Actors

In the International Court of Justice, students will not be delegates, but rather judges or representatives. Participants will represent either one of the judges of the International Court of Justice or one of the representatives for each state from the list mentioned above.

They will address other participants as “Judge” accompanied by either the full name or simply the last name. The proper way would be "Judge Peter Tomka" or "Judge Tomka". Judges are allowed to use personal pronouns when referring to themselves. For UDEMUN, Vice-President Xue Hanqin will be turned into a judge.

Representatives are individuals who will argue in favor of their corresponding country. Regardless of their official profession, in UDEMUN’s International Court of Justice, all representatives will have a legal voice in the hearings. They are allowed to use personal pronouns. To address a representative, you must always say Mr. or Ms. followed the representative’s full name or last name.

b. Guidance

Within this court, the debate will be guided by the President, which serves the same role as the moderator in a regular committee. Furthermore, the Director will evaluate the judges’ and representatives' participation. Lastly, the Vice-President will aid in administrative matters of the debate. In this court, the President can overrule at any given moment. Additionally, participants are allowed to make a Point of Inquiry about parliamentary procedures.

c. Regulations of the Court

During the International Court of Justice's sessions of debate, judges must follow the Rules of Court. Moreover, judges will follow the Statue of the International Court of Justice. All participants are advised to be familiar with the following articles: a. Article 36 b. Article 37

d. Stance

Judges must come with a pre-made investigation on articles related to the case and research of the case. They are encouraged to create a small investigation paper that sums up all their research. Yet, they must build and consolidate their judgments during the progress of the debate after hearing each of the State’s stance. Students must engage in active and mindful listening of the arguments presented. From the arguments expressed in court, judges should be able to reference them in their questions and final deliberations.

Representatives must come fully prepared to defend their country’s position and the reason behind their actions. They must always defend their state’s interest and back up their arguments with legal articles. They are required to write a position paper

explaining the events leading up to the dispute, the reason behind their country’s actions and additional information that justifies their country’s position.

e. Parliamentary Procedures

Contrary to the usual procedures used in regular Model UN committees, the International Court of Justice will be oriented by an adapted version of the Rules of the Court and the Statue of the International Court of Justice. In the following section, you will find the: trial members, trial flow, the general rules, motions and points, and general disclaimers.

a. Trial Members

i. Chair 1. President: Serves as the moderator of the court. Controls the trial flow, and chooses which judge has the word. The president has the final say in the passing of a motion or establishment of a point if they see it fit. The president is allowed to apply verbal and written warnings. 2. Director: This member is in charge of evaluating the quality and value of each of the judges' participation. Similar to the president, the vice-president is also in charge of applying warnings. 3. Vice-President: Aids with administrative matters during the session.

ii. Representative

These members serve as private defenders of the parties involved. Each representative needs to make a previous investigation about their case, understanding both sides of the parties involved, to create their arguments based on facts, and know the objective and perspective of the opposite side. They must be fully familiarized with treaties and conventions argued in the case.

iii. Judges

As participants in this role, judges will be in charge of actively listening to each of the parties’ arguments and deliberations. They must question and synthesize the information shared by the representatives. They are encouraged to discuss with other fellow judges the terms of the final judgment. More importantly, they must be able to consolidate their posture regarding the case by the end of the trial and have their unique perspective of the case.

b. Points and Motions

The same points and motions that are commonly used at UDEMUN’s protocol are going to be used in this simulation.

c. Trial Flow

i. Roll call: The vice-president will call the roll. Judges are required to raise their placards and express their presence.

ii. Opening the session: The president will call for a motion to open the session. It will be seconded by another judge and voted by the rest of the court members. Afterward, the president will call for a motion to set the agenda. The number of points of information, points of commentary, follow-ups, and time limit per deliberation will be proposed by the judge that made the motion. Similar to the past motion, one judge will second the motion and the rest will vote on its approval.

iii. Case presentation: After the agenda has been set, the representatives will provide judges with contextual information regarding the case. The president will call for a motion to open the speaker list. In the speaker list, only representatives will participate. They must present the case from their country's perspective and provide additional information to justify their country’s actions leading up to the incident. There will be a maximum of 3 speakers per country, in total 6 representatives will present the case. The

previously established agenda will be the one used. After each speaker, Judges are allowed to ask questions or make comments regarding the information presented. iv. Moderated Debate: Arguments for jurisdiction: Afterward, the president will call for the first moderated debate. In this moderated debate, all actors present are allowed to express to the court why they believe the International Court of Justice does or does not have jurisdiction over the matter. Only arguments for jurisdiction will be allowed to be said during this moderated debate. Judges are encouraged to voice their opinions during this section as well. v. Moderate debate: Discussion of the facts and actions: Representatives being accused must justify with legal arguments the reason behind their actions. They must be able to reference treaties, conventions, and constitutions, and the specific articles under them that back up their exertions. Furthermore, the representatives accusing (the applicants) must highlight the consequences brought upon states through the other party’s actions. Additionally, representatives must also mention how their State is being harmed, tainted, or eroded by the party accused. In this section of the debate, the representatives accusing must also state what they believe the court should do and why. It can range from setting a specific territorial limit, announcing the legitimacy of a treaty, pressuring states to drop charges, granting immunity, deciding whether violations to a convention or treaty were made, etc. Judges are allowed to share their opinion regarding the deeds discussed. They are highly encouraged to ask the representatives about specific matters not mentioned that need addressing. vi. Unmoderated: Reviewing process and writing of closing statements: The president will call for a motion to begin an unmoderated debate. Representatives will be divided and they should discuss their final declaration of the case, making sure that they are using all the information that they research and that was discussed during the moderated caucus. They must write a closing statement, in which they show their proposition. The purpose of the closing statements

is to present a written pronouncement that should convince the judges to take a representative team’s side. Representatives accusing should include: a brief presentation of the case and the facts, the articles that justify the courts’ jurisdiction, the articles violated and the implications and a proposition of stance that the court should take regarding the issue. Representatives being accused should include a brief presentation of the case and the facts, articles that refute the court’s jurisdiction, articles that justify the party’s actions, and a proposition of the stance that the court should take regarding the issues.

vii. Closing statements: Using the same agenda of the speakers’ list, two of the sponsors of each representative team present their final closing statements, questions would be made exclusively by the judges, to get all the information needed for their final deliberation statements.

viii. Final Deliberations: A motion to vote for deliberations would be in order. In this voting process, the only ones allowed to vote are the judges. This will be made by roll call, we encourage the judges to vote with rights since the objective of this process is to know the reasons for their voting. d. Disclaimers

i. Students are expected to be familiarized with legal terms and be able to read documents with law-related vocabulary. ii. This simulation does not have to follow the events of the real trial. We encourage you to explore the other possibilities that could have occurred for this case. iii. Judges and representatives alike are expected to research the topic outside the International Court of Justice’s official case information. iv. Investigating the function of the court in external cases to find alternative means to justify arguments is a valuable way to enrich the debate.

v. If the student wishes to excel, we encourage them to not limit themselves to the resources recommended.

VII. Bibliography

International Court of Justice. (2016) APPLICATION INSTITUTING PROCEEDINGS filed in the Registry of the Court.

Irujo, J.M. French justice condemns Teodorín Obiang to three years in prison for corruption. Retrieved on November 15, 2020, from https://elpais.com/internacional/2017/10/27/actualidad/1509097032_406845.html

United Nations. (2001). United Nations Convention against Transnational Organized Crime. Retrieved on November 15, 2020, from https://www.unodc.org/pdf/crime/a_res_55/res5525e.pdf

United Nations. (1961). Vienna Convention on Diplomatic Relations. Retrieved on November 15, 2020, from https://legal.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf