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ICJ International Court of Justice ICJ International Court of Justice Immunities and Criminal Proceedings (Equatorial Guinea v. France) 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 United Nations 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 Netherlands, 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.
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