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Home EJIL Analysis Equatorial Guinea v France: What are the Limits on Prosecution of Corruption-Related Money Laundering by Foreign Officials?

Equatorial Guinea v France: What are the Limits on Prosecution of Corruption-Related Money Laundering by Foreign Officials?

Published on July 29, 2016        Author: 

On 14 June 2016, the International Court of Justice (ICJ) announced that Equatorial Guinea had instituted proceedings against France before the Court. Equatorial Guinea’s claims arise from the French prosecution of Teodoro Nguema Obiang Mangue, First Vice-President of Equatorial Guinea, on charges of corruption-related money laundering. This is the first time that allegations related to large-scale corruption – often dubbed as ‘kleptocracy’ or ‘grand corruption’ – engender a dispute before the ICJ. This post offers an overview of some of the legal issues that the Court may address in the course of this litigation.

Background

Mr Obiang is First Vice-President of Equatorial Guinea and the son of the country’s president, Teodoro Obiang Nguema Mbasogo (who is, incidentally, the world’s longest-serving president, in power since 1979). At the time when the proceedings were brought, Mr Obiang was Second Vice-President in charge of defence and security, having been promoted to his current post on 22 June 2016.

The two statesmen are no strangers to controversy. Allegations of corruption have been levelled against them repeatedly (see, e.g., here and here). In 2014, Mr Obiang surrendered part of his US-based property in settlement of US v One White Crystal-Covered ‘Bad Tour’ Glove et al, an asset forfeiture case brought by the US Department of Justice that involved his collection of Michael Jackson memorabilia and real estate. A criminal investigation is reportedly underway in Spain and corruption-related human rights litigation against Equatorial Guinea is pending in the African Commission on Human and Peoples’ Rights.

The French investigation against Mr Obiang arises from a criminal complaint submitted by Transparency International France and Sherpa, two anti-corruption NGOs. Their allegation is that he has pilfered the coffers of Equatorial Guinea and invested the proceeds in France. The French authorities launched an enquiry after the Cour de Cassation’s 2010 judgment that confirmed the standing of NGOs to bring criminal complaints. On 13 July 2012, France issued an international arrest warrant against Mr Obiang. As of now, the pre-trial investigation has been concluded and the investigating magistrate shall decide whether to refer the case to court. Mr Obiang’s attempt to invoke immunity in France fell through as the Cour de Cassation ruled that (1) immunity under customary international law is limited to heads of states, heads of governments, and foreign ministers, and (2) at the time of the alleged commission of the imputed offences, Mr Obiang was merely a minister of agriculture and forests.

In another twist of events, in 2011 – that is, after the Cour de Cassation’s 2010 ruling that paved way for his prosecution – Mr Obiang sold his Parisian mansion to the state of Equatorial Guinea. Equatorial Guinea asserts that the property has henceforth formed part of the premises of its embassy to France. Unimpressed by the manoeuvre, the French investigating magistrate ordered the seizure of the building in 2012.

In Equatorial Guinea’s contention, (1) the French criminal proceedings constitute an unlawful interference with its internal affairs because alleged wrongdoing would fall within the exclusive jurisdiction of Equatorial Guinea, (2) Mr Obiang is entitled to immunity from the French criminal jurisdiction, and (3) the seizure of the building is in breach of the Vienna Convention on Diplomatic Relations 1961.

Jurisdiction

We are witnessing Equatorial Guinea’s second attempt to take on France in the ICJ. In the aftermath of the 2012 arrest warrant, the African state promptly filed its claims and averred that France was certain to consent to the Court’s jurisdiction. As the French consent was not forthcoming the proceedings have now been brought based on the compromissory clauses of the UN Convention against Transnational Organised Crime (UNCTOC) and the Optional Protocol to the Vienna Convention on Diplomatic Relations (VCDR).

In its application instituting the proceedings, Equatorial Guinea seeks to establish jurisdiction over the first two heads of its claims – those pertaining to the unlawful exercise of criminal jurisdiction by France and Mr Obiang’s immunity – in reliance on Article 4 UNCTOC, which is entitled ‘Protection of sovereignty’ and reads as follows:

  1. States Parties shall carry out their obligations under this Convention in a manner consistent with the principles of sovereign equality and territorial integrity of States and that of non-intervention in the domestic affairs of other States.
  1. Nothing in this Convention entitles a State Party to undertake in the territory of another State the exercise of jurisdiction and performance of functions that are reserved exclusively for the authorities of that other State by its domestic law.

Equatorial Guinea is essentially arguing that Article 4 UNCTOC transforms a dispute about the reach of the French criminal jurisdiction under customary international law into a dispute about the interpretation of the UNCTOC. An alternative view would hold that Article 4 UNCTOC is hortatory and merely reasserts the fact that states are obliged, under general international law, to observe the principles of sovereign equality and non-intervention and nothing in the UNCTOC authorises any derogation from them. On that approach, Article 4 UNCTOC is an acknowledgment of exogenous rules on non-intervention rather than their incorporation into the Convention itself.

If Article 4 UNCTOC is found to provide the ICJ with jurisdiction over the lawfulness of the French prosecution, a further contentious matter is whether it also covers the dispute about Mr Obiang’s entitlement to immunity. That would seem to depend on whether customary rules on immunity of high-ranked officials are inexorably linked to the principles of sovereign equality and non-intervention, which are mentioned in Article 4 UNCTOC, or are simply there to minimise possible interferences with the exercise of official duties.

Establishing jurisdiction over the seizure of the mansion may also prove less straightforward than one would have thought. The parties are apparently in disagreement as to whether there is any substance at all to Equatorial Guinea’s assertion that the building is now being used by the country’s Embassy. According to the French prosecutor’s indictment, which is appended to Equatorial Guinea’s application and cites representations of the French Ministry of Foreign Affairs in pertinent parts, the building constitutes Mr Obiang’s private property and does not belong to the dimplomatic mission. It seems likely that France will contest the ICJ’s jurisdiction under the VCDR on the grounds that the transfer of Mr Obiang’s property to Equatorial Guinea is a sham and should not give rise to the ICJ’s jurisdiction.

Merits

If jurisdiction is upheld in relevant part, the Court will presumably have to grapple with the issues of criminal jurisdiction and immunity. In the Arrest Warrant case (Congo v Belgium), the latter was determinative as the Court’s majority sidestepped the more controversial discussion of universal jurisdiction. If the same course is taken this time, the ICJ may be expected to pronounce on whether vice-presidents are entitled to immunity ratione personae alongside heads of states, heads of governments, and foreign ministers. So far, the position is uncertain (see Hazel Fox and Philippa Webb, The Law of State Immunity, pages 564–566). Equatorial Guinea’s submission is that the status of vice-president entails under its law the right to represent the state and, for that reason, customary international law confers immunity ratione personae on Mr Obiang.

Unless the Court disposes of the case on the grounds of immunity, it may also delve into the issue of whether France may lawfully exercise criminal jurisdiction over Mr Obiang’s alleged money laundering. The applicant will undoubtedly point out that France is essentially attempting to prosecute a citizen of Equatorial Guinea for embezzling Equatoguinean funds.

While it has been reported that Mr Obiang is charged with ‘hidden investments, money laundering, misappropriation of public funds, embezzlement, breach of trust and corruption’, it appears from the indictment that in reality he is only accused of money laundering. More specifically, the indictment speaks of laundering the proceeds of misuse of corporate assets, diversion of public funds, abuse of trust, and corruption. It does not charge the Equatoguinean Vice-President with any of those predicate offences per se.

As emphasised by the French prosecutor in the indictment, money laundering is an offence that is distinctly separate from the underlying crime, which is referred to as predicate offence. Due to this disjunction between the predicate offence and money laundering, doing pretty much anything with the proceeds of crime (such as purchasing anything out of them) qualifies as a crime of money laundering that does not have to take place in the same state as the predicate offence. As a consequence, investing the proceeds of Equatoguinean corruption in France – if proven – amounts to money laundering committed in France, notwithstanding the fact that the nexus with France of the whole affair may seem tenuous.

Far from being a French idiosyncrasy, such an approach is expressly required by a vast body of international rules on anti-money laundering, such as Article 1(4) of the EU’s 4th Anti-Money Laundering Directive, Article 23(2)(c) of the UN Convention against Corruption, which now boasts a near-universal approval with 178 state parties (Equatorial Guinea being one of the few recusants), and indeed Article 6(2)(c) UNCTOC, the very Convention that Equatorial Guinea is invoking to establish jurisdiction. Analogous provisions are to be found in the non-binding FATF Recommendations, which are at the core of global anti-money laundering standards. Perhaps in anticipation that its argument on criminal jurisdiction is bound to fail, the African state largely focuses on immunity in its application – although, as mentioned earlier, squeezing that issue through the jurisdictional door of Article 4 UNCTOC may present quite a hurdle.

Finally, as regards the seizure of the building, the Court could face a conundrum if it were demonstrated to its satisfaction that the building is genuinely being used by the Embassy of Equatorial Guinea but has been originally been purchased by Mr Obiang from the proceeds of corruption. To what extent, if at all, could such a taint of illegality or France’s anti-money laundering obligations under international law authorise a departure from the provisions of the VCRD?

Conclusions

Equatorial Guinea v France offers an opportunity for the ICJ to expand and refine its case law on criminal jurisdiction and immunities, this time in the context of large-scale corruption and money laundering. It is to be welcomed at a point when the fight against corruption is assuming an ever-increasing prominence and calls are being made for a greater use of international law, such as by acknowledging universal jurisdiction over corruption offences or setting up international mechanisms for prosecuting corruption (see here and here). With the implementation of such proposals being a remote prospect, clarifications as to the limits on what states can do within the existing international legal framework would be of value.

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5 Responses

  1. Njiti Batty

    Though the Draft Protocol on amendments to the Protocol on the Statute of the African Court of Justice and Human Rights of 2014, article 46A bis adopted in Malabo in the same country has not come into force’ waiting 15 ratification’:

    “No charges shall be commenced or continued before the Court against any serving African Union Head of State or Government, or anybody acting or entitled to act in such capacity, or other senior state officials based on their functions, during their tenure of office.”

    Has the great impact as this Statute Protocol provides for the crime of corruption as one of the grievous international crimes.

  2. Dear Anton,

    Thank you for your article. I believe that the key point regarding the jurisdiction of the Court lies in the applicability of the compromissory clauses set forth in article 35(2) UNCTOC on the one hand, and the optional protocol concerning the compulsory settlement of disputes of the 1961 Convention on the other hand (I do not understand how could article 4 UNCTOC be “found to provide the ICJ with jurisdiction”, since it is only relevant for the merits of the claim).
    I’d agree with you that discarding the applicability of the 1961 Convention should not be too hard, merely based on facts. With regards to UNCTOC, article 35(2) sounds very difficult to apply as well if we look at the way it is drafted. Moreover, and more importantly why should UNCTOC be relevant at all anyway since it relates to organized criminal groups ? Isn’t it a very odd way for Guinea to rely on such Convention if it implies that Guinea grants the point that Obiang Jr is part of such a group ? That sounds very counter-productive to me.

    This case should be very interesting in this regard !

  3. Anton Moiseienko

    Dear Nijti, thank you for pointing this out. It is very interesting to see how the African Court of Justice and Human Rights will deal with corruption offences if and when the Protocol enters into force. To be frank, I find its provision on immunities rather disheartening.

    Dear Daniel, thank you for your comment. It is of course true that Equatorial Guinea will rely on Article 35(2) UNCTOC, which provides that ‘[a]ny dispute between two or more States Parties concerning the interpretation or application of this Convention’ may be referred to the ICJ if other attempts at settlement fail. This merely begs the question of whether there is indeed a dispute between Equatorial Guinea and France concerning the interpretation or application of the UNCTOC – or, as you are saying, why should the UNCTOC be relevant at all?

    As seen from its application instituting the proceedings, Equatorial Guinea’s answer is that there is a dispute regarding the interpretation or application of Article 4 UNCTOC, which obliges state parties to carry out their obligations under the Convention ‘in a manner consistent with the principles of sovereign equality and territorial integrity of States and that of non-intervention in the domestic affairs of other States’. Obligations under the UNCTOC include criminalisation of money laundering (Article 6) and criminalisation of corruption (Article 8). Therefore, the argument goes, France must respect the principles of sovereign equality and non-intervention when prosecuting corruption and money laundering. Article 4 UNCTOC is hence crucial for jurisdictional purposes because the ultimate question is whether there is really a dispute about its interpretation or application.

  4. Daniel Ventura

    I’d like to specify my point:

    First,the Court will have to address the question of its jurisdiction (compétence) based solely on the compromissory clauses that Guinea put forth (and not article 4). It is my opinion that the ICJ can hold its lack of jurisdiction over the dispute by discarding these two clauses on different grounds.

    Second, should the Court find itself to have jurisdiction over the dispute, then yes, article 4 becomes relevant with regard to the admissibility of the Guinean claim. Here, I support the arguments that you developped in your article. However, I’d like to add that in any ways, as I said earlier, UNCTOC doesn’t seem to be an adequate legal basis at all since it relates to organized criminal groups.To my point of view, UNCAC would have been a far more appropriate legal basis… However Equatorial Guinea did not ratify or even sign UNCAC ! Too bad for them.

    Should UNCTAC work out as a suitable basis for the resolution of the dispute, well, I believe this is good for France anyways. I have the feeling that it would have counter productive effects for the applicant State. For instance, I doubt that the Court could hold that a member of an organized criminal group could pretend to be protected by personal immunities from criminal jurisdiction! Nor could it hold that the sovereignty of Guinea has been infringed by tackling organized crime over felonies for which France has obviously a territorial title for prosecution.

  5. Anton Moiseienko

    Daniel, thanks for your reply. I am not sure that the ICJ can establish jurisdiction over this dispute – ostensibly about the interpretation or application of the UNCTOC – without making sure that the dispute is really about the interpretation or application of the UNCTOC (in this case, it seems, Article 4 UNCTOC), as opposed to extraneous rules of international law. See, to that effect, Case concerning the Oil Platforms (Islamic Republic of Iran v United States of America), ICJ Reports 1996 p 803. To be sure, if France were to contest the Court’s jurisdiction, the Court could decide that the objection does not ‘possess, in the circumstances of the case, an exclusively preliminary character’ under Article 79(9) of the Court’s Rules, but I do not think that means that the scope of Article 4 UNCTOC is irrelevant for the question of jurisdiction.