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

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.

2. 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 4^th 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.