More on Congo v. France Discontinued

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The discontinuance of the Certain Criminal Proceedings in France (Republic of the Congo v. France) (ICJ Press Release) which Marko blogged about yesterday is rather strange indeed given the other news that has emerged recently regarding possible criminal proceedings in France against the Congolese Head of State. As the ICJ Press Release relating to the discontinuance of the case notes, the case brought by Congo against France before the ICJ:

seek[s] the annulment of the investigation and prosecution measures taken by the French judicial authorities further to a complaint for crimes against humanity and torture filed by various associations against the President of the Republic of the Congo, Denis Sassou Nguesso, the Congolese Minister of the Interior, Pierre Oba, and other individuals including General Norbert Dabira, Inspector-General of the Congolese Armed Forces.

Ordinarily, one would have thought that a discontinuance of the proceedings indicates that the dispute underlying the proceedings has been solved. However, just last week it was announced that the Cour de Cassation in France has decided that NGO’s, including Transparency International, may launch criminal proceedings in France in relation to allegations of corruption (and human rights violations) by three foreign heads of State, nameley Denis Sassou Nguesso (Rep. of Congo); Oman Bongo (formerly head of State of Gabon, now deceased and Obiang Mba sogo (Equitorial Guinea).  See on these developments, the post over at IntLawGrrls. So the underlying dispute with regard to the use of French courts to pursue cases against Congolese leaders is by no means resolved.

Indeed, the question of the use of European courts for dealing with actions against African leaders has been an irritant in relations between the African Union and the European Union. This tension led to establishment of a Joint Ad Hoc Expert Group on the Principle of Universal Jurisdiction. That group was composed of very distinguished experts on the matter and you can find their report here. However, the dispute has continued and African States have asked the Sixth (Legal) Committee of the UN General Assembly to consider the abuse of the use of universal jurisdiction (see discussions in 64th session (2010) here and here ). Also, the AU Assembly of Heads of States adopted a decision (Assembly/AU/Dec.292(XV)) this past summer urging implementation of the recommendations of the Ad Hoc Expert Group and urging further discussion of this issue at the UN.

Given that the underlying dispute does not appear to have gone away, one can only wonder what has led to the decision by Congo to discontinue. Naomi Norberg’s post over at IntLawGrrls indicates that President Sarkozy of France is against the suits in France and it is possible that the French executive branch has been able to assuage the concerns of Congo, despite continuing judicial action.

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Arobase says

November 20, 2010

Il n'y a juridiquement pas de lien direct entre la procédure judiciaire à l'origine de l'affaire Congo c. France (les disparus du beach) et la procédure relative aux "biens mal acquis" à laquelle il est fait ici référence (plainte de Transparency).

et quand bien même il y en aurait un: le désistement n'est pas nécessairement synonyme de règlement du différend, il faut distinguer le désistement d'instance du désistement d'action (v. Barcelona Traction).

L'explication politique est intéressante, reste à savoir si la séparation des pouvoirs et l'indépendance de la justice seront préservées dans cette histoire...