19 Apr A Francophone Family Dispute: Rwanda Files Case Against France in the ICJ
How did I miss this? Yesterday, Rwanda filed an application against France in the International Court of Justice seeking a declaration that certain French arrest warrants against Rwandan government officials violate international law (only the press release announcing the application, but not the application itself is online. While you are reading the press release, check out the spiffy new ICJ website).
This dispute between Rwanda and France has been brewing for a long time (as I discusssed here and here). A French judge has issued a report alleging that individuals who are currently high Rwandan government officials were somehow implicated in the assassination of the former Rwandan President in 1994, setting of the 1994 Rwandan genocide. France has, according to Rwanda, even asked that the current Rwandan President, Kagame, stand trial in the International Criminal Tribunal for Rwanda.
Rwanda may have some grievance against France, but I can’t quite figure out why Rwanda believes the international law regarding “international immunities generally and with regard to diplomatic immunities particularly”, as well as “the sovereignty of Rwanda” is going to help them out much here. Even worse, Rwanda’s claim for jurisdiction under Article 38, para. 5 of the ICJ Statute Rules of the Court [sorry for the brain cramp on this one and thanks to Tobias for correcting me] depends on the consent of France to this particular dispute. I don’t see why France would consent here.
So this case looks like another example of diplomatic grandstanding at the ICJ. Still, it will be interesting to see what France’s response will be as it is currently in the middle of a hot presidential election.
Rwanda seems to be hoping that France will act in this case as it has done in Certain Criminal Proceedings in France (Republic of the Congo v. France) and in Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France).
In those cases, France has given its consent under Article 38, para. 5 of the Rules of Court (there is, I’m afraid, no Article 38, para. 5 of the Statute), which, one might argue, really only regulates some ancillary matters relating to jurisdiction under the principle of forum prorogatum (see S. Yee, in A. Zimmermann, C. Tomuschat and K. Oellers-Frahm (eds.), The Statute of the International Court of Justice. A Commentary (Oxford: OUP, 2006), Article 40 MN 118-119 = pp. 899-900).
Quite why France has done this is anyone’s guess. Educated guesses I have heard were that (a) France wanted to have the Court clarify certain important legal questions (including the validity of what is slightly inaccurately (see paras.86-94) known as the Pinochet exception from immunity ratione materiae), and that (b) President Chirac saw these proceedings as a perfectly constitutional way of curbing the activism of some French judges, who to the chagrin of the Foreign Ministry and the President went around indicting foreign officials. (The former reason seems to apply to the Congo’s case more than to the one instituted by Djibouti)
These reasons may apply also to this case, but there is no way of being sure of the French response. As Prof. Ku rightly says, the fact of the upcoming election might play a role (will President Chirac want to burden his successor with this case?). Also, the claim seems to be more politically charged, seeing as genocide is an extremely serious matter. And the reference to the ICTR may not help Rwanda all that much, either; it raises the stakes quite a bit, it may make France wary of having to litigate the Tribunal’s case, and, of course, the claim is clearly hopeless on the merits.
You’re most welcome.
Incidentally, I agree that the new ICJ website is really rather great. Now it carries all the decisions of the Court, and those of the PCIJ, and all the pdf files of ICJ cases are fully searchable (unlike the few older cases that were online on the previous site, like Nicaragua). And the cases that have already been officially reported appear online as they do in the ICJ Reports, which is to say with the proper page numbers. Immensely useful for citations, that.
The International Court of Justice has entered the 21st century.
Dear Julian, dear Tobias,
it’s Article 36 para. 5 of the ICJ Statute which matters here. Jurisdictional bases are not contained in the Rules of the Court; those only specify the routines of the court, as does Article 38 para. 5 of the Rules for applications which rely on Article 36 para. 5 of the Statute as a jurisdictional basis.
I agree with Tobias that this case is most interesting, in particular in light of France’s acceptance in the Criminal Proceedings case. However, in that case, France might have had a better basis for jurisdiction, as at least some of the accused in that case resided in France rather regularly. But there have not been any developments in this case for years, and with Congo (Brazza) having put the accused to trial in the “affaire des disparus du beach” (the case underlying the dispute – a fake trial, but who cares? France most probably not…), a diplomatic solution in which neither party would lose its face appears feasible. Which means that the case will probably be removed from the docket. That’s why I am enthusiastic about the recent application.
@ Tobias: Unfortunately, the scans of the ICJ reports on the new website cannot be searched electronically. But perhaps that would be asking too much.
Ooops, I checked the source you indicated, Tobias: You were right… First read, then write. Sorry folks!
To clarify: I didn’t mean to say that there was a search engine on the new ICJ website (I don’t think there is, sadly). What I meant to say is only that the pdf files of the ICJ decisions are searchable using the binoculars icon in the Acrobat Reader. They are. This is modest progress, but it can come in handy when looking for a known quote in a long decision.