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Published online by Cambridge University Press:  27 January 2010

Robert Cryer
University of Birmingham.
Ioannis Kalpouzos
University of Nottingham.


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Current Developments: International Courts and Tribunals
Copyright © 2010 British Institute of International and Comparative Law

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Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France) Judgment of 4 June 2008 ICJ General List no 136 [hereinafter ‘Decision’].


2 Since this had been declared null and void, and France had apologized for its issuance (Decision, para 34), this played little part in the proceedings.

3 Decision, para 35.

4 Tribunal de Grande Instance de Versailles, Numero d'affaire 0307960961, 27 Mars 2008. The judgment can be found at

5 Decision, paras 17–18. After the decision, the convictions were overturned by the Cour d'Appel de Versailles on 28 May 2009. See

6 The practice of not entering the case onto the list was understandably adopted to avoid polemic or spurious applications gaining entry and publicity, see Decision, para 63, and S Yee, ‘Article 40’ in A Zimmermann et al (eds), The Statute of the International Court of Justice: A Commentary (OUP, Oxford, 2006) 849, 899–900.

7 Interestingly, France has done this once before, in April 2003, in Certain Criminal Proceedings in France (Republic of Congo v France), however, that case has yet to come to judgment.

8 Decision, paras 3–4, 39.

9 Decision, para 63.

10 Decision, paras 65–6.

11 Decsion, para 52. As Djibouti said nothing about the lawfulness of French jurisdiction over events outside France in the Application, the Court did not consider such matters as having been consented to by France, Decision, para 200.

12 Decision, para 69.

13 It is also consistent with the decision in the Rights of Passage Case, Decision, para 70, although Judge Para-Aranguren distinguished that case on the basis that it did not deal with forum prorogatum, where there is a greater need for care, Separate Opinion of Judge Para-Aranguren, para 16. This is true, but there can also be undue caution.

14 Decision, para 73.

15 Decision, para 83.

16 Although Judge Para-Aranguen dissented on this, asserting that the French declaration, read as a whole, only referred to the claims on paragraph 2 of the application (ie the letter rogatory) para 18–19. He also noted that some other statements of Djibouti only referred to the letter rogatory. However, this does not alter the fact that the application did include matters relating to immunities.

17 Decision, para 87.

18 Decision, para 88. Judge Skonikov disagreed with the distinction. See Declaration of Judge Skotnikov, paras 7–8.

19 ibid. Judge Skotnikov was one of the three dissenters here, asserting that France could not freeze the dispute at the time of the acceptance ibid para 4. This may be true, but the question is whether or not the court has jurisdiction over the matters not whether they are ongoing or not. Judge Owada saw them as a natural part of the process, therefore within the jurisdiction of the court, on his view of its jurisdiction, para 8–9.

20 See S Rosenne, The Law and Practice of the International Court 1920–2005 (Martinus Nijhoff, Leiden, 2006) 698–699. More generally see H Lauterpacht, The Development of International Law by the International Court of Justice (Stevens, London, 1958) Chapter 6.

21 Declaration of Judge Owada, paras 5–6. For the view that there is no requirement that jurisdiction be interpreted narrowly see A Orakhelashvili, The Interpretation of Acts and Rules in Public International Law (OUP, Oxford, 2008) Chapter 12, although this does not directly deal with forum prorogatum.

22 Yee (n 5) 902–904.

23 Decision, para 95.

24 As Judge Skotnikov said, France accepted the first act was a nullity, therefore this was not simply a repetition (Skotnikov, paras 12–3), although he would have accepted jurisdiction over it as he rejected the distinction between forum prorogatum and other instances of jurisdiction.

25 See Déclaration de M Le Juge ad hoc Guillaume, para 12; Opinion Individuelle de M le Juge Ranjeva, paras 1–13; Opinion Individuelle de M le Juge Tomka.

26 Decision, para 96.

27 Decision, para 97.

28 Decision, para 100.

29 Decision, para 104.

30 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) [1986] ICJ Rep 4, para 273.

31 Decision, para 109, citing Oil Platforms (Islamic Republic of Iran v United States of America) [1996] ICJ Rep (II) 815, para 31.

32 And, specifically, as will be seen, article 2(c) of that Convention stipulating the reasons why a State can refuse co-operation.

33 Decision, para 110.

34 Decision, para 113.

35 Decision, para. 114.

36 Decision, paras 116, 121.

37 Decision, para 119.

38 Although, it survived in some of the judges' perceptions. See Judge Koroma's Separate Opinion, para 10.

39 Decision, paras 121–2.

40 Decision, para 123.

41 The Court provided some pedigree in the use of ‘good faith’, quoting the decisions of the PCIJ in the cases of Polish Upper Silesia and Free Zones of Upper Savoy, para 145. Judge Keith argued that the criterion of ‘good faith’ in these decisions existed alongside ‘abuse of rights’ or détournement de pouvoir. He entertained the possibility that the judge's language pointed towards such détournement but decided it probably did not, Declaration of Judge Keith, para 5–11.

42 Decision, para 145.

43 Decision, para 146.

44 Decision, para 148.

45 Some of this necessary discussion is provided in Judge Keith's clear and pertinent declaration. He perceptively points out, at para 10, the distinction between the State's assessment of its national interests, which cannot be second-guessed, and the assessment of the compatibility of the State's actions with the purpose of the Convention. It seems that the clarity of the former imposed on the willingness of the Court to engage with the latter.

46 Decision, para 152.

47 Decision, para 134

48 Decision, para 139.

49 Decision, para 156.

50 para 10.

51 Declaration of Judge Keith, para 10.

52 Decision, para 204.

53 See eg R O'Keefe, ‘Universal Jurisdiction: Clarifying the Basic Concept’ (2004) 2 Journal of International Criminal Justice 735.

54 Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium) ICJ General List 121, 14 February 2002. See O'Keefe ibid.

55 ibid paras 163,168, 172.

56 Decision, para 170.

57 Decision, para 171.

58 Judge ad hocYusuf disagreed, Opinion Individuelle de M. le Juge ad hoc Yusuf, paras 36–56.

59 Decision para 177.

60 ibid para 179.

61 On the relationship see J Craig Barker, ‘The Future of Head of State Immunity after Ex Parte Pinochet’ (1999) 48 ICLQ 937.

62 Decision, para 164.

63 Decision, paras 172–3.

64 Judge Koroma thought that the requirement of an apology ought to have been placed in the disposition, Separate Opinion of Judge Koroma, paras 12–14. See though H Fox, The Law of State Immunity (2nd edn, OUP, Oxford, 2008) 688–9.

65 Decision, para 174. It is worth noting that the comments of the court here relate to the obligations owed to a Head of State when in another country, rather than more generally.

66 Decision, para 185.

67 Decision, paras 179–180.

68 Declaration of Judge Skotnikov, paras 20–22.

69 Decision, paras 185–190.

70 Mofaz, reported in (2008) 53 ICLQ 771.

71 Decision, para 194.

72 Decision, para 196.

73 On the relationship see Fox (n 64) 142–145.

74 UN Convention, art 5.

75 Fox (n 64) 401–402.

76 On the distinction see R van Alebeek, The Immunity of States and Their Officials in International Criminal Law and International Human Rights Law (OUP, Oxford, 2008) chapter 3.

77 It should be remembered that this is not a question of waiver of immunity, but a matter prior to that, i.e. whether there is such an arguable claim of immunity that a court could determine.

78 On the tension between the depth of reasoning and the advisability of having opinions passed by large majorities see I Scobbie, ‘Smoke, Mirrors and Killer Whales: the International Court's Opinion on the Israeli Barrier Wall’ (2004) 5 German Law Journal 1107.

79 Such was the case in the well known Caroline incident, see, eg van Alebeek (n 76) 108–10.

80 M Pugh, ‘Legal Aspects of the Rainbow Warrior Affair’ (1987) 36 ICLQ 656; J Scott Davidson, ‘The Rainbow Warrior Arbitration Concerning the Treatment of the French Agents Mafart and Prier’ (1991) 40 ICLQ 446.

81 France similarly consented (before doing so in this case) to the jurisdiction of the Court pursuant to art 38(5) in the Certain Criminal Proceedings in France case (DRC v France).

82 (DRC v Uganda) Judgment 19 December 2005, ICJ List 116.

83 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004) ICJ Rep 36.

84 Decision, para 204.