Diallo and Moti, some thoughts

On 30 November 2010, the International Court of Justice delivered its Judgment in the case of Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo).

The International Court of Justice (ICJ) has delivered its Judgment in the case of the Republic of Guinea v. Democratic Republic of the Congo. The case involves proceedings commenced against the Democratic Republic of the Congo (DRC) by the Republic of Guinea relating to violations of the rights of Guinean businessman, Ahmadou Sadio Diallo.

Guinea had alleged that the DRC committed serious violations of international law following the arrest, detention and expulsion of Mr. Diallo from the DRC.

In delivering its binding Judgment as the principal judicial organ of the United Nations, the ICJ unanimously found that the expulsion of Mr. Diallo from the DRC was a violation of his rights under Article 13 of the International Covenant on Civil and Political Rights (ICCPR) and Article 13 (4) of the African Charter on Human and Peoples’ Rights. Each provision seeks to protect aliens or non-nationals from arbitrary and unlawful expulsions. The Court further unanimously found that the DRC had violated Article 9 (1) and (2) of the ICCPR, and Article 6 of the African Charter, each seeking to protect the right to liberty and security of person, as a result of the circumstances under which Mr. Diallo was arrested and detained in 1995-1996.

In assessing the other submissions of the Republic of Guinea, the ICJ found that the DRC had violated its obligations under the Vienna Convention on Consular Relations by not informing Mr. Diallo of his rights upon detention. Nevertheless, the Court dismissed all of Guinea’s other submissions, including in its entirety the claims of Guinea related to the arrest and detention of Mr. Diallo in 1988-1989. The Court also found that the DRC had not violated Mr. Diallo’s rights as associé (shareholder of “not freely transferable” shares) in Africom-Zaire and Africontainers-Zaire.

The Court ordered that the DRC is under an obligation to make appropriate reparations in the form of compensation to the Republic of Guinea for its violations. Furthermore, the Court decided that in the event that the Parties are unable to reach agreement within six months of the Judgment on compensation, it shall itself settle the matter.

Protection of Mr Diallo’s rights as an individual

Guinea submitted that Mr. Diallo was the victim in 1995-1996 of arrest, detention and expulsion measures also in violation of international law. Guinea reasoned from this that it was entitled to exercise diplomatic protection of its national in this connection.

First, the expulsion of Mr. Diallo was said to have breached Article 13 of the International Covenant on Civil and Political Rights (“Covenant”) of 16 December 1966, to which Guinea and the DRC were parties, as well as Article 12, paragraph 4, of the African Charter on Human and Peoples’ Rights (“African Charter”) of 27 June 1981, which entered into force for Guinea on 21 October 1986, and for the DRC on 28 October 1987. Second, Mr. Diallo’s arrest and detention are said to have violated Article 9, paragraphs 1 and 2, of the Covenant, and Article 6 of the African Charter. Third, Mr. Diallo is said to have suffered conditions in detention comparable to forms of inhuman or degrading treatment that are prohibited by international law. Fourth and last, Mr. Diallo is said not to have been informed, when he was arrested, of his right to request consular assistance from his country, in violation of Article 36 (1) (b) of the Vienna Convention on Consular Relations of 24 April 1963.

It follows from the terms of the two provisions cited above that the expulsion of an alien lawfully in the territory of a State which is a party to these instruments can only be compatible with the international obligations of that State if it is decided in accordance with “the law”, in other words the domestic law applicable in that respect. Compliance with international law is to some extent dependent here on compliance with internal law. However, it is clear that while “accordance with law” as thus defined is a necessary condition for compliance with the above-mentioned provisions, it is not the sufficient condition. First, the applicable domestic law must itself be compatible with the other requirements of the Covenant and the African Charter; second, an expulsion must not be arbitrary in nature.

The Court after considering the facts of the case held that expulsion decree did not comply with the provisions of Congolese law. The Court concluded that in two important respects, concerning procedural guarantees conferred on aliens by Congolese law and aimed at protecting the persons in question against the risk of arbitrary treatment, the expulsion of Mr. Diallo was not decided “in accordance with law”. The Court thus found that Mr. Diallo’s arrest and detention were arbitrary within the meaning of Article 9, paragraph 1, of the Covenant and Article 6 of the African Charter.

What is of interest about Mr. Diallo from the perspective of Blak and Black is the Mr Julian Moti QC the former Attorney-General of the Solomon Islands is also relying on Article 13 of the ICCPR as part of his current appeal to the High Court of Australia, challenging the legality of Australia’s rendition of him from the Solomon Islands to Australia in 2007 to face trial on charges that he had been cleared of in Vanuatu thirteen years before.

The Facts

Mr Ahmadou Sadio Diallo settled in the DRC in 1964 when it was still known as the Congo. The Congo was renamed ‘Zaire’ in 1971. In 1974, Diallo founded an import-export company, Africom-Zaire, as a société privée à responsibilité limitée, or a private limited liability company (‘SPRL’), under Zairean law and became its gérant, or manager. In 1979, Diallo expanded his activities and with two private partners founded a second SPRL named Africontainers-Zaire. In 1980, the two partners withdrew and Diallo became the sole manager of the new company. Toward the end of the 1980s, the relationships between Diallo and his business partners deteriorated and Diallo initiated a number of court actions seeking to recover alleged debts from these partners, which included Zaire Fina, Zaire Shell and Zaire Mobil Oil, and to recover debts from certain instruments of the Zairean state. The Prime Minister of Zaire issued a formal expulsion order against Diallo in October 1995. Diallo was deported from Zaire and returned to Guinea in January 1996, some 18 months before the fall of the government of Mobutu Sese Seko and the subsequent renaming of Zaire as the DRC.

Guinea alleged that Diallo’s deportation was the final step in the implementation of a concerted DRC policy to prevent him from recovering various debts owed to his companies by the state. Guinea claimed that, among other things, Diallo had been subject to arbitrary detention and improper interference by the DRC government with Diallo’s actions in the DRC courts, including the implementation by the DRC’s Minister of Justice of a direct stay on court orders obtained by Diallo. The DRC contended that it had acted appropriately at all times and that Diallo’s deportation was justified in the Zairean public interest.

The ICJ inter alia observed:

74. Furthermore, the Court considers that Guinea is justified in contending that the right afforded by Article 13 to an alien who is subject to an expulsion measure to “submit the reasons against his expulsion and to have his case reviewed by … the competent authority” was not respected in the case of Mr. Diallo. It is indeed certain that, neither before the expulsion decree was signed on 31 October 1995, nor subsequently but before the said decree was implemented on 31 January 1996, was Mr. Diallo allowed to submit his defence to a competent authority in order to have his arguments taken into consideration and a decision made on the appropriate response to be given to them. It is true, as the DRC has pointed out, that Article 13 of the Covenant provides for an exception to the right of an alien to submit his reasons where “compelling reasons of national security” require otherwise. The Respondent maintains that this was precisely the case here. However, it has not provided the Court with any tangible information that might establish the existence of such “compelling reasons”. In principle, it is doubtless for the national authorities to consider the reasons of public order that may justify the adoption of one police measure or another. But when this involves setting aside an important procedural guarantee provided for by an international treaty, it cannot simply be left in the hands of the State in question to determine the circumstances which, exceptionally, allow that guarantee to be set aside. It is for the State to demonstrate that the “compelling reasons” required by the Covenant existed, or at the very least could reasonably have been concluded to have existed, taking account of the circumstances which surrounded the expulsion measure. In the present case, no such demonstration has been provided by the Respondent. On these grounds too, the Court concludes that Article 13 of the Covenant was violated in respect of the circumstances in which Mr. Diallo was expelled.

[…]

82. However, account should be taken here of the number and seriousness of the irregularities tainting Mr. Diallo’s detentions. As noted above, he was held for a particularly long time and it would appear that the authorities made no attempt to ascertain whether his detention was necessary. Moreover, the Court can but find not only that the decree itself was not reasoned in a sufficiently precise way, as was pointed out above (see paragraph 70), but that throughout the proceedings, the DRC has never been able to provide grounds which might constitute a convincing basis for Mr. Diallo’s expulsion. Allegations of “corruption” and other offences have been made against Mr. Diallo, but no concrete evidence has been presented to the Court to support these claims. These accusations did not give rise to any proceedings before the courts or, a fortiori, to any conviction. Furthermore, it is difficult not to discern a link between Mr. Diallo’s expulsion and the fact that he had attempted to recover debts which he believed were owed to his companies by, amongst others, the Zairean State or companies in which the State holds a substantial portion of the capital, bringing cases for this purpose before the civil courts. Under these circumstances, the arrest and detention aimed at allowing such an expulsion measure, one without any defensible basis, to be effected can only be characterized as arbitrary within the meaning of Article 9, paragraph 1, of the Covenant and Article 6 of the African Charter.

[…]

84. On the other hand, Guinea is justified in arguing that Mr. Diallo’s right to be “informed, at the time of arrest, of the reasons for his arrest” — a right guaranteed in all cases, irrespective of the grounds for the arrest — was breached. The DRC has failed to produce a single document or any other form of evidence to prove that Mr. Diallo was notified of the expulsion decree at the time of his arrest on 5 November 1995, or that he was in some way informed, at that time, of the reason for his arrest. Although the expulsion decree itself did not give specific reasons, as pointed out above (see paragraph 72), the notification of this decree at the time of Mr. Diallo’s arrest would have informed him sufficiently of the reasons for that arrest for the purposes of Article 9, paragraph 2, since it would have indicated to Mr. Diallo that he had been arrested for the purpose of an expulsion procedure and would have allowed him, if necessary, to take the appropriate steps to challenge the lawfulness of the decree. However, no information of this kind was provided to him; the DRC, which should be in a position to prove the date on which Mr. Diallo was notified of the decree, has presented no evidence to that effect.

[…]

95. The Court notes that the two arguments put forward by the DRC before the second round of oral pleadings lack any relevance. It is for the authorities of the State which proceeded with the arrest to inform on their own initiative the arrested person of his right to ask for his consulate to be notified; the fact that the person did not make such a request not only fails to justify non-compliance with the obligation to inform which is incumbent on the arresting State, but could also be explained in some cases precisely by the fact that the person had not been informed of his rights in that respect (Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, I.C.J. Reports 2004 (I), p. 46, para. 76). Moreover, the fact that the consular authorities of the national State of the arrested person have learned of the arrest through other channels does not remove any violation that may have been committed of the obligation to inform that person of his rights “without delay”.

A Consideration of the Draft Articles; Diallo – the preliminaries

On 24 May 2007, the ICJ handed down its decision on the preliminary objections raised in Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo). This was the Court’s first opportunity to consider issues of diplomatic protection since the release of the Draft Articles on Diplomatic Protection adopted in 2006 by the International Law Commission (ILC). The Court made several important comments about the extent to which the Draft Articles codify customary international law. It also considered the question of which party bears the burden of proof in relation to local remedies. More importantly, however, the Court made several notable observations on the source and nature of the direct rights of shareholders. For the first time since Barcelona Traction, the Court gave significant consideration to the question of whether customary international law allows the state of nationality of a shareholder to diplomatically protect the rights of the company in which the shareholder has an interest

The purpose of the ILC is to undertake the codification and progressive development of international law. It does this, at least in part, by providing a forum for ‘ascertaining what the rules are or ought to be, and then reaching agreement upon them’. The ILC’s objective is for its rules to be accepted as representative of customary international law. Crawford[i] has noted that where the body of law being interpreted by the ILC contains ‘secondary rules’ that are only indirectly applicable in national courts and do not require legislative implementation, ‘the ILC’s work is part of a process of customary law articulation’. For this reason, the ILC’s attempt to codify the rules of international law relating to diplomatic protection in the Draft Articles is significant.

The Court in Diallo explicitly recognised that certain aspects of the Draft Articles reflect customary international law. The first reference to such a development was the definition of ‘diplomatic protection’ contained in art 1 of the Draft Articles, which provides that:

[d]iplomatic protection consists of the invocation by a State, through diplomatic action or other means of peaceful settlement, of the responsibility of another State for an injury caused by an internationally wrongful act of that State to a natural or legal person that is a national of the former State with a view to the implementation of such responsibility.

As the commentary to the Draft Articles notes, art 1 ‘makes no attempt to provide a complete and comprehensive definition of diplomatic protection’. The wording of art 1 shows that the ILC considers diplomatic protection ‘a procedure for securing the responsibility of the state for injury to the national [of the protecting state] flowing from an internationally wrongful act’ that can be pursued using ‘diplomatic action or other means of peaceful settlement’. In Diallo, the Court confirmed that the definition in art 1 of the Draft Articles reflects the position at customary international law.

The Court also made the general comment that the scope of diplomatic protection has now expanded beyond violations of the minimum standard for the treatment of aliens to encompass ‘internationally guaranteed human rights’. The Court had previously stated in [ii]its judgment in LaGrand that ‘individual rights’ are capable of diplomatic protection. This statement was quoted with approval by the Court in Avena. The statement made by the Court in Diallo, however, goes further than this by identifying ‘internationally guaranteed human rights’ as a subset of the ‘individual rights’ it had previously identified as being capable of founding a claim for diplomatic protection.

Finally, the Court also appeared to confirm the approach adopted by the Draft Articles in relation to administrative remedies. The ILC had concluded that the only administrative remedies that must be exhausted are those that result in a binding decision.

The ILC accepted, on the authority of De Becker v Belgium, that the category includes remedies designed to vindicate an existing right, but not those designed to obtain a favour.

This approach has been consistently adopted in a number of decisions of the European Commission of Human Rights. The Court’s parallel statement in Diallo that ‘administrative remedies can only be taken into consideration … if they are aimed at vindicating a right and not at obtaining a favour’ suggests that this rule may now be considered settled at international law.