27 November 2012, by Maud Perdriel-Vaissière, SHERPA.

A unique opportunity to rule on immunity in grand corruption cases

On 26 September 2012, Equatorial Guinean authorities announced that they had filed a case against France in the International Court of Justice (ICJ) over a French judge’s criminal investigation of corruption allegations, including money laundering, which Equatorial Guinea claims is “interfering” in their internal affairs. In the case filed with the ICJ, Equatorial Guinea claims immunity for the son of the President of Equatorial Guinea who is under criminal investigation in the “Biens Mal Acquis” case (literally, the “ill-gotten gains” case) and tries by this means to stop the investigation. In SHERPA’s view, this action is another delaying tactic to hinder the French investigation. However, if France were to consent to ICJ jurisdiction in this case[1], there is no doubt that the ICJ would reject Equatorial Guinea’s unfounded request since French courts are fully competent to deal with criminal offences presumably committed on French soil.

This case would provide the ICJ with an opportunity to rule on the question of immunities of convenience, i.e. those immunities created for the sole purpose of escaping legal proceedings. The Equatorial Guinean President’s son Mr. Teodorin Nguema Obiang is the subject of allegations that are under investigation in France. In May 2012, after the French investigation was opened, the President appointed his son as second vice-president of the Republic of Equatorial Guinea (a position not provided for in the Constitution of this State). Why was this done other than to benefit from the immunities that could be conferred by this new position? Previously, and most likely inspired by the “Falcone precedent”[2], Equatorial Guinea attempted to get him appointed Deputy Permanent Delegate of Equatorial Guinea to UNESCO.

It may also be the right time to rule that immunities should not apply in grand corruption cases. Since the United Nations Convention against Corruption (UNCAC) was adopted in 2003, these kinds of infringements fall within conventional exceptions to the principle of legal immunity of serving Heads of State and foreign high-ranking officials.

« 387. It would be highly damaging to the legitimacy of the overall anticorruption strategy, public perceptions of justice, private business functioning and international cooperation, if corrupt public officials were able to shield themselves from accountability and investigation or prosecution for serious offences » UNCAC, Legislative Guide [p.387]

According to the World Bank 2007 report on Stolen Asset Recovery (StAR) Initiative, approximately 20 to 40 billion dollars of illicit money leave developing countries annually to be laundered in northern economies. The colossal cost of grand corruption is mainly supported by the people whose basic needs remain unfulfilled in spite of the significant amount of resources located in their territory. If we really want to fight this plague, it is time to reassess legal frameworks taking account of the all too often validated equation: “immunity= impunity”.

1. The ICJ jurisdiction does not apply automatically, but only with both parties’ consent, since neither France nor Equatorial Guinea have issued the declaration recognizing the compulsory jurisdiction of the Court.
2. Pierre Falcone is a French arms trader who was appointed in 2003 as Minister Plenipotentiary and representative of Angola to UNESCO, which then allowed him to escape the on-going investigation in the Angolagate case. Although the privileges and immunities he claimed to detain were finally rejected and a conviction was handed down, there is no doubt that the nomination seriously hindered the legal proceedings in France.