         COUR INTERNATIONALE DE JUSTICE

             RECUEIL DES ARRE| TS,
      AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE A
                 v CERTAINES QUESTIONS
 CONCERNANT L’ENTRAIDE JUDICIAIRE
          EN MATIEv RE PE
                        u NALE
             (DJIBOUTI c. FRANCE)

             ARRE
                | T DU 4 JUIN 2008

                2008
         INTERNATIONAL COURT OF JUSTICE

           REPORTS OF JUDGMENTS,
        ADVISORY OPINIONS AND ORDERS

CASE CONCERNING CERTAIN QUESTIONS
       OF MUTUAL ASSISTANCE
        IN CRIMINAL MATTERS
             (DJIBOUTI v. FRANCE)

           JUDGMENT OF 4 JUNE 2008

                       Mode officiel de citation :
 Certaines questions concernant l’entraide judiciaire en matière pénale
           (Djibouti c. France), arrêt, C.I.J. Recueil 2008,
                               p. 177.

                          Official citation :
     Certain Questions of Mutual Assistance in Criminal Matters
        (Djibouti v. France), Judgment, I.C.J. Reports 2008,
                               p. 177.

                                             No de vente :
ISSN 0074-4441
ISBN 978-92-1-071048-0
                                             Sales number    939

                                   4 JUIN 2008

                                     ARRE
                                        |T

CERTAINES QUESTIONS CONCERNANT L’ENTRAIDE
       JUDICIAIRE EN MATIE
                         v RE PE
                               u NALE
           (DJIBOUTI c. FRANCE)

 CERTAIN QUESTIONS OF MUTUAL ASSISTANCE
          IN CRIMINAL MATTERS
           (DJIBOUTI v. FRANCE)

                                   4 JUNE 2008

                                  JUDGMENT

                                                                           177

                        TABLE OF CONTENTS

                                                                  Paragraphs
CHRONOLOGY OF THE PROCEDURE                                             1-18
  I. THE FACTS OF THE CASE                                                19-38
 II. JURISDICTION OF THE COURT                                            39-95
    (1) Preliminary question regarding jurisdiction and admissibility     45-50

    (2) Jurisdiction ratione materiae                                     51-64
        (a) Positions of the Parties                                      51-59
        (b) Forum prorogatum as a basis of the jurisdiction of the
            Court                                                         60-64
    (3) Extent of the mutual consent of the Parties                       65-95
        (a) Djibouti’s Application                                        66-75
        (b) France’s response to the Application                          76-79
        (c) Findings of the Court                                         80-95
III. THE ALLEGED VIOLATION OF THE TREATY OF FRIENDSHIP AND CO-
     OPERATION BETWEEN FRANCE AND DJIBOUTI OF 27 JUNE 1977     96-114
IV. THE ALLEGED VIOLATION OF THE CONVENTION ON MUTUAL ASSIST-
    ANCE IN CRIMINAL MATTERS BETWEEN FRANCE AND DJIBOUTI OF
    27 SEPTEMBER 1986                                         115-156
    (1) The obligation to execute the international letter rogatory     116-124

    (2) The alleged undertaking by France to execute the interna-
        tional letter rogatory requested by Djibouti                  125-130
    (3) France’s refusal to execute the international letter rogatory 131-156

 V. THE ALLEGED VIOLATIONS OF THE OBLIGATION TO PREVENT ATTACKS
    ON THE PERSON, FREEDOM OR DIGNITY OF AN INTERNATIONALLY
    PROTECTED PERSON                                            157-200
    (1) The alleged attacks on the immunity from jurisdiction or the
        inviolability of the Djiboutian Head of State                161-180
        (a) The witness summons addressed to the Djiboutian Head
            of State on 17 May 2005                              162-175
        (b) The witness summons addressed to the Djiboutian Head
            of State on 14 February 2007                         176-180
    (2) The alleged attacks on the immunities said to be enjoyed by
        the procureur de la République and the Head of National
        Security of Djibouti                                        181-200

                                                                             4

             QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)      178

VI. REMEDIES                                             201-204
VII. OPERATIVE CLAUSE                                       205

                                                              5

                                                                        179

              INTERNATIONAL COURT OF JUSTICE

                               YEAR 2008                                          2008
                                                                                4 June
                                                                               General List
                               4 June 2008                                      No. 136

 CASE CONCERNING CERTAIN QUESTIONS
        OF MUTUAL ASSISTANCE
         IN CRIMINAL MATTERS
                        (DJIBOUTI v. FRANCE)

                              JUDGMENT

Present : President HIGGINS ; Vice-President AL-KHASAWNEH ; Judges RANJEVA,
          SHI, KOROMA, PARRA-ARANGUREN, BUERGENTHAL, OWADA, SIMMA,
          TOMKA, KEITH, SEPÚLVEDA-AMOR, BENNOUNA, SKOTNIKOV ; Judges
          ad hoc GUILLAUME, YUSUF ; Registrar COUVREUR.

 In the case concerning certain questions of mutual assistance in criminal
matters,
  between
the Republic of Djibouti,
represented by
  H.E. Mr. Siad Mohamed Doualeh, Ambassador of the Republic of Djibouti
     to the Swiss Confederation,
  as Agent ;
  Mr. Phon van den Biesen, Attorney at Law, Amsterdam,
  as Deputy Agent ;
  Mr. Luigi Condorelli, Professor at the Faculty of Law of the University of
     Florence,
  as Counsel and Advocate ;
  Mr. Djama Souleiman Ali, procureur général of the Republic of Djibouti,

                                                                          6

               QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                      180

  Mr. Makane Moïse Mbengue, Doctor of Law, Researcher, Hauser Global
    Law School Program, New York University School of Law,
  Mr. Michail S. Vagias, Ph.D. Cand. Leiden University, Researcher, Scholar
    of the Greek State Scholarships Foundation,
  Mr. Paolo Palchetti, Associate Professor at the University of Macerata
    (Italy),
  Ms Souad Houssein Farah, Legal Adviser to the Presidency of the Republic
    of Djibouti,
  as Counsel,
  and
the French Republic,
represented by
  Ms Edwige Belliard, Director of Legal Affairs, Ministry of Foreign and
     European Affairs,
  as Agent ;
  Mr. Alain Pellet, Professor at the University of Paris X-Nanterre, Member
     and former Chairman of the United Nations International Law Commis-
     sion, Associate of the Institut de droit international,
  Mr. Hervé Ascensio, Professor at the University of Paris I (Panthéon-
     Sorbonne),
  as Counsel ;
  Mr. Samuel Laine, Head of the Office of International Mutual Assistance in
     Criminal Matters, Ministry of Justice,
  as Adviser ;
  Ms Sandrine Barbier, Chargée de mission, Directorate of Legal Affairs, Min-
     istry of Foreign and European Affairs,
  Mr. Antoine Ollivier, Chargé de mission, Directorate of Legal Affairs, Min-
     istry of Foreign and European Affairs,
  Mr. Thierry Caboche, Foreign Affairs Counsellor, Directorate for Africa
     and the Indian Ocean, Ministry of Foreign and European Affairs,

  as Assistants,

  THE COURT,
  composed as above,
  after deliberation,
  delivers the following Judgment :
   1. On 9 January 2006, the Republic of Djibouti (hereinafter “Djibouti”) filed
in the Registry of the Court an Application, dated 4 January 2006, against the
French Republic (hereinafter “France”) in respect of a dispute :

    “concern[ing] the refusal by the French governmental and judicial authori-
    ties to execute an international letter rogatory regarding the transmission
    to the judicial authorities in Djibouti of the record relating to the investi-
    gation in the Case against X for the murder of Bernard Borrel, in violation

                                                                                7

               QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                      181

    of the Convention on Mutual Assistance in Criminal Matters between the
    [Djiboutian] Government and the [French] Government, of 27 Septem-
    ber 1986, and in breach of other international obligations borne by [France]
    to . . . Djibouti”.

In respect of the above-mentioned refusal to execute an international letter
rogatory, the Application also alleged the violation of the Treaty of Friendship
and Co-operation concluded between France and Djibouti on 27 June 1977.
   The Application further referred to the issuing, by the French judicial
authorities, of witness summonses to the Djiboutian Head of State and senior
Djiboutian officials, allegedly in breach of the provisions of the said Treaty of
Friendship and Co-operation, the principles and rules governing the diplomatic
privileges and immunities laid down by the Vienna Convention on Diplomatic
Relations of 18 April 1961 and the principles established under customary
international law relating to international immunities, as reflected in particular
by the Convention on the Prevention and Punishment of Crimes against Inter-
nationally Protected Persons, including Diplomatic Agents, of 14 Decem-
ber 1973.
   2. In its Application, Djibouti indicated that it sought to found the jurisdic-
tion of the Court on Article 38, paragraph 5, of the Rules of Court and was
“confident that the French Republic will agree to submit to the jurisdiction of
the Court to settle the present dispute”. In the Application it also reserved the
right
    “to have recourse to the dispute settlement procedure established by the
    conventions in force between itself and the French Republic, such as the
    Convention on the Prevention and Punishment of Crimes against Interna-
    tionally Protected Persons [, including Diplomatic Agents, of 14 Decem-
    ber 1973]”.
   3. The Registrar, in accordance with Article 38, paragraph 5, of the Rules of
Court, immediately transmitted a copy of the Application to the Government
of France and informed both States that, in accordance with that provision, the
Application would not be entered in the General List of the Court, nor would
any action be taken in the proceedings, unless and until the State against which
the Application was made consented to the Court’s jurisdiction for the pur-
poses of the case.
   4. By a letter dated 25 July 2006 and received in the Registry on
9 August 2006, the French Minister for Foreign Affairs informed the Court
that France “consents to the Court’s jurisdiction to entertain the Application
pursuant to, and solely on the basis of . . . Article 38, paragraph 5”, of the
Rules of Court, while specifying that this consent was “valid only for the pur-
poses of the case, within the meaning of Article 38, paragraph 5, i.e. in respect
of the dispute forming the subject of the Application and strictly within the
limits of the claims formulated therein” by Djibouti. The Registry immediately
transmitted a copy of this letter to the Djiboutian Government, and the case
was entered in the General List of the Court under the date of 9 August 2006,
of which the Secretary-General of the United Nations was notified on the same
day.
   5. Pursuant to Article 40, paragraph 3, of the Statute of the Court, all States
entitled to appear before the Court were notified of the Application.
   6. By letters dated 17 October 2006, the Registrar informed both Parties that

                                                                                8

               QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                      182

the Member of the Court of French nationality had notified the Court of his
intention not to take part in the decision of the case, taking into account the
provisions of Article 17, paragraph 2, of the Statute. Pursuant to Article 31 of
the Statute and Article 37, paragraph 1, of the Rules of Court, France chose
Mr. Gilbert Guillaume to sit as judge ad hoc in the case.
   7. Since the Court included upon the Bench no judge of Djiboutian nation-
ality, Djibouti proceeded to exercise its right conferred by Article 31 of the
Statute to choose a judge ad hoc to sit in the case : it chose Mr. Abdulqawi
Ahmed Yusuf.
   8. By an Order dated 15 November 2006, the Court fixed 15 March 2007
and 13 July 2007, respectively, as the time-limits for the filing of the Memorial
of Djibouti and the Counter-Memorial of France ; those pleadings were duly
filed within the time-limits so prescribed.
   9. The Parties not having deemed it necessary to file a Reply and a Rejoin-
der, and the Court likewise having seen no need for these, the case was there-
fore ready for hearing.
   10. On 22 November 2007, Djibouti filed additional documents which it
wished to produce in the case. By a letter dated 4 December 2007, the Agent of
France informed the Court that her Government had no objection to the pro-
duction of these documents, while observing firstly that this lack of objection
could not “be interpreted as consent to an extension of the jurisdiction of the
Court as accepted by France in the letter dated 25 July 2006” and, secondly,
that “some of the documents produced constitute publications which are read-
ily available, within the meaning of Article 56 [paragraph 4] of the Rules of
Court”. By letters of 7 December 2007, the Registrar notified the Parties that
the Court had decided to authorize the production of the documents concerned
and had duly taken note of the observations made by the Agent of France
regarding the interpretation to be given to France’s lack of objection to these
documents being produced.
   11. By a letter dated 26 December 2007 and received in the Registry on
8 January 2008, France, referring to one of the documents filed by Djibouti on
22 November 2007 (see paragraph 10 above), explained that this document was
from the record in judicial proceedings pending in France, and that French law
forbade its publication before it had been read in a public hearing. It conse-
quently requested the Court to delay making the document available to the
public until 13 March 2008, when the oral proceedings before the Tribunal de
première instance in Versailles would open. By letters of 18 January 2008, the
Registrar informed the Parties that the Court had decided : (1) that the docu-
ment in question would not be made available to the public before
13 March 2008 or any other date to which the opening of the relevant oral pro-
ceedings in France might be postponed, in order to comply with the ban on
publication provided for by French law ; and (2) that during the oral proceed-
ings before the Court, the Parties would in no circumstances be able to refer to
the document concerned or comment on its contents in a way which could be
regarded as equivalent to publication.
   12. By a letter dated 7 January 2008, France informed the Court, pursuant
to Article 57 of the Rules of Court, that it wished to call Mrs. Elisabeth Borrel,
the widow of Bernard Borrel (see paragraphs 20 and 21 below), as a witness
during the hearings. By a letter dated 10 January 2008, Djibouti objected to
France’s request. By letters of 17 January 2008, the Registrar informed the
Parties that the Court had deemed that the evidence to be obtained from
Mrs. Borrel did not appear to be that of a witness called to establish facts

                                                                                9

                 QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                    183

within her personal knowledge which might help the Court to settle the dispute
brought before it, and that consequently the Court had decided not to accede
to France’s request.
   13. Pursuant to Article 53, paragraph 2, of the Rules of Court, the Court,
after ascertaining the views of the Parties, decided that copies of the pleadings
and documents annexed would be made accessible to the public on the opening
of the oral proceedings (but see paragraph 11 above).

  14. Public hearings were held from 21 to 29 January 2008, at which the
Court heard the oral arguments and replies of :
For Djibouti :   H.E. Mr. Siad Mohamed Doualeh,
                 Mr. Phon van den Biesen,
                 Mr. Luigi Condorelli.
For France :     Ms Edwige Belliard,
                 Mr. Alain Pellet,
                 Mr. Hervé Ascensio.
  15. At the hearings, Members of the Court put questions to the Parties, to
which replies were given orally. Djibouti submitted written comments on the
reply provided by France to one of the questions it was asked.

                                       *
  16. In its Application, the following requests were made by Djibouti :
      “Accordingly, reserving the right to supplement and elaborate upon the
    present claim in the course of the proceedings, the Republic of Djibouti
    requests the Court to :
    Adjudge and declare :
    (a) that the French Republic is under an international legal obligation to
         foster all co-operation aimed at promoting the speedy disposition of
         the Case against X for the murder of Bernard Borrel, in compliance
         with the principle of sovereign equality between States, as laid down
         in Article 2, paragraph 1, of the United Nations Charter and in Arti-
         cle 1 of the Treaty of Friendship and Co-operation between the
         French Republic and the Republic of Djibouti ;
    (b) that the French Republic cannot invoke principles or doctrines under
         its internal law (such as those relating to separation of powers) to
         hinder the exercise of the rights conferred upon the Republic of Dji-
         bouti by the Convention on Mutual Assistance in Criminal Matters ;
    (c) that the French Republic is under an international legal obligation to
         execute the international letter rogatory regarding the transmission to
         the judicial authorities in Djibouti of the record relating to the inves-
         tigation in the Case against X for the murder of Bernard Borrel ;

    (d) that the French Republic is under an international legal obligation to
        act in conformity with the obligations laid down by the Convention
        on Mutual Assistance in Criminal Matters in the context not only of
        the investigation in the Case against X for the murder of Bernard Bor-
        rel but also of any other proceedings it may initiate in the future,
        whether such proceedings are undertaken by a delegated, legislative,

                                                                               10

              QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                      184

        executive, judicial or other authority, whether such authority occu-
        pies a superior or subordinate position in the organization of the
        French Republic and whether such authority’s functions are interna-
        tional or domestic in nature ;
    (e) that the French Republic is under an international obligation to
        ensure that the Head of State of the Republic of Djibouti, as a foreign
        Head of State, is not subjected to any insults or attacks on his dignity
        on French territory ;
    (f) that the French Republic is under a legal obligation scrupulously to
        ensure respect, vis-à-vis the Republic of Djibouti, of the principles
        and rules concerning diplomatic privileges, prerogatives and immuni-
        ties, as reflected in the Vienna Convention on Diplomatic Relations
        of 18 April 1961 ;
    (g) that the French Republic bears responsibility for the violation of the
        international obligations referred to above ;
    (h) that the French Republic is under an obligation immediately to cease
        and desist from breaching the obligations referred to above and, to
        that end, shall in particular :
          (i) execute without further delay the letter rogatory cited in point (c)
              above, by immediately placing the record referred to above in
              Djiboutian hands, and
         (ii) withdraw and cancel the summonses of the Head of State of the
              Republic of Djibouti and of internationally protected Djiboutian
              nationals to testify as témoins assistés in respect of subornation
              of perjury in the Case against X for the murder of Bernard Bor-
              rel ;
    (i) that the French Republic owes reparation for the prejudice caused to
        the Republic of Djibouti and to its citizens ;
    (j) that the French Republic shall give the Republic of Djibouti a guar-
        antee that such wrongful acts will not reoccur.”
  17. In the course of the written proceedings, the following submissions were
presented by the Parties :

On behalf of the Government of Djibouti,
in the Memorial :
       “For the reasons given above, as well as those contained in its Applica-
    tion instituting proceedings of 4 January 2006, the Republic of Djibouti,
    while reserving the right to supplement or to amend the present submis-
    sions and to provide the Court with further evidence or relevant legal
    arguments in connection with the present dispute, requests the Court to
    adjudge and declare :
     1. that the French Republic has breached its obligations under the Con-
        vention on Mutual Assistance in Criminal Matters between the Gov-
        ernment of the Republic of Djibouti and the Government of the
        French Republic of 27 September 1986, and under the Treaty of
        Friendship and Co-operation between the French Republic and the
        Republic of Djibouti signed in Djibouti on 27 June 1977 and other
        rules of international law applicable to the present case, by its refusal
        to comply with the letter rogatory presented by the Republic of Dji-

                                                                               11

              QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                     185

        bouti and more specifically by its refusal to transmit the “Borrel” file
        to the judicial authorities in Djibouti ;
     2. that the French Republic has breached the obligations deriving from
        established principles of customary and general international law to
        prevent attacks on the freedom, dignity and immunities of an interna-
        tionally protected person by summoning as témoins assistés the Dji-
        boutian Head of State and high-ranking figures in Djibouti, and by
        issuing international arrest warrants against the latter ;

     3. that, by its conduct, the French Republic has engaged its international
        responsibility vis-à-vis the Republic of Djibouti ;
     4. that the French Republic is obliged to cease its wrongful conduct and
        to abide strictly by its obligations in the future ;

     5. that the French Republic shall execute without further delay the
        above-mentioned letter rogatory, by immediately placing the file
        referred to above in Djiboutian hands ;
     6. that the French Republic shall withdraw and cancel the summonses of
        the Head of State of the Republic of Djibouti and of internationally
        protected Djiboutian nationals to testify as témoins assistés in respect
        of subornation of perjury in the Case against X for the murder of Ber-
        nard Borrel ;
     7. that the French Republic shall withdraw and cancel the international
        arrest warrants issued and circulated against internationally protected
        Djiboutian nationals ;
     8. that the French Republic shall provide the Republic of Djibouti with
        specific assurances and guarantees of non-repetition of the wrongful
        acts complained of ;
     9. that the French Republic is under an obligation to the Republic of
        Djibouti to make reparation for any prejudice caused to the latter by
        the violation of the obligations deriving from international law and set
        out in points (1) and (2) above ;
    10. that the nature, form and amount of reparation shall be determined
        by the Court, in the event that the Parties cannot reach agreement on
        the matter, and that it reserves for this purpose the subsequent proce-
        dure in the case.
      The Republic of Djibouti reserves the right to submit further points of
    law and additional arguments at the oral proceedings stage.”
On behalf of the Government of France,
in the Counter-Memorial :
      “For the reasons set out in this Counter-Memorial and on any other
    grounds that may be produced, inferred or substituted as appropriate, the
    French Republic requests the International Court of Justice :
    1. to declare inadmissible the claims made by the Republic of Djibouti in
       its Memorial which go beyond the declared subject of its Application ;
    2. to reject, on the merits, all the claims made by the Republic of Dji-
       bouti.”
  18. At the oral proceedings, the following submissions were presented by the
Parties :

                                                                             12

              QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                     186

On behalf of the Government of Djibouti,
at the hearing of 28 January 2008 :
      “The Republic of Djibouti requests the Court to adjudge and declare :
     1. that the French Republic has violated its obligations under the
        1986 Convention :
          (i) by not acting upon its undertaking of 27 January 2005 to execute
              the letter rogatory addressed to it by the Republic of Djibouti
              dated 3 November 2004 ;
         (ii) in the alternative, by not performing its obligation pursuant to
              Article 1 of the aforementioned Convention following its wrong-
              ful refusal given in the letter of 6 June 2005 ;
        (iii) in the further alternative, by not performing its obligation pur-
              suant to Article 1 of the aforementioned Convention following
              its wrongful refusal given in the letter of 31 May 2005 ;
     2. that the French Republic shall immediately after the delivery of the
        Judgment by the Court :
          (i) transmit the “Borrel file” in its entirety to the Republic of Dji-
              bouti ;
         (ii) in the alternative, transmit the “Borrel file” to the Republic of
              Djibouti within the terms and conditions determined by the
              Court ;
     3. that the French Republic has violated its obligation pursuant to the
        principles of customary and general international law not to attack
        the immunity, honour and dignity of the President of the Republic of
        Djibouti :
          (i) by issuing a witness summons to the President of the Republic of
              Djibouti on 17 May 2005 ;
         (ii) by repeating such attack or by attempting to repeat such attack
              on 14 February 2007 ;
        (iii) by making both summonses public by immediately circulating
              the information to the French media ;
        (iv) by not responding appropriately to the two letters of protest
              from the Ambassador of the Republic of Djibouti in Paris dated
              18 May 2005 and 14 February 2007 respectively ;
     4. that the French Republic has violated its obligation pursuant to the
        principles of customary and general international law to prevent
        attacks on the immunity, honour and dignity of the President of the
        Republic of Djibouti ;
     5. that the French Republic shall immediately after the delivery of the
        Judgment by the Court withdraw the witness summons dated
        17 May 2005 and declare it null and void ;
     6. that the French Republic has violated its obligation pursuant to the
        principles of customary and general international law not to attack
        the person, freedom and honour of the procureur général of the
        Republic of Djibouti and the Head of National Security of Djibouti ;

     7. that the French Republic has violated its obligation pursuant to the
        principles of customary and general international law to prevent
        attacks on the person, freedom and honour of the procureur général

                                                                             13

              QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                     187

        of the Republic of Djibouti and the Head of National Security of the
        Republic of Djibouti ;
     8. that the French Republic shall immediately after the delivery of the
        Judgment by the Court withdraw the summonses to attend as témoins
        assistés and the arrest warrants issued against the procureur général of
        the Republic of Djibouti and the Head of National Security of the
        Republic of Djibouti and declare them null and void ;
     9. that the French Republic by acting contrary to or by failing to act in
        accordance with Articles 1, 3, 4, 6 and 7 of the Treaty of Friendship
        and Co-operation of 1977 individually or collectively has violated the
        spirit and purpose of that Treaty, as well as the obligations deriving
        therefrom ;
    10. that the French Republic shall cease its wrongful conduct and abide
        strictly by the obligations incumbent on it in the future ;
    11. that the French Republic shall provide the Republic of Djibouti with
        specific assurances and guarantees of non-repetition of the wrongful
        acts complained of.”
On behalf of the Government of France,
at the hearing of 29 January 2008 :
      “For all the reasons set out in its Counter-Memorial and during its oral
    argument, the French Republic requests the Court :

    (1) (a) to declare that it lacks jurisdiction to rule on those claims pre-
             sented by the Republic of Djibouti upon completion of its oral
             argument which go beyond the subject of the dispute as set out in
             its Application, or to declare them inadmissible ;
        (b) in the alternative, to declare those claims to be unfounded ;
    (2) to reject all the other claims made by the Republic of Djibouti.”

                                    * * *

                        I. THE FACTS OF THE CASE

  19. The Parties concur that it is not for the Court to determine the
facts and establish responsibilities in the Borrel case, and in particular,
the circumstances in which Mr. Borrel met his death. They agree that the
dispute before the Court does however originate in that case, as a result
of the opening of a number of judicial proceedings, in France and in Dji-
bouti, and the resort to bilateral treaty mechanisms for mutual assistance
between the Parties. The facts, some admitted and others disputed by the
Parties, and the judicial proceedings brought in connection with that case
may be described as follows.

  20. On 19 October 1995, the charred body of Judge Bernard Borrel, a
French national who had been seconded as Technical Adviser to the
Ministry of Justice of Djibouti, was discovered 80 km from the city of

                                                                             14

             QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                 188

Djibouti. As certain aspects of Mr. Borrel’s death remained unexplained,
the procureur de la République of Djibouti opened a judicial investigation
on 28 February 1996 into the cause of the French judge’s death ; that
investigation concluded that it was suicide, and was closed on 7 Decem-
ber 2003.
   21. In France, a judicial investigation to determine the cause of Ber-
nard Borrel’s death was opened on 7 December 1995 at the Tribunal de
grande instance in Toulouse. On 3 March 1997, Bernard Borrel’s widow
and children took action as civil parties on the basis of the same facts,
and, further to additional forensic reports casting doubt on the hypoth-
esis of suicide, a judicial investigation was opened on 22 April 1997
“against X for the murder of Bernard Borrel” at the Toulouse Tribunal
de grande instance. These two proceedings were joined on 30 April 1997.
The case was removed from the Toulouse Tribunal de grande instance on
29 October 1997 by judgment of the Cour de cassation and transferred to
the Paris Tribunal de grande instance. The French investigating judges,
Ms Marie-Paule Moracchini and Mr. Roger Le Loire, having deemed it
necessary to obtain various documents and statements, to reconstruct the
events and, to these ends, to make a visit to the scene, twice made use of
mechanisms under the Convention on Mutual Assistance in Criminal
Matters of 27 September 1986 between the Republic of Djibouti and the
French Republic (hereinafter “the 1986 Convention”). The investigating
judges issued two international letters rogatory, on 30 October 1998 and
15 February 2000 respectively, which Djibouti executed, inter alia grant-
ing access to presidential premises in Djibouti. The second letter rogatory
was issued particularly in the light of statements made by a witness,
Mr. Mohamed Saleh Alhoumekani, a former officer in the Djiboutian
presidential guard, according to which several Djiboutian nationals,
including Mr. Ismaël Omar Guelleh — now President of the Republic of
Djibouti and at that time Principal Private Secretary to the then Presi-
dent of the Republic of Djibouti, Mr. Hassan Gouled Aptidon — were
implicated in the murder of Bernard Borrel. The testimony of
Mr. Mohamed Saleh Alhoumekani was challenged by Mr. Ali Abdil-
lahi Iftin, who in 1995 was the commander of the Djiboutian presidential
guard, and who withdrew his statements in 2004 (see paragraph 35
below). The investigating judges concluded after execution of these letters
rogatory that the theory of homicide should again be ruled out.

   22. By judgment dated 21 June 2000 in which it was held that the
reconstruction of events carried out in Djibouti had been unlawful in the
absence of the civil parties, the Chambre d’accusation of the Paris Court
of Appeal removed the case from the investigating judges Moracchini
and Le Loire and transferred it to another investigating judge at the Paris
Tribunal de grande instance, Mr. Jean-Baptiste Parlos. Judge Parlos
issued a new international letter rogatory on 15 May 2001 with a view to
carrying out a reconstruction of the events in the presence of the civil
parties, as well as taking statements and medical documents and conduct-

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              QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                   189

ing further investigations calling for a visit to the scene. The Djiboutian
authorities responded positively to this letter rogatory as well.

   23. Since June 2002, the judicial investigation opened “against X for
the murder of Bernard Borrel” has been led by Ms Sophie Clément, an
investigating judge at the Paris Tribunal de grande instance. At the date
of this Judgment, the judicial investigation is still in progress. In the
meantime, various French media sources have adopted the theory of
murder. On 16 December 2003, the Djiboutian Minister for Foreign
Affairs wrote to the French Minister for Foreign Affairs, complaining of
campaigns in the French press targeting Djibouti and its President of the
Republic and requesting the French Government “to remove all obsta-
cles delaying the judicial conclusion of the case, which has dragged on
too long, including the ‘defence secret’ claim . . . asserted by the civil
party”.

   24. According to Djibouti, on 6 May 2004, during an official visit by
the President of Djibouti to Paris, the procureur de la République of Dji-
bouti, Mr. Djama Souleiman Ali, raised the possibility of the Djiboutian
judicial authorities reopening the Borrel case with the diplomatic adviser
to the President of the French Republic, the Principal Private Secretary
to the French Minister of Justice and the Public Prosecutor at the Paris
Court of Appeal. This meeting allegedly gave rise to an initial request for
transmission of the record in the investigation being conducted by
Judge Clément ; that request was transmitted by the procureur de la
République of Djibouti to the French authorities on 17 June 2004 and
made, according to Djibouti, pursuant to the 1986 Convention. In the
request, the procureur de la République of Djibouti complained about the
stance taken by “the civil party and [certain] French media”, which, “by
systematically implicating the highest authorities in Djibouti on the basis
of fanciful statements, . . . are seeking to influence the judicial investiga-
tion currently under way”. In a letter further to a decision taken by
Judge Clément on 13 September 2004, the Principal Private Secretary to
the French Minister of Justice informed his opposite number at the
French Ministry of Foreign Affairs that :

    “the investigating judge responsible for the case, who alone is com-
    petent to hand over copies of the documents (which in material
    terms amount to 35 volumes), takes the view that [Djibouti’s request
    of 17 June 2004] is not in the form required by the Convention on
    Mutual Assistance in Criminal Matters between France and Dji-
    bouti of 27 September 1986 and refuses to execute this request.
       Consequently, a letter explaining the difficulties will be sent by the
    procureur de la République in Paris to the procureur de la République
    in Djibouti in order to enable him to transmit an international letter
    rogatory that satisfies the formal requirements.
       This request for documents will then be fulfilled, allowing for the

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              QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                 190

    time that will be required to copy 35 volumes of judicial proceed-
    ings.”
  25. As Djibouti’s request of 17 June 2004 had been made, according to
France, “outside the framework” of the 1986 Convention and “without
regard for its provisions”, the French Ministry of Justice on 1 Octo-
ber 2004 sent the Djiboutian authorities a number of technical docu-
ments to enable them to present the request for transmission of the
record in accordance with the Convention.

   26. Further to the opening in Djibouti on 3 November 2004 of a new
judicial investigation in respect of the murder of Bernard Borrel, in
response to an application dated 20 October 2004 by the procureur de la
République of Djibouti, a second request for transmission of the Borrel
file was made on 3 November 2004 by Ms Leila Mohamed Ali, investi-
gating judge at the Djibouti Tribunal de première instance, in the form of
an international letter rogatory addressed to the French judicial authori-
ties and transmitted through diplomatic channels on 6 December 2004.
The French Ministry of Foreign Affairs forwarded this international let-
ter rogatory to the French Ministry of Justice on 28 December 2004,
which in turn forwarded it, by letter of 18 January 2005 from its Director
of Criminal Affairs and Pardons, to the Public Prosecutor at the Paris
Court of Appeal, asking him to carry out the request in collaboration
with the investigating judge. He drew attention “to the need to omit from
the certified copy [of the record in the judicial investigation] any docu-
ments likely to prejudice the sovereignty, the security, the ordre public or
other essential interests of the Nation”. In his letter, the Director of
Criminal Affairs and Pardons mentioned the documents referred to in a
note from the Minister of Defence, namely 25 Notes from two French
intelligence services. He added that “[t]he communication of [these]
French intelligence service documents . . . would provide a foreign politi-
cal authority with information likely seriously to compromise the above-
mentioned interests”. A few days earlier, on 6 January 2005, the French
Minister of Defence had in fact informed the Minister of Justice that he
was not opposed to the partial handing over of the file, purged of all the
information that had been classified under “defence secrecy” and declas-
sified. In a letter dated 27 January 2005, responding to a Note Verbale of
6 December 2004 from Djibouti’s Ambassador to France, the Principal
Private Secretary to the French Minister of Justice stated :

       “I have asked for all steps to be taken to ensure that a copy of the
    record of the investigation into the death of Mr. Bernard Borrel is
    transmitted to the Minister of Justice and Penal and Muslim Affairs
    of the Republic of Djibouti before the end of February 2005 (such
    time being required because of the volume of material to be copied).

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             QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                191

      I have also asked the procureur in Paris to ensure that there is no
    undue delay in dealing with this matter.”
   27. The spokesman for the French Ministry of Foreign Affairs stated
in a press release issued two days later, on 29 January 2005 :

       “A judicial investigation into the death of Judge Bernard Borrel is
    currently under way at the Paris Tribunal de grande instance, follow-
    ing the filing of a complaint by his widow.
       Contrary to the claims made in certain sections of the press, no
    judicial investigation into this matter has ever been opened by the
    Djiboutian authorities. The present enquiry falls solely within the
    jurisdiction of the French investigating judge.
       In this context, France wishes to emphasize the excellent co-op-
    eration on the part of the Djiboutian authorities and judiciary,
    which have always displayed the complete openness required for the
    investigation in France to proceed smoothly.
       The French judges who have visited Djibouti on several occasions
    in connection with international letters rogatory have always enjoyed
    full collaboration from the Djiboutian authorities, which have pro-
    vided them with access to the necessary places, documents and wit-
    nesses.
       During the current enquiry, documents classified under ‘defence
    secrecy’ have been the subject of a number of decisions on declassi-
    fication. Contrary to what may have been written recently in certain
    newspapers, nothing in these documents points to the implication of
    the Djiboutian authorities.
       At the request of those authorities, a copy of the record concern-
    ing the death of Judge Borrel will shortly be transmitted to the Dji-
    boutian judiciary in order to allow the competent authorities of that
    country to decide whether there are grounds for opening an investi-
    gation into the matter.”
   28. On 8 February 2005, by an order (soit-transmis) communicated to
the procureur de la République in Paris, Judge Clément presented her
conclusions, which may be summarized as follows. No new element
having come to light since the closing in December 2003 of the first judi-
cial investigation which had been opened in Djibouti, and in the absence
of any reason connected with the opening of the new investigation in Dji-
bouti, the new investigation :
    “appears to be an abuse of process aimed solely at ascertain-
    ing the contents of a file which includes, amongst other things,
    documents implicating the procureur de la République of Dji-
    bouti in another [judicial] investigation being conducted at Ver-
    sailles . . . where his personal appearance had been requested
    prior to any hearing by the judge dealing with the case”. (For

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              QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                       192

    this other judicial investigation, see paragraphs 35 and 36 below.)

The investigating judge recalled moreover that :
    “Article 2 (c) of the [1986] Convention . . . provides that the
    requested State may refuse a request for mutual assistance if it con-
    siders that execution of the request is likely to prejudice [the]
    sovereignty, . . . security, . . . ordre public or other . . . essential inter-
    ests [of France]”,
and concluded that “[t]hat is the case with regard to transmission of the
record of our proceedings”. In this connection Judge Clément pointed
out that she had on several occasions in the course of her investigation
requested the French Ministry of the Interior and the French Ministry of
Defence to communicate documents classified under “defence secrecy”,
documents which had been authorized for declassification by the Com-
mission consultative du secret de la défense nationale. The judge thus con-
cluded as follows :
    “[t]o accede to the Djiboutian judge’s request would amount to an
    abuse of French law by permitting the handing over of documents
    that are accessible only to the French judge. Handing over our
    record would entail indirectly delivering French intelligence service
    documents to a foreign political authority. Without contributing in
    any way to the discovery of the truth, such transmission would seri-
    ously compromise the fundamental interests of the country and the
    security of its agents.”
Judge Clément thus informed the procureur de la République in Paris of
her refusal to comply with the Djiboutian request.
   29. The decision by Judge Clément was, according to France, made
known to the Ambassador of Djibouti in Paris by a letter from the Direc-
tor of Criminal Affairs and Pardons at the French Ministry of Justice
dated 31 May 2005. In the copy of that letter produced by France, the
refusal was justified by the fact that “Article 2 (c) of the Convention on
Mutual Assistance in Criminal Matters between France and Djibouti of
27 September 1986 had to be applied”. In that same letter, according to
France, the Director of Criminal Affairs and Pardons informed the
Ambassador that the decision by the judge was “sovereign” and “not
open to appeal”.
   Djibouti denied at the hearings that France had informed it, by such a
letter, of Judge Clément’s refusal to execute the international letter roga-
tory of 3 November 2004. It contended, as emerges from its written
pleadings, the documents it submitted to the Court on 22 November 2007
(see paragraph 10 above) and its oral arguments, that Djibouti’s Ambas-
sador to France never received a letter dated 31 May 2005 from the
French Ministry of Justice.
   France stated that it had no proof that Djibouti’s Ambassador to
France had received the letter. In reply to a question put by the President

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             QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                  193

of the Court at the hearings, France added that it had only “traced a des-
patch note, for information, of a copy of [the letter of 31 May 2005] to
the French Ambassador in Djibouti, which in any event confirms its
existence”.

   30. By letter dated 18 May 2005 and referring to the 27 January 2005
letter from the French Minister of Justice’s Principal Private Secretary
(see paragraph 26 above), Djibouti’s Minister for Foreign Affairs and
International Co-operation reminded his French counterpart that “France
has not yet honoured its commitments”. France’s Ambassador to Dji-
bouti replied to the Djiboutian Minister for Foreign Affairs by letter
dated 6 June 2005, simply stating that “[a]fter consulting my authorities,
I regret to inform you that we are not in a position to comply with [the]
request [for the execution of the international letter rogatory presented
by the Djiboutian authorities on 3 November 2004]”.

   31. Meanwhile, Judge Clément continued her investigations, and on
17 May 2005, further to the statements by Mr. Mohamed Saleh Alhou-
mekani received in 2000 by Judges Moracchini and Le Loire (see para-
graph 21), she issued directly to the Djiboutian Embassy in Paris a first
witness summons to the President of the Republic of Djibouti, who was
then on an official visit to France. This witness summons was issued to
President Ismaël Omar Guelleh without the provisions of Article 656 of
the French Code of Criminal Procedure having been applied ; these stipu-
late in particular that :

    “[t]he written statement of the representative of a foreign power is
    requested through the intermediary of the Minister for Foreign
    Affairs. If the application is granted, the statement is received by the
    president of the appeal court or by a judge delegated by him.”
   President Ismaël Omar Guelleh did not respond to this summons
and Djibouti’s Ambassador to France, emphasizing that it was null
and void and not in accordance with French law, drew the attention
of France’s Minister for Foreign Affairs the following day to the fact
that the summons had been sent to Agence France-Presse (AFP)
only 20 minutes after being communicated to him by facsimile on
17 May 2005. He took the view that this was “a serious violation of
the most elementary rules governing an investigation”. In a radio
statement by the spokesman of the Ministry of Foreign Affairs and
by a press release of 18 May 2005, the texts of which were forwarded the
next day to Djibouti’s Ambassador to France, the French Ministry
of Foreign Affairs recalled, in relation to this summons, that “all
incumbent Heads of State enjoy immunity from jurisdiction when trav-
elling internationally”, that “[t]his is an established principle of inter-
national law and France intends to ensure that it is respected”,
and that “any request addressed to a representative of a foreign State

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              QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                   194

in the context of judicial proceedings is subject to particular forms, which
are prescribed by law”.
   32. On 14 February 2007, the investigating judge informed the Minis-
ter of Justice that she wished to obtain the testimony of the President of
Djibouti through the intermediary of the Minister for Foreign Affairs.
According to Djibouti, the information concerning this request was
passed by judicial sources to AFP and French media, even before the
Minister for Foreign Affairs had transmitted it to Djibouti’s representa-
tives. Djibouti reacted to this invitation to testify through a communiqué
of the same date from its Embassy in France, in which it “recall[ed] the
immunity from jurisdiction enjoyed by any incumbent Head of State dur-
ing visits abroad” and emphasized that “for a summons to be addressed
to the representative of a foreign State, the investigating judge is obliged
to comply with the procedure in full, in particular through the interme-
diary of the Ministry of Foreign Affairs, which was not done at all in this
instance”. The same day, in a press release, the French Ministry of Jus-
tice commented on this witness summons in terms similar to those used in
the press release of the Ministry of Foreign Affairs of 18 May 2005. The
following day, the summons was transmitted by the French Minister of
Justice to the French Minister for Foreign Affairs and then relayed by
the Private Office of the President of the French Republic to the repre-
sentatives of the Republic of Djibouti attending the Conference of Heads
of State of Africa and France in Cannes. The Djiboutian delegation then
communicated President Ismaël Omar Guelleh’s refusal to respond to
this new request.

   At the hearings, Djibouti acknowledged that the Djiboutian Head of
State had been summoned, both in 2005 and in 2007, as an “ordinary”
witness under French law and not as a “témoin assisté” (legally assisted
witness), as Djibouti had initially claimed in its Application. (For a defi-
nition of the status of témoin assisté, see paragraph 184 below.)

                                      *
   33. Five other summonses to attend as witnesses or témoins assistés
have also been addressed to a diplomat and two senior Djiboutian offi-
cials in connection with two other judicial proceedings conducted in
France. An account should therefore be given here of these two proceed-
ings, as they are connected to the principal judicial investigation opened
against X for the murder of Bernard Borrel. A third set of proceedings,
also connected to this principal judicial investigation, is of significance to
the present case in other respects and will likewise be referred to below.

   34. In the first of these proceedings, opened in respect of public defa-
mation before the Toulouse Tribunal de grande instance and then trans-
ferred to the Paris Tribunal de grande instance by judgment of the Cour

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              QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                    195

de cassation of 15 January 2003, Mrs. Borrel filed a civil action on
14 October 2002 against the Djiboutian newspaper La Nation, after it
had published an article which she considered to be defamatory of her.
The proceedings led the investigating judge responsible for the case,
Mr. Baudouin Thouvenot, to address a witness summons to Djibouti’s
Ambassador to France on 21 December 2004, without applying the pro-
visions of Article 656 of the French Code of Criminal Procedure. By a
Note Verbale of 7 January 2005, the Embassy informed the French Min-
istry of Foreign Affairs that, as provided for in Article 31 of the Vienna
Convention on Diplomatic Relations of 18 April 1961, the Ambassador
did not wish to give evidence as a witness, at the same time expressing its
surprise at the fact that the summons could be “addressed to him without
passing through the intermediary of the [French] Ministry of Foreign
Affairs”. In reply, the Head of Protocol at the Ministry deplored the fact
that the written statement of the Ambassador had not been requested in
accordance with Article 656 of the French Code of Criminal Procedure
and presented the apologies of the French authorities for “this breach of
diplomatic custom”. He further informed Djibouti’s Ambassador on
14 January 2005 that the investigating judge had “recognized his mis-
take” and “wished the summons to be now deemed null and void”. The
case has been the subject of a decision not to proceed, upheld on 27 April
2007 by the Paris Court of Appeal.

  35. A second set of judicial proceedings was opened in respect of sub-
ornation of perjury before the Toulouse Tribunal de grande instance and
then transferred to the Versailles Tribunal de grande instance by judg-
ment of the Cour de cassation of 5 March 2003. These proceedings origi-
nated from a civil action filed by Mrs. Borrel on 19 November 2002
against Mr. Djama Souleiman Ali, then procureur de la République of
Djibouti, and Mr. Hassan Said Khaireh, the Djiboutian Head of National
Security. Mr. Djama Souleiman Ali was accused of having exerted vari-
ous forms of pressure upon Mr. Mohamed Saleh Alhoumekani in order
to make him reconsider his previous statements (see paragraph 21 above).
For his part, Mr. Hassan Said Khaireh was accused of having exerted
various forms of pressure on Mr. Ali Abdillahi Iftin so as to make him
produce testimony which would discredit the statements of Mr. Mohamed
Saleh Alhoumekani. On 10 August 2004, in a letter of protest to his
French counterpart, the Djiboutian Minister of Justice referred to the
investigation under way at Versailles and claimed that “[t]hese proceed-
ings should have been declared inadmissible by the investigating judge in
Versailles, or at least closed by a dismissal order”, for lack of jurisdiction.
On 3 and 4 November 2004, Judge Pascale Belin addressed summonses
to Mr. Hassan Said Khaireh and Mr. Djama Souleiman Ali respectively
for them to be heard in France as témoins assistés on 16 December 2004.
The addressees of these summonses did not respond. On 17 June 2005,
Judge Thierry Bellancourt issued further summonses for Mr. Has-
san Said Khaireh and Mr. Djama Souleiman Ali to appear as témoins

                                                                            22

             QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                196

assistés on 13 October 2005. By letter of 11 October 2005, the lawyer for
the two senior Djiboutian officials informed Judge Bellancourt that “these
two persons, one an official and the other a judge, cannot comply with
that summons”. Recalling Djibouti’s full co-operation in the procedures
conducted by the judicial authorities in the Borrel case, and the lack of
co-operation from the French judiciary “in return”, he concluded that
“[i]n such circumstances, the Republic of Djibouti, as a sovereign State,
cannot accept one-way co-operation of this kind with the former colonial
Power, and [that] the two individuals summoned are therefore not author-
ized to give evidence”. On 27 September 2006, the Chambre de l’instruc-
tion of the Versailles Court of Appeal issued European arrest warrants
against these two individuals.

   36. On 27 March 2008, i.e., after the close of the oral proceedings in
the present case before this Court, the sixth Chambre correctionnelle of
the Versailles Tribunal de grande instance found Mr. Djama Soulei-
man Ali and Mr. Hassan Said Khaireh guilty, in absentia, of subornation
of perjury and sentenced them to 18 months and one year of imprison-
ment respectively. In its judgment, a copy of which was obtained by the
Court, the Chambre correctionnelle indicated that Mr. Djama Soulei-
man Ali and Mr. Hassan Said Khaireh had agreed to be tried in absentia
and had appointed their lawyer to represent them. It emphasized that no
reference had been made to immunity at any time during the hearings,
and stated that the arrest warrants issued by the Chambre de l’instruction
against the two individuals in question remained in force. The Court has
received no observations from the Parties regarding this judgment.

   37. Lastly, the circumstances in which the French authorities exam-
ined the international letter rogatory issued on 3 November 2004 by
the Djiboutian judge Leila Mohamed Ali in the Borrel case gave rise
to a third set of judicial proceedings. These proceedings were initiated
by a civil action filed by Mrs. Borrel on 7 February 2005 against the
spokesman of the French Ministry of Foreign Affairs for “statements
seeking to exert pressure to influence the decision of a judicial inves-
tigating authority or trial court”. The spokesman had stated, in his
press release of 29 January 2005 (see paragraph 27 above), that “a
copy of the record concerning the death of Judge Borrel will shortly
be transmitted to the Djiboutian judiciary . . .”, when no decision had
yet been taken on the outcome of Djibouti’s request. Following
Mrs. Borrel’s complaint, a judicial investigation was opened on 2 Sept-
ember 2005 before the Paris Tribunal de grande instance in respect
of pressure on the judiciary. Whereas the Public Prosecutor at
the Paris Court of Appeal had taken the view that there were no
grounds for a judicial investigation in this case, the Paris Court of
Appeal decided, in a judgment of 19 October 2006, to approve the
continuation of the proceedings. In this judgment, the Court of

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             QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                     197

Appeal set out as follows the position adopted by the Public Prosecutor
in Paris :
      “[T]he ministerial authority alone is competent to determine
    whether the request for mutual assistance is likely to prejudice the
    essential interests of the Nation, and that it is for the requested State
    to oppose the request or act upon it. The investigating judge, who
    has moreover expressed her refusal in the form of an order, had no
    power to take a judicial decision in matters of international mutual
    assistance, the judicial authority merely delivering an opinion . . .”
After noting that “where [the] text [of the bilateral convention of 27 Sep-
tember 1986] is silent, the provisions of the law of the requested State on
criminal procedure are applied”, the Court of Appeal dismissed the rea-
soning of the Public Prosecutor in Paris on the following grounds :
       “[T]he provisions of Article 694-4 of the Code of Criminal Proce-
    dure, being applicable, were immediately applied, which entailed
    obtaining the prior opinion of the government authorities, they
    alone being competent to assess the concepts of prejudice to the sov-
    ereignty, the security, the ordre public or other essential interests of
    the Nation ;
    . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
       It follows from the timing and the terms of the [relevant] letters . . .
    that the notice required by the provisions of Article 694-4 of the
    Code of Criminal Procedure had been given by the competent gov-
    ernment authorities, and that it was therefore for the principal inves-
    tigating judge, contrary to the submissions of the procureur général,
    or for a judge nominated for the purpose, to take such action as he
    saw fit on the execution of th[e] request for mutual assistance ;
       It follows in particular from the terms of the letter of 6 Janu-
    ary 2005 (000262/DEF/CAB/CCL) from the Minister of Defence to
    the Minister of Justice that the former is not opposed to partial
    handing over of the file, without all the information classified under
    ‘defence secrecy’ and declassified, any transmission of which could
    seriously compromise the higher interests of the State and of its
    agents ;
    . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
       After receiving the detailed notice from the government authori-
    ties, through the Public Prosecutor’s Department, a notice that is
    necessary but not sufficient in order to act on a request for mutual
    assistance, it is for the investigating judge . . . to decide on the
    impact and the judicial consequences of the French response in
    terms of international mutual assistance, in the light of the develop-
    ment of the proceedings in France, which she did by her reasoned
    order of 8 February 2005 ;
       In the present case, the issuing and transmission of an entire
    record of an investigation cannot be regarded as a decision that will

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              QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                     198

     have no impact in terms of the smooth conduct of the enquiries
     under way in France, particularly in Paris but also in Versailles ;

        Although under internal law, the decision to issue a copy of pro-
     ceedings is not necessarily one that has a judicial character, the deci-
     sion to do so is at the discretion of the investigating judge, and the
     response from the investigating judge as to whether or not to issue
     such a copy constituted in this case the positive or negative response
     to the request for mutual assistance ;
        Consequently, the response by order of 8 February 2005, from
     Ms Clément to the principal investigating judge, refusing to act on
     the Djiboutian judicial authorities’ request for mutual assistance,
     without having to distinguish between the various procedures for
     transmitting a request for mutual assistance and without having to
     pronounce on a possible abuse of the French law on declassified
     documents, constitutes a decision and not merely an opinion, con-
     trary to what is maintained by the procureur général.”
  38. The Paris Court of Appeal thus concluded that “the possibility
cannot be excluded that the publication of the communiqué from the
Quai d’Orsay may or might have been such as to constitute a statement
seeking to exert pressure to influence the decision of the investigating
judge”.

                                    * * *

                      II. JURISDICTION OF THE COURT

  39. In the absence of a declaration by France accepting the compul-
sory jurisdiction of the Court formulated under Article 36, paragraph 2,
of the Statute or of a compromissory clause contained in a treaty between
the Parties and applicable in the present dispute, Djibouti sought to
found the Court’s jurisdiction on Article 38, paragraph 5, of the Rules of
Court. By its letter of 25 July 2006, France consented to the Court’s juris-
diction “pursuant to and solely on the basis of said Article 38, para-
graph 5”, specifying that this consent “is valid only for the purposes of
the case . . . i.e., in respect of the dispute forming the subject of the Appli-
cation and strictly within the limits of the claims formulated therein”.

   40. Djibouti asserts that the dispute concerns the interpretation and
application of customary and conventional commitments. Djibouti infers
from what it terms the “full and wholehearted consent” expressed by the
Parties that the Court’s jurisdiction to settle the dispute is beyond ques-
tion. At the hearings, Djibouti recalled, by quoting from the Corfu Chan-
nel (United Kingdom v. Albania) case, that there is nothing to prevent
consent to the jurisdiction of the Court “from being effected by two sep-
arate and successive acts, instead of jointly and beforehand by a special

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              QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                  199

agreement” (Corfu Channel (United Kingdom v. Albania), Preliminary
Objection, Judgment, 1948, I.C.J. Reports 1947-1948, p. 28), and it is
then for the Court to establish to what extent such consent on “a single,
specific subject precisely delineating the scope” of the jurisdiction of the
Court arises due to those distinct acts.
   41. France acknowledges that the Court’s jurisdiction to settle the dis-
pute by virtue of Article 38, paragraph 5, of the Rules of Court is
“beyond question”. Regarding its consent to the jurisdiction of the
Court, however, France contests the scope of that jurisdiction ratione
materiae and ratione temporis to deal with certain violations alleged by
Djibouti.
   42. In its Application, Djibouti twice sought to reserve the right to
add, at a later date, additional bases of jurisdiction of the Court. In para-
graph 4 of the Application, Djibouti stated that it “reserv[es] the right to
supplement and elaborate on the present claim in the course of the
proceedings . . .”. In paragraph 26, it further stated : “The Republic of
Djibouti reserves the right to amend and supplement the present Applica-
tion.” Djibouti initially argued that these reservations enabled it to
    “have recourse to the dispute settlement procedure established by
    the conventions in force between itself and the French Republic,
    such as the Convention on the Prevention and Punishment of Crimes
    against Internationally Protected Persons”.

   In its Memorial, Djibouti reaffirmed its “right if necessary to invoke
other international instruments that bind the Parties, which would also
be relevant in founding the jurisdiction of the Court for the purposes of
this dispute”.
   43. France, for its part, pointed out that it would be unacceptable to
allow the belated discovery of a “hypothetical” new legal basis for the
Court’s jurisdiction to enable Djibouti to expand the scope of its Appli-
cation or to alter its character subsequent to the Respondent’s consent to
the Court’s jurisdiction for the purposes of the case.

                                        *
  44. The Court observes that, on the one hand, in the oral proceedings,
Djibouti declared that reliance on other bases for the Court’s jurisdiction
“appears unnecessary in the present case to enable the Court to adjudi-
cate all the claims in Djibouti’s Application” and that, on the other hand,
France took due note of this declaration.

                                    *       *
   (1) Preliminary question regarding jurisdiction and admissibility
   45. France, in its Counter-Memorial, presented the following submis-
sion : “the French Republic requests the International Court of Justice :

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             QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                 200

. . . to declare inadmissible the claims made by the Republic of Djibouti
in its Memorial which go beyond the declared subject of its Application”.
At the hearings, France justified this formulation, referring to the fact
that the Permanent Court of International Justice, in the Phosphates in
Morocco case, had, while accepting the preliminary objection raised by
France based on considerations ratione temporis, decided that “the appli-
cation submitted . . . by the Italian government [was] not admissible”
(Phosphates in Morocco, Judgment, 1938, P.C.I.J., Series A/B, No. 74,
p. 29).
   46. France subsequently indicated that, in the present case, its “objec-
tions to the exercise by the Court of its jurisdiction arise from the fact
that France has not consented to it ; in accordance with the prevailing
jurisprudence of the Court . . . consent governs its jurisdiction, not the
admissibility of the application”. France specifically cited the case con-
cerning Armed Activities on the Territory of the Congo (New Applica-
tion : 2002) (Democratic Republic of the Congo v. Rwanda) (Jurisdiction
and Admissibility, Judgment, I.C.J. Reports 2006, p. 39, para. 88). France
finally submitted that it would “be led to state in its final submissions
that it asks the Court to decide both that it has no jurisdiction and that
the Application is inadmissible”.
   47. At the end of its oral statements, France reformulated its conclu-
sions as follows :
    “the French Republic requests the Court :
    (1) (a) to declare that it lacks jurisdiction to rule on those claims
            presented by the Republic of Djibouti upon completion of
            its oral argument which go beyond the subject of the dis-
            pute as set out in its Application, or to declare them inad-
            missible”.

                                    *
  48. The Court first notes that in determining the scope of the consent
expressed by one of the parties, the Court pronounces on its jurisdiction
and not on the admissibility of the application. The Court confirmed, in
the case concerning Armed Activities on the Territory of the Congo (New
Application : 2002) (Democratic Republic of the Congo v. Rwanda)
(Jurisdiction and Admissibility, Judgment), that “its jurisdiction is based
on the consent of the parties and is confined to the extent accepted by
them” (I.C.J. Reports 2006, p. 39, para. 88), and further, that :
    “the conditions to which such consent is subject must be regarded as
    constituting the limits thereon . . . The examination of such condi-
    tions relates to its jurisdiction and not to the admissibility of the
    application.” (Ibid.).
This remains true, whether the consent at issue has been expressed
through a compromissory clause inserted in an international agreement,

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              QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                   201

as was contended to be the case in Armed Activities on the Territory of
the Congo (New Application : 2002) (Democratic Republic of the
Congo v. Rwanda), or through “two separate and successive acts” (Corfu
Channel (United Kingdom v. Albania), Preliminary Objection, Judg-
ment, 1948, I.C.J. Reports 1947-1948, p. 28), as is the case here.
  49. The Court concludes that, in reference to the final formulation of
France’s submissions, the conditions under which the Parties expressed
their consent in the present case are a matter of jurisdiction and not of
the admissibility of the Application or any claims formulated therein.
This applies to all objections raised by France to the Court’s jurisdiction,
whether ratione materiae or ratione temporis.

  50. The Court will now examine the objections raised by France relat-
ing to the scope of the Court’s jurisdiction ratione materiae.

                                    *   *
                    (2) Jurisdiction ratione materiae
(a) Positions of the Parties
   51. According to France, the Court can only have jurisdiction to deal
with facts that bear a direct relation to the stated subject of the dispute.
In its view, the Court has no jurisdiction regarding alleged violations of
further obligations, whether these derive from treaties or general interna-
tional law, to prevent attacks on the person, freedom or dignity of inter-
nationally protected persons or in the field of respect for diplomatic privi-
leges and immunities.
   52. France argues that, in the Application, the section entitled “Sub-
ject of the dispute” (para. 2) only mentions its refusal to execute the letter
rogatory of 3 November 2004. France admittedly takes note that Dji-
bouti refers to the alleged violations of obligations to prevent attacks on
the person of Djibouti’s Head of State and senior Djiboutian officials in
the sections entitled “Legal grounds” (para. 3) and “Nature of the claim”
(para. 4). It nevertheless asserts that, while the summoning of the Head
of State of Djibouti and of the senior officials as witness and témoins assis-
tés, respectively, and the issuing of European arrest warrants against sen-
ior Djiboutian officials are indeed linked to the Borrel case in the broader
sense, these judicial processes “bear no relation to the international letter
rogatory” that is in issue.
   53. France maintains, moreover, that “Djibouti’s Memorial goes
beyond the claims formulated in the Application” and that the applicant
State is not allowed to extend the subject of the dispute. France submits,
in this respect, that by the addition, in its Memorial, of some words
which were not contained in the Application, Djibouti altered the defini-
tion of the subject of the dispute. The dispute is now said to concern “the
refusal by the French . . . authorities to execute an international letter
rogatory . . . and the related breaching . . . of other international

                                                                           28

              QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                 202

obligations . . .” (instead of “in breach of other international obliga-
tions”). France asserts that the dispute, as defined in the Application,
concerned
    “the refusal by the French governmental and judicial authorities to
    execute an international letter rogatory regarding the transmission
    to the judicial authorities in Djibouti of the record relating to the
    investigation in the Case against X for the murder of Bernard Bor-
    rel”,
whereas according to Djibouti’s Memorial, “all the claims listed on the
basis of paragraphs [3, 4 and 5] of the Application . . . fall within the
jurisdiction of the Court ratione materiae”.
   54. France contends that this statement by Djibouti is the result of a
confusion between the claims and submissions contained in the Applica-
tion, on the one hand, and the legal grounds supporting them, on the
other. France refers in this context to the jurisprudence of the Court,
according to which a distinction must be made “between the dispute itself
and arguments used by the parties to sustain their respective submissions
on the dispute”, pointing out in particular that the Court’s jurisdiction
“must be determined exclusively on the basis of the submissions”.
   55. France concludes that the Court lacks jurisdiction both in respect
of the witness summonses addressed to the Djiboutian Head of State and
senior Djiboutian officials and the arrest warrants issued against the said
officials.
   56. Djibouti, for its part, referring to the terms of the letter whereby
France consented to the jurisdiction of the Court, acknowledges that the
extent of the Court’s jurisdiction is “strictly delimited” ratione materiae
and that “there is no doubt that the Court is entitled to deal solely with
the claims as set out in [the] Application”. However, Djibouti claims that
there is “agreement between the Parties that [the Court] can entertain all
these claims and settle them entirely, in every aspect and with all their
implications”. Analysing the mechanism of Article 38, paragraph 5, of
the Rules of Court as a combination of two intersecting unilateral decla-
rations concerning the jurisdiction of the Court, Djibouti, for the pur-
pose of identifying the true intention of the drafters of the instruments of
consent, relied at the hearings on the Court’s jurisprudence regarding the
interpretation of unilateral declarations of acceptance of the compulsory
jurisdiction of the Court under Article 36, paragraph 2, of the Statute.

   57. With regard to the wording of its Application and the lack of any
reference, under the heading therein “Subject of the dispute”, to the inter-
national immunities which France allegedly infringed, Djibouti, citing the
Mavrommatis Palestine Concessions case, recalls that the Court, whose
jurisdiction is of an international nature, is not bound to attach to mat-
ters of form the same degree of importance which they might possess in
municipal law (Mavrommatis Palestine Concessions, Judgment No. 2,
1924, P.C.I.J., Series A, No. 2, p. 34). Further, Djibouti points out that

                                                                         29

              QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                 203

its claims, under the heading “Nature of the claim”, relate explicitly to
the violation of the principles of international law on international immu-
nities. These two headings, “Subject of the dispute” and “Nature of the
claim”, are said to form a “whole”, attesting to the intention of Djibouti
to put before the Court not merely the issue of the violation of obliga-
tions of mutual assistance, but a dispute consisting of a number of
claims. Djibouti acknowledges in this respect that it expanded its Appli-
cation in its Memorial, as it had reserved the right to do, but maintains
that those expansions have not given rise to an alteration in the subject of
the Application.
   58. Djibouti points out, moreover, that, when consenting to the juris-
diction of the Court on the basis of Article 38, paragraph 5, of the Rules
of Court, the Respondent was free to give only partial consent to the
jurisdiction contemplated by the Application, which, according to Dji-
bouti, France did not do. Djibouti thus concludes that France gave its
consent for all the claims included in the Application to be covered by the
jurisdiction of the Court ratione materiae.
   59. Djibouti further asserts that a link exists between the judicial pro-
ceedings opened in France against senior Djiboutian officials for subor-
nation of perjury and the refusal of the French judicial authorities to
execute the letter rogatory issued by Djibouti. Such a link is said to be
shown by the Order (soit-transmis) of 8 February 2005, wherein
Judge Clément cited, as the first reason justifying the refusal, the inclu-
sion in the case file of documents concerning the judicial investigation
opened for subornation of perjury.

                                     *
(b) Forum prorogatum as a basis of the jurisdiction of the Court

   60. The jurisdiction of the Court is based on the consent of States,
under the conditions expressed therein. However, neither the Statute of
the Court nor its Rules require that the consent of the parties which thus
confers jurisdiction on the Court be expressed in any particular form
(Corfu Channel (United Kingdom v. Albania), Preliminary Objection,
Judgment, 1948, I.C.J. Reports 1947-1948, p. 27). The Statute of the
Court does explicitly mention the different ways by which States may
express their consent to the Court’s jurisdiction. Thus, in accordance
with Article 36, paragraph 1, of the Statute, such consent may result from
an explicit agreement of the parties, that agreement being able to be
manifested in a variety of ways. Further, States may recognize the juris-
diction of the Court by making declarations to this effect under Arti-
cle 36, paragraph 2, of the Statute.
   61. The Court has also interpreted Article 36, paragraph 1, of the Stat-
ute as enabling consent to be deduced from certain acts, thus accepting
the possibility of forum prorogatum. This modality is applied when a

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              QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                   204

respondent State has, through its conduct before the Court or in relation
to the applicant party, acted in such a way as to have consented to the
jurisdiction of the Court (Rights of Minorities in Upper Silesia (Minority
Schools), Judgment No. 12, 1928, P.C.I.J., Series A, No. 15, p. 24).
   62. The consent allowing for the Court to assume jurisdiction must be
certain. That is so, no more and no less, for jurisdiction based on forum
prorogatum. As the Court has recently explained, whatever the basis of
consent, the attitude of the respondent State must “be capable of being
regarded as ‘an unequivocal indication’ of the desire of that State to
accept the Court’s jurisdiction in a ‘voluntary and indisputable’ manner”
(Armed Activities on the Territory of the Congo (New Application : 2002)
(Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admis-
sibility, Judgment, I.C.J. Reports 2006, p. 18 ; see also Corfu Channel
(United Kingdom v. Albania), Preliminary Objection, Judgment, 1948,
I.C.J. Reports 1947-1948, p. 27 ; Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herze-
govina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports
1996 (II), pp. 620-621, para. 40 ; and Rights of Minorities in Upper
Silesia (Minority Schools), Judgment No. 12, 1928, P.C.I.J., Series A,
No. 15, p. 24). For the Court to exercise jurisdiction on the basis of forum
prorogatum, the element of consent must be either explicit or clearly to be
deduced from the relevant conduct of a State (Anglo-Iranian Oil Co.
(United Kingdom v. Iran), Preliminary Objection, Judgment, I.C.J.
Reports 1952, pp. 113-114 ; see also Monetary Gold Removed from Rome
in 1943 (Italy v. France, United Kingdom and United States of America),
Judgment, I.C.J. Reports 1954, p. 30).
   63. The Court observes that this is the first time it falls to the Court to
decide on the merits of a dispute brought before it by an application
based on Article 38, paragraph 5, of the Rules of Court. This provision
was introduced by the Court into its Rules in 1978. The purpose of this
amendment was to allow a State which proposes to found the jurisdiction
of the Court to entertain a case upon a consent thereto yet to be given or
manifested by another State to file an application setting out its claims
and inviting the latter to consent to the Court dealing with them, without
prejudice to the rules governing the sound administration of justice.
Before this revision, the Court treated this type of application in the same
way as any other application submitted to it : the Registry would issue the
usual notifications and the “case” was entered in the General List of the
Court. It could only be removed from the List if the respondent State
explicitly rejected the Court’s jurisdiction to entertain it. The Court was
therefore obliged to enter in its General List “cases” for which it plainly
did not have jurisdiction and in which, therefore, no further action could
be taken ; it was consequently obliged to issue orders so as to remove
them from its List (see Treatment in Hungary of Aircraft and Crew of
United States of America (United States of America v. Hungary), Order
of 12 July 1954, I.C.J. Reports 1954, p. 99 ; Treatment in Hungary of
Aircraft and Crew of United States of America (United States of

                                                                           31

               QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                      205

America v. Union of Soviet Socialist Republics), Order of 12 July 1954,
I.C.J. Reports 1954, p. 103 ; Aerial Incident of 10 March 1953 (United
States of America v. Czechoslovakia), Order of 14 March 1956, I.C.J.
Reports 1956, p. 6 ; Antarctica (United Kingdom v. Argentina), Order of
16 March 1956, I.C.J. Reports 1956, p. 12 ; Antarctica (United King-
dom v. Chile), Order of 16 March 1956, I.C.J. Reports 1956, p. 15 ;
Aerial Incident of 7 October 1952 (United States of America v. Union of
Soviet Socialist Republics), Order of 14 March 1956, I.C.J. Reports
1956, p. 9 ; Aerial Incident of 4 September 1954 (United States of
America v. Union of Soviet Socialist Republics), Order of 9 December
1958, I.C.J. Reports 1958, p. 158 ; Aerial Incident of 7 November 1954
(United States of America v. Union of Soviet Socialist Republics), Order
of 7 October 1959, I.C.J. Reports 1959, p. 276). Article 38, paragraph 5,
now provides, firstly, that no entry is made in the General List unless and
until the State against which such application is made consents to the
Court’s jurisdiction to entertain the case and, secondly, that, except for
the transmission of the application to that State, no action is to be taken
in the proceedings. The State which is thus asked to consent to the
Court’s jurisdiction to settle a dispute is completely free to respond as it
sees fit ; if it consents to the Court’s jurisdiction, it is for it to specify, if
necessary, the aspects of the dispute which it agrees to submit to the judg-
ment of the Court. The deferred and ad hoc nature of the Respondent’s
consent, as contemplated by Article 38, paragraph 5, of the Rules of
Court, makes the procedure set out there a means of establishing forum
prorogatum.

   64. Article 38, paragraph 5, of the Rules of Court must also be read
and interpreted in the light of paragraph 2 of that Article, which reads as
follows : “The application shall specify as far as possible the legal grounds
upon which the jurisdiction of the Court is said to be based ; it shall also
specify the precise nature of the claim, together with a succinct statement
of the facts and grounds on which the claim is based.” The expression “as
far as possible” used in this provision was inserted in the Rules of Court
of the Permanent Court of International Justice in 1936, precisely in
order to preserve the possibility for the Court to found its jurisdiction on
forum prorogatum (Acts and Documents Concerning the Organization of
the Court : Elaboration of the Rules of Court of March 11th, 1936,
P.C.I.J., Series D, No. 2, Add. 3, pp. 159-160). This expression was used
in the original Rules of Court of the International Court of Justice in
1946 and has remained there ever since. Obviously, the jurisdiction of the
Court can be founded on forum prorogatum in a variety of ways, by no
means all of which fall under Article 38, paragraph 5. The Court would
add that, while doubts may previously have existed in this respect, since
the revision in 1978, the wording of Article 38, paragraph 2, excludes the
possibility of the phrase “as far as possible” also being applied to the
statement of “the precise nature of the claim” or of “the facts and
grounds on which the claim is based”. Applying it in such a way would in

                                                                               32

              QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                 206

any event have been out of keeping with the reasons which led the phrase
to be included in 1936. No applicant may come to the Court without
being able to indicate, in its Application, the State against which the
claim is brought and the subject of the dispute, as well as the precise
nature of that claim and the facts and grounds on which it is based.

            (3) Extent of the mutual consent of the Parties
   65. France has, in the present case, expressly agreed to the Court’s
jurisdiction under Article 38, paragraph 5, of the Rules of Court, in its
letter of acceptance dated 25 July 2006. France’s expression of consent
must, however, be read together with Djibouti’s Application to discern
properly the extent of the consent given by the Parties to the Court’s
jurisdiction, and thereby to arrive at that which is common in their
expressions of consent.

(a) Djibouti’s Application
   66. In light of the foregoing, the Court will examine not only the terms
of France’s acceptance, but also the terms of Djibouti’s Application to
which that acceptance responds. Only then can the scope of the claims in
respect of which France has accepted the jurisdiction of the Court be
properly understood. As Djibouti readily acknowledges, when consent is
given post hoc, a State may well give only partial consent, and in so doing
narrow the jurisdiction of the Court by comparison with what had been
contemplated in the Application. The Court will therefore examine the
various claims raised in the Application, and the extent to which the
Respondent has accepted the Court’s jurisdiction with regard to them in
its letter of 25 July 2006.
   67. France has taken the view that it has only accepted the Court’s
jurisdiction over the stated subject-matter of the case which is to be
found, and only to be found, in paragraph 2 of the Application, under
the heading “Subject of the dispute”. So far as the question of identifying
the subject-matter of the dispute is concerned, while indeed it is desirable
that what the Applicant regards as the subject-matter of the dispute is
specified under that heading in the Application, nonetheless, the Court
must look at the Application as a whole.
   68. In paragraph 2 of its Application, Djibouti set out as the “Subject
of the dispute” the following :
       “The subject of the dispute concerns the refusal by the French
    governmental and judicial authorities to execute an international let-
    ter rogatory regarding the transmission to the judicial authorities in
    Djibouti of the record relating to the investigation in the Case
    against X for the murder of Bernard Borrel, in violation of the Con-
    vention on Mutual Assistance in Criminal Matters between the Gov-

                                                                         33

              QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                 207

    ernment of the Republic of Djibouti and the Government of the
    French Republic, of 27 September 1986, and in breach of other
    international obligations borne by the French Republic to the Repub-
    lic of Djibouti.”

   69. Neither Article 40 of the Statute nor Article 38 of the Rules of
Court subject the application to particular formal (as opposed to sub-
stantive) requirements regarding the manner by which the necessary ele-
ments of the application should be presented. Thus, if a section entitled
“Subject of the dispute” does not entirely circumscribe the extent of the
issues intended to be brought before the Court, the subject-matter of the
dispute may nonetheless be discerned from a reading of the whole Appli-
cation.
   70. Ruling on this issue in the case concerning Right of Passage over
Indian Territory (Portugal v. India), the Court stated that it would not
confine itself to the formulation by the Applicant when it was called upon
to determine the subject of the dispute. It then defined the subject of the
dispute in the following terms :
       “A passage in the Application headed ‘Subject of the Dispute’
    indicates that subject as being the conflict of views which arose
    between the two States when, in 1954, India opposed the exercise of
    Portugal’s right of passage. If this were the subject of the dispute
    referred to the Court, the challenge to the jurisdiction could not be
    sustained. But it appeared from the Application itself and it was
    fully confirmed by the subsequent proceedings, the Submissions of
    the Parties and statements made in the course of the hearings, that
    the dispute submitted to the Court has a threefold subject . . .”
    (Right of Passage over Indian Territory (Portugal v. India), Merits,
    Judgment, I.C.J. Reports 1960, p. 33.)
The Court thus clearly stated that the subject of the dispute was not to be
determined exclusively by reference to matters set out under the relevant
section heading of the Application.

                                     *
    71. Paragraph 2 of Djibouti’s Application, entitled “Subject of the dis-
pute” (see paragraph 68 above), focuses on the (non-)transmission of the
Borrel case file to Djibouti. That paragraph does not mention any other
matters which Djibouti also seeks to bring before the Court, namely, the
various summonses sent to the President of Djibouti and two senior Dji-
boutian officials. Naturally, no reference was made in that paragraph to
the summons addressed to the President of Djibouti on 14 February 2007,
nor to the arrest warrants made out against the two above-mentioned
officials on 27 September 2006, as these were events subsequent to the
filing of the Application.
    72. A further examination of the Application, on the other hand,

                                                                         34

             QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                208

reveals that both under the headings “Legal grounds” and “Nature of the
claim”, Djibouti mentions the summonses issued before the filing of the
Application and requests specific remedies in so far as it considers them
to be violations of international law.
   73. Thus, under the heading “Legal grounds”, Djibouti lists in para-
graph 3, subparagraph (c), of its Application :
    “violation by the French Republic of the obligation, deriving from
    established principles of customary and general international law, to
    prevent attacks on the person, freedom or dignity of an internation-
    ally protected person, whether a Head of State or any representative
    or official of a State”.

  74. Further, under the heading “Nature of the claim” (paragraph 4 of
the Application), Djibouti asks the Court to adjudge and declare :
    “(e) that the French Republic is under an international obligation
         to ensure that the Head of State of the Republic of Djibouti,
         as a foreign Head of State, is not subjected to any insults or
         attacks on his dignity on French territory ;

     (f) that the French Republic is under a legal obligation scrupu-
         lously to ensure respect, vis-à-vis the Republic of Djibouti, of
         the principles and rules concerning diplomatic privileges, pre-
         rogatives and immunities, as reflected in the Vienna Conven-
         tion on Diplomatic Relations of 18 April 1961 ;

         . . . . . . . . . . . . . . . . . . . . . . . . . . .
     (h) that the French Republic is under an obligation immediately
         to cease and desist from breaching the obligations referred to
         above and, to that end, shall in particular :
         . . . . . . . . . . . . . . . . . . . . . . . . . . .
         (ii) withdraw and cancel the summonses of the Head of State
              of the Republic of Djibouti and of internationally pro-
              tected Djiboutian nationals to testify as témoins assistés
              [legally represented witnesses] in respect of subornation of
              perjury in the ‘Case against X for the murder of Bernard
              Borrel’.”
  75. The Court notes that, despite a confined description of the subject
of the dispute (its “objet”) in the second paragraph of the Application,
the said Application, taken as a whole, has a wider scope which includes
the summonses sent to the Djiboutian President on 17 May 2005 and
those sent to other Djiboutian officials on 3 and 4 November 2004. The
Court will in due course examine the later summons addressed to the
President of Djibouti, as well as the arrest warrants issued against the
other Djiboutian officials.

                                                                       35

             QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                  209

(b) France’s response to the Application
   76. The Court will now analyse the letter which France sent to the
Court, dated 25 July 2006 and received in the Registry on 9 August 2006,
whereby it accepted the Court’s jurisdiction on the conditions described
therein, in the light of the content of the Application of Djibouti.
   77. The operative phrases in France’s response to Djibouti’s Applica-
tion are reproduced here in full :
       “I have the honour to inform you that the French Republic con-
    sents to the Court’s jurisdiction to entertain the Application pursu-
    ant to and solely on the basis of said Article 38, paragraph 5 [of the
    Rules of Court].
       The present consent to the Court’s jurisdiction is valid only for the
    purposes of the case within the meaning of Article 38, paragraph 5,
    i.e. in respect of the dispute forming the subject of the Application
    and strictly within the limits of the claims formulated therein by the
    Republic of Djibouti.”
  78. This response to Djibouti’s Application seeks first to provide the
Court with jurisdiction to entertain the Application of Djibouti, and
second, to ensure that only the dispute which is the subject of the
Application, to the exclusion of any others, would be dealt with by
the Court.
  79. What is uncontested by both Parties is that the claims relating
to the Djiboutian letter rogatory of 3 November 2004 and thus the
question of compliance, in particular, with the 1986 Convention on
Mutual Assistance in Criminal Matters are subject to the Court’s
jurisdiction. Djibouti’s Application and France’s response overlap on
this issue. What remains to be answered, however, is the question whether
such an overlap exists also as regards the claims relating to the
summonses sent by France to the Djiboutian President, the procureur
de la République of Djibouti and the Djiboutian Head of National
Security, as well as the arrest warrants issued against the latter two
officials.

(c) Findings of the Court
  80. The Court is thus required to decide first, proceeding from the
Application and the French response thereto dated 25 July 2006, whether
the claims relating to the summons sent to the President of Djibouti on
17 May 2005, as well as the summonses sent to the Head of National
Security and the procureur de la République of Djibouti on 3 and
4 November 2004, respectively, and on 17 June 2005, fall within the
Court’s jurisdiction.
  81. France’s response, whereby it accepted the jurisdiction of the
Court, allowed the contentious proceedings to be set in motion, on the
basis of Djibouti’s Application. It was upon receipt of this response that
the case was put on the Court’s General List. It is clear, on the basis of

                                                                         36

              QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                   210

Djibouti’s Application, that France could have either chosen to consent
to the Court’s jurisdiction also in respect of alleged violations of the
privileges and immunities said to be owed to the Head of State of Dji-
bouti and certain of its senior officials, or that it could have chosen to
deny the Court jurisdiction over these matters. The question at hand is to
know what France decided in that regard.
   82. France claims that its agreement is limited to the “subject of the
dispute” as it is described under that heading in paragraph 2 of the
Application, that is, that it consented to provide the Court with jurisdic-
tion solely to adjudicate the claim regarding the Djiboutian letter roga-
tory.
   83. However, it is the view of the Court that, on the basis of a plain
reading of the text of France’s letter to the Court, by its choice of words,
the consent of the Respondent is not limited to the “subject of the dis-
pute” as described in paragraph 2 of the Application.
   First, as observed above, the subject of the dispute appears from the
Application, viewed as a whole, to be broader than that specified in para-
graph 2. Further, the expression “subject of the Application” used in
France’s letter of acceptance is not the same as the expression “subject of
the dispute”. Furthermore, in accordance with its ordinary meaning, the
term “Application” used in the letter of acceptance must be read as com-
prising the entirety of the Application. Finally, there is nothing in France’s
letter of acceptance suggesting that it intended to limit the scope of its
consent, as it could have done, to any particular aspect of the Applica-
tion. By its inclusion in the letter of the phrase “in respect of the dispute
forming the subject of the Application and strictly within the limits of the
claims formulated therein” (emphasis added), France had intended to
prevent Djibouti from presenting claims at a later stage of the proceed-
ings which might have fallen within the subject of the dispute but which
would have been new claims. As regards the use of the conjunctive “and”
in the phrase in question, France presented several arguments aiming to
demonstrate that the wording employed in the letter was “carefully
weighed”. Given these circumstances, the Court finds that when France,
which had full knowledge of the claims formulated by Djibouti in its
Application, sent its letter of 25 July 2006 to the Court, it did not seek to
exclude certain aspects of the dispute forming the subject of the Applica-
tion from its jurisdiction.

  84. With regard to jurisdiction ratione materiae, the Court finds that
the claims concerning both subject-matters referred to in Djibouti’s Appli-
cation, namely, France’s refusal to comply with Djibouti’s letter rogatory
and the summonses to appear sent by the French judiciary, on the one
hand to the President of Djibouti dated 17 May 2005, and on the other
hand to two senior Djiboutian officials dated 3 and 4 November 2004
and 17 June 2005, are within the Court’s jurisdiction.

  85. The Court now examines the question of the Court’s jurisdiction

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              QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                   211

over the witness summons of 2007 served on the President of Djibouti
and the arrest warrants of 2006 issued against the senior Djiboutian offi-
cials. It recalls that, in its Memorial, Djibouti did not address that ques-
tion. At the hearings, Djibouti disputed that its claims based on the
violations of international immunities which took place after 9 Janu-
ary 2006 (the date at which it filed the Application) were, as France
claims, inadmissible ; it argued that it had reserved the right, in the Appli-
cation, “to amend and supplement the present Application”. Djibouti
noted that the claims based on violations of the international law on
immunities which took place after 9 January 2006 are not “new or extra-
neous to the initial claims” and that they “all relate to the claims set out
in the Application and are based on the same legal grounds”. They do
not transform the subject of the dispute as it was originally submitted to
the Court, nor do they extend it. Djibouti contends that these violations
would not have taken place if France had fulfilled the obligations to
which the Application refers, and relies on the jurisprudence of the Court
in this respect (Fisheries Jurisdiction (Federal Republic of Germany v.
Iceland), Merits, Judgment, I.C.J. Reports 1974, p. 203). Those viola-
tions thus constitute “one sole continuous wrongful act”.

   86. The Court also recalls France’s argument that even if the Court
should find jurisdiction in principle to deal with the alleged violations
regarding the prevention of attacks on the person, liberty or dignity of
internationally protected persons, such jurisdiction could not be exercised
in respect of facts occurring subsequent to the filing of the Application.
That would be the case with the invitation to testify sent to the Djibou-
tian President on 14 February 2007, and with the arrest warrants issued
on 27 September 2006 against the Head of National Security and the pro-
cureur de la République of Djibouti in connection with the proceedings
opened for subornation of perjury (see paragraph 35 above). In this
respect, France rejects the Applicant’s argument, as it believes it would
result in a gradual extension of the jurisdiction of the Court in a way that
is incompatible with the principle of consensualism.

   87. Although the Court has not found that France’s consent is limited
to what is contained in paragraph 2 of Djibouti’s Application, it is clear
from France’s letter that its consent does not go beyond what is in that
Application. Where jurisdiction is based on forum prorogatum, great care
must be taken regarding the scope of the consent as circumscribed by the
respondent State. The arrest warrants against the two senior Djiboutian
officials, having been issued after the date the Application was filed, are
nowhere mentioned therein. When the Court has examined its jurisdic-
tion over facts or events subsequent to the filing of the application, it has
emphasized the need to determine whether those facts or events were con-
nected to the facts or events already falling within the Court’s jurisdiction
and whether consideration of those later facts or events would transform

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              QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                 212

the “nature of the dispute” (see Fisheries Jurisdiction (Federal Republic
of Germany v. Iceland), Merits, Judgment, I.C.J. Reports 1974, p. 203,
para. 72 ; LaGrand (Germany v. United States of America), Judgment,
I.C.J. Reports 2001, pp. 483-484, para. 45 ; see also Certain Phosphate
Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment,
I.C.J. Reports 1992, pp. 264-267, paras. 69-70 ; and Arrest Warrant of
11 April 2000 (Democratic Republic of the Congo v. Belgium), Judg-
ment, I.C.J. Reports 2002, p. 16, para. 36).

   88. In none of these cases was the Court’s jurisdiction founded on
forum prorogatum. In the present case, where it is so founded, the Court
considers it immaterial whether these later elements would “go beyond
the declared subject of (the) Application” (as France argued, an argu-
ment against which Djibouti referred to the Court’s case law regarding
liberty to amend submissions). So far as the arrest warrants issued
against senior Djiboutian officials are concerned, in the Court’s view,
what is decisive is that the question of its jurisdiction over the claims
relating to these arrest warrants is not to be answered by recourse to
jurisprudence relating to “continuity” and “connexity”, which are criteria
relevant for determining limits ratione temporis to its jurisdiction, but by
that which France has expressly accepted in its letter of 25 July 2006.
There, France specifies that its consent is valid “only for the purposes of
the case”, that is, regarding “the dispute forming the subject of the Appli-
cation and strictly within the limits of the claims formulated therein by
the Republic of Djibouti”.

   As was already mentioned, in Djibouti’s Application there are no
claims relating to arrest warrants. Although the arrest warrants could be
perceived as a method of enforcing the summonses, they represent new
legal acts in respect of which France cannot be considered as having
implicitly accepted the Court’s jurisdiction. Therefore, the claims relating
to the arrest warrants arise in respect of issues which are outside the
scope of the Court’s jurisdiction ratione materiae. Having arrived at this
conclusion, the Court does not have to rule on the question whether these
claims were or were not directly derived from matters in dispute at the
time of the Application.

   89. The Court will now examine the Respondent’s contention relating
to the summons (invitation) sent to the President of Djibouti on 14 Feb-
ruary 2007.
   90. In the present case, France has, under the procedure outlined in
Article 38, paragraph 5, of the Rules of Court, agreed to the Court’s
jurisdiction in relation to the claims described in Djibouti’s Application,
filed on 9 January 2006. The Court will have to examine the implications
for the summons of 14 February 2007, that is, an event occurring after
that date.

                                                                         39

              QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                    213

  91. A first summons to appear was sent by facsimile to the Djiboutian
President on 17 May 2005 at the Djiboutian Embassy in Paris while he
was on an official visit to France. It was rejected by Djibouti, for reasons
of form and substance. The second summons was sent on 14 February
2007 : it was in relation to the same case, as the invitation was issued by
the same judge, and it was in relation to the same legal question ; how-
ever, this time it followed the proper form under French law. The sum-
mons sent to the President of Djibouti on 14 February 2007 was but a
repetition of the preceding one, even though it had been corrected as to
form. Consequently, it is apparent that, in its substance, it is the same
summons.

  92. The Court must consider whether the second summons is covered
by the mutual consent represented by the terms of the Djiboutian Appli-
cation and the French response.
  93. Djibouti lists the legal grounds on which it bases its Application in
the latter’s paragraph 3. According to the wording found therein, the
Application is, inter alia, founded on :

     “(c) violation by the French Republic of the obligation, deriving
          from established principles of customary and general interna-
          tional law, to prevent attacks on the person, freedom or dig-
          nity of an internationally protected person, whether a Head of
          State or any representative or official of a State”.

   This ground, which relates to Djibouti’s claim regarding the witness
summonses, refers expressly to the attacks on the person of a Head of
State and also extends, therefore, to the summons addressed to the Dji-
boutian Head of State in 2005.
   94. The French response to Djibouti’s Application, as already men-
tioned above, was worded to limit the scope of the Court’s jurisdiction.
The French letter of acceptance did not, however, contain a temporal
limitation ; rather, it specified that France accepted the jurisdiction of the
Court in relation to the “claims formulated” in Djibouti’s Application.

   95. Pursuant to its examination of Djibouti’s Application and of
France’s response, the Court reaches the conclusion that the Parties had
accepted its jurisdiction to deal with the summons addressed to the Presi-
dent of Djibouti on 17 May 2005. As regards the summons addressed to
the President on 14 February 2007, as has already been indicated above
(paragraph 91), the Court finds that it is the same summons in its sub-
stance, as it is simply a repetition of the first. The Court thus finds that it
has jurisdiction to examine both.

                                    * * *
                                                                            40

              QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                    214

    III. THE ALLEGED VIOLATION OF THE TREATY OF FRIENDSHIP AND
     CO-OPERATION BETWEEN FRANCE AND DJIBOUTI OF 27 JUNE 1977

   96. The Treaty of Friendship and Co-operation between France and
Djibouti was signed on 27 June 1977, that is, on the date on which Dji-
bouti gained independence. The Treaty was subsequently ratified by the
Parties and entered into force on 31 October 1982 (United Nations,
Treaty Series (UNTS), Vol. 1482, p. 196).
   Djibouti argues that France violated a general obligation of co-opera-
tion provided for by the Treaty of Friendship and Co-operation through
the following acts : not co-operating with it in the context of the judicial
investigation into the Borrel case ; attacking the dignity and honour of
the Djiboutian Head of State and other Djiboutian authorities ; and act-
ing in disregard of the principles of equality, mutual respect and peace set
out in Article 1 of the Treaty.
   97. In the Preamble to the Treaty, the Presidents of the two States
express their desire “to develop and strengthen the friendly relations
between their two countries, and the co-operation between the French
Republic and the Republic of Djibouti in the political, military, eco-
nomic, financial, cultural, social and technical fields”. In Article 1 of the
Treaty, the Parties “decide to found the relations between their two coun-
tries on equality, mutual respect and peace” ; Article 2 expresses their
“firm desire to preserve and strengthen” the existing co-operation and
friendship, to work to fortify peace and security, as well as to “foster all
international co-operation promoting peace and social, economic and
cultural progress”. The first paragraph of Article 3 embodies an obliga-
tion of consultation in favour of the stability of the currency of Djibouti,
while the second paragraph contains undertakings relating to the eco-
nomic development of the two countries. Article 4 deals with co-opera-
tion “in the areas of culture, science, technology and education”. In Arti-
cle 5, the Parties promise to foster co-operation, the sharing of experience,
and the exchange of information between their “public and private
national organizations” and their “cultural, social and economic institu-
tions”. Article 6 provides for the establishment of a “France-Djibouti
Co-operation Commission”, whose functioning is governed by rules set
out in Article 7 of the Treaty. The task of the Commission is “to oversee
the implementation of the principles and the pursuit of the objectives
defined in the . . . Treaty and in the conventions and specific agreements
entered into between the two Governments” ; its jurisdiction is to com-
prise “[a]ll relations of co-operation, as well as the application of the vari-
ous agreements entered into between the two States”.
   98. Djibouti contends that Article 1 of the Treaty should be regarded
as “fixing an objective, in the light of which the other Treaty provisions
are to be interpreted and applied”, making reference to the case concern-
ing Oil Platforms (Islamic Republic of Iran v. United States of America)
(I.C.J. Reports 1996 (II), p. 814, para. 28). According to Djibouti, that
general obligation allegedly arises from the object and purpose of the

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              QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                    215

Treaty as interpreted on the basis of its Articles 1, 2 and 4, and its Pre-
amble. Djibouti also argues that the goal pursued by the Parties, in
choosing to express these obligations in the form of a treaty, was to be
bound “by means of a genuine legal commitment giving rise to all the
effects of an authentic international agreement”. Djibouti observes in this
respect that the majority of the provisions of the Treaty (Arts. 1-5) are
clearly expressed as obligations, and considers that the fact that the
Treaty was ratified by the President of the French Republic without par-
liamentary approval “does not in any way change the fact that it estab-
lishes obligations of a legal kind”.
   99. Djibouti argues that the general obligation of co-operation
enshrined in the Treaty creates reciprocal obligations which it has hon-
oured by manifesting an “exemplary spirit of co-operation” and making
all possible good-faith efforts to shed light on the Borrel case. In con-
trast, France is said to have violated the obligations of reciprocity and
good faith incumbent upon it in terms of co-operation.
   100. Djibouti also maintains that, in addition to the general obligation
of co-operation, the Treaty provides for specific obligations to co-operate
in all the areas which the Treaty covers, in an indicative rather than an
exhaustive manner. Djibouti thus claims that judicial co-operation in
criminal matters falls within the undertakings deriving from Articles 3
and 5 of the Treaty. Relying on Article 6 of the Treaty, Djibouti argues
that the Treaty :
     “ ‘oversees’, so to speak, all the other successive bilateral agreements,
     including the 1986 Convention, and must be observed in all areas
     with which they are concerned. In other words, all agreements sub-
     sequent to 1977 must be interpreted and applied in the light of the
     object and purpose of the 1977 Treaty and the undertakings regard-
     ing co-operation that derive from it.”
Djibouti concludes from this that any serious violation of a subsequent
specific agreement, such as the 1986 Convention, automatically and
simultaneously gives rise to a breach of the Treaty.
   101. France argues that any interpretation of the Treaty resulting in
the acknowledgment of the existence of a general obligation to co-
operate which is legally binding on France in respect of the execution of
the international letter rogatory is inconsistent not only with the wording
of the Treaty, but also with its object, its purpose, its context, and the will
of the parties. Basing itself on the principles of interpretation established
by the Court with regard to other friendship treaties, and referring to the
cases concerning Oil Platforms (Islamic Republic of Iran v. United States
of America) (I.C.J. Reports 1996 (II), p. 814, para. 28) and Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America) (I.C.J. Reports 1986, p. 137, para. 273), France
emphasizes in particular that Article 1 of the Treaty merely lays down
guiding principles, that Article 2 expresses a common desire to pursue
certain objectives which cannot constitute legal obligations, and that

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              QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                   216

the legal obligations contained within the Treaty (Arts. 3 and 4) have
nothing to do with judicial co-operation in criminal matters. With regard
to Article 5, France points out that the wording used reflects a “fairly
vague” obligation to act, that it does not relate to the judicial authorities,
and that the area covered by the Article “cannot extend beyond the scope
of the Treaty itself”, which does not address judicial co-operation. In
addition, France claims that its interpretation of the Treaty is supported
by the fact that it was ratified by the President of the Republic without
the need for parliamentary approval, and that, had the Treaty involved
specific legal obligations (as was the case for the 1986 Convention), such
approval would have been required by Article 53 of its Constitution.

   102. France further disputes that Article 6 “oversees” all of the other
successive bilateral agreements, noting in particular that neither the pro-
visions of the Treaty nor those of the 1986 Convention establish a legal
link between the two instruments. In this respect, no violation of the
1986 Convention could give rise to any effects under the Treaty of 1977.
   103. France concludes that the principles embodied in the Treaty of
1977 cannot by themselves “give rise to a violation of international law”.
Furthermore, it contends that the manner in which the principles of good
faith and reciprocity are linked to the Treaty is, formally speaking, artifi-
cial, and that the said principles should be examined in relation to specific
obligations which are contained, according to the Application, in the
1986 Convention and not in the Treaty of 1977. France thus addresses
the issue of reciprocity in dealing with the violations of the 1986 Conven-
tion that are alleged by Djibouti.
   104. The Court observes that, notwithstanding the broad intention to
promote mutual respect as described in Article 1 of the Treaty of 1977,
the principal objective of the Treaty is the development of co-operation
in the economic, monetary, social and cultural fields. Its substantive pro-
visions speak of objectives to be attained, friendship to be fostered and
goodwill to be developed. While these provisions refer to the realization
of aspirations, they are not bereft of legal content. The respective obliga-
tions of the Treaty are obligations of law, articulated as obligations of
conduct or, in this case, of co-operation, of a broad and general nature,
committing the Parties to work towards the attainment of certain objec-
tives defined as progress in a variety of fields, as well as in matters relat-
ing to peace and security. These goals are to be achieved by the employ-
ment of certain procedures and institutional arrangements. That France
has ratified the Treaty without finding it necessary to submit it for par-
liamentary approval does not alter the fact that the Treaty creates legal
obligations of the kind just described.

  105. Mutual assistance in criminal matters, the subject regulated by
the 1986 Convention, is not a matter mentioned among the fields of co-
operation enumerated in the Treaty of 1977. Judicial co-operation is

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              QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                  217

therefore not subject to the undertakings and procedures governed by
Article 3, paragraph 2, and Articles 5 and 6 of the Treaty. Therefore the
question arises whether the Treaty of 1977 can have any juridical impact
on the 1986 Convention, despite the fact that the Convention deals with
a kind of co-operation which is not envisaged in the Treaty of 1977.
  106. In the view of the Applicant, such a relationship between the two
instruments exists in two regards : first, the 1986 Convention on Mutual
Assistance must be construed in the light of the ties of friendship existing
between the Parties to it ; and second, any “serious” violation of the 1986
Convention must be regarded as a “major” violation of the 1977 Treaty
of Friendship.

  107. The Court has had occasion to address similar questions in two
earlier cases. At the merits stage of the case concerning Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), the Court had to determine the purport and scope of
a treaty of friendship, commerce and navigation concluded in 1956
between the two States. In its own words,
       “[T]he Court is asked to rule that a State which enters into a
    treaty of friendship binds itself, for so long as the Treaty is in force,
    to abstain from any act towards the other party which could be clas-
    sified as an unfriendly act, even if such act is not in itself the breach
    of an international obligation. Such a duty might of course be
    expressly stipulated in a treaty, or might even emerge as a necessary
    implication from the text ; but as a matter of customary international
    law, it is not clear that the existence of such a far reaching rule is
    evidenced in the practice of States. There must be a distinction, even
    in the case of a treaty of friendship, between the broad category of
    unfriendly acts, and the narrower category of acts tending to defeat
    the object and purpose of the Treaty. That object and purpose is the
    effective implementation of friendship in the specific fields provided
    for in the Treaty, not friendship in a vague general sense.” (Merits,
    Judgment, I.C.J. Reports 1986, pp. 136-137, para. 273.)

Thus, the Court ruled that, while Article I of the United States-Nicara-
guan Treaty did create a general obligation to act towards the other party
in a friendly manner, that obligation did not extend to all relations
between the parties, but rather was restricted to the specific fields regu-
lated by the treaty.
   108. Similarly, in its preliminary ruling on jurisdiction in the case of
the Oil Platforms (Islamic Republic of Iran v. United States of America),
the Court was called upon to interpret Article I of the Treaty of Amity,
Economic Relations and Consular Rights concluded in 1955 between
Iran and the United States, providing that “[t]here shall be firm and
enduring peace and sincere friendship” between the two States. Iran con-
tended that this Article imposed a positive obligation on the parties,

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              QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                   218

whereas the United States submitted that Article I was simply a state-
ment of aspiration.
   109. The Court proceeded once again to put the general clause stipu-
lated in Article I in context. It considered “that such a general formula-
tion cannot be interpreted in isolation from the object and purpose of the
Treaty in which it is inserted” (Oil Platforms (Islamic Republic of Iran v.
United States of America), I.C.J. Reports 1996 (II), p. 813, para. 27).
The Court emphasized :

       “Article I cannot be interpreted as incorporating into the Treaty
    all of the provisions of international law concerning such relations . . .
    It follows that Article I must be regarded as fixing an objective, in
    the light of which the other Treaty provisions are to be interpreted
    and applied.” (Ibid., p. 814, para. 28.)

Against this background the Court concluded :
    “that the objective of peace and friendship proclaimed in Article I of
    the Treaty of 1955 is such as to throw light on the interpretation of
    the other Treaty provisions . . . Article I is thus not without legal
    significance for such an interpretation, but cannot, taken in isola-
    tion, be a basis for the jurisdiction of the Court.” (Ibid., p. 815,
    para. 31.)
   110. The Court observes that, whereas in the Oil Platforms case the
question before the Court was how to interpret provisions of the same
treaty in the light of the general clause of Article I of the same treaty, in
the present case the question is whether the Treaty of 1977 can bear on
obligations of a different treaty, namely those contained in the 1986 Con-
vention. This issue did not arise in either of the two earlier cases men-
tioned. In accordance with the findings of the Court in the Military and
Paramilitary Activities in and against Nicaragua and Oil Platforms cases,
the principles agreed by Djibouti and France in Articles 1 and 2 of the
Treaty of 1977 can throw light on the interpretation to be made of the
other provisions in that same Treaty. Whether these principles may also
inform the way in which obligations extraneous to the Treaty of 1977,
namely, those of the 1986 Convention, are to be understood and applied,
has yet to be determined.

   111. In the light of the case law of the Court mentioned above, a posi-
tive answer to this question could perhaps be given if the 1986 Conven-
tion referred to and specified co-operation in an area previously chosen
by the 1977 Treaty. However, this is not the case ; the fields of co-opera-
tion envisaged in the Treaty do not include co-operation in the judicial
field.

                                                                           45

              QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                     219

   112. In the view of the Court, Article 31, paragraph 3, of the Vienna
Convention on the Law of Treaties of 23 May 1969 is pertinent as
regards this matter. It states that, in interpreting a treaty, “[t]here shall be
taken into account, together with the context : . . . (c) any relevant rules
of international law applicable in the relations between the parties”. This
provision is to be regarded as a codification of customary international
law (see Kasikili/Sedudu Island (Botswana/Namibia), Judgment, I.C.J.
Reports 1999 (II), p. 1075, para. 18) and is therefore applicable to the
treaty relations between Djibouti and France under consideration in the
present case despite the fact that neither Djibouti nor France is a party to
the Vienna Convention.
   113. The provisions of the 1977 Treaty of Friendship and Co-opera-
tion are “relevant rules” within the meaning of Article 31, para-
graph (3) (c), of the Vienna Convention. That is so even though they are
formulated in a broad and general manner, having an aspirational char-
acter. According to the most fundamental of these rules, equality and
mutual respect are to govern relations between the two countries ; co-op-
eration and friendship are to be preserved and strengthened. While this
does not provide specific operational guidance as to the practical applica-
tion of the Convention of 1986, that Convention must nevertheless be
interpreted and applied in a manner which takes into account the friend-
ship and co-operation which France and Djibouti posited as the basis of
their mutual relations in the Treaty of 1977.

   114. The Court thus accepts that the Treaty of Friendship and Co-op-
eration of 1977 does have a certain bearing on the interpretation and
application of the Convention on Mutual Assistance in Criminal Matters
of 1986. But this is as far as the relationship between the two instruments
can be explained in legal terms. An interpretation of the 1986 Convention
duly taking into account the spirit of friendship and co-operation stipu-
lated in the 1977 Treaty cannot possibly stand in the way of a party to
that Convention relying on a clause contained in it which allows for non-
performance of a conventional obligation under certain circumstances.
The Court can thus not accede to the far-reaching conclusions on the
impact of the Treaty of 1977 upon the Convention of 1986 put forward
by the Applicant.

                                    * * *

            IV. THE ALLEGED VIOLATION OF THE CONVENTION
    ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS BETWEEN FRANCE
                   AND DJIBOUTI OF 27 SEPTEMBER 1986

  115. The Application filed by Djibouti on 9 January 2006 also relates
to the alleged violation of the Convention on Mutual Assistance in
Criminal Matters between France and Djibouti, which was signed on

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             QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                   220

27 September 1986 and entered into force on 1 August 1992 (UNTS,
Vol. 1695, p. 298). The violation of that Convention is said to lie in
France’s refusal to execute the letter rogatory issued on 3 November 2004
by the Djiboutian judicial authorities.

   Djibouti claimed in the first place that Article 1 of the Convention
places France under an obligation to execute the international letter
rogatory. It added in the second place that France undertook to carry
this out in January 2005 and that it failed to perform this undertaking.
Lastly, Djibouti contended, as a subsidiary argument, that France
breached the obligation in question when it gave Djibouti notice of its
refusal to execute the letter rogatory.
   The Court will examine in turn these three points.

                                   *       *
     (1) The obligation to execute the international letter rogatory
   116. According to Djibouti, the obligation to execute the international
letter rogatory is laid down in Article 1 of the 1986 Convention, which
provides that :
      “The two States undertake to afford each other, in accordance
    with the provisions of this Convention, the widest measure of mutual
    assistance in proceedings in respect of offences the punishment of
    which, at the time of the request for assistance, falls within the juris-
    diction of the judicial authorities of the requesting State.”
   The Applicant contends that this creates reciprocity in commitments
and an obligation to execute the international letter rogatory.
   117. Djibouti considers that this Article imposes on the two Parties an
obligation of reciprocity in implementing the Convention. It adds that
the French judicial authorities have benefited from its assistance and co-
operation on a number of occasions since 1996 and that it was entitled to
expect reciprocity from France when it submitted its own international
letter rogatory on 3 November 2004.
   118. France does not dispute that Djibouti fully executed the interna-
tional letters rogatory issued by French judicial authorities, but it main-
tains that requests for mutual assistance must be assessed case by case, as
the 1986 Convention provides. In the view of France, its dispute with Dji-
bouti is over the execution of a specific letter rogatory and no issue of
reciprocity can arise in regard to it.

                                       *
  119. The Court now turns to arguments relating to reciprocity in the
implementation of the Convention of 1986 that have been raised by Dji-
bouti.

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              QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                 221

   In the relations between Djibouti and France, Article 1 of the Conven-
tion of 1986 refers to mutuality in the performance of the obligations laid
down therein.
   Thus, it is the provisions of the Convention which must be looked to in
determining case by case whether or not a State has breached its mutual
assistance obligations. The Court notes that in the present case, the con-
cept of reciprocity has been invoked in support of the contention that the
execution by one State of a request for mutual assistance requires as a
consequence the other State to do the same. However, the Court consid-
ers that, so far as the 1986 Convention is concerned, each request for
legal assistance is to be assessed on its own terms by each Party. More-
over, the way in which the concept of reciprocity is advanced by Djibouti
would render without effect the exceptions listed in Article 2. The Court
observes that the Convention nowhere provides that the granting of
assistance by one State in respect of one matter imposes on the other
State the obligation to do likewise when assistance is requested of it in
turn.
   The Court accordingly considers that Djibouti cannot rely on the prin-
ciple of reciprocity in seeking execution of the international letter roga-
tory it submitted to the French judicial authorities.

                                   *   *
   120. The Court will now turn to examining the obligation to execute
the international letter rogatory set out in Article 1 of the 1986 Conven-
tion and, according to Djibouti, elaborated in Article 3, paragraph 1, of
the Convention, in the following terms :
       “The requested State shall execute in accordance with its law any
    letters rogatory relating to a criminal matter and addressed to it by
    the judicial authorities of the requesting State for the purpose of
    procuring evidence or transmitting articles to be produced in evi-
    dence, records or documents.”
   121. Djibouti argues that the wording of this Article confirms that the
requested State is required to execute the international letter rogatory,
since it contains an “obligation of result”. The Applicant adds that, while
the provision does state that execution must take place “in accordance
with [the] law” of the requested State, this must be interpreted as simply
an indication of the procedure to be followed in performing this “obliga-
tion of result”, not a means for shirking it. In this regard, Djibouti con-
tends that France may not invoke its internal law to escape its obligation
to execute the international letter rogatory and, in support of this conten-
tion, relies on Article 27 of the Vienna Convention on the Law of Trea-
ties as the codification of customary law on the subject, which provides :
“A party may not invoke the provisions of its internal law as justification
for its failure to perform a treaty.”

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              QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                    222

   122. France asserts that, under the natural and ordinary meaning of
the terms in Article 3 of the Convention, the desired outcome, that is, the
transmission of the Borrel file, is linked with the means to that end, con-
sisting of respecting the internal procedure of the requested State. Accord-
ingly, the means determines the outcome, which is never achieved until
the procedure has been completed. France adds that Article 3 must be
read in its context, by reference to Article 1, which provides for the “wid-
est measure” of mutual assistance, and to Article 2, under which assist-
ance “may be refused”. Further, account must be taken of the object and
purpose of the treaty, which is mutual assistance in criminal matters “in
respect of offences the punishment of which, at the time of the request for
assistance, falls within the jurisdiction of the judicial authorities of the
requesting State”. Finally, France claims that it has not tried to escape
responsibility by hiding behind its internal law, since, on the contrary, it
is seeking to apply the terms of the Convention, which itself refers to that
law.

                                      *
   123. The Court observes that the obligation to execute international
letters rogatory laid down in Article 3 of the 1986 Convention is to be
realized in accordance with the procedural law of the requested State.
Thus, the ultimate treatment of a request for mutual assistance in crimi-
nal matters clearly depends on the decision by the competent national
authorities, following the procedure established in the law of the requested
State. While it must of course ensure that the procedure is put in motion,
the State does not thereby guarantee the outcome, in the sense of the
transmission of the file requested in the letter rogatory. Interpreted in
context, as called for by the rule of customary law reflected in Article 31,
paragraph 1, of the 1969 Vienna Convention on the Law of Treaties,
Article 3 of the 1986 Convention must be read in conjunction with Arti-
cles 1 and 2 of the Convention. While Article 1 does provide that there
must be “the widest measure” of mutual assistance, there are cases in
which it will not be possible. Article 2, for its part, describes situations in
which “[a]ssistance may be refused”. It follows that those who are empow-
ered to address these matters will do so by applying the provisions of
Article 2 or of other Articles in the Convention that may lead to the
rejection of the requesting State’s démarche.

   124. Having thus clarified the purport of Article 3 of the 1986 Conven-
tion, the Court sees no reason why the rule of customary law reflected in
Article 27 of the Vienna Convention on the Law of Treaties would be
applicable in this instance. In fact, here the requested State is invoking its
internal law not to justify an alleged failure to perform the international

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             QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                 223

obligations contained in the 1986 Convention, but, on the contrary, to
apply them according to the terms of that Convention.

                                   *   *
  (2) The alleged undertaking by France to execute the international
                letter rogatory requested by Djibouti
  125. The Court will now turn to the undertaking that France is claimed
to have given to execute the international letter rogatory transmitted by
Djibouti.
  It will first recall that, by letter of 17 June 2004, the procureur de la
République of Djibouti asked the procureur de la République at the Paris
Tribunal de grande instance to transmit the Borrel file to him (see para-
graph 24 above). The French Ministry of Justice responded to the request
as follows, by letter dated 1 October 2004 :

    “the investigating judge responsible for the case, who alone is com-
    petent to hand over copies of the documents (which in material
    terms amount to 35 volumes), takes the view that this letter is not in
    the form required by the Convention on Mutual Assistance in Crimi-
    nal Matters between France and Djibouti of 27 September 1986 and
    refuses to execute this request”.
  These were the circumstances under which the investigating judge at
the Djibouti Tribunal de première instance, Ms Leila Mohamed Ali,
opened a judicial investigation on 3 November 2004 into the murder of
Bernard Borrel and addressed an international letter rogatory to the
French judicial authorities, seeking the transmission of the Borrel file.

   Having been requested by Djibouti’s Ambassador in Paris to expedite
the process, the Principal Private Secretary to the French Minister of Jus-
tice responded as follows in a letter dated 27 January 2005 :
       “I have asked for all steps to be taken to ensure that a copy of the
    record of the investigation into the death of Mr. Bernard Borrel is
    transmitted to the Minister of Justice and Penal and Muslim Affairs
    of the Republic of Djibouti before the end of February 2005 (such
    time being required because of the volume of material to be copied).

      I have also asked the procureur in Paris to ensure that there is no
    undue delay in dealing with this matter.”
  126. Basing itself on this letter, Djibouti has argued that this response
amounted to an undertaking by the Principal Private Secretary (which
was binding on the French Ministry of Justice and the French State as a
whole) and that the undertaking gave rise to a legitimate expectation on
Djibouti’s part that the file would be transmitted. It has added that a

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              QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                 224

statement on 29 January 2005 by the spokesman of the French Ministry
of Foreign Affairs (see paragraph 27 above) confirmed the letter of
27 January from the Principal Private Secretary to the Minister of Jus-
tice.
   Djibouti considers the letter to be the official response by the Ministry
of Justice of the requested State to the requesting State’s letter rogatory,
in accordance with Article 14, paragraph 1, of the 1986 Convention,
which provides that : “[l]etters rogatory referred to in Article 3 shall be
addressed by the Ministry of Justice of the requesting State”. Djibouti
alleges that the French Ministry of Justice also gave instructions to the
procureur de la République, to whom French law (Art. 694-2 of the
French Code of Criminal Procedure) assigns the responsibility for execut-
ing international letters rogatory. The French State is thus said to have
given an undertaking to perform the obligation established by the
1986 Convention and to have failed to honour it.
   127. France denies that any promise or undertaking was given by the
French Ministry of Justice, which could not act in contravention of Arti-
cle 3 of the 1986 Convention, requiring execution of the letter rogatory to
be “in accordance with [the] law” of the requested State, and this, in its
view, calls for a decision by the investigating judge before execution.

                                     *
   128. The Court first notes that the terms of the letter of 27 Janu-
ary 2005, when given their ordinary meaning, entail no formal undertak-
ing by the Principal Private Secretary to the Minister of Justice to trans-
mit the Borrel file ; the letter rather informed the Ambassador of Djibouti
to France of the steps that had been undertaken to set in motion the legal
process to make possible the transmission of the file. It is true that, in
stating that all steps would be taken to ensure that such transmission
would be effected before the end of the following month (February 2005),
the Principal Private Secretary might have led his interlocutors to believe
that it was simply a question of formalities and that the process would
automatically result in transmission of the file.
   129. It must however be kept in mind that the Principal Private Sec-
retary was responding to the Ambassador’s urgent request to expedite
transmission of the file. In any event, he could not have given a definitive
commitment, because French law (Art. 694-2 of the French Code of
Criminal Procedure) grants the authority to execute letters rogatory
exclusively to investigating judges, by way of exception to execution by a
procureur de la République, where the letters concern measures taken in
the investigation itself (which the Principal Private Secretary to the Min-
ister of Justice pointed out in his above-mentioned letter of 1 Octo-
ber 2004 (see paragraph 125) to his counterpart at the Ministry of For-
eign Affairs, and as had become known to Djibouti). The exclusive
competence of the investigating judge in this regard was affirmed in the

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              QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                   225

19 October 2006 judgment of the Chambre de l’instruction of the Paris
Court of Appeal, which notes that the decision to make available a copy
of the file “is at the discretion of the investigating judge” (see para-
graph 37 above).
  130. Accordingly, the Court considers that, by virtue of its content
and the factual and legal circumstances surrounding it, the letter of
27 January 2005 does not, by itself, entail a legal undertaking by France
to execute the international letter rogatory transmitted to it by Djibouti
on 3 November 2004.

                                    *   *
    (3) France’s refusal to execute the international letter rogatory

   131. At first, Djibouti noted in its Memorial that France cannot rely
on the provisions of Article 2 (c) of the Convention of 1986. In the first
place, according to it, it would seem highly debatable whether an inves-
tigating judge alone is in a position to assess whether the fundamental
interests of a State could be damaged by execution of an international
letter rogatory. Djibouti considers that this type of assessment, concern-
ing a possible risk to the sovereignty, security, ordre public or other
essential interests of a State, must by its nature lie with the highest organs
of that State. Having later taken note in the hearings of the judgment of
the Chambre de l’instruction of the Paris Court of Appeal of 19 October
2006 (see paragraph 37 above), Djibouti nonetheless maintains that
French law could not be interpreted as giving the said investigating judge
sole authority to determine the essential interests of the State. According
to Djibouti, the independence of the judicial system must not lead a State
to ignore entirely the rules of co-operation in good faith and equality
between States which that State must observe under general international
law.

   132. Concerning the reasons of the refusal mentioned in the soit-trans-
mis, Djibouti maintains that no détournement of French law could result
from the declassified documents being transmitted to a foreign authority
(and not merely to the French judge), when the parties to the judicial
investigation opened in France have access to the file and the declassified
documents in question would not appear likely to compromise the essen-
tial interests of France. Moreover, Djibouti disputes that its request can
be countered by the assertion that it is impossible to hand over even a
part of the file. It contends in this respect that the few pages which have
been declassified and included in the record cannot have “permeated the
entire file”.
   133. Djibouti recalls that its Ambassador to France never received the
letter of 31 May 2005 which was supposedly sent to him by the Director
of Criminal Affairs and Pardons at the French Ministry of Justice,

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              QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                    226

informing Djibouti of the investigating judge’s refusal of the request for
mutual assistance. Djibouti also emphasizes that France, in the letter
from its Ambassador in Djibouti to the Djiboutian Minister for Foreign
Affairs of 6 June 2005, omitted to provide any reason whatsoever for its
“unilateral” refusal of mutual assistance, in violation of Article 17 of the
Convention of 1986. Djibouti thus recalls that it only learned the reasons
for the refusal, as reflected by the soit-transmis of Judge Clément of
8 February 2005, through the filing of France’s Counter-Memorial on
13 July 2007, which should not be retroactively considered as an integral
part of the refusal under the Convention.
   134. The Court observes that, while the Parties concur that Article 2
and Article 17 must be read in conjunction, they do not draw the same
inferences from this. According to Djibouti, the obligation to give rea-
sons is a condition of the validity of the refusal. Djibouti points out in
this respect that the mere mention of Article 2 (c) is at best to be con-
sidered as a very general sort of “notification”, which is in its opinion
certainly not the same as providing “reasons”. The same would apply a
fortiori in the absence of any explicit reference to one of the reasons listed
in Article 2 (c).
   135. Djibouti acknowledges that under Article 2 (c) the requested
State enjoys wide discretion in deciding to refuse mutual assistance, since
it is the requested State which “considers that execution of the request is
likely to prejudice its sovereignty, its security, its ordre public or other of
its essential interests”. But, Djibouti contends, even in reliance on what it
describes as a “self-judging clause”, the requested State must act reason-
ably and in good faith. It adds that, in any case, the obligation to give
reasons requires the requested State to go beyond a bald reference to
Article 2 (c) and to state the reasons justifying its decision in the specific
case, failing which the decision is not valid.

  136. As regards the competence of the investigating judge alone to
assess the fundamental interests of France, France points out that it is
not for another State to determine how France should organize its own
procedures, nor to interpret French law in a manner contrary to the judg-
ment handed down by the Paris Court of Appeal on 19 October 2006 or
to the soit-transmis handed down by Judge Clément, which confirm
France’s position in this respect.
  France points out that penal matters, more than others, affect the
national sovereignty of States and their security, ordre public and other
essential interests, as mentioned in Article 2 (c) of the Convention of
1986.
  137. As regards the reasons advanced in the soit-transmis which alleg-
edly justify its refusal to transmit the file to Djibouti, France explains
that, under the terms of the Law of 8 July 1998 establishing a National
Defence Secrets Consultative Committee, the French judiciary alone may
have possession of the declassified documents which it is entitled to
request, and that the communication to a foreign authority of notes pre-

                                                                            53

              QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                   227

pared by the French intelligence services, even after declassification, is
likely to prejudice the essential interests of France. France claims that the
protection of defence secrets falls under the grounds set out in Arti-
cle 2 (c) of the Convention of 1986. To justify the non-transmission of
even a part of the file, France contends that the declassified notes were
used by the investigating judge in such a way that the information they
contain runs through the whole of the file, and that therefore, it was not
possible to transmit a file from which they had simply been removed.
France adds on this subject that what is at issue here is not, as Djibouti
claims, two pages of declassified documents, but some 25 notes transmit-
ted to the judge.
   138. France asserts that not only did it inform Djibouti on
31 May 2005, in a letter from the Director of Criminal Affairs and Par-
dons at the Ministry of Justice to the Ambassador of Djibouti to France,
of the investigating judge’s refusal of the request for mutual assistance
concerned, but that it also gave explicit reasons for its refusal by referring
to Article 2 (c) of the Convention of 1986.

   139. Since in its view Article 17 imposes no obligation to notify,
France further contends that explicit citation of Article 2 (c) in the
refusal suffices as the statement of reasons required by Article 17. It con-
siders that the obligation to give reasons for a refusal of mutual assist-
ance is not a condition for the lawfulness of the refusal under Arti-
cle 2 (c), but a separate condition arising under Article 17 of the
Convention. France adds that the two provisions are removed from each
other in the text of the 1986 Convention and that the validity of the deci-
sion under Article 2 (c) to refuse to give assistance is unaffected by the
lack of a statement of reasons under Article 17. Nor does France accept
that it would need to have done more than make a mere reference to
Article 2 (c) as a statement of reasons for its decision of refusal.

                                      *
   140. The Court must review the circumstances under which the French
judicial authorities took the decision to refuse to execute the interna-
tional letter rogatory and the way in which the decision was notified to
Djibouti. The international letter rogatory of 3 November 2004 was first
forwarded, by letter dated 18 January 2005, from the Director of Crimi-
nal Affairs and Pardons at the Ministry of Justice to the Public Prosecu-
tor at the Paris Court of Appeal. The Public Prosecutor was instructed to
execute it “in collaboration with the investigating judge responsible for
the case”. The Director took care to point out that the file contained
“documents likely to prejudice [the] sovereignty, [the] security, [the] ordre
public or other essential interests of the nation” and he cited Article 2 (c)
of the Convention of 27 September 1986, allowing a requested State to
refuse to provide mutual assistance.

                                                                           54

              QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                 228

   The procureur de la République subsequently referred the matter to
Judge Clément, who informed him of her decision by letter dated 8 Feb-
ruary 2005, to which was attached a copy of a document entitled “soit-
transmis” and which was communicated on the same day to the senior
investigating judge. In a judgment dated 19 October 2006, the Chambre
de l’instruction of the Paris Court of Appeal considered that document to
be a decision, lying within the discretion of the investigating judge alone,
in response to Djibouti’s request for mutual assistance. The decision was
not immediately communicated to the Djiboutian authorities ; it was not
until 31 May 2005 that, according to France, the Director of Criminal
Affairs and Pardons informed Djibouti’s Ambassador in Paris by letter
that :
       “After giving the matter careful attention, the investigating judge,
    by a judicial decision not open to appeal, considered that Arti-
    cle 2 (c) of the Convention on Mutual Assistance in Criminal Mat-
    ters between France and Djibouti of 27 September 1986 had to be
    applied and that this did not allow a favourable response to be given
    to the request from your judicial authorities.”
   141. Djibouti denies that its Ambassador in Paris ever received this
letter and claims to have had no knowledge of the content of the letter
until the Respondent submitted it to the Court (see paragraph 133
above) : it should, according to Djibouti, therefore be disregarded and
deemed non-existent.
   142. Responding to the question on this point put to it during the oral
proceedings by President Higgins regarding whether France keeps any
records of letters which are sent by it to officials of other States, France
replied that it was not the practice of the French Ministry of Foreign
Affairs to send registered letters with acknowledgment of receipt to its
“foreign counterparts” and that it was therefore unable to provide proof
substantiating the despatch of the letter of 31 May 2005 to the Ambas-
sador of Djibouti to France. Thus, France claimed to be unable to prove
receipt by the Ambassador. France recognizes that the only evidence it
has submitted regarding the transmission of the letter of 31 May 2005 is
a despatch Note dated 16 June 2005, wherein reference to the letter of
31 May 2005 is made, sent by the Ministry of Foreign Affairs to the
Ambassador of France to Djibouti. However, France does claim that this
despatch Note confirms, in any event, the existence of the said letter.

                                     *
   143. The Court observes that France does not allege that the letter of
31 May 2005 was delivered to Djibouti’s Ambassador in Paris or to a
member of his staff through the usual diplomatic channels. It does not
adduce evidence that the letter was sent by post or conveyed by courier.
It does not even offer evidence that the despatch of the letter was
recorded in a mail registry at the Ministry of Justice or the Ministry of

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              QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                   229

Foreign Affairs, in accordance with French administrative practice. Hav-
ing regard to the nature of the letter and the circumstances described
above, the Court cannot take this document into consideration in its
examination of the present case.

   144. The Court further observes that shortly before that, on
18 May 2005, Djibouti’s Minister for Foreign Affairs had written to
France’s Ambassador to Djibouti to point out that France had not as yet
honoured “its commitments” to transmit the file requested in the letter
rogatory. In reply, France’s Ambassador sent the Minister a letter of
refusal on 6 June 2005, worded as follows : “I regret to inform you that
we are not in a position to comply with this request”. The Court notes
that Djibouti never responded to this letter to inquire into the grounds
for the refusal.

                                      *
   145. The Court begins its examination of Article 2 of the 1986 Con-
vention by observing that, while it is correct, as France claims, that the
terms of Article 2 provide a State to which a request for assistance has
been made with a very considerable discretion, this exercise of discretion
is still subject to the obligation of good faith codified in Article 26 of the
1969 Vienna Convention on the Law of Treaties (see Certain German
Interests in Polish Upper Silesia, Merits, Judgment No. 7, 1926, P.C.I.J.,
Series A, p. 30, and Free Zones of Upper Savoy and the District of Gex,
Judgment, 1932, P.C.I.J., Series A/B, No. 46, p. 167 ; for the competence
of the Court in the face of provisions giving wide discretion, see Military
and Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States of America), Merits, Judgment, I.C.J. Reports 1986,
p. 116, para. 222, and Oil Platforms (Islamic Republic of Iran v. United
States of America), Judgment, I.C.J. Reports 2003, p. 183, para. 43).
This requires it to be shown that the reasons for refusal to execute the
letter rogatory fell within those allowed for in Article 2. Further, the
Convention requires (in Art. 3) that the decision not to execute the letter
must have been taken by those with the authority so to decide under the
law of the requested State. The Court will examine all of these elements.
   146. The Court is unable to accept the contention of Djibouti that,
under French law, matters relating to security and ordre public could not
fall for determination by the judiciary alone. The Court is aware that the
Ministry of Justice had at a certain time been very active in dealing with
such issues. However, where ultimate authority lay in respect of the
response to a letter rogatory was settled by the Chambre de l’instruction
of the Paris Court of Appeal in its judgment of 19 October 2006. It held
that the application in one way or another of Article 2 of the 1986 Con-
vention to a request made by a State is a matter solely for the investigat-
ing judge (who will have available information from relevant government
departments). The Court of Appeal further determined that such a deci-

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              QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                 230

sion by an investigating judge is a decision in law, and not an advice to
the executive. It is not for this Court to do other than accept the findings
of the Paris Court of Appeal on this point.

   147. As to whether the decision of the competent authority was made
in good faith, and falls within the scope of Article 2 of the 1986 Conven-
tion, the Court recalls that Judge Clément’s soit-transmis of 8 Febru-
ary 2005 states the grounds for her decision to refuse the request for
mutual assistance, explaining why transmission of the file was considered
to be “contrary to the essential interests of France”, in that the file con-
tained declassified “defence secret” documents, together with information
and witness statements in respect of another case in progress. The rea-
soning is expressed in part as follows :

       “On several occasions in the course of our investigation, we have
    requested the Ministry of the Interior and the Ministry of Defence to
    communicate documents classified under ‘defence secrecy’.
       The Commission consultative du secret de la défense nationale
    delivered a favourable opinion on the declassification of certain
    documents.
       The above-mentioned ministries, following that opinion, transmit-
    ted those documents to us.
       To accede to the Djiboutian judge’s request would amount to an
    abuse of French law by permitting the handing over of documents
    that are accessible only to the French judge.
       Handing over our record would entail indirectly delivering French
    intelligence service documents to a foreign political authority.

       Without contributing in any way to the discovery of the truth,
    such transmission would seriously compromise the fundamental
    interests of the country and the security of its agents.”
   148. It is not evident from this soit-transmis why Judge Clément found
that it was not possible to transmit part of the file, even with some docu-
ments removed or blackened out, as suggested by Djibouti during the
oral proceedings. It was only through the written and oral pleadings of
France that the Court has been informed that the intelligence service
documents and information permeated the entire file. However, the Court
finds that those reasons that were given by Judge Clément do fall within
the scope of Article 2 (c) of the 1986 Convention.

  149. The Court now turns to Djibouti’s claim that France has violated
Article 17 of the 1986 Convention. Article 17 provides that “[r]easons
shall be given for any refusal of mutual assistance”.
  150. The Court cannot accept that, as France contends, there was no
violation of Article 17, as Djibouti in any event knew that Article 2 (c)

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              QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                  231

was being invoked. To this end, France cites paragraph 146 of
Djibouti’s Memorial, which alludes to a letter of 11 February 2005 as
follows :

        “As a letter dated 11 February 2005 from the Paris investigating
     judge, Ms Sophie Clément, would appear to indicate, the refusal to
     execute the letter rogatory presented by Djibouti was based on the
     fact that the French judiciary viewed the transmission of the Borrel
     file to the Djiboutian judicial authorities as ‘contrary to France’s
     fundamental interests’.”
   In response to a question from Judge ad hoc Guillaume, counsel for
Djibouti responded that they did not possess the letter referred to in the
Memorial, having made an assumption based on information circulated
by the French media that a letter to that effect had been sent around that
time by Judge Clément, which raised an issue of fundamental interest.
The Court cannot draw the conclusion that France seeks that Djibouti
knew Article 2 (c) had been invoked. If the information eventually came
to Djibouti through the press, the information disseminated in this way
could not be taken into account for the purposes of the application of
Article 17.
   151. Equally, the Court is unable to accept the contention of France
that the fact that the reasons have come within the knowledge of Djibouti
during these proceedings means that there has been no violation of Arti-
cle 17. A legal obligation to notify reasons for refusing to execute a letter
rogatory is not fulfilled through the requesting State learning of the rele-
vant documents only in the course of litigation, some long months later.

   152. As no reasons were given in the letter of 6 June 2005 (see para-
graph 144 above), the Court concludes that France failed to comply with
its obligation under Article 17 of the 1986 Convention.
   The Court observes that even if it had been persuaded of the transmis-
sion of the letter of 31 May 2005, the bare reference it was said to contain
to Article 2 (c) would not have sufficed to meet the obligation of France
under Article 17. Some brief further explanation was called for. This is
not only a matter of courtesy. It also allows the requested State to sub-
stantiate its good faith in refusing the request. It may also enable the
requesting State to see if its letter rogatory could be modified so as to
avoid the obstacles to implementation enumerated in Article 2.

  153. Having found that France’s reliance on Article 2 (c) was for rea-
sons that fell under that provision, but that it has not complied with its
obligation under Article 17, the Court now considers whether, as Dji-
bouti has contended, a violation of Article 17 precludes a reliance on
Article 2 (c) that might otherwise be available. The Court recalls that
France maintained that Articles 2 and 17 impose distinct and unrelated
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             QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                 232

obligations, and claimed in particular that they are removed from each
other in the text of the Convention (see paragraph 139 above).

  This question is to be answered by an interpretation of the 1986 Con-
vention according to the rules of customary law reflected in Articles 31
and 32 of the 1969 Vienna Convention on the Law of Treaties.

   154. That Articles 2 and 17 are in a sense linked is undeniable. Arti-
cle 2 refers to possible exceptions to the granting of mutual assistance
and Article 17 to the duty to give reasons for the invocation of such
exceptions in refusing mutual assistance. The legal relationship between
these cannot be answered by interpretation of either of these provisions
“in accordance with [its] ordinary meaning”, as no provision exists in the
Convention on the relationship between these Articles. Having regard to
the requirement that the terms of a treaty are to be interpreted “in their
context and in the light of its object and purpose”, the Court makes the
following observations.
   155. The object of the 1986 Convention on Mutual Assistance in
Criminal Matters is to provide for mutual assistance to the fullest extent
possible (Art. 1), with refusals being limited to a category of permitted
exceptions.
   156. The Court observes that Articles 2 and 17 are located in different
sections of the 1986 Convention. It notes in this regard that the Conven-
tion contains other provisions which, like Article 2, in certain cases
authorize a refusal to provide mutual assistance which requires reasons
to be given in accordance with Article 17. For example, Article 10, para-
graph 2, indicates certain situations where the “transfer [of a] person in
custody”, in the sense of paragraph 1 of that Article, could be refused.
Furthermore, the Court notes that it is common, in comparable conven-
tions, for similar provisions to be so deployed (see, for example, Euro-
pean Convention on Mutual Assistance in Criminal Matters of 20 April
1959 (UNTS, Vol. 472, Arts. 2 and 19) ; Convention Concerning Recip-
rocal Legal Assistance in Criminal Matters between France and Spain of
9 April 1969 (ibid., Vol. 746, Arts. 4, 7 and 14) ; and Convention on Judi-
cial Assistance in Criminal Matters between Mexico and France of
27 January 1994 (ibid., Vol. 1891, Arts. 4 and 20)). The Court therefore
considers that no legal inference is to be drawn from the arrangement of
the text of the Convention.
   On the other hand, the Court observes that there is a certain relation-
ship between Articles 2 and 17 in the sense that the reasons that may jus-
tify refusals of mutual assistance which are to be given under Article 17
include the grounds specified in Article 2. At the same time, Articles 2
and 17 provide for distinct obligations, and the terms of the Convention
do not suggest that recourse to Article 2 is dependent upon compliance
with Article 17. Further, had it been so intended by the Parties, this
would have been expressly stipulated in the Convention.

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              QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                  233

  The Court thus finds that, in spite of the non-respect by France of
Article 17, the latter was entitled to rely upon Article 2 (c) and that, con-
sequently, Article 1 of the Convention has not been breached.

                                   * * *

V. THE ALLEGED VIOLATIONS OF THE OBLIGATION TO PREVENT ATTACKS
   ON THE PERSON, FREEDOM OR DIGNITY OF AN INTERNATIONALLY
                      PROTECTED PERSON

   157. Djibouti considers that France, by sending witness summonses to
the Head of State of Djibouti and to senior Djiboutian officials, has vio-
lated “the obligation deriving from established principles of customary
and general international law to prevent attacks on the person, freedom
or dignity of an internationally protected person”. For Djibouti, this is
on the one hand an obligation of a negative kind, to refrain from com-
mitting acts that are likely to prejudice the protection of these persons,
and on the other hand an affirmative obligation to take all appropriate
measures to prevent attacks on their freedom, honour and dignity. Dji-
bouti invokes the Convention on the Prevention and Punishment of
Crimes against Internationally Protected Persons, including Diplomatic
Agents, signed in New York on 14 December 1973, in support of these
claimed violations.

  158. France has argued that the Convention of 1973 has no relevance
in this case, inasmuch as it concerns solely the prevention of crimes
defined in Article 2 thereof, namely :
    “The intentional commission of :
    (a) a murder, kidnapping or other attack upon the person or lib-
        erty of an internationally protected person ;

    (b) a violent attack upon the official premises, the private accom-
        modation or the means of transport of an internationally pro-
        tected person likely to endanger his person or liberty.”

  For France, the crimes referred to in this convention have nothing to
do with the facts at issue in this case, namely the alleged attacks on the
immunities from jurisdiction enjoyed by leading Djiboutian figures and
on their honour and dignity.

                                     *
  159. The Court notes that the purpose of the 1973 Convention is to
prevent serious crimes against internationally protected persons and to

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             QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                 234

ensure the criminal prosecution of presumed perpetrators of such crimes.
It is consequently not applicable to the specific question of immunity
from jurisdiction in respect of a witness summons addressed to certain
persons in connection with a criminal investigation, and the Court can-
not take account of it in this case.
   160. The Court will first examine the alleged attacks on the immunity
from jurisdiction or the inviolability of the Djiboutian Head of State,
before turning to those against the other Djiboutian nationals.

                                   *   *

     (1) The alleged attacks on the immunity from jurisdiction or
          the inviolability of the Djiboutian Head of State

  161. Djibouti calls into question two witness summonses in the Borrel
case, issued by the French investigating judge, Judge Clément, to the
President of the Republic of Djibouti on 17 May 2005 and 14 Febru-
ary 2007, which the Court will examine in turn.

(a) The witness summons addressed to the Djiboutian Head of State on
    17 May 2005

   162. During an official visit by the Djiboutian Head of State to the
President of the French Republic in Paris, the investigating judge respon-
sible for the Borrel case sent a witness summons to the President of Dji-
bouti on 17 May 2005, simply by facsimile to the Djiboutian Embassy in
France, inviting him to attend in person at the judge’s office at 9.30 a.m.
the following day, 18 May 2005.
   163. For Djibouti, this summons was not only inappropriate as to its
form, but was an element of constraint, since according to Article 101 of
the French Code of Criminal Procedure : “Where he is summoned or sent
for, the witness is informed that if he does not appear or refuses to
appear, he can be compelled to by the law enforcement agencies in
accordance with the provisions of Article 109.” Djibouti does indeed note
that this warning was not referred to either in this summons of 17 May
2005 or in that previously addressed to Djibouti’s Ambassador to France
on 21 December 2004, but observes that it is included in another sum-
mons, that was sent to Ms Geneviève Foix, a person also asked to testify
in connection with the Borrel case. This summons was addressed to her
at the Hôpital Bouffard in Djibouti on 15 October 2007 in the proceed-
ings and contained the following passage :
       “If you fail to attend or refuse to attend, you may be compelled to
    do so by the law enforcement agencies, in accordance with the pro-
    visions of Article 109 of the Code of Criminal Procedure.
       The witness is further informed that, under Article 434-15-1 of the

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              QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                  235

    Penal Code, failure to attend without excuse or justification is pun-
    ishable by a fine of J3,750.”

   For Djibouti, however, even though such a warning was not included
in the summons addressed to the Head of State, Article 109 of the French
Code of Criminal Procedure and Article 434-15-1 of the French Penal
Code could still be applied. Consequently, the non-appearance of the
Head of State is likewise punishable under French law and may lead to
the use of public force.
   164. Djibouti further notes that as of 18 May 2005, its Ambassador in
Paris sent a letter to the French Minister for Foreign Affairs protesting at
the summons issued to the Head of State, describing it as “null and void
in content and in form” and asking for the necessary measures to be
taken against the investigating judge. The Ambassador informed the
Minister that the facsimile containing the summons had been sent at
3.51 p.m. on 17 May 2005, and that at 4.12 p.m., Agence France-Presse
was publicly reporting it. Djibouti has pointed out that the Minister did
not reply to the Ambassador nor send a letter of apology to the Head of
State, as had been done previously, by letter of 14 January 2005, when
the Ambassador himself had been the subject of a witness summons. The
French Minister for Foreign Affairs merely sent Djibouti’s Ambassador
the transcript of an interview given by his spokesman to a French radio
station, recalling that “all incumbent Heads of State enjoy immunity
from jurisdiction when travelling internationally”. This was in due course
reiterated by the spokesman of France’s Minister for Foreign Affairs in
his press report of 19 May 2005.

   165. Djibouti has inferred from the absence of an apology and from
the fact that the summons was not declared void that the attack on the
immunity, honour and dignity of the Head of State has continued. It has
added that France is required to take preventive measures to protect the
immunity and dignity of a Head of State who is on its territory on an
official visit, relying on Article 29 of the Vienna Convention on Diplo-
matic Relations. For Djibouti, France has made itself responsible for
“internationally wrongful acts consisting of infringements of the princi-
ples of international comity and of the customary and conventional rules
relating to immunities”.
   166. France, for its part, has recalled that it “fully recognizes, without
restriction, the absolute nature of the immunity from jurisdiction and,
even more so, from enforcement that is enjoyed by foreign Heads of
State”, while arguing that the summoning of a foreign Head of State as a
witness is in no sense an attack on him.
   It points out in this respect that the Djiboutian Head of State was sum-
moned as an ordinary witness, in other words as a person whose state-
ment appears useful to the investigating judge for the discovery of the
truth (Art. 101, first paragraph, of the French Code of Criminal Proce-
dure) ; this is in contrast to a summons as a témoin assisté, i.e., a person

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              QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                  236

against whom there is evidence that he could have participated, “as the
perpetrator or accomplice, in committing the offence of which the inves-
tigating judge is seised” (Art. 113-2, second paragraph, of the French
Code of Criminal Procedure).
   167. Referring to the Judgment of the Court in the case concerning the
Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v.
Belgium) (Judgment, I.C.J. Reports 2002, pp. 29-30, paras. 70-71), France
contends that only limiting the freedom of action he requires in order to
perform his duties might fail to respect the immunity from criminal juris-
diction and the inviolability of a foreign Head of State.
   168. According to France, it is Article 656 of the French Code of
Criminal Procedure that applies to the statement of a Head of State. The
said Article provides that
      “The written statement of the representative of a foreign Power is
    requested through the intermediary of the Minister for Foreign
    Affairs. If the application is granted, the statement is received by the
    president of the appeal court or by a judge delegated by him.”
   The witness summons addressed to Djibouti’s Head of State is, in
France’s view, purely an invitation which imposes no obligation on him.
According to the Respondent, it is neither binding nor enforceable, and
therefore cannot infringe the immunity from criminal jurisdiction or the
inviolability of a Head of State. And while, under the terms of Article 31,
paragraph 2, of the Vienna Convention on Diplomatic Relations of
18 April 1961, “[a] diplomatic agent is not obliged to give evidence as a
witness”, France takes the view that nothing prevents him from being
asked to do so. However, it admits that, in terms of form, the summons
addressed to the Djiboutian Head of State did not comply with the pro-
visions of Article 656 of the French Code of Criminal Procedure.
   169. France, in its pleadings, has endorsed the terms of the resolution
adopted by the Institut de droit international at its meeting in Vancouver
in 2001 on “Immunities from Jurisdiction and Execution of Heads of
State and Government in International Law”, according to which the
authorities of a foreign State must take “all reasonable steps to prevent
any infringement of a [Head of State’s] person, liberty or dignity”. How-
ever, it does not believe that there has been an attack on the freedom or
dignity of the President of Djibouti as a result of inviting him to “tell the
whole truth”, inasmuch as he “is entirely at liberty to maintain his
silence, if he so wishes, without anyone being able to criticize him for it”.

                                     *
  170. The Court has already recalled in the Arrest Warrant of
11 April 2000 (Democratic Republic of the Congo v. Belgium) case “that
in international law it is firmly established that . . . certain holders of
high-ranking office in a State, such as the Head of State . . . enjoy immu-

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             QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                237

nities from jurisdiction in other States, both civil and criminal” (Judg-
ment, I.C.J. Reports 2002, pp. 20-21, para. 51). A Head of State enjoys in
particular “full immunity from criminal jurisdiction and inviolability”
which protects him or her “against any act of authority of another State
which would hinder him or her in the performance of his or her duties”
(ibid., p. 22, para. 54). Thus the determining factor in assessing whether
or not there has been an attack on the immunity of the Head of State lies
in the subjection of the latter to a constraining act of authority.
   171. In the present case, the Court finds that the summons addressed
to the President of the Republic of Djibouti by the French investigating
judge on 17 May 2005 was not associated with the measures of constraint
provided for by Article 109 of the French Code of Criminal Procedure ; it
was in fact merely an invitation to testify which the Head of State could
freely accept or decline. Consequently, there was no attack by France on
the immunities from criminal jurisdiction enjoyed by the Head of State,
since no obligation was placed upon him in connection with the investi-
gation of the Borrel case. The spokesman of the French Ministry of For-
eign Affairs, in his statements of 17 and 18 May 2005, recalled that
France respected these immunities. As regards the summons in question,
it was not further acted upon, having been considered from the outset by
Djibouti, in a letter of 18 May 2005 from its Ambassador in Paris to the
French Minister for Foreign Affairs, as “null and void in content and in
form” and “not even observ[ing] the provisions of French law”.

   172. However, the Court must note that the investigating judge,
Judge Clément, addressed the summons to the Djiboutian President not-
withstanding the formal procedures laid down by Article 656 of the
French Code of Criminal Procedure, which deals with the “written state-
ment of the representative of a foreign Power”. The Court considers that
by inviting a Head of State to give evidence simply through sending him
a facsimile and by setting him an extremely short deadline without con-
sultation to appear at her office, Judge Clément failed to act in accord-
ance with the courtesies due to a foreign Head of State. Moreover,
French law itself takes account of the demands of international courtesy
in laying down specific procedures for the testimony of representatives of
foreign Powers, for example by requiring that all requests for a statement
be transmitted through the intermediary of the Minister for Foreign
Affairs, and that the statement be received by the first president of the
Court of Appeal (Art. 656 of the French Code of Criminal Procedure)
(see paragraph 31 above).
   It is regrettable that these procedures were not complied with by the
investigating judge and that, whilst being aware of that fact, the French
Ministry of Foreign Affairs did not offer apologies to the Djiboutian
President, as it had done previously to Djibouti’s Ambassador when he
found himself in a similar situation (see paragraph 34 above).

  173. The Court has taken note of all the formal defects under French

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             QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                 238

law surrounding the summons addressed to the Djiboutian Head of State
on 17 May 2005 by Judge Clément ; however, it considers that these do
not in themselves constitute a violation by France of its international
obligations regarding the immunity from criminal jurisdiction and the
inviolability of foreign Heads of State. Nevertheless, as the Court has
indicated above, an apology would have been due from France.

   174. The Court recalls that the rule of customary international law
reflected in Article 29 of the Vienna Convention on Diplomatic Rela-
tions, while addressed to diplomatic agents, is necessarily applicable to
Heads of State. This provision reads as follows :
       “The person of a diplomatic agent shall be inviolable. He shall not
    be liable to any form of arrest or detention. The receiving State shall
    treat him with due respect and shall take all appropriate steps to pre-
    vent any attack on his person, freedom or dignity.”

This provision translates into positive obligations for the receiving State
as regards the actions of its own authorities, and into obligations of pre-
vention as regards possible acts by individuals. In particular, it imposes
on receiving States the obligation to protect the honour and dignity of
Heads of State, in connection with their inviolability.
   175. Djibouti has claimed that the communication to Agence France-
Presse, in breach of the confidentiality of the investigation, of informa-
tion concerning the witness summons addressed to its Head of State, is to
be regarded as an attack on his honour or dignity. The Court observes
that if it had been shown by Djibouti that this confidential information
had been passed from the offices of the French judiciary to the media,
such an act could have constituted, in the context of an official visit by
the Head of State of Djibouti to France, not only a violation of French
law, but also a violation by France of its international obligations. How-
ever, the Court must recognize that it does not possess any probative evi-
dence that would establish that the French judicial authorities are the
source behind the dissemination of the confidential information in ques-
tion.

                                   *   *
(b) The witness summons addressed to the Djiboutian Head of State on
    14 February 2007
  176. The Court observes, as regards this second witness summons,
that on this occasion the investigating judge sent a letter to the Minister
of Justice on 14 February 2007 in which she expressed the wish “to
obtain the testimony of Mr. Ismaël Omar Guelleh, President of the
Republic of Djibouti, in connection with the inquiry [into the murder of
Bernard Borrel]”. The judge asked the Minister to make contact with the

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             QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                 239

Minister for Foreign Affairs “with a view to seeking the consent of
Mr. Ismaël Omar Guelleh to giving such a statement”. In his letter of
15 February 2007 to the Minister for Foreign Affairs, the Minister of Jus-
tice noted that the judge’s request had been presented “on the basis of
Article 656 of the Code of Criminal Procedure”. The request concerned
was relayed to its recipient by the transmission service of the Presidency
of the French Republic. On 20 February 2007, the Minister for Foreign
Affairs informed the Minister of Justice that “President Guelleh does not
intend to respond to this request [from the investigating judge seeking to
obtain his testimony]”.
   177. Djibouti considers that “[t]he follow-up to these events on 14 Feb-
ruary 2007 seems to have developed into an approach which would come
close to the Article 656 procedure”, but it contests the propriety of the
time chosen by the investigating judge for taking this action. It thus
recalls that this second witness summons was issued on 14 February 2007,
when the President of Djibouti was in France for the 24th Conference of
Heads of State of Africa and France which was to be held in Cannes on
15 and 16 February 2007. For Djibouti, the investigating judge was seek-
ing the best time to achieve media coverage of her request. As for the
French Ministry of Foreign Affairs, Djibouti takes the view that it could
have waited until President Ismaël Omar Guelleh had returned home
before sending him an invitation to testify in writing. Moreover, Djibouti
asserts that the judiciary informed the press at a very early stage, since
the information was reported the same day, 14 February 2007, by several
news agencies, some of them indicating that they had received it from
“judicial sources”. In any event, Djibouti considers that the President
was placed in a situation “which obviously was an embarrassment . . .
especially so, since the Respondent at the time did not see any need to
apologize” and that France has consequently not sought to make up for
“the damage inflicted on the immunity, the honour and the dignity of the
President of Djibouti”.
   178. France, for its part, considers that as regards the summons of
14 February 2007, the investigating judge applied the procedure laid
down by Article 656 of the French Code of Criminal Procedure and that,
in any case, the refusal of the President of the Republic of Djibouti to
respond to her request drew a line under the episode. In these circum-
stances, such an invitation to testify in writing “cannot be regarded as
failing to respect the immunities enjoyed by a foreign Head of State . . .
or as an attack of any kind on his dignity”.
   Pointing out that it has a free press, even if some of the reporting of
these procedural steps in the media may be regretted, France contends
that this does not engage its responsibility. In its view, the summons of
14 February 2007 was addressed to President Ismaël Omar Guelleh with
all the necessary respect and was not in any way an attack on his honour
or dignity.

                                    *
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             QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                 240

   179. The Court finds that the invitation to testify of 14 February 2007
addressed by Judge Clément to the President of Djibouti was issued fol-
lowing the procedure laid down by Article 656 of the French Code of
Criminal Procedure, and therefore in accordance with French law. The
consent of the Head of State is expressly sought in this request for testi-
mony, which was transmitted through the intermediary of the authorities
and in the form prescribed by law. This measure cannot have infringed
the immunities from jurisdiction enjoyed by the Djiboutian Head of
State.
   180. Moreover, the Court does not consider that there was an attack
on the honour or dignity of the President merely because this invitation
was sent to him when he was in France to attend an international con-
ference. The Court observes again that if it had been proven by Djibouti
that this confidential information had been passed from the offices of the
French judiciary to the media, such an act could, in the context of the
attendance of the Head of State of Djibouti at an international confer-
ence in France, have constituted not only a violation of French law, but
also a violation by France of its international obligations. However, the
Court must again recognize, as it has already done regarding the sum-
mons of 17 May 2005 (see paragraph 175 above), that it has not been
provided with probative evidence which would establish that the French
judicial authorities were the source behind the dissemination of the con-
fidential information at issue here.

                                   *   *
  (2) The alleged attacks on the immunities said to be enjoyed by the
    procureur de la République and the Head of National Security
                              of Djibouti
   181. In its Application filed on 9 January 2006 Djibouti makes refer-
ence to the issuing of summonses as témoins assistés to senior Djiboutian
officials. Djibouti claims that these witness summonses have violated
international obligations, both conventional and deriving from general
international law, notably the principles and rules governing the diplo-
matic privileges, prerogatives and immunities laid down in the Vienna
Convention on Diplomatic Relations of 18 April 1961 and the principles
established in the Convention on the Prevention and Punishment of
Crimes against Internationally Protected Persons, including Diplomatic
Agents of 14 December 1973. These claims were elaborated in the Memo-
rial of Djibouti.

  182. Mr. Djama Souleiman Ali and Mr. Hassan Said Khaireh were
summoned by Judge Belin to appear in France on 16 December 2004 as
témoins assistés. Two further summonses were issued to them by the
investigating judge at the Versailles Tribunal de grande instance,
Judge Bellancourt, to appear, again as témoins assistés, on 13 Octo-

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              QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                  241

ber 2005 ; these summonses were transmitted to the Minister of Justice of
Djibouti by his French counterpart.
  183. Judge Bellancourt was informed, by a letter from the lawyer of
the two individuals summoned, dated 11 October 2005, that “these two
persons, one an official and the other a judge, cannot comply with that
summons”. After recalling all the co-operation provided until then by
Djibouti in connection with the Borrel case, this letter added that “the
Republic of Djibouti, as a sovereign State, cannot accept one-way co-
operation of this kind with the former colonial Power, and the two indi-
viduals summoned are therefore not authorized to give evidence”.

  184. The Court recalls that, according to French legislation,
    “[a]ny person implicated by a witness or against whom there is evi-
    dence making it seem probable that he could have participated, as
    the perpetrator or accomplice, in committing the offence of which
    the investigating judge is seised” (Art. 113-2 of the French Code of
    Criminal Procedure)
may be summoned as a témoin assisté. The situation envisaged here by
French law is one where suspicions exist regarding the person in ques-
tion, without these being considered sufficient grounds to proceed with a
“mise en examen”. The person concerned is obliged to appear before the
judge, on pain of being compelled to do so by the law enforcement agen-
cies (Art. 109 of the French Code of Criminal Procedure), through the
issuing of an arrest warrant against him. As the Court has explained
above (paragraph 35), the two European arrest warrants issued on 27 Sep-
tember 2006 against Mr. Djama Souleiman Ali and Mr. Has-
san Said Khaireh are outside its jurisdiction in the present case.

   185. Djibouti initially contended that the procureur de la République
and the Head of National Security benefited from personal immunities
from criminal jurisdiction and inviolability. Subsequently, during the oral
proceedings, the Applicant declared that it “entirely rejects the idea
that . . . persons enjoying the status of an organ of State, even of a high
rank, benefit from personal immunity (also known as ratione personae)”.
It then argued in terms of “functional immunity, or ratione materiae”,
which it claimed was “the only category concerned” as regards the two
officials. For Djibouti, it is a principle of international law that a person
cannot be held as individually criminally liable for acts performed as an
organ of State, and while there may be certain exceptions to that rule,
there is no doubt as to its applicability in the present case.
   Having framed its argument in terms of immunity ratione materiae,
Djibouti, other than a brief mention in its Memorial, made no further
reference, in support of the immunities which the two officials were said
to enjoy, to the Convention on Special Missions of 8 December 1969, to
which, moreover, neither it nor the Respondent is a party.
   186. In response to Djibouti’s initial argument, France considers firstly

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              QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                  242

that the procureur de la République and the Head of National Security do
not, given the essentially internal nature of their functions, enjoy absolute
immunity from criminal jurisdiction or inviolability ratione personae.

   187. In the oral pleadings before the Court, Djibouti for the very first
time reformulated its claims in respect of the procureur de la République
and Head of National Security. It was then asserted that the procureur de
la République and the Head of National Security were entitled to func-
tional immunities :
      “What Djibouti requests of the Court is to acknowledge that a
    State cannot regard a person enjoying the status of an organ of
    another State as individually criminally liable for acts carried out in
    that official capacity, that is to say in the performance of his duties.
    Such acts, indeed, are to be regarded in international law as attrib-
    utable to the State on behalf of which the organ acted and not to the
    individual acting as the organ.”

                                     *
  188. The Court observes that such a claim is, in essence, a claim of
immunity for the Djiboutian State, from which the procureur de la
République and the Head of National Security would be said to benefit.

   189. France, in replying to this new formulation of Djibouti’s argu-
ment that its State officials were immune from the criminal jurisdiction of
France, stated that such a claim would fall to be decided on a case-by-
case basis by national judges. The contrary, according to France, “would
be devastating and would signify that all an official, regardless of his rank
or functions, needs to do is assert that he was acting in the context of his
functions to escape any criminal prosecution in a foreign State”. As func-
tional immunities are not absolute, it is, in France’s view, for the justice
system of each country to assess, when criminal proceedings are insti-
tuted against an individual, whether, in view of the acts of public author-
ity performed in the context of his duties, that individual should enjoy, as
an agent of the State, the immunity from criminal jurisdiction that is
granted to foreign States (France illustrates its argument by citing the
judgment of 23 November 2004 of the Chambre criminelle of the French
Cour de cassation in the case concerning the sinking of the oil tanker
Erika). However, according to France, the two senior officials concerned
have never availed themselves before the French criminal courts of the
immunities which Djibouti now claims on their behalf ; the Court does
not therefore, in view of that fact, have sufficient evidence available to it
to make a decision. Consequently, by summoning them to appear as
témoins assistés, the investigating judge did not, in France’s view, violate
any international obligation.

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             QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                   243

  190. The Court notes further that Djibouti later responded as fol-
lows :
      “As for officials, either they act in their official capacity, in which
    case their personal criminal liability cannot be invoked, or they act
    in a private capacity, in which case no functional immunity can
    operate to their benefit. In this instance too there is really no place
    for the least presumption which might a priori and in the abstract tilt
    the scales one way or another. The issue is not to presume anything
    whatsoever, but to verify concretely the acts in question, when of
    course the issue of immunity has been raised.”

  191. The Court observes that it has not been “concretely verified”
before it that the acts which were the subject of the summonses as
témoins assistés issued by France were indeed acts within the scope of
their duties as organs of State.

   192. The Court has noted that, in its first round of pleadings, Djibouti
asserted that the claim of immunity arising from the fact that the persons
concerned enjoyed the status of an organ of Djibouti, acting in the per-
formance of their duties, was now the only argument relied upon in
respect of Mr. Djama Souleiman Ali and Mr. Hassan Said Khaireh. In its
second round of pleadings, Djibouti withdrew somewhat from that posi-
tion, referring to the said claim as being its “principal argument” in
respect of the immunities enjoyed by Mr. Djama Souleiman Ali and
Mr. Hassan Said Khaireh.
   193. At the same time, the final submissions of Djibouti are not clearly
articulated in terms of a main claim of State immunity, with diplomatic
or other personal immunities of the procureur de la République and Head
of National Security having been abandoned, as is shown in Djibouti’s
final seventh submission, which requested the Court to adjudge and
declare
    “[t]hat the French Republic has violated its obligation pursuant to
    the principles of customary and general international law to prevent
    attacks on the person, freedom and honour of the procureur général
    of the Republic of Djibouti and the Head of National Security of the
    Republic of Djibouti”.
These final submissions are not clearly couched in the language of either
diplomatic or State immunities. It is thus not apparent to the Court that
the claim that Mr. Djama Souleiman Ali and Mr. Hassan Said Khaireh
benefited from functional immunities as organs of State remains as the
only or the principal argument being made by Djibouti.

  194. The Court notes first that there are no grounds in international
law upon which it could be said that the officials concerned were entitled
to personal immunities, not being diplomats within the meaning of the

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Vienna Convention on Diplomatic Relations of 1961, and the Conven-
tion on Special Missions of 1969 not being applicable in this case.

   195. The Court must also observe that these various claims regarding
immunity were not made known to France, whether through diplomatic
exchanges or before any French judicial organ, as a ground for objecting
to the issuance of the summonses in question. As recalled above, the
French authorities rather were informed that the Djiboutian procureur de
la République and Head of National Security would not respond to the
summonses issued to them because of the refusal of France to accede to
the request for the Borrel file to be transmitted to the Djiboutian judicial
authorities.

  196. At no stage have the French courts (before which the challenge to
jurisdiction would normally be expected to be made), nor indeed this
Court, been informed by the Government of Djibouti that the acts com-
plained of by France were its own acts, and that the procureur de la
République and the Head of National Security were its organs, agencies
or instrumentalities in carrying them out.

   The State which seeks to claim immunity for one of its State organs is
expected to notify the authorities of the other State concerned. This
would allow the court of the forum State to ensure that it does not fail to
respect any entitlement to immunity and might thereby engage the respon-
sibility of that State. Further, the State notifying a foreign court that
judicial process should not proceed, for reasons of immunity, against its
State organs, is assuming responsibility for any internationally wrongful
act in issue committed by such organs.

  197. Given all these elements, the Court does not uphold the sixth and
seventh final submissions of Djibouti.

                                     *
   198. The Court notes that as a component element of its legal argu-
ments relating to the treatment of Mr. Djama Souleiman Ali and Mr. Has-
san Said Khaireh, Djibouti has further challenged the lawfulness of the
assertion of jurisdiction by France over the events leading to the issuance
of the witness summonses as témoins assistés to Mr. Djama Soulei-
man Ali and Mr. Hassan Said Khaireh on 8 September 2005.
   Mr. Djama Souleiman Ali, procureur de la République of Djibouti,
travelled to Brussels at the beginning of 2002 and possibly in Decem-
ber 2001, allegedly to persuade Mr. Mohamed Saleh Alhoumekani, a
former presidential guard, in the presence of his lawyer, to withdraw the
evidence he was to give (see paragraph 35 above).
   199. This was later to constitute a central allegation in the civil action
for subornation of perjury filed on 19 November 2002 by Mrs. Borrel.

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              QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                  245

Mr. Hassan Said Khaireh was accused of having exerted, in Djibouti,
various forms of pressure on Mr. Ali Abdillahi Iftin to make him pro-
duce testimony which would discredit the statements of Mr. Mohamed
Saleh Alhoumekani (see paragraph 35 above).
   Djibouti challenged France’s jurisdiction over these matters as matters
being outside of France and arising between persons not of French
nationality.
   200. The Court observes that Djibouti did not in its Application of
9 January 2006 ask the Court to find that France lacked jurisdiction as
regards the acts alleged to have been engaged in by Mr. Djama Soulei-
man Ali and Mr. Hassan Said Khaireh in Brussels and Djibouti respec-
tively. That being so, such a contention cannot fall within the scope of
what France, in its letter to the Court dated 25 July 2006, has accepted
shall be determined by the Court. Accordingly, the Court makes no
observation on the contention of each of the Parties on this matter.

                                   * * *

                               VI. REMEDIES

   201. Djibouti has in its final submissions requested various remedies
which it regarded as constituting appropriate redress for claimed viola-
tions of the 1986 Convention and other rules of international law.

  202. Having found that the reasons invoked by France, in good faith,
under Article 2 (c) fall within the provisions of the 1986 Convention, the
Court will not order the Borrel file to be transmitted with certain pages
removed, as Djibouti has requested in the alternative and specified in
more detail in response to the question put by Judge Bennouna during
the hearings. Nor, in any event, would it have been in a position so to do,
having itself no knowledge of the contents of the file.

   203. The Court has found a violation by France of its obligation
under Article 17 of the 1986 Convention. As regards possible remedies
for such a violation, the Court will not order the publication of the rea-
sons underlying the decision, as specified in the soit-transmis of Judge Clé-
ment, to refuse the request for mutual assistance, these having in the
meantime passed into the public domain.
   204. The Court determines that its finding that France has violated its
obligation to Djibouti under Article 17 constitutes appropriate satisfac-
tion.

                                   * * *
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                         VII. OPERATIVE CLAUSE

  205. For these reasons,
  THE COURT,
  (1) As regards the jurisdiction of the Court,
  (a) Unanimously,
  Finds that it has jurisdiction to adjudicate upon the dispute concerning
the execution of the letter rogatory addressed by the Republic of Djibouti
to the French Republic on 3 November 2004 ;
  (b) By fifteen votes to one,
   Finds that it has jurisdiction to adjudicate upon the dispute concerning
the summons as witness addressed to the President of the Republic of
Djibouti on 17 May 2005, and the summonses as “témoins assistés”
(legally assisted witnesses) addressed to two senior Djiboutian officials on
3 and 4 November 2004 and 17 June 2005 ;
  IN FAVOUR : President Higgins ; Vice-President Al-Khasawneh ; Judges Ran-
    jeva, Shi, Koroma, Buergenthal, Owada, Simma, Tomka, Keith,
    Sepúlveda-Amor, Bennouna, Skotnikov ; Judges ad hoc Guillaume, Yusuf ;

  AGAINST : Judge Parra-Aranguren ;

  (c) By twelve votes to four,
  Finds that it has jurisdiction to adjudicate upon the dispute concerning
the summons as witness addressed to the President of the Republic of
Djibouti on 14 February 2007 ;
  IN FAVOUR : President Higgins ; Vice-President Al-Khasawneh ; Judges Shi,
    Koroma, Buergenthal, Owada, Simma, Keith, Sepúlveda-Amor, Ben-
    nouna, Skotnikov ; Judge ad hoc Yusuf ;
  AGAINST : Judges Ranjeva, Parra-Aranguren, Tomka ; Judge ad hoc Guil-
    laume ;
  (d) By thirteen votes to three,
  Finds that it has no jurisdiction to adjudicate upon the dispute con-
cerning the arrest warrants issued against two senior Djiboutian officials
on 27 September 2006 ;
  IN FAVOUR : President Higgins ; Vice-President Al-Khasawneh ; Judges Ran-
    jeva, Shi, Koroma, Parra-Aranguren, Buergenthal, Simma, Tomka, Keith,
    Sepúlveda-Amor, Bennouna ; Judge ad hoc Guillaume ;
  AGAINST : Judges Owada, Skotnikov ; Judge ad hoc Yusuf ;

 (2) As regards the final submissions of the Republic of Djibouti on the
merits,
  (a) Unanimously,
  Finds that the French Republic, by not giving the Republic of Djibouti

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             QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT)                 247

the reasons for its refusal to execute the letter rogatory presented by the
latter on 3 November 2004, failed to comply with its international obliga-
tion under Article 17 of the Convention on Mutual Assistance in Crimi-
nal Matters between the two Parties, signed in Djibouti on 27 September
1986, and that its finding of this violation constitutes appropriate satis-
faction ;
  (b) By fifteen votes to one,
  Rejects all other final submissions presented by the Republic of Dji-
bouti.
  IN FAVOUR : President Higgins ; Vice-President Al-Khasawneh ; Judges Ran-
    jeva, Shi, Koroma, Parra-Aranguren, Buergenthal, Owada, Simma,
    Tomka, Keith, Sepúlveda-Amor, Bennouna, Skotnikov ; Judge ad hoc
    Guillaume ;
  AGAINST : Judge ad hoc Yusuf.

   Done in French and in English, the French text being authoritative, at
the Peace Palace, The Hague, this fourth day of June, two thousand and
eight, in three copies, one of which will be placed in the archives of the
Court and the others transmitted to the Government of the Republic of
Djibouti and the Government of the French Republic, respectively.

                                          (Signed) Rosalyn HIGGINS,
                                                      President.
                                         (Signed) Philippe COUVREUR,
                                                        Registrar.

   Judges RANJEVA, KOROMA, PARRA-ARANGUREN append separate
opinions to the Judgment of the Court ; Judge OWADA appends a declara-
tion to the Judgment of the Court ; Judge TOMKA appends a separate
opinion to the Judgment of the Court ; Judges KEITH and SKOTNIKOV
append declarations to the Judgment of the Court ; Judge ad hoc GUIL-
LAUME appends a declaration to the Judgment of the Court ; Judge
ad hoc YUSUF appends a separate opinion to the Judgment of the Court.

                                                     (Initialled) R.H.
                                                     (Initialled) Ph.C.

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