A unique opportunity to rule on immunity in

grand corruption cases

Contribution de Maud Perdriel-Vaissière, déléguée générale de Sherpa, au blog de la Coalition UNCAC
On 26 September 26 2012, Equatorial Guinean authorities announced that they had filed a case against
France in the International Court of Justice (ICJ) over a French criminal investigation of corruption
allegations, which Equatorial Guinea claims is « interfering » their internal affairs. In the case filed with
the ICJ, Equatorial Guinea claims immunity for the son of the President of Equatorial Guinea who is
under criminal investigation in the “Biens Mal Acquis” case (literally, the “ill-gotten gains” case) and
tries by this means to stop the investigation. In Sherpa’s view, this action is another delaying tactic to
hinder the judicial investigation. However, if France were to consent to ICJ jurisdiction in this case1,
there is no doubt that the ICJ would reject Equatorial Guinea’s unfounded request since French courts
are fully competent to deal with criminal offences presumably committed on French soil.
This case would provide the ICJ with an opportunity to rule on the question of immunities of
convenience, i.e. those immunities created for the sole purpose of escaping proceedings opened legally. In
this particular case, why would Mr. Teodorin Nguema Obiang have been appointed in May 2012 as
second vice-president of the Republic of Equatorial Guinea (a position not provided for in the
Constitution of this State), other than to benefit from the immunities that could be conferred by this new
position? Previously, and most likely inspired by the “Falcone precedent”2, Equatorial Guinea
attempted to get him appointed Deputy Permanent Delegate of Equatorial Guinea to UNESCO.
It may also be the right time to rule that immunities should not apply in grand corruption cases. Since
the United Nations Convention against Corruption (UNCAC) was adopted in 2003, these kinds of
infringements fall within conventional exceptions to the principle of legal immunity of serving Heads of
State and foreign high-ranking officials.
« It would be highly damaging to the legitimacy of the overall anticorruption strategy, public
perceptions of justice, private business functioning and international cooperation, if corrupt public
officials were able to shield themselves from accountability and investigation or prosecution for
serious offences» UNCAC, Legislative Guide [p.387]
According to the World Bank 2007 report on Stolen Asset Recovery (StAR) Initiative, approximately 20 to
40 billion dollars of illicit money leave developing countries annually to be laundered in northern
economies. The colossal cost of grand corruption is mainly supported by the people whose basic
needs remain unfulfilled in spite of the significant amount of resources located in their territory. If we
really want to fight this plague, it is time to reassess legal frameworks taking account of the all too
often validated equation: « immunity= impunity”.
1. The ICJ jurisdiction does not apply automatically, but only with both parties’ consent, since neither France
nor Equatorial Guinea have issued the declaration recognizing the compulsory jurisdiction of the Court.

2. Pierre Falcone is a French arms trader who was appointed in 2003 as Minister Plenipotentiary and
representative of Angola to UNESCO, which then allowed him to escape the on-going investigation in the
Angolagate case. Although the privileges and immunities he claimed to detain were finally rejected and a
conviction was handed down, there is no doubt that the nomination seriously hindered the legal
proceedings in France