III. Certain Criminal Proceedings in France (Republic of the Congo v France), Provisional Measures, Order of 17 June 2003

In its decision in the Arrest Warrant case,2 the International Court of Justice studiedly refused to address systematically the legality and ambit of a purported exercise in absentia of universal criminal jurisdiction by one State over a government minister of another State. This, coupled with the dicta of certain judges with reservations as to the scope of universal jurisdiction3 and the (at best) lukewarm support for such jurisdiction displayed by certain other judges,4 might be taken as a discouragement to States to engage in similar exercises of jurisdiction. However, the contemporary trend in many developed States in favour of taking measures of extraterritorial enforcement jurisdiction to apprehend and punish the alleged perpetrators of serious international law crimes, coupled with the entry into force of the Statute of the International Criminal Court, indicates that more such attempts are quite likely to be made. Within a year of its decision in the Arrest Warrant case, the ICJ again found itself the forum for a similar dispute. On 9 December 2002 the Republic of the Congo (‘the Congo’) filed an Application instituting proceedings against France5 in circumstances notably resembling those that had prompted the Democratic Republic of the Congo (‘the DRC’) to act against Belgium. Again, the Applicant was an African State protesting against an alleged abuse of universal jurisdiction and failure to respect immunities on the part of its European former colonial ruler. Despite the prima facie similarity between the two cases, however, the chances that the eventual decision in the Certain Criminal Proceedings case will go beyond the Arrest Warrant case to elucidate the doctrine of universal jurisdiction are very slight. This note is confined to considering the circumstances behind the Congolese Application and Request for the Indication of a Provisional Measure, and the Court's response thereto in its Order of 17 June 2003.