DJIBOUTI TAKES FRANCE TO

UNCLAS SECTION 01 OF 02 DJIBOUTI 000090

SIPDIS

STATE FOR AF AND AF/E;
LONDON, PARIS FOR AFRICA WATCHER;

E.O. 12958: N/A
TAGS: PREL PGOV PINS KGCN KJUS KLIG DJ FR
SUBJECT: DJIBOUTI TAKES FRANCE TO
INTERNATIONAL COURT OF JUSTICE

REF: 05 DJIBOUTI 1069

04 DJIBOUTI 1372
04 DJIBOUTI 1084
04 DJIBOUTI 585


1. (U) SUMMARY: On January 10 Djibouti
formally requested mediation by the
International Court of Justice (ICJ) between
itself and France over the long-standing and
thorny Judge Bernard Borrel Affair (see
reftels). The Government of Djibouti (GoD)
alleges that France violated its
"international obligations in respect to
mutual assistance in criminal matters" in
the investigation into the 1995 death in
Djibouti of the French judge. For more than
ten years the case has remained open amid
Mrs. Borrel's claims that members of the
Government of Djibouti assassinated her
husband. She claims he was killed after he
uncovered information which incriminated
Djiboutian officials in the 1990 bombing of
the Caf de Paris in Djibouti City. END
SUMMARY


2. (U) The alleged suicide of French
magistrate, Bernard Borrel, in 1995 in
Djibouti, remains a volatile subject in
Djibouti-France relations. The issue of the
death of the French magistrate, and
discovery of his body 80 Km north of
Djibouti in 1995, has surfaced once again in
the local media. In February 2005, France's
Ministry of Justice agreed to hand over the
case file to Djiboutian judicial
authorities. However, French judge Sophie
Clement refused to comply. In her refusal,
Clement stated that French authorities had
no right to hand over secret documents to "a
foreign political authority" arguing that to
do so would "compromise the fundamental
elements of national interest [of France]
and [France's] agents".


3. (U) A press release issued by the ICJ
declared: "In an application filed in the
Registry of the Court on 9 January 2006,
Djibouti states that the subject of the
dispute concerns 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 Borrel."
Djibouti maintains that the refusal
constitutes a violation of France's
international obligations under the Treaty
of Friendship and Cooperation signed by the
two States on 27 June 1977, and the
Convention on Mutual Assistance in Criminal
Matters between France and Djibouti, dated
27 September 1986. Djibouti further asserts
that, by summoning certain internationally
protected nationals of Djibouti (including
the Head of State) as witnesses in
connection with a criminal complaint for
subornation of perjury in the Borrel case,
France violated its obligation to prevent
attacks on the person, freedom or dignity of
persons with diplomatic protection.


4. (U) On September 30, 2004 the Court of
Versailles summoned the Procureur de la
Republique (Attorney General of Djibouti),
Djama Souleiman, and Hassan Said, head of
Djibouti's National Security Service (NSS),
to appear before the examining French
magistrate to respond regarding a complaint
entered by the widow of Bernard Borrel. In
response to the summoning of the judge,
Djama Souleiman said in an interview,
reproduced in Djibouti's state-run newspaper
"La Nation" on October 4, 2004, "French
magistrates forget easily that Djibouti is
an independent and sovereign country. They
still think Djibouti is a French territory.
There is a judicial agreement between
Djibouti and France since September 27 1986
and if they want to call me, they have to go
through that procedure". He highlighted that
each country must respect the legal
procedures of that agreement.


5. (U) Article 38, paragraph 5, of the Rules
of Court states "When the Applicant State
proposes to found the jurisdiction of the
Court upon a consent thereto yet to be given
or manifested by the State against which
such application is made, the application
shall be transmitted to that State. It
shall not however be entered in the General
List, nor any action be taken in the
proceedings, unless and until the State
against which such application is made
consents to the Court's jurisdiction for the
purposes of the case." In accordance with
this Article, the Application by the
Republic of Djibouti was transmitted to the
French Government and no action will be
taken in the proceedings unless and until
France consents to the Court's jurisdiction
in the case.


6. (U) The Djiboutian Ministry of Foreign
Affairs, Mahmoud Ali Youssouf stated in a
public communiqu following referral to the
ICJ: "Djibouti has engaged international
lawyers who will defend our case". Sources
indicate that one of the international
lawyers is American. Nevertheless, the
Minister said that the Court's decision will
not negatively influence "good relations"
between the two nations.
RAGSDALE