Practice Relating to Rule 151. Individual Responsibility
Section A. Individual criminal responsibility
France’s LOAC Manual (2001) states: “Each individual is responsible for the violations of the law of armed conflict he has committed, whatever the circumstances.”
France’s Ordinance on Repression of War Crimes (1944) provides for the prosecution of certain persons having committed specific acts from the opening of hostilities.
France’s Penal Code (1992) provides for the punishment of a list of certain acts such as genocide and crimes against humanity and also provides for a special provision in case such crimes are committed “in times of war”.
France’s Laws on Cooperation with the ICTY (1995) and with the ICTR (1996) provide for the punishment of authors and accomplices of serious violations of IHL.
In the Javor case
in 1994, a civil suit filed in France by Bosnian nationals alleging ill-treatment in a Serb-run detention camp, the Paris High Court found that it had jurisdiction over the claims of war crimes. In its consideration of the charge, the Court focused on the grave breaches of the 1949 Geneva Conventions.
The Court of Appeal of Paris reversed this decision and held, inter alia
, the absence of direct applicability of the 1949 Geneva Conventions.
In 1993, the French Ministers of State and of Foreign Affairs wrote a letter to the Chairman of the Committee of French Jurists entrusted to study the establishment of an international criminal tribunal for the former Yugoslavia, stating:
Unfortunately there is no longer any doubt that particularly serious crimes are being committed in the territory of the former Yugoslavia that constitute war crimes, crimes against humanity or serious violations of certain international conventions.
Such actions cannot go unpunished, and the absence of real penalties, in addition to being an affront to public conscience, could encourage the perpetrators of these crimes to pursue their regrettable course of action.
In 1993, during a debate in the UN Security Council following the unanimous vote on Resolution 827 (1993) establishing the ICTY, France stated:
In adopting resolution 827 (1993), the Security Council has just established an International Tribunal that will prosecute, judge and punish people from any community who have committed or continue to commit crimes in the territory of the former Yugoslavia …
The expression “laws or customs of war” used in Article 3 of the [1993 ICTY Statute] covers specifically, in the opinion of France, all the obligations that flow from the humanitarian law agreements in force on the territory of the former Yugoslavia at the time when the offences were committed.
In 1993, during a debate in the Sixth Committee of the UN General Assembly on the report of the International Law Commission, France referred to the draft statute for an international criminal tribunal for the former Yugoslavia and stated:
Although it was true that barbarity had always existed, it was no less true that impunity for the guilty was no longer acceptable. Therefore, the establishment of an international criminal jurisdiction, although it would not fully satisfy those with the most exacting consciences, was a step forward in achieving respect for the rule of law and a better lot for the victims of the conflicts.
In 2008, the Minister of Defence of France stated: “The individual criminal responsibility of members of private military companies who have violated international humanitarian law could be incurred before French courts.”