Practice Relating to Rule 157. Jurisdiction over War Crimes
France’s LOAC Teaching Note (2000), in a part dealing with “grave breaches of the rules of the law of armed conflict”, states:
On the criminal level, persons charged with [grave breaches of the 1949 Geneva Conventions] may be prosecuted before French judicial courts, but also before foreign courts or international criminal courts having jurisdiction over war crimes: today this means the International Criminal Tribunals for the Former Yugoslavia and Rwanda for the crimes committed solely on the occasion of these two conflicts; tomorrow, this will mean … the International Criminal Court which will have jurisdiction over all war crimes and crimes against humanity in case of the failure of national tribunals.
Under France’s Code of Military Justice (1982), military tribunals have jurisdiction over acts committed by enemy nationals or any agents in the service of the administration or interests of the enemy on territory under French jurisdiction, or acts committed abroad against French nationals or refugees or stateless persons residing on French territory.
France’s Penal Code (1992) provides:
French criminal law is applicable to any felony committed by a French national outside the territory of the Republic. It is applicable to misdemeanours committed by French nationals outside the territory of the Republic if the conduct is punishable by the legislation of the country where it has been committed. This present article applies even though the accused acquired French nationality subsequent to the conduct imputed to him or her.
France’s Code of Criminal Procedure (1994) provides:
The authors of and accomplices in offences committed outside the territory of the Republic may be prosecuted and tried in French courts when, pursuant to the provisions of the Criminal Code, Book 1, or of another legislative instrument, French law is applicable or when an international convention gives French courts jurisdiction to deal with the matter.
The Code adds:
Pursuant to the international conventions referred to below, any person who renders himself guilty outside the territory of the Republic of any of the offences enumerated in those articles may, if in France, be prosecuted and tried by French courts.
The provisions that follow give jurisdiction over persons who violate certain specific treaties.
France’s Law on Cooperation with the ICTY (1995) provides:
The authors of or accessories to the offences mentioned in Article 1 [serious violations of IHL] can be prosecuted and tried by the French courts, in application of French law, if they are found in France. These provisions apply to attempted offences whenever such attempts are punishable … The international tribunal shall be informed of any ongoing proceedings relating to facts that may be of its competence.
France’s Law on Cooperation with the ICTR includes a similar provision for the acts of genocide and serious violations of IHL committed in Rwanda.
France’s Code of Military Justice (2006), in a chapter on “jurisdiction … [i]n times of peace and outside the territory of the [French] Republic”, states:
Outside the territory of the [French] Republic and subject to international obligations, the military tribunal recognizes all offences committed by members of the armed forces or persons following the army by virtue of an authorization.
In a chapter entitled “In times of war”, the Code of Military Justice also states:
Crimes and delicts committed after the opening of hostilities by enemy nationals or by any agents in the service of the administration or the interests of the enemy, on the territory of the [French] Republic or on territory that is under the authority of France or in any area of war operations, are within the jurisdictional competence of the armed forces:
1° If [committed] against a French national or a person under French protection, [or] against a soldier serving or having served under the French flag, [or] against a stateless person or refugee residing on one of the aforementioned territories;
2° If [committed] to the detriment of the objects of all aforementioned physical persons and of all French moral persons, provided the offences, even if committed at the occasion of or under the pretext of war, are not justified by the laws and customs of war.
France’s Code of Criminal Procedure (1994), as amended in 2010, states:
Any person who habitually resides in the territory of the [French] Republic and is guilty abroad of one of the crimes falling within the jurisdiction of the International Criminal Court, in accordance with its statute signed in Rome on 18 July 1998, can be prosecuted and tried by French courts if the conduct is punishable pursuant to the legislation of the State where it was committed or if this State, or the State of the person’s nationality, is a party to the above-mentioned statute.
The prosecution of those crimes may only be exercised by request of the public prosecutor if no international or national court requests the person’s surrender or extradition. For this purpose, the public prosecutor seeks assurance before the International Criminal Court that it expressly declines to exercise its jurisdiction and verifies that no other international tribunal with jurisdiction to try the person has requested the person’s surrender and that no other State has requested the person’s extradition.
In the Javor case
before France’s Tribunal de Grande Instance of Paris in 1994 and relative to events in Bosnia and Herzegovina, the investigating magistrate at first instance considered that the principles of international cooperation regarding the search and punishment of war criminals referred to in UN General Assembly Resolution 3074 (1973) were binding and were directly applicable in French national law. The investigating magistrate had also considered that he had jurisdiction on the basis of the 1949 Geneva Conventions and the 1984 UN Convention against Torture.
The Court of Appeal of Paris reversed the decision and held that the investigating magistrate had wrongly considered that the principles of international cooperation provided in UN General Assembly Resolution 3074 were legally binding as a treaty.
In 1996, the Court of Cassation confirmed the absence of direct applicability of the jurisdictional provisions of the 1949 Geneva Conventions. The Court also rejected the jurisdiction in respect of torture because the accused was not on French territory at the time of the alleged acts.
In the Munyeshyaka case
in 1996, France’s Court of Appeal of Nîmes considered a case concerning a Rwandan priest accused of an alleged role in the 1994 massacres in Kigali and held that there was no basis in French law for universal jurisdiction in respect to the imputed crime of genocide.
In 1998, the Court of Cassation reversed the judgment and found that jurisdiction was established on the basis of the Law on Cooperation with the ICTR of 1996, which allowed perpetrators of grave breaches of the 1949 Geneva Conventions, violations of the laws and customs of war, genocide and crimes against humanity who were present in France to be prosecuted in France by the application of French law. The Court added that the relevant bases in French law could be found in Article 689 of the Code of Criminal Procedure (torture) and Article 211 of the Penal Code (genocide).
In 2001, in the Kadhafi case, France’s Criminal Law Chamber of the Court of Cassation held:
Finding on the appeal lodged by:
- The Prosecutor General at the Court of Appeal of Paris,
Against the decision of 20 October 2000 of the chambre d’accusation of the said Court of Appeal, which confirmed the order of the investigating judge according to which there are grounds to hold an investigation upon the criminal complaint by the organization S.O.S Attentats and by Béatrice Boëry, against Mouammar Kadhafi, on the count of complicity in the destruction of an object by the effect of an explosive substance which led to the death of another person, in relation to a terrorist enterprise;
Having considered the general principles of international law;
Whereas international custom is opposed to the possibility of incumbent heads of State being the object of prosecutions before the criminal courts of a foreign State, in the absence of international provisions to the contrary binding on the parties concerned;
Whereas the organization S.O.S Attentats and Béatrice Boëry have lodged a criminal complaint, constituting themselves as civil party, on the count of complicity in the destruction of an object by the effect of an explosive substance which led to the death of another person, in relation to a terrorist enterprise, against Mouammar Kaddafi, incumbent head of State of the Libyan Arab Jamahiriya, whom they reproach with his implication in the attack, committed on 19 September 1989, against the airplane DC 10 of the company UTA, which, by exploding over Niger, caused the death of 170 persons, several among them of French nationality;
Whereas, in order to confirm the order of the investigating judge according to which there are grounds to hold an investigation, notwithstanding requests to the contrary by the office of the public prosecutor, the judges at the second level hold that even if the immunity of foreign heads of State has always been admitted by the international community, including France, no immunity can cover the acts of complicity in the destruction of an object by the effect of an explosive substance which led to the death of another person, in relation to a terrorist enterprise;
But whereas, by pronouncing thus, while under current international law the crime denounced, whatever its gravity, does not raise exceptions to the principle of immunity of incumbent foreign heads of State from jurisdiction, the chambre d’accusation has misread the aforementioned principle;
From which follows that the appeal for cassation is successful; …
[The Court of Cassation d]eclares null and void the decision of the chambre d’accusation
of the Court of Appeal of Paris of 20 October 2000 in all its provisions.
In 2002, in the Ely Ould Dah case, France’s Criminal Law Chamber of the Court of Cassation held:
Whereas it follows from the attacked decision that, during ethnic clashes that arose on the Mauritanian territory in the years 1990 and 1991, Ely X…, while he was a lieutenant in the army and participated, in the capacity of intelligence officer, in a commission charged with the interrogation of soldiers suspected of having instigated a coup d’état, rendered himself guilty of torture or barbaric acts and of complicity in these crimes; whereas the person concerned was questioned on 1 July 1999, at the School of the Commissariat of the Army of Montpellier Ecole du commissariat de l’armée de terre de Montpellier where he was doing a course, following a complaint lodged by the International Federation for Human Rights Fédération internationale des Ligues des droits de l’homme – FIDH] and the Human Rights League [Ligue Française pour la Défense des Droits de l’Homme et du Citoyen or Ligue des droits de l’Homme – LDH].
Whereas the attacked decision, in order to uphold the competence of the French jurisdiction, notes, first, that Articles 689-1 and 689-2 of the Criminal Procedure Code give the French courts the competence to prosecute and try any person, if in France, who, outside the territory of the Republic, has rendered himself guilty of torture in the sense of Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted in New York on 10 December 1984 and entered into force in France on 26 June 1987, and second, that, according to Article 689 of the Code cited above, which is in force since 1 March 1994 but whose provisions only take up the earlier law, French law is applicable whenever the French courts have competence; whereas the judges add that the Mauritanian amnesty law of 14 June 1993 cannot be applied since this would risk depriving the principle of universal jurisdiction of any impact;
Whereas, in fact, the exercise of universal jurisdiction by a French court brings with it the competence of the French law, even in the presence of a foreign amnesty law;
From which follows that the ground for appeal must be rejected.
In 2005, in the Guantánamo case, the Criminal Law Chamber of the Court of Cassation held:
Finding on the appeal lodged by:
- X… Nizar,
- X… X…,
- X… Khedija, wife Y…,
- A… Hafsa,
Against the decision of the investigating chamber of the Court of Appeal of Lyon of 20 May 2003, which confirmed the order of the investigating judge, refusing to hold an investigation upon their criminal complaint for counts of arrest, illegal detention, arbitrary detention, deliberate failure to end arbitrary detention;
Whereas it follows from the decision attacked and from the documents of the proceedings that Nizar X… and Mourad Z…, French nationals detained at the base at Guantánamo, constituted themselves as civil parties, because of illegal arrest, arbitrary detention and failure to end an arbitrary detention; whereas they denounce the fact of, first, having been illegally arrested due to the armed operations carried out in Afghanistan in response to the attacks perpetrated on 11 September 2001, and of, second, having been arbitrarily held in detention;
Whereas, to confirm the order of the investigating judge refusing to hold an investigation of these facts, the attacked decision, after recalling the context in which the arrest of the complainants was carried out, pronounces that the armed intervention by the United States of America “is in connection”, first, with Resolutions Nr. 1368 and 1373, unanimously adopted by the UN Security Council on 12 and 28 September 2001, and, second, Article 51 of the UN Charter; whereas the judges hold that no international convention gives French courts the competence to exercise jurisdiction over the situation complained about by the civil parties, which is the result, under the aegis of the United Nations, of a response to terrorist acts and which therefore cannot be governed by only French law, the denounced breaches moreover not being set out by any international pact or agreement or by French law; whereas they add that it is not for the French courts to exercise jurisdiction over the “military order” signed on 13 November 2001 by the President of the United States of America;
But whereas by deciding thus, by an abstract examination of the complaint only, without researching by way of a prior investigation whether the arrest and the detention conditions of the complainants – which it had to analyse from the point of view, in particular, of Geneva Convention III of 12 August 1949 and the International Covenant on Civil and Political Rights of 19 December 1966 – fell under the provisions of Article 224-1 of the Penal Code and, as such, because of the French nationality of the said complainants, came under the competence of the French laws and courts, the investigating chamber did not justify its decision;
On these grounds,
[The Court of Cassation r]enders null and void, in all its provisions, the aforementioned decision of the investigating chamber of the Court of Appeal of Lyon of 20 May 2003, and, in order for it to be judged anew, in accordance with the law,
refers the case and the parties to the investigating chamber of the Court of Appeal of Paris.
In 2007, in the “Disappeared of the Beach” case, France’s Criminal Chamber of the Court of Cassation held:
Finding on the appeals lodged by:
- the International Federation for Human Rights [Fédération International des Ligues des Droits de l’Homme – FIDH];
- the French League for the Defence of the Rights of Man and of the Citizen [Ligue Française pour la Défense des Droits de l’Homme et du Citoyen or Ligue des droits de l’Homme - LDH];
- the association Congolese Observatory of Human Rights [Observatoire Congolais des Droits de l’Homme – OCDH];
- Pascal Miena Youlou,
- Ghislain Matenbele,
- Aubin Mackaya,
- Blanchard Mouele,
- Linot Bardin Duval Tsieno,
- the association The Disappeared of the Beach [Les Disparus du Beach,
- Marcel Touanga,
- the association Survival Survie;
Against the decision of the first section of the investigating chamber of the Court of Appeal of Paris of 22 November 2004, which, in the investigation upon their complaint against unnamed person on counts of crimes against humanity, acts of torture and abductions of persons, pronounced on a request for annulment of parts of the proceedings;
Considering Articles 689, 689-1, 689-2, 40, 41 and 80 of the Criminal Procedure Code;
Whereas, first, according to the first three of these Articles, French courts can prosecute and try any person, if in France, who, outside the territory of the Republic, has rendered himself guilty of torture in the sense of Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted in New York on 10 December 1984;
Whereas, second, the Prosecutor of the Republic, from the three latter of these Articles above, receives the right to request the opening of an investigation in view of any information of which he is the recipient, and whereas the introductory submission can only be annulled if its form does not satisfy the essential conditions of its legal existence;
Whereas it follows from the attacked decision that the International Federation for Human Rights, the French League for the Defence of the Rights of Man and of the Citizen, and the Congolese Observer of Human Rights have lodged a complaint against Denis Sassou N’Guesso, President of the Republic of the Congo, Pierre Oba, minister of the interior, Norbert Dabira, inspector-general of the armed forces, Blaise Adoua, commander of the Republican Guard, for arbitrary arrests, acts of torture and enforced disappearances, taken place from May to July 1999, concerning displaced persons who returned to the Republic of the Congo via the river port of Brazzaville, called “The Beach”, following an agreement defining a humanitarian corridor under the auspices of the Office of the UN High Commissioner for Refugees;
Whereas the Prosecutor of the Republic of Paris transmitted the complaint to the public prosecution department of Meaux, territorially competent due to the known domicile of Norbert Dabira …; whereas, the preliminary investigation having verified the domicile of Norbert Dabira and his family at that address, the Prosecutor of the Republic requested the opening of an investigation on counts of crimes against humanity, acts of torture and abductions of persons;
Whereas, on 5 April 2004, the Prosecutor of the Republic presented a request for the purpose of the annulment of the public acts carried out in relation to Jean-François N’Dengue, Pierre Oba and Blaise Adoua, on the ground that the introductory submission improperly made against unnamed person could, in fact, only envisage Norbert Dabira, the only person likely to have participated in the denounced acts and with regard to whom it was established that he has a domicile on the national territory;
Whereas, in order to annul not only the parts aimed at in the prosecution’s request, but also the introductory submission and the entirety of the subsequent proceedings, the [Court of Appeal’s] decision pronounces in the form of the grounds reproduced in the appeal;
But whereas, by determining thus, while, first, the introductory submission, duly dated and signed by a prosecutor, aimed at annexed preliminary inquiry minutes, and, second, the persons suspected of having committed the acts denounced were designated by name, and, finally, there were, at the moment when the prosecutions began, sufficient elements on the presence of at least one of them in France, Norbert Dabira having his ordinary residence on the French territory where he is settled with his family, the investigating chamber misread the meaning and the impact of the Articles mentioned above and the principles recalled above;
On these grounds:
[The Court of Cassation d]eclares null and void, in all its provisions, the decision noted above of the investigating chamber of the Court of Appeal of Paris of 22 November 2004, and in order for it to be judged anew, in accordance with the law;
refers the case and the parties to the investigating chamber of the Court of Appeal of Versailles.
In 2008, in the same case, France’s Criminal Chamber of the Court of Cassation rejected the defence ground of appeal for Norbert Debira based on universal jurisdiction as follows:
[W]hereas, on the one hand, the implementation by a State of a universal jurisdiction clause cannot go beyond the provisions of the international convention which have strictly defined the criteria for such jurisdiction; [and] neither the domestic law, nor the investigating chamber could extend the forum de prehensionis criterion beyond its strict domain of application only provided for in the New York Convention [1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment];
[W]hereas, on the other hand, the universal jurisdiction clause, based on the presence of the supposed perpetrator of an offence which is likely to fall within the provisions of the New York Convention … , is strict and cannot be extended to the situation where the interested person has domicile or residence in France but where the condition of physical presence of this person at the commencement of the proceedings is not satisfied;
[F]inally, whereas the universal jurisdiction clause provided for in the New York Convention, considering the presence of the suspect in France, is indivisible from the implementation of the aut dedere, aut judicare principle provided for in articles 5 and 7 of that Convention, according to which the State that would not extradite the suspect is obliged to prosecute him or her; the investigating chamber has thus extended the criterion for the universal jurisdiction of French courts over a situation that the New York Convention would not provide for;
Considering that the investigating chamber justified its decision in relation both to the texts of the conventions referred to in the appeal and to article 689-1 of the Code of Criminal Procedure;
It follows that the appeal should be rejected.
The Court also held:
[T]he domestic judge, when he receives a case based on a universal jurisdiction clause, shall ensure that the res judicata
which took place abroad does not hinder the prosecution in France … This assessment, which is a condition to the legality of the public prosecution, shall be effective and take place in the preparatory phase of the criminal proceedings established in France … If the investigating chamber fails to proceed with such assessment, the interested parties shall benefit, without discrimination, of a useful and effective remedy to hinder the commencement of the public prosecution.
In 2007, in the Rumsfeld case, the Prosecutor of the Republic at France’s Tribunal de Grande Instance of Paris wrote to the authors of a criminal complaint against former US Secretary of Defense Donald Rumsfeld, which had been based on allegations of torture committed in US custody at Guantanamo Bay, Cuba, and Abu Ghraib, Iraq:
Further to the criminal complaint dated 25 October 2007, filed on behalf of the organizations International Federation for Human Rights Féderation Internationale des Ligues des Droits de l’Homme – FIDH], Human Rights League [Ligue Française pour la Défense des Droits de l’Homme et du Citoyen or Ligue des droits de l’Homme – LDH], CCR [Center for Constitutional Rights] and ECCHR [European Center for Constitutional and Human Rights] against Mister Donald Rumsfeld on the count of acts of torture, I have the honour of informing you that on 26 October 2007 my department seized the serious crime squad [brigade criminelle with the enquiry, in order to establish the fact and the duration of Mister Rumsfeld’s stay in Paris, and in order to verify the existence of a potential diplomatic immunity.
The Ministry of Foreign Affairs thus has indicated that, in application of the rules of customary international law, approved by the International Court of Justice, the immunity from criminal jurisdiction of heads of State, heads of government and ministers of foreign affairs continues, after the end of their functions, for acts carried out in their official function, and that, as former secretary of defense, Mister Rumsfeld must benefit, by extension, from the same immunity, for acts carried out in the exercise of his functions.
Furthermore, the stay of the person concerned in France was to end on 27 October 2007.
My department therefore filed these proceedings as closed, under registration number P0729908132.
In 1995, in a circular to Directors of Public Prosecution, Senior Public Prosecutors, First Presidents of Appellate Courts, and Presidents of County Courts commenting on the Act related to France’s participation in the repression of the crimes set out in Articles 2 to 5 of the 1993 ICTY statute and France’s cooperation with the ICTY, France’s Minister of Justice stated:
Article 2 of the Act stipulates the universal jurisdiction of the French judiciary with regard to the offences listed in Article 1 of this Act if the perpetrator or accomplice of these acts or omissions is on French territory.
The recognition of this universal jurisdiction, which was not required by the Security Council resolution [establishing the ICTY], constitutes an important innovation. …
It permits the application of French law with regard to any war criminal who tries to seek refuge on our territory, even if this person is not yet sought by the international tribunal.
In 1996, in a circular to Directors of Public Prosecution, Senior Public Prosecutors, Public Prosecutors, First Presidents of Appellate Courts, Presidents of County Courts, and Magistrates commenting on the Act related to France’s participation in the repression of the crimes set out in the 1994 ICTR Statute and France’s cooperation with the ICTR, France’s Minister of Justice stated:
As was done by the Act of 2 January 1995 [which adapted French legislation to the establishment of the ICTY], the legislator gave the French judiciary the jurisdiction to adjudicate acts or omissions falling within the competence of the international tribunal for Rwanda (Article 2 of the Act of 22 May 1996) if the author of these acts or omissions is on French territory.
In 2009, the Minister of Foreign and European Affairs of France stated:
Being aware of the practical problems that might be raised by the implementation [of universal jurisdiction] and particularly in light of the experience of certain States which were led to partially reconsider the matter, the senators chose to apply various conditions, in particular the requirement of a habitual residence in France of the perpetrator and for the monopoly of the prosecution by the public prosecutor after verification that no other international or national court requests the interested person’s surrender or extradition. A quasi-universal jurisdiction thus framed was considered acceptable by the government.