Practice Relating to Rule 159. Amnesty
Section B. Prohibition on amnesty for war crimes
In 1993, in its judgment in the Boudarel case, the Criminal Law Chamber of France’s Court of Cassation held:
Rejection of the appeal lodged by Wladyslav Sobanski and the National Association of Former Prisoners-Internees of Indochina Association nationale des anciens prisonniers-internés d’Indochine, civil parties, against the decision of the chambre d’accusation of the Court of Appeal of Paris of 20 December 19991, according to which there are no grounds for holding an investigation into the acts denounced by these civil parties against Georges X. …, under the classification of crimes against humanity.
Whereas it follows from the attacked decision and the documents of the proceedings that Wladyslav Sobanski and the National Association of Former Prisoners-Internees of Indochina, on 3 April 1991, declaring themselves as civil parties, lodged a complaint with the investigating judge of Paris against Georges X. …, on the count of crimes against humanity; whereas they stated that soldiers of the French expeditionary corps in Indochina were made prisoners and detained in northern Vietnam, for periods of variable duration, between October 1952 and August 1954, in an internment camp where Georges X. …, a French national, exercised the functions of political commissar and deputy commander in the ranks of the Viet-Minh; whereas they denounced the persecutions and the inhuman treatment he inflicted on the prisoners, with a view to their political indoctrination which was a condition of their survival, those “past rehabilitation” or “deviationists” being destined to death by malnutrition; whereas the complaint was communicated to the Prosecutor of the Republic who, on 23 May 1991, made requests to refuse the holding of an investigation, based on Article 30 of the law of 18 June 1966, according to which all crimes and offences committed in relation with the events following the Vietnamese insurrection and prior to 1 October 1957 are amnestied ipso iure;
Whereas, by order of 13 September 1991, the investigating judge considered that the acts denounced by the civil parties, supposing they were established, would constitute crimes against humanity, in the sense of Article 6c of the statute of the International Military Tribunal at Nuremberg, annexed to the London Charter of 8 August 1945, and according to the law of 26 December 1964; whereas, due to the supremacy of the international norm over domestic law, they would not only be not subject to statutes of limitation, but also be excluded from the amnesty law of 18 June 1966; whereas the investigating judge has, in consequence, decided to hold an investigation upon these complaints;
Whereas, in order to overturn that order, on the appeal of the public prosecutor, and to hold that there are no grounds for holding an investigation, due to the extinguishing of the public action, the chambre d’accusation states, in particular, that “the offences Georges X. … is reproached with, being related to the events following the Vietnamese insurrection and having been committed prior to 1 October 1957, are envisaged by the amnesty law of 18 June 1966, which does not exclude any crime from its field of application”; whereas the judges add that if the crimes against humanity “included in domestic French law since the law of 26 December 1964, are by their nature not subject to statutes of limitation, the principle of their not being subject to limitation must be interpreted restrictively”; whereas they observe “that, in the absence of an express provision on that point, either under international law or internal law, it therefore cannot be validly supported that a principle of exclusion of amnesty for crimes of humanity has its source in the general philosophy of the inter-Allied London Charter of 8 August 1945 and the statute of the International Military Tribunal”; whereas they deduce that the amnesty must equally apply to crimes against humanity and therefore, under that classification, to the facts with which Georges X. … can be reproached;
Whereas, by thus admitting that the acts with which Georges X. … is reproached could be classified as crimes against humanity, the chambre d’accusation has misread the meaning and the impact of the texts addressed in the appeal;
Whereas, in fact, the provisions of the law of 26 December 1964, and of the statute of the International Military Tribunal at Nuremberg, annexed to the London Charter of 8 August 1945 only concern the acts committed on behalf of the European Axis countries; whereas, in addition, the Charter of the International Military Tribunal at Tokyo, which was neither ratified nor published in France and which did not enter into the provisions of the law of 26 December 1964 or of the United Nations resolution of 13 February 1946, in its Article 5 only envisages the acts of violence committed by the Japanese war criminals or their accomplices; whereas, thus, the acts denounced by the civil parties, subsequent to World War II, were not suitable for receiving the classification of crimes against humanity in the sense of the texts cited above;
Whereas, however, despite the error of law committed, the attacked decision is not censured, since the Court of Cassation is able to assure itself that the acts with which Georges X. … is reproached, however they could be classified under common law, necessarily come under the field of application of Article 30 of the law of 18 June 1966 on amnesty for all acts committed in relation with the events following the Vietnamese insurrection;
From which follows that the end of the public action was rightly declared and that, the refusal to hold an investigation being justified, the appeal cannot be received.
In 2007, in its fourth periodic report to the Human Rights Committee, France stated:
47. The amnesty acts of 9 November 1988 and 10 January 1990 were adopted in the framework of the settlement of the conflict between the different communities in the Caledonian archipelago. To the extent that these two acts both satisfied a need for social appeasement and safeguarded the interests of victims, the European Commission on Human Rights found them not to be in breach of the European Convention for the Protection of Human Rights and Fundamental Freedoms, in particular article 2 thereof.
A. The problem of amnesties in periods of transition
49. While it seems of vital importance to ensure that States meet their obligation to bring the perpetrators of human rights violations to book, amnesties are a means of “appeasement” in countries going through a phase of national reconciliation.
50. The development of international criminal courts guarantees that the extremely serious crimes which they sanction do not go unpunished, as these crimes are never covered by amnesty acts.