Practice Relating to Rule 158. Prosecution of War Crimes
France’s LOAC Summary Note (1992) provides: “Grave breaches of the law of war are war crimes which must be investigated, brought before each party’s courts and punished under criminal law.”
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.
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 norm in case such crimes are committed “in times of war”.
France’s Laws on Cooperation with the ICTY (1995) and ICTR (1996) provide for the punishment of authors and accomplices of serious violations of IHL.
France’s Code of Military Justice (2006) states:
The authorities qualified to engage in prosecution and, if they have received the assignment to do so, the commissioners of government take or have [others] take all necessary measures for the investigation and the prosecution of offences relevant for the jurisdictional competence of the armed forces.
In the Javor case
in 1994, in a civil suit filed by Bosnian nationals alleging ill-treatment in a Serb-run detention camp, France’s Tribunal de Grande Instance of Paris found that it had jurisdiction over the claims of war crimes. In its consideration of the charge, the Court focused on the grave breaches provisions of the 1949 Geneva Conventions.
The Court of Appeal reversed this decision and held, inter alia
, the absence of direct applicability of the 1949 Geneva Conventions.
In 2005, in the Guantánamo case, France’s 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 Law 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 Observer 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, the Minister of Foreign and European Affairs of France, addressing the issue of sexual violence committed against children in the context of armed conflicts, stated:
The [Security Council] Working Group [on Children and Armed Conflict] should strengthen its efforts to combat impunity by relentlessly demanding the arrest of those responsible for rape and call on Governments to act in this regard.
In 2009, the President of the French Republic stated:
The respect for international humanitarian law is not negotiable … It implies a resolute fight against the culture of impunity, which nowadays still characterizes most conflicts. The perpetrators and the instigators of crimes committed against the civilian population shall be punished, wherever they are. This is why … we need the International Criminal Court, which France fully supports.
Last year – this figure is unbelievable – 260 humanitarian agents were killed, kidnapped or seriously injured. This figure is intolerable. States are responsible for the security of the humanitarian personnel intervening in their territory. [States] have to protect them and punish those guilty of the atrocities committed against them.
In 2009, the Minister of Foreign and European Affairs of France, referring to the situation of armed conflict in Guinea, stated:
We have never seen so many murders at the same time, as well as rapes of women in front of their husbands and children. All this is absolutely intolerable! It is very good that the [ICC] investigates such massacres; this is a great step forward for international justice. Impunity, I hope, will take a step back with this investigation.
In 2009, the Minister of Foreign and European Affairs of France stated:
The [1998 Rome Statute] does not impose any obligation on the transposition [into domestic law] of the crimes falling within the jurisdiction of the ICC. This is why the draft law adapting criminal law to the establishment of the Court … is not a text transposing the provisions of the Rome Statute … [T]he draft law aims at adapting our domestic law (genocide, crimes against humanity and war crimes) pursuant to the principle of complementarity set up in the Rome Statute. The government considered it not necessary to strictly reproduce the definitions of the crimes enumerated by the Statute, as most of these crimes can already be prosecuted pursuant to the [domestic] law in force. Nevertheless, it chose to adopt a certain harmonization of the definitions of crimes provided in the Rome Statute by supplementing, in particular, the provisions currently applicable to genocide and crimes against humanity.
In 2009, in response to a parliamentary question about the prosecution of war crimes committed against humanitarian relief personnel during the civil war in Sri Lanka, the Minister of Foreign and European Affairs of France stated:
17 humanitarian workers from the association “Action against Hunger” were killed on 4 August 2006 in Muttur in the North of Sri Lanka. Since then, France has called for the truth of the circumstances of these killings to be known and for those guilty of them to be punished … We first appeal to the judicial authorities in Sri Lanka … If all possible proceedings at the national level fail, we will carefully study with our partners the possibility of establishing an international commission of inquiry … France’s determination to see those guilty of these killings go to court will not weaken.