Practice Relating to Rule 161. International Cooperation in Criminal Proceedings
In 1971, the French delegation explained its abstention in the vote on UN General Assembly Resolution 2840 (XXVI) stating that it
abstained in the vote on the draft resolution because we consider that all the work of the United Nations in connexion with this matter is vitiated by the faulty definition of a number of crimes contained in the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, to which France is not a party. Indeed this definition is based on theoretical and practical considerations which are too imprecise for a convention of a penal nature and which are at any rate contrary to the principles of the French Penal Code.
In the Barbie case in 1983, France’s Court of Cassation quoted the Court of Appeal which had stated that it was competent to examine the submissions made in the application by Barbie, according to which his detention was a nullity since there did not exist any extradition treaty between France and Bolivia and it was the result of a “disguised extradition”:
In the absence of any extradition request, the execution of an arrest warrant on national territory, against a person who has previously taken refuge abroad, is not subject to his voluntary return to France or to the institution of extradition proceedings. Furthermore, by reason of their nature, the crimes against humanity do not simply fall within the scope of French municipal law but are subject to an international criminal order to which the notions of frontiers and extradition rules arising therefrom are completely foreign.
The Court of Cassation stated: “In giving this ruling … the Court of Appeal gave a proper legal basis to its decision, without inadequacy or contradiction.” Referring to the 1945 London Agreement and UN General Assembly Resolution 3(I) of 1946 on extradition and punishment of war criminals, the Court ruled that:
It results from these provisions that “all necessary measures” are to be taken by the Member States of the United Nations to ensure that war crimes, crimes against peace and crimes against humanity are punished and that those persons suspected of being responsible for such crimes are sent back “to the countries in which their abominable deeds were done in order that they may be judged and punished according to the laws of those countries”. By reasons of the nature of those crimes, these provisions are in accordance with the general principles of law recognized by the community of nations.
In 2008, in the Ntawukuriryayo case, the Criminal Chamber of France’s Court of Cassation was called upon to decide about the transfer of the appellant to the International Criminal Tribunal for Rwanda. The appellant claimed that his transfer to that tribunal would be merely a prelude to his extradition to Rwanda, where he would not receive a fair trial. The Court stated:
[W]hen a French … authority … transfers a person to a foreign authority due to an international warrant in order for the person to be tried [abroad], the French authority has the obligation to ensure that, as a result of the transfer, the person’s fundamental rights and judicial guarantees, as established by France’s Constitution and international obligations, will not be violated. This absolute obligation implies necessarily that the judge … must receive guarantees that the requesting authority will not subsequently transfer the … person to a third authority which does not guarantee the respect for such rights.
In 1971, during a debate in the Third Committee of the UN General Assembly on the question of the punishment of war criminals and of persons who have committed crimes against humanity, the representative of France stated that “in France war crimes were not regarded as political crimes and that perpetrators could be extradited in the same way as common offenders”.
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 … 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 LOAC Manual (2001) states that the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, “having concurrent jurisdiction with national tribunals of each State, have, however, primary jurisdiction and may request national tribunals to hand over cases to [them]”.
Regarding the International Criminal Court, the manual also states:
The Court has jurisdiction as soon as the national State of the alleged perpetrator(s), or the State on the territory of which the crime occurred, is party to the [1998 ICC Statute] or gives its express consent. This Court is additional to national jurisdiction. It intervenes only if national jurisdictions are incapable, or refuse to, try the perpetrators.
France’s Constitution (1958), as amended in 1999, provides: “The Republic may recognize the jurisdiction of the International Criminal Court as provided for by the Treaty signed on 18 July 1998.”
France’s Law on Cooperation with the ICTY (1995) states:
For the implementation of resolution 827 of the United Nations Security Council of 25 May 1993 establishing an International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, France takes part in the repression of crimes and cooperates with this Tribunal under the conditions laid down by this Act.
The following provisions shall apply to any person prosecuted for acts which constitute, within the meaning of Articles 2 to 5 of the Statute of the International Tribunal, grave breaches of the Geneva Conventions of 12 August 1949, violations of the laws or customs of war, genocide or crimes against humanity.
France’s Law on Cooperation with the ICTR (1996) states:
For the implementation of resolution 955 of the United Nations Security Council of November 8, 1994 instituting an International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994, France takes part in the repression of crimes and cooperates with this Tribunal under conditions established by this Act.
The following provisions shall apply to any person prosecuted for acts which constitute, within the meaning of Articles 2 to 4 of the Statute of the International Tribunal, serious violations of Article 3 common to the Geneva Conventions of 12 August 1949 and the Protocol II Additional to those Conventions, dated June 8, 1977, genocide or crimes against humanity.
France’s Law on Cooperation with the ICC (2002) states:
For the implementation of the Statute of the International Criminal Court signed on July 18, 1998, France takes part in the repression of crimes and cooperates with the court under the conditions specified under this title.
The following provisions shall apply to any accused person before the International Criminal Court or convicted by it in respect of acts which, under Articles 6 to 8 and 25 of the Statute, constitute genocide, crimes against humanity or war crimes.
In 2008, in the Ntawukuriryayo case, the Criminal Chamber of France’s Court of Cassation was called upon to decide about the transfer of the appellant to the International Criminal Tribunal for Rwanda (ICTR). The appellant claimed that his transfer to that tribunal would be merely a prelude to his extradition to Rwanda, where he would not receive a fair trial. The Court stated:
[The investigating chamber issued a] decision ordering the transfer of Dominique X … to the authorities of the ICTR, [which is] contested [by the appellant] …
… [W]hen a French … authority … transfers a person to a foreign authority due to an international warrant in order for the person to be tried [abroad], the French authority has the obligation to ensure that, as a result of the transfer, the person’s fundamental rights and judicial guarantees, as established by France’s Constitution and international obligations, will not be violated. This absolute obligation implies necessarily that the judge … must receive guarantees that the requesting authority will not subsequently transfer the … person to a third authority which does not guarantee the respect for such rights. The investigating chamber, … [which found that Dominique X could be transferred because there was] not enough evidence that he would certainly be extradited to Rwanda … , … should … rather have obtained certainty that he would not be extradited … [Thus, t]he investigating chamber reversed the burden of proof, misread the extent of its own powers and violated the abovementioned texts and principles.
… [T]he ICTR is a temporary tribunal whose international mandate expires in 2010 and whose first instance proceedings shall be concluded by December 2008 … [P]ursuant to article 11bis of its rules of procedure [the 2001 ICTR Rules of Procedure and Evidence, as amended to 2008], it has the power to immediately transfer certain indicted persons to domestic courts … , in particular Rwandese [courts] … According to the last ICTR report on its completion strategy, … the tribunal … intends to make use of article 11bis and establish a policy for returning persons to various countries, in particular Rwanda, in order to be tried by domestic courts. Although article 11bis provides … that the [ICTR] can only … [transfer] an accused to a State whose courts ensure a fair trial and do neither impose nor carry out the death penalty, this assurance alone … falls short of the control that a French court must have and of the type of guarantees that France should obtain, whether from the ICTR, from the State involved, or from both. [Accepting article 11bis as sufficient guarantee would mean] transferring to the ICTR the control over ensuring [respect for] fundamental rights when such control must be exercised by the French court itself. By finding that article 11bis was sufficient guarantee and not obtaining further reassurances, the investigating chamber misread the extent of its powers… and violated the abovementioned texts and principles.
… Dominique X … [argued] … that the prosecutor of the ICTR had requested the application of article 11bis, in particular the … [transfer] of several indicted persons to Rwanda’s national courts; that, considering the calendar of the ICTR and its completion strategy, he … would not be tried in time before the Tribunal closes its activities and would surely be transferred to another court, very probably in Rwanda which had already requested his extradition; [and] that numerous independent observers had expressly criticized the conditions of justice and detention in Rwanda. The investigating chamber refrained from addressing these matters and from demonstrating that Dominque X … had no serious guarantees that the transfer to the ICTR in Arusha was merely a prelude to his … [transfer] to Rwanda where he would not have access to a judicial system in accordance with his fundamental rights. [Thus, the investigating chamber] did not sufficiently justify its decision … [therefore it] lacked legal basis.
… [B]y … refraining from investigating whether the judicial system in Rwanda has the necessary qualities in order to guarantee that the detainees and accused persons have their fundamental rights respected, … the investigating chamber’s decision lacked legal grounds and violated the abovementioned texts and principles.
Upon ratification of the 1998 ICC Statute, France stated: “Pursuant to article 87, paragraph 2, of the [1998 ICC] Statute, the French Republic declares that requests for cooperation, and any documents supporting the request, addressed to it by the Court must be in the French language.”
In 2002, in reply to the recommendations on the implementation of the 1998 ICC Statute adopted by the National Consultative Commission on Human Rights Commission Nationale Consultative des Droits de l’Homme, France’s Minister of Foreign Affairs wrote:
I am glad to notice that the recommendations contained in that document correspond to the policy followed by France in relation to the International Criminal Court. This is in particular the case as regards the integrity of the statute, to which France, as well as her European partners, is very much attached. The common European position very much corresponds to your recommendation project. As far as the potential conclusion of bilateral agreements by France with third States is concerned, which would have the purpose of withdrawing nationals of these States from the competence of the Court, I confirm to you that France does not plan to conclude such agreements, which would, as you underline, have the result of attacking the integrity of the Rome Statute.
In 2008, the Minister of Foreign and European Affairs of France, addressing the issue of child soldiers, stated:
International criminal justice – the International Criminal Court or other special tribunals – has made essential progress this year through remarkable actions, especially against Germain Katanga, Charles Taylor and Colonel Mathieu Ngudjolo, among others, charging them with the use and recruitment of children under the age of 15. The [UN Security Council] Working Group [on Children and Armed Conflict] must follow up those actions by calling for the imposition of sanctions against uncooperative parties.
In 2008, the Prime Minister of France stated:
The fight against impunity constitutes an indispensable complement to the respect for IHL. Keeping international peace supposes that the core principles of IHL are guaranteed by a dissuasive and respected international justice system. The latter is also an essential component of the work for restabilizing the memory, which allows the affected population to find a way towards reconciliation. France’s cooperation with the International Criminal Court (ICC) and the ad hoc international tribunals is therefore very important. France plays also an active role in the establishment of the Special Tribunal for Lebanon and the special Senegalese court that will be in charge of trying former president Hissène Habré.
The French government gives special importance to the draft law that will constitute the second part of the adaptation of our domestic law to the statute of the ICC, after Law No. 2002-268 of 26 February 2002. This law allowed France to comply with its obligation of cooperation with the ICC even before the entry into force of the Rome Statute. The draft law aims at modifying the criminal code, the code of military justice as well as the law dated 29 July 1881 on the freedom of press by incorporating into domestic law certain crimes falling within the jurisdiction of the ICC.
In a white paper on “Defence and National Security” published in 2008, France’s Ministry of Defence stated: “France will support the efforts undertaken by the International Criminal Court and will seek to strengthen its universality and means of action.”
In 2009, the Minister of Foreign and European Affairs of France stated:
Violations of humanitarian law are ever increasing, as the current crises are unfortunately there to remind us, whether we are looking at Darfur, Somalia, Gaza, Sri Lanka or the Kivus. …
We must react! …
… [T]he more States that join forces, united by a single purpose, the more effective will be their efforts to ensure respect for the law. …
The mechanisms put in place by the [UN] Security Council are indispensable, from the simple call for respect for international humanitarian law, to the creation of international criminal tribunals and referrals to the International Criminal Court. And I am convinced that the growing credibility of these bodies plays an invaluable dissuasive role. We must develop, strengthen, enrich, [and] perpetually renew these means, because the problems we have to tackle are as constant as human nature.
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.
In 2009, the Minister of Foreign and European Affairs of France stated:
The convention signed in Rome on 17 July 1998 adopting the statute of the ICC, ratified by France on 9 June 2000, creates an obligation for all States parties to adapt their domestic legislation in order to “fully cooperate” with the Court. Law No. 2002-268 of 26 February 2002 concerning the cooperation with the Court allowed France to comply with this obligation of cooperation even before the entry into force of the Rome Statute on 1 July 2002.
In 2009, the Minister of Foreign and European Affairs of France stated:
Concerning the warrant of arrest for the Sudanese president Omar al Bashir issued by the ICC, France reaffirms its support for international criminal justice and urges Sudan to fully cooperate with the ICC for the implementation of the decisions issued by the judges, in conformity with its obligation pursuant to Security Council Resolution 1593.