Practice Relating to Rule 151. Individual 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.”
France’s LOAC Teaching Note (2000), in a part dealing with “grave breaches of the rules of the law of armed conflict”, states: “Each violation of the law of armed conflicts … gives a right to reparation at the civil level.”
France’s LOAC Manual (2001) restates Article 1382 of the French Civil Code on civil liability and provides: “This implies that someone who has not been held criminally liable must nevertheless provide reparation for the damage caused.”
France’s Law on Cooperation with the ICTY (1995), which allows French courts to try and punish individuals found in France and being accused of having committed the violations of IHL over which the ICTY has jurisdiction, provides: “Any person claiming to have been injured by one of those offences can, by filing a complaint, bring indemnification proceedings [“partie civile
”] in the conditions set forth in Article 85 ff. of the Code of Penal Procedure.”
The same principle is set forth in the Law on Cooperation with the ICTR (1996).
In 1993, the Committee of French Jurists set up by the French Government to study the establishment of a criminal tribunal for the former Yugoslavia stated:
It does not seem reasonable to admit civil actions before the [International Criminal Tribunal for the former Yugoslavia]. That would lead to a flood of claims, which the international court would not be in a position to process effectively. It seems preferable to proceed from the principle that it will be for the national courts to rule on claims for reparation by victims or their beneficiaries.
At the Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court in 1998, the French Minister of Foreign Affairs declared: “My country has also urged close cooperation with NGOs to ensure that the statute contains precise provisions concerning victim access at all stages of proceedings … and their right to reparation.”
In 2008, the Minister of Defence of France, when talking about the liability of private military contractors for violations of international humanitarian law, stated:
The responsibility of private military companies could be engaged in the same way as any company under French law … These companies could thus be held civilly liable for acts committed on their behalf by their employees. Their dissolution could be pronounced in case of violation of the applicable law.