Practice Relating to Rule 160. Statutes of Limitation
France’s LOAC Manual (2001) states: “Article 29 of the [1998 ICC Statute] provides that crimes within the jurisdiction of the Court shall not be subject to any statute of limitations.”
France’s Penal Code (1992) provides: “The public action with regard to [genocide and “other crimes against humanity”], as well as the sentences imposed [on genocide and “other crimes against humanity”], are not subject to statutory limitations.”
In the Barbie case in 1984, France’s Court of Cassation held:
The judgment under appeal conforms with the official interpretation of the London Agreement given on 15 June 1979 by the Minister of Foreign Affairs, who was consulted on the occasion of other proceedings but whose opinion on questions relating to international public policy (ordre public international
) is of general scope and binding on the judiciary. The Court held that “the only principle with regard to the statutory limitation of prosecution of crimes against humanity which is to be considered as deducible from the Charter of the International Military Tribunal is that prosecution of such crimes is not subject to statutory limitation”. The Court of Appeal stated correctly that, within the meaning of Article 60 of the European Convention on Human Rights, “the right to benefit of statutory limitation of prosecution” cannot constitute a human right or fundamental freedom. The Court of Appeal then referred to Article 7(2) of the Convention, as well as to Article 15(2) of the [1966 International Covenant on Civil and Political Rights]. In fact, neither of these provisions give rise to any derogation or restriction on the rule that prosecution is not subject to statutory limitation. This rule is applicable to crimes against humanity by virtue of the principles of law recognized by the community of nations.
In a later judgment in the same case, the Court of Cassation held that war crimes, in contrast to crimes against humanity, were subject to the time-limits imposed by statute and stated:
Following the termination of hostilities, it is necessary that the passage of time should be allowed to blur acts of brutality which might have been committed in the course of armed conflict, even if those acts constituted violations of the laws and customs of war or were not justified by military necessity, provided that those acts were not of such a nature as to deserve the qualification of crimes against humanity. There is no principle of law with an authority superior to that of French law which would allow war crimes, either within the meaning of the London Agreement of 8 August 1945 or as defined in the Ordinance of 28 August 1944 which preceded it, to be declared not subject to statutory limitation.
In 1993, 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 1967, 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, France stated:
While the statutory limitation of crimes was a principle of domestic law, the very nature of war crimes, as defined in the [1945 IMT Charter (Nuremberg)], made it inapplicable to them; that had been recognized by France by the Act of 26 December 1964, and was a tenet which should be recognized at the international level, with retroactivity as an essential corollary, for without it the non-applicability of statutory limitation would be meaningless.
In 2009, the Minister of Foreign and European Affairs of France stated:
Concerning the non-applicability of statutory limitations to crimes falling within the jurisdiction of the ICC, this principle provided for in the Rome Statute applies to proceedings before the Court. In French law, the rule of statutory limitations is applied to public prosecution with the exception only of certain crimes which particularly shock collective conscience and are inalienable by their nature. This is the case of crimes against humanity, which cover genocide in domestic law … Without relativizing it, war crimes have a different logic. This is the reason why the government considered it was desirable to keep the non-applicability of statutory limitations as an exception so [as] to avoid trivializing the category of crimes against humanity taking into account their exceptional gravity … Nevertheless, being concerned about the need to take into consideration the specificity of war crimes, the government provided an extension of the applicable periods of limitation.