Practice Relating to Rule 161. International Cooperation in Criminal Proceedings
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.