gaj france comp.tence universelle431-2final · 2011. 7. 6. · gaj fidh - october 2005 page 4 this...

FIDH - LEGAL ACTION GROUP

FranceUniversal Jurisdiction

October 2005 - n° 431/2

STATUS OF THE IMPLEMENTATIONOF THE PRINCIPLE OF UNIVERSAL JURISDICTION

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

PART ONE - ASSESSMENT OF FRENCH LEGISLATION CONCERNING THE PRINCIPLE OF UNIVERSAL JURISDICTION . . . 6

PART TWO - THE IMPLEMENTATION OF THE PRINCIPLE OF UNIVERSAL JURISDICTION IN FRANCE . . . . . . . . . . . . . . . 14

France/Universal Jurisdiction

GAJ FIDH - October 2005page 3

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

PART ONE - ASSESSMENT OF FRENCH LEGISLATION CONCERNING THE PRINCIPLE OF UNIVERSAL JURISDICTION . . . 6

Chapter I - Extent of treaty-based universal jurisdiction before French courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6A. Universal jurisdiction for crimes of torture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71. The criminalisation of torture under French law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72. The recognition of universal jurisdiction in French courts for crimes of torture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7B. Universal jurisdiction for crimes of terrorism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8C. Gaps in French law regarding the criminalisation and suppression of war crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81. The lack of specific provisions in the French Criminal Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82. Practical Consequences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Chapter II - The absence of universal jurisdiction for crimes against humanity and genocide. . . . . . . . . . . . . . . . . . . . 10A. The absence of universal jurisdiction for crimes against humanity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101. From 1945 to 1994: French courts recognise crimes against humanity committed by agents of the Axis powers during the Second World War. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102. Case law since 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10B. The absence of universal jurisdiction for genocide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Chapter III - The role of the international criminal tribunals in the recognition of universal jurisdiction in France . . . 12A. Ad hoc universal jurisdiction for crimes committed in the genocide in Rwanda and the war in the former Yugoslavia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12B. The exercise of universal jurisdiction in line with the spirit of the Statute of the International Criminal Court . . . 12

PART TWO - THE IMPLEMENTATION OF THE PRINCIPLE OF UNIVERSAL JURISDICTION IN FRANCE . . . . . . . . . . . . . . . 14

Chapter I - Obstacles to the implementation of individual criminal responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14A. The extension of the principle of immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14B. The application of foreign amnesties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Chapter II - Practical considerations concerning the exercise of universal jurisdiction before French courts: the presence requirement of the accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17A. Burden of proof of presence of the alleged perpetrator of torture on national territory. . . . . . . . . . . . . . . . . . . . . . . 17B. At what point in time must the condition of presence be fulfilled? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18C. Link between the condition of presence and the scope of the referral to the investigating judge . . . . . . . . . . . . . . 18

Chapter III - Access of victims to justice: towards the repeal of the partie civile mechanism for the most serious crimes? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21A. The importance of victims' access to justice for the implementation of the mechanism of universal jurisdiction . 211. The conclusions of the Magendie report. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212. Without victims, no universal jurisdiction!. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21B. The French draft legislation implementing the ICC Statute and the repeal of the partie civile mechanism . . . . . . 22

TABLE DES MATIÈRES



This report examines the French legislation in force

and the recent case law concerning universal jurisdiction.

Through its Legal Action Group, FIDH aims

to guarantee the rights of victims to an effective

remedy before an independent tribunal.

A first draft of this report was issued in June 2005

at the time of proceedings before the Nîmes

Cour d'assises (Criminal Court) in the case

of the Mauritanian Captain Ely Ould Dah.

This version, updated on 25 October 2005,

contains the most recent developments.



The adoption of the Statute of the International Criminal Court(ICC) by 120 states in Rome in July 1998, and its entry intoforce on 1st July 2002, fuelled hopes and revived the fightagainst impunity at the international level.

The establishment of the ICC undoubtedly represents a greatstep forward; however it will not provide victims with a guaran-teed means of obtaining justice.

It remains vital to make use of the possibilities offered by inter-national law to take action at a national level to put the princi-ples of the fight against impunity into practice, including imple-menting the mechanism of universal jurisdiction.

Universal jurisdiction differs from territorial jurisdiction becau-se there are no conditions relating to the place of the commis-sion of the offence. It is also different from active and passivepersonality jurisdiction, since its exercise does not depend onthe nationality of the offender or of the victim. It can be distin-guished from protective jurisdiction, because the interests ofthe state are not directly concerned.

The principle of universal jurisdiction allows national criminalcourts to judge certain offences committed abroad, by a forei-gner, against a foreigner, where the interests of the state arenot directly at stake.

INTRODUCTION

PART ONE - ASSESSMENT OF FRENCH LEGISLATION CONCERNING THE PRINCIPLEOF UNIVERSAL JURISDICTION

Chapter I - Extent of treaty-based universal jurisdiction before French courts

Although French law has incorporated universal jurisdiction based on treaty obligations in respect of certain offences (I), absolu-te universal jurisdiction based on customary international law has not been established. As a result, universal jurisdiction can-not generally be exercised in French courts in respect of certain jus cogens crimes, including crimes against humanity and cri-mes of genocide (II). A limited exception is provided by Law No. 95-1 of 2 January 1995 and Law No 96-432 of 22 May 1996which allow for the exercise of absolute universal jurisdiction in relation to international crimes committed in Yugoslavia andRwanda respectively, enacted in order to adapt French law to the requirements of UN Resolutions 827 (Yugoslavia) and 955(Rwanda), adopted by the United Nations Security Council to establish the two ad hoc International Criminal Tribunals (III).



Although the principle of universal jurisdiction has existed underinternational law since the sixteenth century in respect of crimesof piracy, "modern" universal jurisdiction is based on the modelestablished by The Hague Convention of 16 December 1970 forthe suppression of unlawful seizure of aircraft. This Conventioncontains a major innovation, "a novel mechanism: compulsory,albeit subsidiary, universal jurisdiction"1. It established a speci-fic regime based on the principle aut dedere aut judicare, mea-ning that states are obliged either to prosecute crimes or to extra-dite the offender to another State Party for prosecution.

A large number of conventions2 have adopted the same regimealmost word for word, which has lead to almost universal reco-gnition by states of a treaty-based principle of universal jurisdic-tion within the international criminal legal system.

Article 689 of the French Code of Criminal procedure (CCP) defi-nes the mechanism of universal jurisdiction before French courtsin the following terms:

"Perpetrators of or accomplices to offences committed outsidethe territory of the Republic may be prosecuted and tried by French

courts either when French law is applicable under the provisionsof Book I of the Criminal Code or any other statute, or when aninternational Convention gives jurisdiction to French courts todeal with the offence.3"

Article 689-1 CCP provides that persons guilty of committing anyof the offences under the international conventions listed in thesubsequent paragraphs (689-2 to 689-9 CCP), whatever theirnationality, if they are present in France, can be prosecuted andtried by French courts.

In addition to the crime of torture (A), three categories of offen-ces can be distinguished: those relating to the Physical Protectionof Nuclear Material4 ; those concerning the Protection of theCommunities' Financial Interests and the Fight against Corruptioninvolving Officials of the European Communities or Officials ofMember States of the European Union5 ; and those defined asterrorist acts (B). The failure to implement the Geneva Conventions,which are not referred to under article 689 despite the fact thatthey require the exercise of universal jurisdiction, makes it diffi-cult, if not impossible, to rely on it before French courts (C).

1. Guillaume G., Separate opinion of the president of the International Court of Justice, in the case before the ICJ, Democractic Republic of the Congov. Belgium, 14 February 2002, para 7.2. - Montreal Convention of 23 September 1971 for the Suppression of Unlawful Acts Against the Safety of Civil Aviation - New York Convention of 14 December 1973 on the Prevention and Punishment of Crimes against Internationally Protected Persons, includingDiplomatic Agents- New York Convention of 17 December 1979 against the Taking of Hostages- Vienna Convention of 3 March 1980 on the Physical Protection of Nuclear Material- New York Convention of 10 December 1984 against Torture and Other Cruel, Inhuman or Degrading Treatment- Montreal Protocol of 24 February 1988 for the Suppression of Unlawful Acts of Violence at Airports- Rome Convention of 10 March 1988 on the Suppression of Unlawful Acts against the Safety of Maritime Navigation- Vienna Convention of 20 December 1988 against Illicit Traffic in Narcotic Drugs and Psychotropic Substances- New York Convention of 15 December 1997 for the Suppression of Terrorist Bombings- New York Convention of 9 December 1999 for the Suppression of the Financing of Terrorism.3. All translations of the French Criminal Code and Code of Criminal Procedure are taken from the official site of the French government, Legifrance,available at http://www.legifrance.gouv.fr/htmal/codes_traduits/liste.htm4. France ratified the Convention of 1987 on the Physical Protection of Nuclear Material on 6 September 1991. Article 8 § 2 provides for the exerciseof universal jurisdiction in respect of offences defined in article 7 of the Convention. Article 689-4 CCP transposes the provisions of the Convention.5. Convention against Corruption of 26 May 1997 and the Protocol of 27 September 1996 on the protection of the European Communities' financialinterests aim to define the offences of active and passive corruption committed by EC or national civil servants. Article 689-8 CCP implements the pro-visions of these conventions.



A. Universal jurisdiction for crimes of torture

Torture is universally condemned by states and, as a result ofthe legal provisions established since 1945, is absolutely pro-hibited without exception.6 In 1998 in the case of Furundzija,the Trial Chamber of the International Criminal Tribunal for theFormer Yugoslavia (ICTY) confirmed the universal nature of theprohibition of torture, from which no derogation is permitted,and that those who engage in torture are personally accounta-ble whatever their official position.7

The provisions of the Convention against Torture and Other Cruel,Inhuman or Degrading Treatment adopted by the GeneralAssembly on 10 December 198 which entered into force on 26June 19878, require states firstly to adopt legislation criminali-sing torture (1), and secondly to provide for the exercise of uni-versal jurisdiction to prosecute perpetrators of torture (2).

1. The criminalisation of torture under French law

Torture is defined under Article 1 of the Convention againstTorture9.

France ratified the Convention against Torture on 18 February1986. According to Article 4 of the convention, States Partieshave a duty to ensure that all acts of torture are criminal offen-ces under national law. The same applies to attempts to com-mit torture and to acts by any person which constitute compli-city or participation in torture. States Parties are obliged to makethese offences punishable by appropriate penalties, which reflecttheir grave nature.

French law conforms to these provisions: under article 222-1CCP, the subjection of a person to torture or to acts of barbarityis an offence punishable by fifteen years' imprisonment.

2. The recognition of universal jurisdiction in French courts forcrimes of torture

Article 5, paragraph 2 of the Convention against Torture provi-des for the exercise of universal jurisdiction: States Parties areobliged to prosecute crimes of torture even when the crime hasno direct link to the state. The only requirement in such a case

is the presence of the alleged offender on the territory of theState Party.

Thus, a State Party on whose territory an alleged perpetrator oftorture is present has a choice referred as aut dedere aut judi-care: the state party can either extradite the suspect to anotherState which has made a request for his or her extradition, or itcan bring the case before its own national courts.

After the ratification by France of the Convention against Torture,and in accordance with the obligations it imposes, national legis-lation was enacted in order to implement the principle of uni-versal jurisdiction in respect of the crime of torture in Frenchcourts. The combined provisions of Articles 689-1 and 689-2CCP provide that "a person guilty of committing [torture as defi-ned in article 1 of the Convention against Torture] outside theterritory of the Republic and who happens to be in France maybe prosecuted and tried by French courts."

The principle of universal jurisdiction in respect of crimes of tor-ture was recognised in France in the case of Ely Ould Dah, firston appeal and more recently by the Supreme Court (Cour de cas-sation). Captain Ely Ould Dah, a Mauritanian national accusedby victims in France, was arrested for crimes of torture and actsof barbarity on the basis of Article 689-2 CCP. On 25 May 2001,the investigating judge decided to remit the case to the Courd'assises, recognizing the principle of universal jurisdiction: "arti-cle 682-2 introduced into the Code of Criminal Procedure by theLaw of 30 December 1985 implemented the principle of uni-versal jurisdiction into French law by authorising the investiga-tion and prosecution in France of all persons who are presentin French territory who are suspected of committing acts abroadwhich constitute crimes of torture under the Convention". Thedecision further states: "It is therefore the duty of France, as aState Party to the New York Convention, to prosecute acts whichare not subject to amnesty or statutes of limitation in Francewhich fall within the field of application of the Convention, wha-tever the situation in Mauritania regarding the existing outstan-ding indictments and statutes of limitation and amnesties."10

The Supreme Court confirmed this position in a judgement of23 October 2002 remitting the case to the Cour d'assises inNimes for Ely Ould Dah to be judged in absentia.

6. For example, UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of 1984 (hereafter "Convention against Torture"), arti-cle 5 of the Universal Declaration of Human Rights of 1948, article 7 of the International Covenant on Civil and Political Rights of 1966, article 3 of theConvention for the Protection of Human Rights and Fundamental Freedoms of 1950, article 5 of the American Convention of Human Rights of 1969, arti-cle 5 of the African Charter on Human and Peoples' Rights, adopted by the member States of the Organization of African Unity in 1981.7. Prosecutor v. Furundzija, Judgment, Case No. IT-95-17/1-T, para. 140.8. General Assembly Resolution 39/46 of 10 December 19849. The term "torture" means "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purpo-ses as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected ofhaving committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or sufferingis inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does notinclude pain or suffering arising only from, inherent in or incidental to lawful sanctions".10. Unofficial translation

On 1 July 2005, the Cour d'assises in Nîmes took a historic deci-sion, sentencing the Mauritania Captain Ely Ould Dah to ten yearsin prison, for torturing Black-African members of the military in1990 and 1991. FIDH and its affiliated organizations inMauritania, AMDH, and in France, LDH, emphasized that althoughEly Ould Dah was tried in absentia, he was legally represented.

The Court convicted him on all charges of acts of torture com-mitted directly, ordered or organized at the "Jreïda death camp".

Ousmane Dia, one of the five complainants, on hearing the judg-ment said, "I am thinking of all the dead, all my friends who weretortured to death at Jreïda. I have waited for this day for 14 years.Today is the beginning of a new life". This case, the first time uni-versal jurisdiction for crime of torture has been applied in France,represents a significant step forward in the fight against impu-nity.

B. Universal jurisdiction for crimes of terrorism

No international treaty currently in force provides for a definitionof terrorism. However, several international and regional conven-tions identify certain acts of terrorism and oblige State Parties toincorporate the corresponding crimes into their national law. Thus,Article 6 (1) of the European Convention for the Suppression ofTerrorism of 197711, ratified by France in 1997 and Article 6 (4)of the International Convention for the Suppression of TerroristBombings12, ratified in 1999, provide for a mechanism of uni-versal jurisdiction, transposed into Articles 689-3 and 689-9 CCP.

Furthermore, the Convention on the Suppression of UnlawfulActs against the Safety of Maritime Navigation provides for amechanism of universal jurisdiction in Article 6 (4). Article 689-5 CCP implements this provision into French law.

Finally, Articles 689-6 and 689-7 CCP establish a mechanism ofuniversal jurisdiction to investigate and prosecute perpetratorsof acts against the safety of civil aviation, according to article 4(2) of the Convention for the Suppression of Unlawful Seizure ofAircraft of 197013 and Article 5 (2) of the Convention for theSuppression of Unlawful Acts Against the Safety of Civil Aviationof 1971.

As far as FIDH is aware, there is no case law of significance onthe practical application of these provisions.

C. Gaps in French law regarding the criminali-sation and suppression of war crimes

Grave breaches of the Geneva Conventions of 1949 are sub-ject to universal jurisdiction. The principle is provided for in thefour Geneva Conventions: at Article 49 of Convention I; Article50 of Convention II; Article129 of Convention III; Article 146 ofConvention IV. France ratified the Geneva Convention of 1949on 28 June 1951 and their additional Protocols I and II on 11April 2001 and 24 February 1984 respectively. As a result,France has an obligation to apply these provisions.

1. The lack of specific provisions in the French Criminal Code

Currently, under French law, war crimes are crimes like anyothers. There are no specific provisions defining war crimes,either in the Criminal Code or in the Code of Military Justice.Thus, war crimes can only be prosecuted under the ordinaryprovisions of the Criminal Code, for example as murder, torture,rape or attacks on physical integrity.

Other offences are defined in the Code of Military Justice, nota-bly in Articles 427, 428, 429, 463 and 464. It has been arguedthat these provisions could provide the basis for the generalprosecution of French military personnel engaged in armedconflict who are guilty of grave breaches under international lawsince, according to the provisions of Article 465 of the Code ofMilitary Justice, in time of war "all military personnel who vio-late a general order given to the troop are subject to a maxi-mum sentence of five years imprisonment" .14 The maximumperiod of imprisonment specified in this article demonstratesclearly that it was not intended to provide a basis for the crimi-nalization of war crimes.

Finally, the Regulation on General Discipline in the Army(Règlement de discipline générale dans les armées), introdu-ced by the Decree of 1 October 196615, substituted by theDecree of 28 July 197516, provides that during combat militarypersonnel must respect "the rules of international law applica-ble to armed conflict and to international conventions duly rati-fied or approved" (Articles 7 to 9 bis), but the legal scope of thisRegulation is restricted since it is only a disciplinary provision.



11. European Convention on the Suppression of Terrorism, opened for signature, in Strasbourg, on 27 January 1977, entered into force on 4 April 1978,European Council (ETS No. 90).12. The Convention was adopted by Resolution A-RES-52-164 of the UN General Assembly of 15 December 1997, Doc. A-52-653.13. The Hague Convention for the suppression of unlawful seizure of aircraft signed of 16 December 1970, entered into force on 14 October 1971,RTNU 113,1973.14. J. FRANCILLON, "Crimes de guerre, crimes contre l'humanite", Juris-Classeur, Droit International, fasc. 410 (1993). All references to the Code ofMilitary Justice are unoffical translations.15. Official Journal of the French Republic, 8 October 1966, p. 8853.16. Official Journal of the French Republic, 30 July 1975, p. 7732.



2. Practical Consequences

According to article 55 of the French Constitution of 1958, whichconfirms the superiority of treaties duly ratified and approved overnational law, international conventions should be applied in Frenchlaw. However, in the case of the Geneva Conventions and gravebreaches this position has never been accepted by French courts.

On 20 July 1993, Javor, Kusuran, Softic and Mujdzic, Bosnian natio-nals, brought a complaint with an application to join proceedingsas a civil party (partie civile) for torture, war crimes, crimes againsthumanity and genocide. The complainants escaped from Serbdetention camps. The Tribunal of First Instance (Tribunal de GrandeInstance) in Paris, on 6 May 1994, ruled that it had partial juris-diction and accepted the victim's application to participate as "par-tie civile". Reversing this decision, the Court of appeal (Chambred'accusation) of Paris based its ruling on two reasons: firstly, theCourt considered that the Convention against Torture of 1984 wasnot applicable, since the partie civile had failed to provide sufficientevidence of the presence of the alleged perpetrators in France.Secondly, the Court found that the Geneva Conventions were notdirectly applicable in national law and that no implementing legis-lation had been introduced. The Supreme Court reexamined thislast argument, after the legislation implementing the Statute of theICTY had been introduced.

The interpretation of the Court of Appeal of the application of theprinciple of universal jurisdiction in accordance with the GenevaConventions, continues to apply and prevents all application of theGeneva Conventions by the French courts.

This is particularly concerning since at the time of ratifying theStatute of the ICC, France issued a declaration under Article 124of the Statute refusing the jurisdiction of the ICC for war crimes fora period of seven year from 1 July 2002.

President Jacques Chirac expressed his views clearly in a letterdated 15 February 1999, addressed to the French Coalition for anInternational Criminal Court (Coalition française pour la CPI ):

"In response to your question concerning Article 124, Iconfirm that France will refuse for a temporary period juris-diction of the Court for war crimes. The definition of war cri-mes under the Statute is different from crimes against huma-nity or genocide in the sense that it can encompass isola-ted acts. Complaints without merit, tainted by ulterior poli-tical motives could more easily target personnel of coun-tries like our own that are involved in several external ope-rations - particularly within the context of peacekeeping ope-rations. Experience will allow the effectiveness of the gua-rantees integrated into the Rome Statute to guard againstsuch abuse to be tested."17

The ICC, applying the principle of complementarity, will not be ableto fill the gap left by French legislation and potential war crimestried in France will not be punished as such.

17. Unoffical translation



Chapter II - The absence of universal jurisdiction for crimes against humanity andgenocide

A. The absence of universal jurisdiction forcrimes against humanity

Crimes against humanity were first defined in article 6 of theCharter of the International Military Tribunal, annexed to theLondon Agreement of 8 August 1945, as "murder, extermination,enslavement, deportation, and other inhumane acts committedagainst any civilian population, before or during the war, orpersecutions on political, racial or religious grounds in executionof or in connection with any crime within the jurisdiction of theTribunal, whether or not in violation of the domestic law of thecountry where perpetrated."

1. From 1945 to 1994: French courts recognise crimesagainst humanity committed by agents of the Axis powersduring the Second World War

This provision was also applied outside the NurembergTribunal, mainly in Germany but also in other countries, toprosecute perpetrators who were not within its jurisdiction.

In France, at the time of the Barbie, Touvier and Papon cases,the Criminal Chamber of the Supreme Court (Chambrecriminelle de la Cour de cassation) clarified the conditions forits application. In the Touvier case18, the Court stated that,"crimes against humanity are crimes under ordinary law,committed in certain circumstances and on certain grounds,specified in the provisions which define them."19 Thesegrounds are "political, racial or religious". Crimes can becommitted "individually or as members of an organization" bypersons acting "on behalf of the European Axis countries."

After the adoption of the 1964 law, which provides thatstatutes of limitations are inapplicable to crimes againsthumanity, the Supreme Court (Cour de Cassation) confirmedthis position in its judgment in the Barbie case of 29 January1984. On 1 April 1993 in the case of Boudarel20 the SupremeCourt (Cour de Cassation) considerably reduced the scope ofapplication of this offence by limiting prosecution to atrocitiescommitted by those bearing greatest responsibility within theAxis powers, and by ruling that complaints in relation to actscommitted "after the Second World War cannot be defined ascrimes against humanity".

However, by omitting all references to the London Agreement,article 212-1 of the new French Criminal Code 1994penalising crimes against humanity, introduces a broaderdefinition: "Deportation, reduction to slavery or the massiveand systematic practice of summary executions, of abductionof persons followed by their disappearance, of torture orinhuman acts, inspired by political, philosophical, racial orreligious motives, and organized in pursuit of a concerted planagainst a group of a civil population are punished by criminalimprisonment for life."

The new Criminal Code therefore finally recognises aninternational legal norm which is included in the generalprinciples of law recognised by all nations.

In the Barbie case21, the Indictment Division of the Court ofAppeal stated:

"in view of their nature, the crimes against humanity of whichKlaus Barbie, a German national, is accused in France wherethey were allegedly committed, are not derived solely fromFrench criminal law but also from an international criminalsystem in which the notion of borders and the correspon-ding rules of extradition are completely foreign… war cri-mes, crimes against peace and crimes against humanityand the principles they set out, those of the punishment ofthe guilty and universal cooperation to reach that goal,depend neither on consideration of circumstances norappropriateness."

2. Case law since 1994

The new legislative provision only confirmed the existence ofthe customary international notion of crimes againsthumanity. Indeed, France, which supported the creation of thead hoc International Tribunals to judge crimes againsthumanity committed in the former Yugoslavia and in Rwanda,and ratified the Statute of the ICC, has always referred to thecustomary notion of crimes against humanity. Unfortunately,this position was not adopted by the French Courts.

Thus, in the case of French General Aussaresses22, theSupreme Court, rejecting the charge of crimes againsthumanity, emphasized that at the times of the events, the acts

18. Criminal Chamber of the Supreme Court, 6 February 1975, Bull. crim. n°42.19. Unofficial translation20. Boudarel Sobanski et Association nationale des anciens prisonniers internes d'Indochine c. Georges Boudarel, Bull. crim. n° 143, Gaz. Pal. 24June 1993, p. 14, Dr. penal 1994.38, obs J-H. Robert.21. Court of Appeal of Lyons, Indictment Division, 8 July 1983 and Criminal Chamber of the Supreme Court, 6 October 1983, JDI, 1983, p. 782 and785, note EDELMAN.22. FIDH lodged a complaint with an application to join proceedings as partie civile on 29 May 2001, for crimes against humanity, against GeneralAussaresse, former co-ordinator (in 1957) of the Information Services in Alger under General Massu, and all other persons identified in the inquiry. Thecomplaint was based on the revelations made by General Aussaresses in his book Services spéciaux Algérie 1955-1957, published on 3 May 2001, inwhich he describes acts of torture and summary executions committed in this period in Algeria, which he claims were justified.



committed by General Aussaresses could not be classified ascrimes against humanity in view of the absence of anyprovision in the French Criminal Code. Furthermore, the Courtconfirmed the ruling of the investigating judge stating thatinternational custom cannot make up for the absence ofcriminal legislation defining crimes against humanity, inrespect of the facts of the complaint made by the partie civile.

With this case, the Supreme Court missed the opportunity tofill the legal gap, which still exists for crimes against humanitycommitted between 1945 and 1994.

The first step towards the reversal of this position was taken inthe complaint with partie civile of 26 October 1998, made bythe beneficiaries of Enrique Ropert, executed in September1973 by agents of the Chilean State, during the period ofterror formulated and orchestrated by General AugustoPinochet.

The Chambre d'Instruction (Indictment Division) of the Courtof Appeal in Paris delivered a judgement reversing the rulingof 22 March 2000 which dismissed the case for lack ofevidence, and remitting the case to another investigatingjudge of the Tribunal de Grande Instance in Paris to pursuethe investigation. The court considered that since the caseconcerned the definition of crimes against humanity, thejudge was "obliged to investigate in order to determine if thefacts complained of could constitute such an offence and toexamine whether they were punishable under treatyprovisions and on several other legal bases raised by thepartie civile."23

In February 2004, during an official visit to Chile, the FrenchMinister of Foreign Affairs stated that Pinochet could soon betried in France.24

B. The absence of universal jurisdiction forgenocide

Although France ratified the Convention on Prevention andPunishment of the Crime of Genocide of 1948, in October1950, it was only with the new Criminal Code of 1994 that thespecific definition of the crime of genocide was introduced intoFrench law.25

The ruling in the case of Javor of 6 May 1994, referred to Article6 of the Convention on Prevention and Punishment of theCrime of Genocide which provides that : "Persons charged withgenocide (…) shall be tried by a competent tribunal of the Statein the territory of which the act was committed (…)." The Courtconsidered that, "as a result, French Courts cannot havejurisdiction in respect of the facts complained of in the instantcase since they were committed outside French territory."26

The ruling confirmed the inexistence at the time in French lawof universal jurisdiction over crimes of genocide, the crimehaving been committed by Serb nationals on the territory of theformer Yugoslavia. This decision was confirmed by the Court ofAppeal in Paris on 24 November 1994, which stated that, "theConvention on Prevention and Punishment of the Crime ofGenocide does not contain any rule of universal jurisdiction."27

Similarly, in March 1996 in the case of the Rwandan priestWenceslas Munyeshyaka, a refugee in France investigated forgenocide, torture, and inhuman and degrading treatment, theIndictment Division of the Court of Appeal in Nimes found thatit did not have jurisdiction to try offences committed abroad bya foreigner against foreigners since the Code of CriminalProcedure did not at the time provide for the jurisdiction ofFrench courts in such a case. However, on 6 January 1998, theCour de Cassation ordered the reinstatement of theproceedings in France against Wenceslas Munyeshyaka, firstopened in 1995, stating that the Indictment Division erred inonly considering the definition of genocide, when the actscommitted could have been considered as crimes of torture,over which Article 689-2 CCP provides for universal jurisdiction.

23. Unofficial translation24. Source BBC "French Foreign Minister Dominique de Villepin has said France is considering trying Chile's former military ruler, Augusto Pinochet inhis absence" in France 'considers Pinochet trial" http:// news.bbc.co.uk/2/hi/Americas/3453399.stm25. Article 211-1 of the new Criminal Code gives a definition of the crime of genocide: Genocide occurs where, in the enforcement of a concerted planaimed at the partial or total destruction of a national, ethnic, racial or religious group, or of a group determined by any other arbitrary criterion, one ofthe following actions are committed or caused to be committed against members of that group: willful attack on life; serious attack on psychic or phy-sical integrity; subjection to living conditions likely to entail the partial or total destruction of that group; measures aimed at preventing births; enfor-ced child transfers.26. Unofficial translation27. Unofficial translation



Chapter III - The role of the international criminal tribunals in the recognition ofuniversal jurisdiction in FranceA. Ad hoc universal jurisdiction for crimescommitted in the genocide in Rwanda and thewar in the former Yugoslavia

France is the only European country to have enactedimplementing legislation permitting the exercise of absoluteuniversal jurisdiction in the limited context of the internationalcriminal tribunals.

France adopted two laws in this respect: : on 2 January 1995, toimplement the provisions of the Statute of the ICTY; and on 22May 1996, implementing the provisions of the ICTR. These lawsestablished the exercise of universal jurisdiction by Frenchcourts over war crimes, crimes against humanity and genocidein the following three cases:- Crimes committed since 1991 in the former Yugoslavia;- Crimes committed during 1994 in Rwanda;- Crimes committed during 1994 by Rwandan citizens inneighbouring states.

Although the exercise of this jurisdiction is limited rationaetemporis28 and rationae loci29, it is nevertheless considered tobe absolute universal jurisdiction, since its exercise is not linkedto any of the traditional criteria30.

The implementation of the statutes for the ICTY and ICTR intoFrench law had immediate consequences, as in the case of Javor,cited above. Similarly, in the case of Munyeshyaka on 6 January1998, the Chambre d'accusation (Indictment Division) of the Courd'appel in Paris went back on its initial position, concluding thatFrench courts were competent to investigate the full range of factsof the allegations against Wenceslas Munyeshyaka, whetherconstituting the crime of torture or the crime of genocide. Sincethis reversal other investigations have been opened into allegedperpetrators of the Rwandan genocide.

B. The exercise of universal jurisdiction in linewith the spirit of the Statute of theInternational Criminal Court

On 17 July 1998 in Rome, the statute of the first permanent anduniversal international criminal court was adopted (RomeStatute) 120 States voted in its favour. The Court is entrustedwith the task of judging alleged perpetrators of the most seriouscrimes: genocide, crimes against humanity and war crimes.

Apart from their obligation to cooperate with the court, StatesParties to the Rome Statute theoretically remain free to adoptrules of incrimination, suppression and jurisdiction of theirchoice. In other words, States Parties are free not to introducenew provisions or only partially to do so31. However, a failure tointroduce new measures will be hard to reconcile with theprinciple of complementarity. It would mean that the competenceof the Court would be complementary to nothing. This is howeverwhat happens each time that the facts criminalized by the RomeStatute are not criminalized in national law. The absence ofimplementing legislation is incompatible with the duty of eachState to fight against impunity in the context of internationalcrimes, as defined in the preamble to the Rome Statute.

Thus, despite the lack of a strict obligation, the logic of thesystem put in place by the Rome Statute should encourageStates Parties not only to introduce provisions in nationallegislation inspired by those of the statute, but also to substitutefor national provisions those that are contained in the RomeStatute. Implementing legislation must cover all the rules of theRome Statute which form part of the body of rules onincrimination, in particular concerning their territorial andtemporal application, non-applicability of statute of limitations,responsibility etc.

According to the law professor Géraud de la Pradelle, "such adisparity is senseless: a system which recognizes universaljurisdiction for act of torture, but not for genocide; which permitsthe exercise of universal jurisdiction for crimes committed in ex-Yugoslavia and in Rwanda during a certain period of time, butnot elsewhere or at other times, is an incoherent system.Coherence requires France to establish universal jurisdiction forall crimes defined from article 5 of the Rome Statute."32

28. For Yugoslavia: since 1 January 1991 until a date to be determined by the Security Council according to Resolution 827. For Rwanda: for crimes com-mitted between 1 January 1994 and 31 December 1994.29. For Yugoslavia: the territory of the former Yugoslavia. For Rwanda: the territory of Rwanda and, in respect of Rwandan citizens, on the territory of neigh-bouring states.30. The nationality of the offender and the nationality of the victims are not relevant. Regarding the place of commission of the offence, it will always beoutside French territory.31. In order to launch a public debate on the issues arising from the French legislation implementing the Rome Statute, FIDH established a working groupin May 2001. The group is composed of academics, lawyers, judges and researchers. It produced a report setting out the position taken by FIDH entitled'La loi française d'adaptation: enjeux et tabous'.32. Unofficial translation

Four main issues, arising more from observation of legal practice in relation to the principle of universal jurisdiction than fromtheoretical arguments, require analysis. Obstacles to the implementation of individual criminal responsibility include not onlyamnesties and immunities (I), but also the condition of presence of the alleged perpetrator, the impact of which has so far beenunderestimated (II). The study of national practice in relation to the implementation of extraterritorial jurisdiction demonstrates thatdirect access to justice for victims of international crimes is increasingly under threat, including in France (III).



PART TWO - THE IMPLEMENTATION OF THE PRINCIPLE OF UNIVERSAL JURISDIC-TION IN FRANCE

Chapter I - Obstacles to the implementation of individual criminal responsibility

A. The extension of the principle of immunity

Different problems concerning immunities arise before inter-national courts where logically the question should not arise,and before national courts where the problem arises as a mat-ter of law and of fact, at least in respect of government officialsin office and diplomats. It has been argued that a governmentofficial who is in office, whatever accusations can be madeagainst him or her, should not be prosecuted by the justice sys-tem of another state. The argument that the maintenance ofpeace should come at the price of impunity is an aberration.The argument that the maintenance of peace should come atthe price of impunity is an abberation. Is it not the case that, onthe contrary, permitting torturers and murderers to remain inpower threatens peace and international security?

In respect of ministers, the International Court of Justice (ICJ)in the case of Yerodia recognised on the basis of dubious argu-ments the immunity of the Minister of Foreign Affairs (of theDRC) for the duration of his period in office. However, in theCourt’s judgment this was only because of the inherent inter-national nature of his duties, which would not apply to otherministers.

Furthermore in the case of Republic of Congo v. France, whichwas referred to the International Court of Justice by the Republicof the Congo, with a request to order the suspension of the inves-tigation before the Tribunal de Grande Instance in Meaux, theFrench Conseil d'Etat, relying mainly on the argument that theactivities of an interior minister are completely different fromthose of a minister of foreign affairs, emphasised that an inter-ior minister, like an inspector general of the armies and theCommander of the Presidential Guard, do not benefit from inter-national immunity by reason of their functions.33

The same reasoning applies, with even greater force, in the caseof a simple foreign 'personality' on a private visit to France, such

as Mr Ndengue, chief of police in the Congo. However, in theChambre d'Instruction of the Cour d'Appel in Paris, the prose-cution supported the position that the proceedings against MrNdengue were null as he was carrying out an official missionand therefore benefited from diplomatic immunity.

In his closing speech, the Prosecutor based his arguments onarticle 21, paragraph 2 of the New York Convention of 8December 1969 on Special Missions, whilst recognising thatneither France nor the Republic of Congo are parties to thisconvention. It is for this reason that the prosecution, ackno-wledging that legal obstacle, relied on international customarylaw, arguing that it incorporated the principles laid out in theNew York Convention.

The parties civiles, including FIDH, argued that even if the prin-ciples of the New York Convention formed part of customaryinternational law, these provisions would not entitle Mr Ndengueto diplomatic immunity, since the condition of participation ina special mission had not been fulfilled. A foreigner, in this casefrom the Congo, present on French territory can only benefitfrom personal inviolability (article 29 of the Convention) andimmunity from jurisdiction (article 31) if it is proven that he ispresent in France for the purpose of a special mission and notfor a private visit.

The most convincing evidence of the inexistence of a specialmission and of the absence of any prior consultation betweenFrance and Congo regarding Mr Ndengue's arrival in France iscontained in the statements provided by the Minister of ForeignAffairs. Having admitted that the protocol service had not beeninformed of the arrival or the presence of Mr Ndengue in France,the Minister of Foreign Affairs, remaining cautious, simply refer-red in writing to the information obtained from the Embassy ofthe Republic of the Congo in France, indicating that Mr Ndengue'svisit to France was for the purpose of an "official mission".

33. Argument raised by A. Pellet, Professor at the University of Paris, Paris X - Nanterre, member and former President of the International Law Commissionin a public lecture of 28 April 2003.



In the same vein, a note from the protocol service written in theevening of 1 April merely repeats that, "the Minister of ForeignAffairs confirms that the Ambassador of Congo in France hascertified that Mr Ndengue is on an official mission in France asof 19 March 2004."34

The Cour de cassation has been called upon to pronounce onthe question of proof of an official mission, and has held thata person whose name did not appear on the diplomatic list ofthe Minister of Foreign Affairs and who claims to have receivedan order to go on a mission but which did not specify a preciseinternational mission, cannot invoke diplomatic immunity.34

Unfortunately it seems that in this case, referred to as "the dis-appeared of the Beach", the diplomatic relations between Franceand the Republic of Congo have been favoured, in a mannerinconsistent with the recent advances in international law andthe right of victims to justice.

B. The application of foreign amnesties

In respect of the most serious human rights violations the issueof impunity arises, from which perpetrators can benefit as a resultof national amnesty laws, which have the effect of depriving vic-tims of an effective remedy against their perpetrators.

The UN Human Rights Committee has emphasised on numerousoccasions the incompatibility of amnesty laws with the provisionsof the International Covenant on Civil and Political Rights. Thus,according to its General Comment on the prohibition of tortureand cruel, inhuman and degrading treatment:

"The Committee has noted that some States have grantedamnesty in respect of acts of torture. Amnesties are gene-rally incompatible with the duty of States to investigate suchacts; to guarantee freedom from such acts within their juris-diction; and to ensure that they do not occur in the future.States may not deprive individuals of the right to an effec-tive remedy, including compensation and such full rehabili-tation as may be possible."36

In accordance with this statement, the final declaration of theWorld Conference on Human Rights, held in Vienna in June1993, states:

"States should abrogate legislation leading to impunity forthose responsible for grave violations of human rightssuch as torture and prosecute such violations, thereby pro-viding a firm basis for the rule of law."

These general declarations of principle are supported by inter-national jurisprudence, such as that of the Inter-AmericanCommission on Human Rights, followed on this point by theInter-American Court, which has affirmed on several occa-sions that amnesty laws which deny access to justice in casesof serious violations of human rights contradict the obligationof States Parties to respect the rights and freedoms recogni-zed in the Convention and to guarantee their full and free exer-cise to all persons subject to their jurisdiction, in accordancewith article 1 (1) and 2 of the Inter-American Convention onHuman Rights.37

The case of Furundzija of the ICTY is the most significantexample on this issue:

"The fact that torture is prohibited by a peremptory norm ofinternational law has other effects at the inter- state andindividual levels. At the inter-state level, it serves to interna-tionally de-legitimize any legislative, administrative or judi-cial act authorizing torture. It would be senseless to argue,on the one hand, that on account of the jus cogens valueof the prohibition against torture, treaties or customaryrules providing for torture would be null and void ab initioand then be unmindful of a State say, taking national mea-sures authorizing or condoning torture or absolving its per-petrators through an amnesty law. If such a situation wereto arise, the national measures, violating the general prin-ciple and any relevant treaty provision, would produce thelegal effects discussed above and in addition would not beaccorded international legal recognition. Proceedingscould be initiated by potential victims if they had locus stan-di before a competent international or national judicialbody with a view to asking it to hold the national measureto be internationally unlawful; or the victim could bring acivil suit for damage in a foreign court, which would there-fore be asked inter alia to disregard the legal value of thenational authorizing act. What is even more important isthat perpetrators of torture acting upon or benefiting fromthose national measures may nevertheless be held crimi-nally responsible for torture, whether in a foreign State, orin their own State under a subsequent regime. In short, inspite of possible national authorization by legislative or judi-cial bodies to violate the principle banning torture, indivi-duals remain bound to comply with that principle. As theInternational Military Tribunal at Nuremberg put it: "indivi-duals have international duties which transcend the natio-nal obligations of obedience imposed by the individualState".38

34. Unofficial translation35. Cass. 1re civ., 4 January 1990: Bull. Civ. I, No. 5.36. General Comment, 10 April 1992, UN Human Rights Committee.37. See in particular: Velasquez Rodriguez, Inter American Court of Human Rights, 29 July 1988, para. 162; and Report No. 61/01, Samuel AlfonsoCatalan Lincoleo, Inter American Commission of Human Rights, 16 April 2001, para. 48.38. ICTY, Prosecutor v. Furundzija, judgment of 10 December 1998, IT-95-17/1, para. 155.

Finally, national case law39 from Argentina to France (as in thecase of Ely Ould Dah), affirms that the application of amnestylaws results in depriving victims of their right to justice andthat states which recognise the application of such laws viola-te their international obligations, under international humanrights treaties and international customary law.

In its judgement of 23 October 2002, the French Cour de cas-sation considered that the application of the Mauritanianamnesty law by French courts would result in depriving theprinciple of universal jurisdiction of all useful effect. The Courtconcluded that: "with regard to the principle of the applicationof national law, only an amnesty granted by the French autho-rities could be taken into consideration, otherwise the princi-ple of universal jurisdiction would be deprived of any effect."40

Therefore, amnesties that have the object of "erasing" themost serious crimes, are incompatible with internationalhuman rights law in that they deprive victims of the right to aneffective remedy and place states which enact them in viola-tion of their international obligations. It is thus natural thatnational courts refuse to apply foreign amnesty laws in orderto guarantee the effectiveness of the principle of universaljurisdiction.



39. In particular the decision of the Argentine criminal court, Federal no. 4, 86 86/22000, 6 March 2001, in which the judge declared two amnestylaws (No. 23.492 of 12 December 1986, referred to as the "Full Stop Law", and No. 23.521 of 4 June 1987 referred to as the "Law of Due Obedience")to be null and void since they violated Argentina's obligations under international law, and were in particular incompatible with the right of victims toan effective remedy. 40. Unofficial translation



French law systematically subjects the exercise of universaljurisdiction to the presence requirement of the accused onnational territory, regardless of which treaty is being applied.

A. Burden of proof of presence of the allegedperpetrator of torture on national territory

If the condition of presence required by French law to exerciseuniversal jurisdiction cannot be challenged, it is not so inrespect of the condition imposed by the courts on victims toprovide absolute proof of the presence of the accused onFrench territory.

In fact, it seems inconceivable to require victims to becomesubstitutes for the criminal investigation authorities, or to beco-me private detectives in order to establish the address andtelephone number of the suspect, not to mention the obviousrisks they would run.

Although proceedings can be initiated by both the public pro-secutor's office and victims bringing complaints as partie civi-le, the subsequent conduct of the public proceedings is entire-ly the responsibility of the public prosecutor's office and thecompetent legal authorities.

It is not up to victims, whether parties civiles or not, to demons-trate the presence on national territory of those accused of thecrimes that they have suffered.

However, on 26 March 1996, the Cour de cassation rejected anappeal on the basis that "the presence in France of the victimsof such crimes is in itself insufficient to justify setting publicproceedings in motion where, as in the instant case, the alle-ged perpetrators and their accomplices have not been foundon French territory"41, as required by article 2 of the Frenchimplementing legislation of the Statute of the ICTY. Neither thespirit nor the letter of the Convention of 10 December 1984(Convention against Torture) impose such an obligation on vic-tims or their representatives to put in place methods of sur-veillance and detection to inform them of the movements oftheir torturers.

A study of the travaux preparatoires of the Convention revealsthat the drafters did not make absolute proof of the presenceof an alleged torturer on the territory of the state concerned aprecondition for the initiation of an investigation, and merelyrequired that the state has information relating to the presen-ce of the suspect on its territory.

The problem posed by the condition of presence lies in itsimplementation by the authorities in charge of the investiga-tion. Although they refer specifically to the InternationalCriminal Tribunals (ICTR and ICTY), two circulars from theMinistry of Justice are of interest in that they indicate that,even where the alleged perpetrator of the crime is absent fromthe territory, prosecutors can proceed with the interviewing ofvictims.

Thus, the circular of 22 July 1996, concerning the applicationof the law of 22 May 1996, which implemented the SecurityCouncil resolution establishing the ICTR into French law, statesthat:

"French courts have been given competence to hear cases thefacts of which fall within the competence of the InternationalCriminal Tribunal for Rwanda, where the perpetrator is presenton French territory. However, as indicated in the circular of 10February 1995, the limited nature of this competence does notprevent prosecutors, in the course of a preliminary investiga-tion, from proceeding with interviewing the victims of these cri-mes who have sought refuge in France. Thus, the prosecutorswith competence in the areas in which the victims resideshould respond to their request and proceed to take their sta-tements." (emphasis added)42.

The circular of 10 February 1995, concerning the law of 2January 1995, which implemented the Security Council resolu-tion establishing the ICTY into French law, states that :

"as indicated in the course of debates before the NationalAssembly (JO AN CR 20 December 1994, p. 9446), the impos-sibility of setting proceedings in motion against persons whoare not present on French territory does not prevent prosecu-tors, as a measure of preservation and in the course of a pre-liminary enquiry, from proceeding with interviewing the victimsof these crimes who have sought refuge in France."43

In the same vein, the French National Consultative Commissionfor Human Rights (CNCDH) recommended that prosecutorsinvestigate systematically in cases of violations of humanita-rian law, including in the case of a violation of the Conventionagainst Torture, in order to avoid the burden of proof falling onthe victims.

Thus, in its advisory opinion adopted by the full assembly on 16February 1998, concerning the adaptation of the French legalsystem to humanitarian law conventions, it is stated that: :

41. Unofficial translation.42. Unofficial translation.43. J.O No. 44, 21 February 1995, page 2757, NOR: JUSD9530006C.

Chapter II - Practical considerations concerning the exercise universal jurisdictionbefore French courts: the presence requirement of the accused

"It is recommended that the Minister of Justice adopts a cir-cular reminding prosecutors that complaints lodged, withapplications to join proceedings as partie civile, by victimsof violations of rules of IHL, particularly those contained inthe legislation implementing the statutes of the two inter-national criminal tribunals, as well as victims of violationstargeted by treaties which bind France and provide for uni-versal jurisdiction, are admissible before French courts inthe circumstances specified in article 2, 389 and the follo-wing provisions of the Code of Criminal Procedure.

It is recommended in such a case that prosecutors takeinstructions in order to systematically investigate the loca-tion of the perpetrators of the violations on French territory,so that the burden of proof does not fall on the victims"(emphasis added).44

There are at least two precedents which accord with therecommendations cited above. The prosecutor at theTribunal de Grande Instance in Paris, dealing with the com-plaint lodged by FIDH and LDH, in January 2000 agreed toorder the opening of a preliminary investigation in order toconfirm the presence in France of those accused of geno-cide in Rwanda, whose presence on French territory hadbeen reported by the complainants.Thus, on 25 January2000, the prosecutor referred the complaint to the natio-nal anti-terrorist division to carry out a national investiga-tion "to locate the Rwandan nationals, alleged to be per-petrators and accomplices of genocide in Rwanda, onnational territory."45 This investigation led to the questio-ning and arrest of Mr Laurent Bucybaruta by the investiga-ting judge in the French city of Troyes several months later.

Similarly, in application of this advisory opinion, a complaintlodged on 7 November 2001 against Tunisian torturers washeld to be admissible on the basis that the burden of provingthe presence of the alleged torturers on French territoryshould not fall on the victims in any case.

B. At what point in time must the condition ofpresence be fulfilled?

An issue surrounding the condition of presence of the allegedperpetrator is what point in time it must be fulfilled: at the timeof lodging the complaint, at the start of proceedings, at the timeof judgement?

At what point in the procedure must the condition of presenceof the accused on the territory be examined in order to establish

the competence of the French courts? If the entire investigationis subject to having established the presence of the accused,there is a great risk that no prosecution would ever be underta-ken. In order to show the presence of the accused it is neces-sary to conduct a search, which can be assisted by evidencegathered during the preparatory phase of the procedure.Whereas, if the initiation of a search is itself subject to the condi-tion of presence of the accused, the entire system is blocked.

Professor Lombois criticises this interpretation in the context ofthe judgment in Javor of the Chambre d'accusation (IndictmentDivision) of the Cour d'appel in Paris on 24 November 199446,delivered following a complaint by Yugoslav nationals concer-ning crimes committed on the territory of former Yugoslavia47:

"Whether or not expressed, the condition of presence must bepresumed for the purposes of the "search", during the courseof which it will be verified. Otherwise it is a vicious circle: inorder to know whether X is in hiding on our territory, it is neces-sary to search for him; but in order to search for him, it isnecessary to have already discovered (by enlightenment orintuition) that he is present."48

This issue is of current interest since during the first hearingbefore the ICJ in the case of Certain criminal procedures initia-ted in France, the Director of legal affairs of the Ministry ofForeign Affairs, Mr Ronny Abraham, stressed that "the Frenchjudge can only be competent in respect of acts committedabroad by foreigners, against foreign victims, on condition thatthe suspect is present on French territory at the time of theinitiation of prosecution, in other words at the date of the pro-secutor's application and not subsequently, or if subsequently anew application by the prosecutor will be necessary" (emphasisadded).49

C. Link between the condition of presence andthe scope of the referral to the investigatingjudge

Can the condition of presence form an exception to the generalprinciple of investigation in rem? Is there an exception to theprinciple set out in article 80-1 of the CCP?

In the case of Ndengue, cited above, the prosecution has adop-ted the position that the investigating magistrate is not compe-tent to investigate anyone other than General Norbert Dabira.

In the application for the setting aside of evidence, the chiefprosecutor argued that the investigating judge could only beseized of the case both in rem and in personam by the prose-



44. Unofficial translation.45. Unofficial translation.46. Chambre d'accusation of the Cour d'appel, Paris, aff. Javor and others, judgment of 24 November 1994; Cour de Cassation, Chambre Criminelle,aff. Javor and others, judgment of 26 March 1996, Bull. Crim. No. 132.47. Idem.48. LOMBOIS, C. (1995), 'De la compassion territoriale', in Revue de Science Criminelle et de Droit Pénal Comparé, p. 401., Unofficial translation49. Unofficial translation



cutor's application for judicial investigation, which "althoughimproperly filed against X", an unknown person, could only beaimed at Mr Dabira, since the condition imposed by article689-1 of the CCP of the presence of the accused on French ter-ritory must be fulfilled.

The prosecution thus adopts the official position of the FrenchMinistry of Foreign Affairs according to which, "even though thecomplaint by the three associations reffered to persons byname - the four that I mentionned, the judicial invstigation wasrequested by the public prosecutor against unnamed persons(persons unknown) without any name being given in his appli-cation. In reality, however, the judicial investigation at thatstage could only be directed against General Dabira, becausehe alone appeared to fulfil the mandatory condition laid downby French law for the exercise of universal jurisdiction, that isto say, I repeat and stress, that the alleged offender has to bepresent on French soil."50

However, by adopting this position, the prosecution goesagainst the fundamental principle of seizure in rem with is oneof the pillars of the criminal procedural regime in France.Article 80-1 of the CCP imposes the general principle of seizu-re "in rem" of the investigating magistrate:

"The investigating judge may place under judicial examinationonly those persons against whom there is strong and concor-dant evidence making it probable that they may have partici-pated, as perpetrator or accomplice, in the commission of theoffences he is investigating" (emphasis added).

Whether the preliminary application for a judicial investigationconcerns named or unnamed persons, the investigating judge,who is irrevocably seized of the facts which are the subject ofthe application, can investigate all persons against whom thereis evidence that they have participated in the commission ofthe offences targeted.

This is a necessary consequence of the mandate of the inves-tigating judge, which is to investigate all the acts which are thesubject of the application and to establish responsibility. In par-ticular, it is a result of this principle that the investigating judgehas the necessary flexibility to arrive at the truth.

Contrary to the position of the chief prosecutor, the principle ofseizure of the investigating judge "in rem" is in no way calledinto question by the introduction of the mechanism of extrater-ritorial jurisdiction in French criminal provisions.

Article 689-1 of the CCP, cited by the prosecution, only has theeffect of clarifying that, in the application of international

conventions, any person who is guilty of committing one of theoffences listed in article 689-2 and subsequent provisions, out-side French territory, if present in France, can be prosecuted bythe French authorities. This does not call into question thepowers of the investigating judge to carry out all the necessaryacts in accordance with his competence "in rem", without igno-ring the provisions of article 689-1 of the CCP.

In order to demonstrate that in the instant case the investigatingmagistrate has not ignored this provision, it suffices to refer tothe examination of the measures of investigation, which are thesubject of the claim for exclusion, to establish that the measu-res concerning Pierre Oba, Blaise Adoua or Jean-FrançoisNdengue: - Either constitute measures of investigation concerning theirlocation on French territory, which is clearly necessary to esta-blish whether they are present in France;- Or, specifically in the case of Jean-François Ndengue, havebeen undertaken in the absence of any doubt of the presencein France of the subject of the investigation.

In other words, in the context of his competence "in rem", theinvestigating judge has respected, without any doubt, the pro-visions of article 689-1 of the CCP.

It is clear that that if the prosecutor, whose position has under-gone a spectacular reversal, considered that the investigatingjudge could only be seized "in personam", he would only haveopened an investigation against Norbert Dabira.

It is difficult to see how the investigating judge, seized on thebasis of an application for a preliminary investigation againstX and acting within the framework of the facts which were thesubject of the referral, could have asked the prosecutor for asupplementary application naming Mr Ndengue or any otherperson.

Adopting the reasoning of the prosecutor leads to the restric-tion of the application of the principle of extraterritorial juris-diction, which France has accepted by virtue of diverse inter-national conventions, almost to vanishing point. It would limitconsiderably the scope of activities of the investigating judge,by reducing the powers which are granted to him under theprovisions of the Code of Criminal Procedure.

Abandoning the principle of competence "in rem" is all themore paradoxical in the context of prosecuting the mostserious crimes. The mechanism of extraterritorial jurisdictionaims, on the contrary, to strengthen the measures of proce-dure of use in the repression of crimes of particular serious-ness for victims and the international community, as is made

50. Republic of the Congo v. France, Oral pleadings, 29 April 2003, official translation, available at http://www.icj-cji.org/icjwww/idocket/icofframe.htm

clear in the Convention against Torture adopted in New Yorkon 10 December 1984.

However, in its judgement of 22 November 2004 on the appli-cation for annulment of the investigation against Jean-François Ndengue, the Chambre d'Instruction (IndictmentDivision) of the Cour d'appel in Paris considered that:

"The application initiating public proceedings was made"against X", and therefore does not contain the necessaryelement to establish that the condition of the presence onFrench territory of the accused has been fulfilled, whereasthis finding is a precondition of the application of thisexceptional jurisdiction.

The exceptional character of the provisions of article 689-1 of the Code of Criminal Procedure excludes the simulta-neous application of the general provisions of article 80 ofthe Code of Criminal Procedure which allow the prosecu-tion to make an application for an investigation againstnamed or unnamed persons.

Furthermore, in the instant case, the opening of an inqui-ry against X had the consequence of leading the investi-gating judge to have Norbert Dabira interviewed, by meansof letter of request (commission rogatoire), who accordingto the prosecutor was the only person who could be inves-tigated, whereas this is prohibited under article 113-1 ofthe Code of Criminal Procedure when a person is namedin the application.

An application which fails to fulfil the legal conditions forits existence will be nullified, as will be all subsequent pro-ceedings."51

FIDH and its affiliated organisations in France (FDH) and inCongo (OCDH) were stunned to discover that the Chambred'instruction had decided on its own motion, without any appli-cation by the prosecutor, not to limit its decision to the case ofMr Ndengue but to nullify the entire proceedings.

This decision came when, over several months, the Frenchand Congolese authorities had been multiplying their jointinitiatives aimed at putting an end to the proceedings inFrance in favour of the investigation opened in Brazzaville.The latter ended, unsurprisingly, in August 2005, in the acquit-tal of all persons accused in the case of the "Disappeared ofthe Beach".

In a case in which politics are constantly interfering, law mustprevail and the wheels of justice must be allowed to run theircourse, in accordance with the legitimate expectations of thevictims and their families.



51. Unofficial translation.



In French law, the initiation of criminal investigations is not auto-matic. In the case of a simple complaint, in accordance withthe opportunity principle, the prosecution remains free to decidewhether or not to initiate proceedings and retains this freedomof action. However, in accordance with article 1, paragraph 2of the Code of Criminal Procedure public proceedings must beinitiated when the victim of an offence makes an application tojoin proceedings as a civil party (partie civile). The victim is thusable to conquer the inertia of the prosecution.

This principle does however have its limits. In the case of mili-tary offences, the application to join proceedings as partie civiledoes not set proceedings in motion. Under article 179 of theCode of Military Justice, "Civil actions for reparation of dama-ges caused by one of the offences within the jurisdiction of themilitary courts in time of war, can be brought by those who havepersonally suffered damage, directly caused by the offence.However, the injured party cannot set a public prosecution inmotion." Under article 180 of the Code of Military Justice, "theright to set in motion a public prosecution is held in all casesby the minister responsible for defence."

Is this the approach that the legislature is seeking to adopt inrespect of the most serious crimes?

A. The importance of victims' access to justice forthe implementation of the mechanism of univer-sal jurisdiction

1. The conclusions of the Magendie report

It is interesting to analyse the conclusions of the Magendiereport of June 2004 on the efficiency and the quality of the jus-tice system, which aimed to suggest concrete solutions to over-come the slowness of justice in France.

One of the arguments put forward in the report is the problemof the day-to-day management of applications to join procee-dings as partie civile, which are more and more numerous butnot always well-founded in law.

Before discussing possible measures, the report stresses that,"in seeking to limit complaints with applications to join procee-dings as partie civile, it is essential to emphasise that [measu-res taken] must not result in depriving the victim of access tothe criminal judge. Concerns about efficiency, however respec-table, must not have this result…To recall the terms of a rulingof the first president of the Cour d'appel in Poitiers of 9September 1880, the rights of citizens must be guaranteed

against refusals to prosecute, which could in certain cases cons-titute a real denial of justice.

The legitimate irritation caused by abusive applications for par-tie civile must not allow us to forget the numerous applicationswhich are not so. Everyone has in mind the recent proceedingsfor crimes against humanity held following the commencementof open investigations into complaints with applications to joinproceedings as partie civile" (emphasis added).52

Having recalled these principles, the Magendie report recom-mends the reaffirmation of the subsidiary nature of initiationof proceedings by an injured party, by subjecting the admissi-bility of an application to join proceedings as a partie civile tothe condition that the prosecutor has decided, expressly or impli-citly, to discontinue proceedings.

In the context of universal jurisdiction, this solution could leadto problems for victims, or even result in justice being denied,which is obviously not the aim of the authors of the report.

Regarding the perceived need to ensure that the prosecutor hasgreater independence from the partie civile, the report ques-tions "why the prosecutor, who on the basis of article 40 of theCode of Criminal Procedure has the discretion to decide whe-ther to initiate prosecutions, should to a certain extent renouncethis power and decide on a strictly legal basis when a complaintis lodged with an application to join proceedings as a partiecivile. […] Would it not be preferable to give him the possibilityto make his decision with complete independence, includingwith respect of considerations of appropriateness which areusually takes into account? […] It seems curious that the com-plainant can, by engaging this procedure, oblige the prosecu-tion to undertake prosecutions which he had decided not topursue".

However, the recent use of the principle of universal jurisdictionis the result of two observations by victims of the most seriouscrimes and human rights organizations: the incapacity or thefailure of states in the fight against impunity at national level;and the growing understanding that victims could force the handof justice by lodging complaints and by confronting states withtheir international obligations.

Victims can therefore get round overcautious prosecutors byinitiating proceedings themselves with an application to joinproceedings as partie civile. The novel aspect is the use of thesepossibilities in the context of the application of the mechanismof universal jurisdiction.

Chapter III - Access of victims to justice: towards the repeal of the partie civilemechanism for the most serious crimes?

52. Unofficial translation.

2. Without victims, no universal jurisdiction!

The observation is simple: once victims and NGOs became awareof the tool that constituted the universal jurisdiction mecha-nism, this principle left the realm of ideas and became a use-ful instrument in the fight against impunity.

As with the Alien Tort Claims Act53, the principle of universaljurisdiction in criminal law only really took off after investigatingjudge Garzon decided to make use of it to investigate the cri-mes committed by the Argentine junta against families whichwere either Spanish or of Spanish origin. This investigation finallyresulted in the famous Pinochet case, which unleashed greathopes in civil society.

For the first time, on the victims' initiative, a head of state - albeitone who had long been out of power - was investigated without- at least in the beginning - politics or reasons of state beingable to prevent it.

It can be seen that the application of the universal jurisdictionmechanism depends - in a near majority or even the majorityof cases - on the pro-active intervention of victims and the non-governmental organizations supporting them. This explains whythe universal jurisdiction mechanism is often applied in thosecases in which the victims or associations54 have direct accessto the courts.

In practice, cases based on the principle of universal jurisdic-tion flourish in States where individuals can apply to join pro-ceedings as partie civile. This is true in Belgium, France,Switzerland, Senegal and even Spain. It is also true in the UnitedStates but only in the civil courts.

The implementation of universal jurisdiction must not dependsolely on the victims. In France, however, the State has showna tendency to obstruct applications to join proceedings as par-tie civile where they are based on the principle of universaljurisdiction.

In most cases the prosecution is reluctant to apply the univer-sal jurisdiction mechanism on its own initiative and insteadseeks to shift its own obligations onto victims.

B. The French draft legislation implementing theICC Statute and the repeal of the partie civilemechanism

As explained above, in relation to crimes which fall under theCourt's jurisdiction (war crimes, genocide, crimes againsthumanity), there is no provision for universal jurisdictionexcept where the crimes were committed in the context of thegenocide in Rwanda or the war in former Yugoslavia. However,many reasons exist for the introduction of a principle of uni-versal jurisdiction.

These reasons are based mainly on the system of comple-mentarity established by the Statute of the InternationalCriminal Court, which aims to end impunity for crimes whichfall within the jurisdiction of the ICC.

This lead the French Ministry of Justice to recommend esta-blishing a mechanism for universal jurisdiction before Frenchcourts, no longer limited to the former Yugoslavia andRwanda.

Article 10 of the draft law implementing the Rome Statute andamending several provisions of the Criminal Code, the Code ofMilitary Justice, the Law of 29 July 1881 on the liberty of thepress, and the Code of Criminal Procedure states:

"Art. 689 - Perpetrators of offences committed outsideFrench territory can be investigated and prosecuted beforeFrench courts either when either French law is applicableunder the provisions of Paragraph 2 below, or Book 1 of theCriminal Code or any other statute, or when an internationalConvention gives jurisdiction to French courts to deal with theoffence.

Any person who is present in France and is a national of anon state party to the Statute of International Criminal Court,Rome 18 July 1998, and who is guilty of committing one ofthe following offences outside French territory, can be inves-tigated and prosecuted before the French courts:1. Crimes against humanity defined in articles 211-1, 212-1to 212-3 of the Criminal Code;2. War crimes defined in articles 400-1 to 400-4 of the sameCode;



53. American law of the 18th Century, which has become the cornerstone of the exercise of universal jurisdiction before American civil courts followingits judicious use by the Center for Constitutional Rights in the Filartaga case.54. In France, associations can apply to become parties civiles if they have legal personality. Under article 2-4 of the Code of Criminal Procedure, anassociation "lawfully registered for at least five years proposing in its constitution to combat crimes against humanity or war crimes, or to defend themoral interests and the honour of the Resistance or of those of deported persons, may exercise the rights granted to the civil party in respect of warcrimes and crimes against humanity."FIDH is an example of an organisation that fulfils the legal conditions to qualify for the right to apply to join proceedings as partie civile. Created in 1922,the organization's statutes expressly state that its mandate includes the fight against impunity. FIDH has been a partie civile in numerous cases, nota-bly, Ely Ould Dah, Aussaresses, Hissène Habré, The Disappeared of the Beach etc.



3. Crimes or misdemeanours defined in articles 23 and 25of the Law of 29 July 1881 relating to the liberty of the presswhere this offence constitutes incitement to commit genoci-de in the sense of article 25, paragraph 3 (e) of the saidConvention.

The provisions of paragraph 2 apply to attempts to committhese offences, in every case where attempt is punishable.

The crimes and misdemeanours listed in paragraph 2 canonly be investigated on the application of the prosecution.

In respect of the investigation and prosecution of the crimesand misdemenours listed in paragraph 2, the public prose-cutor of the Tribunal de Grande Instance (Court of FirstInstance), the investigating judge, the tribunal correctionnel(criminal court) and the Cour d'assises in Paris have exclusi-ve jurisdiction. Where they have jurisdiction over such offen-ces, the prosecutor of the Tribunal de Grande Instance andthe investigating judge in Paris exercise their competenceover the entire national territory".55

Firstly, the draft subjects the jurisdiction of the French courts tothe condition that the suspect is present on French territory.However, on this point, the draft is consistent with existing pro-visions on universal jurisdiction, the condition of presencehaving traditionally been applied in the context of extraterritorialjurisdiction in France.

Above all, the draft does not allow an application to become par-tie civile to initiate public proceedings. This law quite clearlydoes away with the possibility for victims to lodge complaintswith applications to join proceedings as partie civile. As a result,it grants the prosecution a monopoly. This serious attack on therights of victims is all the more unacceptable on the part ofFrance, which fought - often alone- for several years of negotia-tions on the Rome Statute and additional texts of theInternational Criminal Court for the rights of victims to be reco-gnized and in particular for a the inclusion of provisions permit-ting victims to apply to join proceedings as "partie civile", model-led on the French procedure.

It is unjustifiable for France, in respect of the most serious cri-mes, to go back on one of the founding principle of romano-ger-manic law, a principle which France is generally recongnized tohave established. By doing so, France - at the national level - isbeginning to ressemble the common law system, despite vigo-rously opposing it at the international level.

Finally, how can the government justify that victims can apply tojoin proceedings as partie civile for armed theft but not for acrime against humanity? This position is legally and politicallyuntenable.

This is the view taken by the CNCDH, in its opinion of 15 May2003, on the draft law implementing the Statute of theInternational Criminal Court, which was referred to theCommission by the Ministry of Justice on 25 March 2003.

Regarding the proposed system of universal jurisdiction, theCNCDH "opposes the monopoly of investigations granted to theprosecutor under article 10 of the draft law. This provisionrepresents a serious attack on the rights of victims to an effec-tive remedy and is all the more inacceptable given that Francewas actively committed to the rights of victims throughout thenegotiations for the establishment of the ICC." 56

55. Unofficial translation.56. Unofficial translation.

FIDHrepresents 141 human rights organisations

over 5 continents

1. To accompany victims: to bring direct legal assistance to victims of serious human rights violations, by providing advi-ce, representation and support in proceedings against the suspected perpetrators of the crimes against them. GAJ works toimplement victims' rights of access to just, independent, and fair proceedings, to ensure that their rights are recognised andthat they can receive measures of reparation.

2. To unite all the legal and factual elements necessary for the initiation in all countries of legal proceedings to bring thoseresponsible for violations of human rights to justice.

3. To initiate legal proceedings before national and international tribunals. With the aim of reinforcing the activities ofnational legal systems in the pursuit of those responsible for human rights violations, GAJ makes particular use of the principleof universal jurisdiction.

4. To build on the complementarity of national and international jurisdictions, through promoting the rapid ratification ofthe Statute of the International Criminal Court by the greatest number of states, as well as the enactment of national imple-menting legislation.

5. To provide clear explanations of the mechanisms of international criminal law in order to enable FIDH member organi-sations and their local partners to use the procedures available to them at the national, regional and international level.

The International Federation for Human Rights (FIDH) is an international non-governmental organisation working todefend human rights as recognised in the Universal Declaration of 1948. Established in 1922, FIDH represents 141member organisations across the world. Until now, FIDH has undertaken more than 1000 international missions of inves-tigation, legal observation, mediation and training in a 100 countries.

To find out more about FIDH and International Justicehttp://www.fidh.org/justice/index.htm

COMPOSITION AND MANDATE OF THE FIDH LEGAL ACTION GROUP (GAJ)

The FIDH Legal Action Group (GAJ) is a network of lawyers, magistrates and legal advisors, from national organisations defen-ding human rights affiliated to FIDH and elected representatives of FIDH, whose mandate is :

Author of this report: Jeanne SulzerTranslation : Katherine Booth

Assistant of publication : Céline Ballereau-TetuOriginal: French - Printing by the FIDH - n°431/2 October 2005

Dépot légal April 2005 and January 2006 - Commission paritaire N°0904P11341Fichier informatique conforme à la loi du 6 janvier 1978 (Déclaration N° 330 675)

gaj france comp.tence universelle431-2final · 2011. 7. 6. · gaj fidh - october 2005 page 4 this...

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