By Yves Poirmeur
Translation: Davina Durgana
Passage au crible n°29
On October 11th, 2010 French authorities arrested Callixte Mbarushimana, Executive Secretary of the Democratic Forces for the Liberation of Rwanda- Combatant forces Abacunguzi, endorsed by an arrest warrant by the ICC (International Criminal Court) for war crimes and crimes against humanity that he is presumed to have committed, in 2009, in the provinces of Kivu, in the East of the Democratic Republic of the Congo. This arrest by a Rwandan national who has been living in France since 2002, with the status of political refugee, shows the advances in the fight against impunity rendered possible by the creation of the ICC where France was one of the first European countries to ratify the Rome Statute (June 9th, 2000). France was able to make this arrest because she had adapted since 2002 (Law of February 26th, 2002) her penal procedure to respond to investigative requests and the arrest of imminent suspects of the ICC due to the differences in less collaborative states. However, the French legislation still leaves substantial space for impunity. In fact, the recent law of August 10th, 2010 that completes “the criminal law adaptation to the institution of the ICC” carries out a very restrictive synchronization of internal criminal law with the definition of incrimination retained by the Rome Statute. Furthermore, she maintains a very narrow conception of universal competency. This permits in consequence, for certain international criminals present on French territory to escape prosecution.
The international repression of international crimes is difficult to institutionalize, throughout the 20th century, in an international society constituted of sovereign states saw all international undertakings on criminal responsibility of their rulers and soldiers as an unacceptable attack on their sovereignty. Appearing for the first time under the form of the ad hoc Tribunals of Nuremberg (1945) and of Tokyo (1946), the international criminal justice had known then a long eclipse bound to the East-West conflict. Then, international criminal justice took the form of special jurisdictions created by the Security Council of the United Nations to adjudicate the people responsible for violations of international humanitarian law in Yugoslavia – ICTY (1993) – and of the genocide in Rwanda – ICTR (1994). Finally, international criminal justice was allocated permanent jurisdiction by the Rome Convention (1998) in instituting the ICC with the mission of prosecuting and punishing war crimes, crimes against humanity, genocide and the crime of aggression for which the definition is still not clear. The open investigations for this jurisdiction, very recently are, for now, still very few in number, all as arrest warrants and the citations to appear before the court that are delivered. These investigations concern the Central African Republic, Darfur, Uganda, Kenya and the Democratic Republic of the Congo, as well as other situations certainly justifying investigations such as in the Ivory Coast, Guinea, Columbia and Palestine.
In the fight against impunity, the international criminal justice system is confronted with two main obstacles. The most obvious issue is that with only the 113 states that have, for now, ratified the Rome Statute, international criminals can then find refuge on the territory of countries that have not signed. The second obstacle resides in the fear of states to conserve their independence and notably, the prevailing of their idea of criminal law to ensure the impunity of certain crimes in the case that they are ever eventually potentially implicated. There is also the fault in the synchronization of incrimination of penal law by states parties with those of international penal law with the lack of adaptation in their criminal procedures to respond to the investigation requests and arrests of the ICC. Finally, it is equally overdue for overly restrictive definitions of their universal competence that leave legal shortcomings to allow each person suspected of an international crime of extreme gravity to escape all pursuit, both before national jurisdictions and before the ICC.
1. The principle of complementarity. The structure of the international criminal justice system, restrained by the Rome Statute (Article 1) to maintain a principle of complementarity giving the competency of national jurisdictions the priority to judge international crimes. It is only this subsidiary title – in the hypothesis where states are inefficient and do not exercise any pursuit – that the ICC’s competence is limitedly restricted to “the most serious crimes that affect the international community as a whole” (Article 5).
2. Universal competence. The operation of the Rome Statute demands that the state parties plainly exercise the universal competence that it internationally recognized to suppress the infractions committed by people to foreign countries, even in cases where the perpetrator or the victims are not citizens. In order to make legitimate – without incurring reproach for interfering in the affairs of another State or of exploiting justice for political means – it is necessary that these infractions under domestic penal law are conformed to those of international political law and incidentally that the judicial procedure – investigations, sentencing, trials – respect the principles of law in an equitable trail that offers similar guarantees to those of the ICC.
In the same time that the ICC took the initiative of investigation and prosecution, the Code of Criminal Proceedings (Article 627-4 through 627-15) allowed France to efficiently collaborate with the ICC to insure impunity. In return, the Law of August 10th, 2010 brought into action universal competence for the crimes relevant to the Rome Statute the strong requirements that are exercised by the French courts that are potentially fully exceptional, also allow international criminals to slip between their repressive mesh nets. Additionally, this extraterritorial competence of jurisdictions is subordinate to four cumulative conditions: 1) the presumed perpetrator of these crimes must have a usual residence on the territory of the Republic; 2) the incrimination of these crimes by criminal legislation of the state or in the state where these crimes were committed or fall under the ratification by the state or by the state of which the perpetrator is a national according to the Rome Convention; 3) the prosecution of these crimes can not take place at the request of the public prosecutor; and finally 4) there is no international or domestic jurisdiction that can demand the return or the extradition of the perpetrator of these crimes, which the public prosecutor must ensure and notably verify that the ICC “expressly declines their competence” (Code of Criminal Proceedings, Article 689-11). The criterion of the usual residence overall just requires the simple presence of the alleged perpetrator of serious crimes on the national territory, which will be saved for France – to the great displeasure of human rights organizations – to require the judgment of many alleged perpetrators of international crimes passage to their own land, who could without great risk of continuing to make simple requests. As for the principle of complementarity, secured by the Rome Statute and giving the priority of prosecution to domestic jurisdiction, it seems to be the opposite of the subordination of their commitment to the condition that the ICC declined their competence beforehand. This is also a residual conception of universal competence for the most serious crimes that are founded on the idea that the legislators have a pretext of wanting to avoid the improbable concurrence between international and domestic jurisdictions. The law of 2010 then adapted the criminal code to the definitions of crimes according to the Rome Statute of the ICC, and have inserted there a new text dedicated to the repression of war crimes including the new incriminations – rape, murder… – and have completed the list of what constitutively makes a crime against humanity – voluntary attacks on life, attacks on liberty or the violence against people in all of its forms within the framework of a deliberate plan against a group of a civil population – and have precisely outlined the responsibilities of perpetrators of genocides, or the public incitement to commit genocide, and the order or committing of a genocide that was already sanctioned. If the repressive arsenal is happily reinforced today and the important gaps are crossed, the synchronization that has remained far off will be achieved. It is important that states recognize and observe soon that the instructions of war crimes established by the Criminal Code is a delay of 30 years, so that the Rome Statute retains the limitations of war crimes relevant to the competence of the Court (Article 29). In return, France participates efficiently and without risk in plainly cooperating with the ICC. It is less for the gaps of translating international crimes into domestic law than the restrictive concept of universal competence, that induce domestic governments to avoid political complications and diplomatic disagreements, that France expanded their direct services to the fight against impunity, committing as well to prosecution. It was the 3rd of November 2010 that the Court of Appeals of Paris ordered the placement of Mr. Mbarushimana to the Court at The Hague.
Florence Bussy, Yves Poirmeur, La Justice politique en mutation, Paris, LGDJ, 2010.
Xavier Philippe, Anne Desmarest, « Le projet de loi portant adaptation du droit pénal français à la Cour Pénale Internationale », Revue française de droit constitutionnel, (81), janvier 2010, pp. 41-65.