The past ten years have represented a historical step in the fight against impunity, at the institutional level and at the level of the international civil society.

The public opinion has become more aware of this phenomenon and has acknowledged the necessity of the fight against impunity. The conflicts which have taken place both in former Yugoslavia and Rwanda, due to the scale and gravity of the crimes committed against civil populations in those areas, lead the international community to create ad hoc criminal tribunals in charge of judging the perpetrators of the most serious offences committed during these conflicts. It has become clear that there can be no peace without justice.

The adoption a year ago of the Statute of the International Criminal Court which had been under discussion for decades, has raised many hopes and revived on the international level the dynamics of the struggle against impunity. The General Augusto Pinochet case has strengthened the consciousness of the public opinion and the victim’s or their family’s determination in seeking criminal responsibility of the perpetrators. All these elements constitute a tremendous step forward, but is still far from ensuring that victims have found an accurate mechanism to have their rights redressed. Indeed, it has to be recalled, that on the one hand the International Criminal Court Statute has to be ratified by at least sixty States before it can enter into force and on the other hand the slow progresses made in the domestic ratification processes threatens the effectivity of justice for the most heinous crimes committed these days around the world.

Therefore, the international law instruments which organizes judicial mechanisms on the national level should be used in order to implement the principles governing the fight against impunity which should, from now on, be fully part of all international community intervention when civil populations are in danger.

This fight against impunity is a long standing priority for the FIDH and has been reinforced during the last FIDH Congress in Dakar in November 1997. The tremendous advances of the last months have led the FIDH to set up a Legal Action Group (LAG) whose aims and objectives are to carry into effect the existing legal tools in order to take proceedings against perpetrators of gross violations of human rights.

The FIDH gets involved on the judicial field for cases concerning international crimes (war crimes, crimes against humanity and genocide), as well as serious violations of human rights which would not qualify as international crimes.

With this in mind, the FIDH has decided to refer matters to the French judicial authorities, in three successive cases since November 1998 after verifying that the presumed human rights perpetrators were on the French territory. These proceedings are the follow-up of several previous attempts to have the French authorities recognize the principle of universal jurisdiction in France against the authors of the most serious crimes.

The first precedent in France was decided in July 1992 when Bosnian victims did a “constitution de partie civile” [1] on the basis of the 1984 New York Convention, the August 1949 Geneva Conventions, and for crimes against humanity and genocide. On May 6, 1993 a decision recognized the jurisdiction of the French judge for the Geneva Conventions and the Convention against Torture, but rejected the rest of the legal basis as inadmissible.

This decision was reversed by the Paris “Chambre d’accusation” on the grounds that the Geneva Conventions were not incorporated into the French domestic law, and on the absence of evidence of the presence of the alleged author on the French territory.

In July 1995, legal actions, initiated by several victims, were taken in France against the Abbot Wenceslas Munyeshyaka, from Rwanda, on the grounds of torture on the basis of the 1984 New York Convention. On January, 12 1998 the French Supreme Court, “Cour de cassation” confirmed the jurisdiction of the French judge on this basis. Subsequently on June, 23 1999 the Paris “Chambre d’accusation” extended the scope of the jurisdiction to genocide and crimes against humanity on the basis of the implementing legislation in French law of the Statute of the International Criminal Tribunal for Rwanda (law n°96-432 of May, 22 1996).

Following these legal actions and building upon the Pinochet case, the FIDH decided for the first time in November 1998 to refer the situation of Laurent Desire Kabila to the Paris Prosecutor, self-proclaimed President of the Democratic Republic of Congo. In France, these actions were instituted on the basis of the 1984 “International Convention against torture, and Other Cruel, Inhumane or Degrading Treatment or Punishment”. The Prosecutor raised the matter of the immunity enjoyed by a Head of State in the exercise of its duty (in particular when he is on the French territory officially invited for a franco-african meeting of heads of States) in order to refuse the action against Kabila. He also opposed the lack of evidence to demonstrate Kabila’s responsibility in the acts of torture. However, he did not reject the admissibility of the Convention against torture for Heads of State in the exercise of their duties.

In Belgium, the proceeding were initiated on a broader basis for acts of torture, incitement to racial hatred and crimes against humanity. An examining magistrate2 was appointed to investigate Kabila and his close collaborator’s responsibilities for the alleged crimes. If it now seems established that Kabila cannot be prosecuted because of the immunity which he enjoys as a Head of State, the same is not true of his Information Minister, M. Didier Mumengi, whose immunity could be lifted and therefore could be charged for incitement to racial hatred for the public statements he made calling for the murder of Tutsis in Rwanda, and by extension, for crimes against humanity.

In May and June 1999 new procedures were initiated by the FIDH and the French League of Human Rights against two Mauritanian torturers. Although the investigation had started, the Prosecutor was unable to follow up the first submission by the FIDH and the League because the alleged perpetrator of acts of torture had managed to leave France, after being told of the proceedings pending against him. On 4th July, the FIDH and the League refered a matter to the Court of Montpellier (on the basis of the 1984 Convention against torture and other cruel, inhumane and degrading forms of treatment or punishment) to take legal actions against Ely Ould Dha, an officer in the Mauritanian army at the time of the events.

Indeed, according to article 6 of the above Convention that :

- “1. Upon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State Party in whose territory a person alleged to have committed any offence referred to in article 4 is present shall take him into custody or take other legal measures to ensure his presence. The custody and other legal measures shall be as provided in the law of that State but may be continued only for such time as is necessary to enable any criminal or extradition proceedings to be instituted.

- 2. Such State shall immediately make a preliminary inquiry into the facts”
In application of article 6 of that Convention, France integrated, in 1992, into the Code of Criminal Procedure the dispositions of article 689-1 with states that “in application of the international conventions which set out the following articles, any person guilty of committing an act listed in these articles outside the French Republic, may be prosecuted and judged by French jurisdiction if that person is in France. The clauses of the present article apply to any attempt to commit an offence, on each occasion where such an attempt is punishable.”

The testimonies gathered by FIDH clearly showed Ely Ould Dha’s individual responsibility for acts of torture committed against several Mauritanian soldiers.

On July 3rd the Mauritanian officer was examined on the basis of article 689 of the Code of Criminal Procedure and article 212 of the Criminal Code and consigned to prison by an examining magistrate in Montpellier. The fact that an investigation had been opened for a second time on the initiative of the French authorities (after the affair of Abbot Wencelas Munyeshyaka) - constitutes an encouragement, as it shows the political will of States to find judicial solutions in order to redress victims in their rights on the basis of universal jurisdiction.

Immediate reactions came from the Mauritanian authorities as they decided to repatriate all Mauritanian soldiers undergoing training in France, to send home forty French soldiers serving on peace mission in Mauritania, and to reintroduce visa requirements for all French nationals.

This extra step towards the implementation in France of the principle of universal jurisdiction is extremely encouraging and sends a strong signal to victims, and more generally to civil societies throughout the world, since it constitutes the effective application of the principle of complementary that will govern between the International Criminal Court on the one hand, and the other hand the possibility of prosecuting and trying before national courts the perpetrators of the grave crimes. This will be made possible if States make the effort, not only to ratify the international instruments of the fight against impunity, but also to transpose them without delay into their national legislation. These are the conditions which will enable justice to be effectively use as a tool in the fight against impunity and to establish a effective instrument for the prevention and resolution of conflicts.

William Bourdon, Secretary general of the FIDH
Jean-Pierre Getti, Chargé de mission of the FIDH,
Coordinator of LAG
Emmanuelle Robineau Duverger, in charge of African desk of the FIDH

Notes :
1. Action instituted by a private person for damages

 

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The Legal Action Group’s Mandate

1. Compile the legal and factual elements in every country in order to take legal actions against alleged perpetrators of Human Rights violatons. To this end, the LAG will establish a database compiling :
- the state of ratification and the progresses in ratifying of the main international instruments in various countries as well as the state of domestic implementation of the said instruments.
- the different statutes of limitation for human rights violations.
- the different elements on the issue of immunity.

2. To lobby for a quick ratification of the International Criminal Court Statute, its integration into national law and the adoption of the Rules of procedure and Evidence in the respect of victim’s rights.

3. To spread the knowledge of the basic principles of International Criminal Law in order to allow FIDH member organizations and their local partners to use at the national level the judicial tools available to them.

The Legal Action Group’s composition

The LAG brings together a network of legal experts from different countries, in particular recommended by FIDH member organizations. The LAG is composed by the following persons, under the responsability of the FIDH President and FIDH political board :
- At the Executive Bureau : William Bourdon, General Secretary and Jean-Pierre Getti, co-ordinator.

Email contact : use the FIDH address fidh@fidh.org and the subject : GAJ-FIDH.

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