A retrograde decision and a dangerous precedent !

14/03/2001
Press release
en fr

On March 13th, 2001 the French Cour de Cassation( Supreme court of Appeal), granted impunity under French jurisdiction to criminal Heads of State in office. Indeed the court explained that Mr. Khadhafi benefited from the principle of immunity thus barring any criminal prosecution against him in the DC-10 Case. It has considered that "given the state of International Law, the crime denounced, however serious, is not covered by the exceptions to the principle of immunity for foreign Heads of State in office."

In the same case on October 20th 2000, the Criminal Chamber (Chambre d’accusation) Paris Court of Appeal had however decided "that no immunity shall be granted to acts of complicity" in the terrorist attacks committed against the UTA DC-10 and that there was no obstacle to proceeding with an investigation against Col. Khadhafi
Yesterday, however, the Criminal Chamber of the Cour de Cassation de facto considered on the contrary that a Head of State in office could commit serious criminal acts without risking prosecution by French courts !
This decision is particularly retrograde and a cause of deep concern because its states that "international customary law is opposed to the idea that Heads of state in office may, in the absence of any international provisions to the contrary, be prosecuted before criminal courts of a foreign state."
The Cour de Cassation has thus decided against all international standards of customary law and conventional law which for many years now has adopted the principle of individual criminal responsibility, whoever the perpetrator of the crime may be or the rank or functions he occupies.

The following texts can be mentioned:

· The Treaty of Versailles, June 28, 1919
· The Charter of the International Military Tribunal of Nuremberg which states " The official position of the defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment" October 1, 1946.
· Article IV of the Convention for the Prevention and Repression of the Crime of Genocide, December 9th, 1948.
· The Geneva Conventions,1949.
· Article 3 of the draft Code on Crimes to Peace and the Security of Mankind,1954
· Article III of The International Convention on the Elimination and the Repression of the Crime of Apartheid, November 30th 1973, in force July 18th, 1976.
· The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, in force 1987.
· Article 7 of the Draft Code Of Crimes Against The Peace And Security Of Mankind adopted in 1996 by the Commission on International Law of the United Nations.
· The Declaration on the Protection of all Persons from Enforced Disappearance, December 18, 1992.
· The Statutes of the two ad hoc International Criminal Tribunals for Former-Yugoslavia (article 7-2) and Rwanda (article 6-2).
· Article 27 of the Statutes of the International Criminal court adopted by 120 states on July 17th, 1998 in Rome which emphasizes that " [...] official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence".

The International Community has in fact done no more than to apply the exception to immunity in May 24th, 1999, in the case of Mr. Slobodan Milosevic, then the President of the Federal Republic of Yugoslavia who was indicted by the International Criminal Tribunal for ex-Yugoslavia. He is now wanted under an international search warrant.

It is recognized that under customary law a Head of State can be granted immunity for acts which are included in the normal exercise of his functions. However, violations of human rights or acts of terrorism cannot be considered as being a part of the "normal" functions of a Head of State.
In 1946 the prosecutor of the Nuremberg Tribunal, Mr. Robert H. Jackson, stated, "we cannot accept the paradox whereby responsibility should be lesser when power is the greatest."

Fifty-five years hence, the decision in principle of the French Cour de Cassation shows deplorable conservatism and flies in the face of International Criminal Law, in particular in light of its recent evolution.

The FIDH considers that this dangerous decision puts France amongst the retrograde Nations in the fight against impunity.

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