Abstract
The incorporation of an international convention into national law plays a central part in its effectiveness at the domestic level. This becomes increasingly crucial in the field of international crimes governed by the International Criminal Court (ICC), such as genocide, where States have primary jurisdiction for the prosecution of criminals. Without adequate legislation, States risk becoming a safe haven for international criminals. The United Kingdom (UK) and France have both incorporated the Genocide Convention and the Rome Statute into their national laws following their own static and dynamic legal traditions. However, their efforts remain unsatisfactory due to their reluctance to adopt universal jurisdiction, which is a recognised instrument in the fight against impunity.
Introduction1
The punishment of international crimes is a legal matter that requires cooperation between national and international actors. Key to this process is the incorporation of international treaties and conventions into domestic law.2 Through this incorporation, States undertake to abide by their international obligations and criminalise behaviour which is already punished in international law.
The International Criminal Court (ICC), tasked with trying individuals charged with genocide, war crimes, crimes against humanity and crime of aggression,3 follows the complementarity principle according to which it can only prosecute a crime if a State is ‘unwilling or unable genuinely to carry out the investigation or prosecution’.4 In most cases, however, it is presumed that States will want to assert their jurisdiction.5 Prosecuting an international crime at the domestic level allows for justice to be served directly to the affected community and facilitates the process of gathering evidence and testimonies from witnesses and victims.6
The incorporation of these international laws into the domestic sphere raises several legal issues affecting the efficiency of national prosecution. Indeed, it follows from the complementarity principle that the repression of international crimes is largely contingent on the content and the procedural modalities of the domestic laws incorporating international criminal conventions. Regrettably, some States do not have adequate legal provisions to prosecute those crimes: their procedural rules often impose unnecessary limits on national judges’ scope of action.7 Such States include the United Kingdom (UK) and France, who belong to different legal systems and are influenced by their own legal traditions. By focusing on these two countries and comparing their approaches, the resulting analysis presents the possible impact of such systemic differences. This is most evident in the study of the crime of genocide, the incorporation of which strictly follows the traditions of each State and illustrates the benefits and flaws of their system. This article seeks to give an overview of the punishment of the crime of genocide in France and in the UK through their domestic incorporations of the Convention on the Prevention and Punishment of the Crime of Genocide (hereafter ‘the Convention’)8 and the Rome Statute.
When enacting domestic legislation for international crimes, States have to address the wording of the national definition (which can differ from the international definition provided in international conventions) and the basis of jurisdiction granted to their courts. Although States can proceed in several ways,9 Antonio Cassese points to the existence of a dichotomy between common and civil law countries, who prefer different modalities, in their domestic incorporation of international crimes.10 On the one hand, common law jurisdictions such as the UK prefer the ‘reference model’ whereby they use the same definition given in the international convention or directly refer to the relevant international provision in their national law. This approach has been characterised by some scholars as being ‘static’ or ‘literal’.11 On the other hand, civil law jurisdictions such as France tend to codify international conventions in a domestic code and carry out a ‘modified’12 or ‘dynamic’13 incorporation through which the lawmaker rephrases the definition and adds or removes material conditions.
The incorporation process also implies the need to determine the basis of jurisdiction,14 which is a key element in the punishment of the crime of genocide and the fight against impunity. Depending on the basis chosen by States, the inhibitory effect of jurisdictional rules on the prosecution of international criminals will vary. Universal jurisdiction has been recognised by scholars and non-governmental organisations (NGOs) as being a major tool in the fight against impunity,15 and it is vital in ensuring the denial of safe havens for international criminals.16 There have been many interpretations of universal jurisdiction with no definite consensus on its definition. For the purposes of this article, this principle is defined as the competence of a State to prosecute international criminals regardless of where the crime was committed, the nationality of the author or the nationality of the victim.17 More specifically, universal jurisdiction, which is not dependent on any legitimising link to the prosecuting State, is usually qualified as ‘absolute’ or ‘unrestricted’.18 Accordingly, this means that a ‘conditional’ or ‘restricted’ universal jurisdiction requires some kind of link (though usually a rather weak one) to the forum State in order to be triggered.19
This article gives a critical account of the incorporation processes in the UK (I) and France (II) and argues that despite their different approaches, the quality of the results at the domestic level is similar in that both States ultimately do not establish a universal jurisdiction that would combat impunity in the most effective way.
I. The static incorporation process in the UK: a limited effort contradicting the Government’s pledge to fight against impunity
The next three sections will present the incorporation laws adopted by the UK in a chronological order
A. The Genocide Act: a symbolic law lacking efficiency
In the UK, the first attempt to incorporate the 1948 Convention was the Genocide Act 1969, in which Parliament followed the static model of incorporation by directly referencing the Convention and stating that ‘a person commits an offence of genocide if he commits any act falling within the definition of “genocide” in Article II of the Genocide Convention’.20 Static incorporations typically have the advantage of clearly identifying which conducts are criminalised, therefore conforming with the principle of legality and minimising the interpretative discretion awarded to judges.21
The UK’s adoption of the Convention, more than 20 after it was signed by the United Nations, was primarily prompted by concerns about its international reputation as a ‘civilised nation’ condemning genocide. Concerns about ‘the number of prosecutions to which [the Convention] will give rise [to]’ took a backseat.22 This explains why the Genocide Act, which incorporated the Convention, had a mostly symbolic purpose, rather than a practical one. Indeed, since it only covered acts of genocide committed within the UK, the Genocide Act was essentially inapplicable.23
B. The ICC Act: a failed attempt at rectifying the impunity gaps
The International Criminal Court Act (ICC Act), which was meant to implement the Rome Statute into domestic law, was introduced by the UK in 2001. Through the ICC Act, the UK attempted to remedy the territorial limit of the Genocide Act. This Act followed the same static approach of implementation by stating that ‘genocide’ means an act of genocide as defined in article 6 [of the Rome Statute]’.24 Section 83 of the ICC Act repealed the Genocide Act while Section 51 extended the UK’s jurisdiction by giving it the power to prosecute genocide that was either committed in the UK, or anywhere in the world if the suspect was a UK national or resident and if the crime occurred after 2001.25 While this is a welcome evolution from the previous legal regime as it gives extraterritorial jurisdiction to British courts, this does not constitute universal jurisdiction since there is still a very strong link with the prosecuting State. It also does not fulfil the UK Government’s pledge that the UK would not become ‘a safe haven for international criminals’.26 Indeed, Section 51 gives rise to two ‘impunity gaps’.
B1. The temporal impunity gap
Under the original wording of the ICC Act, the UK could only prosecute suspects for genocides committed outside of its territory if they occurred after 2001. Scholars such as Ronan Cormacain have argued that these provisions create an ‘impunity gap’, which should be rectified by allowing British courts to prosecute individuals for genocide committed abroad before 2001.27 The Government has refused to do so, claiming that backdating the ICC Act would constitute illegal retrospective application and ‘would not provide sufficient certainty about what would constitute an offence and at what period of time’.28 However, backdating the ICC Act would not breach the principle of non-retroactivity, as this principle ‘does not prevent a crime from being prosecuted under national law so long as the conduct proscribed was criminal under international law at the time it occurred’.29 This is consistent with the European Convention on Human Rights (ECHR), according to which ‘[n]o one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed’ (emphasis added).30 Since the Convention was adopted in 1948, the domestic law of the UK could very well be amended to apply to crimes which were committed from 1948 onwards, so as to include as many perpetrators of genocide as possible without falling into illegal retrospective application.
B2. The residence impunity gap
The second impunity gap arising from the ICC Act 2001 lies in the requirement of ‘residency’, the definition of which is unclear and which allows international criminals to pass through the UK and even stay for short visits without risking prosecution.31 For this reason, it was recommended to the Government that ‘residence’ should be replaced by ‘presence’ in the law to send ‘the strongest possible message’ to international criminals.32 While the Government admitted the ‘flexibility’ of the term ‘residency’, it nevertheless refused to acknowledge any practical gaps that could be derived from the term and did not see it fit to replace the residency requirement drafted by the UK.33
C. The Coroners and Justice Act: a confirmation of the UK’s reluctance towards universal jurisdiction
In the face of criticism of the ICC Act, the British Government enacted the Coroners and Justice Act 2009 (CJA). The CJA brought changes to the wording of the ICC Act by backdating its provisions on genocide to 1 January 1991, therefore providing for a ‘retrospective application’ of the offence.34 Though the Government had been previously wary of such modifications, this retrospective application was eventually justified by ‘the terrible nature of the crimes in question’.35 Amid suggestions by NGOs and scholars to backdate the provisions to 1948, the Government settled on 1991 mainly for symbolic reasons, as the date was deemed ‘pivotal in the development of international law’.36 1991 therefore represents a compromise for the Government. It extends the temporal scope of the ICC Act to include crimes committed in the former Yugoslavia and Rwanda, which the Government admitted are the areas with which they are most concerned, while also ensuring a fair chance of success for prosecutions.37
Although the Government agreed to enact changes to the ICC Act’s temporal scope, it still refused to replace the requirement of ‘residence’ with one of ‘presence’, claiming that this would amount to establishing a universal jurisdiction over individuals ‘with no connection to the United Kingdom, except for temporary presence’.38
The UK Government expressed fears that establishing a universal jurisdiction would make the UK infringe on the national sovereignty of other States by becoming a ‘global prosecutor’.39 However, in the UK’s case, establishing a universal jurisdiction is justified by the pressing need to ensure that no international criminal finds refuge in the country.40 Nothing indicates that it would become a ‘global prosecutor’ – especially considering that if the UK did eventually change the wording of the ICC Act, it would still require at least the presence of the suspected criminal on its territory.41 Such fears are also inconsistent with the UK’s universal jurisdiction for the crime of torture.42 Indeed, according to the Criminal Justice Act 1988, individuals suspected of having committed torture abroad and who visit the UK can be prosecuted by British courts regardless of their nationality or their residency status. The same does not hold true for suspected génocidaires.
The UK Government explained these diverging standards by arguing that while international law has allowed universal jurisdiction in respect to torture, as shown in article 5(2) of the Convention Against Torture, it has not done so for genocide.43 It believes that they should only implement universal jurisdiction for a crime when required to do so by an international convention, as a way of fulfilling their obligations.44 This is not the case for the crime of genocide, as the Convention is only based on territorial jurisdiction. Coming from a country which has been vocal about its desire to fight against impunity, such a policy is paradoxical and, most importantly, dangerous. Indeed, although the UK Government claimed that the residency requirement would not create any loopholes allowing a suspected criminal to escape prosecutions altogether,45 it has unfortunately had consequences in practice, most notably in relation to Rwandan genocide suspects living in the UK.
In 2009, four suspects46 who were fighting their extradition to Rwanda were released by the High Court.47 They were accused of taking part in the 1994 genocide and were being extradited following an order issued by the Secretary of State in August 2008.48 In the appeals judgment, the High Court held that ‘if these appellants were returned there would be a real risk that they would suffer a flagrant denial of justice’.49 It therefore fell to the UK to prosecute them. At that time, however, since the CJA had not yet been adopted, the UK was faced with not one but two jurisdictional gaps which did not allow its courts to prosecute the suspected criminals. Indeed, months before the judgement, the Crown Prosecution Service (CPS) had considered whether it could prosecute the suspects in case their extradition failed. It had concluded that because of the two impunity gaps, namely the temporal restriction that still applied at that time and the residency requirement, it ‘didn’t have jurisdiction to prosecute them for acts of genocide or for war crimes committed in Rwanda in 1994’.50 This is a telling example of the importance of domestic legislation in the punishment of genocide, and of the consequences that the impunity gaps have on prospective genocide prosecutions.
II. The dynamic incorporation process in France: a late and transformative effort at criminalising genocide
Having studied the UK’s incorporation laws and its reluctance to adopt universal jurisdiction, this analysis will discuss the French incorporation process from a temporal and substantive point of view, before turning to France’s policy on universal jurisdiction.
A. A legal vacuum protecting French criminals
As opposed to the UK, France signed the Genocide Convention immediately after it was adopted by the UN, but did not incorporate it in its Penal Code until 1 March 1994 in article 211-1. Due to the principle of non-retrospective application of criminal laws,51 this delay led to a legal vacuum for any crimes committed between the end of the Second World War and the time when article 211-1 was adopted. This mostly concerns crimes committed during France’s colonial rule. Indeed, in the absence of an international tribunal, those crimes fell neither within international law nor within national law,52 unlike crimes committed by the Nazis during the Second World War for which customary law was used to dismiss allegations of retroactivity. In 2003, the French Cour de Cassation declined its jurisdiction for crimes committed in Algeria between 1955 and 1957, stating that articles 211-1 to 212-3 of the French Penal Code could not be applied in that situation.53
B. A modified definition of genocide
When France eventually incorporated the Convention into its domestic law, it followed a dynamic approach and substantially modified the definition of genocide in several ways. A purely comparative reading of the French and international provisions shows that there are two main changes in the French definition. One is regarded as restricting its scope, while the other broadens it.
On the one hand, the French definition introduces the criterion of an act committed ‘in pursuance of a coordinated plan’, a requirement which the French Government felt was necessary to prevent the ‘normalisation’ of genocide.54 This does not exist in the international definition.55 Although the existence of a coordinated plan can be used as an evidence that the crime of genocide was committed, scholars as well as international courts are adamant that its absence does not mean that such an act was not committed.56 This new condition replaces the international requirement of ‘intent’, which is the cornerstone of the definition of genocide and sets it apart from other crimes such as crimes against humanity.57 As such, the criterion of specific intention alone is enough to prevent the normalisation of genocide, without having to restrict it further.58 Moreover, the requirement of a coordinated plan implies the need to prove premeditation,59 which substantially elevates the burden of proof for the prosecution.60 For these reasons, it is argued that the inclusion of this new condition would open the floodgates to the denial of the crime of genocide. It also makes it harder to prosecute any perpetrators of this crime.61 Though this assertion may overstate the difficulty of prosecution, as three individuals have successfully been convicted of genocide in France,62 the requirement of a coordinated plan still, more likely than not, to restricts the scope of action of French courts in this respect.
On the other hand, article 211-1 extends the definition of ‘protected victim groups’ to include groups ‘determined from any other arbitrary criterion’, in addition to the four criteria of nationality, ethnicity, race, or religion already listed in the Convention. As opposed to the requirement of coordinated plan, this is a welcome addition as it allows, inter alia, political or cultural groups to be taken into account.
It naturally follows from the dynamic incorporation process that the French definition sets itself apart from the international definition. The consequences of this approach, in this particular case, are twofold. Though France manages to remedy one of the flaws of the international definition by allowing more groups to be protected, it risks preventing prosecutions for an individual whose behaviour is criminalised under international law but not under the French law.
C. The French policy regarding universal jurisdiction
When it comes to its policy regarding the prosecution of international crimes, France has implemented two different regimes, each with its own set of procedural rules.
C1. A restricted jurisdiction for crimes governed by the ICC
Apart from modifying the definition of genocide, France introduced several cumulative procedural requirements limiting the scope of action of French courts. These requirements are found in article 689-11 of the French Code of Criminal Procedure (CCP), adopted on 9 August 2010. They form part of the law adapting French law to the institution of the ICC. Regarding genocide, this provision stipulates that any individual suspected of having committed a genocide abroad can be prosecuted by French courts ‘if they habitually reside in the territory of the Republic’.63 This is essentially the same criterion as the one used in the UK. As such, it has been criticised in the same manner by scholars for being inconsistent with regard to the requirement of mere presence for the crime of torture and for contradicting the very essence of universal jurisdiction.64 Likewise, the justification behind the French Government’s refusal of the ‘presence’ requirement is that such a condition is not explicitly provided for in the Genocide Convention or in the Rome Statute,65 as opposed to the wording of the Convention Against Torture.
Article 689-11 of the CCP sets out three more barriers undermining the ability of French courts to prosecute international criminals. First, the requirement of double criminality stipulates that the conduct in question must be criminal under both French law and the law of the State whose national committed the alleged crime, or on whose territory the alleged crime was committed. The inclusion of this requirement is surprising, as international crimes are frequently committed with the support of, or are instigated by, the Government of the State where they took place. As such, States which do not adequately criminalise these conducts are typically the ones that are the most likely to be involved in their commission.66 In November 2021, the Cour de cassation held that French courts did not have jurisdiction to prosecute a Syrian war criminal since Syrian law does not criminalise crimes against humanity as such.67 This is a telling example of the practical difficulties resulting from the double criminality requirement.
Second, article 689-11 makes the Ministère Public (the prosecution office) the only body vested with the power of initiating proceedings, taking away from any private individual the opportunity to do so. This is regarded as a violation of the rights of victims to an effective remedy,68 and limits the cases accepted by the courts to those in which the prosecution office has an interest in prosecuting.
The last barrier is in direct contradiction with the Rome Statute and the complementarity principle on which the ICC is based.69 It provides that the French authorities can only prosecute a suspected criminal if the ICC declines its own jurisdiction.70 The ICC would therefore have primary responsibility for the prosecution of international criminals, which goes against its own principles.
C2. A conditional universal jurisdiction for crimes governed by the ICTY and the ICTR
When it comes to the specific cases of crimes committed in Rwanda and the former Yugoslavia, France has exceptionally allowed for the exercise of a conditional universal jurisdiction. In 1995 and 1996, France adopted two distinct laws implementing UN Security Council Resolutions 827 and 955, which created the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). These laws allowed the introduction of an ad-hoc universal jurisdiction for war crimes, crimes against humanity and genocides committed in the former Yugoslavia and Rwanda respectively,71 by requiring only that authors or accomplices of genocide be ‘found in France’ in order to trigger domestic prosecutions.72 However, neither the UN Security Council Resolutions nor the Statutes of the ICTY and ICTR require national legislations to set up a universal basis for prosecutions. It follows that the French lawmakers’ claims in 2010 that they could not establish a universal jurisdiction for crimes covered by the ICC is not justified.73
Yet, there is no doubt that these laws had a positive impact on pending prosecutions in France. Most notably, the prosecution of Wenceslas Munyeshyaka, suspected of having taken part in the Rwandan genocide, was directly linked to the adoption of the 1996 law.74 The Court of Appeal had previously stated that it could not prosecute him since French law, at that time, did not allow prosecutions on the basis of the suspect’s mere presence on the territory.75 This decision mirrors the CPS’s conclusion in 2008 that it did not have jurisdiction to prosecute the four suspects whose presence was recorded on UK territory, and demonstrates the common obstacles faced by prosecuting authorities in both countries. Such obstacles could easily be overcome by minor changes in the wording of the laws – if the UK and French Governments were inclined to enact them.
Conclusion
It is difficult to make the case for either the static or the dynamic approach of incorporation, as both methods have their own limitations. However, the French policy seems to offer better results when it comes to the prosecution of international criminals. Unlike the UK, France has implemented a special regime which establishes universal jurisdiction for crimes committed in Rwanda and the former Yugoslavia. Under this regime, French courts have been successful at prosecuting and convicting international criminals. Considering this, there is no reason why these measures should not be extended to the general regime applicable to crimes governed by the ICC, which still requires the suspected criminal to be a resident of the State and imposes several regrettable barriers to prosecutions. In any case, such barriers should undoubtedly be removed. The UK, for its part, should follow suit and change the wording of the ICC Act – this would ensure that it does not remain a safe haven for international criminals and would have the added benefit of correcting the inconsistency with regard to the universal jurisdiction granted to courts for the crime of torture. Indeed, while this article does not fundamentally argue in favour of an absolute and systematic universal jurisdiction, it points to the importance of this principle in the fight against impunity and concludes that any State failing to provide for at least a conditional form of universal jurisdiction risks becoming a safe haven for international criminals.
[1] Due to the wide scope of the topic discussed, this article will restrict itself to a comparison between the specific domestic legislations of the UK and France for the crime of genocide. Some aspects will be presupposed, e.g., the importance of universal jurisdiction in the fight against impunity despite the Convention’s silence on this subject. Others, such as the role of customary law in the prosecution of international crimes, will not be discussed.
[2] Note that the relevance of incorporation can vary depending on the rule of international law that is being incorporated. Although dualist States typically require an international treaty to be incorporated into domestic law in order for the treaty to be domestically effective, customary law such as ius cogens is perceived as being, in itself, part of national law.
[3] Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002 UNGA) 2187 UNTS 90 (Rome Statute) art 5.
[4] ibid art 17.
[5] Robert Cryer, Darryl Robinson and Sergey Vasiliev, An Introduction to International Criminal Law and Procedure (4th edn, Cambridge University Press 2019) 80.
[6] Kate Grady, ‘International Crimes in the Courts of England and Wales’ (2014) 10 Criminal Law Review 693.
[7] Cryer, Robinson and Vasiliev (n 5) 79.
[8] Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951 UNGA) 78 UNTS 277 (Genocide Convention).
[9] For a detailed account of the different models of incorporation for the crime of genocide, see Helmut Kreicker, ‘National Prosecution of Genocide from a Comparative Perspective’ (2005) 5 International Criminal Law Review 313.
[10] Antonio Cassese, ‘Issues, Institutions, and Personalities’ in Antonio Cassese (ed), The Oxford Companion to International Criminal Justice (Oxford University Press 2009) 428.
[11] Kreicker (n 9) 322; Morten Bergsmo, Mads Harlem and Nobuo Hayashi (eds) Importing Core International Crimes into National Law (2nd edition, Torkel Opsahl Academic EPublisher, 2010) 8.
[12] Cassese (n 10) 428.
[13] Kreicker (n 9) 321; Bergsmo, Harlem and Hayashi (n 11) 8.
[14] Bergsmo (n 11) 6.
[15] See, for example, Cassese (n 10) 429; Isidoro Blanco Cordero, ‘Compétence universelle: Rapport général’ (2008) 79 Revue internationale de droit pénal 13.
[16] Redress and others, ‘Ending Impunity in the United Kingdom for Genocide, Crimes against Humanity, War Crimes, Torture and Other Crimes under International Law: The Urgent Need to Strengthen Universal Jurisdiction Legislation and to Enforce It Vigorously’ (Redress, July 2008) <https://redress.org/wp-content/uploads/2018/01/Jul-08-Ending-Impunityin-the-UK.pdf > accessed 12 March 2022.
[17] Institut de Droit International (Seventeenth Commission), ‘Resolution on Universal Criminal Jurisdiction with Regard to the Crime of Genocide, Crimes against Humanity and War Crimes’ (26 August 2005).<https://www.idi-iil.org/app/uploads/2017/06/2005_kra_03_en.pdf> accessed 12 March 2022.
[18] Kreicker (n 9), 318 ; Blanco Cordero (n 15) 20 ; Karinne Coombes, ‘Universal Jurisdiction: A Means to End Impunity or a Threat to Friendly International Relations?’ (2011) 43(3) The George Washington International Law Review 419, 436; Antonio Cassese, ‘Is the Bell Tolling for Universality? A Plea for a Sensible Notion of Universal Jurisdiction.’ (2003) 1(3) Journal of International Criminal Justice 589, 595.
[19] For more information on absolute and conditional universal jurisdiction, see Noora Arajärvi, ‘Looking Back from Nowhere: Is There a Future for Universal Jurisdiction over International Crimes?’ (2011) 16 Tilburg Law Review 5.
[20] Genocide Act 1969, s 1(1).
[21] Bergsmo (n 11) 8.
[22] HC Deb 5 February 1969, vol 777, col 485; Karen E Smith, ‘Acculturation and the Acceptance of the Genocide Convention’ (2013) 48(3) Cooperation and Conflict 358, 370-71.
[23] When asked for evidence regarding the number of prosecutions for the crime of genocide, the UK Government advised the Joint Committee on Human Rights that there were no prosecutions under the Genocide Act 1969. See Joint Committee on Human Rights, _Closing the Impunity Gap: UK Law on Genocide (and Related Crimes) and Redress for Torture Victim_s (2008-08-11, HL 153, HC 553) para 32.
[24] International Criminal Court Act, s50 (1).
[25] ibid s 51(2).
[26] Robert Cryer and Paul David Mora, ‘The Coroners and Justice Act 2009 and International Criminal Law: Backing into the Future?’ (2010) 59(3) International & Comparative Law Quarterly 803.
[27] Ronan Cormacain and others, ‘Suspected War Criminals and Génocidaires in the UK – Proposals to Strengthen Our Laws’ (Aegis Trust, 2009) < https://d3n8a8pro7vhmx.cloudfront.net/nickdonovan/pages/82/attachments/original/1483191744/Suspected_War_Criminals_in_the_UK_Nick_Donovan.pdf?1483191744> accessed 12 March 2022.
[28] Memorandum submitted to the Justice Committee by the Ministry of Justice, October 2008 (as cited in: Joint Committee of Human Rights (n 23)).
[29] Tom Porteus, ‘Letter to UK Justice Secretary Jack Straw Regarding Amendment of the International Criminal Court Act of 2001’ (Human Rights Watch, 12 May 2009) <https://www.hrw.org/news/2009/05/12/letter-uk-justice-secretary-jack-straw-regarding-amendment-international-criminal> accessed on 10 July 2021.
[30] European Convention of Human Rights (ECHR), art 7(1).
[31] Joint Committee on Human Rights (n 23) para 38; Cryer and Mora (n 26) 810.
[32] ibid para 51; John R.W.D. Jones, ‘Chapitre 2: Droit anglais’ in Antonio Cassese and Mireille Delmas-Marty (eds), Juridictions nationales et crimes internationaux (Presses Universitaires de France 2002) 67; Cormacain and others (n 27).
[33] Ministry of Justice, Memorandum submitted to the Joint Committee on Human Rights, ‘Offences of genocide, torture and related offences’ (February 2009) para 13.
[34] Coroners and Justice Act (CJA) 2009, s 70(3).
[35] HL Deb 26 October 2009, vol 713, col 1070W.
[36] ibid. As per Lord Bach, 1 January 1991 is the date from which the International Criminal Tribunal for the former Yugoslavia had jurisdiction to prosecute all three categories of crime: genocide, war crimes and crimes against humanity.
[37] UK Parliament Ministry of Justice, ‘The Government Response to the Joint Committee on Human Rights Report: Closing the Impunity Gap: UK Law on Genocide (and Related Crimes) and Redress for Torture Victims’ (The Stationery Office, October 2009) 6.
[38] HL Deb 7 July 2009, vol 712, col 660.
[39] UK Parliament Ministry of Justice (n 37) 5.
[40] Máximo Langer makes an interesting distinction between two conceptions of universal jurisdiction: the ‘global enforcer’ conception and the ‘safe haven’ conception. The ‘global enforcer’ conception usually presumes a bigger role for states to ‘prevent and punishing core international crimes committed anywhere in the world’. The ‘safe haven’ conception, on the other hand, mainly exists to ensure that a country does not become a sanctuary for international criminals. For more details on the two conceptions of universal jurisdiction, see Máximo Langer, ‘Universal Jurisdiction Is Not Disappearing: The Shift from “Global Enforcer” to “No Safe Haven” Universal Jurisdiction’ (2015) 13(2) Journal of International Criminal Justice 245. See also Anna Macdonald, ‘Strengthening UK Law on Genocide, War Crimes and Crimes Against Humanity’ (Aegis Trust, 2009) 49.
[41] Additionally, some authors have argued that in light of the prohibition of genocide being a norm of ius cogens, the commission of that crime is not an internal affair and is not, therefore, ‘covered by sovereign rights’. See, for example, Kreicker (n 9) 318; Antonio Cassese, ‘Is the Bell Tolling for Universality? A Plea for a Sensible Notion of Universal Jurisdiction.’ (2003) 1(3) Journal of International Criminal Justice 589, 592.
[42] Criminal Justice Act 1988, s 134 (1).
[43] UK Parliament Ministry of Justice (n 37).
[44] Ministry of Justice (n 33) para 10.
[45] UK Parliament Ministry of Justice (n 37) 4.
[46] Vincent Brown (also known as Vincent Bajinja), Charles Munyaneza, Emmanuel Nteziryayo and Celestin Ugirashebuja.
[47] Vincent Brown and others v The Government of Rwanda and The Secretary of State for the Home Department [2009] EWHC 770 (admin).
[48] ibid para 1.
[49] ibid para 121. Since then, two other extradition orders have been issued at the request of Rwanda, but they were both quashed by British courts on the same grounds. See Rwanda v Nteziryayo and others [2017] EWHC 1912 (admin). As of the time of writing, although all four individuals have now gained the residency status, the UK still has not prosecuted them.
[50] Sir Ken Macdonald QC, ‘Speech to the Genocide Prevention APPG and the Parliamentary Human Right Group (21 October 2008) (as cited in Cormacain and others (n 27)).
[51] Note that the French Cour de Cassation, like the British Government, has dismissed the previously stated argument that the ECHR permits the prosecution of crimes which constituted criminal offences under international law at the time when they were committed, even if it is done retrospectively from the point of view of the national law. The court seems to highlight the importance of domestic criminalisation for crimes against humanity and genocides. See Cass. Crim., 17 juin 2003, n° 02-80.719.
[52] Christophe André, Droit pénal spécial (5e édition, Dalloz 2019) 41.
[53] Cass. Crim., n° 02-80.719 (n 51).
[54] The French Government is of the opinion that genocide is a particularly odious category of crimes against humanity and therefore that the definition needs to be restricted in order to avoid any attack being categorised as a genocide. The requirement of a coordinated plan reflects the unique circumstances in which the material acts of the crime were committed. See Michel Sapin (Deputy Minister for Justice) and M. Gérard Gouzes (President of the Law Committee at the French National Assembly) in Assemblée nationale, 2e Session (2 December 1991) 6997.
[55] See art 2 of the Genocide Convention (n 8): ‘genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such’.
[56] See Prosecutor v Radislav Krstić (Appeal Judgment) ICTY-98-33-A (19 April 2004) para 224 ; Xavier Philippe and Anne Desmarest, ‘Remarques critiques relatives au projet de loi «portant adaptation du droit pénal français à l’institution de la Cour pénale internationale»: la réalité française de la lutte contre l’impunité’ (2010) 81 Revue française de droit constitutionnel 41, 57.
[57] Caroline Fournet, The Crime of Destruction and the Law of Genocide : Their Impact on Collective Memory (Ashgate 2007) 61.
[58] Philippe and Desmarest (n 56).
[59] Céline Renaut, ‘La modification du Code pénal français du fait de la ratification du Statut de Rome de la Cour pénale internationale’ (Conference on ‘La mise en application du Statut de la Cour pénale internationale en droit interne (ratification, lois de coopération et de modification du code pénal), aspects comparatifs’, Sceaux, 24 March 2005) 12 http://www.credho.org/evenemts/2005/coll2005sceauxren.pdf accessed 13 March 2022.
[60] See for example André (n 52); Valérie Malabat, Droit pénal spécial, (9e édition, Dalloz 2020); Renaut (n 59) ; Claire Bruggiamosca, ‘Le Génocide, Une Notion de Droit International Pénal Dans Le Code Pénal Français’ (2015) 10 Revue électronique de l’Association Internationale de Droit Pénal A-02 <https://www.penal.org/sites/default/files/files/ReAIDP2015%20A-2.pdf> accessed 13 March 2022.
[61] Aurélia Devos, ‘Juger le passé au présent : une promesse pour l’avenir ?’ (2014) 4 Les Cahiers de la Justice 553, 554.
[62] See the trial of Pascal Simbikangwa (Cass. Crim., 24 mai 2018, n° 16-87.622) and joint trial of Octavien Ngenzi and Tito Barahira (Cass. Crim., 16 octobre 2019, n° 18-84.608).
[63] Code de procédure pénale (CCP), art 689-11.
[64] Philippe and Desmarest (n 56) 48-50; Jinane Baroudy, ‘Droit international pénal: La compétence universelle en mutation…’ (2011) 1 Revue de science criminelle et de droit pénal comparé 235; See also CCP (n 63) arts 689-1 and 689-2.
[65] Assemblée nationale, 1e session (13 July 2010) (France).
[66] Baroudy (n 64).
[67] Cass. Crim., 24 novembre 2021, n° 21-81.344.
[68] Commission nationale consultative des droits de l’homme, ‘Avis sur l’avant-projet de loi portant adaptation de la législation française Au Statut de La Cour pénale internationale’ (15 May 2003) 6 <http://www.cncdh.fr/sites/default/files/03.05.15_avis_cpi.pdf> accessed on 26 July 2021.
[69] Rome Statute (n 3) art 17.
[70] CCP (n 63) art 689-11.
[71] Loi n°95-1 du 2 janvier 1995 portant adaptation de la législation française aux dispositions de la résolution 827 du Conseil de sécurité des Nations Unies instituant un tribunal international en vue de juger les personnes présumées responsables de violations graves du droit international humanitaire commises sur le territoire de l’ex-Yougoslavie depuis 1991 (1); Loi n°96-432 du 22 mai 1996 portant adaptation de la législation française aux dispositions de la résolution 955 du Conseil de sécurité des Nations unies instituant un tribunal international en vue de juger les personnes présumées responsables d’actes de génocide ou d’autres violations graves du droit international humanitaire commis en 1994 sur le territoire du Rwanda et, s’agissant des citoyens rwandais, sur le territoire d’Etats voisins.
[72] ibid art 2. Note that although the ‘presence’ requirement constitutes a link to the prosecuting State, it is minimal and therefore still fits the definition of a ‘conditional’ or ‘restricted’ universal jurisdiction.
[73] Assemblée nationale, 1e session (n 65).
[74] Cass. Crim., 6 janvier 1998, n° 96-82.491.
[75] Dupaquier, et al. v Munyeshyaka [1996] Indictment Division of the Nîmes Court of Appeal (France). Munyeshyaka was eventually cleared of all charges in October 2019.
Chakée Adjemian
LLB (Paris Nanterre University) ’19, LLM Public International Law (LSE) ’21