The French Solution to Constitutional issues

 

The French Constitutional Council examined the question of whether the Rome Statute contained provisions running counter to its Constitution. In its ruling, handed down on January 22, 1999, (Cons. Constitutionnel, 22 janvier 1999, Traite portant statut de la Cour penale internationale, 98-408 DC, http:// www.conseil-constitutionnel.fr/decision/1998/98408/98408dv.htm)

the Council responded in the affirmative to this question, identifying three problem areas:

1) absence of immunity for Heads of state, contained in Article 27 of the Statute, contradicts three articles of the French Constitution.

Articles 26, 68 and 61-1 of the French Constitution read as follows:

 

Article 26

 

No Member of Parliament shall be prosecuted, investigated, arrested, detained or tried in respect of opinions expressed or votes cast in the exercise of his duties. No Member of Parliament shall be arrested for a serious crime or other major offence, nor shall he be subjected to any other custodial or semi-custodial measure, without the authorization of the Bureau of the assembly of which he is a member. Such authorization shall not be required in the case of a serious crime or other major offence committed flagrante delicto or a final sentence. The detention, subjection to custodial or semi-custodial measures, or prosecution of a Member of Parliament shall be suspended for the duration of the session if the assembly of which he is a member so requires. The assembly concerned shall convene as of right for additional sittings in order to permit the preceding paragraph to be applied should circumstances so require.

 

Article 68

 

The President of the Republic shall not be held liable for acts performed in the exercise of his duties except in the case of high treason. He may be indicted only by the two assemblies ruling by identical votes in open ballots and by an absolute majority of their members; he shall be tried by the High Court of Justice.

 

TITLE X

 

ON THE CRIMINAL LIABILITY OF MEMBERS OF THE GOVERNMENT

 

Article 68-1

 

Members of the Government shall be criminally liable for acts performed in the exercise of their duties and classified as serious crimes or other major offences at the time they were committed. They shall be tried by the Court of Justice of the Republiv. The Court of Justice of the Republic shall be bound by such definition of serious crimes and other major offences and such determination of penalties as are laid down by statute. (http://www.assemblee-nationale.fr/8/8ab.htm)

2) The jurisdiction of the ICC affects the conditions for exercise of national sovereignty.

There are two scenarios where this would be so. First, in the event that the French Parliament passed an amnesty bill, the ICC might decide it had jurisdiction to prosecute individuals benefiting from such a law. Further, since there is no statute of limitations for crimes listed under the Statute, the ICC could exercise its jurisdiction and prosecute an individual despite the existence of French laws providing limitations on criminal offences, including international crimes.

3) The powers of the ICC Prosecutor affect the conditions for exercise of national sovereignty.

The power of the prosecutor to gather depositions from witnesses and conduct site inspections on a State's territory contradicts the rule giving French judicial authorities sole responsibility to perform actions requested in the name of legal co-operation by a foreign authority.

 

The Solution Adopted by France

 

The French government considered that these were not major obstacles and could be surmounted by the inclusion of a new provision in the Constitution. They therefore added Article 53-2, written as follows:

The Republic may recognize the jurisdiction of the International Criminal Courtas provided by the treaty signed on 18 July 1998. (Constitutional Law No. 99-568, July 8, 1999, inserting in Title VI of the Constitution, Article 53-2 with regard to the International Criminal Court, J.O. No. 157, July 9, 1999, 10 175).

The French justice minister affirms that this new article covers all the issues of unconstitutionality raised by the Constitutional Council and allows France to ratify the Rome Statute (Ministry of Justice of France, Cour penale internationale, adoption du projet de loi constitutionnel, 1999, http://www.justice.gouv.fr/arbo/publicat/note13.htm). The advantage of this type of constitutional reform is that it implicitly amends the constitutional provisions in question, without opening an extensive public debate on the merits of the provisions themselves.

 

Appendix II

 

INTERNATIONAL INSTRUMENTS

CRIMINALISING WAR CRIMES

 

Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of the International Military Tribunal, 8 August 1945, 82 R.T.N.U. 279, art. 6(b).

Charte du Tribunal international pour l'Extreme-Orient, Proclamation speciale du Commandant supreme des Forces alliees en Extreme-Orient, 4 Bevans 20, amende, 4 Bevans 27 (Statut constitutif du Tribunal de Tokyo), reproduit en francais dans S. GLASER, Droit international penal conventionnel, vol. I, (Bruxelles: Bruylant, 1970) p. 225, art. 5(b)

Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949. (1950) 75 R.T.N.U. 31, art. 50

Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva, 12 August 1949. (1950) 75 R.T.N.U. 85, art. 51

Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949. (1950) 75 R.T.N.U. 135, art. 130

Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949. (1950) 75 R.T.N.U. 171, art. 147

Convention pour la protection des biens culturels en cas de conflit arme, 14 mai 1954, Acte final de la Conference intergouvernementale sur la protection des biens culturels en cas de conflit arme, La Haye, UNESCO, 1954, aux pp. 7 - 67, art. 28

Convention sur l'interdiction d'utiliser des techniques de modification de l'environnement a des fins militaires ou toutes autres fins hostiles, 10 decembre 1976, Res. AG A/Res/31/72 (1976), art. IV

Protocole additionnel aux Conventions de Geneve du 12 aout 1949 relatif a la protection des victimes des conflits armes internationaux, (1979) 1125 R.T.N.U. 3, art. 4 et 85

Statut du Tribunal penal international pour l'Ex-Yougoslavie, Dov. off. NU Res. 1993, Doc NU S/RES/827, Annexe art. 2 et 3

Statut du Tribunal penal international pour le Rwanda, Dov. off. V.S. NU Res. 1994, Dov. NU S/RES/955 (1994), Annexe, art. 4.

It is also useful to cite the Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, The Hague, 18 October 1907, Second Peace Conference of The Hague, 1907, June 15 - October 18 1907, Acts and Documents, The Hague, 1907, Vol. I, at 626 - 637. This Treaty does not incriminate violations of the laws of armed conflicts, but contains a lot of rules that have been incriminated by further instruments.

 

Appendix III

 

CASES RELATED TO THE