Follow-up on French Karadzic Decision

In support of my argumentation on the role of the interaction between French civil courts and the ICTY, and the suggested idea that French civil courts should suspend their decision under a verdict is achieved, I have come across rule 106 of the ICTY RPE on the compensation for victims:

(A) The Registrar shall transmit to the competent authorities of the States concerned the judgement finding the accused guilty  of a crime which has caused injury to a victim.
(B) Pursuant to the relevant national legislation, a victim or persons claiming through the victim may bring an action in a national court or other competent body to obtain compensation.
(C) For the purposes of a claim made under paragraph (B) the judgement of the Tribunal shall be final and binding as to the criminal responsibility of the convicted person for such injury.

This Rule, particularly paragraph (C) supports the claim that there is a functional link between the ICTY and national courts, not merely a factual one. One could of course wonder whether the judges in the RPE, in the absence of any explicit statutory provision on compensation for victims, or the effect of ICTY judgments in national legal orders, can actually be deemed to have adopted this rule ultra vires. However, the Rule indirectly finds support in the non bis in idem provision of the Statute (article 10), which provides that

No person shall be tried before a national court for acts constituting serious violations of international humanitarian law under the present Statute, for which he or she has already been tried by the International Tribunal. 

One can therefore argue, as I did in my previous post, that, to the extent that ICTY judgments are deemed to have a clear legal effect in national systems, i.e, be just as binding as a national criminal judgment would be, ongoing international criminal proceedings can have the corresponding same effect than national criminal proceedings, i.e. suspend civil proceedings until the conclusion of the trial, especially given the impossibility of concurrent French criminal proceedings.

This certainly raises interesting questions on the interactions between legal orders, the international and the national one, and more importantly the porosity between the two. Any comments are as usual welcome.

[UPDATE: One member of Karadzic's legal team has reacted (unsurprisingly) to reject the French decision. He considers that the decision is "illegal" because, just to cover all angles, 1) there is no guilty verdict by the ICTY, 2) anyway there is no link between what he is tried for and what  the facts considered by the French Court and 3) that the Court has no jurisdiction to decide whether a defendant is guilty of war crimes. I hope he is more efficient in his defense of Karadzic because his reasoning is notably unconvincing. Indeed, if there is no link between what the Paris court ruled upon and the charges at the ICTY, then there is actually no obstacle for the French Court to independently rule on the facts before it. Moreover, there is a double inaccuracy in his third point: a) of course a French Court has material competence over war crimes, from its own criminal code, especially as there is a clear personal link with the nationality of the victims and b) in any case, it is a civil decision, so technically Karadzic was not found guilty of war crimes.
In any case, the question of the link between the two procedures is interesting. Indeed, my reasoning is based in the assumption that there is such a link between the harm the plaintiffs claimed in France and ICTY charges. This assumption is based on the apparently explicit referral to ICTY proceedings by the French tribunal. But if in fact, there is no link, then my argument, of course does not hold. I'm still trying to get hold of the decision to verify this.]

French civil Court orders Karadzic to compensate Bosnian Family

According to an AFP report, the Tribunal de Grande Instance of Paris has ordered Radovan Karadzic and Biljana Plavsic to pay 200 thousand euro in compensation to a Bosnian family living in France since the war. The Court found itself incompetent to consider the case against Krajisnic (the report does not say why) and requested additional information against Mladic.

In relation to Plavsic, the Court apparently relied on her conviction for crimes against humanity by the ICTY to find that she had committed faults in relation to the plaintiffs' damage. One should recall that at the time, that case had created quite a stir because she had plea bargained her way to getting the genocide charges dropped.

As for Karadzic, whose trial is still ongoing, the Court found that (rough translation from the AFP report): "the simple fact that no definitive conviction has been reached cannot justify the status quo, which would necessarily create unjustified additional delays for the victims. The judges referred to the right of a victim of  manifest human rights violations to an adequate, useful and swift recourse".

I'll be careful of drawing too many conclusions from a news report (journalists are not necessarily known for their adequate reporting of legal news), but just a few thoughts.

First of all, I'm not aware of any such decisions before, of a civil claim against a current ICTY indictee (if my readers have any information on this...).

[UPDATE: Apparently Karadzic was also the object of civil proceedings in the United States in 2000, while still a fugitive and ordered by a jury to pay compensation. The article raises the question of whether the Republika Srpska could be held liable to pay the reparations, given that Karadzic himself most likely does not have sufficient funds. Also, French courts are definitely less favourable to plaintiffs: the 200.000 euro awarded in Paris seems like chump change compared to the 4,7 billion dollars awarded in the US...]

Second of all, I'm a little puzzled by the procedure. The Court's affirmation that the absence of a criminal conviction is no reason not to go forward is in that respect interesting. For one, from the point of view of French law, there is, if I recall correctly a principle that "le pénal tient le civil en état", which translates roughly as "criminal proceedings hold civil proceedings still". This basically means that when both criminal proceedings and civil proceedings are ongoing, the civil court must wait for the criminal court to decide. Of course, there are not formal criminal proceedings going on in France, so you could say that the rule does not apply. However, the primacy of the ICTY over national jurisdictions actually bars any criminal proceedings for the same crimes in France, so in a way, Karadzic, being tried under a Chapter VII mandate by the ICTY in tried in the name of France. It seems like a convenient way to skirt around the primacy rule, to initiate civil proceedings when criminal ones are not possible.

Finally, I'm struck by the finding of the Court that "manifest" human rights violations require a particularly swift remedy. I was unaware that "human rights" had a different role in French tort law, or in tort law in general (nor what the qualifier "manifest" means for that matter). Why should human rights victims get better recourse than any other plaintiff before a civil Court? This is once again the sign of the way Human Rights has taken over so many branches of law and where moral considerations take over legal reasoning. But that is, I suppose, a different issue...

I'll try and get hold of the decision and keep you posted if there is anything interesting in it.

On A French Constitutional Irony

I don't usually blog about French news, but I had to share the irony of what is going on in the current trial of former President Jacques Chirac. As you might not know, he is on trial for having given fake jobs, paid by the Paris municipality, to people who were actually working for his Party, the RPR (which is now the UMP, the party of current President Nicolas Sarkozy).

This situation had already given rise, 10 years ago, to an interesting discussion on the immunity of an acting head of State, which had been affirmed at the time. The immunity fell when Chirac left power, and the investigation led to the trial which started this week.

On the first day of the trial, the lawyer for one of the other plaintiffs raised a constitutional challenge against the statute of limitations for this kind of crime, which starts running, according to the case-law of the Cour de Cassation, on the day they are discovered, not on the day they are committed.
Such a constitutional challenge is possible since a recent reform of the procedure in France. Before that, laws could be sent to the Constitutional Court before their promulgation, but they were untouchable after that. Now, anybody can raise a challenge in a lower court, and, if the question seems to be well grounded, the proceedings are suspended until the Constitutional Court. It is this procedure which allowed the Court to declare the current system of preventive police incarceration to be unconstitutional.

And now for the irony. The Constitutional Court was set up in the French Constitution of 1958, under the influence of both De Gaulle, and his minister, Michel Debré. And it just happens that De Gaulle's grandson and Debré's son are plaintiffs in the current case. More strikingly, the Court is currently presided by Jean Louis Debré, the brother of the plaintiff, and Jacques Chirac, as a former president, actually sits on the Court...
Although there is apparently a procedure to remove a member of the Court in a particular case, this example more generally shows that the reform put in place was not thought through. Indeed, with the Court essentially involved in the pre-promulgation phase, it wasn't so much of a problem that it had such a political composition. However, now that it has such a strong judicial function, its composition should be changed. If the function changes, so does the institution. The current French Conseil Constitutionnel is a vestige from the past, and must be reformed to face the new legal reality.

New book from French General on France and Rwanda in the never-ending "complicity debate"

Ever since I've started doing ICL, I've been in endless debates about France's role in Rwanda and accusations of complicity of Genocide. I won't go into the details of the debate, but would like to focus on one aspect of it that has come up time and again: the Turquoise UN operation in the summer of 1994 that was led by France. Indeed, the accusation is that France went in to protect the genocidaires and that they even committed atrocities themselves, such as doing some South-American style throwing people out of helicopters. In response to these accusations, the General in charge of the operation, Jean-Claude Lafourcade, just published a book on his experience in Rwanda. He makes some interesting points which I'd like to bring to the discussion.

1) Although it seems obvious, he reminds us that Turquoise in not a French military operation, it's a UN Chapter VII operation, which was approved, if grudgingly, by the US. Also, he points out that the US refused to provide logistical support for transport of troops and that the French troops had to use old soviet planes provided by Ukraine. In addition, he finds some fault in the conduct of the UN, through Romeo Dallaire, which he considers to have not been given sufficient means to act immediately and for being partial towards Kagame.
2) He also reminds us that the Hutu interim government was recognized as the legitimate Rwandan government until mid-July by the UN, which is quite interesting when singling out France for its "support" for the Hutus. In relation to that he recalls that the last French troops left Rwanda in December 1993, so were not present when the genocide started.
3) The general presents in a very clear way the difficulties of intervening in an ongoing conflict. The idea was to be seen as impartial, despite the hostility of the FPR and also of the Rwandan army, once they had realized that the objective of Turquoise was not to maintain them in power.
4) specifically in relation to the genocidaires among the population and the refugees, he acknowledges the difficulties in deciding what to do. For one, the UN Mandate did not include the arrest of war criminals, and he regrets that this was not the case. Second of all, he asks the question of what he he should have done with the refugees, women and children, that were fleeing the advance of the FPR and the accounts of violence against the civilian population, in retaliation for the genocide? Should he have not helped them because there were genocidaires among them? He also points out that Turquoise did not promote the fleeing of the Hutus to the DRC. On the contrary, they tried to set up "safe zones" of humanitarian aid within Rwanda, but that it was the insistance of Kagame to refuse a cease fire that pushed the refugees over the border, justifying the later military operations in eastern Congo that continue, to this day, to destabilise the whole region.
5) In relation to the previous point, Lafourcade insists on the ambiguity of Kagame's conduct. Officially, he criticized France for helping the genocidaires leave the country, while refusing a cease-fire that would have greatly stopped the flow of refugees. On this, he wonders why the FPR assault stopped at the end of April, only to start again, despite the certainty of victory, only when the Turquoise operation started.
6) Interestingly, he points out that it is Turquoise that decided to scramble the radio des mille collines.
7) Finally, the book concludes on some thoughts about the accusations of complicity of genocide. He wonders how come none of the 200 accredited journalists ever denounced alleged misconduct by French troups at the time. He calls for some court decision to be reached impartially on this (there is an ongoing case in France, but it has reached a stalemate for lack of evidence). On the position of the French authorities, he wishes that they would take a clear stand: either acknowledge French involvement in the Genocide if the evidence exists, or clearly denounce the accusations if they are not true. He regrets the actual ambiguity of the political discourse.

Of course, you wouldn't expect a French general to say otherwise, but I think it's interesting to have his account of what happened in the summer of 1994. Personally, I've never bought the complicity of genocide accusation specifically leveled at France. France made a choice in the late-eighties/early-nineties to promote change from the inside and support the Habyarimana regime (with some results, including the first multi-party elections, which, in fact allowed the extremists to be more present in government, as is often the case), whereas Belgian and the US chose the Tutsi rebels supported by Uganda (a rebel army that was trying to overthrow a government legally recognized by the UN until the month of July 1994...). It's a foreign policy choice that can be challenged, but it hardly amounts to complicity of genocide. When you see the people leveling the accusations (an "independent" Rwandan commission among others...), it's hard to give them much credit. Let's have a court decision, in any country, or the ICJ, and settle this.
I perfectly agree with Lafourcade on the actual ambiguity of the French authorities. Either come out and clearly acknowledge wrongdoing, or clearly defend the honor of France, which is accused of the worst of crimes. The weak-kneed middle ground of Sarkozy's visit to Rwanda earlier this year was in that respect very puzzling. I don't understand what kind of guilt-trip can push the President of France to be shown "proof" of French involvement in a genocide at a museum, and not say a word. Once again, either France was involved, and let's have a formal apology from State authorities, or France wasn't, and it is France who should sever diplomatic ties with Rwanda as a point of principle. Anyway, Rwanda doesn't really care about France in any case, with it's anglophone and sinophile turn...

More generally, I remain baffled at the leeway given to Kagame. As I've had the opportunity of saying before, the genocide should not prevent us from critically assessing the conduct of Kagame, before and including during the 1994 civil war, and in the destabilization of the region since, with help from Museveni, another leader who incredibly remains in the good books of the international community, even being rewarded with the ICC review conference this month, despite his country being under investigation... but that's another issue and I expect that I'll post about it in coming weeks...

France and Rwanda Week: Widow Habyarimana arrested

This week, a French president visited Rwanda for the first time in something like 25 years to try and mend diplomatic relations between the two countries. The already cold interactions had taken a turn for the worst a few years ago when a French judge claimed that Tutsi rebels brought down the plane of Habyarimana, which sparks the beginning of the genocide. Kagame has resolutely tried to end francophone influence in Rwanda, leaving the francophonie and joining the commonwealth, and has continuously claimed that France was an accomplice in the Genocide, as a recent Rwandan report alleged.
Sarkozy didn't go as far as saying that France was sorry, but he did accept that France had made "mistakes" and "misjudged" the situation. In a further show of goodwill, the widow of Juvenal Habyarimana, against whom Rwanda had issued an arrest warrant, was arrested in France today. How convenient...
I suppose that France, along with other members of the international community (whatever that means), could accept some responsibility in not preventing the genocide, although they would probably have received as much criticism for neo-colonialist meddling. What I've never understood is the international pandering to Kagame. He's a warlord from the outside that wanted power and seized the opportunity of the genocide to reach his goal. Why do people who can accept the evil of 800 000 people being killed with machetes can't accept the evil of a man rising on the graves of his fellow Tutsis to get into power. The "genocide approach" to Rwanda has completely taken politics out of our evaluation of Rwanda and there can be no criticism of Kagame, for fear of being seen to be insensitive with genocide victims. But the people in power are not the victims of the genocide. The people in power are the rebels from Uganda that didn't experience the genocide.
Of course, Kagame can be seen as not "as worse" as other African leaders. But the difficulties of Rwanda are real, especially in terms of democratic deficit, and I'm not sure that recreating the conditions under which the Tutsi dominate the army and State institutions, in a country that is 84% Hutu, which created the resentment in the past, is a very good idea for the future. And that's without even going into the influence Rwanda has in the destabilization of neighboring states, such as DRC. If there hadn't been the genocide, i'm not sure that Kagame would be so immune to criticism. And in the same way as I find it completely beside the point when israelis (and jews) brandish the Shoah as an irrelevant moral shield against current criticism, I think the 1994 genocide cannot be an excuse for Kagame today. Recognizing the past is in no way the same as excusing the present.