Annexes

Note: This translation has been prepared by the Registry for internal purposes and has no official
character
ANNEXI
UNITED NATIONS - NATIONS UNIES
POSTA!. ADDRE:SS-AORESSE F"OSTAL.E UNITED NATIONS, N.Y. 10017
CAaL.E ADORES5-ADRESSIE TE~EGRAP'HIQUE UNATIONS N&WYONK
Reference: C.N.798.2003.TREA TIES-4 (Depositary Notification)
CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR
DEGRADING TREA TMENT OR PUNISHMENT
NEW YORK, 10 DECEMBER 1984
CONGO: ACCESSION
The Secretary-General of the United Nations, acting in his capacity as depositary,
communicates the following:
The above action was effected on 30 July 2003.
(IV.9)
The Convention will enter into force for the Congo on 29 August 2003 in accordance with its
article 27 (2) which reads as follows:
"For each State ratifying this Convention or acceding toit after the deposit of the twentieth
instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after the
date of the deposit ofits own instrument of ratification or accession."
31 July 2003
Attention: Treaty Services ofMinistries of Foreign Affairs and ofintemational organizations concemed.
Depositary notifications are made available to the Permanent Missions to the United Nations at the
following e-mail address: [email protected]. Note that annexes to the depositary notifications are
distributed in hard copy format only. The hard copy versions of the depositary notifications are
available for pick-up by the Permanent Missions in Room NL-300. Such notifications are also available
in the United Nations Treaty Collection on the Internet at http://untreaty.un.org.

ANNEXII
Letter dated 9 September 2002 from the lnspector-General of the Congo lese Armed Forces
and National Gendarmerie, General Norbert Dabira,
to the Chargé d'affaires at the French Embassy
Republic of the Congo
Ministry of National Defence
in the Congo, Brazzaville.
Inspectorate-General of the Congolese Armed Forces
and of the National Gendarmerie
Private Office
Further to the Summons for First Appearance sent by the investigating judge of the Meaux
Tribunal de grande instance, 1 am unable to comply with that summons in view of formai
instructions from my Govemment that 1 should not appear; first because, in my capacity as
Inspector-General of the Congolese Armed Forces and of the National Gendarmerie, 1 do not have
to justify my actions in the exercise of my duties before any court other than that of my country,
unless an intemationalletter of request has been issued; secondly, two investigating judges cannot
be seised of the same facts. The proceedings in Meaux, subsequent to those before the Congo lese
investigating judge, are unquestionably barred by the principle of "non bis in idem". The alleged
perpetra tors of the acts in question are all resident in Brazzaville and those acts are alleged to have
been committed in Brazzaville. The jurisdiction of the Brazzaville investigating judge seems to be
the most extensive in the present case. An application for withdrawal on the ground of a dispute as
to jurisdiction will be lodged against the proceedings pending before the Meaux Tribunal de
grande instance.
As 1 know that 1 am completely innocent in a case of which 1 do not know the full details, 1
insisted on obtaining an exit permit, but the Minister for National Defence reiterated the
Govemment's formai instructions and he was not able to issue me with such authorization.
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Letter of9 September 2002 from the Minister for National Defence,
General Jacques lvon Ndolou, Brazzaville
Further to formai instructions from the Govemment of the Republic of the Congo, General
Norbert Dabira is unable to comply with the summons of the Meaux Tribunal de grande instance.
In his capacity as Inspector-General of the Congolese Armed Forces and the National Gendarmerie,
in active service, he is not answerable to any court other than that of his country. The general
status of the Congolese Armed Forces and of the National Gendarmerie leaves only one possibility
in this respect. Officers of the Congolese Armed Forces can only be tried pursuant to a United
Nations resolution attributing jurisdiction to a foreign court.
Accordingly, General Norbert Dabira cannot appear before the Meaux Tribunal de grande
instance. I am unable to issue him with an exit permit.
ANNEXIII
Letter of 5 February 2004 from the Embassy of the Congo in France
to the Ministry of Foreign Affairs
The Embassy of the Republic of the Congo in France presents its compliments to the
Ministry of Foreign Affairs and has the honour to inform it that, further to your request,
Mr. Pierre Oba, Minister of the Interior of the Republic of the Congo, is temporarily in Paris on
State business. However, Messrs. Serge Oboa, Grégoire Mhere and Emmanuel Y oka are at present
in Brazzaville.
The Embassy of the Republic of the Congo in France thanks the Ministry of Foreign Affairs
for its kind co-operation and avails itself of this opportunity to renew to it the assurances of its
highest consideration.
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Letter of 5 February 2004 from Jean-Pierre Asvazadourian, Deputy Head of Protocol of the
French Ministry of Foreign Affairs to Adjudant Frederic Cook,
Criminal Investigation Police of Paris.
On 4 February 2004 you requested me to provide information in connection with a judicial
investigation undertaken on the basis of commission rogatoire (warrant) No. 3/02/40 issued on
10 July 2002 by Mr. Jean Gervillie, jointly with Ms Odette Luce Bouvier, investigating judges at
the Meaux Tribunal de grande instance.
According to the information obtained from the Embassy of the Congo in France, only
Mr. Pierre Oba, Minister of the In teri or of the Republic of Congo, is currently in France. He is in
this country on an official mission.
By virtue of customary international law, members of official delegations visiting France
enjoy immunity fromjurisdiction and from execution.
ANNEXIV
Letter to the Registrar dated 21 May 2003 from B. E. Jacques Obia,
Ambassador of the Republic of the Congo
I have the honour to enclose herewith the following documents:
1. Criminal Code of the Republic of the Congo;
2. Code ofCriminal Procedure of the Republic ofthe Congo;
together with:
the Prosecutor's originating application;
the Prosecutor's supplemental application;
the Investigating Judge's letter ofrequest.
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Republic of the Congo
Court of Appeal of Brazzaville
Brazzaville Tribunal de Grande Instance
Office of the Public Prosecutor
Réquisitoire à jin d'informer (Prosecutor's originating application for a judicial investigation)
1 the undersigned, Jerome Ngouloubi, Deputy Public Prosecutor at the Brazzaville Tribunal
de Grande Instance;
Whereas the book entitled "Les guerres civiles du Congo Brazzaville" and the newspaper
"Tarn-tarn" No. 55 of 6 August 2001 report respectively on disappearances that occurred during the
socio-political events of November 1993 and January 1994 and between 5 June 1997 and
15 October 1997, as well as disappearances in 1999 at Brazzaville Beach;
Whereas to date, the circumstances surrounding the disappearance of the thousands of
Congolese civilians in question have not been elucidated and the perpetrators of those offences
have not been identified;
Whereas in arder to establish the truth, it is appropriate to open a judicial investigation on the
counts of premeditated murder and rape;
Whereas under Article 2 of Law No. 21-99 of 20 December 1999 pertaining to an amnesty
for acts ofwar arising from the civil wars of 1993 to 1994, 1997 and 1998 to 1999, an amnesty was
granted for any "acts of war" committed during the above-mentioned civil wars;
Whereas Article 2 of Decree 99-270 of 31 December 1999, laying dawn the terms of
implementation of Law No. 21-99, stipulates:
"For the construction of the above-mentioned Law, an act of war shall refer to
any act violating public arder, the integrity of the persan, persona! freedom and
private or public property, when such act is committed in a period of civil war for the
exclusive purpose of the war. Any other act perpetrated during the same period but
intended to serve the persona! interests of its perpetrator and, therefore, not for the
purposes of the war, shall not be covered by the Law of amnesty";
Whereas, accordingly, any offences of rape, torture and murder that cannat be regarded as
necessities of the war do not fall within the provisions of Act No. 21-99 of 20 December 1999;
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ON THESE GROUNDS:
I submit this application to the Doyen des juges d'instruction (Senior Investigating Judge) to
open an investigation, by ali legal means, against a person or persons unknown on the basis of
serious presumptions of rape and premeditated murder; those serious crimes are provided for and
punishable by Articles 296, 297, 298 and 332 of the Criminal Code;
And to issue any appropriate warrants.
Done at the Prosecutor's office, 29 August 2000
On behalf of the Procureur de la République
(Signed) Jerome NGOULOUBI
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Brazzaville Court of Appeal
Brazzaville Tribunal de Grande Instance
Office of the Public Prosecutor
Réquisition supplétif (Prosecutor's supplemeutal application for an extension of the
investigation)
New fact, new charge
Public Prosecutor at the Brazzaville Tribunal de Grande Instance
Having regard to the proceedings brought against a person or persons unknown on the counts
of rape and premeditated murder.
Whereas certain facts not provided for by the originating application of 29 August 2000 have
been brought to the knowledge of the Investigating Judge who has forwarded to me the relevant
evidence.
Whereas such evidence gives rise to serious presumptions that a person or persons unknown
committed a violation of professional secrecy and failed to assist a person in danger.
Offences provided for and punishable under Articles 63 and 3 7 of the Criminal Code.
Having regard to Article 176 of the Code of Criminal Procedure, the Investigating Judge is
hereby requested to extend his investigation to those offences, by alllegal means ...
Done at the Prosecutor's office, 11 November 2002.
(signed) A. ITOTO-ABAKASSAR
Procureur de la République.
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Republic of the Congo
Brazzaville Court of Appeal
Brazzaville Tribunal de Grande Instance
Office ofMr. Patrice Nzouala
Doyen des juges d'instruction
Commission rogatoire (letter of request)
1 the undersigned Patrice Nzouala, Senior Investigating Judge at the Brazzaville Tribunal de
Grande Instance; having regard to the judicial investigation against a persan or persans unknown
on the counts ofpremeditated murder, torture, crimes against humanity and rape;
Offences provided for and punishable by Articles 295, 297, 299, 332 et seq. of the Criminal
Code; having regard to Articles 142, 143 and 144 of the Congolese Code ofCriminal Procedure, in
conjunction with Articles 11, 12, 114 and 15 of the General Agreement on Judicial Co-operation
between Congo Brazzaville and the Democratie Republic of the Congo; hereby instruct the Senior
lnvestigating Judge of Kinshasa to carry out the above-mentioned (sic) operations, which are
necessary for the present investigation;
Operations to be performed
To take evidence from the representative of the Kinshasa HCR, according to the statutory
provisions for the examina ti on of international civil servants;
please conduct the examination in the form of a questionnaire and report back with the answers
of that organization;
the questions are as follows:
1. W ere there any written documents exchanged between the Kinshasa HCR and the civilian
or military authorities of Brazzaville capable ofreassuring the HCR asto the upholding of
the fundamental rights and freedoms of the individuals that the HCR was entrusting to
those authorities?
2. The HCR should be asked to provide the judiciary with the full names of individuals that
it entrusted in May and June 1999 to the Congolese State;
3. How many of the Congolese nationals recorded in its registers are presumed to have
disappeared at the Beach?
4. What precautions were taken by the HCR at the material time to avoid any unforeseeable
event outside the Agreement and capable of constituting a threat to the persans that the
HCR was supposedly entrusting to the Congolese State?
5. After reading in the press about the disappearance of the persans entrusted to the
Congo lese State, what action did it undertake for the purpose of tracing them?
Done at Brazzaville, 2 October 2002.
Facts of the case
During the year 2002, the Congolese Observatory ofHuman Rights (OCDH) affiliated to the
International Federation for Human Rights (FIDH) made it known through the Brazzaville press
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that in May 1999, thousands of Congolese who had previously left Brazzaville in a hurry to seek
refuge from the fighting had decided to retum home, with the help of the High Commission for
Refugees (UNHCR), which for such purpose had taken the precautionary measure of creating a
humanitarian corridor.
The UNHCR contended that over 350 disappearances had been enumerated during this
retum from exile and attributed those disappearances to the President of the Republic of the Congo,
to the Minister of the Interior, to Mr. Norbert Dabira, Inspector General of the Armed Forces and to
General Blaise Adoua, Commander of the Republican Guard, whom they accused of crimes against
humanity, acts of torture and forced disappearances.
Following the publication of that information which was capable of constituting a breach of
public order if found to be true, the prosecutor's office of Brazzaville opened a judicial
investigation on counts of torture and premeditated murder, on the basis of an originating
application dated 29 August. The Senior Investigating Judge of Brazzaville, having been lawfully
seised of the matter, has performed a number of measures of investigation, sorne of which have
required him to deliver commissions rogatoires.
ANNEXV
Appeal No. Z 00-87.215
Procureur général
at the Paris Court of Appeal
versus
-the association S.O.S. Attentats
-Ms Béatrice Castelnau d'Essenault, née de Boery
Criminal Chamber hearing of27 February 2001
(First and Second Sections combined)
Reporting Judge: Ms Chanet
Advocate-General: Mr. Launay
Opinion of the Advocate-General
I shall not go over the facts and procedure, which the Reporting Judge has just related in full.
I shall simply recall that the facts put forward in the civil parties' complaint gave rise to a
judicial investigation between September 1989 and January 1998, during which not all of the civil
parties saw fit to seise the judicial authorities of claims invoking the criminal responsibility of
Col. Qaddafi, the Libyan Head of State.
By judgment in absentia handed down on 10 March 1999, the Paris Assize Court, as
specially constituted, sentenced the six Libyan nationals being tried before it to life imprisonment.
Ms de Castelnau d'Essenault and the association S.O.S. Attentats, represented by its
President, Ms Rudetzki, who had already lodged civil complaints in connection with the
investigation, lodged complaints as civil parties with the same investigatingjudge on 16 June 1999
against Col. Qaddafi, contending that he was implicated in the attack on the UTA aircraft.
The order rejecting the public prosecutor's submissions that no investigation should be
opened was upheld by the Indictments Chamber, whose judgment, dated 20 October 2000, is now
before you for consideration.
The facts relied on by the civil parties are based, for the most part, on information found in
the record of investigation on which the Assize Court rendered its judgment of 10 March 1999.
1. The civil parties' preliminary comments on the admissibility of the appeal from the Paris
Procureur Général
The civil parties argue in their pleadings that, since a claim of immunity is not a
jurisdictional plea but a simple preliminary objection, there is a question whether the prosecutor's
office can directly assert it in the stead ofthe alleged holder ofimmunity.
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It is said to follow that the only time when Col. Qaddafi could assert his immunity would be
upon notification that he has been placed under judicial examination.
On this point, the reasoning should be by analogy with parliamentary immunity, which is
raised proprio motu by the prosecutor's office, in the absence of an express request by the Member
of Parliament, without any need for a finding of inadmissibility, or even for the admissibility issue
to have been raised before the court.
But what must be emphasized is that the prosecutor's office necessarily enjoys the capacity
to act proprio mo tu in such a case since it in volves a question of international law directly affecting
France's diplomatie relations.
II. The place of custom in international law
The writers are unanimous: custom plays a crucial role, recognized by various international
texts, in creating international law.
lndeed, the régime of immunities and privileges held by leaders is governed, in large part, by
customary rules of international law.
Thus, [the Statute of] the International Court of Justice, established by the Charter of the
United Nations signed at San Francisco on 26 June 1945, states in Article 38, paragraph 1: "[t]he
Court, whose function is to decide in accordance with international law such disputes as are
submitted to it, shall apply: . . international custom, as evidence of a general practice accepted as
law".
Similarly, the Vienna Convention on the Law of Treaties of 23 May 1969 states in its
preamble that "the rules of customary international law will continue to govern questions not
regulated by the provisions of the present Convention" and notes that a rule set forth in a treaty can
become binding upon a third State "as a customary rule of international law, recognized as such".
The importance to be assumed by international custom in a State' s domestic legal order is,
more often than not, determined by the State's Constitution.
As far as our country is concerned, the preamble to the Constitution of 27 October 1946,
incorporated by reference into the Constitution of 4 October 1958, is regarded as enshrining the
legal force of international custom when it states: "the French Republic, faithful to its traditions,
shall conform to the rules of international law".
As the Indictments Chamber rightly observed in the challenged judgment, international
custom, seen as evidence of a general practice universally accepted as a source of law, governs the
relationships between States and carries the same authority as treaties.
But, as the lndictments Chamber also noted, stating at the beginning of its judgment that "a
State cannot be bound by a custom unless it has accepted it'', the existence of a custom requires the
presence of two elements: first, a material element, that is to say a general, consistent, uniform
practice, based on a build-up of precedents, which can consist of failures to protest as well as
positive acts, and; second, a psychological element, opinio juris, i.e., the belief on the part of
States that they are complying with a true rule of law or, at the very least, a legal requirement.
While it is not necessary for all States in the international community to have assented in
order for a custornary norm to exist, adherence by a sufficiently large and representative number of
States is required.
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III. Head of State's immunity before a foreign criminal court
On this point the Indictments Chamber judgment rejected the reasoning of the investigating
judge, who had found:
that the offences alleged in the complaint fell within the scope of Article 113-7 of the Criminal
Code;
that an investigating judge acting on a complaint cannot apply anything but legal texts and
ratified international conventions;
that no provision of the Criminal Code or of international conventions or treaties ratified by
France gave ri se to any immunity for incumbent Heads of State which would shield them from
criminal proceedings against them;
that, in the absence of any immunity provided by statute or international convention,
international customary law, assuming it to be proved, could not constitute a legal norm
prevailing over statute law.
In this respect, the Indictments Chamber did not deny the merit of the Procureur Général' s
submissions pointing out that custom was a source of international law to which France was
required to conform.
Broadly speaking, the legal régime governing immunity from jurisdiction for foreign Heads
ofState is identical with that established by the Vienna Convention of 18 April1961 for diplomatie
personnel, but, being founded on international custom and not international texts, it does not have
the same legal basis.
In the case of incumbent Heads of State, protection follows from two fundamental principles.
First, their immunity derives from the sovereignty of the State, which bars a State from
judging the acts of another sovereign State, unless the latter consents thereto.
A foreign Head of State enjoys special treatment, safeguarding him from sanctions under
foreign law and from any judicial supervision.
This principle is based on the independence which a foreign Head of State must necessarily
be recognized to enjoy and on the respect owed to his office and the dignity of the State which he
represents.
The idea from which this principle derives is thus the identification of the State with its
representative, the State's freedom of action having to be preserved in the person of the individual
concerned.
It follows that ali acts performed by the Head of State are deemed to have been carried out
by the State, a sanction for criminal conduct being applicable only to the State and not to its
representative.
Second, the principle of immunity for Heads of State is traditionally assimilated to a rule of
comity of nations, necessary for the maintenance of friendly relations among States.
In this regard, the preamble to the Vienna Convention of 1961 notes that diplomatie
privileges and immunities contribute to the development of friendly relations among nations,
irrespective of their differing poli ti cal systems.
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The princip le of sovereign equality among States perse implies equality of treatment of
Heads of State as the supreme State organs, each State's freedom of action and sovereignty thereby
being preserved by way of the person of its leader.
The Indictments Chamber correctly observes that French courts' jurisdiction over crimes
committed abroad against victims of French nationality ceases if the individual being prosecuted
for having committed such acts holds immunity fromjurisdiction.
And the Indictments Chamber adds that while a foreign Head of State's immunity from
jurisdiction is not founded on any international treaty to which France is a party nor on any other
text, it has nevertheless always been accepted by the international community, including France,
and that French courts, both civil and criminal, as well as legal scholars, have consistently
recognized it.
These various observations by the Indictments Chamber, which run counter to the reasoning
of the investigating judge, must be approved since they match the practice of judicial and
administrative courts, which consider international custom to be a component of domestic law and
capable of application by a national court.
Moreover, it should be observed that the question of a conflict between statute law and
custom does not arise in this case because French law, while not expressly laying down the
principle of criminal immunity for foreign Heads of State, in no way repudiates it either.
Finally, the argument raised by the civil parties before the Indictments Chamber to the effect
that Col. Qaddafi does not have the status of Lib yan Head of State do es not stand up to scrutin y.
In light of the criteria applied under international law to determine that status, it cannot in ali
seriousness be denied that the individual in question exercises full political power and that he
occupies the highest office in the hierarchy of Libyan authorities; there seems, moreover, to be no
further argument about this be fore the Court of Cassation.
IV. Criticism of the lndictments Chamber's judgment
The Indictments Chamber observes that the immunity fromjurisdiction enjoyed by Heads of
State, originally absolute, has since the end of the Second World War been made subject to limits,
as a re suit of which there is toda y a legal practice that is universally accepted, including by France,
pursuant to which a Head of State's immunity from jurisdiction applies only to acts of public
authority or public administration that cannot be considered international crimes.
In support of this position, the Indictments Chamber relies first on many international
conventions which, according to it, show that such a customary rule is now in force; second on
recent decisions of a number of foreign jurisdictions; andfinally, on the existence of a norm of
"jus co gens" applicable to "international crimes" and taking precedence over the customary rule
providing for the immunity of foreign Heads of State.
A. International conventions
The Indictments Chamber relies first on United Nations Security Council resolutions 827
and 955, establishing, respectively, the International Criminal Tribunal for the former
Yugoslavia (ICTY) in The Hague and the International Criminal Tribunal for Rwanda (ICTR) in
Arusha.
But, in those two cases, the rule of immunity is expressly rejected in the founding text and
that is therefore binding on ali Member States of the United Nations.
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The Indictments Chamber next cites the Rome Convention of 17 July 1998, laying down the
Statute of the International Criminal Court (ICC), which has jurisdiction over four categories of
crime: genocide, crimes against humanity, war crimes and the crime of aggression.
However, that Convention requires 60 ratifications before entering into force and thus far has
been ratified by only 29 States, including France recently.
At the end of its judgment, the Indictments Chamber does however stress the fact that
France's ratification of the Rome Convention requires it, in the Chamber's view, to prosecute
international crimes. The Chamber relies in this connection on both the Preamble to the Rome
Convention (the sixth recital of which provides that "it is the duty of every State to exercise its
criminal jurisdiction over those responsible for international crimes") and on Article 22,
paragraph 3, of that instrument (which notes that the characterization of any conduct as criminal
under international law, independently of the Statute, shall not be affected) and draws the
conclusion therefrom that States having ratified the Convention are under a duty to prosecute
international crimes- which are not limited to crimes against humanity, genocide, war crimes and
the crime of aggression- even where the accused enjoys the official status of Head of State or
Head of Government.
Here again, the reasoning is highly questionable.
It is strange to read into the Preamble to the Convention a broader ambit than that of its
operative provisions; it is just as odd to turn what is merely a possibility (Art. 22, para. 3) into an
obligation on States having ratified the Convention.
And, above all, the reasoning completely ignores Article 98 of the Statute, providing "[t]he
Court may not proceed with a request for surrender or assistance which would require the requested
State to act inconsistently with its obligations under international law with respect to ... State or
diplomatie immunity ... ". Thus, while Article 27 of the Statute clearly overrides the immunity of
Heads of State when the States are parties to the Rome Convention, it is not at all clear that the
same is true for States not parties to the Statute because, under the principle of the relative effect of
treaties, a treaty cannot create obligations for a State which is not a party thereto unless that State
consents (see Article 34 of the 1969 Vienna Convention on the Law of Treaties, which in this
respect reflects customary law). Now, Libya, unlike France, has not ratified the Rome Convention
(which, at any rate, has not yet entered into force and cannot therefore be cited at this time as a
conventional norm).
These examples clearly show that whenever it has been decided to derogate from the
customary rule of immunity from jurisdiction for incumbent Heads of State, it has been done
expressly in treaty texts.
In addition to these three recent examples, others may be cited, but they either came to
nothing or are not meaningful for the present case.
For example, in 1919 the former German Kaiser Wilhelm II was arraigned in the Treaty of
Versailles for "a supreme offence against morality and the sanctity of treaties". But there could
be no trial as the Netherlands refused to surrender the accused, who had been granted asylum
on its territory, to the Allied Powers.
The Military Tribunal at Nuremberg, which was created by the London Conference of
8 August 1945, providing for the trial ofHeads ofState guilty ofwar crimes and crimes against
humanity, as defined by the Tribunal's Charter, was unable to function in respect of that
provision of the agreement, owing to Hitler's suicide.
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Nor could the Charter of the Tokyo Tribunal, dated 19 January 1946, which drew upon the
same provisions as those in the Charter of the Nuremberg Tribunal, be implemented either, as
the American authorities decided for reasons of political expediency not to prosecute
Emperor Hirohito.
B. Recent decisions of sorne foreign courts
The Indictments Chamber also relies on judicial decisions handed down by the House of
Lords in the extradition proceedings against General Pinochet in connection with acts of torture and
on the proceedings brought by the United States of America against General Noriega for drug
trafficking and holds that they are evidence of a general practice accepted by all, including France,
and of the principle that immunity from jurisdiction covers only acts of public authority or public
administration carried out by the Head of State, provided that they are not considered international
crimes.
The Indictments Chamber's position cannot reasonably be seen as falling within the
framework of positive law.
No national court, other than the Indictments Chamber in the present case, has upheld legal
proceedings against an incumbent Head of State on the ground that the crimes of which he was
accused were, by their very nature, not covered by customary immunity.
The Pinochet case is not an apposite precedent in this respect since, first, it involved a Head
of State who was no longer in office and, second, the House of Lords pointed out that both the
United Kingdom and Chile were parties to the 1984 New York Convention against Torture,
reasoning therefrom that, in ratifying the Convention, Chile had waived the immunity of its former
Head of State for that crime.
Moreover, it is to be noted that the New York Convention makes no mention of the criminal
responsibility of incumbent Heads of State, which would appear to indicate that the drafters did not
intend to crea te an exception to the princip le of immunity in this regard.
As for the crimes of which General Pinochet was accused, they fell into the category of
"crimes against humanity", not terrorist crimes.
In respect of the General Noriega case, the American courts rejected his lawyers'
immunity-based claim, on the ground that he was not the Panamanian Head of State.
As for the decision to indict the ex-President ofYugoslavia, Milosevié, then incumbent Head
of State, it was based on the characterization of the acts as crimes against humanity. But that
position follows from the straightforward application of the Statute of the Criminal Tribunal for the
former Yugoslavia in The Hague, not from a rule of general international criminallaw.
It is also noteworthy that a complaint was filed in late 1998 with the Procureur de la
République in Paris by the International Federation for Human Rights, in respect of torture and
inhuman and degrading treatment, against Laurent Ka bila, President of the Republic of the Congo
and recently assassinated, who was on an official trip to France.
The authorities decided not to take further action on that complaint, precisely because of the
immunity enjoyed by incumbent Heads of State.
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C. The existence of a norm of "jus cogens" applicable to "international crimes"
and taking precedence over the international cnstomary rule of
foreign-Head-of-State immunity
Another question remains to be answered: whether the bombing which is the subject of the
tragic case now before you could constitute an "international crime" of such gravity that its
prohibition and punishment would fall under a "peremptory norm of general international law ...
accepted and recognized [as such] by the international community of States as a whole", i.e., a
norm of "jus co gens", in accordance with Article 53 of the Vi enna Convention on the Law of
Treaties.
Thus formulated, the question is in reality twofold; it must be determined:
first, whether crimes ofterrorism can be treated as "international crimes";
second, whether punishment of"international crimes" is a matter of "jus cogens ".
1. Treatment of terrorist crimes as international crimes
The Indictments Chamber infers from its findings that no immunity can cover acts of aiding
and abetting voluntary homicide and the destruction of property caused by explosive substances
and involving death, in connection with terrorist activities, where those acts by a Head of State
consisted of ordering an airliner to be blown up, and that such acts, assuming them proved, would
fall within the category of "international crimes" and could not in any case be deemed to fall within
the duties of a Head of State.
It should be recalled that none of the major international conventions dealing with acts of
terrorism has laid down an express exception to Head-of-State immunity fromjurisdiction, whether
we consider the conventions on air terrorism (Conventions of Tokyo of 1963, The Hague of 1970,
Montreal of 1971 and 1988), the Rome Convention of 1988 concerning maritime terrorism or the
New York Convention of 1979 against the taking ofhostages.
Moreover, crimes of terrorism, as heinous as they may be, are not referred to in the United
Nations Security Council resolution establishing the International Tribunal for the former
Yugoslavia nor in the 1998 Convention concerning the Statute of the future International Criminal
Court.
While certain States had expressed the desire to see other crimes, such as terrorism and drug
trafficking, added to the list of crimes falling within the jurisdiction of the International Criminal
Court, the Rome Conference did not adopt their point ofview.
France, like its European partners, in fact demonstrated its hostility to treating them alike.
It was simply agreed that a Review Conference would be held seven years after the entry
into force of the Statute of the International Criminal Court to consider the crimes of terrorism and
drug crimes "with a view to arriving at an acceptable definition and their inclusion in the list of
crimes within the jurisdiction of the Court".
2. The question of ''jus cogens"
According to the respondent's pleadings, the Indictments Chamber found that the
criminalization under domestic law of such a serious offence, violating fundamental human rights,
fell within the category of norms of "jus co gens".
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Thus, it is argued, in criminal proceedings this is a general principle of international law
which can be described as "natural" and which requires adherence by all Member States of the
United Nations by binding all, in the hierarchy of international norms, as having force transcending
the international customary rule of immunity for foreign Heads of State.
(a) Admittedly, certain arguments can be advanced in support of this thesis:
For example, the superiority of ''jus cogens" over conventional and ordinary customary law
was recognized in the 10 December 1998 Furundzija judgment by the ICTY, which affirmed
that it is impossible to derogate from ''jus co gens" by means of agreement;
Evidence of this affirmation of peremptory norms, valid "erga omnes" and from which no
derogation is possible, is also found in international jurisprudence, including that ofthe United
Nations Human Rights Committee, the European Court of Human Rights (this is the notion of
European ordre publique) and even the International Court of Justice, which employs the
notion of "intransgressible principles" (see Advisory Opinion of 8 July 1996 concerning
nuclear weapons, para. 79);
Further, examples in public international law of rules considered to be peremptory norms or the
like include, inter alia:
the prohibition on torture (see ICTY-Furundzija case of 10 December 1998);
the prohibition on genocide (International Court of Justice, Barcelona Traction case);
the "intransgressible principles" or "cardinal principles" constituting the fabric of
humanitarian law, such as the distinction between civilians and combatants and the
prohibition on causing unnecessary suffering (International Court of Justice, Opinion on
nuclear weapons);
generally, "respect for the basic rights of the human person" and the "cardinal princip les
of humanitarian law", based on elementary considerations of humanity, "even more
exacting in peace than in war" (International Court of Justice, 27 June 1986, "Nicaragua";
United Nations Human Rights Committee, General Comment 24).
(b) But as serious as these arguments based on a ''jus cogens" superior to international
custom affording Head-of-State immunity may appear when it cornes to certain particularly serious
international crimes, in respect of France they nevertheless run up against the fact that our country
has not recognized the concept of ''jus cogens ",as defined in the 23 May 1969 Vienna Convention
on the Law of Treaties, and that is why France has not yet acceded to that Convention.
It is therefore a bold, not to say illogical, claim that there already exists, pursuant to a ''jus
cogens" we have yet to recognize under the Vienna Convention, an exception to immunity from
jurisdiction for foreign Heads of State in respect of certain crimes considered under international
law to be exceptionally serious, when, moreover, the crimes falling into that category remain to be
defined.
True, the International Law Commission, instructed by the United Nations in 1998 to draw
up a draft "Crimes against the Peace and Security of Mankind", adopted the following as the
definition of an "international crime of a State": "[a]n internationally wrongful act which results
from the breach by a State of an international obligation so essential for the protection of
fundamental interests of the international community that its breach is recognized as a crime by the
community as a whole"; but hardly any progress has been made since then.
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OPINION
I shall end by saying that, while the principle of immunity from jurisdiction of incumbent
Heads of State is still considered under positive international law to be general, in that it covers all
crimes committed by a Head of State, and absolute, in that it extends to acts of any nature which
the Head of State may have committed, subject to those few exceptions which I have mentioned, it
is however to be observed that a noticeable relaxing of this princip le is becoming evident bath in
France and abroad.
It remains true nevertheless that while this evolution in international law can, in accordance
with the position adopted by sorne States, limit the scope of the traditionally recognized
immunities, these limitations are, as is always the case in criminallaw, to be interpreted strictly.
Thus, the assertion al one that the facts of this case fall, by virtue of their seriousness, into the
category of international crimes is not enough to provide a basis for concluding that no immunity
can caver them and that it is therefore appropriate for the French courts to investigate the individual
accused by the complainants.
If you were to adopt that latter view, and if you were thus to permit a French court to try a
foreign Head of State in violation of current customary international law, there would be a great
risk that France' s international responsibility could be engaged by the other State in question.
Thus, the leading decision which your Chamber will render is anxiously awaited and bears
enormous importance, for it will be the first ruling, after the Indictments Chamber's decision which
has been referred to you, on the thorny question of immunity from jurisdiction of foreign Heads of
State.
I am nonetheless well aware of the tragedy which the friends and relations of the victims of
this horror have suffered and continue to suffer.
I further wish to pay tribute toMs Rudetzki, a civil party, who, after having herselfbeen the
victim of a very serious attack, took the initiative to found the association "S.O.S. Attentats", which
she leads with unflagging fervour and exemplary devotion.
Be that as it may, I cannat overstate the importance of the fact that the Court ofCassation's
sole role is to state the law, and nothing but the law, with no possibility- whatever that may
sometimes cast it-of taking into account subjective or humanitarian considerations.
I therefore have no choice but to opine, under positive law as it now stands, that the appealed
judgment should be quashed, and, in my view, without being referred back.