Date03 juin 1988
CourtCourt of Cassation (France)
France, Court of Cassation (Criminal Chamber)

(Ledoux, President; Angevin, Rapporteur; Robert, Advocate General)


Relationship of international law and municipal law Crimes against international law Punishment of crimes against humanity by municipal courts Statutory limitation periods not applicable Whether applicable to punishment where penalty not inflicted following earlier conviction

War and armed conflict Crimes against humanity Definition London Charter of the International Military Tribunal, 1945, Article 6(c) Relationship with Article 6, final paragraph, of Charter Participation in common plan of extermination or persecution Whether constituting separate offence, aggravating circumstance or essential element in crime against humanity

War and armed conflict Enforcement of the laws of war War crimes and crimes against humanity Superior orders Availability as possible ground for mitigation of punishment but not as defence London Charter, Article 8 Whether requiring jury to be asked whether accused acted pursuant to orders Whether sufficient for jury to decide merely that there were no extenuating circumstances The law of France

Summary: The facts:2Klaus Barbie was head of the Gestapo in Lyons from November 1942 to August 1944, during the wartime occupation of France. At the end of the war a warrant for his arrest was issued by the French authorities. He was arrested but later disappeared. He was tried in absentia for war crimes and sentenced to death by the Tribunal Permanent des Forces Armes de Lyon in two judgments of 29 April 1952 and 25 November 1954.

Having evaded detection for many years, Barbie was eventually discovered in Bolivia. In December 1982 he was expelled by the Bolivian authorities and immediately apprehended by the French police. Proceedings were then initiated against him in France for crimes against humanity. Barbie unsuccessfully challenged the proceedings on a series of preliminary grounds all of which were rejected by the French courts.3 Barbie was convicted in July 1987 of seventeen different crimes against humanity. The Court found that there were no extenuating circumstances and sentenced him to life imprisonment.

Barbie appealed in cassation, arguing that

(1) his conviction in 1954 for war crimes meant that his renewed prosecution for crimes against humanity arising from the same acts was barred by reason of res judicata;

(2) some of the questions which had been posed by the trial judge were inadmissible because they asked the jury to consider simultaneously two different questions; namely, the alleged nature of the acts carried out by the accused as crimes against humanity (Article 6(c) of the Charter of the Nuremberg International Military Tribunal) and the aggravating circumstance of participation in the execution of a common plan to commit crimes against humanity (Article 6, final paragraph of the Charter); and

(3) the trial judge had failed to ask the jury whether the accused had acted pursuant to orders of his Government, or of a superior, which could have

been considered as a ground for mitigation of punishment (Article 8 of the Charter).4

Held:The appeal was dismissed.

(1) The principle of the non-applicability of statutory limitation to crimes against humanity governed both the prosecution and the punishment of such crimes. This principle prevented a rule of internal law from allowing a person found guilty of such crimes to escape justice by reason of the lapse of time since either the commission of the acts in question or a preceding conviction where, as here, no penalty had been inflicted (p. 333).

(2) The fact that the accused, who had been found guilty of one of the crimes enumerated in Article 6(c) of the Charter of the Nuremberg Tribunal, in perpetrating that crime took part in the execution of a common plan to bring about the deportation or extermination of the civilian population during the war, or persecutions on political, racial or religious grounds, constituted not a distinct offence or an...

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