Barbie
| Jurisdiction | France |
| Judgment Date | 20 décembre 1985 |
| Court | Court of Cassation (France) |
| Date | 20 décembre 1985 |
(Braunschweig, President; Le Gunehec, Rapporteur; Dontenwille, Advocate General)
(Ledoux, President; Le Gunehec, Rapporteur; Dontenwille, Advocate General)
War and armed conflict Enforcement of the laws of war War crimes and crimes against humanity London Charter of the International Military Tribunal, 1945, Article 6(b) and (c) Distinction between war crimes and crimes against humanity Whether crimes against humanity confined to crimes motivated by racial or religious factors Whether torture and ill-treatment of members of French Resistance capable of constituting a crime against humanity, as well as a war crime Time-limits under French law for prosecution of war crimes
War and armed conflict Crimes against humanity Definition International criminal law Effect in municipal legal order Jurisdiction of municipal courts Whether prosecution of crimes against humanity subject to statutory time-limits
Jurisdiction Irregular return to State of trial Defendant deported to State of which he was not a national Receiving State wishing to charge him with crimes against humanity No extradition treaty between returning and receiving States Whether circumstances of defendant's return a bar to prosecution
Jurisdiction Universal Crimes against international law Crimes against humanity Jurisdiction of municipal courts
Extradition Conditions Return of fugitive offender other than by extradition Whether disguised extradition Whether a bar to prosecution in receiving State
Human rights Punishment of crimes against humanity Whether any right to benefit of statutory limitation of prosecution Whether guaranteed by Articles 7(2) and 60 of European Convention on Human Rights, 1950, or Article 15(2) of International Covenant on Civil and Political Rights, 1966
Relationship of municipal law and international law Crimes against international law Punishment of crimes against humanity by municipal courts International criminal order Abolition of frontiers Inapplicability of statutory limitation of prosecution Principles of law recognized by the community of nations Integration into municipal legal system Treaties Interpretation by the executive 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 German occupation of France. At the end of the war a warrant for his arrest was issued by the French authorities but, although arrested, he 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.
It was eventually discovered that Barbie had taken refuge in Bolivia. The French Government sought in vain to obtain his extradition. In a judgment of 11 December 1974 the Supreme Court of Bolivia rejected the French extradition request on the ground that there was no extradition treaty between the two countries.3 Following the election of a new President in December 1982, the Bolivian authorities decided to expel Barbie on the ground that he had used a false identity to obtain Bolivian citizenship.
Meanwhile new proceedings relating to crimes against humanity had been instituted against him in February 1982 in Lyons. Barbie was accused of murder, torture and arbitrary arrests, detentions and imprisonment. In Lyons alone he was alleged to have been responsible for the murder of 4, 342 persons, the deportation of 7, 591 Jews and the arrest and deportation of 14, 311 members of the French Resistance. An arrest warrant was issued by the Examining Magistrate of Lyons on 3 November 1982. On 3 February 1983 he was expelled by the Bolivian authorities and put on board an aircraft bound for French Guiana. On arrival he was apprehended by the airport police and immediately flown to France where he was transferred to the custody of the Examining Magistrate in Lyons.
Barbie applied for his release on the ground that he had been a victim of disguised extradition which invalidated the proceedings against him. The application was rejected and he appealed.
Held (by the Court of Cassation; 6 October 1983):The appeal was dismissed.
(1) The fact that extradition proceedings had not been started at the time of the expulsion of an accused person by the State in which he had taken refuge was not an obstacle to the institution of a prosecution against him on his return to France, provided that the rights of the defence were fully safeguarded.
(2) Crimes against humanity did not simply fall under French municipal law. They were also subject to an international criminal order to which the notions of frontiers, and extradition rules arising therefrom, were completely alien.
The accused again applied to the French courts for his release on the ground that the acts in respect of which he was charged were covered by the ten-year rule of statutory limitation of prosecution. A French Law of 26 December 1964 provided that
Crimes against humanity, as defined by the United Nations Resolution of 13 February 1946, which refers to the definition of crimes against humanity contained in the Charter of the International Military Tribunal of 8 August 1945, are by their nature not subject to statutory limitation of prosecution.
The accused argued that this Law applied only to offences whose prosecution had not become statute-barred at the date of its enactment. He contended that the Law could not apply to acts whose prosecution had already become statute-barred at that date, without violating the fundamental rule of the non-retroactivity of criminal law which was enshrined in Article 55 of the French Constitution. The application was rejected and the accused appealed.
Held (by the Court of Cassation; 26 January 1984):The appeal was dismissed.
(1) According to the official interpretation of the Minister of Foreign Affairs, the principle that the prosecution of crimes against humanity was not subject to statutory limitation could be deduced from the Charter of the International Military Tribunal. The French Law of 26 December 1964, in stating this principle, therefore merely confirmed the integration into French municipal law, on the basis of international agreements to which France had acceded, of both the criminality of crimes against humanity and the fact that they were not subject to statutory limitation.
(2) Neither Article 7(2) of the European Convention on Human Rights, 1950, nor Article 15(2) of the International Covenant on Civil and Political Rights, 1966, gave rise to any derogation from the rule that the prosecution of crimes against humanity was not subject to statutory limitation. This rule was applicable to such crimes by virtue of the principles of law recognized by the community of nations. Consequently the right to the benefit of statutory limitation of prosecution for such crimes was not a human right or fundamental freedom within the meaning of Article 60 of the European Convention.
The initial list of indictments against Barbie, prepared in February 1982 and revised in February 1983, included eleven sets of charges relating to the detention, torture, murder and deportation to death camps of some 1,500 persons during 1943 and 1944. These were new charges, separate from those in respect of which Barbie had already been tried in absentia in 1952 and 1954, because further proceedings in respect of those offences were barred by the doctrine of res judicata. The list of charges included alleged crimes against humanity committed against both Jews and members of the French Resistance. But when the final indictment came to be drawn up, the Examining Magistrate of Lyons took the view that only acts of persecution of innocent Jews, on racial or religious grounds, carried out in furtherance of the intended final solution involving their extermination, constituted crimes against humanity which were not subject to statutory limitation and for which the accused could still be prosecuted.
Various individuals and organizations, representing both the victims of Nazi oppression and former members of the French Resistance, appealed against this decision. In a judgment of 4 October 1985 the Court of Appeal of Lyons approved the position taken by the Examining Magistrate. The Court of Appeal held that the torture, deportation and murder of members or supposed members of the Resistance, even if they were Jews, could only be classified as war crimes whose prosecution was statute-barred. The individuals and organizations concerned appealed to the Court of Cassation.
Held (by the Court of Cassation; 20 December 1985):The appeal was allowed, the judgment of the Court of Appeal of Lyons was quashed in part and the case was remitted to the Court of Appeal of Paris to consider which charges should be added to the indictments against the accused, in the light of the definition of crimes against humanity given by the Court of Cassation.
(1) Despite the fact that they were also defined in Article 6 of the Charter of the International Military Tribunal of Nuremberg annexed to the London Agreement of 8 August 1945, war crimes could not be treated in the same way as crimes against humanity. In particular, war crimes, unlike crimes against humanity, were subject to the time-limits imposed by statute.
(2) In contrast to crimes against humanity, war crimes were directly connected with the existence of a situation of hostilities declared between the respective States to which the perpetrators and the victims of the acts in question belonged. Following the termination of hostilities, it was necessary that the passage of time should be allowed to blur acts of brutality which might have been committed in the course of armed conflict, even if those acts constituted violations of the laws and customs of war or were not...
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