Re International Criminal Court Treaty
| Jurisdiction | France |
| Judgment Date | 22 janvier 1999 |
| Court | Constitutional Council (France) |
| Date | 22 janvier 1999 |
Treaties Conclusion and operation Constitutional limitations Accession of France to Rome Statute of International Criminal Court, 1998 Compatibility with French Constitution Extent of special constitutional amendment required prior to ratification
International tribunals Jurisdiction International Criminal Court Rome Statute, Article 1 Principle that jurisdiction of International Criminal Court to be complementary to national courts' jurisdiction Article 17 of Statute Scope of principle of complementarity Whether jurisdiction of International Criminal Court defined in sufficiently clear and objective manner
State immunity Head of State immunity Criminal proceedings before International Criminal Court Article 27 of Statute Immunity based on official capacity as Head of State, or Government member, not a bar to prosecution before Court No exemption from criminal responsibility, or punishment, for acts performed in official capacity Compatibility with French Constitution The law of France
Summary: The facts:The President of the French Republic, acting pursuant to Article 54 of the French Constitution,1 referred to the Constitutional
Council the question whether the authorization to ratify the Treaty establishing the International Criminal Court, signed in Rome on 18 July 1998, had to be preceded by a revision of the Constitution because it included clauses which were contrary theretoHeld:The authorization to ratify the Treaty, by the enactment of a law, required the prior revision of the Constitution.
(1) Respect for national sovereignty did not prevent France, on the basis of the Preamble to the Constitution of 1946 which proclaimed that the French Republic shall conform to the rules of public international law, from concluding international agreements, subject to reciprocity, in order to promote peace and international security and to ensure respect for the general principles of public international law. Engagements entered into for this purpose could, in particular, provide for the creation of a permanent international court intended to protect the fundamental rights of every human being, providing for the punishment of the most serious violations of those rights and competent to try those responsible for crimes of such gravity that they affected the whole international community. The obligations arising from such engagements were binding on each of the States Parties independently of the conditions under which they were implemented by the other States Parties. The condition of reciprocity mentioned in Article 55 of the Constitution was therefore inapplicable.
(2) Nevertheless, where such international agreements contained a clause which conflicted with the Constitution, brought into question rights and freedoms which were constitutionally guaranteed or infringed the essential conditions for the exercise of national sovereignty, the authorization for their ratification required a constitutional revision.
(3) Article 27 of the Statute of the International Criminal Court provided for its application without any distinction based on official capacity and excluded reliance on immunity under national or international law as a bar to the exercise of jurisdiction over Heads of State or members of Government or Parliament. These provisions were incompatible with the specific regime of criminal responsibility laid down in Articles 26 and 68 of the French Constitution, which granted immunity to the President for acts performed in the exercise of his functions and also laid down that criminal proceedings could only be brought against the President or members of the Government before the French High Court of Justice in limited circumstances and in accordance with a special procedure.
(4) The Preamble and Article 1 of the Statute provided that the jurisdiction of the International Criminal Court should be complementary to national criminal courts' jurisdiction. Consequently, in accordance with Articles 17 to 20 of the Statute, the Court would have no jurisdiction over a case being investigated or prosecuted by a State with jurisdiction over it, or where that State
had investigated and decided not to prosecute, or where the conduct at issue had already been the subject of national criminal proceedings. On the other hand, according to Article 17(1), the Court would have jurisdiction over a case where the State concerned was unwilling or unable genuinely to carry out the investigation or prosecution, in particular where the national proceedings were being used for the purpose of shielding the person concerned from criminal responsibility or where there had a been a total or substantial collapse of the national judicial system, or unjustified delay or lack of independence in the conduct of the national proceedings. These provisions limited in an objective manner the scope of the jurisdiction of the Court and were compatible with the French constitutional rules governing the exercise of national sovereignty(5) On the other hand, the Statute allowed the International Criminal Court to exercise jurisdiction simply on the basis of a bar to national proceedings contained in an amnesty law or rules of statutory limitation. The exercise of jurisdiction by the Court in such circumstances would conflict with the Constitution.
The following is the text of the decision of the Constitutional Council:
On 24 December 1998, the President of the Republic and the Prime Minister referred to the Constitutional Council, pursuant to the provisions of Article 54 of the Constitution, the question of whether the authorization to ratify the Treaty containing the Statute of the International Criminal Court signed in Rome on 18 July 1998 must be preceded by a revision of the Constitution, taking into account the obligations entered into by France thereunder.
The Constitutional Council has considered the Constitution of 4 October 1958, the Preamble to the Constitution of 27 October 1946, the Ordinance of 7 November 1958 which constitutes the organic law of the Constitutional Council, in particular Articles 18(2), 19 and 20.
The Constitutional Council has also considered the following enactments [concerning international treaties and obligations]:
- The Decree of 2 December 1910 promulgating the Hague Convention on the Laws and Customs of Warfare on Land, signed on 18 October 1907, and the annexed Regulations concerning the Laws and Customs of Warfare on Land;
- The Decree of 22 August 1928 promulgating the Protocol Prohibiting the Use in War of Asphyxiating, Poisonous or other Gases, and Bacteriological Methods of Warfare, signed in Geneva on 17 June 1925;
- Decree No 452267 of 6 October 1945 promulgating the Agreement between the Provisional Government of the French Republic and the Governments of the United States of America, the United Kingdom of Great Britain and Northern Ireland and the Union of Soviet Socialist Republics for the Prosecution and Punishment of Major War Criminals of the Axis European Powers, signed in London on 8 August 1945, together with the Charter of the International Military Tribunal;
- Decree No 4635 of 4 January 1946 promulgating the Charter of the United Nations containing the Statute of the International Court of Justice, signed in San Francisco on 26 June 1945;
- Decree No 52253 of 28 February 1952 publishing the Convention on the Prevention and Punishment of the Crime of Genocide approved by the General Assembly of the United Nations on 9 December 1948;
- Decree No 52253 of 28 February 1952 publishing the Convention Relating to the Treatment of Prisoners of War, the Convention Relating to the Protection of Civilian Persons in Time of War, the Convention for the Amelioration of the Condition of the Wounded and Sick of Armed Forces in the Field and the Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, all signed in Geneva on 12 August 1949;
- Law No 641326 of 26 December 1964 establishing that crimes against humanity are not subject to statutory limitation;
- Law No 831130 of 23 December 1983 authorizing the French Republic to accede to the Protocol additional to the Geneva Conventions of 12 August 1949 relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), adopted in Geneva on 8 June 1977, as well as Decree No 84727 of...
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