Javor et al. contre X

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Court	Supreme Court, Criminal Division, France
Case number	95-81527
Decision title	Arrêt (Rejet du pourvoi)
Decision date	26 March 1996
Parties	Javor Elvir Kusuran Kasim Softic Munib Alic Epse Sénada Mudzic Meho L'association Cimade L'association Ligue des Droits de l'homme X.
Categories	Crimes against humanity, Genocide, Torture, War crimes
Keywords	Former Yugoslavia, genocide (jurisdiction), jurisdiction (universal), torture
Links	Decision rejecting the appeal (in French)

Procedural history

On 20 July 1993, Elvir Javor, Kasim Kusuran, Munib Softic, Sénada Softic and Meho Mujdzic, Bosnian citizens, residing in France, filed a complaint under universal jurisdiction before theTribunal de Grande Instance (TGI) de Paris to bring a civil action against a person or persons unknown for war crimes, torture, genocide and crimes against humanity.

In an order dated of 6 May 1994, the TGI declined jurisdiction in this case. According to the Court, it has no jurisdiction to try crimes of genocide and crimes against humanity under the Convention for the Prevention and the Repression of the Crime of Genocide of 9 December 1948, Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity of 26 November 1968 and the Statute of the International Military Tribunal at Nuremberg, annexed to the Treaty of London of 8 August 1945. However, the judge found that there was a sufficient basis for French Jurisdiction to investigate on the basis of the New York Convention of 10 December 1984 against torture and other cruel, inhuman and degrading treatment, as well as the four Geneva Conventions of 12 August 1949.

The Prosecutor and civil parties lodged an appeal. On 24 November 1994, the Appeals Chamber in Paris overturned the TGI’s judgment. Although it confirmed the first part of the Order, the court claimed that “French courts are incompetent to deal with infractions under the four Geneva Conventions when they were committed abroad by foreigners against foreign victims”. In addition, the Appeals court stated that the French courts are incompetent to "know of the allegations on the basis of the New York Convention" when defendants are not present on the territory.

In a last attempt, the complainants filed a request before the Supreme Court (Cour de Cassation).

Related developments

Following these procedures, the National Commission on Human Rights published an opinion related to the adaptation of conventions of humanitarian law into the French legal system and made several recommendations. It recommended a better definition of universal jurisdiction and encouraged the enactment of a law to apply the mechanisms of punishment provided in the Geneva Conventions, to which France is bound, especially universal jurisdiction. The Committee also criticised the lack of consideration for victims.

France adopted a law in 1999 (Loi n ° 99-515 of 23 Juin 1999 - art. 30 JORF 24 Juin 1999) amending Article 689 of the French Code of Criminal Procedure. Today, the French criminal law recognises the court’s universal jurisdiction for certain crimes, including acts of torture (Article 689-2) and terrorism (Article 689-3) as well as crimes committed during the conflict in the former Yugoslavia or the Rwandan genocide. However, this universal jurisdiction only applies to offences against international conventions on which it is based (art 689-1 of the Code of Criminal Procedure). Moreover, the accused have to be in France.

On June 2008, France amended its criminal law to the requirements of the Statute of the International Criminal Court, which it ratified in July 1998. However, for the Ligue des droits de l’homme the legislative’s adaptation to pursue and try perpetrators of genocide, war crimes and crimes against humanity committed abroad is not sufficient. Indeed, "French’s universal jurisdiction" only applies to persons ordinarily resident in France, excluding prosecution of people who remain in France on a temporary basis. The victims do not have the right to submit a case. Finally, crimes can be punishable in France only if they are punishable in their country of origin. In other words, genocide is not punishable if it is not a crime in the country in which the crime took place.