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CPCR’s submission to the UN Human Rights Council

 

United Nations Human Rights Council

Universal Periodic Review: Republic of France

29th Session of the Working Group on the Universal Periodic Review

15 JANUARY 2018

Submission of

THE Collectif des Parties Civiles pour le Rwanda

The Collectif des Parties Civiles pour le Rwanda (‘CPCR’) is a non-governmental organisation located at 61 Avenue Jean Jaurès, 51100 Reims, France. (Contact details: Alain Gauthier, +33 (0) 6 40 57 09 44, cpcr@protonmail.com).i Established in 2001, CPCR’s main objective is to pursue those suspected of having participated in the Genocide against the Tutsi in Rwanda in 1994 (‘Genocide’) and who reside on French territory. Along with other French NGOs, the CPCR files civil suits in the French courts. We make this submission as part of France’s third universal periodic review (‘UPR’) to draw the attention of other countries to our country’s failings in respect of the Genocide.

28 June 2017

 

TABLE OF CONTENTS

 

 

 

SUBMISSION

  1. SUMMARY

  1. Since 1994, France has failed in its duty to take responsibility for its role in the Genocide and bring to justice those responsible who are located in France. Over the past 23 years, France has: (i) always refused to acknowledge its role in the Genocide; (ii) attempted to transfer responsibility for the Genocide onto others; and/or (iii) failed fully to investigate, prosecute or bring to justice suspected génocidaires living in France. Most recently, France has failed to respond to requests for mutual legal assistance by the Government of Rwanda in respect of ongoing investigations against suspected génocidaires living in France and has failed to declassify all relevant documentation related to the Genocide.

  1. Each of the shortcomings set out above constitutes a breach of France’s international human rights obligations. They are serious and significant and have taken place throughout France’s last UPR cycle (2013 – 2017).

  1. FRENCH FAILINGS IN RESPECT OF THE GENOCIDE

  1. Throughout the last UPR cycle, France failed to act in accordance with its international human rights obligations in respect of the Genocide and has failed to adhere to fundamental principles of truth, justice and accountability.ii France has also failed to act in accordance with the recommendation made by Armenia and accepted by our country in the second cycle of the UPR to “continue its efforts to contribute on the prevention of crimes against humanity, particularly genocide, and to the fight against negationism of past historical facts”.iii

  1. We draw each of these failings to the Human Rights Council’s (‘HRC’) attention. We set out our recommendations in respect of each of the below failures in section III.

  1. The Non-Acknowledgement of the Role of France in the Genocide

  1. Allegations as to French complicity in the Genocide are well documented.iv Between 6 April and July 1994, over a million Rwandans, the majority Tutsis, were massacred at the hands of Hutu extremists. While the international community stood by and allowed the Genocide to continue for over 100 days, French officials – and hence the French State – were complicit in the Genocide.v Allegations as to France’s role in the Genocide are extensive, well-documented and comprise:

    1. training and arming of those who became génocidaires;vi

    1. failing to prevent or stop massacres before and during the Genocide, including allowing propaganda inciting the violence;vii

 

    1. protection of those responsible including by allowing the members of the interim Genocide government to use the French embassy to form the government;viii

 

    1. exfiltration of the Habyarimana family out of the country, abandoning Tutsi and moderate Hutu politicians;ix

 

    1. establishment of Operation Turquoise, whose real aim was the protection of Hutu extremists;x and

 

    1. organisation of the Secure Humanitarian Zone, which allowed génocidaires to flee Rwanda for France and elsewhere.

 

  1. These acts of complicity are extremely serious and may well amount to breaches of Article III of the Convention for the Prevention and Repression of Genocide (‘Genocide Convention’).xi Article III prohibits not only genocide, but also: (i) conspiracy to commit genocide; (ii) direct and public incitement to commit genocide; (iii) attempt to commit genocide; and (iv) complicity in genocide. As the International Court of Justice (‘ICJ’) has found, the obligation not to commit acts in violation of Article III applies to both individuals and States.xii Any failings by French agents in respect of Article III therefore would engage the responsibility of the French State.xiii

 

  1. While we acknowledge the inherent difficulties in demonstrating French officials’ complicity in acts contrary to Article III, in our view France is under an obligation to establish the truth as to French involvement in the Genocide and to investigate whether breaches of Article III have in fact been committed by agents of the French State.

 

  1. In this regard, we note that rights to truth and justice have been recognised as arising under Articles 3 and 8 of the European Convention on Human Rights (‘ECHR’);xiv compliance with the right to know the truth, the right to make accessible and disclose information, the right to a full and effective investigation, the right to an enforceable remedy and the right to justice is increasingly a fundamental part of the HRC’s work, and the development of the international doctrine of State Responsibility.xv France is a State party to the ECHR as well as a number of other international human rights treaties and is therefore under the obligations set out above. France is also an observer State of the HRC and is therefore obliged to follow its findings.

 

  1. We call on France to acknowledge its role in the Genocide and/or investigate whether its agents committed violations of Article III, whether it failed to take necessary steps to prevent the Genocide and whether it failed to investigate and prosecute those persons criminally responsible.

  1. Refusal to Prosecute under Rule 11bis

  1. Following the Genocide, the UN established the International Criminal Tribunal for Rwanda (‘ICTR’) to “prosecute persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and neighbouring States, between 1 January 1994 and 31 December 1994”.xvi The aim of the ICTR was to try those responsible for the Genocide and to rebuild Rwanda.xvii

  1. Article 8 of the ICTR Statute provides that the ICTR and national States have concurrent jurisdiction, though the ICTR has primacy over national courts.xviii A key exception to this principle is the Rule 11bis procedure,xix which allows for the ICTR to refer a case to the authorities of a State in whose territory the crime was committed or the accused was arrested, or which has jurisdiction and is ‘willing and adequately prepared to accept’ such a case.

  1. In November 2007, the ICTR agreed to transfer jurisdiction over the prosecutions of Wenceslas Munyeshyaka and Laurent Bucyibaruta to France under the Rule 11bis procedure.xx The ICTR Trial Chamber approved transfer of the cases, finding that France was “willing and adequately prepared to accept” the cases.xxi However, France has not taken sufficient steps either to prosecute or to extradite these suspects. After years of investigation, in October 2015, a French court dismissed the case against Wenceslsas Munyeshyaka citing a lack of evidence.xxii Despite the recent announcement of the closing of the investigation, we still await the Prosecutor’s indictment in the Bucyibaruta case. French authorities have presented a number of arguments to justify France’s failures in this regard, including a lack of cooperation from ICTR regarding transfer of evidence and differences in the legal frameworks of French and ICTR law. These arguments are not accepted and point to a distinct lack of will to try the suspected génocidaires.

  1. In dismissing the Munyeshyaka case, the French investigating judges claimed that there was insufficient evidence to prove his participation in the crimes of the Genocide.xxiii However, prior to transferring jurisdiction over the case to France, ICTR Judge Egorov had confirmed an indictment alleging that, among other crimes, Munyeshyaka had personally murdered three Tutsi children, raped multiple Tutsi women and girls, and aided and abetted the killing of Tutsi who had taken refuge in the Ste. Famille parish, over which he exercised effective control.xxiv The investigating judges complained of obstacles to their investigation presented by a breakdown in diplomatic relations with Rwanda, procedural issues, and a lack of resources,xxv notwithstanding that Rwanda continued to respond constructively to French requests.

 

  1. France’s decision to dismiss the Munyeshyaka case in 2015 is in direct conflict with France’s international human rights obligations, as is the delay to try Laurent Bucyibaruta. In particular, under Rule 11bis, France is not afforded the discretion to reopen investigations and/or determine that there is insufficient evidence to prosecute in accordance with national law – this is a matter that could and should have been raised during the Rule 11bis procedure prior to transfer. Under Rule 11bis, a State is expected to prosecute on the basis of the evidence provided by the ICTR, and, if subsequently unable to prosecute in accordance with national law, to request the transfer of the case back to the ICTR. Neither of these events happened in respect of France’s Rule 11bis transfer cases.

 

  1. France has therefore breached the explicit undertakings it made to the ICTR and, by implication, to the UN Security Council, and has consequently failed to act in accordance with its international human rights obligations as set out under the ICTR Statute. In doing so, it has also failed to afford the victims of the Genocide truth and justice, which are fundamental principles guaranteed by the ECHR,xxvi and has provided safe haven to suspected génocidaires.

  1. We call on France to take all necessary steps to prosecute Wenceslas Munyeshyaka and Laurent Bucyibaruta as agreed under the Rule 11bis procedure or, in the event that it is no longer “willing and adequately prepared to accept” the cases, to inform the UN Mechanism for International Criminal Tribunals and to facilitate the extradition of the suspects to Rwanda for prosecution.xxvii

  1. Refusal to Prosecute Suspected Génocidaires Residing in France

  1. In the immediate aftermath of the Genocide, many individuals suspected of complicity in the Genocide fled to France. France’s failure to ensure that suspected génocidaires are brought to justice presents real concerns for those who fight for accountability.xxviii In particular, these failings by France constitute a fundamental breach of its international legal obligations to prosecute (in the absence of extradition) suspected génocidaires.

  1. At the time of CPCR’s establishment, a significant number of suspected génocidaires were living in France. Over the past 16 years, we have filed approximately 25 civil complaints to the Paris court for crimes against humanity. We have also repeatedly written to the highest French officials setting out our concerns regarding impunity for the Genocide throughout the administrations of Mitterrand, Chirac, Sarkozy, Hollande, and most recently Macron.

 

  1. Despite these efforts, to date we have received no engagement from the French State. Very recently, during the presidential elections, we questioned all the candidates on the role of the French state in the Genocide; our letters went unanswered. Moreover, in 23 years, only three génocidaires have been convicted in France, not at the initiative of the Public Prosecutor, but following our civil complaints. We are therefore deeply concerned that France has failed to demonstrate a serious commitment to prosecuting suspected génocidaires residing in France and bring to an end the culture of impunity.xxix

 

  1. Accountability for international crimes is of fundamental importance to the international community. As one leading commentary to the Genocide Convention sets out, France is under an obligation to prosecute acts of genocide in circumstances where it chooses not to extradite those suspects to a State with primary jurisdiction – in this case Rwanda.xxx Although the ICJ held that Article VI does not entail an obligation to prosecute on States outside of whose territory genocide was committed,xxxi the combination of Articles I, IV and VI means that States are under a duty to prosecute acts of genocide, notably when they are unwilling to extradite.xxxii Indeed, this principle is consistent with the customary international law principle that States are obliged to extradite or prosecute for serious international crimes,xxxiii and France’s obligations under the ECHR to ensure truth and justice for victims.xxxiv

  1. We call on France to prosecute suspected génocidaires residing in its territory.

  1. Unjustified Rejections of Extradition Requests

  1. Despite repeated requests, the Cour de Cassation has systematically refused to extradite any suspected génocidaires to Rwanda to face trial. To date, we understand that approximately thirty individual extradition requests have been made to France by Rwanda’s National Public Prosecution Authority.

  1. The primary legal reason for rejecting Rwanda’s extradition requests appears to be the principle of nulla crimen, nulla poena sine lege. However, rejecting extradition requests on the basis of this principle is inconsistent with France’s own internal laws, including its Penal Code and a law adapted following a UN Security Council resolution on the Genocide.xxxv It is also inconsistent with France’s international human rights obligations: by denying extradition requests, France is failing to respect its obligations under Articles 3 and 8 ECHR and victim rights to truth and justice,xxxvi failing to respect its commitment to extradite or prosecute under the Genocide Convention and customary international law,xxxvii and failing to observe the European Court of Human Rights’ case law on Article 7 (2) ECHR and Article 15 (2) International Covenant on Civil and Political Rights.xxxviii

 

  1. France’s latest refusal to extradite was in 2017 and fell within the last UPR cycle. We call upon France to respect its international human rights law obligations and to commence the extradition of suspected Rwandan génocidaires so that they can face trial.

  1. Failure to Respond to a Mutual Legal Assistance Request

  1. We note that in November 2016, the Government of Rwanda submitted a mutual legal assistance (‘MLA’) request to the Government of France requesting information as to 20 French nationals suspected of involvement in the Genocide – all members of the French military – and hence State agents. Apart from a courtesy acknowledgement, we understand that the Government of Rwanda has not received a response.

  1. France is under an obligation to cooperate with other States in ensuring the punishment of suspected génocidaires.xxxix Moreover, the ECHR obliges France to ensure truth and justice for victims of international crimes.xl Therefore, it is our view that France remains under an obligation to assist the Government of Rwanda and respond to its MLA request to ensure the effective prosecution suspected génocidaires.

 

  1. We call on France to cooperate with the Government of Rwanda in respect of the Rwandan MLA request.

  1. Failures in relation to the Declassification of Documents Relating to the Genocide

  1. In April 2015, following calls from civil society, the French Presidency announced the declassification of documents relating to the Genocide from the National Archives. However, this disclosure was intentionally incomplete, disclosing some documents that were already in the public domain and omitting the most sensitive documents.xli This incomplete “declassification”, inaccessible to the public, makes documents available for review only if permission is granted by a gatekeeper appointed by President Mitterrand.xlii

  1. France is obliged to cooperate with the international community in ensuring the prosecution of suspected génocidaires.xliii France is under an obligation to ensure truth and justice for victims.xliv It is our view, therefore, that France remains under an obligation to declassify and make available to all, the relevant documents. Doing so will contribute to the prosecution and punishment of suspected génocidaires and ensure truth and justice for victims.

  1. RECOMMENDATIONS

  1. We are pleased to have this opportunity to constructively engage with France during its third UPR and make the following recommendations:

  1. Acknowledge the role of French officials in the Genocide and take steps as appropriate (and in accordance with national and international law);

  1. Take further steps to prosecute Wenceslas Munyeshyaka and Laurent Bucyibaruta as contemplated under the Rule 11bis procedure or, alternatively, immediately engage with the UN Mechanism for International Criminal Tribunals to facilitate revocation of the transfer orders and the return of the cases;

  1. Prosecute all suspected génocidaires living in France;

  1. Authorise the extradition of suspected Rwandan génocidaires so that they can face trial in Rwanda;

  1. Cooperate fully with the Government of Rwanda in respect of its mutual legal assistance requests; and

 

  1. Declassify and make available documents relating to the Genocide.

 

ii See Human Rights Watch Report, Leave Noone to Tell the Story – Genocide in Rwanda, 1999, page 27

iii See the Report of the Universal Periodic Review Working Group dated 28 May 2013, available online at https://documents-dds-ny.un.org/doc/UNDOC/GEN/G13/141/48/PDF/G1314148.pdf?OpenElement

iv See, for instance, collected documents and analysis at http://francegenocidetutsi.org/

v See, Human Rights Watch Report, Leave Noone to Tell the Story – Genocide in Rwanda, 1999, pages 7, 19 -20, 22, 132 and 505

vi See, for example, Memo from African Affairs Advisor to President Mitterrand Guy Penne dated 15 June 1982 available online at http://francegenocidetutsi.org/Penne11juin1982.pdf and The Contract for Assistance between Captain Paul Barril and the Government of Rwanda available online at http://francegenocidetutsi.org/BarrilContratAssistance28mai1994.html

vii See, for example, “En 1994, 50 000 morts à Bisesero. Un rapport révèle l’horreur d’une tuerie au Rwanda”, Liberation, dated 3 April 1998 available online at http://www.liberation.fr/planete/1998/04/03/en-1994-50-000-morts-a-bisesero-un-rapport-revele-l-horreur-d-une-tuerie-au-rwanda_234759

viii See, for example, the document recording the parliamentary hearing of Ambassador Jean-Michel Marlaud where he acknowledges that he participated in 8 April 1994 meeting on the premises of the French Embassy to form the Rwandan Interim Government dated 13 May 1998 and available online at http://francegenocidetutsi.org/AuditionMarlaud13mai1998.html

ix See, for example, the declassified document Order for Operation Amaryllis dated 8 April 1994 and available online at http://francegenocidetutsi.org/OrdreOpAmaryllis.html

x See, for example, the declassified document Order for Operation Turquoise dated 22 June 1994 and available online at http://francegenocidetutsi.org/OrdreOpTurquoise22juin1994.html

xi France is a State party to the Genocide Convention, having signed it in 1948. See the ICRC’s webpage on the signatories to the Convention for the Prevention and Repression of the Crime of Genocide, available online at https://ihl-databases.icrc.org/applic/ihl/dih.nsf/TRA/357?OpenDocument&

xii Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) ICJ Reports 2007, p.43 at paras. 165 – 167; 174 and available online at http://www.icj-cij.org/docket/files/91/13685.pdf, at paras. 165 – 167; 174.

xiii http://www.independent.co.uk/news/world/europe/srebrenica-massacre-dutch-peacekeepers-murder-300-muslim-men-serbia-bosnia-war-1995-appeals-court-a7809806.html

xiv See, for example, Selimovic & Others v. Republika Srpska, the Human Rights Chamber for Bosnia and Herzegovina.

xv Particularly through the creation of the position of Special Rapporteur on the Promotion of Truth, Justice, Reparations and Guarantees of Non-recurrence in 2012. See, for example, the United Nations Human Rights Office of the Commissioner’s page for the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence available online at http://www.ohchr.org/FR/Issues/TruthJusticeReparation/Pages/Index.aspx

xvi See the United Nations Mechanism for International Criminal Tribunals webpage on the work of the ICTR available online at http://unictr.unmict.org/fr/tribunal

xvii Ibid.

xviii Statute of the International Tribunal for Rwanda 2007 available online at http://legal.un.org/avl/pdf/ha/ictr_EF.pdf

xix The ICTR’s Rules of Procedure and Evidence adopted on 29 June 1995 as amended on 10 November 2006 available online at http://unictr.unmict.org/sites/unictr.org/files/legal-library/061110-rpe-en-fr.pdf

xx Case No. ICTR-2005-87-1, Decision on the Prosecutor’s Request for the Referral of Wenceslas Munyeshyaka’s indictment to France at ¶ 7 and following available online at http://unictr.unmict.org/sites/unictr.org/files/case-documents/ictr-05-87/trial-decisions/fr/071120.pdf and Case No. ICTR-2005-85-1, Decision on the Prosecutor’s Request for the Referral of Laurent Bucyibaruta’s Indictment to France ¶ 7 and following available online at http://unictr.unmict.org/sites/unictr.org/files/case-documents/ictr-05-85/trial-judgements/en/071120.pdf

xxi Id. p.3 ¶ 5.

xxii See summary of Wenceslas Munyeshyaka’s case at Trial International, Trial Watch available online at https://trialinternational.org/fr/latest-post/wenceslas-munyeshyaka/

xxiii Ibid.

xxiv ICTR Case No. ICTR-2005-87-I, The Prosecutor against Munyeshyaka available online at http://unictr.unmict.org/sites/unictr.org/files/case-documents/ictr-05-87/indictments/fr/050720.pdf

xxv In particular, the French Prosecutors reported that the “evidence gathered by the ICTR Prosecutor could not be used as such in French law, which meant that many witnesses had to be heard again.” See Mechanism for International Criminal Tribunals, Initial Monitoring Report on the Munyeshyaka Case available online at http://jrad.unmict.org/webdrawer/webdrawer.dll/webdrawer/search/rec&sm_recnbr&sm_ncontents=mict-13-45&sm_created&sm_fulltext&sort1=rs_datecreated&count&rows=100

xxvi As set out in paragraph 8.

xxvii See, Case No. IT-01-42/2-I Prosecutor v Vladimir Kovačević Decision on Referral of Case Pursuant to Rule 11 bis, dated 17 November 2006; Case no. ICTR-2005-86-11bis Prosecutor v Michel Bagaragaza Decision on Prosecutor’s Extremely Urgent Motion for Revocation of the Referral to the Kingdom of the Netherlands pursuant to Rule 11 bis (f) and (g), dated 17 August 2007; and Case No. IT-98-32/1-PT Prosecutor v Milan Lukić and Sredoje Lukić Decision on Prosecutor’s Request Pursuant to Rule 11 bis (f) with regard to Sredoje Lukić and Incorporated Decision Vacating Scheduling Order dated 20 July 2007.

xxviii See Human Rights Watch Report, Justice in Rwanda 2008, page 92

xxix Ibid.

xxx Convention on the Prevention and Punishment of the Crime of Genocide – A Commentary p. 256, at para. 58.

xxxi Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) at para. 442 available online at http://www.icj-cij.org/docket/files/91/13685.pdf.

xxxii Convention on the Prevention and Punishment of the Crime of Genocide – A Commentary, p. 256, at para. 58.

xxxiii See, Chatham House Briefing Note, International Criminals: Extradite or Prosecute dated 1 July 2013available online at https://www.chathamhouse.org/publications/papers/view/192991

xxxiv As set out in paragraph 8.

xxxv The Law No 96-432 of 22 May 1996 adapted French law to the provisions of United Nations Security Council Resolution 955 giving France jurisdiction over crimes committed in Rwanda in 1994 relating to the Genocide available online at https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000742868&categorieLien=id.The crime of genocide is provided for under Article 211-1 of Criminal Code of the French Republic 2005. Complicity is provided for under Articles 121-6 and 121-7 of the same Code available online at https://www.legifrance.gouv.fr/affichCode.do?cidTexte=LEGITEXT000006070719&dateTexte=20170522

xxxvi As set out in paragraph 8.

xxxvii Convention on the Prevention and Punishment of the Crime of Genocide – A Commentary, p. 236, at para. 3.

xxxviii The European Court of Human Rights has consistently ruled that where a conviction is based exclusively on international law or refers to the principles of international law, the Court assesses the foreseeability of the conviction in the light of the standards of international law applicable at the material time, including international treaty law (the International Covenant on Civil and Political Rights as regards the GDR in Streletz, Kessler and Krenz v. Germany [GC], paras. 90-106; or the 1948 Genocide Convention in the case of Germany in Jorgic v.Germany, para.106), and/or customary international law (see the definition of genocide in customary international law in 1953 in Vasiliauskas v. Lithuania [GC], paras. 171-175; the Laws and Customs of War in 1944 in Kononov v. Latvia [GC], paras. 205-227.

xxxix Convention on the Prevention and Punishment of the Crime of Genocide – A Commentary p. 198, at para. 30; p. 240, at para. 16.

xl As set out in paragraph 8.

xli The declassified documents do not include documents from French ministries such as the Ministry of Defence, the Ministry of Foreign Affairs, the Ministry of Cooperation, or the French intelligence services. There are also a number of documents and testimonies given to the 1998 National Assembly’s Information Mission on Rwanda that were not published with the Mission’s report. See also Rwanda-France: la declassification des archives de l’Elysée permet-elle vraiment la transparence? Huffington Post, Romain Herreros dated 8 April 2015 available online at http://www.huffingtonpost.fr/2015/04/08/rwanda-declassification-archives-elisees-genocide-france_n_7023210.html.

xlii France’s Hollande to declassify Rwanda genocide documents, Reuters, available online at http://af.reuters.com/article/topNews/idAFKBN0MZ0KN20150408

xliii Convention on the Prevention and Punishment of the Crime of Genocide – A Commentary p. 198, at para. 30; p. 240, at para. 16.

xliv As set out in paragraph 8.

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