Human rights organisation Amnesty International has urged France to amend its law on crimes against humanity committed abroad. This would make it possible for people suspected of war crimes in Ukraine or Syria, for example, to be brought to justice in France. But there are significant judicial hurdles.
France ratified the Rome Statute, the legal foundation of the International Criminal Court (ICC), on 9 June 2000. However, in reality France doesn't want to utilise it, Jean-Claude Samouiller, president of Amnesty International France, told RFI.
To be effective, regulations contained in the Rome Statute need to be embedded in national jurisdictions.
In France, they are, but with limits.
According to a study by the Open Society Justice Initiative, the French Criminal Code of Procedure (CCP) "provides for universal jurisdiction over specified offences emanating from international conventions ratified by France".
But, says the study, the CCP does not "establish an obligation to prosecute these crimes," which runs against "the principle of universal jurisdiction" and "allows for the investigation and prosecution of crimes regardless of where they were committed, and irrespective of the nationality of the victims and perpetrators."
According to Samouiller, when the Rome Statute was "translated" into French legislation in 2010, France created four obstacles that restricted universal jurisdiction and unfettered prosecution of war crimes committed abroad:
- the crime must be recognised in the country where it is committed
- the perpetrator must have permanent residence in France
- relatives of victims cannot be party to the trial
- the case must not already be before the International Criminal Court
"These locks are a guarantee of impunity before the French courts for these most serious crimes," said Jeanne Sulzer, a human rights lawyer with Amnesty France.
To date, seven investigations into possible war crimes committed in Ukraine against French nationals have been opened in Paris. But none against Ukrainian citizens.
According to Oksana Pokalchuk, Amnesty's Ukraine director, "France sent police to collect evidence of war crimes to Ukraine. The fact that France could become a land of refuge for war criminals because of excessive legislation limiting the prosecution of perpetrators of international crimes in France, is incomprehensible and astonishing."
Pokalchuk witnessed some of the war violence first-hand.
She lived in Irpin, near Kyiv, one of the sites where Russian soldiers are accused of serious human rights violations.
"In the yard of my house are the graves of my neighbours," she told RFI.
It makes her work as an independent human rights investigator complicated, she says.
"You have to have peace inside. You have to be unbiased. You have to have no personal commitment. That’s why I still cannot get back to my house."
According to the UN, some 4,500 civilians have been killed in Ukraine as of 15 June.
War justice
Both Russia and Ukraine have started holding trials of suspected war criminals.
On 23 May, a Ukrainian court sentenced a Russian soldier to life in prison for killing an unarmed civilian in the first war crimes trial arising from Russia's invasion.
Vadim Shishimarin, a 21-year-old tank commander, had pleaded guilty to killing 62-year-old Oleksandr Shelipov in the north-eastern Ukrainian village of Chupakhivka on 28 February, four days after the invasion.
And in June, two Britons and a Moroccan who were captured while fighting for Ukraine were sentenced to death by a court in the self-proclaimed Donetsk People's Republic (DPR), one of Russia's proxies in eastern Ukraine.
The court found the three men, UK citizens Aiden Aslin and Shaun Pinner and Moroccan Brahim Saadoun, guilty of "mercenary activities and committing actions aimed at seizing power and overthrowing the constitutional order of the DPR."
Thousands of victims
But neither court has the legal stature of the international tribunals such as the Tribunal for the Former Yugoslavia, or the Cambodia or Lebanon courts.
Critics on both sides doubt the independence of the courts, which are under the control of the respective warring parties.
Bringing cases to the ICC is not an option, as neither Russia nor Ukraine ratified the Rome Statute.
So investigators, prosecutors and victims are at loss as to how justice should be done.
In an article for JusticeInfo.net, legal expert and activist Céline Bardet warns that swift justice of war crimes while the conflict is still ongoing may violate elements of the Geneva Conventions, as "clear safeguards so as to judge in complete independence in times of war" are not guaranteed.
According to Ukraine's Prosecutor General, Iryna Venediktova, her office registers between 200 and 300 cases of war crimes on a daily basis.
"Ukraine is not capable of investigating all these war crimes," adds Pokalchuk, stressing that the ICC, and the different "independent tribunals" for Rwanda, the Former Yugoslavia, Cambodia and others "merely dealt with the top of the chain of command, the generals, the leaders."
One solution could be that courts in various countries get involved.
"We have to think about all the hundreds of thousands of victims in Ukraine," she says, expressing the hope that a change of legislation will open the way for France to throw its judicial weight behind international prosecution of war criminals.
"What we really want is for France not to be a safe haven for the suspected war criminals," says Samouiller, but for France to be able to judge them and, if necessary, throw them in prison."
There is a glimmer of hope.
NGO's like Amnesty International, legislators and victims' groups are putting increasingly heavy pressure on French authorities to amend the laws.
And interest in pushing for universality seems to be growing.
Paris's top court, theTribunal de grande instance runs a Centre for Genocide and Crimes against Humanity which investigated crimes in Syria, Iraq, Afghanistan, Chechnya and others.
The centre was created in 2013 and helped to convict people found guilty of genocide and crimes against humanity in Rwanda, even if they were not directly linked with France.
The trial of Pascal Simbikangwa, on 14 March 2014 was the first of a non-French citizen who was accused of committing crimes outside France.
A court in Paris issued indictments against at least 46 other Rwandans involved in the genocide.
Last May, former Rwandan police chief Laurent Bucyibaruta was put on trial in Paris and may spend the rest of his life behind French bars if found guilty.
These trials, as legal scholar Helen Trouille points out in a study, came about only after long delays, endless haggling and negotiations between parties concerned, while using jurisprudence that was produced during Nazi trials against former Vichy official Maurice Papon and others.
The Rwanda cases seem to have been decided on an individual basis, and do not guarantee universality of French human rights law as applied, for instance, to people suspected of war crimes in Ukraine.
Guillaume Gouffier-Cha, an MP for French President Emmanuel Macron's Ensemble party, submitted a draft law on 7 June abolishing the "four obstacles" that would make French human rights legislation truly universal.
But the final version may still take several months, if not longer, before it will be signed into law.
