Sassi and Ors, Cassation Appeal, Pourvoi No 03-84652; ILDC 776 (FR 2005) Bulletin Criminel 2005 No 1, 4 January 2005

Oxford Reports on International Law in Domestic Courts

Sassi and ors, Cassation appeal, Pourvoi No 03-84652; ILDC 776 (FR 2005) Bulletin Criminel 2005 No 1, 4 January 2005

Parties: Nizar Sassi, Sassi Sassi, Khedija Sassi-Makhlouf, Mourad Benchellali, Chelali Benchellali, Hafsa Abderrhamani

Date of Decision: 04 January 2005

Jurisdiction/Arbitral Institution/ France, Court of Cassation, Criminal Chamber Court:

Judges/Arbitrators: Cotte (President); Vallat (Reporting Judge); Joly; Le Gall; Chanet; Anzani; Pelletier; Ponroy; Arnould; Koering-Joulin; Beyer; Corneloup; Pometan; Guirimand; Sassoust; Caron; Guihal; Lemoine; Ménotti

Procedural Stage: Cassation appeal

OUP Reference: ILDC 776 (FR 2005)

Subject(s): Human rights – International humanitarian law – Relationship between international and domestic law

Keyword(s): Combatants, lawful – Combatants, unlawful – Detention – Duty to investigate – Human rights, civil and political rights – Immunity from jurisdiction, states – International law and domestic law, direct effect – International organizations, resolutions – Jurisdiction of states, passive personality principle – Prisoners of war – Terrorism – UN Security Council

Core Issue(s)

1. Whether French pre-trial chambers had jurisdiction to authorize investigation of a claim of French citizens held at Guantanamo Bay relating to their capture in a context of hostilities and their detention by a foreign state.

Facts

F1 In September 2001, the Security Council of the United Nations by Resolution 1368, UN Doc S/RES/1368, UN Security Council, 12 September 2001 and Resolution 1373, UN Doc S/RES/1373, UN Security Council, 28 September 2001, created an obligation for all states to fight terrorism and recalled the inherent right of self-defence for state victims of terrorism. In October 2001, the United States armed forces took position in Afghanistan.

F2 In June 2001, two French citizens, Nizar Sassi and Mourad Benchelali, went to Afghanistan. In January 2002, they were captured by the US armed forces in Afghanistan and Pakistan and were transferred to Guantanamo Bay, Cuba, a territory occupied and used by the United States pursuant to a lease treaty with Cuba. Sassi and Benchelali remained captive there for more than two years without charges, and without access to a court or other tribunal or even to a lawyer. In July 2004, they were released and sent to France.

F3 The official position of the United States was that the laws and customs of war permitted it to detain enemy combatants captured in connection with an ongoing armed conflict at least for the duration of hostilities. Moreover, the United States considered that international humanitarian law did not require that captured enemy combatants be charged or provided with access to counsel or to the courts in order to challenge their detention.

F4 This position was reflected in a Military Order issued by the President of the United States, Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism, 13 November 2001 (United States) (‘Order’). This Order denied individuals subject to it, as determined by the President, the privilege to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on the individual's behalf, in any court of the United States or any state thereof, in any court of any foreign nation, or in any international tribunal.

F5 In the fall of 2002, criminal proceedings were initiated in France in the name of the two men, alleging that they had been arbitrarily arrested and illegally detained. In February 2003, the examining magistrate rendered an order

Oxford Reports on International Law — ILDC 776 (FR 2005) — © Oxford University Press 2009. All rights reserved. 1 refusing to investigate, arguing that US agents had jurisdictional immunity before foreign courts. The claimants lodged an appeal but, on 20 May 2003, the pre-trial chamber of the Court of Appeal of Lyon confirmed the dismissal of their case and added that the primacy over French law of UN Security Council Resolutions 1368 and 1373 and Article 51 of the Charter of the United Nations (26 June 1945) 59 Stat 1031; TS 993; 3 Bevans 1153, entered into force 24 October 1945, in the context of which the US operations had to be evaluated, rendered the arrest and detention of the French citizens not arbitrary. Moreover, the pre-trial chamber denied jurisdiction to examine the Order.

F6 Sassi and Benchelali appealed to the Criminal Chamber of the Court of Cassation, arguing that if the right to self- defence and the pertinent Security Council resolutions could justify the US intervention in Afghanistan, they could not deprive people captured during that intervention of the status of prisoners of war under the Geneva Convention relative to the Treatment of Prisoners of War (12 August 1949), 75 UNTS 135, entered into force 21 October 1950 (‘Third Geneva Convention’) or of the benefit of protective provisions of International Covenant on Civil and Political Rights (16 December 1966), 999 UNTS 171, entered into force 23 March 1976 (‘ICCPR’).

Held

H1 The pre-trial chamber should not have taken into account the Security Council Resolutions or the United States' right to self- defence in the examination of the claim. (paragraph 13)

H2 The pre-trial chamber should instead have verified whether the detention and arrest of the complainants had been in accordance with the provisions of the ICCPR and the Third Geneva Convention. (paragraph 14)

H3 The decision of the pre-trial chamber of the Court of Appeal of Lyon was struck down and the case was referred for prosecution to the pre-trial chamber of the Court of Appeal of Paris. French pre-trial chambers thus had jurisdiction over the claim. (paragraph 17)

Date of Report: 22 March 2008

Reporter(s): Yann Kerbrat, Quentin Lienard

Analysis

A1 The solution of the court established a real procedural obligation of investigation, regardless of the circumstances of the case. Previously, the court had held that this obligation existed since there was no doubt on the admissibility of a claim (see Martial Nadal, Pourvoi No 96-86377, Court of Cassation, unreported, 9 December 1997). For the court, the fact that the claimants had been held in the context of the war on terrorism, as established by UN Security Council resolutions, was not a valid reason for removing this obligation. The obligation to investigate was a right of the alleged victim entitling him to have his claim examined by a judge.

A2 The reasoning of the pre-trial chamber of the Court of Appeal resulted in creating an immunity of jurisdiction for the acts committed in the context of operations carried out pursuant to UN Security Council Resolutions. For the Court of Appeal, the resolutions prevented domestic courts from exercising jurisdiction over the acts committed on such basis. However, the Security Council resolutions had not prejudged the legality of particular acts executed during those operations in the light of international human rights and international humanitarian law. They therefore could not form a basis for the granting jurisdictional immunity to all public agents of foreign states. As there were no international rules which precluded jurisdiction of French courts, the nationality of the claimants was sufficient to found jurisdiction.

A3 The decision of the Court of Cassation sanctioned, at least in theory, the possibility of incriminating public agents of foreign states for acts committed against French citizens. The Court of Cassation imposed this obligation of investigation in the light of the ICCPR and the Third Geneva Convention. Even if the court did not quote explicitly which norms of the ICCPR had to be taken into account, one may expect that Articles 9, 10, and 14 would be the references for the investigation. As for the Third Geneva Convention, the questions arising would concern the guarantees given to the holders of the status of prisoner of war.

A4 The Court of Cassation sent the case back to another pre-trial chamber to determine whether the arrest and treatment of the French claimants in Guantanamo Bay were in accordance with international human rights and humanitarian law. This did not, however, mean that the new examination would lead to indictments, or even to sentences. The present decision concerned only the admissibility and not the merits of the case.

Analysis by: Yann Kerbrat, Quentin Lienard

Further Analysis

Nicolas Haupais, ‘Cour de cassation, Chambre criminelle, 4 janvier 2005, Nizar SASSI et al’ (2005) Revue générale de droit international public 489

Marie-Hélène Gozzi, ‘Droit pénal : panorama 2004’ (2005) Recueil Dalloz 1524

Gildas Roussel, ‘A propos de l'arrêt de la Cour de cassation chambre criminelle du 4 janvier 2005, compétence des juridictions françaises pour connaître des détentions sur la base de Guantanamo’ (2005) Actualité juridique de droit pénal 158

Instruments cited in the full text of this decision:

Charter of the United Nations (26 June 1945) 59 Stat 1031; TS 993; 3 Bevans 1153, entered into force 24 October 1945, Article 51

Geneva Convention relative to the Treatment of Prisoners of War (12 August 1949), 75 UNTS 135, entered into force 21 October 1950

International Covenant on Civil and Political Rights (16 December 1966), 999 UNTS 171, entered into force 23 March 1976

Resolution 1368, UN Doc S/RES/1368, UN Security Council, 12 September 2001

Resolution 1373, UN Doc S/RES/1373, UN Security Council, 28 September 2001

Previous stages in these proceedings:

First instance; Nizar Sassi and ors, Lyon, Pre-trial Chamber, unreported, 14 February 2003

Nizar Sassi and ors, Court of Appeal of Lyon, Pre-trial Chamber, unreported, 20 May 2003