French Courts Lack Jurisdiction to Hear Case on France’s Alleged Liability for Genocide Against the Tutsi

This post has been written by Delphine Porcheron, Maître de conférences HDR, University of Strasbourg.

On 14 November 2024, the Administrative Court of Paris dismissed a lawsuit filed by Rwandan citizens and associations seeking to hold the French State accountable for its role in the 1994 genocide against the Tutsi in Rwanda, a massacre that resulted in the deaths of nearly one million people. The plaintiffs based their case, in part, on the findings of a 2021 report by a French commission of historians (the Duclert report), which acknowledged the ‘heavy and overwhelming responsibility’ of the French State in the events leading up to and during the genocide. The report highlights France’s political and military responsibility on several fronts: its continued blindness in supporting the ‘racist, corrupt, and violent regime’ in power in Rwanda during this period; the adoption of an ethnonationalist perspective aligned with that of the Rwandan government between 1990 and the beginning of 1994; France’s growing international isolation; and the structure and functioning of French institutions, which hindered the ability to critically assess the decision-making process. However, it is important to note that the Commission’s mandate did not include assessing legal liability, and it refrained from making any determinations on that matter (see interview with Raffaëlle Maison, La France et le génocide rwandais, La vie des idées).

The ‘Acts of Government’ Exception

The ruling of 14 November 2024 offers no further clarification on this matter. As expected, the Administrative Court determined that it lacked jurisdiction to hear the claim. In reaching this conclusion, the Court invoked the doctrine of ‘acts of government’, which holds that actions related to the conduct of France’s international relations are immune from judicial review. This principle is grounded in the constitutional separation of powers: the immunity afforded to the French State before its own courts is intended to protect the autonomy of the executive in managing France’s foreign policy.

This decision may seem somewhat distant from considerations of private international law, especially for readers of this blog based in France. Indeed, even if the ‘act of government’ doctrine had been waived, the issues of conflicts of jurisdiction and laws would typically not arise: French administrative courts have jurisdiction to hear disputes pertaining to French administrative activities and this jurisdiction is contingent upon, in principle, the application of French administrative law.

An Increasing Number of Actions are Being Brought before National Courts

However, the growing number of claims for damages brought before national courts in response to serious human rights and international humanitarian law violations committed by States outside their own territory raises important questions about the potential role of private international law in addressing such cases (for a more detailed analysis, see forthcoming, D. Porcheron, ‘Les actions transnationales en réparation de crimes internationaux commis par un État: l’émergence d’un nouveau contentieux’, Rev. crit. DIP 2025, and for further discussion on the challenges of linking different branches of law in this context, see C. McLachlan, ‘Entre le conflit de lois, le droit international et l’application internationale du droit public: le droit des relations externes des Etats’, Rev. crit. DIP 2018, pp. 191 et seq. and J. Bomhoff, ‘The Reach of Rights: ‘The Foreign’ and ‘The Private’ in Conflict of Laws, State Action and Fundamental Rights Cases with Foreign Elements’, Law and Contemporary Problems, vol. 71, no. 3, 2008, pp. 39 et seq.).

The Problem of Judicial Restraint

For several years, ‘private litigation’ for reparations against States has been gaining ground, driven by the abolition or limitation of the ‘doctrines of avoidance’ that restricted judicial review in some States (see E. Lagrange, ‘L’efficacité des normes internationales concernant la situation des personnes privées dans les ordres juridiques internes’, RCADI vol. 356, 2012). In this context, certain domestic courts have increasingly been willing to waive the jurisdictional immunity of foreign States. For example, in the Seoul Court of Appeal’s decision of 23 November 2023 (see Rev. crit. DIP 2024-3, p. 603, note by David J. Lee), the court lifted Japan’s sovereign immunity in a case brought by women who were victims of sexual slavery during World War II. Similarly, in Karla Christina Azeredo Venancio da Costa e Outro v. República Federal da Alemanha, ARE 954858/RJ, judgment of 23 August 2021, the Brazilian Supreme Court lifted Germany’s immunity for acts committed during the same period. Moreover, some national courts are now limiting, or even abolishing, the ‘political question’ doctrine when States are being challenged in their own courts. For a discussion on the redefinition of Crown acts of State and foreign acts of State in the UK, see Ugljesa Grusic, Torts in UK Foreign Relations, Oxford University Press, 2023.

The Question of Choice of Law

Once judicial restraints are overcome, the cases raise important questions regarding the applicable law for compensating the damages suffered by victims. One such case is the decision of the Dutch Supreme Court on 19 July 2019, which addressed a tort claim brought by civilian victims of the 1995 Srebrenica massacre perpetrated by the Bosnian Serbs army. On the issue of applicable law, the Court ruled that Dutch law should apply, in conjunction with international human rights law. Similarly, readers of the EAPIL blog will recall the Green Desert case, in which the Danish Supreme Court examined the applicable law in a case involving the actions of the Danish army in Iraq in 2004. Another notable example is the English Supreme Court’s decision in Zubaydah on 20 December 2023. In this case, the Court addressed the liability of the UK government for its alleged complicity in the CIA’s wrongful conduct concerning the unlawful imprisonment and torture by the CIA of Mr. Zubaydah, applying section 12 of the Private International Law (Miscellaneous Provisions) Act 1995 (see the comments of U. Grusic, in EJIL Talk! and EAPIL blog). Likewise, the Seoul Court of Appeal referred to the conflict of laws rules in force at the time of the events, alongside international law, in its decision on compensation claims brought by Korean women against Japan.

Beyond the differences between legal systems and contexts, the increasing number of such reparation cases raises critical questions about the role of private international law in this context, as well as the appropriate conflict of laws rules to apply. It also invites a broader reflection on the role of national courts. In a long-awaited ruling delivered on 2 December 2024, the Brussels Court of Appeal ordered the Belgian State to compensate five Métisses women who were abducted, placed in religious institutions on racial grounds, and ultimately abandoned during Belgium’s colonial period in the Congo. This landmark decision marks a pivotal step toward justice and reparation, setting Belgium on a new path of accountability for its colonial past. But are national courts always the most suitable forum for hearing such claims? If not, what alternative mechanisms could ensure that these claims are addressed with the seriousness they deserve?