France’s Highest Court Confirms Universal Jurisdiction

In November 2021, the Criminal Chamber of the French Cour de cassation, shocked the international criminal law community (see here and here) by considering that French courts did not have jurisdiction over crimes against humanity committed in Syria because Syria was not party to the Rome Statute and did not criminalise crimes against humanity as such in its domestic legal framework. Thankfully the plenary assembly of the Cour de cassation reversed that decision last month in the Nema and Chaban cases.

The French universal jurisdiction framework

The French universal jurisdiction framework is complex and depends on the crimes prosecuted. France transposed the 1984 Convention against Torture, the 2006 International Convention for the Protection of All Persons from Enforced Disappearance and the 1998 Rome Statute of the International Criminal Court (ICC) differently into its domestic system.

For the crimes of torture and enforced disappearance, French courts are competent as soon as the suspect is on French territory when the complaint is filed (arts 689-1, 698-2 and 689-13 of the French procedural criminal code).

When it comes to other crimes provided for in the Rome Statute, the conditions are a lot more restrictive, however. The law limits the prosecution of crimes against humanity and war crimes by what French lawyers call the “four locks” (les quatre verrous). These four locks are that: (1) the suspect is a “habitual resident” in France, (2) the State in which the crimes were committed also criminalises the crimes prosecuted (“double criminality”), (3) only the prosecutor can initiate the proceedings – for ordinary crimes, the victims can themselves initiate such proceedings, and (4) the prosecutor needs to ensure that no other national or international court, for example the ICC, wished to exercise jurisdiction over the crimes (art. 689-11). Since a 2019 procedural criminal code reform, the double criminality requirement does not apply to the crime of genocide (art. 689-11).

As if those four locks were not already too restrictive, in the past, the Cour de cassation interpreted the double criminality requirement particularly strictly.

The Criminal Chamber’s restrictive approach to double criminality

In the case at hand, M. S. R., a former member of the Syrian security services, was referred by the Office for the Protection of Refugees and Stateless Persons – where refugees ask for asylum – to the Prosecutor’s Office. In 2019, he was charged with torture, crimes against humanity and complicity in those crimes. M. S. R. opposed the jurisdiction of the French courts but the Investigative Chamber rejected his application for annulment.

According to the French procedural criminal code, the double criminality condition requires either that the crimes are criminalised in the domestic system of the State where the crimes were committed, that the territorial State ratified the Rome Statute or that the alleged perpetrator is a national of a State which ratified the Rome Statute. In the present case, the Criminal Chamber found that because Syria did not criminalise crimes against humanity as such, but rather merely criminalised torture, the double criminality requirement was not fulfilled. This was despite the fact that Syria is party to the 1949 Geneva Conventions and the 1966 International Covenant on Civil and Political Rights which protects the right to life. The Chamber considered that the contextual element of crimes against humanity, namely that the acts were committed as part of a widespread or systematic attack directed against any civilian population, was missing from the relevant Syrian crimes and therefore prevented French courts from having jurisdiction over such crimes.

The Paris Court of Appeal’s opposition

In parallel to M. S. R.’s case, M. P. W., a former spokesperson of the Islamist group Jaysh Al-Islam, was also charged with crimes against humanity, torture and war crimes. When the case reached the Investigating Chamber of the Paris Court of Appeals in April 2022, the Chamber refused to follow the Cour de cassation’s approach and recognised French courts’ competence over the crimes M. P. W. committed in Syria, including crimes against humanity and war crimes. It considered the double criminality criteria did not require a “perfect match” and since Syria’s criminal code criminalises murder, acts of barbarism, rape, violence and torture and Syria has ratified the Geneva Conventions and the 1989 Convention on the Rights of the Child, the French courts were competent.

Further, the Investigating Chamber adopted a flexible approach to the condition of habitual residence. In the case at hand, M. P. W. had arrived in France in November 2019 and was arrested three months later. He argued he resided in Turkey and was only in France for a limited period of time to attend university conferences. The Chamber nevertheless concluded that the condition was fulfilled.

The final stance by the assemblée plénière

The French Cour de cassation is composed of six chambers (three civil chambers, one labour, one commercial and one criminal chamber). When a case is appealed in front of the Court, it is normally referred to the competent chamber only. However, if the case raises an issue of particular importance, especially when lower Courts have been opposing the Cour de cassation, the President of the Court can decide to refer the case to the plenary assembly (assemblée plénière) which is composed of three judges from each of the six chambers and the President. A plenary assembly decision is intended to settle the legal issue for good and is binding on all lower courts.

In the Chaban case, the Criminal Chamber had already adjudicated. However, because the defendant M. S. R.’s had not notified his appeal to the Féderation Internationale des Droits de l’Homme (FIDH), a party to the proceedings, in violation of French criminal procedural law, the Federation was allowed to file a third-party proceeding against the Criminal Chamber’s decision. Separately, in the Nema case, M. P. W. appealed the decision against him. The President of the Cour de cassation joined the two cases and referred them to the plenary assembly.

The Cour de cassation found that double criminality “does not imply that the criminal characterisation of the acts is identical in both legislations, but merely requires that they be criminalised by both.” As such, the condition is fulfilled even with an ordinary offence which would not require the contextual element of a crime against humanity or a war crime. In the cases at hand, because the Syrian constitution prohibits torture, criminalises any violation of personal liberty or protection of personal life or any other rights or public freedoms guaranteed by the Constitution and the criminal code criminalises murder, acts of barbarism, rape, violence and torture, the Court considered that the condition was fulfilled and that French courts had jurisdiction over crimes against humanity and war crimes committed in Syria.

The Cour de cassation however opposed the Paris Court of Appeals’ argument that French courts were competent because Syria had ratified the Geneva Conventions and the Convention on the Rights of the Child. It noted that “in the absence of reference by the Syrian law to the criminalization by the international instruments, […] the principle of legality in criminal matters prevents the acts from being considered as punishable.”

The assemblée plénière further considered that the habitual residence condition had to be assessed by taking into account “a range of indicators, such as the actual or foreseeable duration, the conditions and reasons for the presence of the person concerned on French territory, the desire shown by the individual to settle or remain, or his or her family, social, material, or professional ties.” In the case of M. P. W., the Court considered that he was indeed a French resident as he was attending university in France, had been living there for three months and had established social and material ties worthy of an actual resident and not a tourist.

No absolute universal jurisdiction yet

The FIDH branded the decision “a landmark victory for all victims of international crimes”, noting that it will not only apply to crimes committed in Syria but all over the world. However, its lawyer Clémence Bectarte highlighted that the decision “should not make us forget the inadequacies of the French universal jurisdiction law. The very existence of a legal debate on its conditions of application creates legal insecurity for victims” (see here).

Indeed, the four lock previously discussed, especially the habitual residence of the suspect on French soil and the impossibility for victims to initiate proceedings without the approval of the prosecutor unduly restrict their access to justice. The French legislature should unify the universal jurisdiction framework. It would seem appropriate to permit universal jurisdiction claims in respect of relevant crimes where they meet the conditions for the crimes of torture and enforced disappearances, namely the mere presence of the suspect in France at the time of the filing of the complaint (see here and here).

As such, France should follow Germany’s example who has successfully prosecuted Syrian regime officials for crimes against humanity and Islamic State members for the 2014 genocide of the Yazidis (see here and here). Their universal jurisdiction framework is so broad that the suspect does not even have to be in Germany to be prosecuted, although the prosecutor can refrain from investigating if there is no prospect of the suspect’s presence on German soil (see here).

France has the potential to efficiently investigate international crimes as it has specialised investigators (the Central Office for Combating Core International Crimes and Hate Crimes), specialised prosecutors (the National Anti-Terrorist Prosecutor’s Office) and specialised judges (the Specialised Unit For Combating Crimes Against Humanity). Thanks to these bodies, French authorities have been able to successfully issue international arrest warrants against Syrian regime high officials Ali Mamlouk, Jamil Hassan and Abdel Salam Mahmoud in another case. The authorities were only able to do so in light of France’s passive personality jurisdiction, because the two victims, Mazzen and Patrick Dabbagh, were Franco-Syrians. They, therefore, did not have to limit their investigation to the suspects present on the French territory and were able to aim at the higher end of the chain of command (see here and here). 

France should thus allow such specialised bodies to investigate and prosecute all international crimes by amending its universal jurisdiction framework. Unfortunately, seeing France’s recent proposed amendment to the Mutual Legal Assistance Convention, which would have undermined the purpose of the treaty by making the exercise of jurisdiction against perpetrators of international crimes optional rather than mandatory, it does not seem that its authorities are particularly invested in accountability for international crimes.