A bombshell opinion from France’s highest court has raised doubts about the prospects for universal jurisdiction cases, in France and elsewhere, to hold accountable perpetrators of human rights abuses in States that do not respect international law. The French cour de cassation held that French prosecutors could not investigate or prosecute crimes against humanity under a long-standing French law because Syria had not criminalized crimes against humanity domestically. There is concern that the ruling will deprive Syrians – and victims from other States that do not recognize crimes against humanity – from seeking accountability for human rights abuses through universal jurisdiction (UJ). This would be an unfortunate turn of events as UJ has become the last refuge for many victims of atrocities when the International Criminal Court (ICC) (in conjunction with the U.N. Security Council) has chosen not to act. As suggested by a coalition of NGOs, the French law should be amended. But in the interim, there remain significant opportunities to seek justice in France for Syrian atrocity crimes, including for genocide, torture, and war crimes.

Cour De Cassation Blocks Crimes Against Humanity

On Nov. 24, 2021, the cour de cassation issued a final ruling that French prosecutors are not competent to investigate and prosecute an alleged Syrian war criminal due to the lack of a definition in Syrian law of crimes against humanity. The case involved Abdulhamid C., 32, who served between 2011 and 2013 as a reservist in the state security services in Damascus – a unit known for violent suppression of demonstrations against the regime of Bashar al-Assad.  Yet the court said it could not prosecute “complicity in crimes against humanity” against a former Syrian soldier on French soil.

The ruling – brief by international law standards – was based on Article 689-11 of the French code of criminal procedure, which states that crimes against humanity can only be prosecuted in France under the condition of the existence of dual criminality. In other words, French prosecutors can only prosecute this conduct if the State in which the crimes were committed either expressly criminalizes crimes against humanity, or is party to the Rome Statute and has thus criminalized the conduct by ratifying the treaty (even without implementing legislation).

The decision was a great shock to many human rights defenders, activists, and Syrians in particular who voiced dismay that for perpetrators of the most heinous crimes to be subject to justice, there must be criminal provisions that punish them in the legislation of the State of their nationality or region where the crimes were committed – States that, in many cases, are directly involved in the criminal conduct. These observers have warned that France may now become a safe haven for human rights abusers.

In the case of human rights abuses in States, like Syria, that have not criminalized crimes against humanity, this is not the end of the road. Indeed, as Syria has ratified the Geneva Conventions as well as a number of other international conventions and treaties that criminalize the conduct at issue, there remain viable alternatives to prosecute perpetrators living in France.

Syrian Domestic Law

As the cour de cassation has made clear, French law requires double criminality for crimes against humanity to be prosecuted in France. Although crimes against humanity are not criminalized in Syria, a number of other crimes can be found in Syrian statutes. For these crimes, double criminality would be satisfied. For example, double criminality explicitly applies to war crimes under French law. But unlike with crimes against humanity, double criminality is satisfied with regard to war crimes as Syria ratified the Four Geneva Conventions in 1953. Furthermore, Syria has acceded to the Geneva Protocol banning the use of asphyxiating and poisonous gases and bacteriological methods in wars by Legislative Decree No. /117/ of 1970. Therefore, future charges can be brought for war crimes in general as well as for chemical weapons offences.

Cases could also move forward on charges of torture. Although torture is not specifically mentioned in the French provision requiring double criminality, it is recognized under international law both as a war crime and as a crime against humanity and could arguably be subject to article 689-11. But Syria has acceded to the Convention against Torture, which was executed domestically by Legislative Decree No. 39 of 2004. Furthermore, Article 28 of the Syrian Penal Code provides that “no one may be tortured physically or mentally, or treated degradingly.” This is further included in Article 391 of the Syrian Penal Code, which prohibits torture and punishes the perpetrators of this crime. Therefore, torture may still be investigated and prosecuted by French authorities.

In some cases, the Syrian counterterrorism law may also provide a reasonable basis for double criminality. It should be noted that the Syrian counterterrorism law has been heavily abused by the Syrian government to persecute those with opposing views as well as ordinary citizens. This exposes the absurdity of the double criminality requirement in cases of States that are themselves responsible for widespread human rights abuses. Nonetheless, the double criminality requirement can be satisfied in cases where French prosecutors elect to pursue those responsible for terrorism related offences, such as members of ISIS or Jabhat al Nusra.

Dubious Basis of Double Criminality

Despite the clear avenues that remain open to Syrian victims in France, the rationale for requiring double criminality for universal jurisdiction crimes is open to question. Some international crimes are of such importance, and so universally accepted, that implementing legislation within the State in which the crime occurred should not be required for a prosecution under universal jurisdiction.

Peremptory norms of international law are those that are accepted and recognized by the international community of States as a whole and therefore do not permit derogation (i.e. jus cogens). The International Court of Justice has recognized prohibitions against genocide and torture as peremptory norms – though to date it has not yet recognized crimes against humanity as falling within that category. Many would consider that grave breaches of the Geneva Conventions also fall within this category. Indeed, some have argued that French courts have already accepted that international laws against crimes against humanity, war crimes, and torture directly apply in France, including their universal character, with some important limitations. In our view, jus cogens crimes are directly applicable in both France and Syria and should satisfy the double criminality requirement, notwithstanding limitations in article 689-11.

The French parliament, likely recognizing the importance of facilitating prosecutions of jus cogens crimes, removed the double criminality requirement for the crime of genocide in 2019 amendments to the French law. However, it let stand the requirement with regard to crimes against humanity and war crimes as well as torture as a crime against humanity or war crime. Human rights groups and victims have called for further amendments to the law to remove the requirement in cases concerning these crimes.

Even if the law is amended, however, the amendments might not resolve the problem that the double criminality requirement has created for the prosecution of human rights abusers arising from the Syrian conflict. At first glance, the international legal principle known as nullum crimen sine lege, found within article 112-1 of the French Penal code (also known in the United  States as the prohibition against ex post facto laws) prevents the application of new criminal laws or newly amended laws retrospectively. So even if double criminality is removed for crimes against humanity in the French law, this might not permit the prosecution of human rights abusers for facts arising prior to the amendment. If that is the case, crimes committed during the course of the Syrian conflict, starting from 2011 and continuing to present, would not be subject to prosecution under any amended legislation. However, French law excludes from the nullum crimen principle laws that are amended for only jurisdictional purposes. So a French court might ultimately conclude that the amendment to remove double criminality for crimes against humanity could have immediate effect, if found to be purely jurisdictional.

Regardless of the outcome, amending the law would permit the prosecution of crimes against humanity committed in Syria, or in other States, following the amendment. It would therefore be appropriate to amend the legislation again to remove the double criminality requirement altogether for crimes against humanity.

Revisiting the Lafarge Opinion

Those following universal jurisdiction cases will recall that only a few months ago, the same cour de cassation issued a decision that breathed new life into the criminal case against the Lafarge cement company for complicity in crimes against humanity because of payments the company made to ISIS in order to continue its cement operations in Syria.

In that case, a lower court had ruled that the company could not be held liable for complicity in crimes against humanity. The cour de cassation overturned that ruling, holding that “one can be complicit in crimes against humanity even if one doesn’t have the intention of being associated with the crimes committed.” The court also held that “knowingly paying several million dollars to an organization whose sole purpose was exclusively criminal suffices to constitute complicity, regardless of whether the party concerned was acting to pursue a commercial activity.”

On its face, it is difficult to reconcile the Lafarge ruling with the ruling in the Abdulhamid C. case. The first case reinstated charges of crimes against humanity for conduct in Syria, whereas the second dismissed a case holding that crimes against humanity could never be charged for conduct in Syria. To view the decisions favorably one might consider that the issue of double criminality was never raised in the Lafarge appeal. It could be said that the Lafarge ruling was laser-focused on the issue of complicity and whether there could be a set of facts that would support complicity in crimes against humanity. The court had no reason to consider the location of the crimes in Syria and whether double criminality could also be a ground for dismissing the crimes against humanity charges. That said, the apparent inconsistency is striking. Although France is a civil law jurisdiction that does not recognize legal precedent as it is understood in common law jurisdictions, one would think that there would be an attempt to remain consistent, particularly in two cases issued within two months of one another.

In any case, the decision in the Abdulhamid C. case could lead to the dismissal of the crimes against humanity charges against Lafarge which are currently on remand. The Lafarge case could continue on the basis of the remaining charges, including financing terrorism. But the dismissal of the most serious charges would be an unfortunate outcome – one that makes the decision in the Abdulhamid C. case all the more regrettable, and the amendment of the double criminality requirement all the more urgent.

Conclusion

The cour de cassation decision in the case of Abdulhamid C. is a blow to victims of crimes against humanity in Syria. Present efforts to obtain a measure of justice in Syria – both in France and elsewhere – are highly reliant on universal jurisdiction prosecutions given that a referral to the ICC has been vetoed by Russia, and Syria is not a party to the Rome Statute (having signed the Statute in 2000 but never ratified it). The imposition of double criminality in these circumstances is inconsistent with the principle of universal jurisdiction which is buttressed by an understanding that there are crimes that are so serious as to threaten the entire world and affect the global conscience. It is understandable that human rights defenders would consider that the decision gives criminals an opportunity to enjoy impunity despite committing the most serious of crimes.

However, as noted above, Syria has criminalized war crimes, torture, and terrorism which remain viable avenues for prosecutions in France despite the double criminality requirement. As such, the cour de cassation opinion, while regrettable, does not signify the end of universal jurisdiction in France.

Image: A view of the entrance to the Court of Cassation (Cour de cassation), pictured on March 21, 2017. (THOMAS SAMSON/AFP via Getty Images)