The French Supreme Court corrected course earlier this month as the full Court reconsidered an earlier panel’s decision to stop the prosecution of war criminals living in France. In a closely followed case concerning the exercise of universal jurisdiction – which allows the prosecution of atrocity crimes even when committed outside of a state’s territorial borders – the French Cour de cassation (the country’s supreme court of appeal over civil and criminal matters) sat in plenary to determine whether an earlier panel of the court had interpreted French law too narrowly when it found that a suspected war criminal from Syria could not be prosecuted.
The full Court issued two rulings to clear the way for further prosecutions despite limitations imposed by the French parliament, holding that the relevant prosecutions were not barred by the principle of double criminality or other defenses raised by the defendants. Other pending cases can now move forward, such as those involving recruitment of child soldiers and use of chemicals weapons in Syria – as well a multitude of cases from other jurisdictions such as Ukraine. Nonetheless, there remain arbitrary restrictions in French law – unjustified by international law – that could present insurmountable obstacles for future cases.
Case 1 – Double Criminality
France has signed and ratified the Rome Statute and passed implementing legislation to criminalize crimes against humanity, war crimes, and genocide. However, it tied the hands of prosecutors by writing into domestic law certain limitations. As Aweiss Al Dobouch and I have written previously, one of those limitations is the so-called double criminality requirement which prohibits overseas crimes from being prosecuted unless the crime is also prohibited by the State where the offense occurred. Double criminality is a nod to fairness as it would be unjust to prosecute someone in France for an act that wasn’t illegal in the State where it was committed. But it would seem to have limited relevance to the most serious category of crimes, involving the widespread and systematic attacks on civilians (i.e., crimes against humanity) as they are universally recognized as crimes under customary international law. In 2021, a panel of the Cour de cassation put a stop to the prosecution of a Syrian reservist named Abdulhamid C., who was allegedly complicit in the suppression of protests, and worked for two sections of the General Intelligence in Damascus known for torturing detainees. That panel held that because Syria had not criminalized crimes against humanity specifically, the prosecution was illegal.
On May 12, the full Court reversed that decision, holding that common sense should prevail and that Syria’s criminalization of torture, killing, and murder should suffice to ensure fairness to the accused person. Referencing the legislative history of the original French law, the Court noted that double criminality did not require that the law of the prosecuting state and the law where it occurred be identical. It also referenced the law of extradition which required double criminality but had left it to the courts to determine whether the facts alleged would qualify as crimes in the state of commission. Noting that Syria had criminalized murder, rape, and torture, it held that the prosecution of Abdulhamid C. did not require that Syria specifically criminalize crimes against humanity and that the prosecution could recommence.
Keenly aware that it was significantly broadening the scope of French law, the Court stated that some important limitations remained. For example, persecution as a crime against humanity and certain war crimes might not be criminalized in certain states. Pursuing such cases in France would not be possible under existing law, the Court was careful to note.
Case 2 – Non-State Actors, the “Habitual Resident” Requirement, and Future Implications
In a second case, decided on the same day, the Court clarified numerous other limitations to the prosecution of crimes against humanity. The case involved Islam A., a member of a non-state actor, Jaysh al-Islam (Army of God), who had travelled to France and was enrolled as a university student. He was charged with torture, complicity in forced disappearances, and participation in a group established to commit war crimes, as well as recruitment of child soldiers.
Under international law, as well as French law, torture is defined as being committed by a “public official or other person acting in an official capacity.” The accused in the case challenged whether he could be charged with torture as he was not a public official even if it was proved that he was a member of Jaysh al-Islam. Citing cases from the U.N. Committee against Torture as well as a 2019 decision of the U.K. Supreme Court, the Cour de cassation rejected the argument, holding that torture could be committed by a non-State actor during its occupation of territory where it was exercising quasi-governmental authority. It recalled that Jaysh al-Islam had occupied the region of Ghouta, and had exercised judicial, military, detention, commercial, and religious authority, by which it inflicted repression, violence, pain, and suffering on the population. Such acts, in the view of the Cour de cassation, could constitute torture, even if committed by a non-State actor.
Just Passing Through?
French law imposes an additional burden on the prosecutor of atrocity crimes, namely to prove that the accused is a “habitual resident” of France. Unfortunately, the term is nowhere defined in French law. The Court noted that the limitation was intended to prevent the “instrumentalization” of French jurisdictions that would impact the conduct of international relations. It was therefore meant to guarantee a true connection between France and the person under investigation. Mere transit through France would not suffice to establish “habitual residence”. However, it noted that Islam A., whose parents lived in Turkey, had a French student ID card, metro ticket, library card, and telephone card. Police surveillance noted that he stayed at his apartment in France and that he left only to go to mosque or eat, acting “like an effective resident and not like a tourist.” They held therefore that he had sufficient stability during a period of at least 3 months to satisfy the “habitual residence” requirement. The holding will be welcomed by civil society which has advocated that the case move forward. However, it is not a panacea. Members of autocratic regimes frequent European capitals to shop along the Champs Elysees or to eat at Michelin starred restaurants. Given the habitual residence limitation, simply luring a member of an abusive regime to France won’t permit a prosecution. It would be better that this limitation be written out of French law altogether.
Child Soldiers and Their Mothers
Again faced with a challenge based on double criminality, the Court reaffirmed its holding in the companion case that the crimes in the prosecuting State and the State of commission need not be identical. It noted that both Syrian and French law prohibited recruitment of child soldiers under 18 years old. It further noted that Syria had ratified the four Geneva Conventions as well as the Convention on the Rights of the Child (which prohibits recruitment of children younger than 15 years old). It therefore reinstated the prosecution against Islam A. on this charge, also ordering that he pay 2,500 Euros to the civil parties for their attorney fees.
The Court therefore clearly indicated that recruitment of child soldiers in Syria could be prosecuted in France. The precedent may have immediate importance as 35 children were repatriated from northeast Syria to France, along with 16 mothers of the children who may be suspected members of ISIS. The fate of the mothers is as yet unclear. However, women who have travelled with their children to Syria and Iraq have been prosecuted for child endangerment as well as child recruitment.
As we have noted previously, other serious crimes, such as use of chemical weapons, are likewise prohibited by Syrian law. There are several pending investigations in France for these crimes which should also be able to move forward without hindrance.
With its liberal interpretation of French law, the Cour de cassation narrowly saved the doctrine of universal jurisdiction in France, particularly for crimes in Syria. With the International Criminal Court unavailable, given Russia and China’s veto of the U.N. Security Council referral of the situation, and no other tribunals with criminal jurisdiction to hear Syrian cases, universal jurisdiction remains the last refuge for those seeking a measure of justice for Syrians and victims of other conflicts.
With these two decisions, prosecutions for the most serious international crimes, including torture, murder as well as recruitment of child soldiers can now move forward in France. However, there remain important limitations that would prevent other very serious cases from being prosecuted. These limitations are not required by international law, and the French parliament would better serve international justice by removing these loopholes and giving universal jurisdiction full effect in France.