A longer version of this article first appeared in Just Security
A bombshell opinion from France’s highest court has raised doubts about the ability of 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. It said that French prosecutors could only prosecute crimes against humanity if they were part of criminal law in Syria as well as France.
The decision was a great shock to many human rights defenders, activists, and Syrians. These observers warned that France may now become a safe haven for human rights abusers. There is also concern about the impact to the Lafarge case. In that case, the cour de cassation 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. It is possible that these charges will now be dismissed based on the new decision, leaving only lesser charges against the company.
Still, 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 and allow for trials to move forward. For example, 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 because Syria has acceded to the Convention against Torture, which was executed domestically by Legislative Decree No. 39 of 2004. Furthermore, Article 53 from the Syrian constitution 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.
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.
It is important for the law in France to be amended to allow cases involving Crimes Against Humanity in Syria to move forward. Even if the law is amended, however, the amendments might not resolve the entire problem. Pursuant to article 112-1 of the French Penal code, new criminal laws or newly amended laws generally do not apply retrospectively. So even if the law is amended, French courts could find that 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, there is an exception for laws amended for only jurisdictional purposes. So a French court might ultimately conclude that the amendment has immediate effect and allow Syria cases to move forward, if the law is 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.
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.