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The entrance of the Cour de Cassation, France’s highest judicial court housed in the Palais de Justice in Paris.
© 2014 AP Photo/Martin Bureau, Pool
(Paris, May 12, 2023) – Two decisions by France’s Court of Cassation on May 12, 2023, related to Syria atrocity crimes cases have recognized France’s ability to address serious international crimes, nine rights groups said today. While the decisions confirmed the jurisdiction of French courts over a significant number of pending cases, they do not address the full scope of restrictive conditions that remain in French law. The French government still needs to move ahead with urgently needed reforms to remove legal restrictions that risk France becoming a safe haven for people responsible for the world’s worst crimes.
The Court of Cassation, the highest court in the French judiciary, examined provisions in French law that restrict victims’ access to justice for serious crimes committed abroad. The judges concluded that the necessary conditions were met for the French judicial system to take up cases involving Syrian nationals accused of serious crimes committed in Syria.
“The Court of Cassation has heeded the French general prosecutor’s recommendations and the pleas of the victims’ representatives to interpret the law to allow French officials to pursue perpetrators of international crimes committed abroad,” said Brigitte Jolivet, spokesperson at the French Coalition for the International Criminal Court (Coalition Française pour la Cour Pénale Internationale, CF-CPI). “These two long-awaited decisions will have an impact in France on dozens of complaints and investigations related to international crimes committed not only in Syria, but also in other countries, including Libya and the Democratic Republic of Congo. But the onus is still on the French government to amend the law.”
The Court of Cassation considered the application of the legal principle of universal jurisdiction in France, which allows national judicial authorities to prosecute the most serious crimes under international law even if they were not committed within the country’s territory, or by or against one of its citizens. Each of the decisions examined a recent case related to Syria that shed light on how restrictions in French law limit the exercise of universal jurisdiction against people implicated in serious crimes, the groups said.
The court examined the cases of Abdulhamid Chaban, a former Syrian soldier indicted for complicity in crimes against humanity in February 2019, and Majdi Nema, a former spokesperson for a Syrian armed group who faced war crimes, torture, and other charges. In both cases, the court focused on the conditions under which French courts can adjudicate acts of torture, crimes against humanity, and war crimes under universal jurisdiction.
In November 2021, the Court of Cassation decided that French judicial authorities lacked jurisdiction for crimes against humanity in the Chaban case. In a restrictive application of the “dual criminality rule,” the court held that the prosecution could not proceed under French law because there are no provisions in domestic Syrian law that explicitly criminalize crimes against humanity. Following that decision, civil society, lawyers, and survivors expressed concerns that misapplication of the dual criminality rule could result in perpetrators of grave crimes who are present in France escaping justice, and called for reforms to do away with the rule.
In the Nema case, the Paris Court of Appeal decided not to follow the Court of Cassation’s earlier decision and considered that Syria was bound by international law provisions prohibiting war crimes, establishing a less restrictive interpretation of the dual criminality rule. But this case also drew attention to a second problematic limitation in French law: that an accused person must “habitually” live on French territory.
Because the Nema case created an inconsistency in French case law on the dual criminality rule, the full Court of Cassation decided to consider the issue as well as the “habitual residence” condition. The court also examined whether members of non-state armed groups could be prosecuted for torture in France under certain conditions, or whether only state agents could be prosecuted for that crime. The Court of Cassation heard arguments in the cases on March 17.
“While the Court of Cassation specifically addressed the ability of French authorities to pursue grave crimes cases relating to Syria, the decisions will have a wider impact for France’s overall role in the struggle against impunity,” said Jeanne Sulzer, head of the International Justice Commission at Amnesty International France. “These decisions allow victims – who have no recourse to justice in their own countries or at the International Criminal Court – to bring cases in France to allow it to play an important role in the fight against impunity.”
While the Court of Cassation’s decisions confirmed the jurisdiction of French courts over a significant number of pending cases, they do not address the full scope of restrictive conditions that remain in French law, the rights groups said.
At the March 17 hearing, the International Federation for Human Rights (Fédération Internationale pour les Droits Humains, FIDH), representing the victims’ interests in the cases, argued for a broader interpretation of both conditions, highlighting France’s legal obligation to prosecute the most serious crimes. The Court of Cassation’s general prosecutor, asked the court to confirm France’s jurisdiction over both cases, saying that it would clarify the exercise of universal jurisdiction in the country. Defense lawyers asked the court to confirm the Chaban decision, asserting that it was legally justified to adopt a restrictive application of universal jurisdiction.
The Court of Cassation’s decisions only dealt with some of the restrictions in French law that might prevent successfully prosecuting cases involving serious crimes. Unlike for other crimes in France, the prosecutor in such cases has discretion in deciding whether to prosecute. In addition, French civil society groups have expressed concerns about a requirement that French prosecutors verify whether any other national or international court has asserted its jurisdiction before opening an investigation.
Some of the restrictions apply to some crimes, but not others. This has created a discrepancy in how different grave crimes – crimes against humanity, war crimes, genocide, torture, enforced disappearance – are addressed in the country.
Regardless of the Court of Cassation’s decisions, the government should follow through on the legislative changes necessary to remove restrictions that frustrate justice in France for serious crimes, the rights groups said. Overall, the restrictions are out of step with France’s stated commitment to international justice and the fight against impunity.
In recent years, members of parliament have proposed new bills or amendments to eliminate the restrictions, without success. Though the French government had expressed its openness to reform before the 2022 presidential election, officials have not shown the political will to take concrete steps to that effect. Removal of all four restrictions would allow victims, survivors, and others to turn to French justice as a meaningful forum to fight impunity for the worst crimes, the groups said.
“The French government needs to end its ambiguous position on France’s capacity to prosecute serious crimes,” said Alice Autin, international justice officer at Human Rights Watch. “France could play a key role in advancing international justice around the globe, but serious legislative changes need to follow.”
Signatory Organizations:
Amnesty International France
Coalition Française pour la Cour Pénale Internationale
International Federation for Human Rights
Ligue des Droits Humains
Human Rights Watch
REDRESS
Reporters Without Borders
Syndicat de la Magistrature
TRIAL international
