“These decisions come as a great relief to the civil parties” said Clémence Bectarte, lawyer for FIDH and the civil parties. “The ongoing judicial investigations will be able to continue. However, this 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. The only way out is to change the law and remove these locks”.
In the two rulings handed down today, the Court of Cassation followed in every respect the arguments developed by our organisations, the civil parties. It considered that the condition of double criminality required by the French law on universal jurisdiction is fulfilled as soon as the foreign legislation punishes the acts in question, regardless of the qualification under which they are incriminated.
“These decisions offer significant hope to Syrian victims and, more generally, to victims of international crimes who have turned to French justice. It was interesting to see both suspects use the same allegations when challenging the jurisdiction of French courts over the charges against them, despite the fact that they belonged to two parties that were supposed to have been on opposite sides during the Syrian conflict, namely the State security apparatus and Jaysh al-Islam” said Mazen Darwish, FIDH Secretary General and General Manager of the Syrian Center for Media and Freedom of Expression (SCM), a civil party in the proceedings.
In the Nema case, the Court of Cassation considered that the condition of habitual residence was a factual condition subject to the appreciation of the lower courts, but specified a set of indicators for establishing a sufficient connection between France and the person prosecuted.
With regards to acts of torture, the Court of Cassation took note of the evolution of international law in this area and confirmed that such acts could indeed be attributed to persons acting for or on behalf of a non-state group when the group exercises quasi-governmental authority.
“We now expect strong actions from the government and the parliament, in order to establish a firm position of France to give the French justice system the means to fight against impunity” said Patrick Baudouin, LDH president and FIDH honorary president.
A landmark victory for all victims of international crimes
Abdulhamid Chaban, a former member of the Syrian security forces, was indicted in February 2019 for crimes against humanity. He had referred the case to the Investigation Chamber of the Paris Court of Appeal in August 2019, alleging the lack of jurisdiction of French courts according to the Universal Jurisdiction Law of 9 August 2010, and then appealed against the ruling confirming the jurisdiction of French courts.
On 24 November 2021, the Criminal Chamber of the Court of Cassation handed down a decision that established a restrictive interpretation of the double criminality criterion provided for in Article 689-11 of the Code of Criminal Procedure, and thus concluded that French courts did not have jurisdiction over crimes committed in Syria, on the grounds that the Syrian State had not criminalised crimes against humanity in its domestic legislation. FIDH opposed this decision due to procedural irregularities.
Incidentally, Majdi Nema, former spokesperson for the Syrian armed group Jaysh Al Islam, was indicted in January 2020 for complicity in enforced disappearances, war crimes, torture and complicity in these crimes. He also alleged that French courts did not have jurisdiction over the charges held against him. After a hearing before the investigating chamber of the Paris Court of Appeal, which rejected his claims, he appealed to the Supreme Court.
The 9 August 2010 Law, slightly amended by the legislator in 2019, provides for 4 locks to the exercise of universal jurisdiction in France: in addition to the habitual residence of the suspect and dual criminality, the law also provides for the monopoly of prosecution by the public prosecutor’s office, depriving victims of the possibility of initiating public action, as well as the obligation given to the public prosecutor’s office to verify, prior to the opening of an investigation, whether another national or international jurisdiction has declared itself competent.