France must not be a land of impunity for Syrian torturers

Open Letter
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Andrea Savorani Neri / NurPhoto / NurPhoto via AFP

Our organisations have learned with great concern of a decision rendered on Wednesday, November 24 by the Criminal Division of the Court of Cassation, which validates the fears we have been expressing since the adoption, on August 9, 2010, of the law adapting France’s criminal code to the Rome Statute: the exercise of universal jurisdiction for the most serious crimes is made legally impossible.

Back then, we strongly denounced the safeguards introduced in the aforementioned law, and denounced the significant obstacles that these constituted for the victims of genocide, crimes against humanity and war crimes.

Yesterday’s decision is a perfect illustration of this: the Court of Cassation adopted a strict interpretation of the double criminality criterion cited in article 689-11 of the Code of Criminal Procedure, and thus concluded that a French judge does not have jurisdiction over crimes committed in Syria, on the grounds that the Syrian State has not ratified the Rome Statute, nor criminalised crimes against humanity in its domestic legislation.

This criteria of dual criminality for crimes under international law, which is not required for other offences committed outside French territory and targeted by international conventions, is not in fact required by the Rome Statute either, since the International Criminal Court can be referred to a situation even if the legislation of the state in which the crimes were committed does not criminalise the offence in question.

By definition, crimes under international law constitute the violation of universal values recognised by the international community. This criteria of double criminality amounts to calling into question this universality and is completely inconsistent with the principles underlying international criminal justice.

However, on August 5, 2021, in response to a written question from Senator Roger, the Minister of Justice replied that "the requirement of double criminality is a fundamental principle of international law". This is completely erroneous with regard to crimes under international law and reflects a lack of understanding of international law.

Ultimately, this criteria encourages impunity, since it is simple matter for a state in which crimes against humanity or war crimes are committed to refuse to ratify the Rome Statute, or to not incriminate these crimes in its internal legislation, in the interest of allowing its citizens to escape the jurisdiction of French justice. What a disastrous signal sent by France to all the executioners of the planet!

This is not the only restrictive provision imposed by the legislator. The Public Prosecutor’s monopoly on prosecutions and the condition that the suspect must be a habitual resident, again, are all conditions designed to prevent the universal jurisdiction from being used in France.

Despite the cosmetic modifications made by the law of 23 March 2019 to article 689-11 of the code of criminal procedure, eliminating in particular the condition of double criminality for the crime of genocide, the reality is that our organisations, as well as the members of parliament who have tried in recent years to remove this restrictive criteria by way of amendments or bills, have always come up against lacking political will on the part of your government, as well as those of your predecessors, to modify the mechanism of universal jurisdiction in order to make it truly effective for the victims of crimes under international law who wish to turn to French justice in the absence of any prospect of justice in their own country.

In the case that concerns Syria, a country in which France has always taken a position in favour of the fight against impunity, and while a first historic trial held in Germany, before the Court of Justice in Koblenz, will be completed in a few weeks, what can we say to the Syrian victims and NGOs who have brought their complaints before the French justice system, hoping that the latter will also play its part in the fight for justice? Words only have meaning if they are followed by actions, and it must be noted, Mr. President, that despite the commitment given when you were a presidential candidate, in response to a question from the Collective for a Free and Democratic Syria, specifying that "the application of universal jurisdiction will be among the subjects discussed in July [2017] with the National Assembly, and before that with the Senate," nothing has been done to amend the law, even though the opportunity again presented itself to the Senate last September. The decision of the Court of Cassation on November 24 reminds us of the concrete consequences of keeping these provisions in place. Our organisations are convinced that there will never be efficient international justice if we make it impossible to exercise universal jurisdiction, the only recourse in many cases for victims of international crimes.

It is essential to change this law and to commit yourself firmly and resolutely to concrete actions that will allow victims and associations to continue their co-combat against the impunity of the perpetrators of the most serious crimes, and to turn, also, to French justice.

Patrick Baudouin et Clémence Bectarte – CFCPI
Cécile Coudriou – Amnesty International
Mazen Darwish - SCM
Christophe Deloire – RSF
Philip Grant – TRIAL International
Brigitte Jolivet – Syndicat de la Magistrature
Eléonore Morel – FIDH
Michel Morzière – Revivre
Malik Salemkour – LDH
Andreas Schüller – ECCHR
Rupert Silbeck – REDRESS

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