In theory, the French judicial courts only has jurisdiction over crimes committed on French territory[i] and crimes committed abroad when the perpetrator or victim is French.[ii] However, in specific cases, under the so-called “universal jurisdiction,” French courts can adjudicate crimes committed abroad by or against a person of foreign nationality.[iii]
Thus, under this principle, set out in articles 689 et seq. of the French Code of Criminal Procedure, French courts have jurisdiction to adjudicate crimes listed in international conventions ratified by France, such as the crime of genocide, crimes against humanity, and war crimes listed in the 1998 Rome Convention of the International Criminal Court[iv], if punishable under the law of the country where they were committed.
With these two decisions on May 12, 2023, the French Supreme Court (“Cour de cassation”) in plenary session clarified the factors for recognizing the universal jurisdiction of French courts to adjudicate acts of torture, crimes against humanity, or war crimes when the acts were committed abroad, in this case in Syria, and none of the parties are French.[v]
In these two cases, two men of Syrian nationality (hereafter “the defendants”) were indicted and prosecuted in 2019 and 2020 by the French courts for complicity in crimes against humanity, the commission of acts of torture, and war crimes committed against foreign nationals outside France. They brought their cases before the Cour de cassation on the ground that the French courts lacked jurisdiction to prosecute crimes against humanity and war crimes, given that Syrian law does not criminalize such acts.[vi]
In fact, in a first ruling on November 21, 2021, in the “Chaban case,” the Criminal Division of the Cour de Cassation first seized by the defendant who challenged the jurisdiction of the French courts to prosecute him for complicity in crimes against humanity, overturned the decision of the Court of Appeal of February 18, 2021[vii], and declared the French courts incompetent based on the principle of double criminality, since Syria did not recognize these crimes in its legislation and had not ratified the Rome Statute, the convention establishing the International Criminal Court [viii]. The civil party in this case, having not received notification of the appeal against the ruling handed down by the Investigating Chamber, nor even a copy of the brief in support of the appeal, filed an objection against this ruling by the Court of Cassation[ix] and produced evidence that would lead the Court of Cassation to re-examine the defendant’s appeal [x].
However, in a subsequent ruling on April 4, 2022, in the “Nema case,” which the defendant appealed, challenging the jurisdiction of French courts to prosecute him for acts of torture and war crimes committed in Syria, the Court of Appeal went against the first ruling handed down by the Cour de Cassation in the Chaban case, declaring French courts competent under the principle of double criminality. According to the Court of Appeal, Syrian law provided for the equivalence of several offenses defined in the French criminal code for war crimes.[xi] The defendant therefore appealed to the French Supreme Court against this ruling.[xii]
To settle once and for all the question of the universal jurisdiction of French courts, the former public prosecutor at the Cour de Cassation brought together the two cases, Chaban and Nema, and submitted them to the plenary session of the Cour de Cassation following the opposition by the civil party in the Chaban case against the ruling of November 24, 2021, and the defendant’s appeal in the Nema case.[xiii] He also called for a “flexible interpretation” of the principle of dual criminality and for “universal jurisdiction not to become a dead letter.”[xiv] In fact, more than a hundred cases opened before the Crimes Against Humanity Unit of the National Anti-Terrorist Prosecutor’s Office were at stake in these final Court’s decisions.[xv]
These two decisions, which reflect an objective of international criminal justice, outline the criteria required for universal jurisdiction, firstly by clarifying the function of the perpetrator of acts of torture within a foreign State and secondly by creating an autonomous notion of habitual residence in criminal law (I). Then, the Cour de Cassation adopted a more flexible interpretation of the concept of double criminality considering that the existence of an equivalent offense is sufficient to meet the condition of dual criminality for the prosecution of war crimes or crimes against humanity (II)
I. Ratio personae: extension of the notion of public official or person acting in an official capacity and consecration of the notion of habitual residence in criminal law
The Criminal Division of the Cour de cassation, in its two decisions of May 12, 2023, ruled on the universal jurisdiction of French courts in relation to two categories of crimes: war crimes or crimes against humanity punishable under the French Criminal Code and acts of torture punishable under the New York Convention of December 10, 1984.
In order for the French courts to have jurisdiction, it is therefore essential for these offences to be characterized. However, regarding the crime of torture, the New York Convention incorporated under article 698-2 of the French Code of Criminal Procedure, provides that “the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from that person or a third person information or confession, to punish her for an act she or a third party has committed or is suspected of having committed, to intimidate or put pressure on her or a third party, […] when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” [xvi]
In its ruling in the “Nema case,” the Cour de cassation extended the definition of a ‘public official’ to include persons “acting on behalf of or in the name of a non-governmental entity, when the latter occupies a territory and exercises quasi-governmental authority over that territory,” such as the Jaysh-Al-Islam organization in Syria.[xvii]
In this respect, the judges explained that the aim of the New York Convention, in specifying the status of ‘public officials’, is to prevent its provisions from applying to private individuals in the context of private acts.[xviii]
Another obstacle to recognizing the universal jurisdiction of French courts for crimes against humanity and war crimes is the need to establish that the suspect is habitually resident on French territory. Article 689-11 of the Code of Criminal Procedure stipulates that a suspect “may be prosecuted and tried by the French courts if they habitually reside in the territory of the Republic”.[xix]
The Criminal Division of Cour de cassation had never established the factors of ‘habitual residence’ before this “Nema” decision. Accordingly, in determining these factors, the Cour de cassation in the Nema case, examined the decisions of the Court of Justice of the European Union since it is better adapted to criminal matters in that it considers that this notion must be “assessed by an analysis based on a body of evidence.”[xx]
In the present case, the Cour de cassation found that this concept must be interpreted in the light of the legislator’s objective with regard to war crimes and crimes against humanity, as set out in article 689-11 of the Code of Criminal Procedure.[xxi] Thus, the Court held that although the defendant lived mainly in Turkey, various elements of the investigation established a particular form of stability for more than three months in France. More specifically, the Court characterized a sufficiently close link with France by the presence of a student identification card, a university library card, a French telephone card, and a transportation card when his home was searched.[xxii]
Accordingly, with this ruling the Cour de cassation established an autonomous concept of habitual residence in criminal law.
II. Ratio materia: more flexible interpretation of the concept of dual criminality through the equivalence of offences
In the two ruling, the Cour de cassation recognized that article 689-11 of the French Code of Criminal Procedure contains a dual criminality rule, which allows French courts to adjudicate a foreign national if the acts qualified as crimes against humanity or war crimes under French law are also punishable under the law of the State where they were committed.[xxiii]
However, the dual criminality rule, according to the Court, can be interpreted in two different ways: the first interpretation examines the crimes in their constitutive contextual element as defined in articles 212-1 to 212-3 of the Criminal Code for crimes against humanity, and articles 461-1 to 461-31 of the same Code for war crimes.[xxiv] According to a second interpretation, the Court considers that article 689-11 of the Code of Criminal Procedure requires only that the acts be punishable in the State where they were committed, without considering the contextual qualification under which they could be prosecuted
According to the Court, crimes against humanity are necessarily committed “in the execution of a concerted plan against a civilian population group as part of a widespread or systematic attack.” War crimes must have been committed “during and in connection with armed conflict, in violation of the laws and customs of war or international conventions applicable to armed conflict.”[xxv] Thus, according to the Court, the first interpretation must consider that the contextual element is an integral part of the acts being prosecuted since, without this element, the acts cannot be qualified as crimes against humanity or war crimes. Moreover, according to the Court, “it is this whole which justifies the extraterritorial jurisdiction of the French courts, which does not exist for the underlying acts alone.” The Criminal Chamber of the Cour de cassation adopted this interpretation in its first decision in the Chaban case on November 24, 2021.[xxvi]
The Court of Appeal adopted this interpretation in its decision in the Nema case on April 4, 2022.[xxvii]
Considering that the text of article 689-11 of the Code of Criminal Procedure did not make it possible to specify which of the two interpretations was correct, the Court sought to ascertain the legislator’s intention by examining the parliamentary debates and the decision of the Constitutional Council (Conseil constitutionnel) on the appeals against the legislation incorporating criminal provisions of the Rome Statute of the International Criminal Court.[xxviii]
The Court also drew a parallel with the dual criminality requirements under the extradition regime of article 696-3 of the Code of Criminal Procedure, arguing that the universal jurisdiction mechanism constitutes an alternative to criminal extradition[xxix] and that this procedure requires that the ‘act’ be “punishable under French law”[xxx] irrespective of the contextual characterization given by the requesting State.[xxxi]
The Court concluded that dual criminality, as set out in article 689-11, does not require similar qualification and incrimination but “aims to give legal legitimacy to the intervention of the French courts” under the principle of lawful punishment (le principe de légalité des peines). [xxxii].
Thus, according to the Court, the principle of dual criminality for the prosecution of crimes against humanity and war crimes does not require that the acts prosecuted be criminalized in the same way in both States but only requires that both criminalize the acts, even if they are qualified differently or if different penalties are applied[xxxiii]. It thus confirms the second interpretation.
However, the Court emphasized that in accordance with article 689-11 of the French Code of Criminal Procedure and the principle of legality (le principe de légalité), the French courts cannot consider that the condition of dual criminality is met, solely based on the Syrian government’s willingness to combat war crimes and crimes against humanity by simply ratifying the various international conventions. In other words, the Syrian government must adopt these conventions into its legislation for dual criminality to apply.[xxxiv]
Accordingly, the Court held that, although crimes against humanity and war crimes are not expressly mentioned as such in the Syrian Criminal Code, the latter incriminates the acts that gave rise to the prosecutions in the cases before them, such as murder, acts of barbarism, rape, violence, and torture. Consequently, the Court declared null and void the judgment of November 24, 2021 in the Chaban case, which had established the requirement of an assessment of double criminality through the constitutive contextual element and dismissed the defendant’s appeal in the Nema case thus confirming the judgment handed down by the Court of Appeal on April 4, 2022, which established the existence of double criminality and therefore the jurisdiction of the French courts.[xxxv]
In relaxing the dual criminality requirement in these two decisions, the Cour de cassation demonstrated its intention to remove obstacles to international criminal justice and affirm its determination to combat international crimes.
