A crucial hearing is being held this Friday, March 17 before the Court of Cassation concerning universal jurisdiction, that is to say the possibility for French justice to judge crimes committed abroad when neither the perpetrator nor the victim are not French.
Universal jurisdiction concerns the most serious crimes. In this case, it is on two cases concerning two Syrian nationals residing in France, accused of acts committed in Syria, crimes against humanity for one, war crime for the other, that the Court of Cassation will bend over.
To understand, we have to go back to 2010. France then incorporated universal jurisdiction into its law, but parliamentarians set four conditions for its application, four “locks”, two of which are at the heart of the day’s debates.
- The first, the condition of “habitual residence”, stipulates that a person must therefore have his “habitual residence” in France in order to be able to be prosecuted for war crimes, crimes against humanity and genocide.
- The second obstacle, that of “double incrimination”, no longer applies to the genocide, but remains relevant for the two other charges and therefore the two files relating to Syria that the Court is examining.
“Dual incrimination” means the fact that a person can be prosecuted in France for war crimes or crimes against humanity only if these acts are also punishable under the law of the State where they were committed, here, Syria. Or if the country in question has ratified the Rome Statute creating the International Criminal Court.
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“Premium for the executioners”
As early as 2010, civil society and elected officials denounced the limits posed by these four “bolts” for victims’ access to justice and therefore the risk of impunity for major criminals. The condition of dual criminality is particularly inept, denounces Clémence Bectarte, FIDH lawyer and civil party. ” This has been called a sort of ‘executioner’s bounty’. Because for France to be able to open a universal jurisdiction investigation on Syria, Sri Lanka or Libya, for example, these countries must have either ratified the Rome Statute, or have criminalized these qualifications in their Criminal Code. legal. Very often, this is not the case, because these executioners are in power. And, of course, they organize first, in their internal legal system, their impunity. »
Executive reluctance
As for the condition of habitual residence, the socialist senator Jean-Pierre Sueur, committed for a long time in favor of full universal jurisdiction, cites the regrets of the former Keeper of the Seals, Robert Badinter: “NWe do not consider ourselves competent to judge the worst criminals there are, unless they had the imprudence to reside almost permanently on French territory. “, before adding:” This condition is absurd. We suspect that the perpetrators of genocide, war crimes and crimes against humanity are not installed in Bécon-les-Bruyères to cultivate their begonias “. To get ” surveyed several justice ministers “, he affirms that the greatest reluctance emanates from the Quai d’Orsay, which fears to see foreign officials arrested as soon as they set foot in France. All the more so, points out the senator, “ that there are a certain number of embassies in which, under diplomatic cover, we welcome people who are not necessarily recommendable and who may have committed these crimes. »
In 2012, Jean-Pierre Sueur had a bill adopted by the Senate including in particular the removal of the two bolts mentioned but ” never succeeded in putting it on the agenda of the National Assembly “. A confirmation, for Clémence Bectarte, of the ” great ambiguity on the part of the French authorities – all governments combined since this has been the case since 2010 – in the face of opening wide the paths of French justice to the victims of these crimes, because they say to themselves that the time of justice can thwart the time of diplomacy and that these advances in favor of impunity can sometimes come into contradiction with diplomatic interests and realpolitics “.
The “clap of thunder” of the Chaban judgment
The judicial time being long, it was not until November 2021 that the Court of Cassation ruled for the first time on “double incrimination”. She considered that French justice was not competent to judge the Syrian Abdelhamid Chaban, because crimes against humanity are not criminalized in Syria. A “clap of thunder” for the NGOs, even if they had been warning for a long time about the weaknesses of French universal jurisdiction because, always, of these famous locks, points out the FIDH lawyer.
But in April 2022, the Paris Court of Appeal rendered a contrary decision, concerning another Syrian, Madji Nema, prosecuted for war crimes, considering that even if “war crimes” do not exist not as such, they exist “by equivalence” since Syrian law does condemn the abuses that constitute such crimes.
The Court of Cassation will therefore have to decide between this last interpretation which offers a wider scope of application to universal jurisdiction, defended by the civil parties and NGOs and the first more restrictive judgment, which, for the defense of the two Syrians, must apply. Margaux Durand-Pointcloux, lawyer for Abdelhamid Chaban, also believes that her client’s case ” has already been tried in law and that since the circumstances have not changed since 2021, there is no reason for the Court of Cassation to render a decision different from that of November 2021. If the scope of French universal jurisdiction must be reviewed, it is , according to her, to the legislators to seize the question.
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Bad justice?
” The law laid down strict conditions for French justice to be able to investigate crimes against humanity and war crimes. These conditions must be respected, no more no less “Adds Raphaël Kempf, who defends Madji Nema alongside Romain Ruiz. ” So as it stands, I consider that the law does not allow French justice to investigate these facts, but above all, the justice that can be rendered under these conditions can only be bad justice “. adds the lawyer. “Because we do not have the means to investigate on the spot, to collect or cross-check testimonies and that French justice is dependent on elements brought by others, most often by the civil party; and I think that we lie to the victims by making them believe that we can do justice in these conditions “, he warns.
Possible and “necessary” trials
A criticism that does not surprise Clémence Bectarte, accustomed, she says, to this “impossibility trial” of universal jurisdiction. ” History, and in particular the last decade, has proven that these trials are possible: when we see the number of trials that have resulted in Europe, but also elsewhere, on the African continent. The trial of Hissène Habré, for example, was a trial under universal jurisdiction. There have been trials in France, Belgium, Germany, Canada which concerned the genocide of Tutsis in Rwanda, officials of the Syrian regime or recently, an Iranian official in Sweden. These are trials that have resulted in convictions that the majority of observers consider to correspond to fair trial rules. “But for the lawyer, these trials are” not only possible, but also necessary. In the architecture of international law, we need the ICC, but it cannot do everything: we also need national jurisdictions to investigate crimes and judge those responsible who would otherwise go unpunished. »
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Investigations under threat
Beyond the consequences for the two defendants, if the Court of Cassation adopts the strictest interpretation, many ongoing cases will be mortgaged, and not only those relating to Syria: we are talking about 36 of the 85 investigations preliminaries and 18% of the judicial information opened in the crimes against humanity unit threatened. A disaster for the victims of all countries, but also for the image of France, underlines the lawyer Mazen Darwish, president of the Syrian NGO SCM civil party in the Nema affair. ” If we tell the victims that even France, which claims to be a ‘country of human rights’, will do nothing for them, that amounts to telling them not to believe in these values, to seek justice outside the law and therefore to push them towards violence “Warns the lawyer. “ The time has come for France to show that it really stands with the victims. Because the victims do not want declarations, they want actions. »
Towards a new law on universal jurisdiction?
Along with other NGOs including FIDH, Mazen Darwish calls on France, whatever the Court’s decision, to legislate to break the barriers to full universal jurisdiction. A possibility, since in February 2022, the Ministers of Justice and Foreign Affairs had indicated, recalling their desire to fight against impunity for crimes committed in Syria, that the government was “ready” to change the law if necessary. A speech poorly received on both sides of the bar. On the defense side, Raphaël Kempf sees it as a desire on the part of the executive ” to put pressure on the judges’ decision. On the side of the civil parties, Clémence Bectarte denounces the “reluctance” of the government, which ” hides behind the judiciary. The Court will deliver its decision on May 12, 2023.
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