The Court of Cassation (Cour de Cessation) Friday recognized the universal jurisdiction of the French Judicial System to “prosecute and judge acts of torture, crimes against humanity or war crimes where the acts were committed abroad and neither the perpetrator nor the victim is French.”
The doctrine of universal jurisdiction is mandated within international instruments such as The Geneva Conventions 12 August 1949 and The Convention against Torture 1984–both of which France is signatory to. Within French law, universal jurisdiction is governed by Articles 689-1, 689-2 and 689-11 of the Code of Criminal Procedure.
The first case arose subsequent to a French investigation that was initiated, following a report by the Office Français de Protection des Réfugiés et Apatrides (OFPRA) on likely crimes against humanity committed in Syria in 2011 and 2013 against parties resistant to the Syrian regime. The Syrian national charged in the case argued France lacked jurisdiction because there was no double criminality–meaning that while the crimes he was accused of were criminalized in France, they were not criminalized in Syria, where the actions were committed.
Individuals and associations filed the second case before a French court based on alleged crimes against humanity, torture and war crimes committed by an Islamist group in Syria between 2012 and 2018. A Syrian national arrested in connection with the case challenged France’s universal jurisdiction based on several arguments. Among his arguments were that jurisdiction should not apply because he did not usually reside within France, the war crimes he was accused of are not criminalized in Syria and, at the time of the events, he was not an official agent of the Syrian state.
In both cases the court rejected the Syrian nationals’ challenges against French universal jurisdiction. In doing so, the court clarified when universal jurisdiction applies.
First, the court found that for universal jurisdiction to apply, the individual must “habitually reside” within a French territory. Habitual residence exists where a “sufficient connection” exists between France and the individual as determined by the duration of the individual’s presence in France, the reasons for their stay, conditions under which their stay took place, and manifestations of the individual’s intention to remain for an “extended period” in France.
Second, the court clarified that the double criminality requirement, challenged in the first case, may be met “if the foreign legislation punishes” the acts criminalized under French law “as common offences such as murder, rape or torture rather than specifically as crimes against humanity or war crimes.” Therefore, the exact language and crime do not have to match in order to trigger double criminality.
Third, the court found that an individual does not have to be an official agent of the state in order to be held accountable under universal jurisdiction. Rather, the court found the individual can act in an “official capacity” for or on behalf of a non-governmental entity, “in the situation where that entity occupies territory and exercises a quasi-governmental authority over the territory.”