Universal Jurisdiction: Arguments for a More ‘Universal’ Double Criminality Requirement in France

[Waleed Mahmoud Elfarrs, PhD Candidate in international law at Ghent University, is a legal expert consulting on armed conflict in the context of the MENA region.]

[Mona Ghyoot is a Master in Laws student at Ghent University, specializing in public international law and writing a master’s thesis on universal jurisdiction.]

1.     Introduction

On 12 May 2023, the French Court of Cassation delivered two landmark decisions on the appeals challenging France’s universal jurisdiction over war crimes and crimes against humanity committed abroad. In particular the Court dealt with the double criminality standard; a highly controversial requirement in the context of universal jurisdiction entailing that the conduct for which a person faces prosecution must be punishable in both the state where it was committed and in the forum state exercising universal jurisdiction. In essence, the Court confirmed that “it is not necessary that the acts covered in France by the offences of crimes against humanity or war crimes are qualified in the exact same way by the foreign legislation of the country where they were committed.” For the public, the ruling marks a victory for victims of international crimes, Syrian victims especially, and a validation of France’s promise to fight impunity (see here, here and here). As a precedent, the decision will have implications for  the currently pending universal jurisdiction proceedings in France (e.g., Syria, Liberia, China, and Ukraine). In this blogpost, we analyse the double criminality saga before French courts. As the decision of the Court has limited itself to an assessment of (Syrian) national legislation, we further demonstrate that the standard of double criminality can be satisfied when interpreting it in light of relevant international law and custom applicable to all states.

2.   Background on the Double Criminality Principle

The question of double criminality is a question of jurisdiction. Article 689-11 of the Criminal Procedure Code amended in 2019 makes a distinction between the crime of genocide on the one hand and crimes against humanity and war crimes on the other. According to article 689-11, for the latter two crimes, universal jurisdiction may only be triggered if the conduct in question is either (1) punishable under the criminal law of the state where the crime was committed and/or (2) when the state as such has ratified the Rome Statute. The Court of Cassation ultimately confirmed that the double criminality is a translation of the principle of legality of sentences and does not require that the act should receive an identical incrimination in the country where it was committed. Indeed, the act should be effectively repressed in the territorial state, but that condition is considered to be fulfilled even if the crimes are qualified differently and if different penalties apply (here, and here). Although causing much controversy in France, double criminality is not practiced by other states actively exercising universal jurisdiction such as Belgium, Germany and Sweden. Whilst the principle is recognized as an essential safeguard to extraterritorial prosecutions before domestic courts, the present post shows that it is fulfilled in the specific context of universal jurisdiction over international crimes.

Double criminality as a requirement for universal jurisdiction was first applied by the Court of Cassation in the Chaban case in November 2021. As a former reservist of the General Intelligence Services (GIS), Chaban has taken part in the systematic arrests, torture and killing of opposition activists. Although these acts are clearly punishable in Syria under the qualifications of ‘ordinary’ offences such as murder, barbarism and torture, its penal provisions do not include the element of a ‘concerted plan’ as required for the definition of crimes against humanity in the French Criminal Code. Initially, the Court ruled that France’s universal jurisdiction cannot be triggered for crimes against humanity committed in Syria since Syrian law does not explicitly recognize and punish such crimes. On the 12^th of May 2023, the same Court stated that the condition of criminalisation by foreign legislation can be fulfilled through a common law offence.

In like manner, on 4 April 2022, the Paris Court of Appeal confirmed in relation to war crimes, that French courts did in fact have universal jurisdiction over Majdi Nema, a Syrian national charged for war crimes (see here, here and here). As a spokesperson for the rebel armed group Jaysh-Al-Islam, Nema has allegedly been involved in the forced enlistment of children in the armed group, kidnapping and torture in Syria. Here, both the General Prosecutor Office, the Court of appeal and ultimately the Court of Cassation were of the view that the double criminality requirement is met because Syrian law, like French law, does criminalise the relevant set of war crimes, including the recruitment and participation of minors in hostilities.

The Court of Cassation thereby answered some of the foregoing and well-founded criticism. ‘Double criminality’ refers to the existence of a compatibility of criminalization to the ‘conduct’ in question in both states, not to how identical each state ‘qualifies’ the conduct. During the hearings for the Court of Cassation on 17 March 2023, the Attorney General maintained this position, showing that the wording of the French provision refers to ‘le fait’ (the conduct) instead of ‘’la qualification des crimes’ (the qualification of the crimes). Likewise, the office of the prosecutor relied on the intention of the French legislator and the relevant travaux preparatoires of 2010 to argue that the double criminality condition is satisfied if the acts are effectively repressed in the territorial state, irrespective of their qualification. Furthermore, the Attorney General rightly pointed out that the case law of 2021 on double criminality in the context of universal jurisdiction on crimes against humanity was inconsistent with prior jurisprudence of the Court of Cassation on the same requirement in the context of matters of extradition, whereby the compatibility of conduct is the adopted view. On the 12^th of May, the Court followed this line of argumentation in every aspect. However, this post adds another argument in favour of the fulfilment of double criminality for international crimes.

3.    Double Criminality, Universal Jurisdiction, and Customary International Law

When reading the French legislation on double criminality in this context one cannot find compelling reasons why international customary norms, especially those of peremptory nature, are not considered. Today, it is inconceivable that someone, somewhere, is uninformed of the international criminality for acts recognised universally as war crimes and crimes against humanity. In particular for a monist state such as France which considers international law applicable (see Section 14 of the preamble in conjunction with Article 55 of the Constitution of 1946), a double criminality requirement should naturally (and here) be fulfilled for international crimes or the very least be considered. International crimes further constitute universal (treaty and customary) norms applicable to all states (here, here, and here) of peremptory nature (here and here, and most recently here). Thus, they are warranted further attention. Comparatively, this conception of international crimes and their relation to the double criminality requirement is set out luminously in other domestic legislation (e.g. article 13 of the The Slovenian Penal Code and article 16(3) of the Croatian Criminal Code), confirming that prosecution based on universal jurisdiction is triggered when the conduct in question is considered a criminal offence according to customary rules and principles recognized by the international community. These codifications contend that crimes against humanity and war crimes are norms of such importance that a national law, adopting universal regime, cannot marginalize their status, legality and applicability.

4.    Double Criminality, Universal Jurisdiction, and the Rome Statute

The French legislation on double criminality also allows for prosecution on crimes against humanity and war crimes based on the Rome Statute membership. Here also, the relationship between the ICC’s jurisdiction and international customary law is relevant. Indeed, the Rome Statute establishes jurisdiction over core crimes by way of ratification of the Statute. One the one hand, the French Court of Cassation confined itself by concluding  that Syria is not a member state to the Rome Statute, thus ruling out the possibility of universal jurisdiction on that premise. On the other hand, the Court could make useful reference to the practice of the ICC asserting its jurisdiction over the situation of Syria under the same Rome Statute. In this relation, the ICC did claim personal jurisdiction over crimes committed by members of the ISIS in Syria and Iraq, and it has been suggested that there is limited territorial jurisdiction over war crimes in part committed on the territory of state party Jordan. Adding to the above, the universality of crimes subject to the ICC’s jurisdiction can also be established by the possibility of the UN Security Council referring the situation to the ICC, regardless of whether that territorial e.g., Syria ratifies the Rome Statue. Also, a State not party to the Rome Statute may decide to accept the jurisdiction of the ICC.

These realities can only mean that every individual on the planet is potentially exposed to criminal responsibility for crimes punishable under the Rome Statue, in state parties and non-parties alike, and thus the rationale, principe de légalité, of double criminality is fulfilled for those crimes. More importantly, although personal jurisdiction, UNSC or state referrals are different jurisdictional bases than required under French law, these examples help demonstrate that the authority of the ICC goes beyond membership and the text of Rome Statue itself and certainly beyond the reading of the French legislation on double criminality as ruling out prosecution on crimes against humanity and war crimes in order to satisfy ‘legality’. 

5.    Universal Jurisdiction and International Crimes

For war crimes the ongoing case is settled. The double criminality standard is satisfied in respect of war crimes not only because the Four Geneva Conventions of 1949 apply universally but also because Syria has in fact ratified them since 1953. Consequently, common article 3 of GCs is applicable to the situation in Syria; grave breaches of that provision are thus prosecutable by fellow state parties. Although the Court noted Syria’s membership to the Conventions, it also required that the acts were made punishable by explicit reference to them in Syrian law. At any rate, as we established above, each, or most, of these provisions have been considered to be part of customary law (see conclusion 23 of ILC), and are binding on all states. Furthermore, the prohibition of war crimes is of jus cogens nature, imposing an erga omnes and customary obligation on states to prosecute and punish the perpetrators (see conclusion 19 of ILC).In particular, the recruitment of child soldiers, which is at issue in the present case, is punishable as a war crime under article 8(2)(b)(xxvi) and (e)(vii) of the Rome Statute.

An equivalent approach can be applied to crimes against humanity. Likewise, the prohibition of such a crime is derived from customary law, with a jus cogens character. The universal nature of crimes against humanity was previously confirmed by the Koblenz Higher Regional Court in Germany in February 2021 and January 2022 when convicting the two Syrian nationals Raslan and  Al-Gharib for crimes against humanity perpetrated in Syria, based on the principle of universal jurisdiction. Strikingly enough, Raslan, Al-Gharib and Chaban were simultaneously arrested in 2019 in Berlin and Paris as a result of the joint France-German investigations into crimes against humanity committed in Syria. Despite the identical charges brought upon them, Germany has not called into question the punishability of the crimes concerned at all.

On 17 of March 2023, the judges of the Court of Cassation touched upon a relevant question in relation to genocide. Why does the law of 23 March 2019, establishing double criminality, apply to war crimes and CAH but not genocide? In dealing with this question, the Court seemed cautious to assume a lesser status of the former two crimes compared to the later. Unlike the ‘ordinary’ conducts (e.g., murder, rape, and torture) that – together with a contextual threshold – give rise to war crimes and crimes against humanity, the crime of genocide is not criminalized in most states by virtue of a domestic law. In 2019, the French legislator made the prosecution of genocide fully independent from its criminalisation in foreign legislation. In 2023, the Court of Cassation ultimately ruled that for crimes against humanity and war crimes, trying an international criminal does not depend on the codification of the contextual elements of such crimes in the relevant foreign legislation.

6.   Conclusion

Trying perpetrators of international crimes by way of universal jurisdiction should not be halted on the account of legality – or lack thereof – due to absence of double criminality. To be universally active in international law, states are expected to abide by the rules and spirit of international criminal justice as envisaged by the Rome Statute. Domestic courts are thus expected to act in line with international law, and to account for the peremptory nature of crimes against humanity and war crimes. Although the Court of Cassation did not factor in international law in its interpretation of the requirement of double criminality in the context of crimes against humanity and war crimes, its decision seems to be in line with such international standards. This way also, the Court can ascertain France’s commitment to fight impunity for atrocity crimes and avoid pronouncing France a safe haven for international criminals.