Our organizations have taken note with deep concern of a judgment handed down on Wednesday November 24 by the criminal chamber of the Court of Cassation, which validates the fears that we have expressed since the adoption, on August 9, 2010, of the law adapting the to Rome Statute: the exercise of universal jurisdiction for the most serious crimes is made legally impossible.
Yesterday’s judgment 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 criminalized crimes against humanity in its national law.
This double criminality criterion for crimes under international law, which is not required for other offenses committed outside French territory and covered by international conventions, is also not required by the Rome Statute. the International Criminal Court may be seized of a situation even if the law of the State in which the crimes were committed does not criminalize the offense in question.
By definition, crimes under international law constitute the violation of universal values recognized by the international community. This double criminality criterion calls into question this universality and is totally incompatible 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 totally wrong with regard to crimes under international law and reflects a lack of understanding of international law.
Ultimately, this criterion favors impunity, since it is simple for a State in which crimes against humanity or war crimes are committed to refuse to ratify the Rome Statute, or not to criminalize 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 on the planet!
This is not the only restrictive provision imposed by the legislator. The public prosecutor’s monopoly on prosecution and the condition of the suspect’s habitual residence, again, are all conditions intended to prevent the exercise of universal jurisdiction in France.
Despite the cosmetic changes made by the law of March 23, 2019 to article 689-11 of the Code of Criminal Procedure, notably removing the condition of dual criminality for the crime of genocide, the reality is that our organizations, as well as the members of the parliament who have tried in recent years to remove this restrictive criterion through amendments or bills, have always encountered a lack of political will from your government, as well as those of your predecessors, to change the mechanism universal jurisdiction in order to make it truly effective for 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 concerning Syria, a country in which France has always taken a position in favor of the fight against impunity, and while a first historic trial held in Germany, before the Court of Justice of Koblenz, is will complete in a few weeks, what can we say to the Syrian victims and to the NGOs who have lodged a complaint with the French courts, 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 is clear, Mr. President, that despite the commitment made 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  with the National Assembly, and before that with the Senate ”, nothing was done to modify the law, even if the opportunity presented itself again to the Senate last September. The judgment of the Cour de cassation of 24 November recalls Our organizations are convinced that there will never be effective international justice if we make impossible the exercise of universal jurisdiction, the only recourse in many cases for victims of international crimes.
It is essential to change this law and to engage firmly and resolutely in concrete actions that will allow victims and associations to continue their co-fight against the impunity of the perpetrators of the most serious crimes, and to turn, also, towards French justice. .