The January 13 conviction in Germany of a former Syrian intelligence official for crimes against humanity marks a major step forward in the fight for justice for atrocities in Syria. In contrast, a French court ruling in November raised concerns that France could harbor perpetrators of similar crimes in Syria and elsewhere.
A court in Koblenz, Germany, found the official, Anwar R., guilty of overseeing the torture of thousands of detainees, dozens of murders, as well as rapes and sexual assaults, at a detention center in Damascus , in Syria. He sentenced him to life in prison for his crimes.
The Koblenz trial was the first in the world to deal with large-scale state-sponsored torture in Syria. It was able to do so thanks to Germany’s acceptance of the legal principle of universal jurisdiction, which allows national judicial authorities to prosecute the most serious crimes under international law, even if they were not committed within the territory of the country, or by or against one of its nationals.
On January 19, a second trial for crimes against humanity committed in Syria opened in Germany, before a court in Frankfurt, according to the same legal principle.
Universal jurisdiction is an extremely important tool where other avenues of justice are closed. In the case of Syria, it is the only current recourse for victims of atrocities. Syria is not a member of the International Criminal Court (ICC), and Russia and China have blocked the UN Security Council from giving the ICC a mandate to investigate serious crimes in that country.
Syrian survivors and their allies in France can therefore rightly feel bittersweet as they welcome the Koblenz verdict and hear of the opening of a second trial in Germany. In the November ruling, the French Court of Cassation, the highest court in France’s judiciary, overturned the indictment of an alleged former Syrian agent who had sought asylum in France and who was accused complicity in crimes against humanity. In a perverse application of the “double incrimination rule”, France’s highest court ruled that the prosecution could not be pursued under French law because Syrian law does not explicitly criminalize crimes against humanity.
The “double criminality rule” refers to the legal standard that the act for which a person is prosecuted or extradited is a crime both in the receiving country and where the act took place. The rule prevents arbitrary prosecution for behavior that was legal in the country where and when it was committed. This is a due process guarantee which reflects the requirements of legal certainty and predictability. However, it is not intended to protect conduct that is criminal under international law.
In asking whether the rule of dual criminality has been satisfied when prosecuting an individual accused of crimes against humanity in Syria, for example, a court should not only consider Syrian domestic law, but also consider whether the behavior complained of would constitute a crime against humanity under international law when it was committed. If the answer is yes, the due process is protected. The European Court of Human Rights has confirmed this approach. The November French court ruling places the burden on France to bring its legislation into line with these human rights standards.
This is not the only restrictive condition that French law imposes on the application of universal jurisdiction. For example, French law also requires that the defendant officially resides in France before a serious crime prosecution can be brought. Human rights groups have long urged successive French governments to fix these flaws in the relevant legislation, but no action has yet been taken. The recent decision of the Court of Cassation underlines the urgency for the government and parliament to remedy these legal restrictions so that France does not become a haven for those responsible for the worst crimes in the world.
While other avenues of justice are currently blocked, criminal investigations in Europe offer a beacon of hope for victims of crimes in Syria and elsewhere who have nowhere to turn. French authorities should ensure that their laws do not deprive survivors of the opportunity to spend their day in court.