Neighborhood in Raqqa

Loosening the Four Locks: French Universal Jurisdiction in the Chaban and Nema cases

By Jake Palmer, Legal Fellow at REDRESS* 

The conflict in Ukraine has rekindled interest in universal jurisdiction, a legal tool that enables national courts to exercise their jurisdiction over certain international crimes even when the crime was committed abroad and the perpetrators and/or victims are not nationals. On 12 May 2023, a French Court issued two decisions facilitating universal jurisdiction in certain instances. 

In France, legislation implementing the Rome Statute provides for a narrow version of universal jurisdiction over crimes of genocide, crimes against humanity, and war crimes committed on or after August 11, 2010. Namely, French prosecutors are limited by the so-called “quatre verrous” (“four locks”) that operate as a handbrake on accountability for extra-territorial crimes in French Courts.  

The four locks include: (1) the double criminality standard; (2) the requirement of habitual residence; (3) the principle of subsidiarity; and (4) prosecutorial discretion over whether to initiate proceedings. Double criminality requires that the conduct be criminalised both in the prosecuting State (France) and the State where the conduct occurred (Syria in these cases). 

Habitual residence ensures that the accused maintains a “sufficient connection” to France (not merely passing through). The principle of subsidiarity obliges prosecutors to verify, before opening a case, whether any national or international court has asserted jurisdiction over a suspect. Prosecutors must expressly ask the ICC to decline jurisdiction over the case. Finally, the provision of prosecutorial discretion prevents many investigations from getting off the ground. 

Last week’s court cases, which came from the highest court of appeal in the French criminal system, the Court of Cassation, involved two decisions that, taken together, loosen the grip of two of the four locks. The decisions also allowed for investigations in the cases of Abdulhamid Chaban and Majdi Nema to continue into their alleged commission of grave international crimes in the context of the Syrian conflict and cleared the way for similar cases to proceed. 

Both cases were appealed all the way to the Court of Cassation because they presented thorny jurisdictional questions. Chaban challenged the jurisdiction of French courts on the basis that the double criminality standard precluded jurisdiction over conduct that was not also criminalised by Syria at the time of the criminal conduct. Meanwhile Nema argued that the habitual residence requirement meant that he could not be prosecuted in France (his permanent residence is in Turkey). 

 Background on Universal Jurisdiction in France 

There are three main ways French courts may apply extra-territorial jurisdiction. First, there is the legislation implementing the Rome Statute (Law 2010-930), with its constrictive “four locks.”  Second, perpetrators may be prosecuted for extraterritorial conduct that violates any crime in the French criminal code if (1) the perpetrator is a French citizen (the “active personality” principle) or (2) the victim was a French citizen at the time of the crime (the principle of “passive personality”). Third, French law applies the principle of aut dedere aut judicare (either extradite or prosecute) for the crimes of torture and enforced disappearance.  

Given the narrow scope of other avenues of extraterritorial jurisdiction, Law 2010-930 provides the clearest path for prosecution of the majority of crimes in the Rome Statute. Take the cases of Chaban and Nema. Chaban, a former soldier, was arrested in France in 2019 and charged with complicity in crimes against humanity. In 2020, while studying in Marseille, Nema was charged with war crimes, torture, and enforced disappearances in his capacity as spokesman for the group Jaysh al-Islam. Neither case fits under the rubric of active or the passive personality principles. Nema could have been charged with torture and enforced disappearance as stand-alone crimes, but without the jurisdiction granted by Law 2010-930, prosecutors would have needed to drop the war crimes charges. 

The subsidiarity principle imposes a daunting time commitment. But the double criminality standard has proven perhaps the costliest roadblock in universal jurisdiction prosecutions, threatening to obstruct more than a third of investigations into war crimes and crimes against humanity. 

Changes to the “Four Locks” from the Chaban and Nema Cases 

In 2021, the double criminality standard threatened to unravel the case against Chaban entirely. In November of that year, the Court of Cassation issued a narrow interpretation of the double criminality standard. Because Syria had neither ratified the Rome Statute nor criminalized crimes against humanity, the Court reasoned, Chaban could not be tried in France.  

In the Nema case, the defendant argued that (1) he did not habitually reside in France; (2) the alleged war crimes of which he was accused were not criminalized in Syria; and (3) he had not committed torture because he was not an official agent of the Syrian state at the time. The Court of Appeal dismissed his Nema’s claims so he appealed to the Court of Cassation. The Prosecutor-General of the Court of Cassation requested that the Chaban and Nema cases be heard together before the Court’s plenary assembly. 

On May 12, 2023, the Court held that the French judiciary had jurisdiction over both men and that investigations could proceed. The Court found that the habitual residence requirement was satisfied when there was a sufficient connection between France and the defendant. Judges should evaluate habitual residence, a “functional and protean concept,” based on several factors, including the duration, reason and conditions of the defendant’s stay, a manifested intent to stay, and the existence of family, social, material or professional ties. While the defendant’s principal place of residence was Turkey, his intention to study in France indicated sufficient stability of residence to satisfy the requirement. 

The Court also widened its interpretation of the double criminality standard. Rather than requiring that French and Syrian statutes match exactly, the Court focused on the “underlying acts” that make up the crimes in question. While Syria has not criminalized crimes against humanity and war crimes as such, it does criminalize murder, rape, violence, and torture. According to the Court, the French legislature’s primary concern in imposing the double criminality standard lay in the legality principle – not avoiding jurisdiction in war zones. The standard was not meant to let perpetrators off the hook simply because they committed genocide in a jurisdiction that does not criminalise that act. Importantly, the Court found that the double criminality for international crimes is fulfilled where a foreign jurisdiction has criminalised the murder, rape or torture—the underlying acts that constitute crimes against humanity. 

Finally, the Court held that the “official capacity” requirement in the definition of torture is not confined to State agents. Instead, torture can also be committed by individuals acting on behalf of a non-State actor who has effective control of the area and exercises functions normally exercised by a government. The Court relied heavily on the findings of the UN Committee against Torture’s  interpretation of the Convention Against Torture, as well as the UK Supreme Court’s decision in the case against Agnes Reeves-Taylor, the ex-wife of former Liberian president and convicted war criminal Charles Taylor. She was arrested in 2017 in the UK on torture and conspiracy to commit torture charges. While the UK Supreme Court eventually dismissed the case against Taylor citing lack of evidence, it recognised that torture extended beyond official state acts to encompass a person acting on behalf of an entity exercising de facto control over civilians. 

The Universalisation of Universal Jurisdiction? 

Last week’s rulings have been celebrated as a win in the fight against impunity for grave international crimes. The flexible interpretations of double criminality and habitual residence adopted by the court cracks open a door through which other similar pending cases may now pass. REDRESS and other NGOs have cautioned, however, that the rulings did not fully alleviate the impediments imposed by the “four locks”, and legislative reform is still required to ensure that core international crimes can be effectively tried in French Courts. Legislation tabled in 2012 would (1) require only that a suspect be present on French soil; (2) allow victims to file civil party (victim) complaints directly with investigative judges; (3) abolish double criminality; and (4) ease the burden of subsidiarity.  

While the legislation has stalled, it forms part of a growing number of efforts to strengthen universal jurisdiction in Europe. In the U.K., for example, REDRESS and the Clooney Foundation for Justice will publish a report dissecting the U.K.’s universal jurisdiction laws and issuing recommendations for how similar jurisdictional locks can and should be removed, including the need to amend the International Criminal Court Act to decrease executive (and therefore political) control over prosecutions and abolish a nationality or residence requirement for perpetrators. Similar concerns were raised by MP Brendan O’Hara in a speech before UK Parliament recently, urging the adoption of a universal jurisdiction extension bill. Similarly, a bill providing for universal jurisdiction and implementing the Rome Statute was presented to the Italian Parliament in March, though it was significantly narrowed by the right-wing government.  

The fate of universal jurisdiction around the world remains uncertain. After the extradition case of General Augusto Pinochet in 1999, States raced to embrace universal jurisdiction. Enthusiasm peaked in the early 2000s before succumbing to political pushback, including U.S. threats to boycott NATO when laws in Belgium made possible the prosecution of Donald Rumsfeld.  As a result, States retreated, and some like Spain and Belgium chose to adopt more modified versions of extraterritorial jurisdiction. Nonetheless, universal jurisdiction has continued to expand quietly. In 2022, prosecutors pursued 93 cases of universal jurisdiction around the world, including 27 new cases.  

Hope remains that a renewed dedication to universal jurisdiction spurred by the conflict in Ukraine, and decisions such as this one by the French Court, states may bolster legal frameworks around universal jurisdiction and implement reforms to hold international criminals accountable.  

About the author: Jake works on initiatives to secure justice and reparations for human rights defenders and victims of state violence. Prior to joining REDRESS, Jake obtained his law degree from Boston University School of Law, during which time he interned with Human Rights Watch and the Center for Justice and International Law. Before law school, Jake worked at the National Endowment for Democracy, an NGO focused on human rights and democracy promotion, and obtained a Master’s in European Politics from Columbia University. 

Photo by Mahmoud Bali (VOA).