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justice is trying to rehabilitate universal jurisdiction in France

In legal jargon, what is called a “rebellion judgment” is the decision of a “lower” court contrary to the case law of the Court of Cassation. In fact, this is a catch-up stop. The investigating chamber of the Paris Court of Appeal took the opposite view of the Court of Cassation on Monday April 4 in a judgment relating to the universal jurisdiction of France, that is to say the capacity of the French judicial system to judge crimes committed outside the national soil by foreign nationals.

The investigating chamber decided that Majdi Nema, a former Syrian Islamist rebel living in France, could be indicted – and possibly tried one day – for “torture or acts of barbarism, enforced disappearance, war crime and participation to an association of criminals with a view to the preparation of a crime or a war offence” committed between mid-2013 and the end of 2016.

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Mr. Nema, former spokesman for the group Jaych Al-Islam (Army of Islam) arrested in January 2020 in France, asked the chamber to annul various pleadings against him, relying on the judgment of the Court of Cassation of November 24, 2021, already rendered in the context of Syrian proceedings and marking an important turning point in case law in the field of universal jurisdiction. The high court had considered that in terms of crimes against humanity, an offense can only be prosecuted in France if it exists in the country where it was committed. This dual criminality also applies to war crimes, but not to torture or the crime of genocide. Other “barriers” limit the universal jurisdiction of French justice, in particular the need for a continuous presence on French territory of the incriminated person, but that of dual criminality is the heaviest.

Palpable government embarrassment

As Syrian law does not punish crimes against humanity, the judgment of the Court of Cassation closes the door to trials such as the one held in Koblenz, Germany, where Anwar Raslan and Eyad Al-Gharib , respectively officer and junior of branch 251 (known as Al-Khatib) of the intelligence services, were tried in 2020 and 2021. When the first verdicts – four years in prison for Mr. Al-Gharib, life for M Raslan − fell in Germany, France withdrew.

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The palpable embarrassment of the French government was materialized by a joint press release from the Ministries of Justice and Foreign Affairs envisaging for the future a legislative adjustment in order to allow the holding of such trials. Paris is indeed at the forefront in the discourse on the fight against impunity. But, when the opportunity arose to eliminate double criminality, in particular through an amendment presented by Senator Jean-Pierre Sueur (Socialist Party), the Ministry of Justice formally opposed it.

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