Ahead of the Game: Prosecuting Syrian Crimes in French Courts

The idea of European prosecutors investigating military activity in other parts of the world scares the pants off of many US and Israeli policymakers. But right now, anyway, one person who should be watching European universal jurisdiction cases particularly closely is Syrian President Bashar al-Assad.

France has opened a criminal investigation into crimes being committed in Syria. Whether or not any attempt to envision a post-conflict Syria is doomed to the extent it does not include a mechanism of accountability for Assad’s crimes, investigations like this one may prove to be a significant factor in future negotiations.

France is actually ahead of the game here. Despite the many calls to refer the situation to the International Criminal Court, political interest and stagnation has, up until now, prevented the French-proposed Security Council referral from moving forward. And everyone knows Russia will veto it anyway. International investigations may ultimately prove inevitable, either because some peace agreement calls for it or because the ICC acts on its own. Even so, either of those eventualities, however, will take years. So France, in the meantime, has decided to consider an alternative route: using its own courts to offer justice to Assad’s victims.

On September 30, 2015, the Paris prosecutor’s office announced that it is opening an investigation into torture carried out by Assad’s regime. The world’s first criminal inquiry on the Syrian conflict rests on evidence that the French foreign ministry sent to the prosecutor’s office, a dossier that contains thousands of photographs showing the contorted, starved, and tortured bodies of people who died in Syrian military detention.

These pictures--assuming they are authentic, which a prosecutor would have to prove--constitute damning evidence against the Syrian regime. CNN first revealed these photographs in January 2014 in a report indicating that roughly eleven thousand Syrians had been systematically tortured to death in Syria’s prisons. In April 2014, the Permanent Representative of France submitted what has become known as the Caesar Report to the Security Council along with the findings of a legal team charged with investigating these photographs and determining the credibility of the defector who provided them.

The defector, code-named Caesar, took the pictures while serving as a photographer for the military police. Before the start of the Syrian crisis, he took pictures of crime scenes for the government, but once the conflict began, the military tasked him with taking photos of bodies that it brought from places of detention. He managed safely to escape Syria, taking along with him fifty-five thousand of those pictures. On October 1, 2015, the Guardian published a gripping story on Caesar and why he began smuggling the photographs out of Syria. (When the Caesar photos first became public, Syria responded by stating--with an amusing self-contradictory logic--both that the photographs were fake and that the bodies in question were those of terrorists.)

Why does it matter if a bunch of French prosecutors with no access to the crime scenes, no ability to compel testimony, and no power to arrest senior Syrian military officials--let alone the country’s president--enter the fray? The investigation is actually important for a number of reasons, some legal and some political.

Most immediately, with Russia pushing to rehabilitate Assad’s image and make him not only semi-respectable but actively attractive relative to his enemies, France’s action serves to remind people who he really is. The United States and other Western powers haven’t done this especially effectively. And while it might be necessary to accommodate Russia’s interests in Syria in some way to get any semblance of cooperation at the Security Council level or on the ground, it is not necessary to pretend Assad is anything but a monster. A war crimes investigation is not a bad way to remind people of that.

Second, the French action constitutes a marker that at least some national actors will insist on including accountability as an element of post-conflict Syria. Lots of people doubt this premise, but if you believe that effective transitional justice and accountability is important to ending conflicts, it has to be significant that one country is pushing hard for that to be part of the conversation. The argument for this approach is that ending conflicts requires addressing both the perpetrators and the victims, in addition to the impact of mass atrocities; it requires that blame be properly assigned; and it requires that the historical narrative and the truth not be muddled. The argument against it is that attempting justice can actually retard or impede the effort to end conflicts and as a result may lead to greater civilian loss. By acting as it did, France both offers the promise of transitional justice and incurs its risks.

Indeed, we should understand the French action as a long-term insistence that we cannot ultimately settle this war without recognizing the now-established standards of international law and rules of warfare and treatment of civilians populations. It is in some ways reminiscent of the post-Nazi period and the Slobodon Milosevic example--wherein criminal liability may take years to catch up with key perpetrators but represents a stated aspiration from the beginning. The jurisprudence of international criminal law, although struggling to sharpens its enforcement claws, has clearly established in principle that no one is above the law and that no peace settlement can immunize the most vicious of crimes. This may be particularly important in an age in which Security Council powers flout international law most egregiously (think Russia in Crimea and Eastern Ukraine).

Third, coupled with the latest Security Council Resolution 2235, an effort to determine responsibility for the use of chemical weapons in Syria, the formal investigation in France may prove an important step in gathering evidence that might possibly be used in future investigations or tribunals. Although the end of the conflict now feels very far off, any future investigation or later tribunal will benefit from investigative efforts that take place today. The hope is that the more credible and independent evidence France can obtain during these long years of conflict, the more future investigations can operate efficiently and functionally and with the best possible evidence.

Still, France faces no shortage of obstacles. Since France cannot establish territorial jurisdiction, it will instead have to establish jurisdiction based on either passive personality or universal jurisdiction or both. French prosecutorial authorities will need to find either a French victim among the alleged eleven thousand torture victims, or under a broader theory, they will need to arrest a Syrian official who is either a resident of France or present in the territory at the time the complaint is filed.

Under passive personality doctrine, jurisdiction is assumed by the state of which the person suffering injury is a national. The core of the doctrine is that each state has a perfect right to protect its own citizens abroad and if the territorial state--in this case Syria--neglects or is unable to punish the persons causing the injury, the state of which the victim is a national is entitled to do so. Article 113-7 of the French Penal Code states that French criminal law is applicable to any felony committed by a foreign national outside of France’s territory. This is why France would need a French victim. Given the current state of affairs in Syria, it is impossible to imagine that it will actually conduct an independent or a fair investigation--if any at all--of any crimes against French nationals by its own forces. So it clearly will meet the negligent or unable standard. But whether there are actually any French victims is a different question.

Assuming France cannot identify a French victim, it may be able to arrest a Syrian official under a broader universal jurisdiction theory. Universal jurisdiction gives France the ability to define and prescribe punishment for specific crimes that are of universal concern. France’s Code of Criminal Procedure was amended in 2010 to extend the jurisdiction of French courts to include all international crimes as defined under the Rome Statute. However, the legislature instituted four new conditions, commonly known as “les quatres verrous,” that restrict the application of universal jurisdiction in French courts, forming more of a quasi-universal jurisdiction. The first restriction requires that for the crime of torture, the suspect must be present in French territory at the time the complaint is filed; for the crimes of genocide, crimes against humanity, and war crimes, the suspect must be a French resident. (It would be interesting to find out if many of Assad’s murderers have summer homes in Nice.) Additionally, for the crime of torture, there is no subsidiarity requirement (giving priority to to the courts of the country where the crimes occurred or international criminal tribunals) or double criminality (when jurisdiction exists even if the act was not considered a crime at the time it was committed), although both are required for other Rome Statute crimes. The fourth condition, not applicable here, relates to civil procedure.

Despite the restrictions, a prosecutor might make a solid argument in defense of French courts using universal jurisdiction in the case of Syrian victims; at least eleven thousand Syrians have been allegedly tortured to death in Syrian prisons. There has been alleged use of chemical weapons, which the United Nations and the Organisation for Prohibition of Chemical Weapons are jointly investigating. And there are over 191,000 dead and millions more displaced. So if any Syrian officials involved in these crimes happens to settle in France, he’ll be a very plausible defendant on the Rome Statute crimes. If any happens to pass through the country, prosecutors could file a torture complaint when he does.

How successful the French investigation is will depend on the coming together of many separate pieces of international law and domestic French criminal law. There is no doubt that this is only a small first step in a long process. At a minimum, the French action will help keep the focus of the dialogue on the mass loss of innocent life while building up evidence for future investigations, reminding all fighting parties of their legal duties under international law and of the consequences if they neglect that duty---all of which are positive steps towards the ultimate goal of accountability and justice.