Absentia trial of regime officials in France; What is the message?
The decision of the French judiciary to begin the trial of three senior officials of the Syrian regime on charges of complicity in committing crimes against humanity raised questions about the feasibility of the decision in light of the presence of the accused officials outside French territory.
The decision, issued on March 29, paves the way for the trial of senior officials in the regime, who are the director of the National Security Bureau, Ali Mamlouk, and the former director of the Air Force Intelligence Department, Jamil Hassan, in addition to the person in charge of the investigation branch of the Air Force Intelligence at Mezzeh Military Airport in Damascus, Abdul-Salam Mahmoud.
These officials still form part of the composition of the Syrian regime, especially Ali Mamlouk, whose activity and visit to Saudi Arabia, as well as his meeting with the head of the Turkish intelligence service, Hakan Fidan, have recently been revealed.
The French judiciary’s decision attracted much attention from the media and local and international human rights organizations.
Human rights activists welcomed the decision of the French judiciary, considering it a positive step that highlights France’s role in holding accountable those involved in violations in Syria.
Lawyer and legal and human rights advisor Owais al-Dabash told Enab Baladi that the trial is the first of its kind in France, as it considers a crime against humanity in the Syrian context.
Al-Dabash said that all the previous cases were related to “terrorism” cases, such as the cases of those involved in supporting the Islamic State (IS) group, and the defendants are tried according to the “French terrorism” law, while the French judiciary is still looking into more than 40 files in the Syrian context under “universal jurisdiction.”
The effect of the decision and the trial is “symbolic” in this case, as the trial will be in absentia, and the chances of arresting the accused are very slim, according to al-Dabash.
An arrest warrant was previously issued against the three officials by the French judiciary on November 5, 2018, on the same charges, but the warrant did not have a tangible effect in light of the many legal loopholes.
According to a previous report prepared by Enab Baladi, entitled “Legally speaking… What does the issuance of an international arrest warrant against senior Syrian officials mean?” The effect of the warrant is limited to limiting the movement of officials between countries of the world.
Trial in absentia
The French judiciary allows trials in absentia to a limited extent, and in the event that the accused are arrested after the trial in absentia ends, the European Court imposes on the member states a retrial from scratch, says the lawyer, al-Dabash, pointing out that these trials are considered incomplete in the eyes of the European judiciary due to the complete absence of the defense party.
He added that the extradition of those convicted of trials in absentia is not an easy step, as many countries do not take trials in absentia into account, and each country has special procedures related to trials in absentia.
A trial in the presence of the accused is unlikely due to the lack of possibility of their extradition by Syria, and the difficulty for other countries to extradite them, according to al-Dabash.
The case of the three officials is being considered under “Universal Jurisdiction” according to the principle of passive nationality, which means that the victim of the case holds French citizenship.
Although the trial was in absentia, a report published in the French newspaper Le Monde on April 6 considered the trial a clear message to the Syrian regime that there is no impunity for what the regime has committed in Syria and the Middle East.
What’s the issue?
The three officials are being tried for their involvement in crimes against humanity in the case of the “al-Dabbagh family,” as it is commonly called, for crimes against humanity (deliberate attacks on life, torture, enforced disappearance, imprisonment, or other forms of gross deprivation of liberty), and war crimes.
The case of the “al-Dabbagh family” symbolizes the arrest of Patrick Abdel-Qader al-Dabbagh and his father, Mazen al-Dabbagh, in 2013, who hold both Syrian and French nationalities, from their home in Damascus by Air Force Intelligence.
According to witnesses, the father and his son were taken to a detention center at Mezzeh Military Airport, which is run by the Air Force Intelligence and is considered the most prominent stronghold of the Syrian regime after Palmyra and Sednaya prisons.
In 2018, the al-Dabbagh family received an official notification of the death of Patrick Abdel-Qader and Mazen al-Dabbagh. According to documents obtained by the al-Dabbagh family, Patrick died in January 2014, shortly after his arrest, while his father, Mazen, died nearly four years later in November 2017.
This prompted the International Federation for Human Rights (FIDH) and its member organization in France, the French League for Human Rights (LDH), together with Obeida al-Dabbagh (Mazen al-Dabbagh’s brother) and with the active support of the Syrian Center for Media and Freedom of Expression (SCM), to refer the case to the French War Crimes Unit, in October 2016.
In November 2016, the Public Prosecutor opened a judicial investigation, and three investigative judges were appointed to investigate the case so that Obeida al-Dabbagh began giving his testimony as a civil party to the case, followed by the issuance of an arrest warrant against those responsible in 2018.
Three years after the warrant was issued, the Syrian Center for Media and Freedom of Expression was accepted as a civil party to the case by submitting many testimonies and witnesses, including from its general manager, Mazen Darwish, who was arrested along with his colleagues in the investigation branch of the Syrian Air Force Intelligence in 2012.
The case of the “al-Dabbagh family” is not the only case being considered by the French judiciary.
The French judiciary is now looking into more than 40 cases related to holding perpetrators of grave crimes accountable in Syria.
Some of these cases are based on universal jurisdiction when the conditions for its activation are met, especially the one related to the suspect’s presence in France.
Most notable of these cases is the case of Majdi Ne’ma (also known as Islam Alloush), a former spokesman for the Islam Army (Jaysh al-Islam) group, which is an armed faction that is accused of “systematic international crimes” against civilians who lived under its rule from 2013 to 2018. This was confirmed by the Syrian Center for Freedom of Expression, which filed a complaint on June 26, 2019, against the Islam Army for the crimes it committed in the eastern Ghouta of Damascus, along with the families of the victims in these cases.
The French authorities announced in February 2022 the initiation of legislative changes to grant extraterritorial jurisdiction to the country’s courts in cases of core international crimes. This may pave the way for the prosecution of the perpetrators of crimes against humanity during the conflict in Syria.
The French Parliament has also adopted a bill authorizing international judicial cooperation between France and the United Nations International, Impartial, and Independent Mechanism that handles Syria. The said bill will be presented to the French Senate following Parliament’s approval.
In an interview with Enab Baladi, the lawyer and director of the legal office at the Syrian Center for Media and Freedom of Expression, Tariq Hokan, indicated that the bill “does not, in and of itself, constitute an endorsement or expansion of the French judiciary’s jurisdiction to look into grave crimes committed in Syria.”
This is because this jurisdiction “exists, and is stipulated, in the French Criminal Code, along with the conditions for activating this jurisdiction. The most important of these conditions is the presence of the suspect on French territory to start the investigation, unlike German law, for example, which does not require meeting this condition to open an investigation.”
The important aspect of this bill, according to Hokan, is to expand the cooperation and exchange of information and evidence between France and the International, Impartial, and Independent Mechanism, “therefore allowing French courts and judicial bodies to transfer the information and evidence at their disposal to the International Mechanism, which was only available in the opposite direction.”
This means that the International Mechanism is entitled to provide the French judiciary with all the information and evidence it has regarding a crime within France’s jurisdiction.
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