Enab Baladi – Baraa Khattab

International arrest warrants against top regime officials constitute a milestone in reducing the state of impunity for crimes committed by the Syrian regime.

Five years after an international arrest warrant was issued against the top four generals in the regime’s army and intelligence, which included three individuals facing charges of committing “war crimes” and “crimes against humanity,” the French judiciary again issued arrest warrants against four senior Syrian officials.

The French judiciary’s decision raised questions about the feasibility of the decision and the extent of its impact on the Syrian file in light of the presence of the accused officials outside French territory. Some human rights activists welcomed the judiciary’s decision, considering it a positive step that highlights France’s role in holding accountable those involved in violations in Syria and confirms the absence of impunity for crimes against the Syrian people.

A sign highlights indiscriminate killing

The decision issued on October 19 against the former Minister of Defense, Fahd Jassim al-Freij, the former Minister of Defense, Ali Abdullah Ayoub, the Commander of the Air Force, Ahmed Baloul, and the Commander of the 64th Helicopter Brigade, Ali al-Saftli, stated that they had complicit in war crimes and they deliberately directed attacks against the civilian population and killed a (French) person protected under agreements, including international humanitarian law.

Al-Mutassim al-Kilani, expert in international criminal law, told Enab Baladi that this is the first case in which high-ranking military officials in the Syrian army are accused of committing war crimes arising from a military operation directed against civilians. It is also a symbol of the Syrian regime’s use of explosive barrels through the air force.

Al-Kilani stated that the French judiciary’s move today comes to reaffirm that there is no impunity for crimes committed in Syria at all.

Regarding the usefulness of the arrest warrants regarding the Syrian file, al-Kilani believes that the four suspects will be the subject of accountability and judicial prosecution in the future of Syria.

Interpol will be asked to place their names on the red list, and at that time, they will not be able to travel outside Syria at all so as not to expose themselves to arrest and extradition to the French judicial authorities.

Trials in absentia

The French judicial system drew attention to the role of the four senior officials in war crimes committed against the Syrian people,

This step is considered a strong message that extraterritorial justice has an essential role in pursuing those responsible for the “most serious” crimes committed against civilians in Syria since March 2011, without access to the International Criminal Court, transitional justice, or a joint court.

It also demonstrates that these investigations are possible and likely to lead to tangible results, thanks to the extensive documentation work carried out by Syrian activists since 2011 and the role of victims and witnesses who share their testimonies, according to the Syrian Center for Media and Freedom of Expression.

The expert in criminal law told Enab Baladi that if international arrest warrants are not implemented, investigating judges can consider closing the investigation and referring the case to trial.

Al-Kilani added that the French judiciary has the advantage of trials in absentia, taking into account that suspects have the right to be represented by a lawyer throughout the trial, even if they themselves are not present in court until the ruling is issued against them, and at that time international arrest warrants are issued to implement the criminal rulings issued.

What’s the case?

The arrest warrants against the four officials for their involvement in committing war crimes arising from a military operation directed against civilians came after a judicial investigation that began in 2017.

The story began when, on June 7, 2017, the southern city of Daraa, specifically the Sadd Road neighborhood, was subjected to intense bombardment by the Syrian regime as part of the arrest operation, a military operation led by regime forces on the city of Daraa, southern Syria, with active support from Moscow.

During the attack, the home of Salah Abou Nabout, a Syrian with French citizenship, was targeted with explosive barrels launched from helicopters, and Salah Abu Nabout was killed in the attack, according to the Syrian Center for Media and Freedom of Expression (SCM).

The targeted building included a children’s school, Al-Sadd School (Ajyal), which was managed by a Jordanian non-governmental organization.

On June 12, Abu Nabout’s wife informed the French authorities of the details that had occurred, and on January 29, 2018, the War Crimes Unit at the Paris Court opened an investigation based on the complaint submitted by Omar Abou Nabout regarding the killing of his father, Salah Abou Nabout, and two judges were appointed to investigate. The victim’s son, Omar, was accepted as a civil party.

Salah Abou Nabout was arrested from April 2013 until 2015 and was released from Damascus Central Prison (Adra) while his family left for Jordan and then to France during his detention.

The rights SCM monitoring group joined the proceedings as a civil party in the case, and the Center contributed by providing the investigating judges with the names of witnesses and a large collection of photos and video recordings that documented the bombing of June 7, 2017, in Daraa.

In addition to basic information about the chain of command of the Syrian Air Forces, the regime forces, and the mechanism for issuing and implementing the combat order in the Syrian Air Force.

A special study was submitted to the judiciary in which it determined the type of aircraft that carried out the attack, a Russian-made ME helicopter, and the airport from which it took off. It also determined the type of weapons used during the attack, namely explosive barrels.

Lawyer Tareq Hokan, director of the SCM’s Strategic Litigation Project, said the Human Rights Center worked independently, without international partners, to prepare and build the entire case file and submit it to the French court, which is “another clear message that the victims themselves and local organizations are the primary guarantee for achieving justice and putting an end to impunity in order to build sustainable peace in Syria.

Criteria for starting investigations

Salah Abou Nabout was a Syrian citizen who held French citizenship, and French courts have jurisdiction over crimes committed against French citizens or dual nationals, as well as crimes committed by French citizens or dual nationals.

On the basis of Salah Abou Nabout’s dual Syrian-French citizenship, a criminal judicial investigation led by an independent investigating judge from the French War Crimes Unit in France began in January 2018.

However, many victims of international crimes who seek justice, including many Syrians, do not hold French citizenship, and in order to allow them to access justice, the French legislator adopted several pieces of legislation, according to the Syrian Center for Media and Freedom of Expression.

For example, since the United Nations Convention against Torture was incorporated into French law in 1986, any suspect found on French territory can be prosecuted and tried in France for torture.

The same condition applies since August 2013 to those suspected of committing the crime of enforced disappearance after the United Nations Convention for the Protection of All Persons from Enforced Disappearance was included in French law.

Regardless of their nationality and country of residence, victims of torture and enforced disappearance can file a criminal complaint with the French public prosecutor and participate in the proceedings as civil parties.

This status gives victims broad rights throughout the investigation, such as the ability to request specific investigations or to call specific witnesses to testify.

With regard to crimes against humanity, genocide, and war crimes committed abroad, the French Parliament adopted, on August 9, 2010, a law incorporating the Rome Statute into French law. The law grants French courts the jurisdiction to try the perpetrators of these crimes if the following conditions are met:

• The suspect resides in France, and that there is legislation criminalizing these acts in the country in which they were committed, or that the country of which the suspect is a national or in which the crimes were committed is a party to the Rome Statute.
• Prosecutions can only be initiated at the request of the French Public Prosecutor.
• The suspect must not be subject to any extradition request or prosecution from an international or national court.

These provisions were slightly amended by the law of March 23, 2019, which excluded the requirement of double criminality for the crime of genocide and removed the explicit denial of jurisdiction by the International Criminal Court.

These provisions were later amended by representatives of the French National Assembly on July 6, when they voted in favor of abolishing the requirement of double criminalization of war crimes and crimes against humanity, and the French Parliament finally approved it on October 11.

On January 1, 2012, a specialized unit was established to prosecute crimes against humanity and war crimes in Paris.

This unit consists of five public prosecutors, three independent investigating judges, and a team of specialized investigators working exclusively in international crime cases. The French unit is currently conducting 85 preliminary investigations and 79 judicial investigations related to international crimes committed outside French territory, including about 10 investigations related to crimes committed in Syria. 

Previous arrest warrants

In November 2018, the French judiciary issued an international arrest warrant against senior officials in the Syrian regime’s intelligence, including three individuals facing charges of committing war crimes and crimes against humanity.

The three names, published by Le Monde, included Ali Mamlouk, head of the Syrian National Security Office, Jamil Hassan, director of the Syrian Air Force Intelligence Department, and Abdul-Salam Mahmoud, head of the investigation branch of Air Force Intelligence.

The three officials face judicial charges proving their involvement in forced disappearances and brutal torture of detainees in Syrian prisons, following thousands of photos of victims leaked by the military photographer who defected from the Syrian regime, known as Caesar, which show detainees being subjected to torture, starvation, and mutilation of their bodies.