Enab Baladi – Baraa Khattab

After years of demands, and in a historic judicial precedent, for a country to issue an international arrest warrant against the head of another state while he was in power, French criminal investigation judges issued arrest warrants against the head of the Syrian regime, Bashar al-Assad.

The decision came ahead of the 28th session of the World Climate Action Summit (COP28), between November 30 and December 12, as the host United Arab Emirates invited al-Assad to attend the summit.

The French international arrest warrant was issued for Bashar al-Assad, accused of complicity in crimes against humanity over chemical attacks against civilians in the city of Douma and Eastern Ghouta in 2013, a judicial source and plaintiffs in the case said on November 15.

The judicial source said al-Assad was also suspected of complicity in war crimes for the attacks, blamed by the opposition on the regime, that killed more than 1,400 people near Damascus in August 2013.

International warrants were also issued for the arrests of Assad’s brother, Maher, the de facto chief of a Syrian elite military unit, and two army generals.

The Paris court’s unit concerned with crimes against humanity has been investigating the chemical attacks on Damascus suburbs since 2021.

In 2013, Syria agreed to join the Organization for the Prohibition of Chemical Weapons and give up all its weapons.

Arrest warrants make al-Assad’s presence complicated

Ibrahim Olabi, head of the Syrian Legal Development Program (SLDP), believes that the arrest warrants may complicate al-Assad’s attendance at the Global Climate Action Summit.

If the UAE wants to fulfill the legal requirements, it must prevent al-Assad from attending or arrest him if he attends, Olabi told Enab Baladi.

France and the UAE signed two agreements in 2007, the first relating to the extradition of criminals between the two countries and the second to judicial and legal cooperation in criminal matters.

Olabi also expects the arrest warrants to be circulated to international systems, including Interpol, but they have not yet been circulated publicly.

The lawyer specializing in international criminal law, al-Mutassim al-Kilani, agreed with Olabi, as he said that the matter is related to the pressure of the judiciary on the state that signed the extradition agreement between the two countries, and if al-Assad attends, there will be a request from the French Ministry of Foreign Affairs to the UAE Foreign Ministry, through the French Ministry of Justice, to extradite al-Assad.

Al-Kilani gave an example of the former head of Air Force Intelligence in the Syrian regime, Maj. Gen Jamil Hassan, when Germany submitted an official request to Beirut to extradite him as he was receiving treatment in a Lebanese hospital.

If the UAE continues to be stubborn in inviting al-Assad to attend the Climate Summit, which al-Kilani does not believe the regime has the courage to attend, this is considered one of the indicators of its defiance of the decision, according to the lawyer.

The Human Rights Watch (HRW) had previously criticized al-Assad’s invitation to attend the Climate Summit, considering it “disgraceful” to exploit a conference aimed at stimulating ambitious climate action to return the regime’s government to the international arena without any attempt to ensure accountability for its major violations.

The HRW said that governments participating in COP28 should ensure that serious crimes committed under al-Assad’s rule are investigated and their perpetrators prosecuted.

The Syrian British Consortium also called on the United Arab Emirates to fulfill its legal obligations regarding the al-Assad invitation and expressed its “shock and concern” about the continuation of the invitation.

The head of the Legal Development Program, Olabi, does not consider France’s political position towards Syria to be volatile compared to other countries in the region, but in any case, the move is not political but rather French judicial, and the French Foreign Ministry and the Presidential Palace have nothing to do with it.

He added that the judicial move was the efforts of Syrian organizations, victims, and survivors, who worked to collect and present evidence, in addition to human rights and medical organizations who worked to provide evidence.

Violation of the Vienna Convention

While heads of state generally enjoy immunity from prosecution, it can sometimes be waived in the face of serious violations of international law.

International criminal law expert al-Kilani told Enab Baladi that the memos came after a long investigation conducted by the French War Crimes Unit through criminal investigators.

The matter went beyond the issue of presidential immunity in accordance with the Vienna Convention on Diplomatic Immunity signed in 1961 because this crime and the use of chemical substances are considered very serious crimes, and their perpetrators must be prosecuted and held accountable.

Vienna Convention on Diplomatic Immunity

Signed in 1961 by 191 countries, it is an agreement aimed at regulating diplomatic relations and organizing the work of missions between countries of the world. It also defined several concepts, such as diplomatic immunity and severing relations.

Al-Kilani believes that finding the real link between Bashar al-Assad and his brother in issuing the implementation decision (chemical attacks) is an important part of the special justice plan in Syria.

The families of the victims and their stories are an essential part of the lawsuit, and the filing of the complaint, and this gives them great hope that justice, no matter how long it takes, must bear fruit.

Al-Mutassim al-Kilani- Syrian lawyer and expert in International Criminal Law

Possibility of appealing arrest warrants

The parties to the case may appeal the arrest warrants at the initiative of the wanted person’s defense or the public prosecutor, according to the Syrian Center for Media and Freedom of Expression (SCM).

A person may also request the invalidation of arrest warrants in some cases, such as summoning him during the investigation and appearing before the investigating judge to formally charge him, and in the event that an indictment has not been brought against him or he has not been notified of the closure order in the French language “Ordonnance or Arrêt de Mise en Actribution” according to the rules.  

The public prosecutor may also file a request to invalidate the arrest warrant before the investigation room or request withdrawal of the arrest warrant before the investigating judge and upon appeal before the investigation room.

Courts in absentia and impact on Syrian Cause

Under French case law, if the person against whom an arrest warrant has been issued resides outside the country and cannot be arrested, the issuance of the arrest warrant opens the way for him to be charged in court.

Accordingly, al-Assad’s trial in absentia is possible if the court deems that this is in the interest of the administration of justice and the accused is notified of the procedures and refuses to exercise his right to appear. If convicted, the accused person has the right to appeal the ruling and demand a new trial, according to the Syrian Center for Media and Freedom of Expression.

What’s the case?

The probe followed a legal complaint filed on October 7, 2020, to the German Federal Public Prosecutor against Syrian officials regarding the use of Sarin gas in several Syrian cities by the Syrian Centre for Media and Freedom of Expression (SCM), the Open Society Justice Initiative (OSJI) and the Syrian Archive, within the Mnemonic project for documenting human rights violations and war crimes. 

In March 2021, the three organizations returned to submit a similar complaint before investigative judges in France, which included extensive testimonies from many survivors of the chemical attacks launched by the Syrian regime on Douma city and Eastern Ghouta in August 2013, making it the first criminal complaint filed against Bashar al-Assad in France on the issue of chemical weapons.

According to the SCM, “the volume and detail of the evidence convinced the judges of the existence of serious or corroborating evidence that suggests the involvement of Bashar al-Assad in the crime, along with his brother Maher al-Assad, commander of the army’s elite Fourth Division.

Also, the involvement of Brig. Gen Ghassan Abbas, Director of Branch (450) of the Syrian Center for Scientific Studies and Research, and Brig. Gen Bassam al-Hassan, al-Assad’s advisor for strategic affairs and the liaison officer between the presidential palace and the research center.