Enab Baladi – Baraa Khattab

After a French arrest warrant was issued against the head of the Syrian regime, Bashar al-Assad, the National Anti-Terrorism Prosecutor’s Office asked the Paris Court of Appeal to rule on the “validity” of the warrant as it is directly related to the immunity enjoyed by heads of state under international law.

This development raises the question about the possibility of canceling the warrant, given that implementing an arrest warrant against a president still in office may go beyond extradition agreements and is directly related to the immunity that heads of state enjoy under international law before foreign national courts.

The National Anti-Terrorism Prosecutor’s Office (Pnat) told AFP on December 21 that it had referred the matter to the Paris Court of Appeal to rule on the validity of the arrest warrant issued against al-Assad.

“Without calling into question the existence of elements demonstrating the involvement of Bashar al-Assad in the chemical attacks committed in August 2013”, the Pnat, competent in matters of crimes against humanity, “notes that the issuance of this mandate introduces an exception to the principle of personal immunity enjoyed by the President, Prime Minister and Minister of Foreign Affairs in office of each sovereign State, according to the Justice Info website.

However, he continues, “unanimously, it is considered until now that such an exception is reserved for the sole benefit of international jurisdictions,” such as the International Criminal Court, according to the website that specializes in covering trials for war crimes, crimes against humanity, and genocide.

Accordingly, on December 19, the National Anti-Terrorism Prosecutor’s Office issued an order to the investigation chamber of the Paris Court of Appeal to “determine” the validity of the arrest warrants.

According to the Pnat, “the importance of this legal question and its consequences requires that it be decided by a higher court” before a possible trial.

The Pnat, therefore, issued a request on Tuesday before the investigating chamber of the Paris Court of Appeal.

In mid-November, investigating judges from the crimes against humanity unit of the Paris court issued four arrest warrants for complicity in crimes against humanity and complicity in war crimes.

They target Bashar al-Assad and his brother, Maher, de facto leader of the Fourth Division, an elite unit of the Syrian army, as well as two generals, Ghassan Abbas and Bassam al-Hassan.

As part of this procedure, the Pnat requested the issuance of warrants targeting senior Syrian dignitaries.

Al-Assad, as a president in power, enjoys personal immunity that is supposed to be “absolute.”

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.

This is the first arrest warrant issued by a French court against a sitting head of state, and there are no similar judicial precedents, according to the Justice Info website.

Therefore, the Investigation Chamber, and then the Court of Cassation, will have to decide whether the arrest warrant is valid or whether to cancel it.

Discord related to “immunity”

The execution of an arrest warrant is directly linked to the immunity enjoyed by heads of state under international law before foreign national courts.

In an article by the legal official at the Syrian Legal Development Program (SLDP), lawyer Muhannad Sharabati said that it must be noted that the decision of the investigating judges in France to bypass personal immunity and issue the arrest warrant is not final.

In theory, it is possible to challenge the warrant before the French judiciary by the public prosecutor or the defense (if a lawyer is appointed to represent Bashar al-Assad) and to raise the issue of al-Assad’s personal immunity.

Then the French judiciary must decide whether the Syrian regime enjoys personal immunity or not before considering the merits of the claim.

From a legal standpoint, the Syrian regime can resort to the International Court of Justice to object to the French arrest warrant similar to the lawsuit filed by the Congo against Belgium or to object to any subsequent decision issued by the French judiciary if it is decided to proceed with the lawsuit, and it is considered that the regime does not enjoy immunity before French national courts.

The article added that for these reasons, the case will be a real opportunity, not only before the French judiciary, but also before the countries of the world, to reconsider the rules of personal immunity for serious international crimes, and to achieve justice for the victims of these crimes.

Expectations: Warrant devalidation

Lawyer Sharabati told Enab Baladi that it is possible that the arrest warrants issued against al-Assad will be canceled because “under international law, the regime enjoys immunity before a foreign national court.”

He added that the arrest warrant was issued by the investigating judge and not the public prosecutor, and the parties and the public prosecutor can appeal the arrest warrant decision after it is issued.

The legal expert believes that there is a possibility that the Pnat will challenge the arrest warrants due to the personal immunity enjoyed by the regime.

Al-Mutassim al-Kilani, Syrian lawyer and expert in International Criminal Law, agrees with Sharabati, as he told Enab Baladi that based on the local jurisdiction of the court from which the warrants were issued and the immunity enjoyed by the Syrian regime, these warrants could be canceled.

Two types of immunity

According to international law, there are two types of immunity that individuals enjoy, which are personal immunity and functional immunity, according to lawyer Sharabati’s article.

Personal immunity means the protection from prosecution before foreign national courts that some state officials enjoy due to their official capacity and status in the state.

This immunity is linked to a number of senior positions in countries, specifically heads of state, heads of government, and foreign ministers. It is absolute immunity, meaning that it includes all acts committed, whether in an official or private capacity, before and during holding office.

The protection of personal immunity ceases once an individual leaves office, even in relation to acts he performed while in office.

As for functional immunity it means the immunity from the jurisdiction of foreign national courts that individuals enjoy due to the official nature of some acts they perform in their official capacity on behalf of the state, in contrast to personal immunity. 

Functional immunity is based on the act or behavior itself and not on the position of the person who committed the act, and therefore it is not limited to a number of senior positions in the state but rather includes any employee who acts on behalf of the state, regardless of his position.

This immunity includes government acts and state business unless done in a personal capacity, and acts are only official in nature when the act is exclusively attributable to the state.

Functional immunity for heads of state only becomes important when the head of state leaves office because while he is in office, he enjoys personal immunity, so this type of immunity may not be relevant when discussing the warrant issued against al-Assad since he is still in office, and from a legal standpoint, he enjoys personal immunity.

It is important to note that it is widely accepted that functional immunity before national courts does not extend to serious international crimes such as war crimes, crimes against humanity, and genocide, as they are not considered official acts on behalf of the state.

Court jurisprudence supports the existence of an international customary rule stating that functional immunity for former state officials does not apply before foreign national courts in cases of serious international crimes, for example, the case against the Nazi officer Eichmann, and the case against the former President of Chile, Pinochet, before the British judiciary.

The International Law Commission confirmed this in the draft articles related to the immunity of state officials from foreign criminal jurisdiction, which it adopted in June 2022. Article 7 stipulates that functional immunity before national foreign courts does not include a group of international crimes, namely the crime of genocide, crimes against humanity, war crimes, the crime of apartheid, the crime of torture and the crime of enforced disappearance.

According to the article, personal immunity cannot be invoked before international courts, and the Rome Statute of the International Criminal Court stipulates this explicitly, and Article 27 stipulates that “immunities or special procedural rules that may be linked to a person’s official capacity, whether within the framework of national or international law shall not preclude the exercise of jurisdiction by the court over that person”.

Personal immunity is viewed differently by foreign national courts, unlike international courts. There are legal arguments that heads of state, heads of government, and foreign ministers who are still in office enjoy absolute personal immunity from criminal prosecution before foreign national courts, even if they commit serious violations against international criminal law, such as war crimes, crimes against humanity, and genocide.

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.