Enab Baladi – Jana al-Issa
The French Court of Appeal has passed the arrest warrant against the head of the Syrian regime, Bashar al-Assad, after the French Public Prosecution decided to appeal it. The case now goes to the Court of Cassation, the third and final stage to either confirm or overturn the ruling.
If the ruling is confirmed by the Court of Cassation, it would set a legal precedent that overrides the immunity granted to sitting heads of state. This could lead to further steps such as the inclusion of al-Assad’s name by Interpol and countries that have extradition agreements with France.
The highest judicial authority: No doubts
On July 2, the French Public Prosecution announced its decision to appeal the arrest warrant against Bashar al-Assad concerning his use of chemical weapons in Syria.
The appeal decision came days after an “exceptional” ruling on June 26, where the French judiciary confirmed the arrest warrant against al-Assad concerning chemical attacks in Syria.
The Court of Appeal in Paris convened to decide on either confirming or overturning the arrest warrant against al-Assad, accused of complicity in crimes against humanity. On May 15, the Investigation Chamber reviewed the request from the National Anti-terrorism Prosecution Office in France to cancel the warrant based on the “personal immunity” enjoyed by sitting heads of state before foreign courts.
However, the Paris Court of Appeal Prosecutor’s Office referred the case to the Court of Cassation to resolve a “legal issue” related to the arrest warrant against al-Assad, according to Agence France-Presse.
The Prosecutor’s Office stated, “We do not question the substance of the case, especially the presence of serious or substantial evidence against Bashar al-Assad making his involvement likely in chemical attacks. However, it is necessary for the highest judicial court to review the stance adopted by the Investigation Chamber in the Paris Court of Appeal on the matter of personal immunity for a sitting head of state concerning crimes of this nature.”
Chemical attack in Ghouta moves accountability file
Judges from the crimes against humanity unit in the Paris Judicial Court have been investigating the chain of command since 2021 that led to chemical attacks on August 4 and 5, 2013 in Adra and Douma near Damascus, and the attacks on August 21 in Eastern Ghouta, which resulted in over a thousand deaths.
The investigations led to the issuance of four arrest warrants in November 2023 on charges of complicity in crimes against humanity and war crimes.
The warrants targeted Bashar al-Assad, his brother Maher al-Assad, and two generals: Ghassan Abbas, director of Branch 450 of the Syrian Scientific Research Center, and Bassam Hassan, al-Assad’s strategic affairs advisor and liaison officer between the presidential palace and the Scientific Research Center.
Violations nullify immunity
The arrest warrant was based on a criminal complaint filed by the Syrian Center for Media and Freedom of Expression and survivors of the massacre. This was the first time a sitting head of state faced an arrest warrant in another country for war crimes and crimes against humanity.
Plaintiff attorneys Clémence Witt and Jeanne Sulzer noted that the acknowledgment, as confirmed by the National Anti-terrorism Prosecution Office, that Bashar al-Assad enjoys immunity, would protect him from any prosecution in France, creating a state of impunity according to Agence France-Presse.
The attorneys considered that the “exceptional gravity of the facts represented by al-Assad committing repeated chemical attacks against his people, and the robustness of the investigation file proving the Syrian regime’s involvement in these violations, are matters that call for a decision allowing French and Syrian victims to finally access justice.”
When the French investigation judges issued the arrest warrant against al-Assad, they reasoned that committing such crimes as using chemical weapons nullifies all laws and customs related to immunity.
Towards the final stage
International criminal law lawyer al-Mutassim al-Kilani told Enab Baladi that the Court of Cassation in Paris is the third and final level of litigation. It does not address the substance of the case, meaning it does not have the authority to declare Bashar al-Assad complicit in crimes against humanity and war crimes in targeting Eastern Ghouta, which has been confirmed by the investigation judges and the Court of Appeal as well.
The Court of Cassation specializes in examining the legal validity of the procedures taken, specifically whether the bypassing of presidential immunity decided by the investigation judges and the Court of Appeal judges is lawful or not.
Judges justified their decision to override immunity based on two main points: first, that presidential immunity is granted to the president under the regular duties they perform, and using chemical weapons against their people is not part of these regular duties; and second, that al-Assad will not be tried in international or Syrian courts for using chemical weapons, thus taking the responsibility to exercise jurisdiction.
The Court of Cassation will issue its final, irreversible ruling on whether to override the immunity and confirm the Court of Appeal’s decision, or to acknowledge the immunity and thus invalidate the specific action against Bashar al-Assad, leaving the decision to apply only to Maher al-Assad and the other two officers.
Al-Mutassim al-Kilani, Lawyer specialized in international criminal law
Breaking the rules
Al-Kilani considered the Court of Appeal’s decision to reject the appeal submitted by the French Public Prosecution concerning the validity of the arrest warrants issued by the French investigative judges to be historic as it broke several crucial rules in international law.
Under international law, presidential and functional immunity is granted to individuals currently holding office. Thus, the decision represents a significant judicial precedent as it is a fundamental part of combating impunity and breaking these legal loopholes that have allowed several heads of state to evade punishment for decades.
Through Interpol
Regarding the impact of the decision, lawyer al-Mutassim al-Kilani believes it has two important effects on the human rights file in France and western countries in general.
The first effect is to affirm the principle that war crimes and crimes against humanity do not lapse with time, and thus, their perpetrators must be held accountable.
The second effect is that the decision stands as a strong barrier against the ongoing normalization with the Syrian regime and confirms that there is no normalization with a war criminal who has committed war crimes and crimes against humanity, according to a judicial precedent from an impartial judiciary in a leading justice country worldwide.
Regarding the legal consequences of this matter, al-Kilani believes the decision will impose the inclusion of Bashar al-Assad and the three remaining names through Interpol, especially for countries that are signatories to the extradition treaty. France will also request from countries that have bilateral agreements related to the extradition of criminals and suspects of committing crimes to extradite these individuals.
According to the Syrian Network for Human Rights (SNHR), the Syrian regime carried out 217 chemical attacks across various Syrian provinces since the first documented use of this weapon on December 23, 2012, until April 7, 2024, causing the death of 1,514 individuals, including 214 children and 262 women, and injuring 11,080 others.