On November 14, 2023, a French Magistrate Judge issued an arrest warrant for Syria´s President, Bashar al-Assad. The Court found sufficient evidence to initiate proceedings against Assad for complicity in war crimes and crimes against humanity, specifically the use of chemical weapons. Yet, as this blog post will point out, Heads of State enjoy certain immunities under international law, which the French arrest Warrant thereby violates. This warrant could, however provide a necessary impetus to re-evaluate how states view immunities.
Assad´s Use of Chemical Weapons
Bashar al-Assad has ruled Syria in an increasingly totalitarian manner since 2000. In that function, he operates as the commander-in-chief of the Syrian Army. Following demonstrations and a brutal crackdown by government forces in 2011, his military was directly involved in a civil war against numerous factions which continues, in varying intensity, to this day. From 2013 onwards, allegations of chemical weapons use by the government forces surfaced. Investigations by non-governmental organizations (NGOs) as well as by the United Nations and the Organization for the Prohibition of Chemical Weapons (OPCW) have concluded that the Syrian Air Force was responsible for numerous chemical weapons attacks, claiming the lives of thousands of civilians.
The use of chemical weapons is prohibited by several legally binding regimes. The Chemical Weapons Convention (CWC), which Syria acceded to in 2013, comprehensively bans, among other acts, the production and use of chemical weapons and obliges all member states to enact national penal provisions accordingly (CWC Articles I 1. (a and b) and VII 1. (a)). Moreover, the use of chemical weapons constitutes a war crime under customary international law, binding all states. Additionally, the Rome Statute of the International Criminal Court (ICC) also defines the use of specific chemicals, such as asphyxiating and poisonous gases, as a war crime (Articles 8 (2) (b) (xviii and xviii) and 8 (2) (e) (xiii and xiv))). Yet, Syria is not a member of the ICC, and any attempt to initiate an investigation through UN Security Council referral has been blocked through veto by Russia and China.
Consequently, concerned states, victims, and NGOs increasingly focused on seeking justice through national legal systems. This effort is supported by the UN General Assembly´s creation of the International, Impartial and Independent Mechanism on Syria, which assists in conducting national prosecutions by providing internationally collected evidence. The Mechanism is, among other areas, also tasked to collaborate with the OPCW´s investigators to prepare evidence of chemical weapons use for national prosecution.
Universal Jurisdiction as an Effective Tool?
A large share of states allows for some form of universal jurisdiction in their criminal codes. Universal jurisdiction allows domestic courts to hear cases of specific crimes, even if neither the perpetrator, nor the victim are nationals of the court´s state and if the crime happened abroad. This form of special jurisdiction is limited under international law to certain serious crimes, including, in most cases genocide, crimes against humanity, and war crimes. The limitation to those most serious crimes stems from the fact that these are considered crimes erga omnes, meaning they represent a violation against the international community as a whole. The focus on universal jurisdiction has resulted in a number of cases of Syrian perpetrators, who fled to Europe, finding themselves before European courts for crimes committed in Syria. This approach has proven helpful in bringing to justice lower and mid-ranking perpetrators. Countries such as Germany, Sweden, and France built significant prosecutorial capacities to investigate crimes committed abroad and successfully conducted proceedings in the past years.
Indeed, the French Penal Code defines the use of certain chemical agents as a war crime (article 461-23 (1, 2, 4)) and allows for the prosecution of crimes committed abroad by foreigners (article 689-11 (3) Code of Criminal Procedure). Importantly, the Penal Code (article 462-7) not only applies to those directly executing war crimes but also to those higher up the chain of command i.e. those holding command responsibility.
Given this legal framework and the fact that Assad, as the highest military commander, might be complicit in chemical weapons use by Syrian government forces, the investigating judge of the Paris Court decided to issue an arrest warrant for the President, his brother Maher al-Assad and two other senior officials. This marks an intermediate goal for a consortium of NGOs, which lodged a criminal complaint in 2021 with one of their founders calling this “a historic judicial precedent” and “a victory for the victims”. A similar complaint was lodged in Germany in 2020 without any public progress to date. As this is the first active arrest warrant against a sitting Head of State by a domestic court, the French decision indeed represents a monumental development.
Short Detour: Constraints in French Law
Without entering into the discussion of international law just yet, it appears that the Magistrate´s decision is hardly reconcilable even with France´s own conditions for universal jurisdiction. Abovementioned Article 689-11 Code of Criminal Procedure requires the perpetrator to have a “habitual residence” in France. This term was defined by a recent Supreme Court judgment as also encompassing short stays in France for a period of at least three months and takes a French student ID card or frequent family visits as sufficient evidence for this requirement. However, none of these qualifiers would apply to Assad under even the broadest reading of the Supreme Court’s definition of habitual (as argued here in French).
Violation of Immunities?
The issuance of an arrest warrant against a sitting Head of State is an extremely rare occasion, raising several legal questions. This debate has recently been re-activated in relation to the arrest warrant against Russia´s President Vladimir Putin (for a discussion in German see here). In Putin´s case the warrant was issued by the ICC, which a substantial number of experts saw as in compliance with standing international law. The majority argument holds that international courts represent the international community and allow for the prosecution of Heads of State for the most serious crimes, arguably even if a state like Russia has not signed the ICC´s Rome Statute.
Yet, as Assad´s warrant stems from a French domestic court, the legal situation is qualitatively different: Under customary law, sitting Heads of State are immune from prosecution by other states. The rationale of such comprehensive immunities for the highest-ranking officials is to ensure a functioning international system, which requires some protection against prosecution as a form of political retaliation by single states. Indeed, the International Court of Justice (ICJ), in its 2002 Arrest Warrant Judgment, has made the unambiguous determination that Heads of State, Heads of Government, and Foreign Ministers, while in office, enjoy complete immunity from national prosecution, even for grave international crimes. This position is also upheld by the ICC Appeals Chamber, which concluded that immunities before national courts are based on the principle of sovereign equality of states (par in parem non habet imperium), prohibiting one from judging the other, thereby including their respective Heads of State as immune. They essentially stated that immunities do not apply before international courts, allowing for the prosecution of Sudan´s dictator Omar al-Bashir or as recently Vladimir Putin before the ICC, while the same cases would not be lawful before national courts.
While some academic voices claim that the ICJ judgment was misguided, states have, up until now, clearly upheld this principle of immunity. With no opposition by states, it constitutes customary international law, which is binding on all states, including France. The issuance of an arrest warrant against Assad, at least while he is in office, is consequently a violation of a standing customary rule by the French Magistrate.
Assad´s unspeakable crimes create a quandary: How do we end impunity of those most responsible for international crimes while respecting international law?
With international courts blocked by Russian and Chinese vetoes, national prosecution may seem like the only alternative for redress. And customary law, including rules of immunity, is not set in stone, it can change over time. However, this change has to result from a deliberate position of states deeming a specific rule to be applicable (opinion iuris). For rules to change, states have to clearly articulate their desire to do so and act accordingly over a reasonably long period of time.
If France, and other states involved in applying universal jurisdiction, are serious about abolishing existing rules for immunity, they can do so by consistently issuing statements of their belief that immunities cannot apply for certain crimes. After some time of such opposition to immunities, courts would have a better argument to prosecute Heads of State. Certainly, such a change of customary international law cuts both ways – legal rules cannot apply selectively. In the past, states, including France, have been extremely reluctant to open this Pandora´s Box as it would mean that no President is immune from prosecution by other states. Especially in light of US opposition to prosecutions of their nationals abroad, even by international courts, it seems unlikely that a majority of Western politicians would be willing to accept such a wide sweeping change of the status quo.
Assad is responsible for some of the worst atrocities of the past decade. Yet, the international legal system is not fit to hold him accountable. The ICC remains unavailable due to blockade at the UN Security Council and national initiatives face the irreconcilable question of immunities. The French Magistrate indeed set a precedent, but a precedent that puts the cart before the horse, thereby violating not only domestic procedural law but also international law. Instead, states should ponder whether they are serious about changing customary rules concerning immunities. If enough states are willing, they would have to first express their opinio iuris and subsequently substantiate this through practice. Absent such initiative, immunities remain applicable to Assad, as unjust as this seems at first glance.
This dilemma should, however, not take away from the importance of applying universal jurisdiction to all other perpetrators of international crimes beyond the President. French Arrest Warrants against the two other high-ranking officials and other ongoing cases in Europe comply with international law and might at least provide partial justice to victims. Courts should focus on those cases where they have jurisdiction and leave it to state representatives to lead the charge in changing established rules of international law. A small consolation can be seen in the fact that the Head of State immunity only applies as long as an individual is the sitting Head of State. If one day Assad leaves office, justice procedures, even before domestic courts are not blocked by these specific immunities anymore.