Landmark hearing on immunity in al-Assad case

The Cour de cassation in Paris, France. Photo: DXR

On 4 July, France’s Cour de cassation will determine the legality of the arrest warrant issued for former Syrian President Bashar al-Assad. The landmark hearing is a pivotal moment in the global fight against impunity for crimes under international law, including chemical weapons attacks that constitute war crimes and crimes against humanity. 

The arrest warrant for Bashar al-Assad was originally issued in November 2023 by French investigating judges. It targets the former Syrian President for his alleged role in the chemical weapons attacks on the city of Douma and the Eastern Ghouta region in August 2013, which killed over 1,000 civilians, and resulted in just as many serious injuries.

The chemical weapons case arose as a result of a complaint and evidence gathered by the Syrian Center for Media & Freedom of Expression, the Syrian Archive, and the Open Society Justice Initiative. Together with these organisations, Physicians for Human Rights, and individual victims, Civil Rights Defenders joined the case as a civil party and has continued to support the investigation. 

Personal versus functional immunity

In June last year, the Paris Court of Appeal upheld the warrant, affirming that personal immunity was not applicable, given the gravity of the alleged crimes and the behaviour of the accused. The court ruled that in allegedly attacking the population with chemical weapons, Bashar al-Assad had not acted as a head of state, thus removing himself from the privilege of personal immunity.

‘Personal immunity’ traditionally applies to heads of state and other high-ranking state officials in foreign domestic courts for acts performed while in office. It ceases to apply once they step down. (By contrast, ‘functional immunity’ applies to state officials for acts undertaken in an official capacity. It continues to apply even when they no longer represent the state.)

Historic warrant against sitting head of state

The case marked the first time in 80 years that a national court anywhere in the world issued an arrest warrant targeting a sitting head of state for crimes under international law. It challenged the traditional interpretation of ‘personal immunity’ under international law, particularly when immunities are invoked to shield individuals from accountability for mass atrocities.  

Since the warrant was issued and confirmed, Syria’s regime has fallen and Bashar al-Assad is no longer a head of state. While the question at stake is whether the arrest warrant was valid when it was issued, the Cour de cassation may now consider the matter moot. 

Aleppo, Syria in 2017.

Separate case against former Central Bank governor

On the same day, the Cour de cassation will consider a separate case concerning Adib Mayaleh, the former governor of the Syrian Central Bank. Mayaleh argues that he should not be prosecuted for atrocity crimes on account of functional immunity. Just like with the Assad case, this ruling could have major implications for investigations involving state officials, both in France and abroad.

No immunity for crimes of mass atrocity

Civil Rights Organisations and other organisations emphasise that, under international law, personal and functional immunity should not apply to crimes of mass atrocity. Immunities should not be a cloak for impunity when state leaders commit heinous crimes, including against their own people.

Upholding the arrest warrant for Bashar al-Assad and rejecting Adib Mayaleh’s functional immunity would send a powerful message that no one, regardless of rank or title, is above the law when it comes to crimes that shock the conscience of humanity. 

Hope for victims around the world

This hearing is not only a test of legal principles, but a beacon of hope for survivors and victims’ families who have sought justice for over a decade. A ruling that stands firm in the commitment to justice for crimes under international law and that prioritises accountability over impunity would also provide significant hope to others who have been victimised at the hands of government leaders around the world.

The above text was co-written by:

  • Amnesty International
  • Civil Rights Defenders
  • European Center for Constitutional and Human Rights
  • International Commission of Jurists
  • International Federation for Human Rights
  • Open Society Justice Initiative
  • Physicians for Human Rights
  • REDRESS
  • Syrian Archive at Mnemonic
  • Syrian Center for Media and Freedom of Expression
  • TRIAL International
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