France’s highest court is to decide Friday whether to uphold an arrest warrant against Syria’s ex-president Bashar al-Assad as part of a probe into deadly 2013 chemical attacks during the country’s civil war.
Rights activists say that if the Court of Cassation confirms Assad does not enjoy immunity due to the severity of the accusations, it could set a major precedent in international law towards holding war criminals to account.
But if the reasoning is that the warrant is valid because France did not consider Assad to be a legitimate ruler at the time of the alleged crimes, it would not have the same impact.
French authorities issued the warrant against Assad in November 2023 over his alleged role in the chain of command for a sarin gas attack that killed more than 1,000 people, according to US intelligence, on August 4 and 5, 2013 in Adra and Douma outside Damascus.
Assad is accused of complicity in war crimes and crimes against humanity in the case, though Syrian authorities at the time denied involvement and blamed rebels.
The French judiciary tackled the case under the principle of universal jurisdiction, whereby a court may prosecute individuals for serious crimes committed in other countries.
An investigation — based on testimonies of survivors and military defectors, as well as photos and video footage — led to warrants for the arrest of Assad, his brother Maher who headed an elite army unit, and two generals.
Public prosecutors approved three of the warrants, but issued an appeal against the one targeting Assad, arguing he should have immunity as a head of state.
The Paris Court of Appeal in June last year however upheld it, and prosecutors again appealed.
Assad’s circumstances have since changed.
He and his family fled to Russia, according to Russian authorities, after Islamist-led rebels toppled him in December last year.
– Assad immunity issue –
Agnes Callamard, a French human rights activist and the secretary general of Amnesty International, said the court’s decision could “pave the way for a major precedent in international law” if it decided immunity should be lifted in certain cases.
“A ruling lifting Bashar al-Assad’s immunity would help strengthen the founding principles of international law in its fight against the impunity of war criminals,” she wrote in the newspaper Liberation on Thursday.
Callamard however noted that it was unlikely any arrest warrant would lead to Assad being detained as he was protected by Russia.
The high court’s prosecutor has recommended the arrest warrant be upheld, but on the grounds that France had not recognised Assad as the legitimate ruler of Syria since 2012.
Mazen Darwish, a prominent Syrian lawyer who heads the Syrian Center for Media and Freedom of Expression, a civil party to the case, said the prosecutor’s argument was “very clever”.
But it “undermines the moral foundation” according to which “immunity should not apply” in cases of war crimes and crimes against humanity, he said.
The reasoning “also grants a single foreign government the power to decide who is or is not a legitimate head of state, which sets an extremely dangerous precedent”, he said.
French investigating magistrates in January issued a second arrest warrant against Assad for suspected complicity in war crimes for a bombing in the Syrian city of Deraa in 2017 that killed a French-Syrian civilian.
Friday’s hearing is scheduled to start at 1300 GMT.
