But the warrant was contested<\/a>. First by the national anti-terrorism prosecutor\u2019s office, responsible for prosecuting international crimes in France, which filed a motion to have the warrant overturned before the Paris court of appeal. Then by the general prosecutor\u2019s office of the court of appeal. Considering that \u201cthe prohibition of the use of chemical weapons is part of customary international law as a peremptory norm\u201d, the investigating chamber had ruled that the crimes alleged against Assad \u201ccould not be considered part of the official functions of a head of state\u201d. And that the United Nations Security Council had adopted resolutions demanding that the perpetrators of chemical attacks in Syria be prosecuted, regardless of their position.<\/p>\n\n\n\n The decision of the investigating judges was \u201chistoric\u201d, according to lawyer Jeanne Sulzer, who represents several civil parties, since case law had never allowed for exceptions to personal immunity. A judgment<\/a> of the court of cassation, handed down in September 2020, simply ruled that if there were exceptions to this immunity, \u201cit was up to the international community to define them\u201d. \u201cBut immunity is entirely a matter of customary international law\u201d, the lawyer told Justice Info; that is, the practice of states which, together, form custom. In other words, \u201cthe judge of immunities is the judge of the national courts\u201d. And it is up to them \u2013 in this case, those of the court of cassation \u2013 to draw the possible new contours of this custom.<\/p>\n\n\n\t On Friday, the public prosecutor at the court of cassation, R\u00e9my Heitz, questioned the grounds for the decision. While there is no doubt about the classification of the crimes alleged against Assad, \u201cwas it possible to set aside the Syrian president\u2019s personal immunity in order to hold him criminally responsible?\u201d No, says Heitz. In his view, considering that these crimes were \u201cseparable\u201d from his functions \u201ccannot be accepted\u201d in view of the \u201csovereignty\u201d and the \u201cequality\u201d of states, which \u201crequires that no state can have authority over another\u201d through the courts.<\/p>\n\n\n\n Heitz goes on to explain that he does not support a \u201cgeneral questioning\u201d of the personal immunity of sitting heads of state. He argues that it guarantees \u201crespect for the sovereignty of states\u201d, prevents \u201cabusive or politically motivated prosecutions\u201d and ensures \u201cthe stability of international relations\u201d.<\/p>\n\n\n\n However, national courts \u201care now an integral part of the international criminal justice system\u201d, argues Paul Mathonnet, who represents all the civil parties before the court of cassation. He defends the idea that \u201cthe fight against impunity\u201d is no longer considered, in international law, \u201cas a mere value awaiting enshrinement by the will of the international community\u201d. Rather, it is \u201ca legally protected interest that binds the states\u201d. In particular, considering that many crimes \u201cremain outside the jurisdiction of the International Criminal Court (ICC)<\/a>\u201d, as in this case, the lawyer points out, since Syria has not ratified the Rome Statute.<\/p>\n\n\n\n For the civil parties, the issue at stake is being able to \u201creserve the right to waive, on a case-by-case basis\u201d, the personal immunity of a sitting head of state when he or she is accused of the most serious international crimes. And thus to establish an exception to its absolute nature. In particular, the lawyer continues, if this immunity leads \u201cin practice to a situation of impunity, as the Pre-Trial Chamber found in its decision\u201d. Choosing \u201cconditional immunity\u201d, he told the judges, would guard against the risk of a proliferation of situations of impunity, but also against the risk of proceedings being used \u201cby ill-intentioned States\u201d.<\/p>\n\n\n\n The appeal examined by the court of cassation is part of a \u201cbroader context\u201d, according to Sulzer: \"Personal immunity can be seen as a guarantee of a peaceful world, with respect for the sovereignty of states. But the opposite can also be said, and it can be argued that decimating one\u2019s population is not exactly conducive to peaceful international and diplomatic relations\u201d. For the lawyer, the question of immunity must also be assessed in light of its application, including in the context of states\u2019 cooperation with the ICC, which does not recognise personal and functional immunities: \u201cMany States consider that they cannot \u2013 or do not wish to \u2013 use their coercive power to arrest sitting leaders prosecuted by the ICC. This is because, for them, the question of immunity arises\u201d, and it would still be difficult to address. Sometimes for obvious diplomatic reasons.<\/p>\n\n\n\n But things are changing: \u201cUntil now, touching personal immunity was taboo. When the investigating chamber handed down its ruling, we expected a kind of outcry. Almost to our surprise, we received an enormous amount of positive feedback, particularly from academics and professors of international law. These are progressive people, of course, but if it doesn\u2019t hold, they do speak out.\u201d<\/p>\n\n\n\n However, the attorney general proposed to the court of Cassation that it should not overturn the investigating chamber\u2019s ruling and invited the judges to validate the arrest warrant for Assad. A kind of \u201cthird way\u201d. More precisely, Heitz proposes to set aside the question of the former Syrian president\u2019s personal immunity, considering that he has not been recognised by France as the legitimate head of state of the Syrian Arab Republic since 2012. He adds that this position is supported by the French Ministry of Foreign Affairs, whose opinion he sought.<\/p>\n\n\n\n The fact that Assad has not been in office since 8 December 2024 has no bearing on the proceedings, the reporting judge told the court, since \u201cthe validity of the arrest warrant must be assessed on the date it was issued\u201d, in November 2023. The former head of state is thus the subject of another arrest warrant issued by French investigating judges in January 2025, which is not being contested by the public prosecutor\u2019s office.<\/p>\n\n\n\n The argument that Assad\u2019s immunity should be lifted on the grounds of \u201cdis-recognition\u201d was also put forward by the lawyer for the civil parties \u2013 an argument that should only be considered \u201cif\u201d the judges of the Court were not to accept \u201cthe case-by-case approach\u201d proposed in the first instance, Mathonnet stated in court. In November 2012, French president Fran\u00e7ois Hollande had announced that \"France now recognises the Syrian National Coalition as the sole representative of the Syrian people\u201d. But what would be the legal scope of a decision based on \u201cdis-recognition\u201d? asked the lawyer. Would it have \u201can effect\u201d on international custom? Or would it be \u201csolely\u201d an assessment of whether \u201cthe person being prosecuted is indeed a head of state\u201d?<\/p>\n\n\n\n \u201cWe welcome the fact that the public prosecutor\u2019s office at the court of cassation is on the side of the victims and is seeking confirmation of the arrest warrant\u201d, says Cl\u00e9mence Witt after the hearing, alongside two other representatives of the civil parties during the investigation, Sulzer and Chlo\u00e9 Pasmantier. Because following this path of dis-recognition would also mean following its reasoning, adds Sulzer; \u201cand the reasoning for dis-recognition is mandatory due to the nature and gravity of the crimes\u201d alleged.<\/p>\n\n\n\n \u201cWhile it is interesting to note that the public prosecutor\u2019s office before the court of cassation has adopted one of our arguments\u201d, added Pasmantier, \u201cit is also interesting to note that it is using it to avoid having to answer on the issue of personal immunity. Of course, civil parties would have liked the public prosecutor\u2019s office to go even further by admitting the inapplicability of personal immunity in cases of crimes against humanity\u201d.<\/p>\n\n\n\n As to whether Assad could have benefited from functional immunity, this is unlikely; international case law has evolved and now favours the introduction of an exception to its application in cases of war crimes and crimes against humanity. On Friday, the court of cassation examined another request on this issue, together with the case concerning the Assad\u2019s arrest warrant.<\/p>\n\n\n\n The court of cassation\u2019s decision will be handed down on 25 July.<\/p>\n\n\n WHAT THE PARIS ASSIZE COURT HAS SAID<\/strong><\/p>\n A year ago, at the end of the first \u201cSyrian\u201d trial held, in absentia, in France, following a complaint about the enforced disappearance of two members of the Dabbagh family, the Paris assize court ruled in its written statement of 30 May 2024 <\/a>that Bashar al-Assad \u201cenjoys the immunity recognised by the international community for all heads of state\u201d, but that \u201cthe same does not apply to the three defendants\u201d in this trial. \u201cThe court considers that crimes against humanity, considered the most serious crimes in the hierarchy of crimes, cannot be covered\u201d by functional (or material) immunity \u201calso recognised by international law for all public officials for acts committed in the exercise of their functions\u201d.<\/p>\n<\/div>\n\nImmunity, the guarantor of state sovereignty<\/h2>\n\n\n\n
The attorney general\u2019s third way<\/h2>\n\n\n\n
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