In France, it is no longer taboo to prosecute sitting heads of state like Bashar al-Assad

On June 26, the Court of Appeal of Paris ruled that Bashar al-Assad’s use of chemical weapons against his civilian population in 2013, despite these acts being committed in his official capacity as president of the Syrian Arab Republic, “cannot be considered as part of the official functions of a head of state [and] are separable from the sovereignty naturally attached to these functions.”

These chemical attacks, which caused more than one thousand deaths, were part of a systematic campaign by the Assad regime to regain opposition-held areas, as well as to punish and terrorize civilians. The international community widely condemned these attacks.

By upholding the arrest warrant against Assad, the French court acknowledged that sitting heads of state cannot be granted what many considered an “absolute” immunity. The use of chemical weapons against a civilian population, which constitutes war crimes and crimes against humanity, cannot be considered an official act of a head of state. And a head of state cannot use the privileges granted to their function—such as the protective regime of personal immunity—to escape accountability.

Background on personal immunity and the complaint

Personal immunity, or immunity ratione personae, is a principle of customary international law under which some high officials such as heads of state, prime ministers, and foreign affairs ministers are traditionally immune from prosecution by other states while in office, regardless of the acts they committed.

Some argue that personal immunity is absolute—meaning that there are no exceptions, even in cases of core international crimes such as crimes against humanity, war crimes, genocide, and torture. However, the reality is that commissioning the aforementioned crimes often requires the means and mechanisms attached to state functions. Arguing that head-of-state immunity is absolute would mean protecting those individuals who have the potential to commit the most egregious crimes.

The June 26 decision is the first court decision to suggest that there is no such thing as absolute immunity for a sitting head of state.

With that in mind, to fight against impunity for the gravest crimes, French courts have jurisdiction over core international crimes committed outside of French territory.

Indeed, France has transposed into its penal code both the Rome Statute and a number of international conventions prohibiting core international crimes, such as the 1984 Convention against Torture. Through the code of criminal procedure, French courts can exercise passive or active personality jurisdiction—in cases involving a French victim or French perpetrator, respectively—as well as universal jurisdiction in cases involving a foreign perpetrator who habitually resides in France.

On March 1, 2021, the Syrian Center for Media and Freedom of Expression and survivors of the 2013 chemical weapons attacks in Eastern Ghouta, Syria, filed a complaint before the French courts. A judicial investigation was opened in April 2021, and three other nongovernmental organizations (NGOs) joined the case as civil parties: Open Society Justice Initiative (OSJI), Syrian Archive/Mnemonic, and Civil Rights Defenders.

On November 14, 2023, based on extensive evidence, French investigative judges issued arrest warrants against the four persons deemed most responsible for the attacks, alleging complicity in crimes against humanity and war crimes. The arrest warrants targeted Assad and three other high-ranking Syrian officials, marking the first time a national jurisdiction has issued an arrest warrant against a sitting head of state.

On December 22, 2023, the French prosecutor, despite recognizing Assad’s role in the chemical attacks, filed a motion to annul the arrest warrant, claiming that “the issuance of this warrant raises a fundamental legal question about the immunity . . . enjoyed by heads of state” and that “this question [should be] settled by a higher court.”

On May 15, the Paris Court of Appeal heard the arguments of the prosecutor general and the civil party lawyers on the legality of the warrant against Assad in the context of head-of-state immunity. On June 26, the court delivered its historical decision, upholding the arrest warrant against the Syrian president. For the first time, a court ruled that a sitting head of state is not protected by an absolute immunity.

However, just two days later, on June 28, the public prosecutor’s office appealed the decision, declaring that “it is necessary that the position taken by the Investigating Chamber of the Paris Court of Appeal on the question of the personal immunity of a sitting head of state for offenses of this nature be examined by the highest court of the judicial system.”

The Court of Appeal’s decision will be examined by France’s highest court, the Court of Cassation, presenting two possible outcomes for victims of Assad’s chemical attacks: either the court rules that the Syrian president is entitled to personal immunity and annuls the arrest warrant, allowing Assad to evade accountability, or it upholds the previous ruling and issues a landmark decision confirming that head-of-state immunity is not absolute and ensuring a path to accountability for some of Assad’s alleged international crimes.

In both cases, a criminal trial may be held in France in the presence of those indicted or in absentia. The question is whether Assad will be one of the accused, which solely depends on whether the arrest warrant is upheld.

Why did the Paris Court of Appeal waive Assad’s immunity?

The Paris Court of Appeal acknowledged several limits to personal immunity due to the nature of the offenses and the conduct of the head of state.

The court found that the purpose of personal immunity is the exercise of representational functions at the international level. The use of chemical weapons by a head of state against their population does not fall within the scope of normal duties. By not behaving like a head of state, Assad, therefore, excluded himself from the benefit of personal immunity.

Moreover, for the court, “the prohibition of the use of chemical weapons is part of customary international law as a peremptory norm and . . . the international crimes within the scope of the investigation cannot be considered as part of the official functions of a head of state. Consequently, they are separable from the sovereignty naturally attached to these functions.”

In its reasoning, the court went back to the raison d’être of personal immunity, ensuring that immunity is not intended to shield acts that should not be protected.

Citing several United Nations Security Council (UNSC) resolutions related to the former Yugoslavia, Rwanda, and Sierra Leone, the court emphasized that the international community has upheld the values of humanity over personal immunity, ensuring that immunity does not equate to impunity. In the current case concerning Syria, the UNSC has called for the prosecution of those responsible for the chemical attacks without referring to any immunities that might obstruct such prosecution. Thus, the court acknowledged that the fight against impunity can prevail over personal immunity.

The court also concluded that “insofar as it seems obvious that Syria will never prosecute Bashar al-Assad for these crimes, that it will never waive the personal immunity of its President, and insofar as no international courts have jurisdiction, Syria not being a party to the Rome Statute, it must be said that the arrest warrant issued against Bashar al-Assad is not tainted by any nullity.”

This refers to the 2002 International Court of Justice (ICJ) arrest warrant case, which asserts that “the immunities enjoyed under international law . . . do not represent a bar to criminal prosecution in certain circumstances.” In its decision, the ICJ pointed out that personal immunity would not equate to absolute impunity, as the high-ranking official could: be tried before courts of their own country; be prosecuted in front of a foreign court if the state they represent waives their immunity; be prosecuted after their term of office; or be tried by an international tribunal. As a reminder, international tribunals do not recognize head-of-state immunity; only national courts do.

However, in the present case, Syrian judicial authorities have taken no steps toward prosecution. Assad is not going to waive his personal immunity. Assad does not have a clear term of office, and has held his office for twenty-four years. No international tribunal is competent, as Syria has not ratified the Rome Statute and all attempts to refer the case to the International Criminal Court have been vetoed. As none of these circumstances can be met in the chemical attacks’ case, the Paris Court of Appeal has, by waiving Assad’s immunity, ensured that immunity does not equate to impunity and provided a pathway for victims to seek truth and justice.

The Court of Appeal’s decision represents a significant step toward ensuring that head-of-state immunity does not protect individuals from prosecution for the most serious international crimes. This arrest warrant’s confirmation signals to sitting heads of state that they cannot commit international crimes and escape accountability. The forthcoming decision by France’s highest court will be crucial in either upholding or overturning this landmark ruling, with profound implications for international law, accountability, and victims of the most heinous crimes.

Jeanne Sulzer is a lawyer at the Paris Bar and on the list of counsels before the International Criminal Court. Founder of Impact Litigation law firm, she represents victims of international crimes including in the 2013 Syria Chemical Attacks Case in France.

Clémence Witt is a criminal lawyer at the Paris and Barcelona Bar. She also teaches Criminal Law & Procedure at Sciences Po Paris.

* Zazie Steedman contributed research and support to this article.

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Image: Syria’s President Bashar al-Assad speaks to the Syrian parliament in Damascus, Syria August 25, 2024. SANA/Handout via REUTERS