Dr Mark Chadwick, Principal Lecturer NLS https://www.ntu.ac.uk/staff-profiles/law/mark-chadwick
“We were in a panic to take the children and run to any nearby village. People who were sleeping in their homes died in their beds because they could not feel the effects of the attack. I could see people coming out of their homes but they would fall down. We tried to help some of them but they died before we got them to the hospital.”
Harrowing eyewitness accounts describe the moment Syrian planes released sarin gas over Ghouta, a rebel-held suburban area to the east of Damascus, in the early hours of 21 August 2013, killing 1,429 civilians (according to US figures) and injuring a further 3,600.
In common with a slew of atrocities committed on all sides of the conflict, there has previously been little prospect for justice for the victims of the attack. This is notwithstanding the clear criminality of such acts as a matter of international law: both as a war crime (attacks against a civilian population and/or of deploying asphyxiating weapons) and as a crime against humanity (a widespread and/or systematic attack against a civilian population).
Implementing the necessary procedural law to ensure accountability is another matter, however: attempts to refer investigations to the International Criminal Court having been blocked by Russia and China, while proposals for alternative international or “hybrid” courts have not reached fruition. Trials within Syria have, similarly, not been forthcoming (notwithstanding trials of several thousand so-called “Islamic State” militants in the Kurdish-administered northeast).
With an “impunity gap” at the international and local levels, then, it has fallen to the domestic courts of other States to create a climate of accountability. As one million refugees fled out of Syria due to the conflict, they have acted as vectors of justice by prompting legal action within those States where they have found refuge. 49 cases have since been opened by prosecutors in European and US domestic courts against individuals suspected of committing serious international crimes in Syria, with 25 of these already leading to convictions. Domestic courts are able to investigate Syrian suspects under a principle known as “universal jurisdiction”, the concept that prosecutors in any State may initiate an investigation into suspected international crimes taking place anywhere in the world, given the effects of such atrocities on internationally agreed vital communitarian interests.
Historically rooted in trials of pirates, the principle is today a generally accepted basis by which States may prosecute instances of genocide, war crimes, crimes against humanity and (with less certainty) aggression, without demonstrating any form of jurisdictional link.
On November 14th, then, just over a decade on from the Ghouta attacks, the principle of universal jurisdiction reached its pinnacle, with French judges issuing a warrant of arrest for Syrian President Bashar al-Assad (also his brother, Maher al-Assad, and two Syrian generals), for complicity in the atrocity. It is the latest in a series of charges issued by French courts against Syrian officials, though as the first such investigation into a serving head of State, the announcement is a ground-breaking development.
Universal Jurisdiction: Alive and Kicking
The arrest warrant marks a radical and important step for the development of universal jurisdiction, a principle once declared, in the late 2000s, to have had its “swan song”. Although the 1999 Pinochet judgment (in which the UK House of Lords established that the former Chilean dictator couldbe extradited to Spain to stand trial on the basis of universal jurisdiction) seemed set to herald a new age of accountability for State-sponsored criminality, the aftermath proved to be less auspicious, with increasingly ambitious attempts to indict leaders in (e.g.) China, Israel and the US, particularly via legal machinery in Spain and Belgium, leading to significant backlash, collapsed cases, and much-curtailed universal jurisdiction laws.
More recently, the well-documents outrages of the Syria conflict have prompted the gradual renaissance of universal jurisdiction, with cases beginning to appear from 2015, driven by the refugee community, in tandem with NGO advocacy. Germany (which has a sizeable Syrian refugee community) has been most prolific in this respect, while there have also been cases in France, Spain, The Netherlands, Sweden, Austria, Norway, Switzerland, Hungary, and the US. The first convictions came in Germany in January 2022, of former Syrian intelligence personnel Anwar Raslan and Eyad al-Gharib (both present and arrested in Germany), convicted of several counts of crimes against humanity in the form of killing, torture, severe deprivation of liberty, rape, and sexual assault. 23 convictions, across Europe, have since followed. This is alongside cases emanating from, inter alia, Iraq, Ukraine, Yemen, Liberia, The Gambia, Afghanistan and El Salvador.
Universal jurisdiction has thus been able to quietly re-establish itself, with trials against mostly low-level accused that have failed to rattle the political establishment in the same way as the momentous earlier cases. The al-Assad warrant, then marks a bold moment of re-arrival by initiating a criminal legal process against a serving head of state.
One curiosity remains: al-Assad appears to be charged with the war crime, in French law (and recognised under international law), of use of “asphyxiating, toxic or similar gases”, an act punishable by life imprisonment (Penal Code, Article 461-23). Jurisdictionally, however, French law appears to require that the suspect “have habitual residence on French territory, this being defined by a sufficient connection with France” (Code of Penal Procedure, Article 689-11). In correlation with a majority of States with universal jurisdiction laws, France has a “presence” requirement as a precursor to the initiation of such cases (so that suspect should be in France before a warrant can be issued), though whether this is a requirement as a matter of international law is less clear. The announcement, then, feels like something of an anomaly at the moment, and likely the source of further domestic litigation.
It is, moreover, unfeasible that al-Assad would ever be extradited to France to stand trial in any case (and, certainly, it is likely to be off his holiday list). Yet it is these very problems that make this development so significant: cutting through the legal and practical limitations is the bold (but morally uncontentious) statement that serious atrocities must never go unpunished, regardless of who commits them or where they take place. For the ongoing revival of universal jurisdiction, it’s a significant and potentially catalytic moment.
Immunity and Recognition
There is a further problem: as Syrian Head of State, al-Assad likely enjoys immunity from prosecution as a matter of customary international law.
There are two types of immunity that individuals acting on behalf of a State may avail themselves of under international law: immunity ratione materiae (immunity on the basis of officiality of acts) and immunity ratione personae (immunity on the basis of official status). It is generally accepted that State officials (including heads of State) may not claim immunity ratione materiae for committing international crimes, given these can never legitimately considered to be official acts of a State.
The question of immunity ratione personae is, however, more complex: the International Court of Justice affirmed in the 2002 Arrest Warrants judgment that heads of state and other high-ranking State officials remain immune from prosecution, for any acts, while remaining in office. Although the position may have since shifted in respect of trials at international courts (following a controversial judgment at the International Criminal Court in relation to then-president of Sudan, Omar al-Bashir), the personal immunity of serving heads of state appears to hold for domestic prosecutions. Indeed, a recent commentary by the International Law Commission suggests that the principle of immunity “generally seeks to ensure [the] ability [of heads of State] to represent their State or to exercise State functions” and that they “must be able to discharge their functions unhindered.”
International law is rarely set in stone, however, and customary norms can change shape and direction over time. Customary international law is determined by the practice of States in tandem with opinio juris: States’ asserted belief that they act in a certain way due to legal permissions or obligations. In apparently seeking to depart from established customary norms, France is placed in a paradoxical position of simultaneously breaking the law and sowing the seeds of a new rule, though the possibility for movement in the law would need to be assessed in relation to how other States around the world respond to the developments. Again, then, the arrest warrant entertains the possibility of momentous change.
There is one more twist in the tale: France does not recognise al-Assad as the legitimate President of Syria, having switched recognition to the Syrian National Coalition in 2012 alongside several other EU Member States. Indeed, the French Foreign Minister earlier this year appeared to outwardly call for his prosecution, denouncing him as “a leader who has been the enemy of his own people for more than 10 years” – an indication that France has no interest in respecting al-Assad’s claimed immunity. The issue will likely fall to be determined by the French courts, which have previously resolved the question of governmental immunities from a de facto perspective, an approach which would require a factual assessment of al-Assad’s status and could therefore effectively (re-)confirm his apparent immunity in this case.
The rousing announcement of an arrest warrant against Bashar al-Assad hides multifaceted legal issues, numerous moving parts in a complex and constantly moving puzzle. Yet one thing is for sure: for the victims of the Ghouta attacks, and of atrocities in Syria generally, the wheels of justice are beginning to turn.
Further Reading
International Court of Justice, Arest Warrant of 1 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, 2002
Ignacio de la Rasilla del Moral, “The Swan Song of Universal Jurisdiction in Spain”, 9 International Criminal Law Review (2009) 777
Mona Mahmood and Martin Chulov, “Syrian eyewitness accounts of alleged chemical weapons attack in Damascus”, The Guardian, 22 August 2013
Medecins sans Frontieres, “Syria: Thousands suffering neurotoxic symptoms treated in hospitals supported by MSF”, 24 August 2013
The White House, Office of the Press Secretary, “Government Assessment of the Syrian Government’s Use of Chemical Weapons on August 21, 2013”, 30 August 2013
Human Rights Watch, “Death by Chemicals: The Syrian Government’s Widespread and Systematic Use of Chemical Weapons”, 1 May 2017
Mark Chadwick, “Justice in Syria: five ways to prosecute international crime”, The Conversation, 10 July 2017
International Criminal Court, Appeals Chamber, “Judgment in the Jordan Referral re Al-Bashir Appeal” in the case of Prosecutor v Omar Hassan Ahmad al-Bashir, 6 May 2019
Margaret E. McGuinness, “Non-recognition and State Immunities: Toward a Functional Theory” in Czapliński and Kleczkowska (eds), Unrecognised Subjects in International Law (Warsaw: Scholar, 2019)
Michael P. Scharf, Milena Sterio and Paul R. Williams, The Syrian Conflict’s Impact on International Law (Cambridge: CUP, 2020)
Malcolm N. Shaw, International Law (9th ed) (Cambridge: CUP, 2021)
Mia Swart, “National courts lead the way in prosecuting Syrian war crimes”, Al-Jazeera, 15 March 2021
UN General Assembly document A/77/10: International Law Commission commentary, draft on Immunity of State Officials from Foreign Criminal Jurisdiction, 31 May 2022
Trial International, Universal Jurisdiction Annual Review 2023
France 24, “Syria's Assad should be put on trial, says French foreign minister”, 23 May 2023
Reuters, “Syria's Kurds to begin trials for IS detainees”, 11 June 2023
Reuters, “France issues arrest warrant for Syria's President Assad”, 15 November 2023
Open Society Justice Initiative, Press Release, “French Magistrates Seek Arrest of Syria's Al-
Assad and Associates for Chemical Weapons Attacks”, 15 November 2023
Madjid Zerrouky, “French arrest warrant for Bachar Al-Assad rewards patient work by Syrian activists”, Le Monde, 16 November 2023
Didier Rebut, “Quelle portée pour le mandat d’arrêt international visant Bachar al-Assad?”, Le Club des Juristes, 17 November 2023
Miranda Lalla, “Vie for the Big Guy: Developing Practice or Déja-Vu?”, Opinio Juris, 27 November 2023
Kristoffer Burck, “The French Arrest Warrant for Assad – Breaking New Ground in the Prosecution of Chemical Weapons Use?”, PRIF Blog, 29 November 2023
Trial International, Universal Jurisdiction Interactive Map (https://ujim.trialinternational.org)
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