What is the essence of the matter
In 2013, the anti-Assad Free Rebel Army took control of the suburbs north and west of Damascus. Government troops could not recapture the lost territories for a long time and decided to use chemical weapons. On August 5, 2013, the military shelled two small towns, Adra and Duma. Because the toxic chemical gas is heavier than air, civilians who came under fire took refuge on rooftops. As a result of the chemical attack on the Duma, more than 400 people, including many women and children, were injured.
Two weeks later, on the morning of August 21, 2013, government forces released more than a dozen chemical munitions containing sarin in the Damascus suburb of Eastern Ghouta. People who escaped from the gas on the roofs of the houses were fired at by the military with mortars. Those who ran down died in agony from sarin. As a result of the attack, more than a thousand people died, and thousands more were injured. The chemical attack on August 21, 2013 is the deadliest in the Syrian conflict and was condemned by the UN Security Council.
Why did France issue an arrest warrant?
France, like some other countries, has an extraterritorial jurisdiction law that allows national prosecutors and courts to investigate international crimes committed abroad. Victims can also provide information about the crime. On March 1, 2021 , three public organizations did this on behalf of the victims of Syrian chemical attacks. They transferred all the evidence to the specialized department for crimes against humanity and war crimes of the High Court of Paris. It was created in 2013. Prosecutors and investigative judges who specialize in cases involving violations of international humanitarian law work there. Currently, the unit is investigating about 160 such cases involving 15 countries.
The French began investigating two chemical attacks in April 2021. The case is conducted by two investigative judges. Officially, they do not comment on the case — this is done by the organizations that represent the victims. Their representatives say: investigators collected dozens of testimonies of victims and witnesses of attacks, photo and video evidence, received declassified intelligence reports and international organizations. It is not known when the investigation will end, but on average it can last 2-3 years. If there is enough evidence, after that the case will be transferred to the Paris Criminal Court.
Parents cry over the body of their child killed in a chemical weapons attack in the Damascus suburb of Eastern Ghouta on August 21, 2013. Bodies of adults and children killed by nerve gas in Eastern Ghouta, August 21, 2013
Getty Images / «Babel'»
What are Assad and his associates suspected of?
The warrants were issued against four people — President Bashar al-Assad, the commander of the 4th Armored Division, Magher al-Assad, the director of the Syrian Research Center (SSRC) branch, General Hassan Abbas, and the liaison officer between the presidential palace and the SSRC, General Bassam al-Hassan Suddi. According to the investigation, all of them participated in a meeting where chemical attacks were planned.
Is it possible to arrest the president based on a warrant from a regular court?
This is the key question. With the other three suspects, everything is simple — France will submit information about them to Interpol, and if one of Assadʼs associates appears in one of the member countries of the organization, there are 195 of them in total, he will be arrested and sent to France for questioning.
With Assad, it is much more difficult — as the president, he has immunity, which protects him from detention and arrest. Prime ministers and foreign ministers have the same immunities. A national (not international) court has tried to overcome such immunity only once: in 2000, Belgian judges issued an arrest warrant for the Congolese foreign minister for serious international crimes. However, Congo appealed this decision to the UN International Court of Justice, Belgium lost and the minister escaped punishment.
Why then, in this case, they did not go the traditional way — through the International Criminal Court, or did not create an international tribunal?
Syria has not signed or ratified the Rome Statute, and therefore is not a member of the International Criminal Court, that is, it cannot consider crimes committed by the Syrian government. The ICC could do this under one condition — if the UN Security Council referred this case to the court. France proposed to do this back in 2014, and 58 countries supported it, while China and Russia vetoed it.
The UN Security Council has repeatedly discussed the crimes of the Syrian government against its own citizens. U.S. Ambassador to the United Nations Nikki Haley holds photos of victims of a chemical attack in Syria during a meeting of the United Nations Security Council at the United Nations Headquarters, April 5, 2017, in New York.
Getty Images / «Babel'»
The same problems with the creation of an international tribunal — this also requires the consent of the Security Council, which is blocked by Russia and China. It is because of this that lawyers often turn to the courts of various European countries in order to quickly bring Syrian high-ranking officials to justice. But these cases never concerned the president of Syria.
That is, the decision of the French court has no prospects?
Not at all. According to the representative of the victims, Jean Sulzer, the logic of the investigating judges in France is somewhat different. They believe that the law has evolved significantly since the Congo decision and that personal immunity should not extend to crimes against humanity, war crimes and genocide. It is also important that the UN Security Council condemned the Assad governmentʼs chemical attacks and called for the perpetrators to be punished.
What happens next?
The decision of the investigative judges, according to Sultzer, may be appealed in the near future — the prosecutor in this case says that he may have a different interpretation of the issues of personal immunity.
In addition, Syria can turn to the International Court of Justice, as representatives of the Congo did in 2001. It is not yet known whether President Assad will agree to this.
Why is it important for Ukraine?
Because it is a precedent. If France proves the legality of the warrant for Assadʼs arrest, it will make it possible to prosecute another dictator in other countries — Putin, as well as Russian Prime Minister and Foreign Minister Sergey Lavrov.
Russia supported the Syrian president in his fight against the protesters, blocked the decision of the UN Security Council, and the presidents of both countries have a good relationship and meet both online and in person. This is an online meeting in 2020. The International Criminal Court issued an arrest warrant for Russian President Putin for the deportation of Ukrainian children.
Getty Images / «Babel'»