Half Justice: The Al-Assad Case and the limits of immunities in the face of international crimes
In 2011, the brutal repression of peaceful demonstrations by the Syrian regime marked the beginning of an armed conflict that has left a deep scar on contemporary history. Two years later, in 2013, the situation escalated when the UN Mission to Investigate the Use of Chemical Weapons in Syria confirmed the use of sarin gas on multiple occasions. One of the most atrocious episodes occurred in August of that year in Eastern Ghouta, a suburb of Damascus, where a well-coordinated chemical attack indiscriminately targeted civilian areas, killing approximately 1,400 people and injuring thousands. The evidence gathered documented one of the most chilling crimes of the 21st century.
The pursuit of justice began years later, on March 1, 2021, when the Syrian Center for Media and Freedom of Expression, together with individual victims—one of them of French nationality—filed a complaint before French courts. They were admitted as civil parties, and in April of that same year, a judicial investigation was opened for crimes against humanity and war crimes. Later on, Open Society Justice Initiative, Syrian Archive, and Civil Rights Defenders also joined the case as civil parties. Between 2021 and 2022, several witnesses and victims testified before investigating judges.
On November 14, 2023, the investigation took a pivotal turn: four international arrest warrants were issued. These concerned then-President Bashar al-Assad, his brother Maher al-Assad (de facto leader of the 4th Armored Division), General Ghassan Abbas (then Director of the SSRC research center), and General Bassam al-Hassan (presidential advisor and liaison with the SSRC). All were accused of complicity in crimes against humanity and war crimes, due to their alleged involvement in the chemical weapons attacks.
However, on December 21, 2023, the Public Prosecutor appealed the arrest warrant against Bashar al-Assad, arguing that he enjoyed personal immunity due to his position as head of state. The matter was referred to the Investigating Chamber of the Paris Court of Appeal, which in June 2024 sided with the reasoning of the civil parties and upheld the arrest warrant against al-Assad. The Prosecutor, in disagreement, brought the case before the French Supreme Court (Cour de Cassation).
Meanwhile, on December 8, 2024, an unexpected development occurred: Bashar al-Assad’s government was overthrown during an offensive led by the group Hayat Tahrir al-Sham. On the same day, the former president fled Syria and sought asylum in Russia.
In July 2025, the Supreme Court delivered its long-awaited decision.
The ruling does not address al-Assad’s direct responsibility in the chemical attacks—a responsibility acknowledged by both the investigating judges and the Prosecutor—but focuses exclusively on whether French courts could issue an arrest warrant while he was still serving as head of state.
The issue at stake is immunities. International law typically distinguishes between:
- Functional immunity (ratione materiae), which protects state officials for acts carried out in the exercise of their official duties. It covers acts performed in an official capacity on behalf of the state and does not extend to private acts. Because it is tied to the nature of the act rather than the person, this immunity is permanent and remains even after the individual leaves office.
- Personal immunity (ratione personae), which protects certain high-ranking officials—such as heads of state, heads of government, and foreign ministers—during their term in office, regardless of whether the acts in question were official or private. This immunity ensures they can carry out their functions without external interference and helps guarantee the peaceful conduct of international relations. It is absolute but temporary: it ceases to apply once the individual leaves office.
The Court took an important step by recognizing, for the first time, that foreign state agents—including former heads of state—cannot invoke functional immunity (ratione materiae) to avoid prosecution for war crimes or crimes against humanity. This marks a major jurisprudential shift that aligns with the prevailing interpretation of customary international law: acts that violate jus cogens norms cannot be shielded by immunity, regardless of the official position of the perpetrator.
However, the Court also reaffirmed that personal immunity (ratione personae) remains inviolable for sitting heads of state, heads of government, and foreign ministers—even when they are accused of atrocities. Therefore, while Bashar al-Assad was still serving as president, he could not be subject to an arrest warrant issued by a foreign national court, even for war crimes.
Despite revoking the arrest warrant against al-Assad on the grounds of personal immunity during his mandate, the Court made it clear that now that he is no longer in office, a new valid arrest warrant may be issued. The judicial case, therefore, remains open and can proceed.
While this decision represents a significant development in French jurisprudence—marking the first time the country’s highest court has recognized that foreign state agents, including former heads of state, may be prosecuted for international crimes—it also reaffirms a substantial limitation: sitting heads of state still enjoy full personal immunity, even when responsible for mass atrocities. This marks a missed historic opportunity to strengthen the principle of accountability in international criminal law.
The gravity of the crimes and the suffering of the victims are not diminished by this ruling. Nor is the strength of the evidence in question. What is lost is the opportunity to send a clear and unequivocal message to victims and survivors: that even the most powerful state actors must be held accountable before the law.
At a crucial moment in the global fight against impunity, the French Court’s decision could have reinforced the principle that the gravest crimes must not go unpunished, regardless of the position held by the perpetrator. Instead, the decision leaves a bittersweet impression: it recognizes important legal advances, yet also exposes the persistent limitations of international law when confronting figures of great political power.
Still, there is reason for hope. The Court has recognized an exception to functional immunity in matters of international crimes, paving the way for the investigation against Bashar al-Assad to move forward. The possibility of issuing a new arrest warrant is on the table, and the fight for accountability is far from over. In the case of the sarin gas attacks of August 2013, justice may still prevail.
Alessia Schiavon, FIBGAR Director
