Fadel Abdulghany
The pursuit of accountability for mass atrocities committed during the Syrian conflict has faced significant obstacles within the structure of the international legal system, particularly when the accused holds, or has previously held, the highest office in the land.
In this context, the protracted French legal campaign against Bashar al-Assad, the fugitive Syrian president, stands out as a major development.
This campaign evolved from preliminary investigative complaints to direct judicial proceedings, culminating in the issuance of international arrest warrants that challenge, both in practice and in theory, the long-established principles of sovereign immunity.
The collapse of the Assad regime at the end of 2024 marked a crucial turning point. The intersection of Assad’s loss of personal immunity after his overthrow and escape to Russia, along with significant jurisprudential developments in the French judiciary, created unprecedented conditions for holding a former head of state accountable for crimes against humanity.
The evolution of legal proceedings: from investigative complaints to direct prosecution
The legal campaign against Bashar al-Assad has followed a gradual path characterized by procedural setbacks and gradual strategic progress. The involvement of the French judiciary in dealing with the atrocities committed in Syria began through investigative complaints filed by survivors and civil society organizations, which led to the opening of preliminary investigations into specific incidents, most notably Assad’s chemical weapons attacks on Eastern Ghouta.
These initial proceedings were constrained by the principle of personal immunity, which protects heads of state from foreign criminal jurisdiction under customary international law.
Despite these setbacks, the issuance of the arrest warrant in 2023 represented an ambitious attempt to breach Assad’s immunity while he was still in power.
However, this attempt encountered a predictable obstacle when the case reached France’s highest court. The Court of Cassation overturned the arrest warrant, adhering strictly to the rules of customary international law concerning the immunity of heads of state.
The court explicitly rejected arguments that international crimes constitute an exception to the personal immunity enjoyed by current leaders, thus reaffirming the traditional legal framework that prioritizes the stability of international relations over individual criminal prosecution.
The fall of the Assad regime at the end of 2024 fundamentally altered this legal equation. Assad’s subsequent flight to Russia resulted in the loss of his personal immunity, as protection is linked to the office, not the individual. The immediate consequence was the issuance of the “October 2025 warrant,” the third and most significant legal action against the former president. This warrant benefited from the removal of procedural obstacles that had thwarted previous efforts, making it an enforceable legal instrument and transforming the French proceedings from a symbolic condemnation into a substantive prosecution with real legal and judicial effect.
Dealing with the principle of immunity: personal and functional
The legal viability of the October 2025 memorandum depends on the distinction between two forms of sovereign immunity and clarifying them constitutes one of the most important jurisprudential contributions produced by the French procedures. Understanding this distinction is essential to grasping the constraints that have hampered accountability efforts for decades, as well as to comprehend the shift that ultimately made prosecution possible.
Personal immunity protects certain high-ranking state officials, including heads of state, heads of government, and foreign ministers, from foreign criminal jurisdiction for the duration of their term in office.
This immunity is absolute in scope, extending to all acts regardless of their nature, and is based primarily on the need to enable the state to conduct its foreign relations without disruption that might arise from criminal prosecutions in foreign courts.
The Court of Cassation’s annulment of the 2023 warrant exemplified the strict application of this principle. The court ruled that Assad’s status as president at the time the warrant was issued precluded the exercise of French jurisdiction, regardless of the seriousness of the alleged crimes. This legal shield was only removed when his presidency effectively ended, at which point he became liable to prosecution for his past actions.
With the loss of personal immunity due to Assad’s removal from office, the focus automatically shifted to the second category of protection: functional or substantive immunity. This type of immunity pertains to official acts performed in the name of the state, not to the individual performing them. Under this principle, former officials enjoy protection for actions they took in their official capacity, as these actions are attributed to the state itself, not to the individual.
The decision issued in July 2025, concerning the former governor of the Central Bank of Syria, Adib Mayaleh, set a legal precedent that directly affected the course of Assad’s trial; the French Supreme Court ruled in that case that it is not permissible to invoke functional immunity in the face of international crimes, including crimes related to chemical warfare.
The Mayaleh precedent has practically established that certain categories of conduct, specifically those that constitute heinous crimes under international law, cannot be characterized as legitimate state functions deserving of protection by immunity.
Applying this principle to the trial of Assad has a clear consequence: the former president has now become an ordinary citizen, unable to take refuge in functional immunity from his official actions of ordering chemical attacks, which, according to the logic of a biased trial, are acts divorced from the legitimate functions of the state, and therefore no defense based on immunity remains available to him.
Judicial Frameworks and Trials in Absentia
French procedures are based on a robust dual jurisdiction framework, enabling national courts to act as agents of international justice when domestic or international courts are unable to function. This framework comprises two complementary foundations for asserting jurisdiction over crimes committed outside French territory.
- The first pillar is extraterritorial jurisdiction based on the presence of French/Syrian victims, known in international law as the principle of “negative personality.”
This principle allows France to prosecute crimes committed abroad when the victims are French citizens. The large number of dual nationals within the Syrian communities in France provides a solid basis for such a claim, as it directly links crimes committed in Syria to the French legal system through the bond of nationality.
- The second pillar is universal jurisdiction, which extends French jurisdiction to crimes against humanity and war crimes, regardless of where they were committed or the nationality of the perpetrator or victim.
While the exercise of universal jurisdiction in France is subject to a number of conditions, such as the requirement that the suspect be habitually resident in France in some cases, the specific nature of chemical weapons crimes as crimes against humanity allows for a more flexible application of this jurisdiction.
This flexible approach ensures that the most serious violations of international humanitarian law do not escape accountability under the pretext of complications related to presence or residence.
A distinctive feature of the French legal system, which has gained strategic importance in the Assad trial proceedings, is the allowance of trials in absentia. Unlike the International Criminal Court, which requires the accused to be present at trial sessions, French law permits proceedings to continue even in the accused’s absence.
This procedural feature transforms the arrest warrant issued in October 2025 from a mere symbolic step into a mechanism for establishing a legal record. Even if Russia refuses to extradite the accused—which is expected—the trial scheduled for 2027 will allow for the presentation of evidence, the hearing of witnesses, and a public verdict.
In this way, a trial in absentia not only performs the direct function of establishing criminal responsibility, but also plays a broader role in documenting atrocities through reliable judicial findings that can be used in other contexts.
Implementation Challenges and the Chain of Command Strategy
Interpol’s issuance of red notices based on the French arrest warrant activates them in 191 member countries, creating a global enforcement mechanism that, in theory, allows for Assad’s arrest and extradition wherever he is found.
However, his refuge in Russia presents a significant obstacle to immediate implementation in practice; Moscow possesses both the political will and the legal justifications—whether framed as humanitarian protection or based on the remnants of supposed diplomatic immunity—to refuse his extradition.
The resulting situation has been described as a “golden cage effect”; while the likelihood of actual arrest seems unlikely in the near term, the arrest warrant restricts Assad’s ability to travel to any Interpol member state and limits his access to financial systems in jurisdictions that adhere to their international legal obligations. Thus, Assad is effectively confined within Russian territory, or in a limited number of countries willing to ignore international arrest warrants (often authoritarian states loyal to Russia), which is an important constraint even if it does not amount to physical detention.
Recognizing the limitations of prosecuting only the supreme commander, France’s war crimes unit has adopted what can be described as a “structural investigation” strategy. By systematically mapping the entire chain of command, from the Fourth Division, which played a pivotal role in military operations, to the Scientific Studies and Research Center (SSRC), which oversaw the development of the chemical weapons program, prosecutors are building cases against mid-level commanders who may be more likely to be arrested than Assad himself.
This comprehensive approach to accountability ensures the legal dismantling of the regime’s criminal infrastructure, even if its top leadership remains temporarily out of reach. This strategy reflects a sophisticated understanding of the requirements of justice in the context of mass atrocities, focusing on the system of state crimes as a whole rather than solely on high-ranking figures.
Conclusion
The French proceedings against Bashar al-Assad represent a significant shift in the application of the principle of universal jurisdiction to former heads of state. By overcoming what could be described as the “immunity gap” through the convergence of two key factors—the collapse of the Assad regime and the jurisprudential development embodied in the Mayaleh ruling on functional immunity—the French courts have established a precedent for prosecuting deposed dictators.
The trial expected in 2027 will perform multiple functions at once; its primary importance lies in providing a judicial platform that allows some measure of justice for Assad’s victims, and on a broader level, it will serve as a test of the effectiveness of national courts in enforcing the rules of international humanitarian law in an era in which international mechanisms remain hostage to the policies of the great powers.
Thus, the French campaign is not limited to being a national judicial practice but contributes to shaping the evolving structure of international criminal justice, proving that the principle of accountability for the most serious crimes can find its embodiment through national legal systems when they are equipped with the appropriate judicial frameworks and the necessary political will.
It remains to be seen whether this model will prove replicable in other contexts, but the precedent set by the French measures represents an important development in the global trend towards holding perpetrators of heinous crimes accountable.
