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France’s Arrest Warrant against Syrian President Bashar al-Assad: Yerodia All Over Again?

While currently kept under wraps by the Paris prosecutor’s office, reputable news outlets worldwide have reported that France has recently issued arrest warrants against certain Syrian officials for complicity in crimes against humanity and war crimes. Among the arrest warrants issued, one stands out in particular: the arrest warrant for sitting Syrian President Bashar al-Assad over the (alleged) use of banned chemical weapons against civilians in the town of Douma and the district of Eastern Ghouta in August 2013, which resulted in over 1000 deaths. Notably, this is the first instance in which an arrest warrant has been issued by a national court against a sitting Head of State. To consider the possibility of its success from a legal standpoint, it is useful to revisit the law of Head of State immunities and its application in recent history.

In the 2002 Arrest Warrant case, the International Court of Justice was faced with a set of highly similar circumstances: Belgium had issued and circulated an international arrest warrant against Mr. Abdoulaye Yerodia Ndombasi, the at-the-time sitting Congolese Minister of Foreign Affairs, for grave violations of international humanitarian law and crimes against humanity (2002 ICJ Arrest Warrant judgment, para. 13). Although Mr. Yerodia was not a Head of State, the Court considered his status as Minister of Foreign Affairs to be a high-ranking office that, like Heads of State and Heads of Government, entitled him to immunity from foreign prosecution, including the issuance and circulation of arrest warrants (2002 ICJ Arrest Warrant judgment, paras. 51, 70-71). However, the Court made it clear that while immunity-holders may enjoy immunity from foreign national criminal jurisdiction, this does not necessarily mean that they enjoy total impunity (2002 ICJ Arrest Warrant judgment, paras. 60). In fact, an immunity-holder is not free from prosecution in at least three situations: (1) if they are prosecuted by their own State, in which the rule of immunities would not apply; (2) if their immunity is waived by their own State, thereby allowing for foreign national prosecution; or (3) if they are prosecuted by a legitimate international criminal court that has jurisdiction over them (2002 ICJ Arrest Warrant judgment, para. 61). Seeing as the arrest warrant against Mr. Yerodia violated his immunity from foreign prosecution inter alia and Belgium’s prosecution did not fall within the accepted exceptions to the rule, the Court decided that Belgium’s arrest warrant was unlawful under international law (2002 ICJ Arrest Warrant judgment, para. 78(2)).

The Arrest Warrant judgment has since made it difficult for foreign national courts to prosecute immunity-holders who have allegedly committed serious international crimes. Indeed, States that used to have flexible universal jurisdiction laws allowing for the prosecution of any person who has committed international crimes, such as Belgium and Spain, have had to enfeeble their laws for a number of legal and political reasons, including a mass influx of applications against sitting Heads of State. Belgium, in particular, changed its universal jurisdiction law to only apply to its own nationals, allowing for the convenient dismissal of suits filed against President Bush, Prime Minister Ariel Sharon, and Prime Minister Tony Blair to name a few. States have also recently called for the prosecution of President Vladimir Putin for committing the crime of aggression against Ukraine, but, in light of the aforementioned rule on immunities, preferred exploring the possibility of prosecuting him through international tribunals instead of national courts.

This is not to say that national courts have never entertained the possibility of prosecuting Heads of State. The Pinochet saga, for example, essentially ended with the United Kingdom House of Lords saying that Head of State immunities could not preclude prosecution for acts of torture, and the Gaddafi case heard by the French Court of Cassation reached a similar conclusion with respect to certain serious international crimes. Unfortunately, these two cases, which predated the Arrest Warrant judgment, were not treated by the International Court of Justice as evidence of a serious international crimes exception to an immunity-holder’s immunity (2002 ICJ Arrest Warrant judgment, para. 58).

On the basis of the rules laid out above, it appears that France’s arrest warrant against President Bashar al-Assad violates the rule on Head of State immunities and furthermore, that France is unable to rely on the accepted exceptions to the rule. France will therefore either have to demonstrate that (1) the content of the customary rule on Head of State immunities as articulated in the Arrest Warrant judgment has developed to allow for a serious international crimes exception or, perhaps more dangerously, (2) that the Arrest Warrant judgment did not accurately reflect the state of international law in 2002.

On the front of potentially contradicting the jurisprudence of the World Court, the first option is preferable, given that the ICJ will occasionally recognize that the content of customary law has evolved between its decisions. For example, while the ICJ referred to the exclusive economic zone as a “concept” in the 1982 Tunisia/Libya Continental Shelf judgment (1982 ICJ Tunisia/Libya Continental Shelf judgment, para. 100), a profusion of subsequent State practice inspired it with sufficient confidence to refer to the exclusive economic zone as an “institution…part of customary law” in the 1985 Libya/Malta judgment (1985 ICJ Libya/Malta judgment, para. 34). Given this relative flexibility, the difficulty with this approach lies more so with providing actual State practice and corresponding opinio juris on the development of the customary law on Head of State immunities, which, in the view of this author, is either scarce or does not currently support France’s stance on the matter. Nevertheless, it could be that as time goes on, resulting international reactions might signal a departure from the traditional customary rules governing Head of State immunities, which France can cite as State practice to support its position.

The latter approach is also fraught with difficulty, given that the ICJ is widely looked upon as the most authoritative source on international law and that it has, on multiple occasions, “overruled” decisions by other courts on matters of international law. Nevertheless, the Court has indicated that it will be willing to depart from the conclusions reached in its previous decisions where compelling reasons so dictate (2008 ICJ Croatian Genocide judgment, para. 54). Thus, should France be able to ground the legality of its arrest warrant on such reasons, (with reference, perhaps, to Judge Christine van den Wyngaert’s highly persuasive Dissenting Opinion, paras. 24-39), its proceedings against President Bashar al-Assad may survive scrutiny from the international community.

In closing, France’s arrest warrant marks an interesting development in international law, as it appears to contradict the established rules on Head of State immunities as set forth by the International Court of Justice in its 2002 Arrest Warrant judgment. Only time will tell whether the fate of this arrest warrant will follow that of the Belgian arrest warrant issued against Mr. Yerodia in the aforementioned judgment, but this author hopes, given the severity of the crimes committed, that the perpetrators will be brought to justice, irrespective of whether they claim entitlement to immunity.

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Gisela Mathea
Nov 18, 2023

Hi Dylan, what a cool and insightful post! I do have one question, though. You mentioned that the immunity-holder is not free from prosecution in at least three situations. However, in the paragraph of the Arrest Warrant case that you provided, it mentions four situations. Could you elaborate why you chose to leave out the fourth situation? @DJ Andrian

DJ Andrian
DJ Andrian
Nov 18, 2023
Replying to

Hi Keyla,

Thank you for your kind comment!

As for your question, good catch! The Arrest Warrant judgment does mention a fourth situation that I intentionally left out because I figured it might over-complicate the discussion. In short, the fourth situation in which an immunity-holder can be prosecuted is after they cease to hold office, in which case they can be prosecuted for acts committed before or after their period of office as well as private acts committed during their period of office. For these persons, the only acts that remain protected by immunity are so-called "official acts".

The reason why I chose to omit this dictum is because it only applies to immunity-holders enjoying immunity ratione materiae, such as…

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