A French Prosecutor's office asked for the opinion of a higher court on the validity of the arrest warrant against al-Assad before proceeding to trial.
The French National Anti-Terrorism Prosecutor's Office (PNAT) asked the Paris Court of Appeals on 21 December to rule on the validity of a recent arrest warrant issued against Syrian President Bashar al-Assad.
French courts gave the arrest warrant against al-Assad, his brother Maher al-Assad and two other senior Syrian officials on 15 November for their role in the 2013 chemical weapons attacks in eastern Ghouta and Douma, which killed more than 1,000 people.
The PNAT has since said that the validity of the Syrian President's arrest warrant needs to be determined, as sitting heads of state typically enjoy personal immunity in national courts.
"The issuance of this warrant introduces an exception to the principle of personal immunity enjoyed by the president … in office of each sovereign state," the PNAT told AFP.
The prosecutor's office said it would need a higher court – the Paris Court of Appeals – to rule on the warrant's legality before it could proceed with a trial against al-Assad.
Sitting heads of state have previously been prosecuted by international legal bodies, such as the International Criminal Court, not by national jurisdictions.
"The arrest warrant and its international circulation constitute violations of France's legal obligation as it fails to respect the immunity from criminal jurisdiction and the inviolability enjoyed under international law," Roger Lu Phillips, the legal director of Syria Justice and Accountability Centre, told The New Arab.
European courts have previously prosecuted former and current Syrian officials for complicity in crimes against humanity – most notably, Anwar Raslan in Germany, the head of a notorious Syrian prison branch who oversaw torture and sexual crimes.
Raslan and other Syrian officials were prosecuted under the principle of universal jurisdiction, which says that national courts can prosecute for certain crimes which violate international moral norms, such as torture.
The Syrian Network for Human Rights said that the Syrian regime, headed by al-Assad, carried out 217 chemical weapons attacks between 2012 and 2023.
He is also accused of overseeing a brutal crackdown against peaceful protesters during the Syrian revolution in 2011 and targeting civilians throughout the twelve-year-long Syrian civil war.
Universal jurisdiction, however, does not currently extend to sitting heads of state.
The warrant issued against Bashar al-Assad is the first of its kind in France, which has never before ordered the arrest of a sitting head of state. No relevant legal precedent or existing case law would apply in this instance.
Syrian civil society activists have said that the arrest warrant is an important step forward for accountability and that they hope it could create a legal precedent for prosecuting sitting heads of state.
"As a legal precedent, it may open the door for other national jurisdictions to prosecute Assad, and for other heads of states who committed international crimes to be held accountable," Mansour Omari, a Syrian human rights defender and legal researcher who was detained by the Assad regime, told TNA.
Syrian legal advocates expressed disappointment with the PNAT's referral of the case to the court of appeals and said that they hope the principle of personal immunity will not shield al-Assad from prosecution.
Lu, however, said that the idea of creating a new principle under international law that excludes personal immunity for atrocity crimes is "not realistic."
"Unfortunately, I think this is not good for managing expectations of the victims as they will be confused when the arrest warrant fails either because French higher courts quash it or it is not respected by other states where Assad travels," Lu explained.
