Q&A on the 4 July 2025 hearing before the Plenary Assembly of the French Supreme Court on functional immunities (Adib Mayaleh)
1. What are the facts behind the case ?
Adib Mayaleh (André Mayard) is a Franco-Syrian citizen and the former governor of the Syrian Central Bank between 2005 and July 2016, when he left his position to become the Syrian Minister of Economy (position he held until April 2017).
On 8 December 2016, French authorities opened a preliminary investigation into Adib Mayaleh’s alleged role in the economic and financial support he brought to the Syrian regime in the context of his functions as governor of the Syrian Central Bank, an entity under sanctions from the European Union since 2011.
On 5 December 2017, a judicial investigation was opened and an investigating judge was appointed. Several investigative acts were carried out.
On 16 December 2022, Adib Mayaleh was arrested on French soil, upon his arrival at the airport.
On 20 December 2022, he was indicted by the investigating judges of the Paris War Crimes Unit on the charges of complicity in crimes against humanity and war crimes, laundering of the proceeds of crimes against humanity and war crimes, and participation in a group formed to prepare crimes against humanity, and placed under judicial control.
On 20 June 2023, Adib Mayaleh appealed his indictment and requested its cancellation on the basis of the alleged functional immunity he benefited from.
On 26 January 2024, the International Federation for Human Rights and its Syrian member organization, the Syrian Center for Media and Freedom of Expression, joined the case as civil parties.
NB : Adib Mayaleh was placed under the status of assisted witness in May 2024.
2. What was the decision of the Court of Appeal on the question of functional immunities in the case of international crimes ?
On 5 June 2024, the Investigating Chamber of the Court of Appeal followed the arguments of the civil parties and found that “international crimes cannot be covered by the principle of immunity and allow impunity for their perpetrators”.
The Court acknowledged the engagement of the international community in the repression of war crimes and crimes against humanity and their involvement in the fight against impunity for these crimes. It recognized the evolution of States’ practice regarding immunities for international crimes.
It also referred to the recent work issued by the International Law Commission on the question of functional immunities, and its conclusions to the inapplicability of such immunities in the case of international crimes.
Thus, the Court found that Adib Mayaleh could not invoke functional immunity in this case.
The Defense appealed this decision before the French Supreme Court. The hearing will be held on 4 July 2025.
3. What is the other case examined by the Plenary Assembly of the French Supreme Court on the same day ?
On 4 July 2025, the French Supreme Court will also examine another case that raises fundamental questions on immunities : the chemical weapons attack case against Bachar al-Assad, on the question of personal immunity.
Both cases will be examined jointly.
The Chemical weapons attacks case is an investigation into two chemical attacks perpetrated in Syria in August 2013. The case was opened before the French War Crimes Unit in April 2021, following a complaint filed by a Franco-Syrian victim alongside several organizations.
On 13 November 2023, the investigating judges issued arrest warrants against four high Syrian officials, including the then-President Bashar al-Assad.
However, on 23 December 2023, the National Anti-Terrorism Prosecutor’s Office (PNAT) alleged the nullity of the arrest warrant issued against the then-sitting head of State Bashar al-Assad, arguing it was contrary to the personal immunity he benefited from, and referred the case to the Investigating Chamber of the Paris Court of Appeal.
On 26 June 2024, the Paris Court of Appeal confirmed the arrest warrant issued against Bashar al-Assad. It acknowledged several limits to personal immunity due to both the nature of the offences being investigated (crimes against humanity and war crimes) and the conduct of the (then) Head of State in the present case.
Moreover, it emphasized that the international community has upheld the values of humanity over personal immunity, which shall not equate to impunity, and recalled that in the present case, the United Nations Security Council has called for the prosecution of those responsible for the chemical attacks, without ever mentioning any immunities that could prevent prosecution.
The General Prosecutor referred the case to the French Supreme Court.
4. What do functional and personal immunities cover ?
Functional immunity is generally conferred to a state agent in respect of acts performed in the course of his/her duties and which fall within the sovereignty of the State concerned. Acts performed in a private capacity and simple acts of management are thus excluded from immunity.
Personal immunity is commonly granted to the Head of State, Chief of Government and Minister of Foreign Affairs during their time in office. It covers all acts performed during that time, including those performed in a private capacity.
Neither functional nor personal immunities are governed by French law or international conventions. They are the result of customary international law, i.e. rules that form a general practice accepted as law by the States.
5. What questions will the French Supreme Court examine ?
On 4 July 2025, the Plenary Assembly of the French Supreme Court will examine several legal questions :
On functional immunity :
· Can functional immunity be set aside when the crimes prosecuted constitute crimes against humanity or war crimes?
On personal immunity :
· Can the absence of recognition of the status of Head of State by the prosecuting State and others have consequences on personal immunity?
· Can such immunity be waived when the alleged acts constitute crimes against humanity or war crimes?
· Should the Court examine the alleged personal immunity of Bachar al-Assad at the time of issuance of the arrest warrant or at the time of the hearing (since his regime has fallen since) ?
Should the Supreme Court rule that Bachar al-Assad cannot benefit from personal immunity, it will then have to determine whether he could benefit from functional immunity despite the charges of international crimes.
6. Why will the French Supreme Court examine this question in its highest composition (Plenary Assembly) ?
The Plenary Assembly is the highest and the most solemn composition of the Court. It is composed of 19 judges :
– The first President of the Supreme Court
– Six Presidents of Chambers of the Supreme Court
– Six Deans of Chambers of the Supreme Court
– One Counsellor per Chamber of the Supreme Court
The Supreme Court sits in its Plenary Assembly when the question it has to answer is of particular complexity or importance.
The Adib Mayaleh case and the Chemical Weapons Attacks case raise extremely important questions for the prosecution of international crimes. That is why the Supreme Court has decided to examine both cases jointly in its Plenary Assembly composition.
7. What impact could the Supreme Court’s decision on functional immunities have on other ongoing cases ?
Regarding functional immunities, if the Supreme Court does not follow the position of the Investigating Chamber of the Court of Appeal in the Adib Mayaleh case, and rules that functional immunities do apply in cases of international crimes, this could impact a large number of the proceedings opened before the French War Crimes Unit.
Indeed, many of the individuals targeted by these proceedings and accused of international crimes have acted within the scope of their State functions, from simple soldiers to high-ranking officials.
Thus, should the Supreme Court rule that all individuals acting within their functions should be immune from prosecution, irrespective of the international crimes committed, these proceedings would be jeopardized.
8. Is it the first time the French Supreme Court will examine the question of immunities ?
The French Supreme Court has already examined the question of immunities on several occasions, but has never ruled out their applicability.
For instance, on 16 October 2018, the Supreme court ruled in a case pertaining to accusations of pollution and endangerment of individuals against high-ranking Senegalese officials in the aftermath of the 1999 Joola ship sinking. The Court ruled that the individuals who were accused of perpetrating such acts were covered by immunity as they were acting within the scope of their state functions and their acts fall under the sovereignty of the state.
On 13 January 2021, in another case concerning acts of torture perpetrated in the United States military prison of Guantanamo Bay, the Supreme Court adopted the same position.
Despite these decisions, the French Supreme Court has always acknowledged that exceptions to immunities do exist and that such exceptions are to be determined by the international community.
In light of the recent work of the International Law Commission on the question of functional immunities and the recent significant jurisprudential developments in several countries regarding functional immunities in the case of international crimes (see question 10.), the French Supreme Court may very well change its position and acknowledge that functional immunities can no longer shield individuals from prosecution for international crimes.
9. What is the position of French lower courts on the question of functional immunities ?
In addition to the Investigating Chamber of the Court of Appeal in the Adib Mayaleh case, other French lower courts have already handed down several decisions regarding functional immunities.
On 24 May 2024, the Paris Criminal Court found Ali Mamlouk, Jamil Hassan and Abdel Salam Mahmoud, three high Syrian officials, guilty in absentia of complicity in crimes against humanity and war crimes. The Court ruled out the applicability of functional immunities in this case.
Moreover, in total, the investigating judges of the French War Crimes Unit have issued 13 arrest warrants against high-ranking Syrian officials, ruling out the applicability of functional immunity in these cases in light of the charges of war crimes and crimes against humanity held against the accused.
10. Is the French Supreme Court the first European national court to examine the question of functional immunities ?
Several European national courts have examined the question of the criminal liability of state agents in the case of international crimes and have ruled out the applicability of functional immunities in such case.
Amongst other examples, in July 2022, Swedish courts have found Hamid Nouri, a former Iranian high official, guilty of war crimes, without recognizing any functional immunity.
On 13 January 2022, the German court of Coblenz found Anwar Raslan, a former high official of the Syrian General Intelligence Services, guilty of crimes against humanity and torture, and sentenced him to life imprisonment, without granting him the benefit of functional immunity despite his high position at the time.
On 28 August 2023, the Swiss Federal Criminal Tribunal has sent Khaled Nezzar, a former Algerian Minister of Defense to trial for war crimes and crimes against humanity, deeming he could not benefit from functional immunity given the nature of the crimes he was charged with. Khaled Nezzar passed away before his trial.
On 15 May 2024, the Swiss Federal Court of Bellizona found Ousman Sonko, former Gambian Minister of Interior, guilty of crimes against humanity and convicted him to 20 years of imprisonment.
11. How to attend the hearing ?
The hearing will take place on 4 July 2025, at 9.30 am at the French Supreme Court. It will be public.
The hearing will also be broadcast at 2:00 pm on the website of the French Supreme Court.
For onsite attendance, registration is required. It can be done through this link. It is recommended to arrive 45 minutes in advance to the public entrance at 8 boulevard du palais, 75001 Paris.
For online attendance, registration for the live stream can be made through this link.
