1. What is the case about?

An investigation into two chemical attacks perpetrated in August 2013 in Syria was opened in April 2021 before the French Specialized Unit for Crimes against Humanity and War Crimes of the Paris Judicial Court. Two investigating judges (juges d’instruction) are looking into the Syrian government’s alleged responsibility for the use of chemical weapons during the conflict as part of a pattern of deliberate, widespread and systematic attacks against civilians in areas held by opposition forces. The city of Douma and the Eastern Ghouta region -where the attacks were committed – were under the control of the opposition at the time.

On August 5, 2013, the Syrian government allegedly targeted two neighbouring towns in the eastern suburbs of the Syrian capital. Chemical weapons first hit the industrial town of Adra at approximately 1:00 AM, and then chemical weapons hit the larger city of Douma at approximately 5:00 AM. Civilians in Douma sought shelter on rooftops of buildings to avoid inhaling the toxic chemicals, which are heavier than air and tend to remain closer to the ground. Testimonies from survivors and doctors recall patients struggling to breathe and suffocating because of chemical exposure. Hospitals in Douma were rapidly overwhelmed with casualties. The chemical weapons attack on Douma injured more than 400 individuals, including many women and children. The chemical attacks on Douma and the neighbouring town of Adra on August 5, 2013, constituted the largest chemical weapons attack in Syria at the time, and foreshadowed the devastation that would follow in Eastern Ghouta two weeks later.

In the early hours of August 21, 2013, more than a dozen chemical rockets loaded with sarin, a highly lethal nerve agent, struck the neighbourhoods of Ein Terma and Zamalka in Eastern Ghouta, near Damascus. When terrorised families scrambled in the middle of the night to reach their rooftops to avoid exposure to sarin, they were hit by mortar fire and other shelling by Syrian government forces. This forced them to flee from the rooftops to basements, where exposure to sarin killed many children, women, and men. First responders and medical personnel were also harmed as they tried to rescue victims. Attacks on nearby medical facilities were carried out to coincide with the chemical attacks, which severely limited the emergency medical response. The chemical attacks resulted in more than a thousand deaths and thousands of serious injuries.  The August 21, 2013, chemical attack is the deadliest committed during the Syrian conflict and has been widely condemned by the international community. 

2. What are chemical weapons and how is the Syrian government involved?  

The Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on their Destruction (the Chemical Weapons Convention, or CWC), which entered into force in April 1997, defines chemical weapons as “toxic chemicals and their precursor as well as munitions and devices, specifically designed to cause death or other harm through the toxic properties of those toxic chemicals”. 

Sarin is specifically classified as a Schedule 1 chemical under the Chemical Weapons Convention, which includes chemicals that have few, if any, uses outside of chemical warfare. Sarin is a nerve agent used to kill civilian populations.

The Syrian government had admitted to possessing chemical weapons as early as July 2012. And, under diplomatic pressure in response to the attacks at Eastern Ghouta, the Syrian government acceded to the Chemical Weapons Convention in October 2013.

At the heart of Syria’s chemical weapons program lies the Scientific Studies and Research Center (SSRC), a Syrian government program responsible for the development and production of conventional and non-conventional weapons and delivery systems, including chemical weapons and the munitions that carried them.

The United Nations Mission to Investigate Allegations of the Use of Chemical Weapons in the Syrian Arab Republic, established by the Secretary-General on 21 March 2013 (UN Mission), was present in Syria at the time of the attack, visited and took samples from some of the attack sites, and found “clear and convincing” evidence that sarin was used in the Eastern Ghouta attack in August 2013. 

Following the chemical attacks on Eastern Ghouta on August 21, 2013, and Syria’s accession to the Chemical Weapons Convention, the Organization for the Prohibition of Chemical Weapons (OPCW) adopted procedures for the destruction of Syria’s chemical weapons program. The decision was endorsed by the United Nations Security Council in Resolution 2118 taken the same year but was not followed by the Syrian government.

In addition to the UN Mission, the Joint Investigative Mechanism (JIM) of the United Nations and the Organisation for the Prohibition of Chemical Weapons (OPCW), established in 2015, identified the Syrian government as responsible for multiple chemical attacks. In several reports, the JIM concluded that the Syrian government was responsible for the use of chlorine and sarin in different attacks during the conflict. 

Subsequent investigations by the OPCW’s Independent Investigation Team (IIT) determined that specific Syrian officials were involved in sarin attacks in 2017, and that the sarin used in the Eastern Ghouta attack and subsequent sarin attacks had the same chemical signatures indicating they all came from Syrian government production facilities.

3. What is the status of the case? 

In April 2021, following the filing of the complaint and civil party applications, an investigation was officially opened, and two investigating judges were appointed. The original complaint and supporting evidence were developed by the Syrian Center for Media and Freedom of Expression (SCM), Syrian Archive (a program of the NGO Mnemonic), and Open Society Justice Initiative, which along with individual victims, joined the investigation as civil parties. Civil Rights Defenders (CRD), an NGO partner in the project, also joined as a civil party.

Dozens of testimonies from victims and witnesses of the attacks and experts- have been collected. Hundreds of pieces of documentary evidence have been filed: declassified intelligence reports, contributions from international organisations, analysis of open-source information as well as photos and videos that support the alleged responsibility of the Syrian government in carrying out these attacks.

The volume and detail of the evidence convinced the judges that there is serious or corroborating evidence making it likely that Bashar al-Assad, President of the Syrian Arab Republic and head of the armed forces, Maher al-Assad, de facto leader of the 4th Armoured Division, General Ghassan Abbas, director of Branch 450 of the SSRC, and General Bassam al-Hassan, Presidential Advisor for Strategic Affairs and liaison officer between the Presidential Palace and the SSRC, took part in the planning and execution of these attacks and bear individual criminal responsibility for the crimes.  

French law stipulates that an arrest warrant may be issued if there is serious or consistent evidence making it likely that this person could have participated in the commission of an offence. Furthermore, the person must be a fugitive or reside outside of France and be accused of an offence punished by imprisonment. 

The investigating judges therefore determined that the proper response to the victims and the evidence presented was the issuance of international arrest warrants against the identified individuals for complicity in crimes against humanity and war crimes. 

In the French judicial system, an arrest warrant means that the investigative judge gives an order to law enforcement to find and bring the cited person before him or her.

4. Why has there been a hearing before the Investigating Chamber?

On December 23, 2023, the National Anti-Terrorism Prosecutor’s Office (PNAT) referred the case to the Investigating Chamber of the Paris Court of Appeals, raising the nullity of the arrest warrant issued against Bashar al-Assad. 

The Prosecutor’s Office stated to the Agence France Presse that the arrest warrant against Bashar                          al-Assad “does not correspond to the legal analysis of the National Anti-Terrorism Prosecutor’s Office on the immunity rationae personae enjoyed by Heads of State“.

The challenge brought by the Prosecutor’s office has been heard on May 15^th before the Investigating Chamber in a closed hearing, given the secrecy of the investigation. 

The Investigating Chamber will have to rule on the legality of the arrest warrant and whether to withdraw it or not. It will render its decision on June 26^th.

5. What about the other three arrest warrants?

The Prosecutor’s Office is not challenging the other three arrest warrants against Maher al-Assad, Ghassan Abbas and Bassam al-Hassan, thus considering that there are exceptions to the principle of functional immunity when international crimes are allegedly committed. 

6.  What are the issues at stake? 

The decision will determine the scope of the principle of personal immunity and whether Bashar al-Assad can benefit from it. 

The decision by the Investigating Chamber has the potential to be a landmark for accountability for the gravest crimes and a major step for the victims of these attacks.

By issuing the arrest warrant, the investigating judges considered that Bashar al-Assad could not claim any form of immunity from prosecution.

Their decision to issue arrest warrants emphasizes that those responsible for such grave crimes need to be held accountable and that there can be no impunity for these crimes.

In two other cases relating to the Syrian conflict, the Prosecutor’s Office has already recognized that the alleged commission of international crimes must be considered as an exception to the principle of functional immunities of State representatives, resulting in the issuance of seven arrest warrants against senior Syrian officials. 

The exception to functional immunities for international crimes has been confirmed in recent rulings by French courts: on May 24^th, the Paris assize court sentenced three Syrian officials to life imprisonment for crimes against humanity, thus rejecting their immunity in cases of international crimes, while on June 5^th, the Paris Court of Appeal rejected the functional immunity of the former Syrian Central Bank Governor, who is under investigation for complicity in crimes against humanity and war crimes.

It is as a logical extension of these landmark decisions that the investigating judges recognized, by issuing an arrest warrant against Bashar al-Assad, that personal immunity shall not impede access to justice for the French and Syrian victims of these attacks, admitted as civil parties.

Functional or personal immunity of State representatives is a matter of practice and is not governed by any international convention, except for diplomatic and consular agents: it is therefore up to domestic jurisdictions – whose practice constitutes customary international law – to set its rules.

Yet, for more than twenty years, international and national case law has gradually been evolving, allowing immunities to be waived in cases of prosecution for genocide, crimes against humanity and war crimes, based on customary international law which has enshrined the principle of criminal responsibility of perpetrators of international crimes. 

Moreover, the use of chemical weapons is regarded in international law as an absolute prohibition: a crime for which there can be no immunity for any person, regardless of their political status (this concept is known in legal terms as a “peremptory” prohibition, or by the Latin term jus cogens).

7. When will the Investigating Chamber render its decision?

The Investigative Chamber will render its decision on June 26^th.

8. Can the decision from the Investigating Chamber be challenged?

The decision from the Investigating Chamber can be appealed before the Court of cassation within five days, by all parties to the case, if it contains an error of law.

9.  If the international arrest warrant is confirmed, could it lead to a trial? 

Under French case law, if an individual who is subject to an arrest warrant resides abroad and could not be arrested, the issuance of an arrest warrant gives way to his indictment in front of a court. 

Therefore, they could be tried in absentia if the court determines that it is in the interests of the administration of justice, the accused has been notified of the proceedings and has declined to exercise their right to be present. If convicted, the accused person has the possibility to challenge the conviction and request a new trial.  

10. What is a judicial investigation (“instruction” or “information judiciaire” in French) and how long can it last? 

In the French procedural system, there are two types of investigations: 

• Preliminary investigations (“enquêtes préliminaires”): they are conducted by police officers under the supervision of a Prosecutor;
• Judicial investigations (“instruction” or “information judiciaire”): they are conducted by an investigating judge and can be opened by the Prosecutor at the end of a preliminary investigation, or through the filing of a civil party complaint by victims and/or NGOs.

During the judicial investigation, all parties (civil parties, defendants, Prosecutors) have the right to access the case file and may ask the judge to collect evidence, requesting for example the hearing of witnesses and experts or the implementation of technical measures.  

Depending on the complexity of the case and for criminal charges, on average, the judicial investigation takes several years (often 2 to 3 years).

If there is enough evidence towards the end of the investigation, the investigating judge (juge d’instruction) issues an order to refer (ordonnance de renvoi), the case to the competent court, which is the Paris criminal court (Cour d’assises).

11. Why is this case being investigated in France?

Some states, including France, have extraterritorial jurisdiction laws, which allow national prosecutors and courts to investigate and prosecute international crimes when committed abroad. 

In the present case, a civil party complaint was filed in France on March 1^st, 2021, before the Specialised Unit for Crimes against Humanity and War Crimes of the Judicial Tribunal in Paris, seeking a criminal investigation for the August 2013 chemical weapons attacks, alleging that these attacks constitute war crimes and crimes against humanity. The criminal complaint was filed with a civil party application of the Syrian Center for Media and Freedom of Expression (SCM), and victims’ testimonies of the chemical attacks, based on evidence collected by SCM, Syrian Archive, and the Open Society Justice Initiative. 

France’s Specialised Unit for Crimes against Humanity and War Crimes was created in 2013 and is composed of prosecutors and investigating judges who have special expertise in the investigation and prosecution of crimes of international law. They work closely with a specialised police unit (OCLCH). Around 160 cases are pending, at different stages of the proceedings, before this Specialised Unit and relate to alleged crimes in more than fifteen (15) countries.

12. Are there other complaints related to chemical attacks in Syria?

Complaints relating to the chemical attacks in Al-Ghouta in 2013 and Khan Shaykhun in 2017 were submitted to the authorities in Germany on 6 October 2020, and in Sweden on 19 April 2021. These complaints included a wide range of evidence and information. The NGOs have continued to submit extensive new evidence to the investigative authorities in France, Germany, and Sweden, including a large collection of witness testimonies, visual evidence, and information about the chains of command of the entities suspected of carrying out the attacks.