The Court acknowledges several limits to personal immunity raised by the civil parties, arising from the conjunction of the nature of the offences subject to prosecution and the conduct of the Head of State.

The Court notes that the purpose of personal immunity is the exercise of representative functions on the international stage, this objective having to be set aside when, as in the present case, the Head of State has excluded himself from the benefit of personal immunity by not behaving like a Head of State.

Indeed, the use of chemical weapons by a Head of State against his own population does not constitute an act within the scope of his normal functions, since “the prohibition of the use of chemical weapons is part of customary international law as a peremptory norm and (…) the international crimes within the scope of the investigation cannot be considered as part of the official functions of a Head of State. Consequently, they are separable from the sovereignty naturally attached to these functions”.

Citing several Security Council resolutions concerning the former Yugoslavia, Rwanda and Sierra Leone, the Court emphasizes that this is how the international community has previously reasoned, upholding the values of Humanity over personal immunity, which shall not equate to impunity. In the present case, regarding Syria, 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.

Concluding, the Court adds that “insofar as it seems obvious that Syria will never prosecute Bashar al-Assad for these crimes, that it will never waive the personal immunity of its President, and insofar as no international courts have jurisdiction, Syria not being a party to the Rome Statute, it must be said that the arrest warrant issued against Bashar al-Assad is not tainted by any nullity”.