The Court acknowledges several limits to personal immunity set out by the civil parties, due both to the nature of the offences and the conduct of the Head of State in the present case. 

The Court finds that the purpose of personal immunity is the exercise of representational functions at the international level. The use of chemical weapons by a Head of State against his own population does not fall within the scope of his normal duties. By not behaving like a Head of State, Bashar al-Assad has therefore excluded himself from the benefit of personal immunity.

Moreover, for the Court, “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 emphasises that the international community has upheld 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.

The Court therefore concluded 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“.