Former Syrian President Bashar al-Assad speaking during an interview in Damascus in 2023. (Credit: AFP)
In the immediate aftermath of former Syrian President Bashar al-Assad's fall, calls for accountability over the serious crimes and violations he is accused of committing have intensified. The day after the regime's collapse, Abu Mohammad al-Jolani, leader of the Islamist group Hay'at Tahrir al-Sham (HTS) declared his intent to “hold criminals accountable ... involved in the torture of the Syrian people.”
His statement seems to have resonated internationally. U.S. President Joe Biden called on Sunday for Assad to be “held accountable” for the “hundreds of thousands of innocent Syrians who have been mistreated, tortured and killed.” The following day, the United Nations High Commissioner for Human Rights, Volker Turk, emphasized that “any political transition in Syria ... must ensure that perpetrators of serious violations are held accountable.”
But beyond these statements, can Assad actually face prosecution by Syrian or international justice systems? Bectarte, a lawyer at the Paris Bar specializing in international criminal and humanitarian law, spoke with L'Orient-Le Jour to address this question.
OLJ: Are there any possible remedies against former Syrian President Bashar al-Assad?
CB: Since November 2023, Assad has been the subject of an international arrest warrant issued by the French justice system for the deadly 2013 chemical attacks attributed to the Syrian regime. In June, the Paris Court of Appeal's investigating chamber confirmed the warrant, ruling that a sitting head of state does not have absolute immunity in cases of war crimes or crimes against humanity. An appeal lodged against this ruling has been filed with the Court of Cassation, and a decision on the legality of the warrant is expected by March.
In my view, the question has become irrelevant, as Assad is no longer in power and no longer enjoys the immunity that came with his former position.
OLJ: Like France, is any state entitled to prosecute the former Syrian president?
CB: Any state with laws punishing war crimes, crimes against humanity, genocide or torture can take action. However, victims must generally be nationals of the state where the complaint is filed, unless the state has a mechanism of universal jurisdiction. This mechanism, outlined in certain international conventions, allows national courts to prosecute crimes committed abroad, against foreign victims, by foreign perpetrators. This is how Germany, for example, has been able to conduct trials against Syrian regime officials.
Now that the regime has fallen, the most effective jurisdiction for prosecution would be that of the Syrian state. It will be up to the Syrian people to independently determine the course of justice for the crimes of the past.
OLJ: What options does Syria have to demand accountability?
CB: Syria could establish an independent judiciary as part of a broader process aimed at a democratic transition of power. This system could launch investigations into past crimes and rely on “truth commissions,” like those created in Tunisia after the fall of Ben Ali. These commissions would investigate, collect testimonies, and gather evidence to support cases for prosecution in Syrian courts, helping to ensure accountability while fostering national reconciliation and rebuilding trust in the country's institutions.
Since Assad is currently outside Syria, any sentences would likely be handed down in absentia. However, Syrian courts could request his extradition from the countries where he is residing. If he is in Russia, this request is unlikely to be granted anytime soon due to the strong ties between the two countries. However, it is crucial to remember that the crimes in question are not subject to statute of limitations, meaning they cannot be erased by time. While justice may take years, it remains achievable.
OLJ: Can the Syrian justice system seek international justice help?
CB: Yes, Syria could request the United Nations' assistance in establishing courts with both Syrian and international judges, similar to the tribunals created in 2003 at Cambodia's request to prosecute crimes committed by the Khmer Rouge.
Although Syria has not ratified the Rome Statute, which established the International Criminal Court (ICC), nothing prevents it from doing so. Ratifying the Statute would grant the ICC jurisdiction over crimes committed within Syria, enabling international prosecution.
The U.N. Security Council could have referred the situation in Syria to the ICC as early as 2011, but this move was blocked by vetoes from Russia and China.
