Gen. Jamil al-Hassan, the former head of the Assad regime’s Air Force Intelligence, has been accused by German prosecutors of crimes versus humanity over torture and mass killing of civilians — Does a French court decision give him protection?

A French court has said a former Assad official cannot be prosecuted for crimes against humanity in Syria — because the Assad regime is not a signatory to the Rome Statute on war crimes.

The Court of Cassation ruled on Wednesday in the case of “Mr. R.S.”, who served in State Security from 2011 to 2013. A reservist from Aleppo, he was arrested and indicted February 15, 2019 over alleged involvement in the identification, arrest, and prison abuse of demonstrators.

The defendant claimed he had been forcibly recruited into the Assad services before deserting to Europe with his family and entering France in 2015. He was granted refugee status in November 2018.

See also French Arrest Warrants for Top Assad Regime Officials

The official’s detention was extended in February 2020 and again in February 2021. His lawyers were granted leave to appeal in May.

The Court of Cassation accepted the argument of the defense that “the State where the acts were committed or of which the accused is a national must be party to the Rome Statute” of the International Criminal Court.

An End to Justice?

The ICC has decided, for the moment, that it has no jurisdiction for judgement of war crimes in Syria. The UN Security Council could refer the situation in Syria to the ICC Office of the Prosecutor, as it had done over war crimes in Libya. However, in 2014 Russia and China cast Security Council vetoes to prevent referrals.

The French case had been seen as a breakthrough in pursuit of justice. In February a regional court in Koblenz, Germany, delivered the first guilty verdict against a former Assad official, sending him to 4 1/2 years for aiding and abetting crimes against humanity, including torture and arbitrary deprivation of liberty. The trial against a second defendant, the former director of investigations at a regime intelligence branch in Damascus, is ongoing with claims that the official supervised the torture of more than 4,000 people between 2011 and his defection in 2012.

Complaints have been filed in Norway, Sweden, and Austria against former high-ranking regime officials. A German arrest warrant has been issued for Jamil Hassan, the head of the Air Force Intelligence Service until July 2019. Syrian nationals and NGOs have filed criminal complaints in Germany and France over the regime’s mass killing of civilians with sarin near Damascus in 2013 and in Khan Sheykhoun in northwest Syria in 2017.

The Netherlands and Canada are pursuing the option of proceedings in the the International Court of Justice under the UN Convention against Torture. The ICJ cannot determine criminal responsibility by individuals, but can rule on State responsibility.

In July, a Dutch court sentenced a former member of the Islamist faction Jabhat al-Nusra to 20 years in prison over the 2012 killing of an Assad regime soldier in northern Syria.