هذا التقرير متاح أيضًا بـ العربية
Death sentences against senior officials of the former Syrian regime have divided opinion in Syria, drawing public approval and legal warnings about their impact on the prospects of securing the return of convicted individuals and fugitives abroad.
The Criminal Court in Damascus sentenced deposed President Bashar Assad; his brother Maher Assad, commander of the Fourth Division; Atef Najib, former head of the Political Security Branch in Daraa; and a group of security and military commanders to death after convicting them of intentional killing and torture, which the court classified as war crimes and crimes against humanity.
Atef Najib was sentenced in his presence. Bashar Assad and his brother Maher, along with Fahd Jassem al-Freij, Louay al-Ali, Qusai Mihoob, Wafiq Nasser and Talal al-Eisami, were sentenced in absentia.
Amid the debate, Amnesty International called in a statement for the abolition of trials in absentia and the death penalty, and for judicial reform to ensure compliance with fair trial standards and international law.
In response to the organisation, Syria’s Ministry of Justice said the trials had been conducted before a competent civilian criminal court, with victims and their representatives participating. It said the proceedings guaranteed defence rights and avenues for appeal and objection, in accordance with the relevant rules of international law.
The issue is particularly significant in Bashar Assad’s case. Before the ruling, Damascus had requested that Moscow hand him over. Russia neither agreed to the request nor formally announced its rejection.
Some have welcomed the death sentences as a step towards holding former regime officials accountable, while others have warned of their implications for the extradition of fugitives to Syria. The rulings raise questions about the meaning of a death sentence issued in absentia and what would happen to it if those convicted were arrested or if parties entitled to challenge the rulings did so.
They also raise legal questions about how death sentences against wanted individuals abroad affect the prospects of securing their return, and what international law requires in such cases.
What happens to rulings issued in absentia?
Syrian lawyer and human rights activist Orwa Sosi believes the rulings issued by the Fourth Criminal Court in Damascus are significant beyond the penalties imposed because they open a broader legal debate about trials in absentia, the death penalty, the extradition of wanted individuals abroad and the future of accountability in Syria.
Speaking to Noon Post, Sosi said it was necessary from the outset to distinguish between the procedural and substantive aspects of the case. Trial procedures and avenues of appeal are governed primarily by Syria’s Criminal Procedure Code No. 112 of 1950 and its amendments. The definition of offences and determination of penalties are based mainly on the Syrian Penal Code, issued by Legislative Decree No. 148 of 1949, and its amendments, alongside other provisions the court may have applied depending on the acts attributed to each defendant.
Sosi explained that Article 322 and subsequent articles of the Criminal Procedure Code govern the trial of defendants who have fled justice. Article 333, however, is the key provision governing what happens to rulings issued in absentia. It stipulates that if an absent defendant surrenders or is arrested before the sentence becomes time-barred, the ruling and the procedures specified in the provision are automatically nullified, and the trial reopens under ordinary procedures.
Arresting someone sentenced in absentia in this case would therefore not mean that the death sentence would be carried out immediately. Instead, the ruling would be annulled and the defendant retried in person, with an opportunity to exercise his defence rights and present arguments and evidence.
On appeals, Sosi noted that Article 339 gives the public prosecution, the personal plaintiff and the party bearing civil liability the right to challenge a criminal court’s ruling in absentia in a felony case through an appeal in cassation, each within the scope of their interest in the case.
Here too, the lawyer said, a distinction must be drawn between a death sentence issued in absentia and one issued in the defendant’s presence. Article 340 requires the public prosecution to refer the case to the Court of Cassation when a death sentence is issued in the defendant’s presence, so that the court can uphold or overturn the ruling. The mandatory referral requirement therefore cannot automatically be extended to death sentences issued in absentia.
The Court of Cassation reviews whether the law and procedures were correctly applied, examining the statutory grounds for cassation. These include those set out in Article 342, such as a violation of the law, an error in its interpretation, or a defect in the ruling or in procedures affecting it.
The issue is particularly significant for Bashar Assad, Maher Assad and others sentenced while outside Syria. A ruling in absentia may form part of the judicial basis for Syria to request a wanted person’s extradition. It does not, however, oblige the country where that person is located to hand him over.
Extradition under Syrian law is governed by Law No. 53 of 1955 on procedures for extraditing criminals, with applicable international treaties taking precedence. Article 20 addresses requests for the extradition of people convicted or prosecuted before Syrian courts.
In Bashar Assad’s case in Russia, Syria’s submission of an extradition request and Russia’s agreement to hand him over are separate matters. The decision is subject to Russian law and the legal framework governing cooperation between the two countries. The death penalty may itself become an obstacle to international judicial cooperation: a number of countries that have abolished it refuse to extradite people who could face execution, or require guarantees that it will not be carried out.
Even if extradition succeeds, Article 333 remains decisive. Handing someone sentenced in absentia over to Syria does not mean that the death sentence issued in absentia will be carried out. Instead, the ruling is annulled and the defendant retried under ordinary procedures.
From a human rights perspective, Sosi believes these trials matter above all because they open the way to accountability and an end to impunity after many years of violations.
He said the success of Syria’s justice process should be measured by the judiciary’s ability to conduct fair, independent trials that respect both victims’ rights and procedural safeguards for defendants, rather than by the number of death sentences or the severity of punishments.
He added that accountability must be distinguished from the death penalty. Victims’ right to justice and truth, and the state’s right to prosecute those responsible for serious crimes, do not necessarily mean that execution is the only way to achieve justice, particularly if it obstructs the return of wanted individuals and judicial cooperation with other countries.
According to Sosi, the rulings issued yesterday may be an important step towards judicial accountability for crimes committed in the previous period. The real test, however, will be Syria’s ability to turn these cases into a comprehensive justice process based on the rule of law, judicial independence, fair trial guarantees, justice for victims and an end to impunity, with credibility both at home and abroad.
An obstacle to extradition?
Legal expert Moatasem al-Kilani, a specialist in international criminal law and human rights, believes the death sentence issued in absentia now gives Russia an explicit legal reason to refuse extradition that did not exist in the same way when Assad was wanted only to stand trial.
Article 5 of the extradition treaty signed between Syria and Russia in 2022 stipulates that extradition must not take place if the offence concerned is punishable by death in the requesting state, unless that state guarantees that the death penalty will not be applied to the wanted person and the requested state considers the guarantee sufficient. The treaty entered into force on 5 June 2023.
Al-Kilani told Noon Post that Moscow can tell Damascus that Assad cannot be extradited while the existing ruling calls for his execution, and that a formal, binding guarantee is needed that the sentence will not be carried out. Russia may also request guarantees that he will be retried in person and able to choose a lawyer, question witnesses and appeal the new ruling, because the current ruling was issued in absentia.
In this situation, al-Kilani said, a general political statement that Syria may not carry out the execution is not enough. What is usually required is a clear diplomatic and legal guarantee that the prosecution will not seek the death penalty at a retrial, or that the sentence will be commuted to life imprisonment. All Syrian authorities, including the court and the authority responsible for enforcing judgments, must be bound by that guarantee.
Even so, removing the death penalty as an obstacle does not mean Russia will necessarily extradite Assad. It can cite other grounds, including the asylum granted to him, claims that the request is political, doubts about fair trial guarantees or concerns that his life would be at risk. The death sentence therefore gives Russia an additional, powerful legal reason to refuse extradition, but it is not the only possible ground for refusal.
Al-Kilani said Syria does not necessarily have to abolish the death penalty throughout its legal system to secure the return of wanted individuals. The obstacle can be overcome in three main ways: abolishing the penalty through legislation, replacing the death sentence in the case concerned with another punishment, or giving the state where the wanted person is located an individual, binding guarantee that the death penalty will neither be imposed nor carried out against him.
The acceptable approach varies between countries. The requested state applies its national law, treaties and human rights obligations. Some countries accept a clear diplomatic undertaking from the government and the competent prosecution authority. Others require a judicial decision or legislative amendment ensuring that the court itself cannot reimpose the death penalty. A state may reject guarantees if it considers them unenforceable or believes the requesting state’s institutions cannot realistically honour them.
In Russia’s case, he added, the treaty does not require Syria to abolish the death penalty throughout its legal system. It allows extradition if Syria guarantees that the penalty will not be applied to Assad and Russia considers that guarantee sufficient. European countries, Canada and other states that have abolished the death penalty generally do not extradite someone to a country that may carry out the sentence without clear, reliable guarantees.
The issue is therefore neither left entirely to the law of the state where the wanted person is located nor governed solely by Syrian law. It depends on three interconnected legal frameworks: the law of the state where that person is located, the applicable extradition treaty and both states’ human rights obligations.
For that reason, a general Syrian policy of not seeking the death penalty in cases involving wanted individuals abroad may be more effective than negotiating a different guarantee in each case.
International precedents
Al-Kilani cited precedents in which the death penalty obstructed extradition, although most concerned defendants who faced possible execution and against whom a final ruling had not always been issued.
In Soering v. the United Kingdom, the US sought a person’s extradition from Britain to stand trial for murder in a case that could result in a death sentence. The European Court of Human Rights held that extradition in those circumstances could violate the prohibition on inhuman treatment because of the conditions associated with a prolonged wait on death row.
The case became an important basis in Europe for refusing extradition where there is a real risk of execution, unless reliable guarantees remove that risk. It subsequently became practice for the US to undertake not to seek or carry out the death penalty.
In Harkins and Edwards v. the United Kingdom, extradition proceedings were able to continue after the US provided clear guarantees that the death penalty would neither be sought nor imposed, and that the maximum possible sentence would be life imprisonment. The European Court considered those guarantees sufficient.
In United States v. Burns, the Supreme Court of Canada ruled that extradition to the US in cases that could result in a death sentence should, as a general rule, be conditional on assurances that the punishment would not be imposed. Such assurances then became Canada’s usual means of reconciling judicial cooperation with its rejection of the death penalty.
India has also given similar assurances when seeking extradition from Canada, including confirmation that the death penalty would not be imposed on the wanted individuals. Canadian authorities accepted the principle of these assurances because Indian law allows the penalty to be restricted in accordance with extradition conditions.
In the context of international crimes, Rwanda abolished the death penalty in 2007. This was a decisive factor in enabling the International Criminal Tribunal for Rwanda and foreign states to refer or extradite suspects to the country, as the tribunal required assurances that anyone transferred to face justice in Rwanda would not face execution.
These precedents show that the usual solution is to modify the punishment or provide specific, enforceable guarantees rather than abandon prosecution. According to al-Kilani, those guarantees may include a retrial, an undertaking not to seek the death penalty, the commutation of any existing death sentence to life imprisonment, and diplomatic or judicial monitoring after extradition.