This is a very unusual and perhaps unprecedented occurrence. It raises questions about the presumption of innocence given the possibility that the United Nations Security Council could refer the situation in Syria, and with it the case of Assad, to the International Criminal Council.
Before the existence of international criminal justice it may have been appropriate for senior international public officials to condemn individuals in such a manner. There was no possibility of trial at the international level. The issue of the presumption of innocence in judicial proceedings did not arise in any realistic way.
Everything has changed in recent years as a result of the development of international criminal justice institutions. Perhaps this means that people like the Secretary-General of the United Nations need to be more prudent in their statements than they might have been a few decades ago.
Were Assad ever to be charged before the International Criminal Court, he would have an arguable case that his right to the presumption of innocence – enshrined in article 66 of the Rome Statute – has been breached by Ban Ki-Moon’s statement.
In a case with many similarities, the European Court of Human Rights has held that where a senior official in the government condemned an individual of a crime before he or she had been brought to trial, an issue of the presumption of innocence arose. In Allenet de Ribemont v. France, the Court held there had been such a breach, referring to ‘a declaration of the applicant’s guilt which, firstly, encouraged the public to believe him guilty and, secondly, prejudged the assessment of the facts by the competent judicial authority’.
It would be preferable for the Secretary-General to say ‘there may be serious grounds to believe Assad has committed crimes against humanity and he should be brought to trial to establish if this is the case’ or something similar. This is a better message in that it signals the gravity of the charges against Assad but at the same time insists upon the integrity of the judicial process.