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In June 2023, the Netherlands and Canada filed a joint application to bring a case against Syria before the International Court of Justice (ICJ) for torture. The first oral hearings in the case are set to begin on October 10 and 11, 2023. In this Q&A, TIMEP’s Legal Unit explains the case, the significance of this step, and where these proceedings fit into other accountability and justice efforts for Syria.
What are the details of the case and under what jurisdiction is this possible?
On June 8, 2023, the governments of Canada and the Netherlands jointly filed an application before the International Court of Justice (ICJ) to institute a case against the government of the Arab Republic of Syria for its “pervasive and entrenched” use of torture and cruel, inhuman or degrading treatment or punishment, which is ongoing today and which has been committed on a mass scale since at least 2011.
The ICJ is the only international court that settles disputes between countries, including those involving interpretations of international law and international treaties. The ICJ does not hear cases against individuals, nor does it allow for individuals and non-state groups like civil society organizations to submit information recommending cases. Its decisions are binding and final, and cannot be appealed.
In this particular case, Canada and the Netherlands have come together to hold Syria to account for violating the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (known as the Convention Against Torture), which Syria became a state party to in August 2004. By filing the case, Canada and the Netherlands seek to compel Syria to adhere to the Convention Against Torture, to stop committing torture, and to take effective measures to prevent and punish the practice of torture.
By filing the case, Canada and the Netherlands seek to compel Syria to adhere to the Convention Against Torture, to stop committing torture, and to take effective measures to prevent and punish the practice of torture
Canada and the Netherlands have also asked the ICJ to issue provisional measures, which are temporary measures that effectively order the offending party to stop engaging in the act at the heart of the dispute, torture in this case, until the court issues a final judgment. Canada and the Netherlands have asked for these measures “due to the substantial risk that torture and other [cruel, inhuman, and degrading treatment and punishment] will continue unabated in Syria, including throughout the duration of proceedings before the Court.”
Article 30(1) of the Convention Against Torture establishes a pathway through which disputes between states that are parties to the Convention Against Torture can ultimately be brought before the ICJ. Syria, Canada, and the Netherlands are all state parties to the Convention Against Torture and have not made any objections, formally known as “reservations,” to Article 30(1); accordingly, they are all bound by it.
What steps did the Netherlands and Canada take in the lead-up to this case?
In order to be able to bring this case before the ICJ, Canada and the Netherlands had to take a number of steps in line with Article 30(1) of the Convention Against Torture. Under the provision, the states must first seek to resolve any dispute between them through negotiation. If that is unsuccessful, then the dispute should be sent to arbitration as an alternate form of dispute resolution. If within six months the parties are not able to agree on how to proceed with arbitration, then a case can be filed before the ICJ.
Throughout this process, Syria has either entirely denied its commission of violations or ignored the actions of Canada and the Netherlands
On September 18, 2020, the Netherlands formally notified Syria that it was requesting negotiations because of Syria’s failure to fulfill its international legal obligations under the Convention Against Torture. On March 3, 2021, Canada took similar action and formally notified Syria of the same. On March 12, 2021, Canada and the Netherlands joined forces and announced their intention to together hold Syria to account for these violations. Since then, Canada and the Netherlands have made a number of attempts to participate in good faith negotiations, including by issuing 66 diplomatic notes to Syria, by sharing a statement of facts and law with Syria that documents the government’s violations under the Convention Against Torture, and by meeting with Syria on two in-person occasions in April 2022 and October 2022. Throughout this process, Syria has either entirely denied its commission of violations or ignored the actions of Canada and the Netherlands. After more than two years of negotiation attempts, Canada and the Netherlands notified Syria on October 17, 2022, that negotiations had become “deadlocked or futile.”
On November 7, 2022, Canada and the Netherlands notified Syria of their intent to refer the case to arbitration, thus taking the dispute to the next stage. Syria did not acknowledge or reply to this request; and despite three additional diplomatic notes on the matter in the time since, Syria has continued to ignore the requests of Canada and the Netherlands. After more than six months since the formal request was made, Canada and the Netherlands determined that they had satisfied their obligations under Article 30(1) of the Convention Against Torture by requesting negotiation and arbitration, before jointly initiating proceedings against Syria at the ICJ.
In addition to meeting the requirements necessary to establish jurisdiction before the ICJ, it is also important to note that Canada and the Netherlands have consistently criticized Syria’s record on torture by issuing public statements in condemnation, making recommendations through the Universal Periodic Review process on how to rectify the matter, and co-sponsoring resolutions on torture in Syria and related violations including sexual and gender-based violence, enforced disappearance, and arbitrary detention.
What is the significance of this case?
The case against Syria for torture before the ICJ is significant for a number of reasons.
For victims and survivors of torture in Syria, as well as others impacted by the brutality of the Syrian regime, this case recenters their lived experiences in the Syria conversation. It raises the discussion on torture in Syria to the global stage, placing it at the heart of an international dispute between states before one of the highest courts in the world. It provides an opportunity for the documentation and storytelling conducted by Syrian organizations and individuals to be used as evidence in case files and during court proceedings. The ICJ case against Syria has the potential to contribute to a historical record at a time when some in the international community seek to erase the lived realities of victims and survivors.
As this case is filed, the question of normalization of the Syrian regime and its +12 year-record of mass atrocities and war crimes is front and center. In May 2023, the Arab League re-admitted Syria. In the months prior and since, other Arab states have taken steps to normalize the regime; this includes Saudi Arabia’s move to reopen its diplomatic mission and to resume airline flights, and country visits like that of Egyptian Foreign Minister Sameh Shoukry to Damascus. Though the United States and other Western nations continue to articulate a policy against normalization, some analysts have argued that they have taken little to no meaningful action to properly combat the steps taken by Arab states—many of them Western allies. Accordingly, judicial proceedings that shed light on state responsibility may help slow or create road bumps along this path to normalization, making it that much more difficult for the image of the regime to be rehabilitated.
With this process, there will be lessons learned not only for those working in the Syria space, but also the MENA and global justice spaces as well
From a legal perspective, this case constitutes yet another example of how international mechanisms can be creatively leveraged toward justice and accountability objectives. Though the way in which this case has made it to the ICJ is quite technical in nature and has required years of negotiation and attempted arbitration, it represents an under-explored pathway that may help expand the justice toolbox and serve as a complementary alternative to criminal accountability and non-court-based justice. With this process, there will be lessons learned not only for those working in the Syria space, but also the MENA and global justice spaces as well.
How does this case fit into recent developments in the justice and accountability space for Syria?
This case at the ICJ is one of many extraterritorial efforts to hold the Assad regime accountable for alleged war crimes including the use of chemical weapons against civilian populations, torture, extrajudicial killings, and enforced disappearances, among other egregious rights violations. The primary frameworks that have been explored by Syrian survivors and victims include international judicial proceedings, foreign-based prosecutions, the creation of and engagement with UN mechanisms, and other non-court based forms of justice, including documentation and memorialization.
The International Criminal Court (ICC) does not have jurisdiction to investigate and prosecute war crimes and crimes against humanity committed in Syria, as the country is not a state party to the Rome Statute, the ICC’s founding treaty. Although the ICC can receive referrals from the United Nations Security Council to investigate crimes committed in jurisdictions that have not ratified the Rome Statute, Russia and China have vetoed prior Security Council referrals on the situation in Syria to the ICC. Accordingly, seeking accountability for atrocity crimes committed in Syria at the ICC is not currently feasible despite ongoing efforts.
This lack of access to the ICC in the Syrian context has contributed to exploration of other tactics and fora. German courts have paved the way for realizing the principle of universal jurisdiction—a legal framework permitting national judicial systems of one state to prosecute or extradite perpetrators of atrocity crimes—irrespective of the perpetrator’s nationality. In 2016, the German Federal Prosecutor indicted and convicted the first Syrian national of war crimes for violations committed while being a member of an armed non-state extremist group; two additional Syrian nationals were charged and prosecuted under similar charges. In 2020, prosecutors in Koblenz, Germany, commenced the first criminal prosecution of two former Syrian intelligence officers, Anwar R. and Eyad A., for torture and crimes against humanity committed at the behest of the regime between 2011 and 2012. They were both found guilty of crimes against humanity given their respective involvement in the torture of detainees at Branch 251 facility. In early 2023, a German court convicted a member of a militia loyal to the Assad regime for war crimes committed against Yarmouk, the Palestinian refugee camp that was besieged by regime forces between 2013 and 2015. In France, three high-ranking regime officials—Ali Mamlouk, Jamil Hassan, and Abdel Salem Mahmoud—have been indicted before the Paris Criminal Court and are expected to face trial in absentia in May 2024 for complicity in war crimes and crimes against humanity, including allegations of torture and enforced disappearance committed in the detention facility at Mezzeh military airport. Other jurisdictions like Sweden, have received criminal complaints filed by civil society organizations identifying regime officials allegedly complicit in the chemical attacks against civilians in Ghouta and Khan Shaykhun; while a Syrian-American torture survivor is currently seeking to hold the Syrian regime accountable through civil litigation in U.S. federal court. This follows the first ever U.S. court awarded judgment against the Syrian regime for war crimes committed in Syria.
In bringing the ICJ petition forward, Canada and the Netherlands have relied on extensive evidence provided by Syrian victims and survivors
The opportunity for Syrian victims to seek criminal accountability against individual perpetrators of atrocity crimes before foreign courts is steadily increasing. Such opportunities allow Syrians to participate during the investigatory and prosecutorial stages of the case. Victim participation in proceedings before foreign courts include: providing prosecutors with dossiers of evidence; filing official complaints requesting formal investigations be initiated; filing third-party interventions as amicus curiae; and providing witness testimony during trials and victim impact statements during sentencing. Although individuals cannot directly petition the ICJ or intervene during proceedings on their own accord, they can be invited by the state parties to participate in the proceedings by providing evidence in support of the allegations made. In bringing the ICJ petition forward, Canada and the Netherlands have relied on extensive evidence provided by Syrian victims and survivors.
Despite the political gridlock at the Security Council blocking an ICC referral, creative efforts pushed forward at the United Nations General Assembly (UNGA) have crafted alternative approaches in support of accountability and justice for Syrian victims. In 2016, the General Assembly established the International, Impartial and Independent Mechanism – Syria (IIIM) to address the growing evidence of international crimes documented by the UN’s Independent International Commission of Inquiry on Syria and assist in the investigation of core international crimes committed in Syria since 2011. The IIIM does not have the requisite authority or jurisdiction to prosecute crimes, rather, it is responsible for preparing analytic and evidentiary files to share with prosecutors pursuing accountability before national, regional, or international courts. More recently, on June 29, 2023, the General Assembly adopted a resolution, championed by Syrian-led rights groups, to establish an international mechanism to uncover the fate of the missing in Syria. The UNGA resolution is part of a broader global campaign centering quests for participatory justice led by survivors and families of Syrian victims.
What should we expect next in this case?
The ICJ proceedings against Syria have been lauded as a significant step toward holding the Syrian state responsible for acts of torture committed in Syria since 2011. Oral proceedings around the request for provisional measures against Syria were initially scheduled to be heard on July 19 and 20. However, Syria requested a postponement, and the ICJ opted to delay the preliminary hearings to October 10 and 11. The postponement was the subject of official government statements. While Canada and the Netherlands expressed regret regarding the delay, the Syrian regime was quick to dismiss the credibility of the objections raised by both countries. Syrian survivors and civil society advocates also critiqued the postponement in light of its extensive length and the lack of justification provided by the Court despite Syria’s continued practice of torture and ill treatment—the very crimes underlying the heart of the case.
In considering the request for provisional measures at the October hearings, the Court will determine whether: (1) minimal requirements establishing the Court’s jurisdiction to hear the request have been met; (2) the rights asserted by Canada and the Netherlands are at least plausible; and (3) there is an urgent risk of irreparable harm to the rights asserted if provisional measures are not rendered.
If the ICJ grants provisional measures as requested by Canada and the Netherlands, Syria will be obliged to immediately cease and prevent all acts that amount to torture including the practice of arbitrary detention and forced disappearances and to improve the conditions of all official and unofficial detention facilities. It will also be required to safeguard information and any evidence relating to state-sanctioned torture, including medical records of detainees currently held in facilities, who died while in regime custody, and disclose the location of any burial sites for individuals who died as a result of torture. Following a determination in favor of the request for provisional measures, the Court may order further proceedings to consider the substantive torture allegations against Syria on the merits.
While provisional measures issued by the ICJ effectively order a party to stop activities contributing to the alleged harm and rights violations underlying the ongoing legal dispute, they are not final judgments. The Court can order additional remedies in later proceedings including: an order that the offending state implement substantive legal and policy changes to meet its treaty obligations; a finding on the merits of state responsibility for acts of torture and other forms of degrading and inhumane punishment; and an order requesting full cooperation with established accountability mechanisms, among other compensatory remedies.
Though ICJ decisions are binding on the state party, there are enforcement limitations. If Syria refuses to comply with an ICJ-issued judgment, Canada and the Netherlands can petition the UN Security Council for additional measures, though this may be a futile course of action given Russia and China’s prior vetoes.
Even with these challenges, an ICJ finding against Syria can inform additional investigations for future cases and can send a strong signal to the Syrian regime that members of the international community will not tolerate impunity and will seek accountability for the litany of international crimes perpetrated by the regime since 2011.