Syria and the International Court of Justice
First: The competence of the International Court of Justice regarding disputes between states
According to Article 1 of the Court’s Statute (the Statute, or the Court System), the International Court of Justice (the Court) is the principal judicial organ of the United Nations. Article 35 (1) of the Statute postulates that the Court is open to states only, while Article 36(1) states that the jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force. The article adds in section 6 that in the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court.
In performing its duties, Article 38 provides that the court shall apply:
- International conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
- International custom, as evidence of a general practice accepted as law;
- The general principles of law recognized by civilized nations;
- Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
Second: Provisional Measures
Provisional measures are stipulated in Article 41 of the Stature, whereby the Court may:
- Have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party.
- Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and to the Security Council.
Third: Judicial Precedence
- Bosnia and Herzegovina vs Yugoslavia (Serbia and Montenegro)
On 20 March 1993, the Republic of Bosnia and Herzegovina instituted proceedings against the Federal Republic of Yugoslavia (Serbia and Montenegro) in respect of a dispute concerning alleged violations of the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the General Assembly of the United Nations on 9 December 1948, as well as various matters which Bosnia and Herzegovina claimed were connected therewith. The Application invoked Article IX of the Genocide Convention as the basis for the jurisdiction of the Court, as well as the four Geneva Conventions of 1949 and the two Protocols Additional to the conventions that were adopted in 1977. Bosnia and Herzegovina also invoked customary international laws of war including the Hague Regulations on Land Warfare of 1907, and other fundamental principles of international humanitarian law. On the basis of the facts alleged in the proceeding, Bosnia and Herzegovina requested the Court to adjudge, declare and oblige Yugoslavia, its agents and surrogates, to cease their violations of the aforementioned legal obligations, and to immediately cease:
- Its systematic practice of so-called ‘ethnic cleansing’ of the citizens and sovereign territory of Bosnia and Herzegovina,
- The murder, summary execution, torture, rape, kidnapping, mayhem, wounding, physical and mental abuse, and detention of the citizens of Bosnia and Herzegovina;
- The wanton devastation of villages, towns, districts, cities, and religious institutions in Bosnia and Herzegovina;
- The bombardment of civilian population centers in Bosnia and Herzegovina, and especially its capital, Sarajevo;
- The continuation of the siege of any civilian population centers in Bosnia and Herzegovina,, and especially its capital, Sarajevo ;
- The starvation of the civilian population in Bosnia and Herzegovina ;
- The interruption of, interference with, or harassment of humanitarian relief supplies to the citizens of Bosnia and Herzegovina by the international community ;
- All use of force – whether direct or indirect, overt or covert – against Bosnia and Herzegovina, and from all threats of force against Bosnia and Herzegovina.
In light of this, Bosnia and Herzegovina requested the Court to protect the legal rights of the inhabitants of Bosnia and Herzegovina by imposing the following temporary measures:
- The basic right of sovereign existence for the People and State of Bosnia and Herzegovina
- The rights of the People of Bosnia and Herzegovina to life, liberty, and security and to the basic human rights specified in the 1948 Universal Declaration of Human Rights;
- The right of the People and State of Bosnia and Herzegovina to be free at all times from acts of genocide and other genocidal acts perpetrated upon Them by Yugoslavia (Serbia and Montenegro), acting together with its agents and surrogates in Bosnia and elsewhere;
- The right of self-determination of the People of Bosnia and Herzegovina.
In this regard, the International Court of Justice issued its ruling on April 8, 1993, which imposed provisional measures to ensure protection for the people of Bosnia and Herzegovina in the face of the ongoing practices of the State of Yugoslavia against them, pending the finalization of the case review.
- Gambia v. Myanmar
On 11 November 2019, Gambia filed a lawsuit in the International Court of Justice against Myanmar for committing acts of genocide, mass murder, and mass rape against the Muslim Rohingya minority in Myanmar, in violation of the provisions of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. The Gambia and Myanmar are both Members of the United Nations and therefore bound by the Statute of the Court, including Article 36(1), which provides that the Court’s jurisdiction comprises all matters specially provided for in treaties and conventions in force.
According to Article 9 of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, disputes between the contracting parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in Article 3, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute. Article 3 indicates that the following acts shall be punishable:
- Conspiracy to commit genocide ;
- Direct and public incitement to commit genocide;
- Attempt to commit genocide ;
- Complicity in genocide.
In this case, the Gambia, mindful of the jus cogens character of the prohibition of genocide and the erga omnes and erga omnes partes character of the obligations that are owed under the Genocide Convention, instituted the proceedings to establish Myanmar’s responsibility for violations of the Genocide Convention, to hold it fully accountable under international law for its genocidal acts against the Rohingya group, and to have recourse to Court to ensure the fullest possible protection for the Rohingya group who remain at grave risk from future acts of genocide.
The Gambia provided further evidence deriving from the UN Fact-Finding Mission, which found evidence of genocidal intent in the Myanmar authorities’ tolerance for public rhetoric of hatred and contempt for the Rohingya, as well as in the “insulting, derogatory, racist and exclusionary utterances of Myanmar officials and others.” Such propaganda includes the Government of Myanmar’s incitement of anti- Rohingya hatred that portrays the group as a “threat, not only to the local Buddhist communities, but also to the nation and its Buddhist character as a whole.” The UN Fact-Finding Mission also observed that the Rakhine Nationalities Development Party (RNDP) “praised Hitler and argued that inhuman acts” are “sometimes necessary to maintain a context” The RNDP has also advocated that “although Hitler and Eichmann were the greatest enemies of the Jews, they were probably heroes to the Germans. America had to drop nuclear bombs on Hiroshima and Nagasaki. Why? If inhumane acts are sometimes permitted to maintain a race, a country and the sovereignty … our endeavors to maintain the Rakhine race and the sovereignty and longevity of the Union of Myanmar cannot be labelled as inhumane.”
In addition, the Gambia considered that Myanmar, through its State organs, State agents, and other persons and entities acting on the instructions of or under the direction and control of Myanmar, is responsible for violations of its obligations under the Genocide Convention, including Articles I, III, IV, V and VI. Violations of the Genocide Convention include, but are not limited to:
- Committing genocide in violation of Article III(a);
- Conspiracy to commit genocide in violation of Article III(b);
- Direct and public incitement to commit genocide in violation of Article III(c);
- Attempting to commit genocide in violation of Article III(d);
- Complicity in genocide in violation of Article III(e);
- Failing to prevent genocide in violation of Article I;
- Failing to punish genocide in violation of Articles I, IV and VI; and
- Failing to enact the necessary legislation to give effect to the provisions of the Genocide Convention and to provide effective penalties for persons guilty of genocide or of any of the acts enumerated in Article III, in violation of Article V.
In accordance with Article 41 of the Statute of the Court, and Articles 73, 74 and 75 of the Rules of Court, The Gambia requested that the Court indicate provisional measures. In light of the nature of the rights at issue, as well as the ongoing, severe and irreparable harm being suffered by members of the Rohingya group, The Gambia requested that the Court address the request as a matter of extreme urgency. The Gambia stressed that provisional measures are necessary in this case to protect against further, irreparable harm to the rights of the Rohingya group under the Genocide Convention, which continue to be violated with impunity. Therefore, The Gambia requested that the Court indicate provisional measures to protect and preserve these rights, and to prevent aggravation or extension of the dispute concerning Myanmar’s genocidal actions, pending the determination of the merits of the issues raised by the Application.
On 23 January 2020, the Court ruled that the Republic of the Union of Myanmar shall, in accordance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to the members of the Rohingya group in its territory, take all measures within its power to prevent the commission of all acts within the scope of Article 2 of this Convention and ensure that its military, as well as any irregular armed units which may be directed or supported by it and any organizations and persons which may be subject to its control, direction or influence, do not commit genocide, and that it shall take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide. It also ruled that the Republic of the Union of Myanmar shall submit a report to the Court on all measures taken to give effect to this Order within four months, as from the date of this Order, and thereafter every six months, until a final decision on the case is rendered by the Court.
Now Article 41(2) of the Statute provides that pending the final decision, notice of the measures suggested shall forthwith be given to the parties and to the Security Council. Eventually, this has the potential of increasing the pressure on the Security Council to adopt concrete measures in Myanmar, including a binding decision to compel the Myanmar government to lift restrictions on the Rohingya’s freedom of movement, remove restrictions on humanitarian access, repeal discriminatory laws, and prohibit practices that limit the access to education for the Rohingya, providing them with health care and decent livelihoods, and prosecuting the perpetrators of genocide. However, the problem remains in the consensus of the permanent members of the Security Council on this matter, and the reluctance of the permanent members of the Council to use the right of veto for political considerations.
Fourth: The Syrian Case
The International Court of Justice is not a criminal court. Rather, it is the highest international judicial body, which has the power to adjudicate disputes that arise between states regarding the interpretation, application or implementation of international agreements by the contracting states (parties). In light of the experiences of other countries, the court’s jurisprudence, and the effectiveness of temporary measures in particular, practical steps should be taken to present cases to the Court to consider the legal consequences of the ongoing crimes committed by the Syrian government and its security and military apparatus such as the crime of torture, the crime of genocide, and the continuous use of weapons, including chemical weapons, as well as other crimes that constitute violations of international treaties by which the parties to the conflict are bound. It is also possible to consider requesting the court to look into crimes committed by the parties to the conflict and other actors in Syria, such as Russia, Iran, Turkey, the United States of America and others. These crimes may include the crime of torture, the crime of genocide, the continuous use of weapons and those of chemical nature, and other crimes that constitute violations of international treaties and conventions by which the parties to the conflict are bound.
First, it would be useful to identify international agreements to which Syria is bound. At the same time, countries or group of countries that observe human rights and may be interested in filing a lawsuit against the Syrian government should be approached (the European Union, Canada, Australia, New Zealand), because they too are contracting parties to these agreements ( ICJ Statute, Articles 35 (1), 36 (1), 36 (6), 38, 41, 60). This lawsuit or group of cases as well as the rulings may lead to provisional measures which persuade the international community to prevent crimes committed by the Syrian government and allow investigation committees to access its areas of control to investigate its crimes. Subsequently, this will accelerate the prosecution of war criminals.
In addition, it may be necessary to consider the feasibility of filing a comprehensive lawsuit, asking the court to examine the crimes committed in Syria in light of international law and international conventions, based on information and evidence provided by the Independent Investigation Committee, the International Impartial Mechanism (IIIM), and the Organization for the Prohibition of Chemical Weapons, as well as other international and Syrian human rights organizations. The aim of the comprehensive lawsuit would be to involve the highest international judicial system in the investigation of the grave violations in Syria. The lawsuit may also compel the Security Council to fulfill its obligations to maintain international peace and security, to secure protection for Syrians, to hold perpetrators accountable, and to require member states to fulfill their obligations to adhere to the principle of universal jurisdiction.
The allegation that the crime of genocide has been committed in Syria is a major challenge, and it calls for the availability of sufficient evidence to convince the International Court of Justice of the existence of practices that prove the intention or intent of the Syrian government to commit genocide. It could be claimed that the Syrian government is committing acts of genocide, by its persistence in depriving specific groups of the Syrian people, as such, of their legal rights, and by placing them in difficult living conditions through the siege. It could also be claimed that targeting certain population with hate campaigns and through continuous bombing in which traditional and chemical weapons are used, preventing medical and relief aids to enforce surrender and displacement tantamount to genocide.
In this case, the court must be persuaded that the enforced displacement aimed at changing the demographics of regions in the context of a systematic demographic engineering policy. This involves besieging specific groups and targeting them with bombing and mass destruction of their towns, cities and villages, which results in high death toll and places the population of these groups in difficult living conditions. They are often targeted with starvation and rape and sexual violence with the intent to destroy them. It can also be claimed that the Syrian government resorts to practices that may amount to genocide, resulting from widespread arbitrary arrests of tens or hundreds of thousands of peaceful activists and opponents of government policy and subjecting them to all forms of torture and ill-treatment. These systematic practices led to the killing of tens of thousands of detainees, while the fate of more than 100,000 unidentified detainees remains unknown due to their enforced disappearance. In the case, the court must be persuaded that arbitrary arrest, enforced disappearance, torture and death resulting from torture is a systematic policy used by the Syrian government against a wide range of opponents to its policies, with the aim of eliminating, silencing or excluding them for their role in protests and for the their legitimate demands of freedom, dignity and democracy.
While it could be observed that the practices of Myanmar officials against the Rohingya rise to the crime of genocide, it is often argued that the violations in the Syrian scenario do not rise to that level, with the exception of the crimes of the Islamic State in Iraq and Syria (ISIS) against the Yazidis. However, this should not preclude us from filing a test case in the Court and involve the argument of genocide, particularly through the frequent use of weapons and chemicals. From this standpoint, the Syrian Center for Media and Freedom of Expression believes that there are reasonable grounds for linking the policy of arbitrary detention, torture, enforced disappearance, siege, bombing and starvation to impose surrender in order to forcibly displace Syrian ethnic, national, religious or ethnic groups, as acts that rise to the level of the crime of genocide with the aim to wipe out certain groups and destroy them.
On 03 February 2015, the International Court of Justice looked into the application of the convention on the prevention and punishment of the crime of genocide, opposing Croatia to Serbia. The Court did not find a pattern of conduct indicative of intent to genocide (paras. 508-514). The majority of judges concluded the following:
The Court cannot see in the pattern of conduct on the part of the Croatian authorities immediately before, during and after Operation Storm a series of acts which could only reasonably be understood as reflecting the intention, on the part of those authorities, physically to destroy, in whole or in part, the group of Serbs living in Croatia. As has already been stated above, not all of the acts alleged by Serbia as constituting the physical element of genocide have been factually proved. Those which have been proved — in particular the killing of civilians and the ill-treatment of defenceless individuals — were not com- mitted on a scale such that they could only point to the existence of a genocidal intent. It is true that Serbia also cited, in its argument on Croatia’s “pat- tern of conduct”, the administrative measures imposed to prevent the Krajina Serbs from returning home. According to Serbia, these confirm the conclusion — which it asks the Court to draw — that the real target of Operation Storm was the Serb population. In the Court’s view, even if Serbia’s allegations in regard to the refusal to allow the Serb refugees to return home — allegations disputed by Croatia — were true, that would still not prove the existence of the dolus specialis: genocide presupposes the intent to destroy a group as such, and not to inflict damage upon it or to remove it from a territory, irrespective of how such actions might be characterized in law. The Court concludes from the foregoing that the existence of the dolus specialis has not been established. Accordingly, the Court finds that it has not been proved that genocide was committed during and after Operation Storm against the Serb population of Croatia.
However, there were dissenting opinions. Judge Cançado Trindade, for instance, presented his dissenting opinion in this case, which consists of 19 parts, and it includes the foundations on which he based his position contrary to the decision of the majority of the court’s judges. He says:
Other forms of intimidation, it continued, involved shooting at the houses of other ethnic groups and throwing explosives at them. Attacks on churches and mosques were part of the campaign of intimidation. Another tactic included “the shelling of population centers and the cutting off of supplies of food and other essential goods”. Cultural centers were also targeted, and snipers shot “innocent civilians”; any movement “out of doors” was “hazardous”. A careful examination of the arguments of the contending Parties, as well as wit- ness statements, presented to the Court, discloses a systematic pattern of conduct of destruction, in the period of the armed attacks of Serb forces in Croatia, in particular in some selected municipalities, — namely, Lovas, Ilok, Bogdanovci and Vukovar, and Saborsko. The events occurred therein, as narrated in sequence, can, in my perception, be clearly examined in the light of the relevant provisions of the Convention against Genocide (in particular Article 2), to establish the actus reus of the crime of genocide (and also, in my understanding, the mens rea — infra).
Judge Cançado then adds:
In my understanding, evidential assessments cannot prescind from axiological concerns. Human values are always present, as acknowledged by the historical emergence of the principle, in process, of the conviction intime of the judge. Facts and values come together, in evidential assessments. The inference of mens rea/dolus specialis for the determination of responsibility for genocide, is taken from the conviction intime of each judge, from human conscience. Ultimately, conscience stands above, and speaks higher than, any willful diktat.
It could be inferred from these inputs that filing a case to the International Court of Justice, which includes committing the crime of genocide in Syria, has its basis in law, objectively and subjectively. This is due to various elements to the conflict such as the widespread violence in the conflict, its duration, and the brutality of the belligerents, in particular the Syrian government. It could also be said that the link between the siege, starvation, bombing and surrender followed by enforced displacement, and the frequent use of chemical weapons by government forces are matters that may show that the crime of genocide has been committed. In some cases, the intent of establishing a ‘homogenous’ society in Syria were made explicitly through statements made by the Syrian president Bashar al-Assad and his generals (e.g. Essam Zahreddin).
Moreover, the findings of the first report by the Organization for the Prohibition of Chemical Weapons (OPCW) Investigation and Identification Team (IIT) published on 08 April 2020, found that the Syrian Arab Air Force has used chemical weapons in three different incidents in March 2017 in Syria. This reinforces the hypothesis of a pattern of behavior to infer the existence of criminal intent on the part of the Syrian government to determine its responsibility for genocide.
The Convention Against Torture
The 1984 Convention against Torture and the International Agreement for the Protection of All Persons from Enforced Disappearance of 2006 provide further grounds for cases that may be brough before the International Court of Justice. These two conventions contain provisions that enable states parties to file a lawsuit against another state party to the court regarding its commission of crimes stipulated in those treaties during the course of Armed conflict in Syria.
On 19 February 2009, the Kingdom of Belgium filed in the Registry of the Court an Application instituting proceedings against the Republic of Senegal in respect of a dispute concerning Senegal’s compliance with its obligation to prosecute Mr. Hissène Habré, former President of the Republic of Chad, or to extradite him to Belgium for the purposes of criminal proceedings. Belgium based its claims on the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984, as well as on customary international law. In its Application, Belgium invoked, as the basis for the jurisdiction of the Court, Article 30, paragraph 1, of the Convention against Torture and the declarations made under Article 36, paragraph 2, of the Statute of the Court, by Belgium on 17 June 1958 and by Senegal on 2 December 1985.
Article 30(1) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, reads that ‘any dispute between two or more States Parties concerning the interpretation or application of this Convention which cannot be settled through negotiation shall, at the request of one of them, be submitted to arbitration. If within six months from the date of the request for arbitration the Parties are unable to agree on the organization of the arbitration, any one of those Parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court.’
On 19 February 2009, immediately after the filing of its Application, Belgium, referring to Article 41 of the Statute and to Articles 73, 74 and 75 of the Rules of Court, filed in the Registry of the Court a request for the indication of provisional measures and asked the Court “to indicate, pending a final judgment on the merits”, provisional measures requiring the Senegal to take “all the steps within its power to keep Mr. H. Habré under the control and surveillance of the judicial authorities of Senegal so that the rules of international law with which Belgium requests compliance may be correctly applied.” In this regard, Belgium requested the Court to adjudge and declare that :
- The Court has jurisdiction to entertain the dispute between the Kingdom of Belgium and the Republic of Senegal regarding Senegal’s compliance with its obligation to prosecute Mr. H. Habré or to extradite him to Belgium for the purposes of criminal proceedings ;
- Belgium’s claim is admissible;
- The Republic of Senegal is obliged to bring criminal proceedings against Mr. H. Habré for acts including crimes of torture and crimes against humanity which are alleged against him as perpetrator, co-perpetrator or accomplice;
- Failing the prosecution of Mr. H. Habré, the Republic of Senegal is obliged to extradite him to the Kingdom of Belgium so that he can answer for these crimes before the Belgian courts.
Furthermore, Belgium requested the International Court of Justice to adjudge and declare that:
- Senegal breached its international obligations by failing to incorporate in its domestic law the provisions necessary to enable the Senega- lese judicial authorities to exercise the universal jurisdiction provided for in Article 5, paragraph 2, of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ;
- Senegal has breached and continues to breach its international obligations under Article 6, paragraph 2, and Article 7, paragraph 1, of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and under customary international law by failing to bring criminal proceedings against Mr. Hissène Habré for acts characterized in particular as crimes of torture, genocide, war crimes and crimes against humanity alleged against him as perpetrator, co-perpetrator or accomplice, or to extradite him to Belgium for the purposes of such criminal proceedings.
Senegal, in turn, considered that Belgium’s demands were internationally wrongful, and asked the court to dismiss the case. The Court, however, concluded that, at the time of the filing of the Application, the dispute between the Parties did not relate to breaches of obligations under customary international law and that it thus has no jurisdiction to decide on Belgium’s claims related thereto. It is thus only with regard to the dispute concerning the interpretation and application of Article 6, paragraph 2, and Article 7, paragraph 1, of the Convention against Torture that the Court will have to find whether there exists a legal basis of jurisdiction.
The Court found that the claims of the Kingdom of Belgium based on Article 6, paragraph 2, and Article 7, paragraph 1, of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 are admissible. It also found that the Republic of Senegal, by failing to make immediately a preliminary inquiry into the facts relating to the crimes allegedly commit- ted by Mr. Hissène Habré, has breached its obligation under Article 6, paragraph 2, of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984.
Article 7(1) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, provides that the State Party in the territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution. The Court interpretation of this Article meant that if the State in whose territory the suspect is present has received a request for extradition in any of the cases envisaged in the provisions of the Convention, it can relieve itself of its obligation to prosecute by acceding to that request. It follows that the choice between extradition or submission for prosecution, pursuant to the Convention, does not mean that the two alternatives are to be given the same weight. Extradition is an option offered to the State by the Convention, whereas prosecution is an international obligation under the Convention, the violation of which is a wrongful act engaging the responsibility of the State. Accordingly, the court found that the Republic of Senegal, by failing to submit the case of Mr. Hissène Habré to its competent authorities for the purpose of prosecution, has breached its obligation under Article 7, paragraph 1, of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984.
In addition, Article 5(2) of the Convention provides that each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in paragraph I of this article. This Article was interpreted by the court to mean that in failing to comply with its obligations under Article 6, paragraph 2, and Article 7, paragraph 1, of the Convention, Senegal has engaged its international responsibility. Consequently, Senegal is required to cease this continuing wrongful act, in accordance with general international law on the responsibility of States for internationally wrongful acts. Senegal must therefore take without further delay the necessary measures to submit the case to its competent authorities for the purpose of prosecution, if it does not extradite Mr. Habré.
It is evident thus far that filing a lawsuit with the International Court of Justice concerning crimes resulting from torture and enforced disappearance committed by the Syrian government on a large scale has its basis in law, objectively and subjectively. There are more than one hundred thousand people who were subject to torture, detention and enforced disappearance in Syria. In this case, the International Court of Justice could be invited to compel the Syrian government to allow access for the team of the Independent International Commission of Inquiry on the Syria Arab Republic, and representatives of the International Impartial and Independent Mechanism (IIIM) to assist in the investigation of the most serious crimes committed in Syria since March 2011, and to inspect prisons in the country. The Court could also compel the Syrian government to ensure conditions conducive to investigation and the collection of data which may be used in the future trials of war criminals.
Provisional Measures “Torture”
The International Court of Justice has the power to take whatever provisional measures it deems necessary according to Article 41 of the Statute of the International Court of Justice. The article stipulates that “The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party.”
“The Rules of Court ” in Articles 73 to 78, under the title “Interim Protection”, provide more details about the nature of provisional measure and the way it is indicated. Following these articles, any party may submit a request for the indication of provisional measures at any time during the course of the proceedings in the case and the Court shall immediately consider this request. In addition to that, the Court may at any time decide to indicate provisional measures without any request from the parties. It is important to note that any measures indicated by the Court shall immediately be communicated to the Secretary-General of the United Nations for transmission to the Security Council.
The purpose of provisional measures:
- To protect the rights of the parties.
- To preserve evidence.
- To prevent disputes from escalating.
- To ensure the implementation of the final judgment.
In accordance with the abovementioned determinants and taking into consideration that the case is based on the Convention against Torture, in addition to reviewing the provisional measures decided by the court in judicial precedents and reflecting it on the Syrian case, also, taking into account the obligations of Syria under the Convention against Torture, the following points may be subject to provisional measures in which the court is required to make a decision, besides the measures that the court may decide on its own initiative:
- To adopt an immediate and effective moratorium on executions and death sentences issued by the Syrian courts since 2011. In particular, those issued by the Military Field Courts and the Counter Terrorism Court, as these sentences were based on confessions obtained under torture.
- To form a UN committee of experts with a mandate to inspect and verify the cessation of all forms of torture and other cruel, inhuman, or degrading treatment or punishment that take place in official and unofficial Syrian detention centers and prisons, and to request the Syrian government to hand over a list of all detention centers in Syria.
- To consider the following a form of torture; the poor conditions in places of detention as well as denying detainees access to health care. Besides, to work immediately to improve these conditions and to ensure health care for detainees in accordance with “the Nelson Mandela Rules”.
- To request the Syrian government to ensure the preservation of evidence related to torture crimes, and to prevent their destruction and/or obstructing access to them, especially evidence related to; victims who died under torture, individual and mass graves, and DNA samples.
- To oblige the Syrian government to submit a list of the names of detainees who have been sentenced to death, and to mention if this sentence was executed or not. This list should be accompanied by all the documents issued by the courts in this regard.
- To oblige the Syrian government to submit to the court a list of the names of detainees who were detained by the Syrian authorities, and who are still in detention. Also, to disclose the names of the detainees who died during detention.
- To require the Syrian government to promptly issue suspension orders, refer to the judiciary, and present to a public and fair trial, for anyone suspected of committing, attempting to commit, participating, or being complicit in the crime of torture (Article 4 of the Convention). No exceptional circumstances, like the state of war, may be invoked as a justification of torture (Article 2 paragraph 2). An order from a superior officer or a public authority may not be invoked as a justification of torture. (Article 2 paragraph 3).
- To require the Syrian government, as a matter of urgency, to amend the national laws in line with its obligations under the Convention against Torture, and to revoke the decrees affording immunity for crimes committed on duty which result, in practice, in impunity for acts of torture committed by members of security services, intelligence agencies and police. Also, to abolish decrees and orders that prevent their prosecution (Decree 14 of 1969, as an example).
Is it possible to request for the extradition of an alleged perpetrator to another State party to the convention for prosecution?
In principle, the request for the extradition of alleged perpetrator to other State party to the convention is permissible under Article 8 of the convention, which provides,
“1. The offences referred to in article 4 shall be deemed to be included as extraditable offences in any extradition treaty existing between States Parties. States Parties undertake to include such offences as extraditable offences in every extradition treaty to be concluded between them.
- If a State Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another State Party with which it has no extradition treaty, it may consider this Convention as the legal basis for extradition in respect of such offences. Extradition shall be subject to the other conditions provided by the law of the requested State.
- States Parties which do not make extradition conditional on the existence of a treaty shall recognize such offences as extraditable offences between themselves subject to the conditions provided by the law of the requested State.
- Such offences shall be treated, for the purpose of extradition between States Parties, as if they had been committed not only in the place in which they occurred but also in the territories of the States required to establish their jurisdiction in accordance with article 5, paragraph 1.”
It is clear that the convention, in principle, obliges States parties to allow the extradition of perpetrators of torture. According to Article 8(1) of the Convention, States shall include the crime of torture in their extradition agreements as an extraditable offence. However, the principle of non-refoulement should be respected if the State party has substantial grounds for believing that the person would be in danger of being subjected to torture. Furthermore, Article 8(2) of the Convention stipulates that the potential extradition may not be dependent on the existence of an extradition treaty and the Convention may be considered as the legal basis for extradition.
For instance: The Criminal Procedure Code of Luxembourg requires authorities to either extradite or to prosecute an alleged perpetrator.
In the Maldives, the Prohibition and Prevention of Torture Act stipulates that the crime of torture should be included in extradition agreements. If there is no extradition agreement, the Convention should serve as a basis for extradition between State parties.