On the 12th of June 2023, the International Court of Justice (ICJ) issued Statement No. 28/2023 of announcing the joint application brought by Canada and the Kingdom of the Netherlands against the Syrian Arab Republic regarding alleged violations of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. According to the applicants, these violations include torture and other cruel and inhumane treatment, including degrading treatment of detainees, inhumane conditions in detention centers, enforced disappearance, sexual violence, gender-based violence, and violence against children, in addition to the use of chemical weapons with the aim of terrorizing and punishing the civilian population. These attacks led to many deaths and injuries, in addition to adding to the physical and mental suffering of survivors.
On September 18, 2020, the Dutch government announced that it had sent a legal memorandum to the Syrian government demanding that it responds to allegations of gross violations of human rights, and a violation of the absolute prohibition of torture under the Convention. The Canadian government later joined the memorandum on March 4, 2021 demanding answers. According to a statement issued by the Dutch government in March 2021, the Syrian government announced its willingness to engage in dialogue with the Netherlands about the latter’s decision to go to the ICJ; however, the Syrian government went back and obstructed the course of negotiation and the proposal to organize arbitration as stipulated in the Convention Against Torture. Therefore, Canada and the Netherlands decided to take the matter of Syria’s gross human rights violations to the ICJ. They also called for the imposition of temporary (conservative) measures, in accordance with the authority of any state party to the Court’s Statute to request the initiation of these procedures, which the Court must consider urgently.
In September 2020, the Syrian Center for Media and Freedom of Expression (SCM) issued a legal paper titled “Syria and the International Court of Justice” that included proposed provisional measures based on judicial precedents. These proposed measures include:
- 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).
The Dutch-Canadian action today is an addition to the international efforts working towards addressing the state of impunity in Syria and constitutes a response, even if partial, to the demands of the Syrian victims’ families, associations, and organizations that have been working on exposing the reality of violations in Syria since 2011, and mobilizing international support for their demands. Taking the matter directly to the ICJ also distances the issue of gross human rights violations in Syria from avenues in which national and geopolitical interests take precedence over issues of human rights and justice. The ICJ action also removes the obstacle of the veto power that both Russia and China hold at the Security Council and used to prevent the referral of the Syrian file to the International Criminal Court (ICC).
Despite that, it should be noted that the course of international litigation before the ICJ is a long process surrounded by a number of complications, including Syria’s rejections to declare its acceptance of the Court’s compulsory jurisdiction (since it is not sufficient for a state to be a party to the statute of the ICJto recognize the compulsory jurisdiction of the court, but a special declaration is required in this regard). The problem of implementation is also a possible complication given that if the Syrian government refuses to implement the judgement voluntarily, the Russian-Chinese veto remains an obstacle to its implementation through the UN Security Council, although the Court’s decision has the strength of the case; it is not subject to any method of appeal. This is indicated by Article (60) of the provisions of the Statute of the International Court of Justice, and Article (94) of the Charter of the United Nations.
Finally, presenting the matter before the ICJ and hearing it publicly remains an essential step on the path to justice for Syrians to stop the violations committed against them, ensure accountability, reparations, compensation, and to prevent it from happening again. It is a complex and long process that is completed by ending the suffering of Syrians and guaranteeing their right to an effective solution, and begins with recognizing the importance of the victims’ and missing persons’ families’ demand to establish a special UN mechanism to reveal the fate of the missing in Syria, most of whom have suffered torture at the hands of the Syrian security services. Therefore, SCM calls on all member states to vote in favor of the creation of a new international mechanism to reveal the fate of missing persons in Syria that is put during the next UN General Assembly scheduled in June 2023 at its headquarters in New York.