We’ll See You in Court: How the Netherlands May Finally Bring Syria to The Hague

[Yasmine Nahlawi is an independent researcher specialising in R2P and its applicability to the Syrian and Libyan conflicts. Sana Sekkarie is a Security Studies master’s candidate at Georgetown University and a researcher of the Syrian conflict.]  

On 18 September, The Netherlands announced its decision to ‘hold Syria responsible under international law for gross human rights violations and torture in particular’. It appears prepared to formally submit a case before the ICJ for Syria’s violation of the Convention Against Torture (CAT) if, as per Article 30 CAT, diplomatic routes fail and arbitration attempts are also unsuccessful for at least six months. Both Syria and the Netherlands are parties to the CAT. Neither have entered reservations with respect to Article 30.

While developments on this issue are still in their infancy, it is not unreasonable to suggest that Syria’s engagement with the Netherlands’ invocation of its responsibility under international law will be absent, or, at best, unconstructive and stalling. This means that there is a very good chance that the case can make it to the ICJ, assuming the Netherlands’ continued interest in pursuing this path. This would represent a huge step forward for accountability in the Syrian context, in which accountability efforts have remained frustratingly restricted:

• A 2014 draft resolution which sought to refer the Syrian situation to the ICC was vetoed by Russia and China. There have been no further initiatives at the UNSC since to address the issue of accountability in Syria because of this veto threat.
• Various NGOs have collected hundreds of thousands of pages of evidence of international crimes committed in Syria, leading to the characterisation of the Syrian conflict as the ‘best evidence against a regime since Nuremberg’. Without judicial avenues, however, such evidence cannot be actioned.
• International arrest warrants were issued by France in 2016 against Syrian security chief Ali Mamlouk, head of Airforce Intelligence Jamil Hassan, and senior Airforce Intelligence official Abdel Salah Mahmoud, as well as by Germany in 2017 against Jamil Hassan. However, unless these individuals present themselves to France, Germany, or another country willing to act upon these arrest warrants, they are unlikely to face justice (Ali Mamlouk and Jamil Hassan have since travelled outside Syria for diplomatic and medical purposes, respectively). 
• Various European States have put accused Syrian war criminals on trial within their domestic courts on the basis of universal jurisdiction, including the first trial underway against a former Assad regime intelligence official in Koblenz, Germany. While these cases are being widely (and rightly) celebrated, it must be stressed that: (1) They are unable to bring to justice most or even many Syrian war criminals; and (2) They will not necessarily bring to justice those bearing the greatest degree of responsibility. Instead, such trials are confined to perpetrators who have made their way to European countries that are willing to exercise universal jurisdiction.
• In December 2016, the UNGA adopted Resolution 71/248, which established the International, Impartial, and Independent Mechanism for Syria (IIIM) with a dual mandate to ‘collect, consolidate, preserve and analyse evidence of violations of international humanitarian law and human rights violations and abuses’ and to ‘prepare files in order to facilitate and expedite fair and independent criminal proceedings … in national, regional or international courts or tribunals that have or may in the future have jurisdiction over these crimes’. It is not, importantly, a specialised court or tribunal, as the competency to establish such a body is reserved for the UNSC under its Chapter VII powers.

Given the constraints of the above initiatives, a case against Syria before the ICJ, which would examine the international legal responsibility of the Syrian State for the violation of the CAT, could represent a significant step towards justice. This post highlights some initial observations regarding the scope, admissibility, and enforceability of a potential The Netherlands v. Syria case.

State Responsibility

As opposed to the above-mentioned accountability efforts, which focus primarily on individual criminal responsibility, a potential ICJ case would examine Syria’s State responsibility for the violation of the CAT. Especially relevant here (although other CAT provisions are also certainly applicable) are the following CAT provisions:

• Article 2 obligation ‘to take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under [the State Party’s] jurisdiction’.
• Article 6 obligation to ‘take [alleged offenders] into custody’ and to ‘immediately make a preliminary inquiry into the facts’. The ICJ in the Belgium v. Senegal case determined that steps to conduct such an inquiry ‘must be taken as soon as the suspect is identified in the territory of the State’ (Para 86).
• Article 7 obligation to ‘submit the case [of alleged torture] to [the State Party’s] competent authorities for the purpose of prosecution [of alleged offender]’. The ICJ in the Belgium v. Senegal case affirmed that this duty cannot be circumvented due to ‘provisions of [a State Party’s] internal law’ (Para 113), and that ‘it must be implemented within a reasonable time’ (Para 114).
• Article 12 duty to conduct ‘a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed’.
• Article 13 obligation to ensure the right of an alleged victim of torture ‘to complain to, and to have his case promptly and impartially examined by, [the State Party’s] competent authorities’.
• Article 14 obligation to ensure that a victim of torture ‘obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible’.

The evidentiary standards in a potential The Netherlands v. Syria case will undoubtedly differ from individual criminal cases that have been brought before European domestic courts. The burden will fall onto the Netherlands to demonstrate that Syria violated the CAT through one or more of its State organs, or by entities whose actions are attributable to it. Relevant here will be the 53,000 Caesar photos that reveal evidence of regime tracking of thousands of tortured corpses, over 800,000 intelligence documents that were smuggled out of Syria showing the centralised chain of command for such crimes, and a nearly endless chain of witness testimony on the systemisation of this abuse, all of which point to an organised and centrally-ordered policy of torture against prisoners. Nevertheless, there will be certain limitations. The Netherlands’ legal team will likely never be able to visit Syrian regime-controlled areas, not to mention detention facilities in which the torture was committed, for evidence collection purposes. And while witness testimony is plentiful, finding mid-level perpetrators (who can provide insider information) to testify will be much more difficult because of their fears of reprisal.

Jurisdiction

At face value, the Netherlands represents a non-injured State with respect to the alleged CAT violations committed by Syria. Nevertheless, it can argue its standing before the ICJ based on the erga omnes partes nature of the prohibition against torture. In the ICJ’s 2012 Belgium v. Senegal case, for example, although Belgium maintained a ‘special interest’ – namely, its dual Belgian/Chadian nationals who were victims of alleged torture – ‘that would distinguish Belgium from the other parties to the Convention’ (Para 66), the Court decided that ‘there is no need … to pronounce on whether Belgium also has a special interest with respect to Senegal’s compliance [with the CAT]’ (Para 70). Instead, it deemed the nature of the prohibition against torture (as being owed to the international community as a whole) to be sufficient in allowing Belgium to argue this case.

The ICJ upheld this stance in its Provisional Measures Order for The Gambia v. Myanmar earlier this year. Here, the Court affirmed The Gambia’s standing to bring this case forward even though it was not specially affected by the alleged violations of the Genocide Convention. The Court stressed that ‘any State party to the Genocide Convention, and not only a specially affected State, may invoke the responsibility of another State party with a view to ascertaining the alleged failure to comply with its obligations erga omnes partes, and to bring that failure to an end’ (Para 41).

The Netherlands can presumably rely upon the above case precedents to argue its standing before the ICJ should diplomacy and arbitration fail. Although not a specially affected State, it can similarly argue that the erga omnes partes nature of the prohibition against torture is sufficient to confer upon it standing to bring forth a case against Syria for its violations of the CAT.

Provisional Measures Orders

Should the Netherlands formally bring a case before the ICJ, and should it successfully argue its standing to do so, it may request that Syria be ordered by the Court to comply with provisional measures to protect the victims on whose behalf it submits this case. Such measures can include:

• Ensuring compliance with the CAT, including through upholding minimum conditions for detainees;
• Undertaking legislative reform to ensure domestic laws’ compliance with CAT obligations;
• Investigating and prosecuting individuals accused of committing torture;
• Issuing a moratorium on executions and death sentences by Syrian courts, including the military field courts and terrorism courts;
• Revealing the fates of all detainees in Syrian courts since 2011, including those who died in custody, and the locations of those still alive;
• Preventing the destruction and ensuring the preservation of evidence regarding alleged CAT violations;
• Allowing the Commission of Inquiry, IIIM, human rights organisations, and/or a specially designated body unrestricted access to Syrian detention facilities to monitor compliance with the provisional measures order;
• Reporting periodically to the Court on compliance with the provisional measures order.

Compliance

It is questionable whether Syria, which has already defied international norms and procedures, would comply with provisional measures orders by the ICJ, and thus, whether such orders would grant even a small level of respite for Syria’s torture victims. Provisional measures orders of the ICJ have binding effect (Costa Rica v. Nicaragua Para 57). However, the ICJ remains a judicial, not executive, mechanism. It can monitor adherence to its orders for provisional measures, namely, through keeping the respective situations under continuous review and through requesting information on their implementation. Beyond this, however, the Court has no enforcement powers, and its provisional measures orders have historically been routinely violated (including, recently, by Myanmar in The Gambia v. Myanmar). The UNSC comes closest to an executive-like body in this situation, as it can give effect to Court orders through binding Chapter VII resolutions. It is already clear, however, that this body is incapable, due to Russian and Chinese vetoes, of enforcing its own resolutions on Syria, let alone of enforcing provisional measures orders of the ICJ.

Conclusion

With the Netherlands’ announcement, we should brace ourselves for a long road ahead. Any case at the ICJ is likely to span years and will face heavy resistance and non-cooperation from Syria. Damascus will do everything in its power to delegitimize such proceedings and has already accused the Dutch of supporting terrorism in Syria. Nevertheless, this potential case remains critical for establishing, in an international court, Syria’s State responsibility for contravening fundamental norms of international law. This is a long overdue step to addressing the rampant impunity that has thus far been characteristic of the conflict.