State Responsibility for Acts of Torture: Netherlands/Canada v Syria at the International Court of Justice

[Veronica Bellintani is an international law expert and Senior Legal Officer at the Syrian Legal Development Programme.]

[Mouhanad Sharabati is a Syrian lawyer and Legal Officer at the Syrian Legal Development Programme.]

On June 8, 2023, Canada and the Netherlands (the applicants) jointly filed an application at the International Court of Justice (ICJ) to initiate proceedings in their names against the Syrian Arab Republic (Syria). The application concerns Syria’s international responsibility for its “gross and systematic failure” to fulfil its obligations to prohibit torture and other forms of cruel, inhuman, or degrading treatment or punishment (ill-treatment) in accordance with the Convention against Torture (CAT). The applicants have also requested the Court to indicate provisional measures ordering Syria, among other things, to immediately cease the torture and ill-treatment.

State Responsibility for Acts of Torture as Complementary Accountability Measure

For over a decade, Syrian civil society has been at the forefront of documenting violations in Syria and creating opportunities to hold the Syrian regime accountable for its crimes. Despite the magnitude of international crimes committed in Syria, pathways to international criminal justice have been marked by obstacles. Russia vetoed a referral to the International Criminal Court in 2014, and since then, the veto threat by Russia and China have foreclosed any opportunity to establish an International Tribunal for Syria, despite calls by Syrian civil society, victims and survivors. The latest attempt to open a door to the ICC took place in 2019 when an Article 15 Communication was filed in relation to the crime of forced deportation of Syrians to Jordan, a State Party to the Rome Statute. The Article 15 Communication aimed to follow the Myanmar/Bangladesh precedent and would have allowed the Court to address acts of torture as acts making up and leading to the forced deportation of civilians. However, since the filing, Syrian justice actors received no updates by ICC on this communication.

Since 2014, Universal Jurisdiction has been the sole avenue for accountability for international crimes committed in Syria. In 2021 and 2022, State officials were found responsible for crimes against humanity of torture and arbitrary detention before a German Court under individual criminal responsibility in the Anwar R. and Eyad A. cases, with an additional case against Alaa M. still ongoing. In March 2023, the investigating judges of the Paris Judicial Court ordered the indictment before the Paris Criminal Court of Senior Security Officials Ali Mamlouk, Jamil Hassan, and Abdel Salam Mahmoud for acts of torture, arbitrary detention, and enforced disappearance against two Syrian French nationals killed under torture by the Syrian regime. These cases have confirmed that acts of torture committed in Syria were not acts of lone individuals acting on their own but, rather, were part of a policy directed, approved, and overseen by the highest ranks of the Syrian regime, amounting to crimes against humanity.

The Application Instituting Proceedings under the Convention against Torture

For the legal basis, the application states that the applicants and Syria are all States Parties to the CAT. It indicates a dispute between the applicants and Syria regarding the latter’s responsibility for failing to meet its obligations under the CAT. The applicants assert that Syria, through its state organs, agents, and other individuals or entities acting on behalf of the regime or under its authority, has committed and continues to commit torture in breach of its obligations owed to the applicants as State Parties to the CAT, resulting in obligations erga omnes partes,( para. 59), obligations that are further clarified in the application for provisional measures (paras. 15-19).

As States Parties to the CAT, the applicants and Syria are required by Article 30 (1) to resolve the dispute through negotiation, and in case of failure, by arbitration (neither have reservation to Article 30). For more than two years, the applicants have made serious attempts to resolve the dispute through negotiations. However, these negotiations did not lead to a solution. As a result of the failure of the negotiations, the applicants officially requested from Syria that the dispute be referred to arbitration. Syria did not acknowledge or provide any response to the formal request made by the applicants to refer the dispute to arbitration despite the passage of the six months specified in Article 30. Therefore, the decision was taken by the applicants to refer the case to the ICJ to obligate Syria to comply with its obligations under the CAT.

On the substance of the allegations of torture, the application argues that torture and ill-treatment are entrenched in the Syrian detention system. In this regard, it also refers to the fact that individuals perceived as opposed to the regime have been subjected to torture over the past four decades. This is of importance as it seeks to position the use of torture as being inherently linked to a long-lasting, established policy by the Assad regime rather than as new practice arising from the period of conflict. It then emphasizes the systematic use of torture from the spring of 2011 onwards, and it details the wide range of State apparatus and pro-regime militias (shabiha) and committees engaged in arresting civilians and transferring them to branches of the intelligence and security services. The explicit reference to the involvement of shabiha militias is important in setting the stage for the policy of arbitrary arrest and torture as immediate repressive and violent response by the Syrian regime to the peaceful protests, as also confirmed by recent reports detailing that the Syrian regime planned, organised, instigated and deployed the shabiha from the very start of the Syrian uprising.

The application then goes on to address the commission of acts of torture in relation to the treatment of detainees, the use of torture to interrogate, punish, intimidate, and coerce individuals, and the abhorrent conditions of detentions. Violations of the following provisions of the CAT are alleged: Articles 2, 7, 10, 11, 12, 13, 14, 15, 16, and 19. The application emphasizes the use of specific forms of torture against Syrian civilians, such as sexual and gender-based violence (SGBV) and enforced disappearance. The emphasis on these two forms of torture is of particular importance to reflect in a comprehensive manner the use of torture by the Syrian regime.

The application details the use of SGBV, including rape, as a form of torture against both male and female detainees. Importantly, the application gives ample space to the stigmatization attached to the incidents, affecting victims, families, and communities and the risk of additional abuse or harm linked to traditional and cultural practices, resulting in isolation and exclusion of women from society. The application also refers to the fact that the Syrian regime intentionally used fear of sexual violence as a tool to intimidate and humiliate victims and their families, intending to weaken the political opposition movement.

Concerning enforced disappearance, the application acknowledges that family members of individuals disappeared are subjected to a severe form of pain and suffering arising from the uncertainty as to the fate and whereabouts of their loved ones and from the failure of the State to fulfil their right to remedy and truth. In this regard, the application refers to the fact that while Syrian officials have kept meticulous registers of detainees and are aware of the fate of most of those they have detained, Syria continues to withhold information. This practice is further exacerbated by the mass burial of bodies in mass graves and the issuance of death certificates for victims of torture, purporting that the victims died of natural causes, such as “heart attacks.”

The inclusion of enforced disappearance in the application is crucial in the broader justice ecosystem for international crimes committed in Syria. Indeed, despite the magnitude of the crime and the number of victims, and its long-lasting and paralysing effect on Syrian families, enforced disappearance has not yet been adjudicated in a Court of law in relation to acts of the Syrian regime or individuals affiliated with it, following the unfortunate and wrongful dismissal of charges of enforced disappearance at the Al-Khatib trial.

Lastly, it is worth to note that the application also refers to the use of Chemical Weapons (CW) as form of torture, by addressing suffocation caused by this kind of weapons as severe pain and suffering (para.2). While it is not further clarified in the Application, the reference to CW as torture and, subsequently, the fact that the Court will address the CW is significant given the extensive use of this type of prohibited weapons by the Syrian regime and the lack of justice responses to address this crime.

The applicants requested the court to declare Syria’s violations of the CAT and that Syria must cease the violations, prosecute perpetrators, and provide redress to the victims. They also asked the Court to declare that Syria has violated a peremptory norm of international law as a result of its gross or systematic failure to fulfil its obligation under Article 2 of the CAT. This final request is significant as it calls on the Court to rule whether the Syrian regime has breached jus cogens, therefore resulting in the violation of obligations erga omnes. Since the Application explicitly referred only to obligations erga omnes partes as legal grounds for the dispute, the request for this judgement from the Court would allow the Syrian regime to be regarded to have broken its obligations towards the international community as whole.

Request for Provisional Measures

The applicants have filed a detailed application with the Court requesting the indication of provisional measures. Provisional measures are temporary actions taken by the ICJ during the ongoing case to safeguard the rights of the parties and prevent any further harm until a final judgement is rendered on the merits. The applicants in the present case requested the ICJ to issue provisional measures indicating that Syria shall immediately cease torture and ill-treatment, cease arbitrary detention, allow access to detention facilities for independent monitoring and medical personnel, facilitate contact and visits between detainees and their families and legal counsel, improve detention conditions in accordance with international standards, prohibit the destruction of evidence related to the dispute, including medical records, safeguard information on the cause of death of detainees, disclose the location of burial sites, refrain from actions that aggravate or prolong the dispute, and provide regular reports to the Court on measures taken to comply with the provisional measures.

The applicants argue that the indication of provisional measures is necessary due to the urgent and critical circumstances arising from Syria’s persistent and ongoing violations of the CAT. These violations are causing “irreparable prejudice” to the applicants’ right to seek Syria’s compliance with its obligations under the CAT (paras 20-32). The applicants support their argument by referring to reports from the International Independent Commission of Inquiry on Syria (COI) that document numerous cases of civilians being subject to torture, including instances of SGBV and enforced disappearances. The application also makes reference to the case of Belgium v Senegal when discussing the “plausible rights” of the applicants with regard to the indication of provisional measures (paras 16-18). In this case, the ICJ established that the obligations under CAT apply erga omnes partes and that States Parties to the CAT have a “common interest” in upholding the rights enshrined in the convention. This common interest means that every State party owes these obligations to all other States parties of the CAT.

Conclusion

The submission of this case marks a significant milestone in the ongoing quest for justice for Syria, as it is the first time an international court examines the Syrian State’s responsibility for torture and ill-treatment in Syria. A judgement by the ICJ on the responsibility of the Syrian State would bring international recognition of the immense suffering endured by countless victims and survivors who have been subjected to torture and ill-treatment by the Syrian regime. Additionally, if the ICJ were to order provisional measures in this case, they would be legally binding on the Syrian regime. An ad hoc committee would be established by the ICJ to monitor the implementation of these measures, review information from the parties and provide recommendations. Syria must comply with the provisional measures and submit regular implementation reports. Failure to comply may result in the other party seeking recourse through the UN Security Council, which may issue recommendations or resolutions to enforce the order. Therefore, the order of provisional measures would be a substantial stride towards achieving justice for the victims in Syria and preventing further violations of the CAT.