29 Sep On the Anvil: The Netherlands v. Syrian Arab Republic at the International Court of Justice?
On 18 September, the Netherlands announced that it was initiating legal proceedings against Syria, based on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
This move by the Netherlands brings many issues to the fore: the first is the scale and magnitude of torturebeing committed in Syria, documented in many reports and most recently in a court cases in Germany (under the aegis of universal jurisdiction); another is the role and (ir)relevance of the UN Security Council in its failure to refer this situation to the International Criminal Court; and yet another relates to the critical role of fact-finding and evidence gathering, being undertaken by the International Impartial and Independent Mechanism for Syria and other actors.
However, important as these are, I focus on the route that has been chosen by the Netherlands in this instance – that of the CAT and its potential application to the International Court of Justice.
In its press statement, referencing a diplomatic note sent to the Syrian government, the Netherlands states:
“The Netherlands has invoked Syria’s responsibility for human rights violations under international law, specifically holding Syria responsible for torture under the UN Convention against Torture. In the diplomatic note, the Netherlands reminded Syria of its international obligations to cease the violations and offer victims full reparation. The diplomatic note asked Syria to enter into negotiations, which is a necessary first step in dispute settlement. Should the two states be unable to resolve the dispute, the Netherlands can propose to submit the case to arbitration. If no agreement can be reached on this issue, the Netherlands will submit the case to an international court.”
This is a clear reference to Article 30(1) of CAT, which requires negotiation between the parties, and if unsuccessful, leads to arbitration. A failure to agree in six months to the “organization of the arbitration” clears the path to approach the International Court of Justice. For clarity, Article 30(1) states:
“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.”
There are questions that arise regarding the process contemplated by CAT, and also the underlying basis for a legal claim by the Netherlands, both explored here briefly.
Dispute process: Negotiation & Arbitration
Clearly, there are a few steps that need to be completed first, before an application to the ICJ. A few questions that arise – what does the dispute resolution process entail per CAT Article 30(1), and what is the approach of the ICJ in interpreting these requirements?
In relation to the process of dispute resolution under a treaty, and in particular, negotiations – these have been discussed in some detail in the Preliminary Objections Judgment of 1 April 2011 in the Case Concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation) (in which the court dismissed the case) and in the Judgment of 8 November 2019 in the Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation) (in which the court found it has jurisdiction and proceedings are ongoing).
I refer to these cases to assess the parameters of the process, and the manner in which it needs to be undertaken. However, keep in mind – for the purposes of this enquiry, these cases relate mainly to the International Convention on the Elimination of All Forms of Racial Discrimination (CERD Convention), and specifically, Article 22 – which refers to the necessity of negotiation or “procedures expressly provided for” in the convention. While substantially similar in the first step, i.e. negotiation, CAT specifies the procedure after negotiation, i.e. arbitration.
On negotiation, suffice it to say, it needs to be undertaken in good faith and a “genuine attempt” to engage in discussions – an aspect that was disputed and litigated by Russia in both cases. The ICJ in Georgia v. Russian Federation held that negotiation must be “distinct from disputation or protest”, and there must be genuine attempt to negotiate, and evidence of such must be submitted to the court. These are preconditions to be fulfilled before parties can approach the ICJ (which in Georgia v. Russia were not satisfied). However, using the same approach, the court found that these conditions were satisfied in Ukraine v. Russian Federation, thereby finding jurisdiction and permitting the case to proceed. The ICJ looked into the subject matter of notes verbale exchanged (to ensure they pertained to the subject matter of the treaty). It viewed the length of time taken in the negotiations (2 years in Ukraine v. Russian Federation, as opposed to a three day window in Georgia v. Russian Federation), written correspondence and face to face meetings as efforts towards a solution, and found that the negotiations had become “deadlocked” by the time the application was filed at the ICJ by Ukraine. These enabled the court to find that there were genuine attempts at negotiation, which had failed, prior to approaching the court.
In the Judgment of 20 July 2012 in Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) – dealing squarely with CAT – the ICJ examined the next step specific to this convention, arbitration. The court held that two requests for arbitration made by Belgium that were ignored by Senegal would fulfill the criteria for failure to “organize the arbitration”. Therefore, it is not necessary that the arbitration actually has to be undertaken – but that efforts at an arbitration are sufficient to satisfy the criteria which are a precondition to approaching the ICJ.
Negotiation, and then arbitration can be a lengthy and expensive process. CAT places a greater burden on the parties to resolve the dispute. These measures have to be undertaken and demonstrably in good faith, towards resolution of the dispute first, before approaching the ICJ. The legal strategy employed by Syria in responding to these initial steps taken by the Netherlands will now bear watching.
Link between treaty and peremptory norm
It is pertinent to note that there is a long history of the adjudication of claims – either against individuals or based on state responsibility in relation to torture – in domestic and regional courts, international tribunals, as well as at the ICJ itself.
If the Netherlands eventually files an application before the ICJ, it will be under the aegis of CAT and in relation to the prohibition of torture – which has been adjudicated as a jus cogens norm. The ICJ in its Judgment of 20 July 2012 (Belgium v. Senegal), para. 99, stated that “the prohibition of torture is part of customary international law and it has become a peremptory norm (jus cogens).” Based on the legal nature of the prohibition of torture – as a jus cogens norm – that the court then made the link to obligations arising as a result of being a party to the treaty, i.e. obligations erga omnes partes. It is also worth noting that while the existence of a “special interest” by Belgium in the extradition and prosecution of Hissène Habré was argued by Senegal, this was not taken into consideration by the court, in determining obligations emanating erga omnes partes, and the ability of Belgium to move the court.
Based on Belgium v. Senegal, the logic may be extended to other treaty obligations but only in relation to peremptory norms. Hence, the analogy to the Genocide Convention is apt, given the prohibition of genocide as a jus cogens norm, which is the argument used by The Gambia against Myanmar recently at the ICJ. However, the list of treaties which would permit such an action would then be limited arguably, given the intrinsic link to the norm.
As a last point related to the treaty here, Syria does not have a reservation in place relating to the dispute resolution clause in CAT, and therefore it cannot ‘opt out’ of the application of the provision. Similarly, Myanmar did not enter a reservation to Article 9 of the Genocide Convention which provides for resolution of disputes, thereby opening up this route for state accountability.
I’ve been asked a few questions as to implications of this legal strategy. The first is whether this will open the floodgates to “activist states”. I don’t think so. The path that has been chosen here is based on a legal precedent, articulated in Belgium v. Senegal, and recently reinforced by the 23 January 2020 provisional measures Order in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar) (albeit in relation to different treaty obligations, and at an early stage of the proceedings). The link between the treaty and the norm in question is also crucial, as mentioned above. In addition, the fact that a legal pathway has opened doesn’t mean that all states will be willing or able to use this – the calculus will include political will, the resources to undertake such litigation, as well as clarity in terms of what is sought to be achieved by this course of action – the “long game”, if you will.
As to the next steps – this is a process that can be long, as well as expensive. Much also depends on the strategy that the Syrian government takes – whether it responds to summons on arbitration and mires the Dutch down in extensive proceedings that get dragged on, but with no real resolution in sight. However, this is a catch-22 situation for Syria, as slowing down or creating obstructions in the proceedings would also inevitably lead to failure per the dispute resolution clause, thereby ensuring that this fructifies into a viable application before the ICJ.