Syrians saw a watershed moment in international justice this week, as the International Court of Justice (ICJ) on Oct. 10 heard the first arguments in a case against the Syrian regime on allegations of torture. For the first time, the Syrian government’s actions appeared on the docket of an international court, as it was asked to respond to a request for provisional measures submitted by applicants the Netherlands and Canada in Application of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Canada and the Netherlands v. Syrian Arab Republic).
The Syrian government chose not to participate in the oral arguments. Lawyers for the Dutch and Canadian governments pressed on regardless, carefully laying the grounds for the granting of provisional measures, which would order Syria to end mass arbitrary detention and torture of its own citizens and release all detainees held unlawfully in its prison system. Syrian victims have waited 12 1/2 years to hear a case made against the government that terrorized them. As the case moves from provisional measures to a full merits hearing, their voices must be central in the case that Canada and the Netherlands put before the Court.
The prohibition of torture is an obligation erga omnes partes — a community obligation owed between states — which means all states have an interest in enforcing it. Syria is being brought before the ICJ for breaching the prohibition due to its ratification of the Convention Against Torture (CAT). Article 30(1) of the treaty gives the Court jurisdiction over disputes related to the interpretation or application of the convention.
On Sept. 18, 2020, the Netherlands announced that it had sent a diplomatic note to the Syrian government stating its intention to hold Syria responsible for breaches of the CAT. That was followed by a similar note from Canada on March 3, 2021. Before referring the case to the ICJ, however, the applicants had to try to resolve the dispute through negotiation, a jurisdictional requirement under Article 30 of the CAT. On June 13, 2023, 2 1/2 after the first diplomatic note was sent, the Dutch and Canadian governments announced that negotiations had failed and instituted proceedings before the ICJ.
In recent decades, the ICJ has become an important forum for adjudicating violations of human rights treaties. Currently on the court’s docket are cases concerning the Convention on the Prevention and Punishment of Genocide, including The Gambia v. Myanmar and Ukraine v. Russian Federation (2022); the Convention on the Elimination of All Forms of Racial Discrimination (CERD), including Ukraine v. Russian Federation (2019) and Armenia v. Azerbaijan; and the CAT.
Reliance on the ICJ for this purpose is not without strain. The Court’s structure, composition, and history arguably make it one of the more conservative bodies in international law, evidenced by a form of judicial interpretation that does not always give primacy to fundamental human rights standards. The court’s decision in Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), for example, drew heavy criticism from human rights groups for prioritizing state immunity and the conduct of international relations over accountability.
Lack of Official Procedures for Direct Victim Participation
From the perspective of victims, perhaps the biggest disadvantage of the court is the lack of official procedures for direct participation, because these proceedings are not usually conducted with victim-centered justice in mind. In past proceedings, however, State applicants have found ways to enable victims’ voices to come through. In 2018, Chagossian victim Liseby Elyse presented evidence to the Court during the advisory proceedings on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965. In a moving video testimony played for ICJ judges by the Mauritius delegation and recounted in Philippe Sands’ “The Last Colony: A Tale of Exile, Justice and Britain’s Colonial Legacy,” Liseby recounted the forced removal of the Chagossians from their ancestral homeland by the U.K. government to make way for a U.S. military base on Diego Garcia. In other cases, the Court has accepted as evidence videotaped statements from victims.
In December 2019, our organization, Legal Action Worldwide (LAW), supported three Rohingya victims to attend the provisional measures hearing in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar). They were the only refugees from the 2017 “clearance operations” able to travel to the Netherlands to hear then-State Counsellor of Myanmar Aung San Suu Kyi address the violence that killed 10,000 civilians, partially or fully destroyed 392 villages, and forced 750,000 Rohingya to flee to Bangladesh. During the proceedings, the Gambian legal team specifically highlighted the attendance of victims: H.E. Mr. Abubacarr Tambadou, then The Gambia’s attorney general and minister of justice, noted in his statement to the court: “I am also pleased that The Gambia’s delegation today includes members of the Rohingya community, including those who have travelled from the refugee camps in Bangladesh.” Since 2019, LAW has been assisting Rohingya victims to provide witness statements for The Gambia’s memorial to the ICJ.
It is unclear whether The Netherlands and Canada will adopt similar victim-centered approaches in the Syria torture case. At the provisional measures hearing, they relied heavily on reports of the Independent International Commission of Inquiry for the Syrian Arab Republic (COI). But some of the most powerful moments in the oral argument came when the applicants referenced individual cases, including the case of a 34-year-old man who was arrested in Daraa governorate on July 7, 2023, taken to a government detention center, and tortured to death. His body was returned to his family the following day bearing physical signs of torture. These cases highlight the stark reality of the Syrian government’s torture regime, the impact on families and communities, and the radical sense of impunity underlying the State’s actions. The evidence would be even more compelling in the victims’ own voices.
Gradual Development of Norms
Victims’ participation is gradually becoming the norm in international justice. The Rome Statute of the International Criminal Court, at Article 68(3), effectively enshrines a right to participation when the personal interests of victims are affected. The Rome Statute approach is recognized in “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law,” adopted by the United Nations General Assembly in 2005, which emphasizes access to justice for victims. When it comes to conflict-related sexual violence, the United Nations Security Council has recognized the need for a survivor-centered approach in prevention and response (U.N. Security Council S/RES/2467 (2019) para. 16).
Victims can provide compelling evidence of the enduring harm caused by acts of ill-treatment and the purposes for which it was carried out, all crucial elements to prove in a case concerning torture. We know based on statements our organization has collected from Syrian torture victims that they can provide evidence that they were targeted on discriminatory political, ethnic, religious, and gender grounds. Syrian men have indicated that state agents were obsessed with certain groups having children and used sexualized forms of torture out of a desire to cause infertility. They have described how their torturers made comments like, “We want to make you infertile. We want to vanish you from earth. We don’t want you to exist and this is just the beginning.” Women and girls have provided harrowing accounts that suggest rape and other forms of sexual violence were used to degrade and dishonor them and, through them, their religious communities. Understanding gender and religious discrimination unlocks a systematic approach for analyzing – and indicting – the Syrian government’s actions. The evidence exists in its most persuasive state, however, in the form of victim testimony.
The October hearings represented the first step in a legal battle that will probably take many years to resolve. Even at this stage, the Dutch and Canadian governments have showed a remarkable commitment to inclusion of victims’ perspective by consulting victims and their families on the selection of provisional measures needed to protect the rights at issue in the dispute.
During subsequent stages of the proceedings, there is scope for victims to contribute even more, as consideration of the merits of the applicants’ case gets under way. A hearing on the merits has eluded too many Syrian victims for far too long. Their day in court cannot come soon enough.
IMAGE: Syrian refugee ‘Tuqqa’ looks out through the window of her apartment in Lebanon’s Bekaa Valley, on June 13, 2022. – Half a million people, mostly men, have been detained in regime prisons since the 2011 onset of the war, with tens of thousands dying either under torture or due to poor detention conditions, according to the Britain-based Syrian Observatory for Human Rights. Outside prison walls, their wives are anything but free, facing a maze of red tape in a society and legal system that favours men. (Photo by DYLAN COLLINS/AFP via Getty Images)
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