Q&A: Syria brought to the International Court of Justice
On June 12, 2023, the International Court of Justice (ICJ) issued a press release confirming the institution of proceedings by Canada and the Netherlands (Applicants) against Syria over claims of torture. Highlighting the scale of death and suffering inflicted by President Bashar al-Assad and his government on civilians through acts of torture, one news report stated that the Applicants seek to compel Syria to end and prevent such violations. According to another report, the case came about after Russia blocked multiple efforts in the United Nations Security Council to refer a case on human rights violations in Syria to the International Criminal Court.
Given the many issues and potential confusion arising from the ICJ case, SJAC has compiled a list of frequently asked questions below.
1) Why is Syria being sued?
Breach of international legal obligations
Syria is being sued for violating its (treaty law) obligations under the 1984 United Nations Convention against Torture (UNCAT). As a party to the UNCAT since 2004, Syria has undertaken to respect all the legal obligations stipulated in the convention. Noncompliance or violating such international legal obligations constitutes an internationally wrongful act, which leads to state responsibility. The argument is that Syria has committed “countless violations of international law” including acts of torture, which constitute a breach of its treaty obligations under UNCAT.
2) Who exactly is being sued?
The Syrian Arab Republic
Syria as a state, represented by its government and institutions, is being sued and not the head of state as an individual (or other persons). The purpose of the proceedings, in this case, is to indicate the responsibility of the Syrian state for violating its obligations under international law, namely, those outlined in the UNCAT, not to determine the criminal responsibility of individuals who have committed or ordered the commission of such violations.
3) What is the connection between Canada, the Netherlands, and Syria?
Syria, Canada, and the Netherlands are all States Party to the same convention – UNCAT
Under international law, every State Party to a convention owes the community of other States Parties (to the same convention) to respect or ensure respect of its obligations as outlined in that convention. In case of a dispute or non-compliance by a State Party, under UNCAT (Article 30(1)), other States Parties are legally entitled to challenge the violating State and refer the claim to the International Court of Justice (ICJ) for adjudication. As States Parties to the same convention (UNCAT), the Netherlands and Canada are entitled to refer their dispute with Syria to the ICJ.
On Thursday, 8 June 2023, and after fulfilling all the jurisdictional requirements under Article 30(1) of the UNCAT, the Netherlands and Canada formally submitted a joint application to the ICJ instituting legal proceedings.
4) Which court is looking into the case?
The International Court of Justice (ICJ) in The Hague
In a press release issued on 12 June 2023, the ICJ confirmed opening the case.
The ICJ should not be confused with the International Criminal Court (ICC). While the ICC is a treaty-based entity that is specialized in establishing individual criminal responsibility for serious crimes, the ICJ is the court for resolving inter-state disputes through adjudication to determine state responsibility.
5) What happens next?
Public hearings concerning the request for the indication of provisional measures
The ICJ has officially opened the caseproceedings upon receiving the joint application. Alongside their joint application, the Applicants filed a request to indicate provisional measures to preserve and protect the rights owed to them under the Convention against Torture. Provisional measures are orders that are immediately binding on one of the parties. For example, in the Myanmar case, the ICJ issued provisional orders to preserve evidence and to cease acts of genocide. A hearing has been scheduled for October 10, 2023.
After the provisional measures hearing, the normal course of proceedings consists of two phases – a written phase followed by an oral phase. In the written phase “the parties file and exchange pleadings containing a detailed statement of the points of fact and of law on which each party relies,” and in the oral phase the parties’ agents and counsel address the Court in public hearings. Following all the steps of the proceedings, as indicated in the Court’s Rules and Statute, the ICJ will issue a final judgment.
6) Can Syrian individuals submit evidence to the court?
Only if called upon by the Court or a state party to the proceedings
Generally, and in line with the Rules and Statute of the ICJ, individuals cannot approach the Court to intervene in proceedings or provide evidence on their own initiative. There are, however, other options in which Syrian individuals could participate in the proceedings in support of the Court or a state party to the proceedings. In addition to being called upon by the Court itself, Syrian victims or witnesses could be invited by a state party to the proceedings to provide evidence/testimonies in support of the (torture) claims made against Syria.
7) What will happen if the ICJ rules against Syria?
Syria will be required to comply or otherwise it could be referred to the Security Council
Amongst other things, Syria could be ordered to take certain measures, such as the halt of committing the indicated wrongful acts, ensuring the protection of certain international rights or values, or compensating for the damages or harm caused.
ICJ judgements are “final, binding on the parties to a case and without appeal.” By virtue of signing the UN Charter, and like every other UN Member State, Syria has agreed to comply with ICJ’s decisions in any case to which Syria is a party. In case of noncompliance with the judgement, Canada or the Netherlands could refer the issue to the UN Security Council (UNSC) to take further measures that will give effect to the ICJ judgement.
8. If Syria’s non-compliance with the judgement will result in a referral to the already deadlocked UNSC, what is the point of the ICJ proceedings?
The importance of the ICJ proceedings lies not only in the outcome but also in the process itself
An ICJ judgment against Syria, in this case, would contribute to the confirmation of its government’s illegitimacy. Although Syria is unlikely to comply with such judgment, the lack of (political) consensus at the UNSC would prevent a referral to the ICC – that is what makes such proceedings against Syria so important.
In this case, the voice of Syrian victims could finally be heard, and their suffering could be recognized by the world’s highest court. In addition to establishing an authoritative (historical and legal) record of the serious harm inflicted upon the victims and their families, such proceedings would help expose the system of criminality orchestrated and sustained by the Syrian state.
Regardless of the (immediate) enforceability of the judgment, establishing the responsibility of the Syrian state for the UNCAT violations would confirm the victimhood status of those who suffered harm and pave the way for future criminal prosecutions of the perpetrators. Further political or diplomatic consequences would ensue from condemnation by the world’s highest Court, which could be grounds for unilateral or collective (soft) measures by some concerned states against Syria. For instance, states could increase the isolation of the Syrian government and put more pressure on third states attempting to normalize relations with the Syrian government. Finally, the court could indicate reparation schemes, which could prove indispensable for any future transitional justice efforts in Syria.
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