Enab Baladi – Baraa Khattab

Attention turned to the Peace Palace in The Hague ten days ago, with the start of hearings in the International Court of Justice (ICJ) on the lawsuit filed by the Netherlands and Canada against Syria, while the absence of a delegation representing the Syrian regime raised questions about the reasons and its impact on the course of the court.

As the regime boycotted the first session and did not send a delegation representing it to discuss the lawsuit filed against it related to torture charges, the International Court of Justice reserved on October 10 judgment on the joint bid by Canada and the Netherlands for a provisional order requiring the Syrian regime to “immediately cease its systematic practice of torture and other forms of ill-treatment” of Syrians.

“Every day counts,” said Dutch government lawyer René Lefeber. “The persistent and recurring practice of torture in Syria only serves to underscore the pressing need for the court to indicate provisional measures to manifest threats to life and bodily and psychological integrity,” Lefeber said.

A state of “denial”

The first session focused on a Dutch and Canadian preliminary request for the court to impose orders known as provisional measures on the Syrian regime to “immediately cease its systematic practice of torture and other forms of ill-treatment” of Syrians.

As the case began to be heard in the court’s Great Hall of Justice, the 15-judge panel faced a row of empty seats reserved for the Syrian delegation.

The absence of the Syrian regime from the first session in the Court of Justice falls under the state of denial that the regime has been experiencing since the outbreak of the Syrian revolution in 2011 and is trying to convince its loyalists of it, according to Fadel Abdul Ghany, Chairman and founder of the Syrian Network for Human Rights (SNHR).

Abdul-Ghany stated that the regime is working to convince its loyalists that the “Syrian state” has not committed any kind of violations against the Syrian people and that the court is “politicized and there is no need for its existence.”

The court sessions are not attended by members of the plaintiff or defendant countries but are represented by persons or legal offices affiliated with them, according to Abdul-Ghany.

“Legal proceedings will not stop”

During the court hearing on October 10, the head of the Canadian legal team, Alan Kessel, told the judges, “Syria’s decision not to participate in today’s proceedings does not protect it from the court’s directives.”

He added, “Canada and the Netherlands believe that the Assad government must respond and stop the widespread torture in the country.”

Ibrahim al-Olabi, head of the Syrian Legal Development Program (SLDP), told Enab Baladi that the absence of the Syrian regime would not stop the court from making its decision, and if it had been present, it would have been possible to present its opinion or demand an extension of the period, but the regime chose not to come, which is a positive factor that helps speed up the court procedures.

“Legal” weapon

Syrian journalist and human rights activist Mansour al-Omari suggested that Syria would use the law criminalizing torture and the abolition of military field courts as a “legal” weapon in the International Court of Justice to say that it is fulfilling its obligations under the United Nations Convention against Torture to refute the applicants’ accusations, according to an article by al-Omari published by The Cambridge Journal of Law, Politics, and Art.

Al-Omari believes that the lawsuit filed before the International Court against the regime is related to its issuance of Law No. 16 of 2022, criminalizing torture and the law abolishing field courts.

He justified this connection by the existence of negotiations between the governments of Canada and the Netherlands and the government of the regime before the International Court announced the case filed against the regime.

The International Court of Justice announced on June 12 that both the Netherlands and Canada filed a case against the Syrian regime regarding torture in Syrian prisons, based on Syria’s failure to comply with the Convention Against Torture, and demanded that the two countries take “provisional measures” to protect those at risk of torture.

The International Court’s statement stated that Canada and the Netherlands stated in the lawsuit submitted that the regime had committed “countless” violations of international law, starting at least in 2011.

The violations, according to the lawsuit filed, include “the use of torture and other cruel, inhuman or degrading treatment or punishment of detainees, inhumane conditions in places of detention, enforced disappearance, the use of sexual and gender-based violence, and violence against children.”

The plaintiffs are demanding that the court impose “provisional measures,” including issuing orders for the regime to release arbitrarily detained prisoners and allow international monitors to enter detention centers.

The Netherlands began moving for a unilateral case in September 2020, when it asked the Syrian government to enter into negotiations to resolve the dispute related to Syria’s violations of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), to which the Netherlands and Syria joined. The Netherlands confirmed that if an agreement is not reached, it will submit the case to the International Court of Justice.

On March 4, 2021, Canada also announced that it had requested formal negotiations under the Convention against Torture to hold Syria accountable, citing the Netherlands’ declaration.

On August 9, 2021, the Netherlands and Canada submitted a written statement of facts and a legal statement to Syria, which included a description of the relief requested by the Netherlands and Canada, in particular the cessation of violations of the Convention against Torture, assurances and guarantees of non-recurrence, and full compensation for the victims.

The articles of the Convention against Torture, which the Netherlands and Canada accused Syria of violating, include Article 2, which says each state party must take effective legislative, administrative, judicial, or other measures to prevent acts of torture in any territory subject to its jurisdiction.

Since then, the Netherlands, Canada, and Syria have exchanged 66 notes verbales, including discussions on the conflict and attempts to negotiate a solution.

On September 30, 2021, the Syrian regime informed the Netherlands and Canada that it “totally rejects” characterizing the conflict as an admission of international responsibility for recent violations of its obligations under the Convention against Torture.

After more than two years of exchanging notes verbally, without any progress towards settling the dispute, the Netherlands and Canada concluded that the negotiations had reached an impasse or were futile.

On October 17, 2022, the two countries informed Syria of their decision via a verbal memorandum. On June 8, the Netherlands and Canada began legal procedures in the International Court of Justice to hold Syria accountable for torture under the United Nations Convention against Torture.

The two countries submitted a joint request to institute proceedings for violations of the United Nations Convention against Torture, with a request to indicate provisional measures.

On July 15, the International Court of Justice announced that it had decided to postpone the procedures that were scheduled to begin on the 19th of the same month to the 10 and 11 of October after the Syrian regime requested a postponement.

On September 3, just 30 days before the first hearing of the International Court of Justice and after Syria’s request to postpone it, in a clear, proactive step to confront the accusations made by the applicants in the legal proceedings before the International Court of Justice, al-Assad issued Decree No. “32” of 2023. By terminating the effect of Legislative Decree No. 109 of 1968 and its amendments regarding the establishment of military field courts.

The decree effectively ended the military field courts and stipulated that “all cases referred to the military field courts shall be referred in their current status to the military judiciary for trial.”

According to the Syrian Network for Human Rights (SNHR), at least 15,000 detainees were killed under torture from March 2011 until June 2023, including 198 children and 113 women, and approximately 98% of them at the hands of regime forces.

About 13,000 detainees remain in the prisons of the Syrian regime from March 2011 until August 2023, including 3,693 children, in addition to approximately 112,000 forcibly disappeared persons, about 85% of whom are held by the Syrian regime forces.