What is the effectiveness of ICJ provisional measures to prevent torture acts in Syria?

International Court of Justice (ICJ), November 16, 2023 (X/International Court of Justice)

International Court of Justice (ICJ), November 16, 2023 (X/International Court of Justice)

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Enab Baladi – Baraa Khattab

After a wait that lasted for months and sessions that included complete neglect and absence of the Syrian regime, the International Court of Justice (ICJ) order on November 16 directing the Syria regime to take all measures within its power to prevent acts of torture and other abuses is a milestone toward protecting civilians in Syria.

The world court order responds to the Netherlands’ and Canada’s request for what are known as “provisional measures,” aimed at stopping ongoing violations and supporting steps necessary for future proceedings. It is legally binding on Syria.

On June 8, 2023, the Netherlands and Canada filed a case alleging that Syria is violating the International Convention Against Torture. All three countries are party to the treaty. The case is not a criminal proceeding against individuals but seeks a legal determination of state responsibility for torture, according to the Human Rights Watch (HRW).

The court’s order stipulated that Syria, in accordance with its obligations under the Convention against Torture, which it ratified in 2004, shall “take all measures within its power to prevent acts of torture and other cruel, inhuman or degrading treatment or punishment and ensure that its officials, as well as any organizations or persons which may be subject to its control, direction or influence, do not commit any acts of torture or other acts of cruel, inhuman or degrading treatment or punishment.”

The court also ordered Syria to “take effective measures to prevent the destruction and ensure the preservation of any evidence related to allegations of acts within the scope of the Convention.”

Political symbolism

The case filed against the Syrian regime in the International Court of Justice is extremely important, given that all countries are bound by its decisions, according to Fadel Abdul Ghany, Chairman and founder of the Syrian Network for Human Rights (SNHR).

Abdul-Ghany explained that the ICJ decisions must be implemented, but the court does not have the power to implement them, meaning the concerned state can violate the decision.

Mohammad al-Abdallah, Director of Syria Justice and Accountability Center (SJAC), told Enab Baladi that when the International Court of Justice finally decides on the basis of the case, it will also decide on the question of whether the Syrian regime adhered to the initial ruling regarding “provisional measures” or not.

It is possible, according to the human rights activist, that the court will condemn the Syrian regime for its failure to respect the decision with regard to “not destroying evidence and protecting Syrians from torture,” adding that “the decision of the International Court of Justice has great political importance and symbolism.”

Al-Abdallah does not expect the Syrian regime to implement the court’s decision or to have direct effects, adding that the Syrian government is concerned and confused in working with the court, adding that the regime initially boycotted the court, only to later inform it of its presence, and the day before the first hearing it informed the court about its absence from the session.

The director of the SJAC clarified that if the state concerned with the decision does not care about the law or can be protected by a veto in the Security Council, then coercively enforcing the court’s decision against it is considered a limited opportunity, but this does not negate the importance of the decision, as such rulings are discussed in the Security Council, and voted on them. It is expected that Russia and China will use their “veto” power, which makes its implementation by the regime unlikely.

 

The Syrian regime’s confusion and lack of knowledge in dealing with the court’s decision reinforces that the Syrian government is the one who committed these violations and condemns it.

Mohammad al-Abdallah, Director of Syria Justice and Accountability Center

 

As for Abdul Ghany, he said that it’s unlikely that the Syrian regime would abide by the court decisions, as it failed to attend hearings, which is an enhancing factor to speed up the course of justice. 

“Pressure” on the United Nations

The Director of the Syria Justice and Accountability Center, Mohammad al-Abdallah, told Enab Baladi that the court’s decision in a transitional phase constitutes pressure on the United Nations with regard to the almost unsuccessful or stalled Geneva negotiations.

The ICJ’s November 16 decision did not determine the merits of the case, but only the “provisional measures” requested by the Netherlands and Canada to “stop torture” and “prevent the destruction of evidence” concerning acts of torture.

According to al-Abdallah, the ICJ’s decision is of utmost political significance, and no state in the world wishes to be condemned and have a decision against it by the International Court of Justice.

The decision is important in the course of litigation, as it can be invoked in subsequent trials when Syrians bring proceedings against former officials, security figures, or officers who arrived in Europe by using it as proof that the Syrian government systematically committed torture and failed to stop it, according to al-Abdallah.

 

A decision of the International Court of Justice condemning the Syrian government for the systematic use of torture reinforces the victims’ account and refutes the Syrian regime’s narrative that the images of “Caesar” and other evidence are incorrect.

Mohammad al-Abdallah – Director of Syria Justice and Accountability Center

 

It also helps the Syrians to perpetuate the idea that Syria is a country where torture is systematically practiced by its government, while its government has failed to stop this torture and is even destroying evidence of it, adding that all of these points are in the interest of the Syrians with regard to issues of immigration, asylum, and their forced return to Syria.

Al-Abdallah pointed out that two diplomats from the Syrian missions were recently appointed, and it is believed that they will be based in Belgium and Geneva to represent the Syrian government in litigation procedures.

“Historic” decision

The decision of the International Court of Justice was welcomed internationally and by human rights organizations, and Human Rights Watch described the decision as “historic” and a landmark step towards protecting civilians in the country.

“The World Court’s landmark order requires Syrian authorities to prevent acts of torture against its own citizens,” said Balkees Jarrah, associate international justice director at Human Rights Watch. “With systematic and widespread torture still a reality in Syria, the implementation of this ruling will be a matter of life or death for many Syrians in detention centers across the country.”

For its part, the International Commission of Inquiry for Syria welcomed the court’s decision ordering the regime to take all measures to prevent and stop torture in its prisons.

The Commission said, “This is a historic order from the highest court in the world to stop torture, enforced disappearances, and deaths in Syrian detention facilities.”

The Syrian Network also welcomed the decision, noting that more than 135,000 people, including 3,693 children and 8,478 women, are still suffering arbitrary arrest, enforced disappearance, and torture in Syrian regime forces’ detention centers from March 2011 until last August.

The United States and the United Kingdom welcomed the decision, and the United States Embassy in Syria said on the social media platform X account, “We welcome @CIJ_ICJ’s provisional measures order, a key step toward holding the Assad regime accountable for the reported torture of 1000s. Victims, survivors & families deserve justice & accountability for atrocities. We must push for a political solution to achieve justice.”

For its part, the British Embassy in Syria welcomed the decision and posted on X, “We welcome @CIJ_ICJ’s order in the landmark case filed by Canada and Netherlands against the Syrian regime, requiring measures be taken to prevent more torture and cruel & inhumane treatment at the regime’s hands. A vital step towards justice for survivors and families.”

The ICJ order was preceded a day before by an International arrest warrant for al-Assad and his brother, Maher al-Assad, and two top aides for being suspected of complicity in war crimes for the attacks, blamed by the opposition on the regime, that killed more than 1,400 people near Damascus in August 2013.

On June 8, Canada and the Netherlands submitted a joint application to the International Court of Justice to file a lawsuit against the Syrian regime.

The application relates to the regime’s international responsibility due to its “gross and systematic” failure to fulfill Syria’s obligations related to preventing torture and other forms of cruel and inhuman treatment and numerous violations for the provisions of the Convention against Torture.

Canada and the Netherlands also asked the court to order “provisional measures,” in accordance with Article 41 of the court’s statute, to stop torture and cruel, inhuman, and degrading treatment by the regime’s government, pending the determination of the case.

 

 

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