Enab Baladi – Baraa Khattab
On February 9, the International Court of Justice (ICJ), an organ of the United Nations, fixed a time-limit for Canada and the Netherlands to submit their written pleadings concerning Syria’s violations of the Convention Against Torture on February 3, 2025, and for Syria to deliver its counter-memorial against the complaint on February 3, 2026.
The time-limit fixed by the ICJ came following a joint request submitted by both Canada and the Netherlands to the court on June 8, 2023, to file a case against the Syrian regime. The request relates to the international responsibility of the regime because of its “gross and systematic” failure to fulfill Syria’s obligations in preventing torture and other forms of cruel, inhuman, and degrading treatment, as well as the numerous violations of the provisions of the Convention Against Torture.
Both Canada and the Netherlands have also asked the court to order “provisional measures” according to Article “41” of the court’s statute, to stop the torture and the cruel, inhuman, and degrading treatment by the regime’s government pending the resolution of the case.
Accordingly, the court scheduled the first hearing session on July 19, 2023, before the postponement decision, which came at the request of the Syrian government, to October 10 and 11, 2023.
The court at the time, the principal judicial organ of the United Nations, said that it had reached its decision after having considered the “views and arguments of both parties following Syria’s request for postponement.”
Following the specified date for the first session on October 10, the regime failed to attend the first session and did not send a delegation to represent it in the lawsuit, leading to the cancellation of the second hearing session scheduled for October 11, 2023.
Lawyers and human rights activists believe the reason behind the Syrian government’s absence from the court sessions is its confusion and lack of knowledge on how to deal with the decision of the International Court of Justice.
In a previous conversation with the director of the Syria Justice and Accountability Center (SJAC), Mohammad al-Abdallah, to Enab Baladi, he said, “The confusion of the Syrian regime and its lack of knowledge in dealing with the court’s decision reinforces that the Syrian government has committed these violations and condemns it.”
During the first hearing session, the leader of the Canadian legal team, Alan Kessel, told the judges that “Syria’s decision not to participate in today’s proceedings does not shield it from the directions of the court.”
He added that “Canada and the Netherlands believe that the Assad government must respond and stop the widespread torture in the country.”
What is expected?
Al-Mutassim al-Kilani, Syrian expert in International Criminal Law, told Enab Baladi that the expected outcome is for the International Court of Justice to issue a ruling criminalizing the Syrian government for committing acts of torture, thus proving that Syria violates the Convention Against Torture and other forms of cruel, inhuman, or degrading treatment or punishment.
He added that the ruling will undoubtedly be historic from the highest courts of the United Nations, and it will have important legal ramifications in terms of the consequences of that violation, being a judicial precedent that will be relied upon in ongoing and future trials against the Syrian government, as well as subsequent political impacts in standing against normalization with a regime that tortures and commits appalling violations against its opponents.
Al-Kilani clarified that the long duration of the procedures is the 18 months requested by the Syrian government to respond to the legal memorandum of the Netherlands and Canada, which is a delaying tactic the Syrian regime is accustomed to.
Despite the long period requested by the Syrian regime, I am optimistic that there is no escape for that regime from punishment for the crimes committed against the Syrian people.
Al-Mutassim al-Kilani, Syrian expert in international criminal law.
What is the regime preparing?
Mansour al-Omari, a Syrian journalist and human rights activist, expects Syria to use the criminalization of torture law and the abolition of military field courts as a legal weapon in the International Court of Justice to demonstrate compliance with its obligations under the United Nations Convention against Torture, to refute the applicants’ accusations, according to what was published by the Cambridge Journal of Law, Politics and Art by the journalist in October 2023.
Al-Omari believes that the lawsuit filed before the International Court against the regime is linked to its issuance of Law No. “16” for the year 2022, criminalizing torture and law abolishing military field courts.
He justified this linkage by the existence of negotiations between the governments of Canada and the Netherlands and the Syrian regime before the International Court announced the lawsuit filed against it.
In June 2023, the International Court of Justice published the Dutch-Canadian joint application that initiated proceedings regarding violations of the Convention against Torture.
The application details the negotiation process with the Syrian government, including dates of correspondence, meetings, and requests made by the Netherlands and Canada.
Al-Omari said via his account on the “X” platform today, Tuesday, February 13, that the two-year timeframe is more than enough for the Syrian regime to potentially erase all evidence it can reach, including the annihilation of detainees and ramping up executions, tampering with or destroying evidence, which includes razing mass graves, manipulating, altering, or destroying medical reports, civil registries, and court archives.
And intimidating or removing key personnel by targeting officials with direct links to the top of the Syrian regime chain of command, through arrests, threats, or even assassination.
The regime will also work on issuing misleading amnesty decisions and unenforceable laws, according to al-Omari, noting that the court did not ask the Syrian government to report on its implementation of provisional measures.
Al-Omari concluded that Syrian and international rights groups can play a vital role in meticulously monitoring the relevant actions of the Syrian government and documenting them.
Procedural matter
Mohammad al-Abdallah told Enab Baladi that what happened was a procedural matter, and it is the principle of litigation before the International Court of Justice, and each party has a time-limit to submit its written pleading.
Considering it a lawsuit between countries, the petition period is one year; “Canada and the Netherlands were given one year to submit the petition, and Syria was given one year to submit its petition as well and to respond to the Dutch request.”
“What happened is that we are no longer dealing with provisional measures but at the core of the lawsuit, these are proceedings to look at the core of the case, whether Syria violated its obligations under the United Nations Convention against Torture,” added al-Abdallah.
On October 16, 2023, the court issued its decision regarding provisional measures, ordering Syria, in accordance with its obligations under the Convention against Torture ratified in 2004, to “take all measures to prevent acts of torture and other forms of cruel, inhuman or degrading treatment, and ensure that its officials or organizations or people under its control do not commit torture.”
The court affirmed the death of tens of thousands during the Syrian revolution and ordered the Syrian regime to “take effective measures to prevent the destruction of evidence related to acts of torture and other forms of cruel, inhuman or degrading treatment and ensure its preservation.”
The court adopted the foregoing measures with a voting outcome of 13 votes in favor of the resolution and two votes against, where Judge Kirill Gevorgian from Russia and Judge Xue Hanqin from China voted against the provisional measures order.
The resolution was welcomed internationally and by human rights organizations, with Human Rights Watch (HRW) describing the decision as “historic” and as a significant step towards protecting civilians in the country.
Balkees Jarrah, the deputy director of one of the organization’s programs, said that with the continued widespread and systematic torture in Syria, the implementation of this ruling will be a matter of life or death for many Syrians in detention centers.
Meanwhile, the International Commission of Inquiry on Syria welcomed the court’s decision ordering the regime to take all measures to prevent torture in its prisons and stop it.