Syria's ICJ Torture Saga (Part 1): Unpacking Allegations and Jurisdiction

11-10-2023

Andrej Confalonieri

Middle East and Human Rights Researcher

Global Human Rights Defence

While the world’s attention remains fixed on the ongoing armed conflict between Israel and Hamas, it is crucial not to overlook the recent proceedings before the International Court of Justice (the “ICJ” or the “Court”). On Tuesday 10 October 2023, the ICJ reconvened to hear arguments during the provisional measures phase of a contentious case involving a different armed conflict. This case revolves around the alleged violations of the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (the “Convention Against Torture” or the “Convention”) by the Syrian Arab Republic (“Syria”). This article aims to provide an overview of the allegations and jurisdiction, serving as the initial part of a series that will later delve into an analysis of the Court's ruling on provisional measures, set to be published in the upcoming weeks.

On Thursday 8 June 2023, Canada and the Kingdom of the Netherlands (“the Netherlands”) jointly submitted an application to the ICJ against Syria, [1] accompanied by a request for provisional measures. [2] As previously mentioned, this application centres on alleged violations of the Convention Against Torture. In their submission, Canada and the Netherlands asserted that Syria has been in breach of multiple obligations emanating from the Convention Against Torture, [3] which is ratified by all three states discussed in this article. These allegations encompass “the use of torture and other cruel, inhuman or degrading treatment or punishment” and extend back to at least 2011 when the brutal suppression of civilian demonstrations began. [4] This includes instances of “abhorrent treatment of detainees, inhumane conditions in detention facilities, enforced disappearances, the use of sexual and gender-based violence, and violence against children”. [5] Additionally, Syria stands accused of employing chemical weapons as a means of intimidating and punishing civilians, resulting in severe physical and psychological suffering, injuries, and numerous fatalities. [6] Canada and the Netherlands further contended that Syria has failed to fulfil its positive obligations outlined in the Convention Against Torture. Specifically, they argue that Syria has neglected to conduct thorough and impartial investigations into incidents of torture and deaths that occurred in detention. [7] 

Canada and the Netherlands are seeking to find the Court’s jurisdiction based on Article 36(1) of the Statute of the Court and Article 30(1) of the Convention Against Torture. Article 36(1) of the Statute of the ICJ grants the Court jurisdiction when, inter alia, a treaty or convention in force between the involved states establishes such jurisdiction. Correspondingly, Article 30(1) of the Convention Against Torture stipulates that the Court's jurisdiction comes into play when the parties are unable to agree on the organisation of arbitration within six months following a request by one party. This pertains to disputes “which cannot be settled through negotiation” and concern “the interpretation or application of the Convention”. While it is possible to make a reservation on this article, [8] Syria has chosen not to avail itself of this option, thereby allowing parties to the Convention to bring cases against it before the ICJ. 

There are therefore three jurisdictional requirements to be met: first, the presence of a dispute about the interpretation or application of the Convention Against Torture; second, the incapacity to resolve this dispute through negotiations; and third, the absence of an agreement on arbitration within six months of a request to initiate such proceedings. [9] Furthermore, it is important to note that the ICJ has the authority to indicate provisional measures if it holds prima facie jurisdiction. In other words, the Court “need not satisfy itself in a definitive manner that it has jurisdiction as regards the merits of the case”, but rather make a preliminary determination to prescribe provisional measures. [10]

Regarding the case discussed in this article, the second and third conditions appear to have been satisfied. [11] However, due to their diplomatic nature, this article does not delve into these requirements at this point. Focusing on the first jurisdictional condition, in past cases before the ICJ, such as Ukraine v. Russian Federation, [12] parties have occasionally argued that an application under a treaty misrepresented the actual dispute between them. Instead, they claimed the genuine dispute revolved around another issue, such as the recognition of two self-proclaimed republics and their responsibilities under the UN Charter. [13] In principle, the Court has not accepted these arguments when it becomes apparent from the facts that a legal dispute concerning the relevant convention does indeed exist. [14] In any case, the claims made by Canada and the Netherlands are unlikely to face criticism regarding the true nature of the dispute, as the facts and allegations cited “fall directly within the provisions of the [Convention Against Torture]”. [15] Consequently, it appears that the ICJ has at least prima facie jurisdiction over this case. 

Now, our attention shifts to the impending decision on provisional measures, which was the subject of hearings on Tuesday, 10 October and Wednesday, 11 October. Once the verdict is issued, we will delve into the details promptly. This discussion will take place in the coming weeks, in accordance with the case law of the Court, where rulings on provisional measures are typically delivered within a matter of weeks. [16] 

Sources and further reading

[1] See the application: International Court of Justice, Joint Application Instituting Proceedings Concerning a Dispute under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Canada and the Kingdom of the Netherlands v. The Syrian Arab Republic <Joint application instituting proceedings> (accessed 11 October 2023).

[2] See the request for the indication of provisional measures: International Court of Justice, Request for the Indication of Provisional Measures, Further to the Joint Application Instituting Proceedings Concerning a Dispute under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Canada and the Kingdom of the Netherlands v. The Syrian Arab Republic <international court of justice request for the indication of provisional measures further to the joint application> (accessed 11 October 2023).

[3] Joint Application (n 1), para. 2.

[4] Ibid. 

[5] Ibid. 

[6] Ibid.

[7] Ibid, para. 51.

[8] Article 30(2) of the Convention Against Torture.

[9] Balkees Jarrah, ‘The Netherlands’ Action Against Syria: A New Path to Justice’ (Just Security, 22 September 2020) <The Netherlands’ Action Against Syria: A New Path to Justice | Human Rights Watch> (accessed 12 October 2023).

[10] Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar), Provisional Measures, Order of 23 January 2020, ICJ Reports 2020, p. 3, para. 16.

[11] See Joint Application (n 1), paras 17-21.

[12] Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v Russian Federation), Preliminary Objections, paras 122-137.

[13] Ibid. See also Matina Papadaki, ‘Complex Disputes and Narrow Compromissory Clauses: Ukraine’s Institution of Proceedings against Russia’ (EJIL: Talk!, 7 March 2002) <Complex Disputes and Narrow Compromissory Clauses: Ukraine’s Institution of Proceedings against Russia – EJIL: Talk!> (accessed 12 October 2023).

[14] Lawrence Hill-Cawthorne, ‘The Responsibility of Syria under the Convention Against Torture before the ICJ’ (EJIL: Talk!, 6 October 2023) <The Responsibility of Syria under the Convention Against Torture before the ICJ – EJIL: Talk!> (accessed 12 October 2023).

[15] Ibid. See Joint Application (n 1), paras 25-58.

[16] Human Rights Watch, ‘Syria: World Court Begins Watershed Torture Case, Urgent Measures Sought to Stop Abuses’ (9 October 2023) <Syria: World Court Begins Watershed Torture Case | Human Rights Watch> (accessed 12 October 2023).