Syria’s ICJ Torture Saga (Part 2): Provisional Measures and UN Commission of Inquiry Reaction
GHRTV
19-11-2023
Andrej Confalonieri
Middle East and Human Rights Researcher
Global Human Rights Defence
Approximately a month ago, I penned an article discussing the allegations levied against the Syrian Arab Republic (“Syria”) by Canada and the Kingdom of the Netherlands (“the Netherlands”) before the International Court of Justice (the “ICJ” or the “Court”) on Thursday 8 June 2023. This involved emphasising the plea for provisional measures which accompanied the application. [1] The Court reconvened on Tuesday 10 October to hear the parties during the provisional measures phase. [2] Subsequently, on Thursday 16 November, the ICJ issued its provisional measures order effectively “[ruling] against Syria”. [3] The ICJ, with a 13 to two majority, indeed ordered Syria to,
in accordance with its obligations under the Convention against Torture, 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. [4]
The Court also added that,
Syria must 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 against Torture, including medical and forensic reports or other records of injuries and deaths. [5]
However, despite the requests from Canada and the Netherlands, the ICJ chose not to compel Syria to “provide a report to the Court on all measures taken to give effect to its Order for provisional measures”. [6]
In reaching this decision, the Court gave substantial weight to the reports submitted by the Independent International Commission of Inquiry on the Syrian Arab Republic (“the Commission”). [7] Mandated by the United Nations Human Rights Council, the Commission’s responsibility entails investigating and documenting violations of international law in Syria from March 2011 onwards. [8] Paulo Pinheiro, the Commission’s Chair, hailed this decision as a “landmark”, marking the first instance of Syria’s direct involvement in judicial proceedings, despite prior trials of some Syrians for war crimes and crimes against humanity. [9] Commissioner Hanny Megally echoed Pinheiro’s sentiments, emphasising that this order has rekindled hopes for justice among the “tens of thousands” who have endured arbitrary detention, torture, ill-treatment, disappearance, and death in Syrian detention centres. Megally stressed the Commission’s extensive investigations into international law violations, shedding light on the prolonged and profound suffering experienced by detainees and their families. [10] Furthermore, Megally underscored that millions of Syrians are still searching for their missing relatives and highlighted the alignment of the ICJ’s provisional measures order with the Commission’s longstanding recommendations since its inception while also stating that “[i]t is long overdue for the Government to take these measures”, Megally affirmed that “[d]etainees, survivors and their families deserve no less”. [11]
Sources and further reading
[1] Andrej Confalonieri, ‘Syria's ICJ Torture Saga (Part 1): Unpacking Allegations and Jurisdiction’ (GHRTV, 19 October 2023) <https://ghrtv.org/syrias-icj-torture-saga-part-1-unpacking-allegations-and-jurisdiction> (accessed 19 November 2023).
[2] Ibid.
[3] Human Rights Watch, ‘World Court Rules Against Syria in Torture Case: Urgent Measures Ordered to Stop Abuses’ (16 November 2023) <World Court Rules Against Syria in Torture Case | Human Rights Watch> (accessed 19 November 2023).
[4] Application of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Canada and The Netherlands v Syrian Arab Republic), Provisional Measures, Order of 16 November 2023, para 79. <https://www.icj-cij.org/sites/default/files/case-related/188/188-20231116-ord-01-00-en.pdf> (accessed 19 November 2023).
[5] Ibid para 80.
[6] Ibid para 5. See also Human Rights Watch (n 3).
[7] See Canada and The Netherlands v Syrian Arab Republic (n 4) paras 72-74. See also Human Rights Watch (n 3).
[8] United Nations Human Rights Office of the High Commissioner, ‘UN Syria Commission welcomes landmark ICJ order to Syria to prevent torture and destruction of evidence’ (16 November 2023) <UN Syria Commission welcomes landmark ICJ order to Syria to prevent torture and destruction of evidence | OHCHR> (accessed 19 November 2023).
[9] Ibid.
[10] Ibid.
[11] Ibid.
