In September 2020, the Netherlands invoked Syria’s responsibility for human rights violations committed during more than a decade of conflict and violence under the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Canada joined them in March 2021. Over the past three years, both states undertook the steps required by CAT prior to resorting to the International Court of Justice (ICJ). This joint initiative culminated on 8 June 2023, with the two countries instituting proceedings against Syria before the ICJ, claiming a range of violations of CAT and requesting the Court to order provisional measures.
This case offers an important avenue in efforts to ensure accountability in Syria and is to date the only process before a formal court at the international level. Although the ICJ only considers disputes between States, these proceedings are also related to the protection of persons from torture and other forms of ill-treatment and their individual rights as victims. As pointed out by Canada and the Netherlands in their request for provisional measures, while the claim is meant to protect their rights as States parties to the CAT seeking Syria’s compliance with its obligations, it “will also have the critical effect of protecting persons in Syria who are currently, or are at imminent risk of, being subjected to torture and other [cruel, inhuman or degrading treatment or punishment]”.
The procedure before the ICJ
In accordance with Article 30(1) of the Convention, a dispute can only be referred to the ICJ if State Parties cannot settle the dispute through negotiations and if, within six months after the request for arbitration, they are unable to agree on an arbitration process. Almost three years after the first steps were taken, the two States filed the case to the Court after having considered that the above conditions were met.
Overview of the case
The institution of the proceedings on 8 June 2023 marked the beginning of the case before the ICJ. This consists of two phases: the written one in which the parties submit/exchange views with statements on facts and laws, and the oral one which includes public hearings. The parties will have
Pursuing Accountability in Syria: The Application of the CAT Case before the ICJ | October 2023
to address both the ICJ’s jurisdiction to consider the case (i.e., whether it has competence under Article 36 of its Statute) and the merits of the case (i.e., on the substance of the alleged violations).
Finally, the Court will deliberate and deliver their judgment in a public sitting. This judgment is binding on the parties and cannot be appealed.
Provisional measures
At any time during the proceedings, any party can request provisional measures (Article 41(1) of the Statute). This is based on the principle that parties must abstain from taking any steps that are prejudicial to resolving the dispute. Due to its urgency, the request for provisional measures has priority over all other cases (Article 74(1) of the Rules of the Court) and the measures ordered by the Court are binding.1
Given the continuous nature of the violations by Syria, the Netherlands and Canada have requested provisional measures. The public hearing on the request was held before the ICJ on 10 October 2023. Syria did not participate in the oral proceedings. The Court is now at the deliberation stage. Seeking to preserve and protect the rights of victims/survivors under CAT, this request was sought by the applicants. The two States asked the Court to cease arbitrary detention and release all persons who are arbitrarily or unlawfully detained, given the greater risk of being tortured. They also requested
other measures to ensure that the dispute is not aggravated, extended, or rendered more difficult to resolve. Provisional measures can also relate to the preservation of evidence to be used in the procedure on the merits.
Should one of the States decide not to participate in the oral proceedings, it would not be an obstacle to provisional measures, nor does it impact their validity.2
Conditions for provisional measures
Several conditions must be met for the Court to grant provisional measures. • Prima facie jurisdiction
The Court must assess whether the provisions relied on by Canada and the Netherlands give it jurisdiction, although it does not have to satisfy this definitively.3In this case, the Court needs to assess whether there is a dispute between the three States concerning CAT’s interpretation or application (Article 30(1) of the Convention). The Court has interpreted a dispute as a “disagreement on a point of law or fact, a conflict of legal views or interests” between the parties, and that it must be shown that one party’s claim is positively opposed by the other. 4 As
1ICJ, LaGrand (Germany v. United States of America), Judgement of 27 June 2001, para. 102.
2ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Judgement of 27 June 1986, para. 31.
3Ibid., para. 24.
4Ibid., para. 28
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highlighted above, it would also need to show that attempts were made to enter into negotiations and that the States could not agree on the organisation of arbitration.
In its assessment, the Court considers any statements/documents exchanged between States as well as exchanges in multilateral settings. 5In this context, it could be sufficient that the Netherlands or Canada show that it tried to negotiate by sending a note verbale to Syria.6
- Linkage between the rights and the provisional measures & plausibility test
Article 41 of the Statute is clear that the Court may only order provisional measures if these measures “preserve the respective rights of either party.” The Court could satisfy itself that the rights claimed and requiring protection are plausible, and that there exists a link between the rights and the provisional measures requested.7
In this case, it refers to the rights of all State parties to the CAT to obtain compliance with the convention by other parties. This includes that another State party does not commit torture on its territory and that it responds to alleged cases through adequate investigations and holding the perpetrators to account. In order to meet the “plausibility test” the Court must satisfy itself that acts of torture has been committed based on the evidence before it.
Given that the CAT aims to prevent torture and ill-treatment and to protect individuals from it, a link could be established for measures requesting the release of people arbitrarily detained and at greater risk of such acts, or for access to detention facilities where torture could be committed.
- Risk of irreparable harm and urgency
The Court can only order provisional measures if there is a real and imminent risk that irreparable damage will be caused to the parties’ rights before the Court delivers its final judgement on the merits.8 Urgency means that the acts leading to such harm could occur at any moment.9 The Court’s jurisprudence suggests that damage can be irreparable if it threatens the right to life and health of the people concerned. The continuous nature of torture and the lack of assurances that it will end can also be important factors to be taken into account.10
Evidence in ICJ proceedings
In the main proceedings of a contentious case and in the procedure related to provisional measures, the use of evidence is critical, and can include information submitted by the parties or from the
5ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar), Order of 23 January 2020, para. 22.
6ICJ, Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), Order of 28 May 2009, para. 50. 7Ibid., paras. 56, 57 and 61.
8ICJ, Immunities and Criminal Proceedings (Equatorial Guinea v France), Order of 7 December 2016, para. 83. 9ICJ, Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Armenia v Azerbaijan), Order of 22 February 2023, para. 46.
10 In Belgium v Senegal, supra note 7, the assurances given by Senegal was considered as an important factor.
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Court’s fact-finding powers (e.g., conducting site visits or appointing experts).11 To date, the Court has mainly used the evidence submitted by the parties.
Parties submit evidence primarily during the written phase of proceedings. Afterwards, parties may not submit evidence to the Court unless the other party gives its consent, or the Court considers that further documents are necessary (Article 56 of the Rules). The broad rules of admissibility of evidence allow most forms of evidence to be submitted. This could include such materials as Notes Verbales, videos and audio, testimonies, expert opinions, and reports from UN or non-UN organisations.
CSOs can provide important information and are well-placed to give a detailed account of the facts on the ground. NGOs can be called to take part as experts submitting their findings or make a submittal to parties to the case.12
Documents by UN bodies such as the Commission of Inquiry (CoI) and the International, Impartial and Independent Mechanism (IIIM) can also provide a wealth of information on patterns of torture, including in detention. The Court has held that the value of such reports depends on such factors as the source of the evidence, how it was obtained, and its quality or character.13 It appears likely that evidence from the CoI and the IIIM will be used by the Court.
Implications of the case for accountability in Syria
This case is the first related to Syria before a formal international court. It seeks findings on Syria’s responsibility as a State under international law regarding patterns of torture and ill-treatment during the conflict, complementing processes focusing on individual criminal responsibility (e.g., universal jurisdiction cases before foreign courts). This case provides the opportunity to address the systematic nature of torture in Syria and brings about the range of State obligations under CAT, unlike cases that are limited to individual responsibility. Furthermore, the proceedings aim to protect the rights of persons to be free from torture or other cruel, inhuman or degrading treatment or punishment.
In this context, the provisional measures requested by the Netherlands and Canada are a critical step to preserve and protect the rights of victims/survivors under CAT.
11 The Court appointed a group of experts in ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Order of 12 October 2020.
12 See for example: ICJ, Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgement of 19 December 2005, para. 60. See also ICJ, Case Concerning Application of the Convention on the Prevention and Punishment and Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgement of 26 February 2007, para. 211.
13 ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgement of 3 February 2015, para. 190.
