Will the Netherlands Government succeed in Ending Syrian Government’s Impunity for War Crimes?

On September 18th, 2020, the Netherlands government announced its decision to hold the Assad-led Syrian regime accountable for gross human rights violations under International Law – a move drawing considerable appreciation from the international community that has been trying to draw attention to the plight of Syrian civilians who have been subjected to constant attacks and torture by the government since the conflict began in 2011. Through the formal recognition of Syria’s human rights violations, the Netherlands government seeks to end the impunity of the Syrian government for perpetrating violence against its civilians.

In particular, the Syrian government has been accused by the Netherlands of violating the United Nations Convention Against Torture (UNCAT). Notably, in the suppression of the voice of the dissenters and in an attempt to discourage others from criticising the government, the Syrian regime has employing cruel methods of torture in detention centres across the country. Over the course of the past few years, several credible reports have emerged that corroborate the same. According to the UN Commission of Inquiry on Syria, large scale violence is being perpetrated against the critics of the government in state-run detention centres.

Syria’s Liability under the UNCAT

By constantly targeting its citizens through inhumane torture tactics, the Syrian government has violated several provisions of the UNCAT. The introduction of the convention refers to article 5 of the Universal Declaration of Human Rights and Article 7 of the International Covenant on Civil and Political Rights that states that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”.

There is sufficient evidence that suggests that the Syrian government’s treatment of its citizens amounts to torture as per the definition provided in article 1 of the convention. Article 1 of the UNCAT defines torture as referring to the infliction of pain or suffering by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. Moreover, Syria has failed to take any “effective legislative, administrative, judicial or other measures to prevent acts of torture” in areas under its own jurisdiction as provided under Article 2(1) of the convention. In the present case, the acts of torture are sanctioned by the superior government officials themselves. However, such sanction cannot be used to justify torture as provided under Article 2(3) of the convention.

The Dutch government’s decision warrants celebration as it is the first time that a nation has formally decided to bring Syria before the International Court of Justice (‘ICJ’). On the International accountability front, attempts have been made in the past to hold Syria responsible for its human rights violations but they have mostly failed.

Accordingly, a draft security council resolution had been introduced to bring Syria before the ICC. However, the case was ultimately not referred to the ICC owing to the veto power of two permanent UNSC members- Russia and China. It is worth noting here that the conflict in Syria has come to be shaped through diplomatic considerations of a few powerful nations, mainly, the United States, Russia, and China. As the aforementioned information indicates, both China and Russia support the Assad-led Syrian government whereas the US supports the rebel civilians that wish to break free from the government’s rule. Against this background, it has been quite difficult to prosecute the Syrian government for violating international law before any international court or tribunal.

Possible Methods for the ICJ to Exercise Jurisdiction over the Matter

Unlike the International Criminal Court that prosecutes an individual’s liability for violating principles of international law, the International Court of Justice focuses upon resolving a dispute between two nation-states. Accordingly, Syria (a state party to the UNCAT in its own right) has been brought before the ICJ under Article 30(1) of the convention. Under Article 30(1) of the Convention, the ICJ can exercise jurisdiction over the matter if: (a) there is a dispute pertaining to the “treaty’s application or interpretation”;(b) it is unable to get resolved through negotiation, and (c) the parties are unable to agree on arbitration within six months of a request for the same.

As of now, it seems unlikely that the dispute will be resolved through means of negotiation or arbitration as the Syrian government has rejected the Dutch government’s allegations and has even further accused it of serving the interests of the United States. Moreover, the Foreign and Expatriates Ministry claims that the move exceeds “the UN and International Law”. In such a scenario, it seems quite plausible that the Syrian government will ultimately be prosecuted before the ICJ. Even if Syria rejects the ICJ’s jurisdiction over the claims brought by the Netherlands, the ICJ can still exercise jurisdiction over the matter as per article 93 of the UN Charter which states that “All members of the United Nations are ipso facto parties to the Statute of the International Court of Justice”. As Syria has been a member of the UN since 1961, it is bound by its jurisdiction. Moreover, Syria has yet to make any reservation with regards to the ICJ’s jurisdiction as provided for under article 30(2) of the UNCAT.

Due to the nature of the Syrian conflict and the role played by political considerations, a case before the ICJ appears to be the only way to end Syria’s impunity. However, this does not mean that other avenues have not been explored. In March 2019, human rights lawyers filed a case on behalf of Syrian refugees against Syrian President Bashar-Al-Assad for allegedly committing crimes against humanity. The ICC cannot directly exercise jurisdiction over the matter as Syria is not a state party to the Rome Statute. Therefore, the legal team has put forward that the precedent set in the Rohingya case should be used by the ICC to exercise jurisdiction over the matter. It remains to be seen whether the International Criminal Court will exercise jurisdiction over the matter or not. Furthermore, in April 2020, the German government initiated legal proceedings against two Syrian Officers on charges of crimes against humanity. This was done under the principle of Universal Jurisdiction that allows domestic courts to prosecute war crimes that have been committed in other jurisdictions.

Though the International Court of Justice cannot exercise criminal jurisdiction, it can exercise jurisdiction over claims brought by one sovereign nation against the other. In Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), the ICJ recognized the states parties to the UNCAT have the right to initiate proceedings against a state for non-compliance with the treaty. In this particular case before the ICJ, Belgium initiated proceedings against Senegal owing to its failure to hold former Chadian dictator Hissene Habre accountable for his alleged crimes of torture and crimes against humanity, leading to the eventual culmination of the establishment of Extraordinary African Chambers that ultimately convicted Habre.

The court also made observations pertaining to the case’s admissibility. It was contended by Senegal that the claims of Belgium were inadmissible owing to its lack of ‘special interest’ and therefore, the international responsibility of Senegal could not be invoked. Though Belgium proved its special interest in raising the claims, it also argued that “every state party to the CAT is entitled to insist that other state parties fulfill their obligations under the Convention”. The court found Belgium’s claims as admissible and observed that “States parties to the Convention have a common interest to ensure . . . that acts of torture are prevented and that, if they occur, their authors do not enjoy impunity”. By doing so, the court recognized the common interest of state parties to hold other states accountable for non-compliance with the treaty. The court defined these obligations as erga omnes parties.

This case is relevant for prosecuting Syria as it is the only case in which a member state has been brought before the ICJ under CAT. Furthermore, a similar stance has been taken by the ICJ in Provisional Measures Order (The Gambia v. Myanmar) wherein the state of Gambia brought claims against Myanmar for perpetuating large scale violence against Rohingya Muslims and violating the Genocide Convention. The ICJ found the Gambia’s claims admissible on the grounds that despite the lack of any special interest, it was liable to invoke the state responsibility of another state so as to ensure its compliance with the convention (para. 37).

Both precedents should provide legitimacy to the Netherlands’ claims against Syria before the ICJ as per the principle of obligations erga omnes parties.

Conclusion

In November 2011, the Committee against Torture had requested a special report of Syria in accordance with Article 19.1 of the UNCAT – a provision that provides for the committee to seek information from state members through reports. However, Syria refused to cooperate in this regard and even failed to send its delegate to the meeting. Instead, it tried to undermine the authority of the committee to request such additional information and further refused to provide any information to the United Nations Commissioner for Human Rights’ Facts Finding Mission and the United Nations Commission of Enquiry. This attitude of non-compliance that has been adopted by the Syrian government has forced the international community and organizations to step forward in order to investigate the situation in Syria.

 

Vaishnavi Chaudhry is a third-year undergraduate student at Rajiv Gandhi National University of Law, Punjab, India. Her research interests include Public International Law, Human Rights Law, and Gender Justice.

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