NEW YORK CITY — Long-anticipated hearings in a landmark case on state-sponsored torture in Syria began at the International Court of Justice in The Hague on Tuesday. Representatives of the Syrian government—which had requested a nearly three-month delay in the proceedings to allow it time to prepare—did not attend.
“The court regrets the non-appearance of the Syrian Arab Republic in these proceedings,” President of the International Court of Justice (ICJ) Joan Donoghue said at the start of the hearing, which was publicly live-streamed. The Syrian Embassy in Brussels informed the court on Monday that its government would not attend, but would make its case in a written letter.
Canada and the Netherlands initiated proceedings against Syria at the International Court of Justice (ICJ) in June for torture “entrenched in the Syrian system of detention” and employed “on a massive scale” in violation of the United Nations Convention Against Torture, which Damascus ratified in 2004.
The case marks the first time state torture in Syria will be examined by an international court. The ICJ—the highest judicial organ of the United Nations (UN), also referred to as the World Court—is not a criminal court, but rather rules on disputes between states. Its rulings are final, binding and cannot be appealed.
Canada and the Netherlands have asked the court to order Syria to accept responsibility for violating the Convention Against Torture, cease any ongoing violations, prosecute perpetrators and provide “full reparation” for injured victims.
On Tuesday, Canadian and Dutch representatives presented oral arguments in which they asked the court to issue a set of provisional measures ordering Damascus to stop and prevent torture and other violations while the case is ongoing.
“Every day counts,” Dutch representative René Lefeber told the court. Syrians currently detained or at risk of detention “cannot afford to wait any longer,” he added.
Pointing to an empty row of chairs on the other side of the courtroom, Lefeber called Syria’s absence—after an “extraordinary request” for a three-month extension—“emblematic of its conduct throughout the dispute resolution process” during which he said it “delayed and obfuscated its position at every turn.”
Syria’s absence from Tuesday’s hearing “will have no bearing on the case at hand and the proceedings will continue,” Alan Haji, a legal advisor at the Syrian Justice and Accountability Center (SJAC) based in The Hague told Syria Direct.
Torture survivors, activists and family members of some of Syria’s thousands of forcibly disappeared people gathered outside the Peace Palace in The Hague on Tuesday, holding pictures of their loved ones and calling for accountability. For them, Damascus’ absence from the court was not surprising.
“I didn’t expect anything else from the regime,” Ahmad Helmi, a Syrian torture survivor and co-founder of the Ta’afi Initiative supporting former detainees, told Syria Direct from The Hague. “It is a clear sign that it is becoming more and more [a] rogue state.”
Yasmin Mashaan, co-founder of the Caesar Families Association, said “the regime is flouting international norms, mocking all international law.” On Tuesday morning, she carried pictures of five brothers she lost in Syria. Four were killed by the regime, including her brother Oqba, who was arrested in March 2012. He was later identified among more than 50,000 photos of detainees who died in state custody that were smuggled out of the country by a military defector code-named Caesar.
Alan Kessler, representing Canada, presented oral arguments before the International Court of Justice in The Hague on Tuesday in a case brought against Syria by his government and the Netherlands for violating the United Nations Convention Against Torture. Syria elected not to present oral arguments or send legal representatives, 10/10/2023 (International Court of Justice/Screenshot by Syria Direct)
The Canadian-Dutch case against Syria began in September 2020, when the Netherlands announced it would act to hold Damascus responsible for torture committed in violation of the Convention Against Torture. Canada joined the initiative in March 2021.
After more than two years of negotiations with Syria—including two in-person meetings in Abu Dhabi, the exchange of 66 diplomatic communications and a formal request for arbitration—Canada and the Netherlands filed their joint application to the ICJ this past June.
Read more: ‘Impunity is not an option’: Syrian regime torture before the ICJ
The application notably referenced enforced disappearance “on a widespread and massive scale” as a form of torture, for both detainees and their family members. It also highlighted sexual and gender-based violence against male and female detainees, including children.
The two countries simultaneously requested provisional measures, in part, to protect Syrians “who are currently, or are at risk of, being subjected to torture and other cruel, inhuman or degrading treatment or punishment” from “irreparable harm.”
According to ICJ rules, a request for provisional measures “shall have priority over all other cases” as “a matter of urgency.” Accordingly, oral arguments were scheduled for July 19 and 20—just over a month after the Dutch-Canadian application—but at Syria’s request were postponed for 83 days, much to the dismay of torture survivors and advocates.
Haji, of SJAC, emphasized that any party to a case before the ICJ has the right to request adequate time to prepare. In the days leading up to Tuesday’s hearing, he read the requested delay as “a signal that they want to participate.”
But to Helmi, “the delay is a message, an attempt by the regime to downplay the urgency of the case,” he told Syria Direct. “It is saying: ‘It’s not that serious. If you delayed it, it means it’s not that serious,’” he added. “It is the Syrian regime continuing to make light of torture.”
“Every delay means the death of some people in detention,” Mashaan added.
Canadian government representative Teresa Crockett told the court on Tuesday that “during the three-month delay…there have been at least 15 deaths documented due to torture committed by Syria.” In July, the UN’s Commission of Inquiry on Syria reported that torture in Syria continued unabated from January 2020 to April 2023, the end of its reporting period.
Alan Kessler, also representing Canada, described the provisional measures as “quite literally a matter of life and death,” adding that “Syria’s decision not to participate in today’s proceedings does not shield it from the court’s directives.”
The provisional measures Canada and the Netherlands first requested from the ICJ in June include “effective measures to cease and prevent” all torture and mistreatment, end arbitrary detention and release those arbitrarily detained. They also requested that Syria be ordered to allow independent monitors and medical personnel access to detention sites, disclose the locations of burial sites and not destroy any evidence related to the case, among other measures.
As part of the proposed measures, Syria would be ordered to report all actions taken to the court within six months, and every six months thereafter.
On Tuesday, Canada and the Netherlands added an eighth measure to “reduce the risk of torture,” such as instructing personnel in detention facilities, checkpoints and hospitals to treat detainees in accordance with the Convention Against Torture and suspending any personnel suspected of torture. The new measure also called for the lifting of “de facto immunity” for perpetrators, and for statements made under torture not to be used as evidence.
Syrian survivors and family members were consulted by the Canadian and Dutch governments regarding the provisional measures, Mashaan said. She and other advocates requested further additions. “These measures would save lives. They could also lead to the fate of people who died or were forcibly disappeared being revealed,” she said.
ICJ President Donoghue said at the close of Tuesday’s hearing that the court would issue its order on the provisional measures “as soon as possible.” The court could choose to order some of the measures or all of them. In a previous case brought by Gambia against Myanmar for genocide, the ICJ issued an order for provisional measures 44 days after hearing oral arguments.
Despite Syria’s boycott of Tuesday’s hearings, there are signs that it is taking the case seriously.
Syria, like all UN member states, recognizes the legitimacy and authority of the ICJ, established by the UN Charter in 1945. Damascus has been involved in multiple cases before the court, including a 2004 ICJ advisory opinion confirming the illegality of Israel’s separation barrier and a pending advisory opinion on the legality of Israel’s presence in occupied Palestinian territory.
Since the Netherlands first announced it intended to hold Syria responsible for violations of the Convention Against Torture, Damascus has accused it—and Canada—of hypocrisy and politicizing the ICJ.
This past July, an unnamed source at Syria’s foreign ministry called the Canadian-Dutch torture accusations “disinformation and lies.” He told the official Syrian Arab News Agency (SANA) that both countries were “completely unqualified and lack[ing] any legitimacy to give sermons on human rights” in light of “the crimes that were committed in the colonies and against the country’s [sic] indigenous population.”
But while state officials have publicly called the ICJ case baseless, recent policy changes made by Damascus make it “clear that the Syrian regime is taking the court into account,” Helmi, of Ta’afi, said.
One year ago, Canada and the Netherlands submitted a formal request for arbitration after negotiations reached a deadlock. Damascus never responded to the request, but it was clear that a case before the ICJ was brewing. In the months that followed, Syria formally criminalized torture for the first time in March 2022. In September 2023, the country abolished its notorious military field courts.
“You can see that the timing of it is not just random,” Haji, of SJAC, said. “The state is more cautious now. They are taking measures to at least appear in compliance, before there is a case,” he added. “I think there is some utility in this process.”
Helmi and Mashaan considered these changes a direct response to the prospect of a case at the ICJ, but said they are surface-level at best. Helmi called the laws “insufficient” and “unrealistic,” while Mashaan said they were a “formality.”
When Syria’s new torture law was enacted, Lynn Maalouf, Amnesty International’s Deputy Regional Director for the Middle East and North Africa, said it “effectively whitewashes decades of state-sanctioned human rights violations” by not addressing impunity for perpetrators, offering redress for past victims or including protection measures.
The end of the military field court system is also an “empty decision,” Mashaan said. “The problem isn’t abolishing courts, so much as allowing human rights committees to come in, representation for the accused, international observers to monitor the legal process.”
Yasmin Mashaan holds pictures of the five brothers she lost in Syria—four of whom were killed, forcibly disappeared or tortured by the regime—outside the Peace Palace in The Hague as hearings began in a landmark torture case brought against Syria by Canada and the Netherlands on Tuesday, 10/10/2023 (Caesar Families Association/Yasmin Mashaan)
‘The right to respond’
While Syrians gathered outside the ICJ on Tuesday, solidarity demonstrations took place inside Syria later in the day.
In southern Suwayda province, where an anti-regime protest movement has continued since mid-August, protesters gathered and chanted. One woman’s sign read: “Today at the International Court of Justice, tomorrow at the International Criminal Court. The Syrian people sentenced you since 2011.”
“The Syrian regime always says ‘we reserve the right to respond,’” Helmi told Syria Direct in the days before the hearing. “So we do reserve the right to respond. It is not a criminal court, so there won’t be a voice for witnesses, testimonies and victims. We will make our voices heard outside,” he added. “Whatever the court will say, we will respond from the streets.”
While the case at the ICJ is a dispute between states, “for the first time, the voice of Syrian victims, even if it’s not directly…[will] finally be heard, and their suffering could be recognized by the world’s highest court,” Haji said. “This can expose the whole system of criminality.”
Cases at the ICJ often go on for years. But if, in the end, the 15 judges rule that Syria has violated the Convention Against Torture, “it means that Syrian people have been subject to torture,” he added. “You confirm their victimhood…you are establishing an authoritative, not only historical, but also legal record of the serious harm.”
Recognition of state-sponsored torture by the world’s highest court could pave the way for legal proceedings in other courts, against “the individual human beings, not the abstract entity of a state,” Haji said. “You can then go after them for criminal responsibility.”
Read more: Accountability abroad: Mapping Syria-related cases in foreign courts
Helmi and Mashaan hope the very existence of the case before the ICJ, as well as possible provisional measures, could help slow the pace of regional normalization with Damascus, which was welcomed back to the Arab League in May.
“Just being brought to this court is a condemnation,” Mashaan said. “The countries that normalized with the regime, or are heading that way, they recognize this court.”
“It means that there is still hope,” Helmi said. “I would be naive to expect huge changes in the reality in Syria. I’m not betting on that. I’m betting on the longer term,” he added. “Tyrants rely on the long game. They rely on people getting bored…to normalize the crime by prolonging the crime. This is the narrative we are trying to fight against.”
Mashaan sees the case at the ICJ as part of a long, slow fight for accountability. “We will succeed. We succeeded before, with the General Assembly resolution to establish a mechanism to uncover the fate of the missing. All this is the result of the resistance and struggle of the families continuing to demand their rights,” she said.
“For me personally, the dead won’t come back. But at least I will get them a measure of justice,” she added. “I am patient.”