‘Impunity is not an option’: Syrian regime torture before the ICJ

ATHENS — On Monday, the International Court of Justice announced that the Netherlands and Canada instituted proceedings against Syria for violating the Convention Against Torture. The initiative comes amid an unprecedented push towards normalization with the Assad regime by its neighbors, even as accountability efforts continue farther afield.

The case would make the International Court of Justice (ICJ) the first international court to rule on torture in Syria. Until now, cases have been brought in national courts against Syrian officials for torture and other crimes against humanity, notably in Germany.

In their joint application to the court, Canadian and Dutch representatives said the use of torture is “pervasive and entrenched throughout the system of detention in Syria and continues today.”

The legal step was a “happy and long-awaited” moment for Ahmad Helmi, who was detained and tortured in nine Syrian prisons between 2012 and 2015. “As a survivor, I never thought with the current environment that I will have any sense of justice, and that the people who tortured me and killed my friends under torture, will be held accountable,” Helmi added. He is the co-founder of the Ta’afi Initiative, a survivor-centered organization supporting former detainees. 

“This is the chance for the international court to show that impunity is not an option,” he said.

This case before the ICJ—the principal judicial organ of the United Nations (UN)- began at the initiative of Dutch authorities in September 2020. They sought to hold the Syrian regime accountable for breaching the Convention Against Torture (CAT), which Damascus had ratified in 2004. In March 2021, Canada joined the Dutch initiative. 

After two years of negotiations—including two in-person meetings with their Syrian counterparts in Abu Dhabi in 2022 and the exchange of 66 diplomatic communications aimed at the “cessation of violations of the Convention against Torture, assurances and guarantees of non-repetition and full reparation for victims,” Canada and the Netherlands finally deemed the process “futile” and launched the case.  

The Syria Network of Human Rights (SNHR) worked with Dutch and Canadian authorities to provide evidence supporting the case. “The Assad regime has killed through torture at least 15,039 Syria citizens, among them 190 children and 94 women,” SNHR head Fadel Abdul Ghany said. “For us, and for all of those they killed under torture, this legal step means a lot after long time.” 

This attempt to hold Syrian authorities accountable indicates “democratic countries are still interested in protecting human rights and freedoms,” said Joumana Seif, legal advisor at the European Centre for Constitutional and Human Rights (ECCHR). Seif was confident that having systematic torture in Syria on the table of the “highest court in the world” would “encourage people to speak out and  restore the hope for justice.”

For years, Seif has struggled to explain to Syrian survivors that “all these very powerful countries cannot do anything to stop Assad or pressure him to release the detained and the missing persons,” she said.

For Ibrahim Olabi, a Syrian-British lawyer who provided assistance to The Netherlands on the matter, the submission is “a historic breakthrough in the pursuit of justice for Syria,” bringing “international judicial recognition to the suffering and injustice that millions of victims and survivors of the Syrian regime’s atrocities have endured for so long.”

Sexual violence as a tool of torture

The legal proceedings specified that sexual violence, including rape, has been deployed as a means of torture by the Syrian government and its affiliated militias. “Women and girls have been routinely raped. Electric shocks and genital mutilation are also forms of torture frequently administered,” read the legal text. 

For Seif, who was part of the legal team in Germany’s Koblenz trial—in which sexual and gender-based violence  were successfully prosecuted as crimes against humanity—the inclusion of this type of violence in the ICJ proceeding is key. 

“We have proof in the Koblenz verdict that sexual and gender-based Violence  has been committed systematically and in a widespread manner, and that women’s bodies were used as a weapon of war,” Seif said. Due to social stigma, the use of sexual violence “not only destroys the survivor or the victim, but it has a very long lasting impact on the social level—it’s a tool to destroy and fragment society,” she added. 

Regional normalization

This step at the ICJ comes a few weeks after Bashar al-Assad was welcomed back to the Arab League and attended its summit in Saudi Arabia.  For Arabs states warming ties with Damascus, the refugee situation in neighboring countries, captagon trade and Iranian influence are key concerns, even as detention and systematic torture persist in Syria. 

This ICJ case “will have a clear statement coming from an impartial legal entity that the Syrian regime is a war criminal and any further normalization will be aiding a crime,” Helmi said. He called on regional states that frame normalization as a step towards a political solution in Syria to use the ICJ proceeding “as a tool and force the Syrian regime to implement the preventive measures that the ICJ will recommend, like giving access to detention facilities.” 

For Seif, this legal step comes at “the right time, because the majority of Syrians are very disappointed with the normalization and the step of the Arab League to accept Assad again.”  

ICJ limitations? 

The ICJ  settles disputes between states over breaches of UN treaties, such as the Convention Against Torture. However, it does not prosecute individuals for crimes against humanity as in the case of the International Criminal Court (ICC).

“It’s important to note that the ICJ is not a criminal court and any judgment will not result in any perpetrators being subject to jail time,” Roger Lu Phillips, Legal Director at the Syrian Justice Accountability Center (SJAC) explained. “Still, it provides an opportunity for the international community to condemn systems of torture perpetrated by the Syrian government,” he added.

For years the road to justice at the ICC  has been blocked because Syria is not a party to the Rome Statute, the court’s founding treaty. The only way for the ICC to have jurisdiction over Syria would be through a referral by the UN Security Council, which Russia and China have repeatedly vetoed. 

These geopolitical constraints have led survivors to seek justice in foreign courts, mostly in European countries, under the principle of universal jurisdiction.

In their application to the ICJ, Dutch and Canadian authorities requested the court indicate provisional measures to be taken by the Syrian state, including: ceasing arbitrary detention, releasing those arbitrarily detained, disclosing the location of the burial sites of people who died as a result and not destroying any evidence related to the case. The implementation of these measures remains in the hands of Damascus. 

Implementing ICJ rulings has proved tricky in the past. In 1986, the court ordered the United States of America to pay war reparations to Nicaragua for violating international law through its support for right-wing militias fighting the country’s government. The US refused to comply with the ruling. 

A historic UN vote

In tandem with the ICJ case, efforts at the UN to establish an international mechanism to uncover the fate and whereabouts of over 100,000 forcibly disappeared and missing in Syria are moving forward. A vote at the UN General Assembly is expected by the end of June, and requires a simple majority to pass.

Ten Syrian associations in the Truth and Justice Charter Group have long advocated for this tool, and their demands have been backed by studies by the UN’s Independent Commission of Inquiry on Syria (COI) and Secretary General.

“We are hopeful that the decision of the General Assembly will be positive, Yasmin Mashaan, a founding member of the Caesar Families Association, told Syria Direct on Tuesday from New York City, where she had traveled ahead of the vote. “That would be the human decision, a decision that transcends any politicization,” she added.

Mashaan lost five brothers in Syria: four were killed by the Syrian regime, two were forcibly disappeared and one was identified among the more than 50,000 photos of detainees who died in government custody smuggled out by a military defector code-named Caesar. Another brother was kidnapped by the Islamic State.

“We are working for the families’ right to the truth. That’s something states  can’t deny us. If they vote against it, shame on them,” she said.  

The proposed international mechanism would collect and centralize already-available information, such as the testimonies of former detainees, before it is lost. “So far, there’s no almost zero effort to search for the missing in Syria and this has to come to an end,” Helmi said. There are “enough reports and studies, including the UN Secretary General study, saying that this is an efficient way to fight for the disappeared and find the missing in Syria.”

Hannah Grigg, Senior Program Officer at SJAC, said the creation of the mechanism would be a “historic step,” but could face limitations. “A mechanism could ensure sufficient resources and centralize search processes, but the main barrier to identifying missing persons in Syria continues to be the Syrian government,” she said.  

“Until the Assad government is pressured to release detainees and provide in-country access to investigators, including to detention centers, progress is going to be extremely limited,” she added.

“It should be clear that it is just a humanitarian mechanism, to protect the right of the families to know the truth,” Seif concluded. “This is a basic right.”