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World Court orders Syria to stop torture, but advocates fear it is not enough

The UN’s highest court ordered Syria to take “all measures within its power” to prevent torture and preserve evidence related to a landmark case brought by the governments of Canada and the Netherlands. Syrian survivors and advocates welcomed the move, but had hoped for more.

16 November 2023

NEW YORK CITY — The International Court of Justice ordered Syria on Thursday to act to prevent torture and other forms of mistreatment as part of a landmark case brought by Canada and the Netherlands earlier this year.

Judge Joan Donoghue read out the court’s decision, which ordered Syria to “take all measures within its power to prevent acts of torture and other cruel, inhuman or degrading treatment or punishment,” including by forces under its “control, direction or influence.” 

The top United Nations (UN) court also ordered Damascus to take “effective measures to prevent the destruction and ensure the preservation of any evidence” related to the case, which centers on violations of the UN Convention Against Torture.

The two orders were the first binding outcomes of a case in which evidence of state torture in Syria is being heard by an international court for the first time. However, they fell short of what Syrian survivors, family members of the disappeared and advocates hoped for, and did not include six additional measures requested by Canada and the Netherlands.

“It is good that they instituted [two of] the measures and asked the regime not to destroy evidence,” Yasmin Mashaan, co-founder of the Caesar Families Association, told Syria Direct. “But we expected more than this. We are still between being disappointed, and trying to understand.” 

Canada and the Netherlands have petitioned the ICJ to order Syria to accept responsibility for violating the Convention Against Torture—which all three countries are parties to—as well as to cease any ongoing violations, prosecute perpetrators and provide “full reparation” for victims. The ICJ, also known as the World Court, is the highest judicial organ of the UN and rules on disputes between states rather than crimes by individuals. 

Thursday’s order related to eight emergency provisional measures Canada and the Netherlands requested to stop and prevent torture and other violations during the course of the case. 

Among the measures not issued by the ICJ on Thursday were orders to cease arbitrary and incommunicado detention, provide access to detainees, safeguard information related to detainees’ causes of death and disclose burial sites to living relatives. Canada and the Netherlands had also asked the court to order Syria to provide reports the implementation of the emergency measures every six months.

‘Within its power’

Ahmad Helmi, a Syrian torture survivor and co-founder of the Ta’afi Initiative supporting former detainees, was inside the courtroom in The Hague on Thursday when the court’s order was read. Shortly after, he told Syria Direct he was “happy with the fact that the court has acknowledged the urgency of the matter” by ordering the two provisional measures. 

However, “the language was not detailed enough, and there was no obligation for reporting,” he added. “It did not request any measures to end enforced disappearance.”

Mashaan, who lost five of her brothers in Syria, four of whom were killed by the regime, also worried about the language of the court’s order. One phrase struck her in particular:  The Syrian state should take all measures “within its power” to stop torture.

“I fear the regime will exploit this to say: I’ve implemented the provisions,” in the form of an anti-torture law issued in 2022 and the recent abolition of military field courts, Mashaan said. “To be honest with you, it’s scary. We’re used to the regime’s games.” 

Helmi was also concerned about what he called the “loose language” of the order. 

Still, by ordering some of the measures, the ICJ acknowledged both the urgency of addressing torture in Syria and the risk of irreparable harm posed by torture within state detention facilities. The text of the order extensively quoted reports issued by the UN’s Commission of Inquiry on Syria, which as recently as July 2023 reported that torture in Syria was “ongoing, widespread, systematic and carried out in furtherance of government policy.” 

The Syrian Network for Human Rights has documented the killing of more than 15,000 Syrians due to torture by Syrian regime forces since 2011, as well as the ongoing detention or disappearance of more than 155,000 people. 

As was the case in the first round of oral hearings held on October 10, representatives of the Syrian government did not attend Thursday’s reading at the court in The Hague. After requesting a nearly three-month delay in the proceedings, the Syrian state submitted a separate letter presenting its case rather than participate in oral arguments. 

On Thursday, Donoghue voiced the court’s “regret” that Syria decided not to participate. 

In their letter, sent on October 13, Syrian officials  informed the ICJ that their country had appointed agents to represent it before the court, Donoghue said on Thursday. This step could point to increased participation by Damascus in future proceedings.

Syrian state-run media has not reported on the case at the ICJ since July 26, when an unnamed source at the country’s foreign ministry called the Canadian-Dutch torture charges “disinformation and lies” and accused both countries of hypocrisy. 

How the Syrian state will respond to the measures ordered by the court is not yet clear, and Damascus had not commented on the decision at the time of publication. 

‘A step towards justice’

The World Court’s order to stop torture by Syrian authorities came one day after France issued an international arrest warrant for President Bashar al-Assad over the use of banned chemical weapons against civilians in Douma and other parts of the East Ghouta suburbs of Damascus in 2013. 

“We hope that the arrest warrants will send a message loud and clear to the survivors, and everyone affected by the attacks and other atrocity crimes in Syria, that the world has not forgotten them and that the fight for justice will continue,” Aida Samani, Senior Legal Adviser at Civil Rights Defenders, one of the organizations involved in the criminal case, said in a press statement on Thursday. 

The Paris Judicial Court’s Specialized Unit for Crimes Against Humanity and War Crimes also issued warrants for three senior Syrian officials: Maher al-Assad, the president’s brother and leader of the 4th Brigade of the Syrian Army, Ghassan Abbas, the director of Branch 450 of the Syrian Scientific Studies and Research Center (SSRC) and Bassam al-Hassan, a presidential advisor and liaison with the SSRC. 

With the warrant, Assad joined a small group of heads of state who are internationally wanted. The International Criminal Court (ICC) has issued arrest warrants for both Russian President Vladimir Putin and former Sudanese President Omar al-Bashir.

The existence of the warrant itself does not necessarily mean that the Syrian president will be unable to travel and attend international meetings, however. For example, Omar al-Bashir freely visited Jordan for an Arab League Summit in 2017 despite the outstanding ICC warrant. The ICC ruled in May 2019 that Jordan failed to meet its international obligations to arrest him. 

Helmi views the French step as part of a bigger picture, one that includes the ICJ’s order on provisional measures on Thursday. “Yesterday, we had an arrest warrant against the head of the Syrian regime, which proves individual responsibility. Today, the International Court of Justice took its mandate on the prevention of torture, which also proves state responsibility,” he said. “So today we have stronger evidence of the crimes in Syria, which I hope is a leap towards justice, or a step towards justice.” 

‘My hope is in the people’

The question of justice, and where it comes from, remains a thorny one for torture survivors, advocates and family members of Syria’s disappeared. Some, watching Israel’s continuing war in Gaza and a seeming abdication of the responsibility to protect civilians on the part of the international community, find their hope for international accountability is tempered by knowledge of the role political forces play.

“In light of what’s happening in the region, how we are seeing the failure of the international community and international law and order, [as well as how] we are seeing the impunity in the region, I don’t have faith in international law and order anymore,” Helmi said. 

“My hope is in the people themselves. What we are seeing recently is that states don’t want to do anything, they don’t want to take responsibility, they don’t want to do the moral and right thing, but the people are doing it.” 

Mashaan, too, finds the hope to keep fighting in the work done by people—Syrians—themselves. “Syria has slipped down the list of countries’ priorities. The only thing that makes it move up or down is the families—their resistance—and Syrian civil society organizations. It’s slow, but for the families there is no going back.”

“Accountability has gathered momentum,” Mashaan added. “So long as there are families demanding it, it cannot be stopped. This is certain.”

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