1 November, 2023
by Sam Biden, Research Assistant
In 2023, Canada and the Netherlands submitted a joint application to the International Court of Justice (ICJ), on the grounds of disputed applications of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) against the Syrian Arab Republic. It must be noted that the ICJ does not have the competence to proceed with criminal prosecutions against the accused from Syria, they are only being quested to decide on a matter of dispute between the parties.
For over forty years, the systematic use of torture and cruel, inhuman, and degrading treatment or punishment (CIDTP) has cast a dark stain on the country’s human rights record. The United Nations Committee against Torture (UNCAT) expressed its deep concern back in 2010 about the routine and widespread use of torture in Syrian detention facilities. The roots of Syria’s torture problem date back over four decades. For years, individuals suspected of opposing the government have endured brutal detention and torture. UNCAT voiced its grave concerns about the prevalent use of torture in detention centers. However, 2011 marked a turning point in Syria’s saga, when the country began employing torture and CIDTP on an unprecedented scale.
The protests that followed, triggered by economic, social and human rights grievances, quickly snowballed, establishing the Syrian Civil War. The harsh practice of arbitrary detention was a focal point for the protests, with calls for the release of political prisoners echoing through the streets. The situation took a gruesome turn when Syrian security forces detained and tortured a group of children accused of defacing public buildings, sparking even more significant protests. In the wake of these protests, the Syrian government responded with a brutal crackdown. Widespread arrests were carried out during military operations and at checkpoints with demonstrators being targeted with violence in various locations. Despite initial promises of reform in the spring of 2011, the Syrian government continued its oppressive tactics against non-violent activists and peaceful protesters. This unrelenting repression led to defections within the military and the rise of armed opposition groups. Syria’s escalating unrest eventually devolved into a full-blown armed conflict, continuing to this day.
Since the spring of 2011, the Syrian conflict has been plagued by the ever developing and extensive use of torture and CIDTP, frequently in the context of arbitrary detention, such as the unlawful detainment of civilians. The vast security and intelligence apparatus, including agencies like Syrian Military Intelligence and the General Intelligence Directorate, has facilitated this brutal practice, regardless of location or detaining authority. A consistent range of torture methods, involving physical and mental torment, is employed across the country. Examples of the methods used include severe beatings, electric shocks, burning, mock executions and simulated drownings, such as waterboarding. Detainees often endure multiple and recurring periods of torture. In some instances, standardized methods involve prolonged stress positions and the use of specific torture devices, further exemplifying the cruelty.
Detainees, regardless of the reason for detainment, are subjected to torture and CIDTP as part of interrogation and incarceration processes. Syrian officials interrogate detainees to obtain information about protest organization, opposition activities and plans to defect from the military or security services. This information is then used to identify and target more suspects for arrest, resulting in thousands of protestors being subject to torture for merely expressing their political rights. Torture is also used to extract confessions related to perceived opposition activities or to force detainees to pledge not to participate in such activities in the future as a method of reinforcing the status quo of the Syrian government. Detainees are often forced to sign or fingerprint unread documents, which later serve as grounds for further detention or even convictions. The aim is not just to obtain information but also to punish, intimidate, and coerce detainees, quashing any perceived disloyalty and to instill fear in those who protest, ultimately aiming to prevent future protests due to the fear of reprisals by those considered the ‘opposition’ of the Syrian government.
Most notably, both internal and external mechanisms have failed to pursue true accountability not just for the victims, but against the perpetrators of the widespread criminality. While Syria’s Constitution and criminal laws officially prohibit torture, these laws remain unenforced in practice, often being overlooked or simply not regarded as applicable to those the government considers a threat to their own security. The government has consistently failed to conduct impartial investigations into torture allegations or deaths in detention, perpetuating a culture of impunity. Horrifically, even instances of child abuse, mistreatment, torture and deaths in Northern Syria are not sufficiently investigated by the Syrian government, sufficiently amounting to a general theme of poor accountability aimed at civilians more broadly, not just protestors. Even in cases where ill-treated detainees have appeared in court, judges have failed to order investigations. Moreover, members of the intelligence services have de facto immunity from prosecution, allowing them to escape responsibility even when brought before the justice system, making it nigh on impossible to secure any form of justice for those affected. Additionally, deaths in detention are often concealed, resulting in a plethora of mass graves where innocent civilians are buried without documentation or the capability for identification, with death certificates falsely attributing deaths to natural causes. Families are left without closure and are unable to access governmental services or exercise their civil rights: this is exacerbated by the lack of information given to the families of those affected about their missing family members.
Path to the ICC
Since 2022, international efforts have been underway to bring Iranian and Syrian military officials to account for alleged war crimes, headed by a collaboration between the Iran Human Rights Documentation Centre and international lawyer Haydee Dijkstal, a British barrister. The initiative is part of a broader push to seek justice for the victims of the long-lasting conflict and hold those responsible for their suffering legally accountable, and it remains the most public legal battle surrounding the events occurring in Syria. The request is being submitted to the International Criminal Court (ICC) and includes evidence of Syrian victims forced to flee into Jordan due to attacks and intimidation by the Syrian government and Iran-backed militia groups. The evidence is being submitted anonymously due to fears of reprisals concerning how these Syrian civilians were forced to abandon their homes and families and remain unable to return to their country. Much importance can be attributed to the case being brought directly to the ICC, allowing for the case to be heard without the need for a referral by the UNSC. This may allow for circumvention of a repeat of the Chinese and Russian vetoes against the establishment of the Special Tribunal for Syria, which would’ve had the competence to handle any international criminal matters pertaining to violations of the Tribunals Statute regarding war crimes or crimes against humanity.
The victims being represented by this effort primarily include Syrian journalists and civilians, predominantly from Sunni towns and cities in Syria, who were victims of torture at the hands of Syrian officials. These individuals were targeted between 2011 and 2018 for their professional journalistic activities and their perceived opposition to the Assad regime, a common occurrence for those who dissent through media, with at least 860 media deaths in the past decade. The atrocities they faced include indiscriminate bombardments, shootings, extrajudicial killings, arbitrary arrest and detention, beatings and other abuses that may amount to torture and inhumane treatment. They also experienced violent repression of their right to free expression, both in the media and with public demonstrations, with civilian reporters and activists among those affected. Iran-backed militias, such as Lebanese Hezbollah and the Liwa Fatemiyoun, alongside Syrian government armed forces, are the main parties accused of carrying out the attacks in the reporting period.
The principal legal arguments being put forward are that the ICC has jurisdiction in this case because the victims fled into Jordan, which is a state party to the ICC, as well as that those who are under jurisdiction were victims of a violation of the ICC Statute, specifically crimes against humanity found in Article 7. Furthermore, Article 7(1)(d) of the ICC Statute grants the court jurisdiction over these crimes against humanity relating to “deportation or forcible transfer of population,” which refers to the forced displacement of individuals through expulsion or other coercive acts from the area where they are lawfully present, as well as “torture” and other forms of the physical deprivation of liberty. Since Syria is not a state-party member to the ICC, the ICC cannot exercise jurisdiction over the state in the event of alleged war crimes. However, since those that are being represented in ongoing legal battles fled to Jordan, a signatory state, the ICC can exercise jurisdiction and hear the case, potentially prosecuting those accountable for the actions against those affected parties and potentially other stakeholders with further input from the UNSC, if necessary.
One significant aspect of this initiative is that it targets Iranian officials for their involvement in Syria. To date, there has been little public attention paid to the legal responsibility of the Islamic Republic of Iran in the Syrian conflict, despite its significant intervention in Syria and allegations of atrocities. Iran has provided extensive military and non-military support to the Syrian government, primarily to prevent the fall of President Bashar al-Assad. This support has come at the expense of hundreds of thousands of killed, injured, and displaced Syrian civilians.
In conclusion, the joint application to the ICJ by Canada and the Netherlands, alongside the international efforts to bring Iranian and Syrian military officials to account for alleged war crimes at the ICC, mark significant steps toward achieving justice and accountability for the victims of the long-lasting Syrian conflict. The horrors endured by countless Syrians, including the systematic use of torture and cruel, inhuman, and degrading treatment, underscore the urgent need for these legal actions. The ICJ application not only addresses the ongoing human rights abuses in Syria but also highlights the importance of international mechanisms in holding nations accountable for their actions, even when criminal proceedings may not be immediately feasible. It serves as a reminder that the international community must not remain silent in the face of grave violations of international law.