By: Al Moutassim Al Kilani
International and Human Rights Law Expert & Researcher at the American Center for Levant Studies in Washington, D.C.
On 8 June, the Kingdom of the Netherlands and Canada submitted a formal action against the Syrian Arab Republic in the International Court of Justice (ICJ) in The Hague. The Dutch-Canadian complaint is a serious one. It alleges systematic violations by the Assad regime of the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. The 8 June submission was borne of Dutch-Canadian frustration over a long interaction with the ICJ and the Assad regime on this issue: Canada and the Netherlands first escalated their complaint against the Assad regime at the ICJ in March 2021, and though the Syrian government initially agreed to arbitration in 2021, Damascus subsequently obstructed and ignored the process, contradicting the Convention’s by-laws. In their address to the ICJ, representatives of Canada and the Netherlands cited “countless violations of international law” to support their claim.
Having been stymied by the Assad regime’s refusal to cooperate in the arbitration process, Canada and the Netherlands, in their recent submission, jointly requested the ICJ to affirm its jurisdiction over the case and to instigate interim measures for commencing official proceedings. As in 2021, the Dutch-Canadian complaint alleges that the Syrian regime’s violations encompass torture and other cruel and degrading treatment of detainees, inhumane detention conditions, enforced disappearances, sexual violence, gender-based violence, and violence against children. Canada and The Netherlands also allege that the Assad regime employed chemical weapons to intimidate and punish the civilian population, leading to numerous deaths and injuries and exacerbating survivors’ physical and psychological trauma.
In a statement before the United Nations in March 2022, Nicolas de Riviere, France’s Permanent Representative to the UN, noted, “… The Syrian women’s movement organized a meeting on the margins of the 66th session of the Commission on the Status of Women on justice. The women collected testimonies from victims of sexual violence in Syria. These testimonies complement the studies conducted by the United Nations. Their conclusion is clear: sexual violence is a systemic practice of the regime.”
And, “Bashar Al-Assad is guilty of war crimes. To ignore these crimes is to call into question the possibility of a lasting peace. This is why France opposes efforts at normalization. Syria’s reintegration into the Arab League will not put an end to external interference or to regional instability. France will continue its fight against impunity. Those responsible for all crimes will have to answer for their actions.”
What will happen next at The Hague is relatively easy to predict. The ICJ, the United Nations’ primary judicial body, has the power to review the complaint. Article 1 of the Statute of the Court (the Statute or Court System) asserts that it is not a criminal court. Under Article 35 (1) of the Statute, entire states or governmental bodies can present cases for adjudication. In contrast, Article 36 (1) maintains that the court’s jurisdiction encompasses all claims and matters specified in the Charter of the United Nations or applicable treaties and agreements. Article 36(6) stipulates that in case of a jurisdictional dispute, the Court shall resolve the dispute. The Court considers arguments submitted to it by the provisions of international law (Article 38) and applies it in this regard:
“(a) General and private international agreements that establish rules expressly recognized by the conflicting States;
(b) International custom that is considered to be a law evidenced by the frequency of use (international custom);
(c) the general principles of law recognized by civilized nations;
(d) Judgments of the courts and the doctrines of the great authors of public law in various nations, and this or that is considered a backup source for the rules of law, subject to the provisions of Article 59.”
Under these guidelines, the ICJ President will likely summon the Assad regime to court, allowing Canada and The Netherlands to present their claim again and giving the Assad regime an opportunity to defend itself. The ICJ may accept new evidence of systemic torture by the Assad government, and there is a mountain of such evidence available to the Dutch-Canadian complainants to present if they choose to do so. The court has ongoing judgments against the Syrian government and may already have the legal basis to pronounce a guilty verdict. In response, the Syrian regime will almost certainly fail to refute the allegations from Canada and the Netherlands, as evidence of violations of the Convention Against Torture has accumulated for years.
This initiative from Canada and the Netherlands could have a significant impact on justice and accountability in Syria, as well as a geopolitical impact.
Regarding accountability, the impending action at the ICJ will send a strong message to all nations that war crimes against humanity are indefensible and have no statute of limitations. It will emphasize that impunity is not an option, potentially deterring other dictators from committing crimes similar to those of the Assad regime and perhaps reducing the likelihood of civil wars. And action against the Assad regime at the ICJ could signal that international bodies are finally joining the trend of European national courts that have already taken steps against Assad regime perpetrators. If international efforts to hold Assad’s regime accountable have so far been lethargic, national courts have been the opposite. Syrian regime officials have already been tried and convicted in European courts, sometimes under the principle of universal jurisdiction. In early 2022, Germany broke new ground when it sentenced former Syrian colonel Anwar Raslan to life in jail for crimes against humanity. The landmark case saw the deposition of 80 witnesses and several torture victims. Similar cases have gone to trial in Germany, France, The Netherlands, and Sweden.
More locally, among Syrians, this step toward accountability for the regime’s actions could play an essential part in helping to encourage local reconciliation, stability, and peace. Prosecution of the Assad regime’s alleged crimes could also reduce the intensity of the ongoing military conflict and begin to deter Assad and his regime from perpetrating further war crimes and atrocities on the ground. Conversely, suppose the many millions of Syrian refugees see no measures taken to secure justice for the crimes of the past twelve years. In that case, they will continue to be deeply reluctant to return to a homeland where the perpetrators of the regime’s atrocities remain in place, having suffered no consequences.
In regional and geopolitical terms, if the ICJ proceeds with the request from the Netherlands and Canada, the action will have serious implications for the countries now seeking to normalize relations with the Assad regime and break Damascus out of its international isolation. Although the ICJ is not a criminal court, a ruling against the Assad regime will carry significant legal weight and bolster the investigation and prosecution of international criminal and civil cases. A decision against Assad in the ICJ will likely lead to further legal action against him and his regime in the European justice and civil systems, creating a thicket of judgments and punitive awards that will permanently deter European governments and businesses from engaging with Damascus in any meaningful way. Civil judgments against the Assad regime could also endanger European assets belonging to countries, corporations, or financial institutions with joint business ventures, making normalization a risky policy.
More broadly, the Dutch-Canadian ICJ action signifies a reality that is highly unlikely to change: the Western countries are simply unwilling to join the Arab capitals’ stampede to normalize with Damascus. The ICJ action, the continuing prosecutions of Assad regime war criminals in European courts, the EU’s pledge last week of almost 6 billion Euros primarily for Syrian refugees, along with the EU countries’ unanimous announcement that they will not normalize with Assad–these western messages are an unmistakable warning to the Arab capitals against proceeding on the road to Assad’s presidential palace.