Position paper on the request for the indication of provisional measures further to the joint application instituting proceedings concerning a dispute under the Convention Against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment
Canada and the Kingdom of the Netherlands
V.
The Syrian Arab Republic
The human rights situation in Syria has deteriorated over the past decades due to the imposition of a state of emergency that lasted from 1963 until April 2011 and granting the security forces vast powers to suppress fundamental freedoms and rights, especially arbitrary arrest and detention, torture, and enforced disappearance. The human rights situation in Syria has become terrible since the eruption of peaceful protests in April 2011, as the Syrian authorities have adopted systematic violence on a large scale, including arbitrary arrest and detention, kidnapping, torture, sexual violence based on gender, arbitrary executions, extrajudicial killings, and disappearances and forced and field trials.[1]
These practices have become a feature of the ongoing armed conflict in Syria and amount to war crimes and crimes against humanity when committed as part of a widespread or systematic attack directed against any civilian population with knowledge of the attack.[2] Arbitrary arrests and detentions, kidnappings, torture, executions, and enforced disappearances in Syria are mainly carried out by Military Intelligence, Air Force Intelligence, Political Security, and General Intelligence, in addition to the Criminal Security Department of the police, military prisons, and other secret and not secret persons managed by them in the country.[3]
Torture has been prohibited under the successive Syrian constitutions since 1950.[4] Until the outbreak of events in Syria in 2011, torture was not explicitly defined or included as a criminal offense under Syrian law, despite the accession of the Syrian Arab Republic to the parties to the Convention against Torture in 2004. Before issuing the new rule on torture in 2022, Article 391 of the Penalties Law related to using violence as a misdemeanor and amounted to the criminalization of torture.[5] Using violence or severity prohibited by Article 391 is punishable by imprisonment for three years and is subject to the statute of limitations. After three years, and in cases where a person dies due to torture, the statute of limitations can extend to twenty-five years, depending on the crime with which the accused is charged under the Syrian Penal Code.[6]
In 2022, the government adopted Law No. 16/2022, which officially criminalizes torture at least partially as a felony, provides severe penalties for such conduct and a longer statute of limitations.[7] The law does not address ill-treatment directly, but it is assumed to remain partially included under Article 391. It is punishable by three years in prison and a three-year statute of limitations.[8] The new law generally only refers to the ability of victims and survivors to file complaints, seeking compensation and protection from reprisals primarily governed by existing legislation and is subject to various legal barriers. Given the principle of non-retroactivity of laws, the criminal provisions of the law do not apply to torture or ill-treatment before April 2022.
The Syrian national report submitted to the Universal Periodic Review of Syria (third cycle) claims that legislation does not provide immunity for any person for crimes related to acts of torture.[9] However, the provisions of Syrian law requiring the approval of the chain of command before commencing any criminal investigation are still in effect, at least about the four intelligence branches, and the Syrian Military Penal Code, Legislative Decree No. 61/1950 amended by Decree No. 64/2008, and the legislation establishing the General Intelligence Division, which is Decree No. 14/1969. Approval of the General Command of the Army and Armed Forces or endorsement of senior officers, depending on the branch concerned, before opening any criminal investigation.[10] After that, the scope of application of Decree No. 64/2008 appears to have been categorized by Decree No. 1/2012, with the forces of the Ministry of Interior, including the Political Security Directorate, being subject to the jurisdiction of ordinary criminal courts and the establishment of a police disciplinary body to determine whether cases should be referred to the military justice system.[11]
Syrian law does not provide for the crime of “enforced disappearance, although the national report submitted to the UPR agent notes that a penalty is imposed on kidnapping and deprivation of liberty (Legislative Decree 20/2013). Since 2011, the Independent International Commission of Inquiry on the Syrian Arab Republic (COI) has documented tens of thousands of testimonies given by survivors and witnesses about torture and ill-treatment in Syrian government custody, mainly in the facilities run by the four intelligence agencies, the military prison, and the military hospital network. The Criminal Security Department of the Civil Police also engages in a widespread practice of enforced disappearance.[12]
The Syrian government widely uses torture to extract confessions. Still, the Anti-Terrorism Court and military field court judges disregard the defendants’ claims that confessions were obtained under torture regardless of the physical injuries still visible on the victims’ bodies. The Committee is unaware of any case in which the judges investigated these assertions. Even after adopting Law No. 16/2022, the Committee received no information about any case in which the Syrian government opened an investigation. In complaints of torture raised by individuals, no sources reported any case in which compensation was provided to a survivor or the surviving family or other forms of payment for torture or ill-treatment or for deaths in custody due to such treatment.[13]
Despite the Syrian government’s claim that independent monitors can conduct visits, the Committee notes that these visits only include civilian prisons, such as Adra Central Prison, excluding any military or intelligence detention facility. As previously mentioned, most cases of torture and ill-treatment documented by the committee occurred in facilities run by the Ministry of Defense and intelligence departments.[14]
Former detainees told the COI that they were subjected to arbitrary arrest, long-term detention, and prevention of contact with their families, relatives, and lawyers. In contrast, they were subjected to various torture practices and ill-treatment to extract confessions from them or to punish and intimidate them. The acts of torture included, among other things, being suspended for extended periods (Shabeh) or being crammed into a car wheel (Dulab). The Shabeh and the wheel were often accompanied by severe beatings all over the body, including the genitals, with water hoses, sticks, cables, and other tools, exposing detainees to sexual violence, electric shocks, and burning body parts. Most detainees described their detention conditions as inhumane, amounting to torture and ill-treatment due to overcrowding inside prisons and detention facilities, lack of food, drinking water, and health facilities, spreading diseases and illnesses, and denying medical care. Several former detainees interviewed reported deaths in custody. [15]
Victims continue to suffer unimaginable physical and mental pain and suffering due to acts of torture, degrading treatment, and punishment, including horrendous treatment in detention, inhumane conditions of confinement, and sexual and gender-based violence. Thousands have died or are presumed to have died due to torture or cruel, inhuman, or degrading treatment or punishment.[16]
International human rights organizations’ statistics indicate that more than 100,000 people subjected to arbitrary arrest in Syria since 2011 are still missing or forcibly disappeared. Of course, they have been subjected to various types of torture and ill-treatment. Treatment, especially at the hands of security forces. Syrian government security. The actual number of missing or disappeared persons is likely higher. This is because parties to the conflict never reveal who they hold in their custody.[17]
The COI reaffirmed in its periodic report issued in February 2023 that it has every reasonable basis to believe that the Syrian government has continued to commit acts of murder, torture, and ill-treatment against detained persons, including practices that cause death in custody, in addition to arbitrary imprisonment and enforced disappearance, which once again confirms the Syrian government continues committing crimes against humanity and war crimes.[18]
ICJ Jurisdiction and power to take provisional measures
The International Court of Justice (the Court) is the principal judicial instrument of the United Nations under Article 1 of the Statute of the Court (the Court Statute). The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or treaties and conventions in force.[19] The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, concerning any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes relating to:
A. The interpretation of a treaty;
B. Any question of international law;
C. The existence of any fact which, if established, would constitute a breach of an international obligation;
D. The nature or extent of the reparation to be made for the breach of an international obligation.[20]
The court may indicate provisional measures in the context of considering the case in dispute under Article 41 of the Statute, which grants the Court the following powers:
The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party.
Pending the final decision, notice of the suggested measures shall be given to the parties and the Security Council.
A party may make a written request to indicate provisional measures at any time during the proceedings in the case in connection with which the request is made. The request shall specify the reasons, possible consequences if not granted, and the measures requested.[21] A request to indicate provisional measures shall have priority over all other cases. Pending the meeting of the Court, the President may call upon the parties to act in such a way as will enable any order the Court may make on the request for provisional measures to have its appropriate effects.[22] The Court may at any time decide to examine proprio motu whether the circumstances of the case require the indication of provisional measures that should be taken or complied with by any or all parties. When a request for temporary measures has been made, the Court may indicate actions that are in whole or in part other than those requested or that should be taken or complied with by the party that has made the request. The rejection of a request for the indication of provisional measures shall not prevent the party that made it from making a fresh request in the same case based on new facts.[23]
The parties usually ask the court to take provisional measures when considering the dispute issues. On 20 March 1993, Bosnia and Herzegovina submitted a case to the Court against Yugoslavia (Serbia and Montenegro), requesting provisional measures concerning Yugoslavia’s violation of the 1948 Genocide Convention. The issue contained allegations of Yugoslavia’s failure to fulfill its obligations arising from the four Geneva Conventions of 1949, its first Additional Protocol of 1977, and the customary laws of war. Based on these allegations, Bosnia and Herzegovina requested the Court to take provisional measures obligating Yugoslavia to stop these violations immediately, stop systematic ethnic cleansing practices against the citizens of Bosnia and Herzegovina, stop killings, arbitrary detention, extrajudicial executions, torture, rape, stop forced disappearances, and refrain from bombing residential areas. Bosnia and Herzegovina also requested to destroy the indiscriminate destruction of villages, towns, neighborhoods, cities, and religious institutions and not to starve the civilian population by cutting off humanitarian relief supplies sent by the international community to the people of Bosnia and Herzegovina.[24]
The Court accepted Bosnia and Herzegovina’s request. On April 8, 1993, issued a decision to adopt provisional measures requiring the State of Yugoslavia and its military and paramilitary forces and institutions to cease violations of the 1948 Genocide Convention immediately and not to conspire to commit acts of genocide while the Court continued to consider the case.[25]
Gambia filed a case on 11 November 2019 in court against Myanmar for the latter’s commission of acts of genocide, mass murder, and mass rape against the Rohingya Muslim minority in Myanmar, in violation of the provisions of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.[26] Since Gambia and Myanmar are members of the United Nations, they are bound by the Statute of the International Court of Justice provisions.[27] Accordingly, the Court has jurisdiction to consider claims submitted by Gambia against Myanmar, according to Article 36 (1) of the Statute of the Court, which provides that the jurisdiction of the Court includes all cases brought before it by litigants and all matters stipulated explicitly in the Charter of the Court, United Nations” or applicable treaties and agreements.[28]
Gambia filed the case under the provisions of Article 9 of the 1948 Genocide Convention, which states: “Disputes arising between the Contracting Parties concerning the interpretation, application or implementation of this Convention shall be submitted to the International Court of Justice, at the request of any of the parties to the conflict, “Including disputes relating to the responsibility of a State for genocide or any of the other acts mentioned in Article III.”
Gambia has argued that the prohibition of genocide has the status of jus cogens in implementing its obligations under the Genocide Convention, which requires Myanmar to bear complete responsibility under international law for its genocidal acts against the Rohingya and the duty of the court to ensure the maximum possible protection for Rohingya children who do not They remain vulnerable to grave violations as a result of acts of genocide.[29] Gambia relied on the conclusions of the United Nations Fact-Finding Mission regarding the existence of evidence of genocidal intent, represented by the deprivation of the legal rights of the Rohingya group, “the Myanmar authorities’ tolerance of public rhetoric of hate and contempt for the Rohingya,” and the Myanmar government’s incitement to anti-Rohingya hatred and demonization of the group, by portraying it as They pose a “threat, not only to local Buddhist communities but also to the nation and its Buddhist character as a whole.”[30]
The Gambia relied on the United Nations Fact-Finding Mission’s conclusions regarding evidence of genocidal intent, represented by depriving the Rohingya group of legal rights and “the Myanmar authorities’ tolerance of public rhetoric that carries hatred and contempt for human rights.” Rohingya,” and the Myanmar government incites hatred and demonization of the Rohingya by portraying them as posing “a threat, not only to local Buddhist communities but also to the nation and its Buddhist character as a whole.”[31]
Gambia has asked the court to indicate provisional measures under Article 41 of the Court’s Statute to halt the acts of genocide against the Rohingya immediately, protect the rights of this group under the Convention on the Prevention and Punishment of Genocide, and thus prevent these acts from escalating, pending the court’s ruling.”[32] It should be emphasized that ICJ provisional measures orders are legally binding on the parties[33] because Myanmar’s explicit recognition of the authority of the International Court of Justice obligates it to comply with the court’s orders and decisions.[34] Accordingly, Gambia requested, under Article 41 of the Statute and Articles 73, 74, and 75 of the Rules, to indicate provisional measures, as a matter of urgency, to preserve the rights of the Rohingya and to avert continuing, severe and irreparable harm.[35] Among the interim measures, Gambia has requested that Myanmar stop all acts of genocide, stop violating the rights of the Rohingya, and hold the perpetrators accountable.[36]
On January 23, 2020, the court issued a ruling requiring interim measures, obligating the Myanmar government to stop acts of genocide against Rohingya Muslims immediately and to take steps to preserve evidence. The court issued a unanimous order requiring the government of Myanmar to prevent all acts of genocide stipulated in Article 2 of the Genocide Convention and to ensure that its army does not commit genocide, in addition to taking effective measures to preserve evidence related to the genocide case and to submit a report on its implementation of the order within four days. Months, then every six months after that.[37]
On 19 February 2009, Belgium filed a lawsuit against the Republic of Senegal to settle their dispute regarding Senegal’s fulfillment of its obligation arising from the Convention against Torture and Senegal’s failure to prosecute Hissène Habré (former President of the Republic of Chad) or to extradite him to Belgium to take criminal proceedings against him under the Convention against Torture. Torture.[38] On 19 February 2009, Belgium, based on Article 41 of the Statute and Articles 73, 74, and 75 of the Rules of Court, requested interim measures, pending a final ruling on the merits, requesting Senegal to take all steps within its authority to keep Hissène Habré under the control and monitoring of the judicial authorities of Senegal so that the rules of international law with which Belgium requires compliance can be applied appropriately.[39]
Belgium requested the ICJ to accept that Senegal had breached its international obligations by failing to include in its domestic law the necessary provisions to enable the Senegalese judicial authorities to exercise the universal jurisdiction provided for in Article 5, Paragraph 2 of the Convention on the Prohibition of Torture and Other Cruel Treatment or cruel, inhuman or degrading punishment, and that it continues to breach its obligations under Article 6(2) and Article 7(1) of the Convention against Torture, and under customary international law, by failing to take criminal proceedings against Hissène Habré concerning acts and crimes of torture, genocide and war crimes and crimes against humanity, as a perpetrator or accomplice, or extradited to Belgium for such criminal proceedings.[40]
Senegal rejected Belgium’s claims, claiming they lacked legitimacy, and asked the court to dismiss them.[41] However, the court recognized the existence of a dispute between Belgium and Senegal and, therefore, accepted to consider the presence of a conflict between the parties regarding the interpretation of Article 6 and Article 7 of the Convention against Torture.[42]
The Court found that Belgium, as a State party to the Convention against Torture, has the right to claim responsibility for Senegal for alleged violations of its obligations under Article 6(2) and Article 7(1) of the Convention in current proceedings. Therefore, Belgium’s claims based on these provisions are admissible.[43] The Court found that the Senegalese authorities did not conduct a preliminary investigation immediately upon becoming aware of the facts regarding the suspicion that Hissène Habré, who was on its territory, was responsible for acts of torture, in breach of their obligation under Article 6(2) of the Convention against Torture.[44]
Article 7(1) of the Convention against Torture stipulates that: “The State Party in the territory under whose jurisdiction a person alleged to have committed any offense referred to in article 4 is found shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for prosecution”. The Court interpreted this article to mean that if the State in whose territory the suspect is located receives a request for extradition in any of the cases envisaged in the provisions of the Convention, it can then relieve itself of its obligation to prosecute by acceding to this request. It follows that the choice is between extradition or subjecting the accused to trial under the provisions of the Convention. The extradition of the accused is an option that the states parties to the Convention against Torture offer to each other under the convention. At the same time, prosecution is an international obligation under the way, and its violation is an unlawful act and entails state responsibility.[45]
The Court considers that the obligation under Article 7(1) requires Senegal to take all necessary measures to implement it as soon as possible, particularly once the first complaint against Hissène Habré was lodged in 2000. Having failed to do so, Senegal is in breach and continues to breach its obligations under Article 7(1) of the Convention.[46]
Article 5(2) of the Convention for the Prohibition of Torture provides that “Each State Party shall likewise take such measures as are necessary to establish its jurisdiction over such crimes in cases where the alleged perpetrator of the crime is present in any territory subject to its jurisdiction and it does not extradite him according to Article 8 to Any of the countries mentioned in Paragraph 1 of this Article.”
The Court concluded that if Senegal fails to comply with its obligations under Article 6(2) and Article 7(1) of the Convention, it bears its international responsibility. Thus, Senegal must desist from this continuing and wrongful act by the general international law on the responsibility of States for internationally unlawful acts. Senegal must take without further delay the necessary measures to submit the case to its competent authorities for prosecution or to deport Hissène Habré.[47]
Scope of the request to indicate provisional measures on the Syrian government under the Convention Against Torture
On 23 June 2023, the Governments of the Netherlands and Canada submitted a request to the Court to consider their dispute with the Syrian Arab Republic regarding the latter’s failure to fulfill its obligations under the 1984 Convention against Torture. The request was based on Article 36(1), Article 40 of the Court’s Statute, and Article 38 of the Court’s Regulations of 1978. They also submitted on the same day a separate document based on Article 41 of the Statute and Articles 73, 74, and 75 of the Rules, requesting the indication of provisional measures to protect victims of the government’s ongoing violations of the Convention against Torture, and thus protect the lives and physical and mental integrity of individuals at risk of torture and other cruel, inhuman or degrading treatment or punishment.[48]
The applicants contended that the indication of provisional measures is urgent to ensure compliance with Syria’s obligations to prevent torture and ensure the fairness of the proceedings and their right to a fair adjudication of their claims. Some of the provisional measures requested by the applicants are intended to address the significantly increased risks of torture and other cruel, inhuman, or degrading treatment of detainees who are arbitrarily detained, held incommunicado, or live in appalling detention conditions.[49]
The applicants emphasized the court’s power to indicate provisional measures “when irreparable harm is likely to occur to the rights that are the subject of judicial proceedings or when the alleged disregard of these rights will lead to irreparable consequences.” In this context, they relied on the Court’s previous decisions regarding exercising power to take provisional measures if there is an urgent necessity, that is, actual and imminent risk of irreparable damage to the rights claimed before the Court issues its final decision. Interim measures have been taken as the Syrian government continues to commit acts of torture, causing irreparable harm. At the same time, the court has yet to make a final decision on the case.[50]
The applicants argued that the indication of provisional measures is urgent because the Syrian Government’s ongoing violations of the Convention against Torture cause irreparable harm to the applicant’s right to seek Syria’s compliance with its obligations. The continued acts of torture and ill-treatment by the Syrian government exacerbate the situation and inflict unforgivable and irreparable harm on the victims of torture – first and foremost.[51]
The applicants made clear that the Syrian government has been committing torture and subjecting detainees to various forms of cruel, inhuman, or degrading treatment on a mass scale since at least 2011 and has shown no intention to prevent ongoing or future abuses. Moreover, Syria has not taken adequate measures required by the Convention against Torture to prevent continuing torture and ill-treatment. As a result, any person currently detained or who may be arrested, detained, or imprisoned is at risk of death, severe physical or mental pain, or suffering due to torture and other cruel, inhuman, or degrading treatment or punishment.[52]
The request noted that detainees who have been forcibly disappeared or are held incommunicado are at increased risk of torture and ill-treatment, causing them widespread psychological and physical distress, as well as their family members who have been separated indefinitely from their loved ones, without knowledge of their fate or whereabouts. The request was guided by the report of the Independent Investigation Commission of the Syrian Arab Republic (COI) of 11 March 2021, which stated that “the fate of tens of thousands of victims who were subjected to arbitrary incommunicado detention and enforced disappearance at the hands of government forces remains unknown until now.” to a big limit. Survivors describe executions, deaths caused by neglect, and horrific prison conditions, suggesting that those who remain in incommunicado detention may die slowly unless quickly released.[53]
The applicants were guided by the Court precedent of indicating provisional measures, where the Court has previously found it appropriate to refer to interim measures in circumstances that are “unstable and can change rapidly” and when there is “persistent tension” without any “comprehensive settlement of the dispute.”[54] Likewise, temporary measures were granted when “conflicts and similar incidents occur on different occasions…resulting in deaths, injuries, and displacement of local populations.”[55]
Following the failure of the negotiations, which included the exchange of numerous diplomatic notes and two personal meetings with representatives of the Syrian government, and the persistent efforts, characterized by good faith, made by the applicants over several years to settle the dispute regarding its fulfillment of its obligations arising from the Convention against Torture, and its continued subjugation of individuals for torture and ill-treatment, an urgent need occurs to indicate provisional measures.[56] In these circumstances, the applicants have fully satisfied the requirements of Article 30(1) of the Convention against Torture to resolve future disputes. It would be helpful to provide more precise guidance on situations in which negotiations may be considered deadlocked or futile, where lives are at risk, where individuals are at risk of severe suffering, and in which provisional measures are indicated. The steps are particularly urgent.[57]
Recommendations concerning provisional measures
Immediately stop all practices of torture and ill-treatment, including sexual assault and extrajudicial killings of detainees, and issue directives to all security agencies in this regard.
Immediately end practices of incommunicado detention, enforced disappearances, and the arrest of people in secret places of detention, allow independent monitors access to all detention areas, and ensure that all detainees have access to their family members and lawyers.
Publish an accurate and detailed record of the names of detainees in Syrian government prisons, disclose the fate of those who forcibly disappeared, and uncover the burial sites of people who died as a result of torture or other cruel, inhuman, or degrading treatment or punishment after arrest, hospitalization or detention, to their next of kin.
Launch an independent investigation into detention-related violations, including torture and ill-treatment, under international standards and hold perpetrators accountable in line with international best practices.
Accept the request of the United Nations Special Rapporteur on Torture to visit the Syrian Arab Republic, pending since 2005, including unfettered access to all detainees and public and secret detention centers.
Immediately stop all arbitrary arrest and detention practices, prevent detainees from contacting their families and lawyers, enforce disappearances and detaining people in secret detention facilities, and create guarantees to enable all detainees to contact their families and lawyers and receive visits.
Allow human rights rapporteurs and representatives of humanitarian organizations access all places of detention to determine the conditions of detainees and ways to improve them to ensure the necessary medical care, sufficient quantities of food and water, and reduce prison overcrowding.
Urgently check and improve detention conditions, including adequate food and water, sanitation and medical care, and decongest facilities.
Stopping laws and practices that facilitate torture and ill-treatment in detention enables individuals to be held for prolonged periods without due process, judicial oversight, and access to families and lawyers.
The Syrian government cooperate with the independent institution on missing persons in the Syrian Arab Republic established by the United Nations General Assembly under Resolution A/77/L.79 and enable it to access all places of detention in Syria and conduct interviews with the families of victims and witnesses to help carry out its tasks regarding investigating the fate of all Missing persons in the Syrian Arab Republic and their whereabouts and providing adequate support to victims, survivors and families of missing persons, in close cooperation and integration with all relevant actors. In this context, the Syrian government must preserve any evidence or information related to the cause of death of any detainee who died in detention or during hospital treatment, including forensic examination of human remains and burial places.
Syria submits a report to the Court on all measures taken to implement its order to take interim measures, starting at least six months from its issuance and every six months after that until the dispute is resolved.
