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How Will The Netherlands Bring Syria To Court For ‘Gross Human Rights Violations’?

Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes below.


By Doga Fadillioglu



Introduction

In September 2020, the Netherlands decided to take action to hold the Assad-led government responsible for “gross human rights violations”. The decision to bring the case to the UN drew global appreciation[1] considering the circumstances surrounding the impunity of the Syrian government and its civilians suffering torture and violence. The Dutch government holds the Syrian government accountable for breach of international law, especially under the United Nations Convention Against Torture (UNCAT). Indeed, the Syrian government is found to have committed multiple breaches of the UNCAT, such as torturous behaviour in detention centres, especially towards those who dissent actions of the government.[2]


The case is will eventually be considered to continue as an International Court of Justice (ICJ) case, if it is found that the requirements for state liability and standing are valid. Both Syria and The Netherlands are parties to the UNCAT.[3] Previous attempts under “aegis of universal jurisdiction” in Germany failed to refer to the International Criminal Court in the United Nations Security Council and thus did not succeed.[4] The case of The Netherlands v Syrian Arab Republic is therefore greatly significant from a legal and practical perspective - the Syrian government may be found to be accountable for the 128.000 people who are either still imprisoned, dead or have no record[5] due to Assad-led torture prisons.


Syrian State Liability Under UNCAT

Civilians in Syria have had to endure life-threatening torture for years, all of which have fallen under violations of the UNCAT. After years of the Syrian war, the Netherlands have decided to question the impunity of the State which has essentially amounted to the fleeing of 5.5 million of its civilians.[6] Examples of breach that are aimed to be held under UNCAT are taken to include a preambulatory clause, which states that the Convention takes into account and applies liability under “Article 5 of the Universal Declaration of Human Rights and Article 7 of the International Covenant on Civil and Political Rights”[7]. The aforementioned clause states that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”[8]. The Netherlands also prepares to submit evidence under violations of Article 1 and 2 of the UNCAT; Article 1 refers to the definition of torture (“any act by which severe pain or suffering, … inflicted on a person for such purposes as obtaining from him or a third person information”), which Syria is held to have breached through the torture of civilians in detention centres for third-party data confession.


A recent victim, namely Mr Ghabbash , in his Times interview shared that although he confessed to his “wrongdoing” - which was organizing peaceful protests in the city - he was continuously tortured afterwards for 12 days through both electro-shock and gun-shots. He claimed that this was a threat tactic used to force him into formulating a fabricated response which would include bomb planning[9]. In addition to this, below are reports of Syrian military intelligence (censored for integrity of possible prosecutions) which cover the status of dead citizens who remained in custody of Syrian prisons.



Furthermore, under Article 2(1) of the convention, Syria has not taken action for “effective legislative, administrative, judicial or other measures to prevent acts of torture”.[10] Currently, torture is penalised through the government itself, which undermines the right to fair trial and compensation (a fundamental right also given in a preamble of the UNCAT through the application of the Universal Declaration of Human Rights).


Legal Standing

The applicant party must have legal standing (locus standi) in order to bring a case to court. The Netherlands initially aimed to establish standing in the International Court of Justice through the CAT. In the name of dispute settlement, the diplomatic representatives of the Netherlands had called Syria into negotiations. If an agreement cannot be reached, the Netherlands stands to yield an application to the ICJ, with the prerequisite being a case of arbitration after negotiation[11]. This particular intention was made with Article 30 (1) of the UNCAT in mind, where it is stated that:


“Any dispute between two or more States Parties concerning the interpretation or application of this Convention which cannot be settled through negotiation shall … be submitted to arbitration. If within six months Parties are unable to agree on the organization of the arbitration, one of those Parties may refer the dispute to the International Court of Justice.”


However, considering that the Netherlands is a “non-injured” state, there are certain other factors to legal standing that must be considered. Through the principle of erga omnes parte, the Netherlands can establish standing before the ICJ[12]. This principle allows for certain obligations to be “toward all”[13] which transfers the right to sue to those who inspect any such violation, such as torture. The ICJ applied this principle in precedent; in Gambia v Myanmar, although Gambia was a non-injured state of the violations of the Geneva Convention,[14] it was stated by the Court that ‘any State party to the Genocide Convention, and not only a specially affected State, may invoke the responsibility of another State party … ascertaining the alleged failure to comply with its obligations erga omnes partes [41].[15] This stance was also upheld in the 2012 case Belgium v Senegal.[16] Thus, the Netherlands may argue erga omnes partes standing for the prohibition of torture.


Conclusion

This case is predicted to be costly (financially) as well as long-lasting due to struggles that will come from cooperation on behalf of Syria.[17] The case will largely depend on how Syria chooses to legally respond: Will they re-summon the arbitration clause? Even if the arbitration clause is summoned, how will they respond to the right to submit the case to the ICJ under settlement negotiation clause?[18] Although the case will likely not be resolved for years on end, relevant legal points on behalf of the Dutch government have made an international impact on the impunity of “gross human rights violations” by the Syrian government.



 

Image 2: nytimes.com/2019/05/11/world/middleeast/syria-torture-prisons.html

[1] Vaishnavi Chaudhry, “Will the Netherlands Government Succeed in Ending Syrian Government’s Impunity for War Crimes? – Cambridge International Law Journal” (Cilj.co.uk2021) <http://cilj.co.uk/2021/02/10/will-the-netherlands-government-succeed-in-ending-syrian-governments-impunity-for-war-crimes/> accessed February 21, 2021 [2] Ibid. [3] 3 “We’ll See You in Court: How the Netherlands May Finally Bring Syria to the Hague” (Opinio JurisOctober 2, 2020) <http://opiniojuris.org/2020/10/02/well-see-you-in-court-how-the-netherlands-may-finally-bring-syria-to-the-hague/> accessed February 21, 2021 [4] “On the Anvil: The Netherlands v. Syrian Arab Republic at the International Court of Justice?” (Opinio Juris September 29, 2020) <http://opiniojuris.org/2020/09/29/on-the-anvil-the-netherlands-v-syrian-arab-republic-at-the-international-court-of-justice/> accessed February 22, 2021 [5] “Inside Syria’s Secret Torture Prisons: How Bashar Al-Assad Crushed Dissent (Published 2019)” The New York Times (2021) <https://www.nytimes.com/2019/05/11/world/middleeast/syria-torture-prisons.html> accessed February 22, 2021 [6] Reuters Staff, “Netherlands Prepares Case against Syria for ‘Gross Human Rights Violations’” (U.S.September 18, 2020) <https://www.reuters.com/article/us-netherlands-syria-worldcourt-idUSKBN2691VG> accessed February 22, 2021 [7] “OHCHR | Convention against Torture” (Ohchr.org2019) <https://www.ohchr.org/en/professionalinterest/pages/cat.aspx> accessed February 22, 2021 [8] Ibid. [9] “Inside Syria’s Secret Torture Prisons: How Bashar Al-Assad Crushed Dissent (Published 2019)” The New York Times (2021) <https://www.nytimes.com/2019/05/11/world/middleeast/syria-torture-prisons.html> accessed February 22, 2021 [10] “OHCHR | Convention against Torture” (Ohchr.org 2019) <https://www.ohchr.org/en/professionalinterest/pages/cat.aspx> accessed February 22, 2021 [11] “On the Anvil: The Netherlands v. Syrian Arab Republic at the International Court of Justice?” (Opinio Juris September 29, 2020) <http://opiniojuris.org/2020/09/29/on-the-anvil-the-netherlands-v-syrian-arab-republic-at-the-international-court-of-justice/> accessed February 22, 2021 [12] “We’ll See You in Court: How the Netherlands May Finally Bring Syria to the Hague” (Opinio JurisOctober 2, 2020) <http://opiniojuris.org/2020/10/02/well-see-you-in-court-how-the-netherlands-may-finally-bring-syria-to-the-hague/> accessed February 22, 2021 [13] Wikipedia Contributors, “Erga Omnes” (WikipediaDecember 22, 2020) <https://en.wikipedia.org/wiki/Erga_omnes> accessed February 22, 2021 [14] “We’ll See You in Court: How the Netherlands May Finally Bring Syria to the Hague” (Opinio JurisOctober 2, 2020) <http://opiniojuris.org/2020/10/02/well-see-you-in-court-how-the-netherlands-may-finally-bring-syria-to-the-hague/> accessed February 22, 2021 [15] Ibid. [16]Ibid. [17] “We’ll See You in Court: How the Netherlands May Finally Bring Syria to the Hague” (Opinio JurisOctober 2, 2020) <http://opiniojuris.org/2020/10/02/well-see-you-in-court-how-the-netherlands-may-finally-bring-syria-to-the-hague/> accessed February 22, 2021 [18] “On the Anvil: The Netherlands v. Syrian Arab Republic at the International Court of Justice?” (Opinio JurisSeptember 29, 2020) <http://opiniojuris.org/2020/09/29/on-the-anvil-the-netherlands-v-syrian-arab-republic-at-the-international-court-of-justice/> accessed February 22, 2021

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