October 2020

Netherlands v Syria : a first step towards accountability ?

The mass atrocities that have been committed in Syria over the past decades have conducted to serious human rights violations. Hundreds of thousands of civilians have been murdered and tortured, millions of Syrians fled their homes and lost everything they had. Many international organisations have reported those crimes.

Yet, to this day, impunity remains.

The Netherlands is known to have led an important battle for several years, aiming to obtain justice for the Syrian victims. On the 18th September 2020, a major step was taken within this battle: the Netherlands announced its decision to hold Syria responsible for gross human rights violations and torture under international law. More specifically, the Dutch government wants to hold the Syrian regime responsible for torture, under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. To this end, the Netherlands addressed a diplomatic note to Syria, reminding the Syrian regime its international obligations to cease the violations and offer full reparation to the victims.

The Minister of Foreign Affairs, Stef Blok hold that: “The Assad regime has committed horrific crimes time after time. The evidence is overwhelming. There must be consequences”. He insisted on the fact that: “The victims of theses serious crimes must obtain justice”.

This step is a massive breakthrough: it could eventually lead to proceedings against Syria at The Hague, in front of the International Court of Justice. Syria is indeed a party of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, which, in its Article 30(1) states that :

Any dispute between two or more States Parties concerning the interpretation or application of this Convention which cannot be settled through negotiation shall, at the request of one of them, be submitted to arbitration. If within six months from the date of the request for arbitration the Parties are unable to agree on the organization of the arbitration, any one of those Parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court.”

Therefore, a few steps need to be undertaken before the Netherlands can officially take Syria in front of the International Court of Justice.

First, the Netherlands must attempt to settle the dispute through negotiation. If that doesn’t work, the case shall be submitted to arbitration. Proceedings will be initiated before the International Court of Justice only if the parties fail to agree on arbitration within six months of a request of arbitration.

In its diplomatic note, the Netherlands asked Syria to enter into negotiations, in conformity with the first step resulting from Article 30(1). If the States are unable to resolve the dispute through negotiation, the Netherlands will be able to offer to submit the case to arbitration. If, within six months from the date of the request for arbitration, the Netherlands and Syria are unable to agree on the organisation of the arbitration, the Netherlands will submit the case to the International Court of Justice.

If the Netherlands achieve to file a claim before the International Court of Justice, it will be on the grounds of the prohibition of torture arising from the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. Only one case was brought to the International Court of Justice under this Convention to this day: the Judgment of 20 July 2012, Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal). In this Judgment, the International Court of Justice stated that “the prohibition of torture is part of customary international law and it has become a peremptory norm (jus cogens)”. Therefore, Syria has an erga omnes obligation to comply with this treaty.

The action undertaken by the Dutch authorities is in line with the first worldwide trial on state torture in Syria, which started in Germany, in April 2020, where two former Syrian intelligence officials have been charged for crimes against humanity.

Both the actions taken by the Dutch and the German authorities mark a step forward in the battle against the impunity of those responsible for the mass sufferings of Syrian victims. We can only hope that other governments will support these initiatives and that victims finally obtain justice.

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