By: Jochem de Hoop, Junior Research Associate, PILPG-NL
On September 18, 2020, the Dutch government announced its decision to hold Syria responsible under international law for gross human rights violations and torture during the Syrian conflict. In a diplomatic note addressed to Syria, the Netherlands reminded the Syrian government of its international legal obligations under the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), recalled it to end impunity, and demanded justice for the victims.
Following the decision by the Dutch government, Canada also announced it would hold Syria accountable for human rights violations since the start of the Syrian conflict in 2011. In a joint statement, the Minister of Foreign Affairs of Canada, Marc Garneau, and the Minister of Foreign Affairs of the Netherlands, Stef Blok, addressed the gross human rights violations by the Syrian government, including torture, murder, forcible disappearances, and chemical weapons attacks against civilians. Since 2011, more than 200,000 Syrian civilians have died and 100,000 people are still missing. Moreover, six million Syrians have been displaced and 5.5 million people have fled the country. In March 2021, both states reaffirmed that they are committed to pursuing all diplomatic options to resolve the dispute with Syria. If the diplomatic route fails, they will pursue joint legal action before the ICJ.
This blog post will focus on the right of non-injured states to invoke state responsibility for violations of obligations owed to the international community, or to all other states.
Accountability efforts for Syria
For the past 10 years, the international crimes and human rights violations in Syria have largely remained unpunished and perpetrators have not been held responsible. International efforts to hold Syria accountable have been constrained following the vetoed resolution by China and Russia to refer the situation in Syria to the International Criminal Court (ICC). Recently, some European states have initiated trials against Syrian officials for war crimes and acts of torture based on universal jurisdiction. Nonetheless, the efforts are limited to perpetrators who have made their way to European states that are willing to exercise universal jurisdiction. The legal efforts by the Netherlands and Canada could eventually fill this accountability gap that has remained since the start of the conflict.
State responsibility by non-injured states
Even though the Netherlands and Canada have been involved in the international campaign against ISIS in Syria and Iraq, they are not directly affected by the alleged human rights violations of the Syrian government. The ICJ has recognized that states that are not directly affected by the violations of international legal obligations may have the right to invoke responsibility against another state. In the Barcelona Traction case (Belgium v. Spain), the Court recognized this right. It argued that there are legal obligations that are in the interest of the international community as a whole, such as the prevention of acts of genocide or other grave types of human rights violations. These obligations are known as erga omnes obligations, meaning that all states are entitled to invoke the responsibility of another state.
The International Law Commission codified the right of non-injured states to invoke the responsibility of another state in Article 48 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA). According to Article 48 of ARSIWA, any state that is not directly affected is entitled to invoke the responsibility of another state if that state violates an obligation owed to a group of states and established for the protection of a collective interest. Moreover, the non-injured state may invoke state responsibility if an obligation is breached that is owed to the international community as a whole.
In Belgium v. Senegal, the ICJ explicitly recognized that UNCAT sets out erga omnes obligations regarding the prohibition of torture. This was the first case in which a non-injured state invoked responsibility for a violation of this Convention. The Court identified the prohibition of torture as a peremptory norm (jus cogens), which means that it is a general norm of international law that has been accepted and recognized by the international community as a whole. The Court considered that states parties to the UNCAT have a “common interest to ensure (…) that acts of torture are prevented” and to bring perpetrators to justice. Based on the legal nature of the prohibition of torture, the Court defined the obligations under the UNCAT as “obligations erga omnes partes,” meaning that all states parties have an interest in compliance with the relevant provisions of the UNCAT.
Regarding the Dutch and Canadian cases against Syria, since there is legal precedent and all three states are parties to the UNCAT, the Netherlands and Canada can bring Syria before the ICJ for the violations of the UNCAT. Article 30(1) of the UNCAT provides that the ICJ has jurisdiction to settle disputes once negotiations and arbitrations have failed. None of the aforementioned states have made a reservation to this provision. Considering that the ICJ has recognized the prohibition of torture as a jus cogens norm, the legal obligations of the UNCAT are considered erga omnes obligations. Thus, all states parties have a common interest that Syria complies with the relevant obligations under the UNCAT, ceases any further violations, and brings the perpetrators to justice. Therefore, the Netherlands and Canada can invoke Syria’s responsibility for the alleged violations of its obligations under the UNCAT if the negotiation efforts fail.
Conclusion
The joint legal efforts by the Netherlands and Canada are a significant step in holding Syria accountable for human rights violations and achieving justice for victims. While there have been several successful domestic prosecution cases against Syrian perpetrators of war crimes and human rights violations, those in the highest echelons of power have remained unpunished. The right to invoke Syria’s responsibility enables the Netherlands and Canada to hold the Syrian government accountable for acts of torture, which means that the perpetrators that bear the greatest responsibility can be held accountable. Even though Syria has agreed to engage in negotiations with both states, it remains to be seen whether the diplomatic talks will be successful. Nevertheless, the Netherlands and Canada have reiterated that they will not hesitate to take the case to the ICJ if the negotiations fail.