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Canada and the Netherlands Institute ICJ Proceedings Alleging Violations by Syria of the Convention against Torture

By Priya Urs
Published on 13 July 2023

[Many thanks to Miles Jackson, Massimo Lando and Martins Paparinskis for their very helpful comments.]

Other significant developments in recent weeks (see e.g. here and here) have perhaps overshadowed the joint institution by Canada and the Netherlands of contentious proceedings against Syria before the International Court of Justice (ICJ) in respect of alleged violations of the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘CAT’, ‘the Convention’). The decision to do so, accompanied by a request for provisional measures under Article 41 of the Statute of the ICJ, is unsurprising given the applicant states’ joint declaration in 2021 of their intention to ‘hold Syria to account, including for human rights violations and torture in particular’ of Syrians since 2011.

This post addresses some issues relating to the ICJ’s jurisdiction and the admissibility of the application, which are relevant to both the request for provisional measures and to allow the Court to proceed on the merits: whether the parties have consented to the jurisdiction of the Court; whether there is a dispute between the applicant states, on the one hand, and the respondent state, on the other; and the applicant states’ standing to institute the proceedings. The post concludes with some reflections on the wider significance of the case.

Consent to the Jurisdiction of the Court

According to the applicant states, the ICJ’s jurisdiction over the case is founded on Article 36(1) of the Statute of the ICJ and Article 30(1) of the CAT. The latter provides that

[a]ny 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.

Canada, the Netherlands, and Syria are all states parties to the Convention and none of them has declared themselves not to be bound by the compromissory clause in Article 30(1), as is permitted under Article 30(2). Nor have the parties filed any other reservations relevant to the adjudication of disputes as to the interpretation or application of the Convention. Syria’s declaration under Article 28(1) that it does not recognise the competence of the Committee against Torture in Article 20 may be worth noting when assessing the availability of other routes to redress.

The Existence of a Dispute

As stipulated in Article 30(1) of the CAT, the Court’s jurisdiction ratione materiae is conditioned on the existence of a dispute as to the ‘interpretation or application of th[e] Convention’. When addressing the question whether such a dispute exists, the Court has consistently iterated the observation of the Permanent Court of International Justice in The Mavrommatis Palestine Concessions that ‘[a] dispute is a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons’ (p.11). Its decision on preliminary objections in the South West Africa cases clarified that ‘it [is] not adequate to show that the interests of the two parties to such a case are in conflict’; ‘[i]t must be shown that the claim of one party is positively opposed by the other’ (p.328). In the more recent Nuclear Disarmament cases, the Court further qualified the requirement of positive opposition by declaring that ‘a dispute exists when it is demonstrated … that the respondent was aware, or could not have been unaware, that its views were “positively opposed” by the applicant’ (para. 41).

The Court’s formalistic approach to the requirement of a dispute in the Nuclear Disarmament cases is unlikely to pose a hurdle in the present case, in which the applicant states have been wise not to limit themselves to general statements in multilateral contexts. Statements by Canada and the Netherlands in the United Nations (UN) General Assembly, Security Council, and Human Rights Council are supported by various notes verbales to Syria requesting negotiation and arbitration respectively under the CAT and public announcements to the same effect. There is also little doubt that the subject-matter of the dispute pertains to the ‘interpretation or application’ of the CAT and thus falls within the scope of the compromissory clause. As the Court explained in the Oil Platforms case, the relevant question—particularly when it comes to allegations of the breach of treaty obligations—is ‘whether the violations … do or do not fall within the provisions of the [t]reaty’ (para. 16). Any wider framing of the dispute by the respondent state to suggest that it addresses matters wholly beyond the scope of the Convention is unlikely to succeed.

When it comes to the indication of provisional measures, the Court has explained, including in its recent order for provisional measures in the case between Ukraine and Russia under the Genocide Convention, that the undemanding jurisdictional requirement for acting under Article 41 of its Statute is the condition that the provisions ‘relied on … appear, prima facie, to afford a basis on which its jurisdiction could be founded’ (para. 24). Conversely, the Court ‘need not satisfy itself in a definitive manner that it has jurisdiction as regards the merits of the case’ (para. 24). Even more so than in the context of that case vis-à-vis the Genocide Convention, Syria’s alleged conduct clearly ‘appear[s] to be capable of falling within the provisions of’ the CAT (para. 43).

Procedural Preconditions under Article 30(1) of the CAT

The Court’s jurisdiction is further conditioned on the satisfaction of the two procedural preconditions set out in Article 30(1) of the CAT: first, that the dispute ‘cannot be settled through negotiation’, and second, the passage of six months following a request for arbitration where ‘the Parties are unable to agree on the organization of the arbitration’. In relation to the former precondition, the applicant states detail their ‘genuine attempt to resolve the dispute … through good faith negotiations’, including a formal request to negotiate by the Netherlands in 2020 and by Canada in 2021, the exchange of 66 notes verbales, and in-person meetings amongst the three states (Application Instituting Proceedings, paras. 13 and 17). Canada and the Netherlands claim that Syria has rejected their claims ‘in toto’, indicating that the attempt at negotiation has failed (para. 18). As for the latter precondition, the applicant states note that Syria has not even acknowledged their request to submit the dispute to arbitration (para. 21). The Court is unlikely to accept an overly formalistic argument that Syria’s silence in this respect doesn’t constitute an inability to agree on ‘the organization of the arbitration’. When addressing the same precondition in Obligation to Prosecute or Extradite, the Court found no difficulty in concluding that ‘the inability of the Parties to agree on the organization of the arbitration result[ed] from the absence of any response on the part of the State to which the request for arbitration was addressed’ and that the precondition was therefore satisfied (para. 61).

The Question of Standing

A final question is whether Canada and the Netherlands each has standing to institute proceedings in respect of alleged violations by Syria of its obligations under the CAT. Neither of these states has alleged that it is injured in any way by Syria’s conduct. This distinguishes the case from that brought by Belgium against Senegal under the CAT in 2009, in which Belgium claimed not only to be acting in the collective interest in the enforcement of obligations erga omnes partes, but also to be specially affected by the alleged breaches (the Court, for its part, decided the case only on the former ground). Instead, like The Gambia in Application of the Genocide Convention, Canada and the Netherlands ask the Court to adjudge inter alia that Syria ‘must provide individual victims full reparation … for the injury they have suffered’ (Application Instituting Proceedings, para. 60(f)). The institution of the present proceedings is also the first instance since the South West Africa cases—instituted individually by Ethiopia and Liberia and joined by the Court—in which more than one state has claimed standing for the enforcement of obligations erga omnes partes without any accompanying claim of injury. This fact alone is unlikely to make any difference to the legal assessment on standing. It is nevertheless noteworthy that Canada and the Netherlands instituted the proceedings just days after the order confirming the admissibility, among others, of their joint intervention in the proceedings between Ukraine and Russia in the Allegations of Genocide case, which had been the subject of a specific objection by Russia (para. 88).

It would be extremely surprising were the Court to determine that Canada and the Netherlands fully lack standing to institute the proceedings. The Court has unequivocally affirmed—most recently in its decision on preliminary objections by Myanmar in Application of the Genocide Convention—that states other than injured states have standing to invoke the responsibility of a state for the alleged breach of obligations erga omnes partes. In Obligation to Prosecute or Extradite, the Court said so explicitly in respect of what it characterised as the obligations erga omnes partes to prevent and punish acts of torture, to conduct a preliminary inquiry into the facts, and to submit cases to prosecution where an alleged offender is in the territory of a state party (para. 68). Aside from the obligations to prevent acts of torture and to prosecute them, which were addressed in Obligation to Prosecute or Extradite, it remains to be seen whether the Court will characterise some or all of the longer list of CAT obligations invoked by Canada and the Netherlands as obligations erga omnes partes (Application Instituting Proceedings, para. 59). Many of the obligations invoked by the applicant states are closely related to the obligation to prevent or the obligation to punish acts of torture, such as the obligation to ensure the prompt and impartial investigation of alleged acts of torture (Article 12) and the obligation to sure that victims of torture have the right to complain and to have the case examined (Article 13). These are likely to qualify as obligations erga omnes partes. Similar obligations relating to ‘other acts of cruel, inhuman or degrading treatment or punishment’ (Article 16), which, like torture, appear in the preamble to the CAT, are also likely to so qualify. Making the case in relation to ancillary obligations, such as the obligation to ensure that the training of public officials includes ‘education and information regarding the prohibition against torture’ (Article 10) and the obligation to keep interrogation and detention practices ‘under systematic review’ with a view to preventing acts of torture (Article 11), may prove more burdensome.

Final Reflections

The institution of the proceedings is legally and politically significant given the considerable limits on the use of other institutions to address alleged violations by Syria of its international obligations since 2011. Most notable is the absence of enforcement action by the UN Security Council or the referral of the situation to the International Criminal Court, both under Chapter VII of the UN Charter. The Council’s present role involves the authorisation only of cross-border humanitarian assistance. Yet the narrowness of the ICJ’s jurisdictional basis in this case, limited to alleged violations of the CAT, addresses only a fraction of the wider context and is reminiscent of other cases in which applicant states have been left ‘clutch[ing] at jurisdictional straws’ (Tams p.750). It remains to be seen whether other aspects of the wider context are amenable to international adjudication at the ICJ or elsewhere.