Tortured Logic: Canada and the Netherlands v. Syrian Arab Republics

An Analysis of the Application of the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, Canada and the Netherlands v Syrian Arab Republic

Written by Naran-Ochir Khulan

Edited by Gursehaj Gosal

Naran-Ochir Khulan is an undergraduate student at Sciences Po, intending to specialize in Political Science & Government, in the Europe-Asia Minor. Her academic interests include the intersection of urban development and policy, along with international law and affairs.

Introduction

The open wounds that remain untreated in the Tartous Governorate bleed deeper than the flesh. 

Since declaring its full independence in 1961, the Syrian Arab Republic has been ruled under two  generations of iron-fisted autocracy by the Ba’ath Party led by the Assad family. The nation is deeply fractured due to the ongoing Syrian Civil War. In 2011, amid the wider Arab Spring movement, pro-democracy demonstrations began to express discontent with the Ba’athist regime. In response, Syrian authorities launched a multifaceted confrontation that escalated into violent crackdowns of targeted individuals. Most recently, on December 8, 2024, Bashar al-Assad reportedly fled the country, prompting opposition leader Ahmed al-Sharaa to declare the formation of a transitional government.

Since 2011, Syria’s detention system has become a tool of violent repression. The intelligence agencies have been using mass arbitrary arrests, enforced disappearances, and incommunicado detention to terrorize opposition figures. According to the Syrian Network for Human Rights (SNHR), the government has arrested and released around 1.2 million people since the onset. As of March 2023, at least 135,253 persons—among them 3,691 children and 8,473 women—remain detained [1]. Moreover, 15,038 deaths caused by torture have been documented, though the true scale of these practices remains underestimated due to falsified death certificates and the absence of comprehensive reporting. It is important to note that, ironically, Syria has acceded to the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT) on July 1, 2004, thereby becoming legally bound by its provisions.

The Legal Basis and Proceedings

The CAT, adopted on December 10, 1984 and entered into force on June 26, 1987, currently has 175 state parties, including Canada, the Netherlands, and the Syrian Arab Republic. The convention defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person, for purposes of [...] obtaining confession, intimidating or coercing, at the instigation of a public official” [2]. The CAT aims to prohibit torture practices worldwide and strengthen international human rights protections, obligating states to criminalize torture, prosecute offenders, while upholding the non-refoulement principle, prohibiting the extradition of persons to countries where they risk predisposition to torture. 

In June 2023, Canada and the Netherlands initiated joint proceedings against Syria at the International Court of Justice (ICJ), contending violations of the CAT. Syria failed to appear at two court hearings within a six-month time frame, a blatant rejection of their crimes. 

In response, the ICJ issued provisional measures obliging Syria to take immediate steps to end arbitrary and incommunicado detention, release unlawfully detained individuals, preserve medical records and burial sites accurately as evidence of torture. Additionally, the court ordered Syria to submit regular reports on its compliance with the provisional measures to prevent further abuse and ensure accountability while the case proceeds.

This case sets a precedent for enforcement of international law, especially in addressing state-inflicted human rights violations. It demonstrates the potential for the international community to take action and highlights the prospect of CAT to be used as a legal tool to hold states accountable when domestic mechanisms fail. It also tests the effectiveness of international judicial institutions and arbitrary mechanisms in preventing ongoing abuses and ensuring states compliance with treaty obligations. The effectiveness and success of ICJ’s ruling depends on the willingness of states to enforce its decisions. If Syria refuses to comply with the provisional measures ordered by ICJ, it will highlight limitations of international law in enforcing non-cooperative states to uphold international obligations.

Legal Strategy and Invocation of Jurisdiction

After attempts to solve the dispute through negotiation before seeking adjudication from the ICJ according to the Article 30 (1) of the CAT, Canada and the Netherlands assert that Syria had failed to engage in meaningful arbitration, thus justifying their appeal. Their case relies on UN human rights reports and survivor testimonies establishing a prima facie case of CAT violations that necessitate urgent provisional measures. Moreover, Canada and the Netherlands invoked Article 41 of the Statute of the Court and Articles 73-75 of the Rules of Court, “to preserve and protect the rights owed to them under the Convention against Torture, which Syria continues to violate, and protect the lives and physical and mental integrity of individuals within Syria who are currently, or are at risk of, being subjected to torture and other cruel, inhuman or degrading treatment or punishment” [3].

Enforcing the Decisions from International Court of Justice

Since 2011, the European Union has already imposed sanctions such as travel bans, asset freezes, and oil import restrictions to impede the financial network and economically isolate Syria. However, these sanctions risk exacerbating the humanitarian crisis since 60% of the Syrian population relies on aid and this isolation will prevent processing of humanitarian transactions such as supply of food and medicine. Historical precedents such as Iran’s resilience under decades of sanctions  indicate the tendency of authoritarian regimes to prioritize survival over compliance. Additionally, as a form of diplomatic isolation, Syria has been suspended from the Arab League since 2011 and has been facing condemnation from Western states, reducing its diplomatic ties to allies such as Russia and Iran. Under such authoritarian rule, international legitimacy and economic well being is a secondary concern compared to maintaining control but all these implications are receptive to change depending on the transitional government’s decisions regarding constitution, degree of inclusivity, and the balance between reform and continuity.

A Precedent: Belgium v. Senegal

In 2012, Belgium successfully filed a case against Senegal for failing to prosecute Hissène Habré, a former dictator accused of systemic torture. The ICJ ruling reinforced states obligations to prosecute or extradite alleged torturers according to Article 7 of the CAT. Under sustained diplomatic and legal pressure, along with ICJ’s ruling, Senegal put Habré on trial demonstrating the efficiency of international judicial mechanisms. In doing so, legal pressures played a key role. 

The African Union, demonstrating its commitment to addressing human rights, repeatedly urged Senegal to prosecute Habré. Senegal initially ignored these calls and when Belgium issued an arrest warrant for Habré, Senegal argued that African cases should remain under African institutions emphasizing regional autonomy. This resistance also initiated a broader debate about sovereignty and the tension between national and regional jurisdiction, and the global responsibility to be involved in cases under international law. Moreover, financial support from Belgium, France, and human rights organizations to fund and facilitate the trials helped advance the case, highlighting the global community’s commitment to accountability and human rights. The results of these efforts manifested when Extraordinary African Chambers were formed in Senegal and sentenced Habré to life in prison for crimes against humanity, war crimes, and torture, under the principle of universal jurisdiction, setting a significant precedent for accountability in the context of international law and cooperation in addressing major violations [4].

Legal Implications

A. The Erosion of Absolute Sovereignty and Human Rights Abuses

The principle of absolute sovereignty—rooted in the Peace of Westphalia (1648) —which grants states full authority over their internal affairs without external interference, is being challenged by the development of modern legal mechanisms. Gross human rights abuses, including genocide and torture, are considered threats to international peace and security, thus the United Nations Charter links human rights with global security, implying that sovereignty cannot justify impunity.

The Responsibility to Protect (R2P) Doctrine asserts that states have the overriding responsibility to protect their citizens from mass violence and failure to do so allows the international community to intervene, rather than being unconditional. The 2011 NATO-led intervention in Libya, aimed at preventing genocide by the Gaddafi regime, was justified on these grounds—though the lack of intervention in Syria exposes the inconsistency and political selectivity of R2P’s application. For instance, North Korea as a repressive, authoritarian regime consistently invoked sovereignty as a shield against the scrutiny of its human rights record. The UN Human Rights Council (UNHRC) and international community have increasingly rejected this argument against systematic abuses including torture, forced labour, and extrajudicial killings that amount to crimes against humanity. Myanmar has also attempted to shield itself during the Rohingya crisis but the ICJ’s provisional measures in The Gambia v. Myanmar highlighted that sovereignty does not preclude accountability.

The legal basis for this argument lies in the doctrine of jus cogens—peremptory norms of international law from which no derogation is permitted. Torture, widespread human rights abuses, and crimes against humanity are by definition jus cogens violations, meaning that no state can claim sovereignty to avoid responsibility for committing such acts or conceal jus cogens violations. Canada and the Netherlands v. Syria exemplifies this implication as it seeks to hold a sovereign state accountable for torture, reinforcing the principle that human rights are fundamental and goes beyond borders.

B. Multilateral Action and International Justice Mechanisms

Multilateral action strengthens the nominal framework of international law by establishing legal precedents that can influence similar future cases. Canada and the Netherlands, by invoking the CAT against Syria, not only addresses Syria’s alleged violations but also instigates a precedent for how states can collectively hold human rights abusers accountable.

While Canada and the Netherlands have spearheaded the action of holding Syria accountable, the absence of widespread participation undermines the impact of the case. Despite their condemnation of Syria’s human rights record, the United States and key European Union members remain reluctant to join the case. This selective engagement creates a perception that involvement of the international community in international justice mechanisms is driven by political convenience rather than commitment to universal human rights. Thus, the pressure on Syria remains limited, undermining the legitimacy and credibility of international justice mechanisms.  Most significantly, the issue with multilateral action is the lack of imperative consequences for non-compliance. The ICJ, as a judicial body, does not have enforcement powers and its rulings rely on the inclination of states to comply and the international community to enforce. Given the historical precedent of Syria ignoring international institutions and rulings, combined with the absence of enforcement mechanisms means the ICJ rulings and provisional measures remain symbolic rather than transformative. 

Canada and the Netherlands are not directly affected by the systemic torture in Syria. Thus, to what extent do states like Canada and the Netherlands have the legal standing to intervene? The notion of erga omnes obligations under international law and the principles of CAT explicitly allow any state party to initiate claims against other states for violations of the provisions, whether the demanding state is directly affected or not. Canada and the Netherlands are using this legal framework, affirmed in Belgium v. Senegal, to hold Syria responsible, incentivized by a combination of moral responsibility, commitment to international law, and strategic interests in upholding a rule-abiding global order. 

Conclusion

Thus, while Canada and the Netherlands v. Syria may generate diplomatic and legal ramifications, it rests on legal foundations rooted in international treaty obligations. By bringing this case before the ICJ, Canada and the Netherlands reaffirmed the international community’s commitment to upholding human rights, even in the absence of political consensus. Critics may contend that such litigation risks politicizing international justice. Yet this case does not mark an overreach, but rather a principled invocation of the rule of law—one that asserts that prohibition of torture remains a peremptory  norm that must be defended, unshielded by state sovereignty. This case stands at the crossroads of law and humanity. It challenges us to reaffirm the principles we aim to uphold—not only through words, but through action. 

Bibliography

[1] International, Impartial and Independent Mechanism (IIIM). Detention in the Syrian Arab Republic: Analysis of Patterns and Practices. December 2024. https://iiim.un.org/wp-content/uploads/2024/12/IIIM_DetentionReport_Public.pdf.

[2] Office of the High Commissioner for Human Rights (OHCHR). "Part 1 Article 1: Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment." United Nations. https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-against-torture-and-other-cruel-inhuman-or-degrading.

[3] International Court of Justice (ICJ). Press Release No. 2023/67. November 16, 2023.

[4] Human Rights Watch. "Q&A: The Case of Hissène Habré before the Extraordinary African Chambers in Senegal." Human Rights Watch, May 3, 2016. https://www.hrw.org/news/2016/05/03/qa-case-hissene-habre-extraordinary-african-chambers-senegal.