The International Court of Justice (I.C.J.) has heard that the Syrian government tortured tens of thousands of people over the past decade. In the first public hearing of the case against Syria, representatives for Canada and the Netherlands told the court that there is “irrefutable evidence” of the “endemic use of torture” by the Syrian regime, involving physical and psychological abuse on a massive scale. For almost two hours, the applicants’ lawyers described disturbing details of what amounts to a flagrant violation of international law by the Syrian state. No representative for Syria was present.

Canada and the Netherlands urged the court to grant “provisional measures” against Syria – essentially an injunction to cease practising torture and allow independent monitors to verify its compliance. This represents an attempt to inject urgency into a protracted process which began in 2020 and has been continually prolonged by Syria’s refusal to co-operate. Where the I.C.J. can take years to deliver a final judgement, decisions on provisional measures are typically issued within weeks.

The first obstacle to a decision in the applicants’ favour is the issue of jurisdiction. To grant the request for provisional measures, the I.C.J. must first be satisfied that the case brought by Canada and the Netherlands has a sound basis in international law. The two states have sought to prove this by invoking Article 30 of the Convention Against Torture, which empowers state parties to settle disputes about the interpretation or application of the convention at the I.C.J. Both Canada and the Netherlands are state parties to the convention, as is Syria. The other challenge facing the applicants is to prove that there is “a real and imminent risk” that torture will continue if immediate action is not taken.

The evidence

At the centre of the applicants’ case are reports from the U.N. Commission of Inquiry into Syria. These reports include interviews with victims of torture who were illegally detained by the Syrian government. The victims describe kidnapping, sexual violence, beatings, and humiliation. There are a number of strikingly similar accounts of a practice known as dulab, in which the victim is contorted into a car tyre and beaten. In a report from July 2023 entitled ‘No End in Sight,’ the Commission of Inquiry concluded that “torture and ill-treatment remain a significant risk for those who live within Government-controlled parts of Syria … and for Syrian nationals abroad who return.”

Lawyers for Canada and the Netherlands declined to present any photographic evidence in support of their request for provisional measures, citing their concern that displaying such images without proper context would be “unnecessarily sensational[ist].” Photographs of torture victims are expected to feature heavily in future hearings, however. In particular, a cache of 53,275 images called the “Caesar” photos – after the codename of the Syrian military defector who leaked them – provide damning evidence. The images, which were verified by Human Rights Watch when they were released in 2015, depict corpses with signs of starvation, suffocation, and severe injury. The bodies of many victims have been mutilated to a degree that makes identification impossible. The photographs’ metadata confirm that they were taken at multiple government facilities in Syria.

In a surprise move, Canada and the Netherlands will also cite the use of chemical weapons by the Syrian regime as evidence of torture. Although the use of such weapons is proscribed by the Chemical Weapons Convention, of which Syria is a state party, they are not usually considered instruments of torture. Nevertheless, lawyers for Canada and the Netherlands have argued that their use by Syria meets the criteria laid out in Article 1 of the Convention Against Torture, which defines torture as any act that causes severe pain and is intended to punish, intimidate, or co-erce. Since the outbreak of civil war in 2011, the Syrian regime has been accused of indiscriminate use of mustard gas, chlorine, sarin, and VX, an extremely toxic nerve agent. Syria denies these allegations.

The significance of the judgment

Syria is a rogue state which displays flagrant contempt for international law. It will not pay heed to any judgement of the I.C.J. Regardless of the outcome of this case, torture in Syria is unlikely to stop soon. Nevertheless, if the injunction requested by Canada and the Netherlands is granted, the consequences would be significant.

This is a critical moment for international relations with Syria. The disgraced President Bashar al-Assad has been seeking to negotiate an unlikely return to the international community. His bold strategy has already brought success: in May this year, the Arab League welcomed Syria back into the fold. An acknowledgement from the I.C.J. that Syria was guilty of systematically torturing its citizens would be difficult for other states to ignore. By raising the costs of normalizing diplomatic relations with Syria, the court’s decision could scupper Assad’s strategy of restoring ties with other states.

Perhaps even more significant are the potential ramifications I.C.J.’s ruling could have for Syrian refugees. Across Europe and the Middle East, Syrians are under pressure to return home as politicians peddle the myth that Syria is safe once again. A declaration from the I.C.J. that returning Syrians are at risk of torture would undermine efforts to portray forced repatriation as anything other than extreme cruelty and a likely breach of the international legal principal of non-refoulement. Now more than any other time since the outbreak of civil war, Syrians around the globe need the international community to unanimously recognize the danger they face if they are to return home.