Payam Akhavan is a senior fellow at Massey College at the University of Toronto and a former UN prosecutor at The Hague. He is the recipient of the Human Rights Award of the Law Society of Ontario. Alex Neve is a senior fellow at the Graduate School of Public and International Affairs and an adjunct professor of international human rights law at the University of Ottawa.
On June 8, Canada and the Netherlands jointly filed an application against Syria before the International Court of Justice (ICJ) in The Hague, alleging systematic violations of the UN Convention Against Torture.
In the words of Foreign Affairs Minister Mélanie Joly and her Dutch counterpart Wopke Hoekstra: “Since 2011, Syrians have been tortured, murdered, sexually assaulted, forcibly disappeared and subjected to chemical weapon attacks on a mass scale.” The case comes at a time when the regime of President Bashar al-Assad is being blithely rehabilitated by a growing number of states, including through its readmission to the Arab League. This, after a decade-long suspension arising from atrocities committed by Mr. al-Assad’s regime in the Syrian civil war that has claimed the lives of some 300,000 civilians.
In 2017, we had proposed such an application be made in the pages of The Globe and Mail, arguing that “the question of accountability remains a vital ingredient of any lasting peace [in Syria].” We noted that “eradicating a culture of impunity” for dictators worldwide was a central challenge. As a country that has welcomed thousands of Syrian refugees, so many of whom have lived the reality of torture in Syria firsthand, Canada is well-placed and, in fact, has a heightened responsibility to take on this challenge.
The bottom line is that there can be no sustainable peace and genuine reconciliation in Syria without accountability for human rights violations and justice for its victims and survivors. Those willing to sweep these atrocities under the carpet must ask: what kind of peace is possible without justice? How can Syrians achieve healing and reconciliation if those responsible for mass murder remain untouched and in power?
There are important lessons to be learned from the experience of the ad hoc International Criminal Tribunals for the former Yugoslavia and for Rwanda, established by the UN Security Council in 1993 and 1994, respectively. While those regions do, of course, still face human rights challenges, one can only imagine where they would be today if those responsible for “ethnic cleansing” and genocide had enjoyed total impunity.
The permanent International Criminal Court (ICC) was established in 1998 to ensure that the victims of future conflicts would also benefit from justice but, predictably, countries such as Syria do not accept its jurisdiction. The only way around this impediment is for the UN Security Council to refer the situation to the ICC as an enforcement measure, but attempts to do so have been repeatedly vetoed by Russia because of its support for Syria. And now, Russia itself is the subject of an investigation for atrocities in Ukraine, including an arrest warrant against President Vladimir Putin for war crimes against children.
Russia is not alone in its opposition to the ICC: two other permanent members of the Security Council, China and the United States, have resisted the court taking up jurisdiction in a range of other situations. That is why the ICJ, which, unlike the ICC addresses the responsibility of states rather than individuals, is an important alternative to a politically expedient amnesia. The world cannot simply forget what Syrians have suffered.
In similar circumstances in 2019, the West African nation of Gambia initiated a case against Myanmar concerning the genocide of the Rohingya minority. Canada and the Netherlands have expressed an intention to intervene in that case as well, in support of Gambia.
These instances of public interest litigation are an important new front in the struggle against impunity for leaders who commit atrocities.
It is said that evil triumphs when good people do nothing. It is commendable that Canada has chosen not to remain silent.