Order of 16 November 2023

16 NOVEMBRE 2023
ORDONNANCE
APPLICATION DE LA CONVENTION CONTRE LA TORTURE ET AUTRES
PEINES OU TRAITEMENTS CRUELS, INHUMAINS OU DÉGRADANTS
(CANADA ET PAYS-BAS c. RÉPUBLIQUE ARABE SYRIENNE)
___________
APPLICATION OF THE CONVENTION AGAINST TORTURE AND OTHER CRUEL,
INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT
(CANADA AND THE NETHERLANDS v. SYRIAN ARAB REPUBLIC)
16 NOVEMBRE 2023
ORDER
TABLE OF CONTENTS
Paragraphs
CHRONOLOGY OF THE PROCEDURE 1-19
I. PRIMA FACIE JURISDICTION 20-47
1. General observations 20-23
2. Existence of a dispute relating to the interpretation or application
of the Convention against Torture 24-33
3. Procedural preconditions 34-46
4. Conclusion as to prima facie jurisdiction 47
II. STANDING OF CANADA AND THE NETHERLANDS 48-51
III. THE RIGHTS WHOSE PROTECTION IS SOUGHT AND THE LINK BETWEEN
SUCH RIGHTS AND THE MEASURES REQUESTED 52-63
IV. RISK OF IRREPARABLE PREJUDICE AND URGENCY 64-75
V. CONCLUSION AND MEASURES TO BE ADOPTED 76-82
OPERATIVE CLAUSE 83
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INTERNATIONAL COURT OF JUSTICE
YEAR 2023
2023
16 November
General List
No. 188
16 November 2023
APPLICATION OF THE CONVENTION AGAINST TORTURE AND OTHER CRUEL,
INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT
(CANADA AND THE NETHERLANDS v. SYRIAN ARAB REPUBLIC)
REQUEST FOR THE INDICATION OF PROVISIONAL MEASURES
ORDER
Present: President DONOGHUE; Vice-President GEVORGIAN; Judges TOMKA, ABRAHAM,
BENNOUNA, YUSUF, XUE, SEBUTINDE, BHANDARI, ROBINSON, SALAM, IWASAWA,
NOLTE, CHARLESWORTH, BRANT; Registrar GAUTIER.
The International Court of Justice,
Composed as above,
After deliberation,
Having regard to Articles 41 and 48 of the Statute of the Court and Articles 73, 74 and 75 of
the Rules of Court,
Makes the following Order:
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1. On 8 June 2023, Canada and the Kingdom of the Netherlands (hereinafter “the Applicant
States” or “the Applicants”) filed in the Registry of the Court an Application instituting proceedings
against the Syrian Arab Republic (hereinafter “Syria”) concerning alleged violations of the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(hereinafter the “Convention against Torture” or the “Convention”).
2. At the end of their Application, the Applicant States
“respectfully request the Court to adjudge and declare that Syria:
(a) has breached, and continues to breach, its obligations under the Convention against
Torture, in particular those in Articles 2, 7, 10, 11, 12, 13, 14, 15, 16, and 19;
(b) must fully accept its responsibility for those internationally wrongful acts;
(c) must cease any such ongoing violations forthwith and comply with its obligations
under the Convention against Torture;
(d) must provide appropriate assurances and guarantees of non-repetition of violations
of the Convention against Torture;
(e) must investigate and where warranted, prosecute and punish those responsible for
acts of torture, while also guaranteeing fair treatment at all stages of the proceedings
for any person against whom proceedings are brought; and
(f) must provide individual victims full reparation, including compensation and
rehabilitation, for the injury they have suffered as a consequence of those
internationally wrongful acts.
The applicants further respectfully request the Court to adjudge and declare that
Syria has committed a serious breach of a peremptory norm of international law, due to
its gross or systematic failure to fulfill its obligation under Article 2 of the Convention
against Torture not to commit torture as well as to prevent its officials and other persons
acting in an official capacity from perpetrating acts of torture, and determine the legal
consequences thereof.”
3. In their Application, the Applicant States seek to found the Court’s jurisdiction on
Article 36, paragraph 1, of the Statute of the Court and on Article 30, paragraph 1, of the Convention
against Torture.
4. Together with the Application, the Applicant States submitted a Request for the indication
of provisional measures with reference to Article 41 of the Statute and to Articles 73, 74 and 75 of
the Rules of Court.
5. At the end of their Request, the Applicant States asked the Court to indicate the following
provisional measures:
“(a) Syria shall immediately take effective measures to cease and prevent all acts that
amount to or contribute to torture and other cruel, inhuman or degrading treatment
or punishment;
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(b) In light of the greatly enhanced risk for detainees of being subjected to torture and
other cruel, inhuman or degrading treatment or punishment, Syria shall
immediately:
(i) cease arbitrary detention, and release all persons who are arbitrarily or
unlawfully detained;
(ii) cease all forms of incommunicado detention;
(iii) allow access to all of its official and unofficial places of detention by
independent monitoring mechanisms and medical personnel, and allow contact
and visitations between detainees and their families and legal counsel; and
(iv) take urgent measures to improve the conditions of all of its official and
unofficial detention facilities to ensure all detainees are treated with humanity
and with respect for the inherent dignity of the human person in accordance
with international standards;
(c) Syria shall not destroy or render inaccessible any evidence related to the
Application, including, without limitation, by destroying or rendering inaccessible
medical or other records of injuries sustained as a result of torture or other cruel,
inhuman or degrading treatment or punishment or the remains of any person who
was a victim of torture or other cruel, inhuman or degrading treatment or
punishment;
(d) Syria shall safeguard any information concerning the cause of death of any detainee
who died while in detention or while hospitalised, including forensic examination
of the human remains and places of burial, as well as afford the next of kin of any
person who died as a result of torture or other cruel, inhuman or degrading treatment
or punishment, following arrest, hospitalisation or detention with a death certificate,
stating the true cause of death;
(e) Syria shall disclose the location of the burial sites of persons who died as a result of
torture or other cruel, inhuman or degrading treatment or punishment following
arrest, hospitalisation or detention, to the next of kin;
(f) Syria shall not take any action, and shall ensure that no action is taken, which may
aggravate or extend the existing dispute that is the subject of the Application, or
render it more difficult to resolve; and
(g) Syria shall provide a report to the Court on all measures taken to give effect to its
Order for provisional measures, beginning no later than six months from its issuance
and every six months thereafter pending the resolution of the dispute.”
6. The Registrar immediately communicated to the Government of Syria the Application, in
accordance with Article 40, paragraph 2, of the Statute of the Court, and the Request for the
indication of provisional measures, in accordance with Article 73, paragraph 2, of the Rules of Court.
He also notified the Secretary-General of the United Nations of the filing of the Application and the
Request for the indication of provisional measures.
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7. Pending the notification provided for by Article 40, paragraph 3, of the Statute, the Registrar
informed all States entitled to appear before the Court of the filing of the Application and the Request
for the indication of provisional measures by a letter dated 13 June 2023.
8. By a letter dated 8 June 2023 accompanying the Application, Canada informed the Court of
the appointment of Mr Alan H. Kessel, Assistant Deputy Minister and Legal Adviser at Global
Affairs Canada, as Agent for the purposes of the case. By a letter dated 2 November 2023, Canada
subsequently informed the Court of the appointment of Mr Louis-Martin Aumais, Director General
of the Public International Law Bureau at Global Affairs Canada, as Co-Agent.
By a letter dated 8 June 2023 accompanying the Application, the Kingdom of the Netherlands
informed the Court of the appointment of Mr René J.M. Lefeber, Legal Adviser at the Ministry of
Foreign Affairs, as Agent for the purposes of the case, and of Ms Annemarieke Künzli, Legal
Counsel at the Ministry of Foreign Affairs, as Co-Agent.
9. By letters dated 9 June 2023, the Registrar informed the Parties that, pursuant to Article 74,
paragraph 3, of its Rules, the Court had fixed 3 July 2023 as the date for the opening of the oral
proceedings on the request for the indication of provisional measures. Subsequently, by letters dated
23 June 2023, the Registrar informed the Parties that the Court had decided to postpone the opening
of the oral proceedings until 19 July 2023. By a letter dated 13 July 2023, Syria asked the Court to
postpone the hearings by three months. After having ascertained the views of the Applicant States,
which opposed this request, the Court postponed the opening of the hearings until 10 October 2023.
The Parties were informed of the Court’s decision by letters dated 14 July 2023.
10. In accordance with Article 43, paragraph 1, of the Rules of Court, the Registrar addressed
to States parties to the Convention against Torture the notifications provided for in Article 63,
paragraph 1, of the Statute of the Court. In addition, in accordance with Article 69, paragraph 3, of
the Rules of Court, the Registrar addressed to the United Nations, through its Secretary-General, the
notification provided for in Article 34, paragraph 3, of the Statute of the Court.
11. By a letter dated 9 October 2023, the chargé d’affaires of the Embassy of Syria in Brussels
informed the Court that his Government had decided not to participate in the hearings due to open
on 10 October 2023 and that the Court would be provided with “the details of [Syria’s] position in a
separate letter”.
12. At the public hearing held on the morning of 10 October 2023, oral observations on the
request for the indication of provisional measures were presented by:
On behalf of Canada and the Netherlands: Mr René J. M. Lefeber,
Ms Annemarieke Künzli,
Ms Teresa Crockett,
Mr Alan H. Kessel.
13. At the end of their oral observations, the Applicant States asked the Court to indicate the
following provisional measures:
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“(a) Syria shall immediately take effective measures to cease and prevent all acts that
amount to or contribute to torture and other cruel, inhuman or degrading treatment
or punishment;
(b) In light of the greatly enhanced risk for detainees of being subjected to torture and
other cruel, inhuman or degrading treatment or punishment, Syria shall
immediately:
(i) cease arbitrary detention, and release all persons who are arbitrarily or
unlawfully detained;
(ii) cease all forms of incommunicado detention;
(iii) allow access to all of its official and unofficial places of detention by
independent monitoring mechanisms and medical personnel, and allow contact
and visitations between detainees and their families and legal counsel; and
(iv) take urgent measures to improve the conditions of all of its official and
unofficial detention facilities to ensure all detainees are treated with humanity
and with respect for the inherent dignity of the human person in accordance
with international standards;
(c) Syria shall not destroy or render inaccessible any evidence related to the
Application, including, without limitation, by destroying or rendering inaccessible
medical or other records of injuries sustained as a result of torture or other cruel,
inhuman or degrading treatment or punishment or the remains of any person who
was a victim of torture or other cruel, inhuman or degrading treatment or
punishment;
(d) Syria shall safeguard any information concerning the cause of death of any detainee
who died while in detention or while hospitalised, including forensic examination
of the human remains and places of burial, as well as afford the next of kin of any
person who died as a result of torture or other cruel, inhuman or degrading treatment
or punishment, following arrest, hospitalisation or detention with a death certificate,
stating the true cause of death;
(e) Syria shall disclose the location of the burial sites of persons who died as a result of
torture or other cruel, inhuman or degrading treatment or punishment following
arrest, hospitalisation or detention, to the next of kin;
(f) Syria shall not take any action, and shall ensure that no action is taken, which may
aggravate or extend the existing dispute that is the subject of the Application, or
render it more difficult to resolve;
(g) Syria shall provide a report to the Court on all measures taken to give effect to its
Order for provisional measures, beginning no later than six months from its issuance
and every six months thereafter pending the resolution of the dispute; and
(h) Syria shall take immediate actions to reduce the risk of torture being committed by
its officials and other personnel, including by issuing instructions to ensure that
detainees are treated in accordance with their human dignity, suspending all
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personnel suspected of having committed torture or other ill-treatment pending
investigation, lifting de facto immunity for those of its officials who commit torture,
and ensuring that statements obtained under torture are not used as evidence in any
proceedings.”
14. By a letter dated 10 October 2023 and received in the Registry early in the afternoon on
the same day, the chargé d’affaires of the Embassy of Syria in Brussels communicated to the Court
the position of his Government regarding the request for the indication of provisional measures
submitted by Canada and the Netherlands. This letter was immediately transmitted to the Applicant
States.
15. By a letter dated 13 October 2023, Syria informed the Court of the appointment of
Mr Ammar Al-Arsan, chargé d’affaires of the Embasssy of the Syrian Arab Republic in Brussels,
and of Mr Ihab Hamed, Counselor at the Permanent Mission of the Syrian Arab Republic to the
United Nations Office in Geneva, as Agents for the purposes of the case.
*
* *
16. The Court regrets the decision taken by Syria not to participate in the oral proceedings on
the request for the indication of provisional measures.
17. The non-appearance of a party has a negative impact on the sound administration of justice,
as it deprives the Court of assistance that a party could have provided to it. Nevertheless, the Court
must proceed to discharge its judicial function at any phase of the case (see Allegations of Genocide
under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v.
Russian Federation), Provisional Measures, Order of 16 March 2022, I.C.J. Reports 2022 (I),
p. 217, para. 21).
18. Though formally absent from the proceedings at a particular or all stages of the case,
non-appearing parties sometimes submit to the Court letters and documents by means not
contemplated by its Rules. It is valuable for the Court to know the views of both parties in whatever
form those views may have been expressed (see Allegations of Genocide under the Convention on
the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation),
Provisional Measures, Order of 16 March 2022, I.C.J. Reports 2022 (I), p. 217, para. 22).
19. The Court will therefore take account of the letter communicated by Syria on 10 October
2023 (see paragraph 14 above) to the extent that the Court finds this appropriate in discharging its
duties. It emphasizes that the non-appearance of a party in the proceedings at any stage of the case
cannot, in any circumstances, affect the validity of its decision (Allegations of Genocide under the
Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian
Federation), Provisional Measures, Order of 16 March 2022, I.C.J. Reports 2022 (I), p. 217,
para. 23).
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I. PRIMA FACIE JURISDICTION
1. General observations
20. The Court may indicate provisional measures only if the provisions relied on by the
applicant appear, prima facie, to afford a basis on which its jurisdiction could be founded, but need
not satisfy itself in a definitive manner that it has jurisdiction as regards the merits of the case (see
Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of
Genocide (Ukraine v. Russian Federation), Provisional Measures, Order of 16 March 2022, I.C.J.
Reports 2022 (I), pp. 217-218, para. 24).
21. In the present case, the Applicant States seek to found the jurisdiction of the Court on
Article 36, paragraph 1, of the Statute of the Court and on Article 30, paragraph 1, of the Convention
against Torture (see paragraph 3 above). The Court must therefore first determine whether those
provisions prima facie confer upon it jurisdiction to rule on the merits of the case, enabling it — if
the other necessary conditions are fulfilled — to indicate provisional measures.
22. Article 30, paragraph 1, of the Convention against Torture reads as follows:
“Any 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.”
23. Canada, the Netherlands and Syria are all parties to the Convention against Torture;
Canada ratified the Convention on 24 June 1987, the Netherlands ratified it on 21 December 1988,
and Syria acceded to it on 19 August 2004. None of the Parties has entered a reservation to Article 30
of the Convention.
2. Existence of a dispute relating to the interpretation or application
of the Convention against Torture
24. Article 30, paragraph 1, of the Convention against Torture makes the Court’s jurisdiction
conditional on the existence of a dispute relating to the interpretation or application of the
Convention. According to the established case law of the Court, a dispute is “a disagreement on a
point of law or fact, a conflict of legal views or of interests” between parties (Mavrommatis Palestine
Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 11). In order for a dispute to exist,
“[i]t must be shown that the claim of one party is positively opposed by the other” (South West Africa
(Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment, I.C.J. Reports
1962, p. 328). The two sides must “‘hold clearly opposite views concerning the question of the
performance or non-performance of certain’ international obligations” (Alleged Violations of
Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), Preliminary
Objections, Judgment, I.C.J. Reports 2016 (I), p. 26, para. 50, citing Interpretation of Peace Treaties
with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 74).
To determine whether a dispute exists in the present case, the Court cannot limit itself to noting that
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one of the Parties maintains that the Convention applies, while the other denies it (see Allegations of
Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide
(Ukraine v. Russian Federation), Provisional Measures, Order of 16 March 2022, I.C.J. Reports
2022 (I), pp. 218-219, para. 28).
25. Since the Applicant States have invoked as the basis of the Court’s jurisdiction the
compromissory clause in an international convention, the Court must ascertain, at the present stage
of the proceedings, whether it appears that the acts complained of are capable of falling within the
scope of that convention ratione materiae (see Allegations of Genocide under the Convention on the
Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), Provisional
Measures, Order of 16 March 2022, I.C.J. Reports 2022 (I), p. 219, para. 29).
* *
26. The Applicant States contend that the exchanges between the Parties, extending over more
than a decade and including statements made in multilateral fora, public statements and diplomatic
Notes, clearly show that there is a dispute between the Applicants and Syria relating to the
interpretation and application of the Convention against Torture. According to the Applicants, since
at least 2011, they have consistently expressed their profound concern regarding the human rights
situation in Syria and have repeatedly called on Syria to meet its international human rights
obligations, including those set out in the Convention against Torture. They maintain that in various
multilateral settings, including the United Nations Security Council, General Assembly and Human
Rights Council, they have specifically made known their disagreement and concern with regard to
ongoing practices of torture and other cruel, inhuman or degrading punishment or treatment in Syria
and that, each time, Syria has either remained silent or expressed disagreement.
27. The Applicants further state that, on 18 September 2020, the Netherlands formally notified
Syria of the dispute between them and requested that negotiations be held pursuant to Article 30,
paragraph 1, of the Convention against Torture, with regard to Syria’s failure to comply with its
obligations under that Convention. According to the Applicants, the Netherlands publicly announced
that it had taken this step and, the next day, Syria publicly denounced the Netherlands’ actions. The
Applicants add that, on 3 March 2021, Canada made a similar request for negotiations with Syria
pursuant to Article 30, paragraph 1, of the Convention against Torture, “[i]n light of the longstanding
dispute between the Government of Canada and the Syrian Arab Republic”. This request was also
accompanied by a public announcement. The Applicants note that, on 12 March 2021, they made a
joint statement regarding their intention to hold Syria accountable for the violations of its obligations
under the Convention against Torture. The Applicants also refer to a “Statement of Facts” and a
“Statement of Law”, which they presented to Syria in writing on 9 August 2021. These documents
included a description of the relief sought by the Applicants. The Applicants state that, on
30 September 2021, they were informed by Syria that it “rejected ‘in toto’ the characterisation of the
dispute as its ‘international responsibility for the recent breaches of its obligations under the
Convention against Torture’, along with the Statement of Facts and Statement of Law”.
*
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28. The position of Syria, as set out in the letter of 10 October 2023 from the Embassy of Syria
in Brussels, is that the Applicants have failed to prove the elements required according to the Court’s
jurisprudence to establish the existence of a dispute. According to Syria, the correspondence
exchanged between Syria and the Applicant States and two in-person meetings of their delegations
held in April and October 2022 show that
“Syria did not hold contradictory opinions to those of the applicants, and was trying to
understand the concerns raised by them, find out their points of view, and obtain more
information about them, with the aim of verifying and dealing with them if necessary
or required, and reaching an agreement with the applicants”.
29. Syria further contends that “the statements and releases issued by the applicants . . . were
merely general and not specifically related to the ‘existence of dispute’ according to the Convention
against Torture” and that “they came in the context of the general framework of the developments of
the situation in Syria”. In addition, Syria states that “the correspondence that took place between the
Parties was of a procedural nature, and in the context of an attempt to understand the aspects raised
by the applicants”.
* *
30. The Court recalls that, for the purposes of determining whether there was a dispute between
the parties at the time of filing an application, it takes into account in particular any statements or
documents exchanged between them, as well as any exchanges made in multilateral settings (see
Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of
Genocide (Ukraine v. Russian Federation), Provisional Measures, Order of 16 March 2022, I.C.J.
Reports 2022 (I), pp. 220-221, para. 35). The existence of a dispute is a matter for objective
determination by the Court; it is a matter of substance, and not a question of form or procedure (ibid.).
31. The Court takes note of the Applicants’ assertion that they have raised allegations of
violations of the Convention since 2011 in various multilateral fora as well as in bilateral settings.
The Court will first turn to the statements made on a bilateral basis. In this respect, the Netherlands
and Canada each sent a diplomatic Note to Syria, dated 18 September 2020 and 3 March 2021
respectively, in which they alleged that Syria had failed to fulfil its obligations under the Convention
against Torture. The Applicants sent their first joint diplomatic Note on 21 April 2021, in which they
recalled, inter alia, these individual diplomatic Notes. In a diplomatic Note dated 30 September
2021, Syria acknowledged that the Applicants had sent the “Statement of Facts” and “Statement of
Law” on 9 August 2021 and stated that it rejected “in toto” the “formulation” by the Applicants
which referred to its “international responsibility for breaches of its obligations under the Convention
against Torture”. In a series of subsequent diplomatic Notes in which the Parties discussed the
possibility of further exchanges, Syria expressed its respect for the Convention against Torture and
asserted that it paid attention to its international obligations, including under the Convention. The
Court considers that these exchanges between the Parties prior to the filing of the Application indicate
that they differ as to whether certain acts or omissions allegedly committed by Syria gave rise to
violations of the latter’s obligations under the Convention against Torture. In view of the above, it is
not necessary for the Court to consider the Applicants’ contentions with respect to exchanges made
in multilateral fora.
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32. For the purposes of the present proceedings, the Court is not required to ascertain whether
any alleged violations of Syria’s obligations under the Convention against Torture have occurred, a
finding that could only be made as part of the examination of the merits of the case. At the stage of
making an order on a request for the indication of provisional measures, the Court’s task is to
establish whether the acts and omissions complained of by the Applicants appear to be capable of
falling within the provisions of the Convention (cf. Allegations of Genocide under the Convention
on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation),
Provisional Measures, Order of 16 March 2022, I.C.J. Reports 2022 (I), p. 222, para. 43). The Court
notes that, according to the Applicant States, Syria has violated its obligations under the Convention
in various ways, namely through enforced disappearances, abhorrent treatment of detainees,
inhumane conditions of detention, other acts committed in order to coerce, punish or terrorize the
civilian population, and sexual and gender-based violence. In the Court’s view, the acts and
omissions alleged by the Applicants to have been committed by Syria appear to be capable of falling
within the provisions of the Convention.
33. The Court therefore finds that there is a sufficient basis to establish prima facie the
existence of a dispute between the Parties relating to the interpretation or application of the
Convention against Torture.
3. Procedural preconditions
34. Article 30, paragraph 1, of the Convention against Torture sets out procedural
preconditions which must be met before a dispute may be referred to the Court (see Questions
relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J.
Reports 2012 (II), pp. 445-448, paras. 56-63). First, the parties must attempt to settle any dispute
“through negotiation”. Secondly, any such dispute, if it cannot be settled through negotiation, “shall,
at the request of one of [the parties], be submitted to arbitration”. That provision stipulates that the
dispute may be submitted to the Court only if “within six months from the date of the request for
arbitration the Parties are unable to agree on the organization of the arbitration”.
35. At this stage of the proceedings, the Court will examine whether it appears, prima facie,
that the Applicant States genuinely attempted to engage in negotiations with Syria, with a view to
resolving their dispute concerning the latter’s compliance with its substantive obligations under the
Convention against Torture, and whether they pursued these negotiations as far as possible (see
Application of the International Convention on the Elimination of All Forms of Racial Discrimination
(Armenia v. Azerbaijan), Provisional Measures, Order of 7 December 2021, I.C.J. Reports 2021,
p. 372, para. 33). It will then examine whether it appears, prima facie, that an attempt was made to
submit the dispute to arbitration and, if so, whether six months have passed since the Applicants’
request for arbitration, during which period the Parties were unable to agree on the organization of
the arbitration.
* *
36. Regarding the precondition of negotiation contained in Article 30, paragraph 1, of the
Convention against Torture, the Applicant States begin by asserting that over a three-year period they
exchanged 66 diplomatic Notes with Syria and held two in-person meetings in April and
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October 2022 seeking to find a negotiated resolution to the dispute. They further state that by the
close of the second in-person meeting held on 5 and 6 October 2022, it was “evident that the positions
of the Parties remained diametrically opposed with regard to the facts presented by Canada and the
Netherlands, the scope of the dispute, the interpretation and application of the Convention against
Torture, and the possible settlement of the dispute”. The Applicants add that, after more than two
years of “concerted efforts”, the position of the Parties had not evolved and no progress had been
made towards resolution of the dispute. The Applicants state that, having concluded that further
negotiations could not lead to the settlement of the dispute, they informed Syria by a diplomatic Note
dated 17 October 2022 that they considered that negotiations had become deadlocked or futile.
37. With respect to the arbitration precondition contained in Article 30, paragraph 1, of the
Convention against Torture, the Applicant States submit that, by a diplomatic Note dated
7 November 2022, they formally requested that the dispute be submitted to arbitration and enclosed
proposed “foundational elements” to form the basis for an agreement on the organization of the
arbitration. According to the Applicants, Syria did not acknowledge or otherwise respond to this
request. They add that, notwithstanding subsequent invitations for Syria to provide comments on the
arbitration proposal, no response has been received on the matter. The Applicants point out that more
than six months have passed from the time they formally requested arbitration without agreement on
the organization of that arbitration.
*
38. With regard to the precondition of negotiation contained in Article 30, paragraph 1, of the
Convention against Torture, Syria asserts in its letter of 10 October 2023 that the diplomatic Notes
exchanged between the Parties did not address the “substance of the issue” and that the first meeting,
held on 26 April 2022, “was devoted to agreeing on procedural aspects only”. According to Syria, it
was agreed to continue holding meetings every three months and, consequently, the Parties
exchanged correspondence to set a date for a second meeting. Syria contends that the second meeting,
held on 5 and 6 October 2022, was the only substantive meeting held between the Parties and that,
as such, it was not sufficient for the Applicants to conclude that a deadlock had been reached or that
future negotiations were futile. Syria submits that, in correspondence after that meeting, it
consistently confirmed its readiness to engage seriously and in good faith with the Applicants on the
basis of the Convention against Torture, indicating that it had more points to raise and discuss and
repeatedly proposing that another meeting be held as soon as possible.
39. With respect to the arbitration precondition in Article 30, paragraph 1, of the Convention
against Torture, Syria argues in its letter of 10 October 2023 that the request for arbitration contained
in the diplomatic Note from the Applicants dated 7 November 2022 was not consistent with the spirit
and letter of Article 30 of the Convention because the “elements” regarding the organization of an
arbitral tribunal contained in the diplomatic Note constituted “a precondition that impede[d] any
possibility of discussing the issue of arbitration”.
* *
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40. Regarding the precondition of negotiation contained in Article 30, paragraph 1, of the
Convention against Torture, the Court observes that negotiations are distinct from mere protests or
disputations and require a genuine attempt by one of the parties to engage in discussions with the
other party, with a view to resolving the dispute. Where negotiations are attempted or have
commenced, the precondition of negotiation is met only when the attempt to negotiate has been
unsuccessful or where negotiations have failed, become futile or are deadlocked. In order to meet
this precondition, “the subject-matter of the negotiations must relate to the subject-matter of the
dispute which, in turn, must concern the substantive obligations contained in the treaty in question”
(see Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Armenia v. Azerbaijan), Provisional Measures, Order of 7 December 2021, I.C.J.
Reports 2021, pp. 373-374, para. 38).
41. The Court notes that, since the allegations that Syria violated its obligations under the
Convention against Torture were formally raised by the Netherlands in its diplomatic Note of
18 September 2020 (in which it proposed negotiations in relation to these allegations), the first
diplomatic Note sent by Canada on 3 March 2021, and the Applicants’ first joint diplomatic Note to
Syria of 21 April 2021, the Parties have exchanged a series of diplomatic Notes over two years, and
held in-person meetings on 26 April 2022 and on 5 and 6 October 2022 in an effort to negotiate a
resolution of the dispute. However, it appears to the Court, from the content of the diplomatic Notes
and the available information regarding the in-person meetings, that the positions of the Parties had
not evolved and no substantive progress had been made in resolving their dispute during the period
before the joint diplomatic Note of 7 November 2022, in which Canada and the Netherlands
requested that the dispute be submitted to arbitration.
42. It therefore appears to the Court that the negotiation precondition set forth in Article 30,
paragraph 1, of the Convention had been met as of the date of the filing of the Application.
43. Regarding the arbitration precondition contained in Article 30, paragraph 1, of the
Convention against Torture, the Court considers that the diplomatic Note dated 7 November 2022
contains an explicit offer by the Applicant States to Syria to have recourse to arbitration in order to
settle the dispute over alleged violations by Syria of that Convention. The Court further observes that
Syria does not appear to have acknowledged or otherwise responded to this offer, and that more than
six months have passed since it was made. It therefore appears to the Court that the procedural
precondition relating to arbitration in Article 30, paragraph 1, of the Convention had been met as of
the date of the filing of the Application.
44. Recalling that, at this stage of the proceedings, the Court need only decide whether,
prima facie, it has jurisdiction, the Court finds that the procedural preconditions under Article 30,
paragraph 1, of the Convention against Torture appear to have been met.
*
45. The Court notes that Syria, in its letter of 10 October 2023, states that the Court has no
jurisdiction to entertain the Application. In particular, Syria argues that Article 30 of the Convention
- 13 -
against Torture is applicable only after the mechanisms and procedures stipulated in Articles 17 to 21
thereof, which relate to the establishment and functions of the Committee against Torture, have been
met in the event of a dispute concerning the interpretation or application of the Convention. Syria
contends that the Applicants cannot institute proceedings before the Court on the basis of Article 30
of the Convention without first having submitted a communication to the Committee against Torture
under Article 21, which they have not done. Syria adds that, in any case, it has made a declaration
under Article 28, paragraph 1, that it does not recognize the competence of the Committee to take
action under Article 20 and has never recognized the competence of the Committee to receive and
consider communications under Article 21 of the Convention.
46. In this regard, the Court observes that Article 30, paragraph 1, of the Convention against
Torture does not appear to indicate that the Court’s jurisdiction under this provision is subject to the
procedures of the Committee against Torture. It moreover appears to the Court that the fact that Syria
has declared that it does not recognize the competence of the Committee to act under Article 20 and
has never recognized the Committee’s competence to receive and consider communications under
Article 21, has no bearing on the Court’s jurisdiction under Article 30, paragraph 1, of the
Convention.
4. Conclusion as to prima facie jurisdiction
47. In light of the foregoing, the Court concludes that, prima facie, it has jurisdiction pursuant
to Article 30, paragraph 1, of the Convention against Torture to entertain the case to the extent that
the dispute between the Parties relates to the interpretation or application of the Convention.
II. STANDING OF CANADA AND THE NETHERLANDS
48. The Applicants argue that they seek compliance by Syria with its obligations under the
Convention against Torture, which they characterize as possessing an erga omnes partes nature, and
are thus owed to the Applicants, and indeed to all States parties to the Convention.
49. In its letter of 10 October 2023, Syria argues that the obligations arising from the
Convention against Torture are individual obligations of States and that the Applicants do not have
the right to raise allegations about its responsibility under the Convention because they have not
established that they have suffered any damage.
* *
50. The Court recalls that, in a previous case where Article 30, paragraph 1, of the Convention
against Torture was also invoked as the basis of jurisdiction, it observed that “[t]he States parties to
the Convention have a common interest to ensure, in view of their shared values, that acts of torture
are prevented and that, if they occur, their authors do not enjoy impunity”. According to the reasoning
expounded by the Court, such a common interest
- 14 -
“implies that the obligations in question are owed by any State party to all the other
States parties to the Convention. All the States parties ‘have a legal interest’ in the
protection of the rights involved (Barcelona Traction, Light and Power Company,
Limited (Belgium v. Spain), Second Phase, Judgment, I.C.J. Reports 1970, p. 32,
para. 33). These obligations may be defined as ‘obligations erga omnes partes’ in the
sense that each State party has an interest in compliance with them in any given case.”
(Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal),
Judgment, I.C.J. Reports 2012 (II), p. 449, para. 68.)
It follows that any State party to the Convention against Torture may invoke the responsibility of
another State party with a view to having the Court determine whether the State failed to comply
with its obligations erga omnes partes, and to bring that failure to an end.
51. The Court thus concludes that the Applicants have, prima facie, standing to submit to it
the dispute with Syria concerning alleged violations of obligations under the Convention against
Torture.
III. THE RIGHTS WHOSE PROTECTION IS SOUGHT AND THE LINK BETWEEN
SUCH RIGHTS AND THE MEASURES REQUESTED
52. The power of the Court to indicate provisional measures under Article 41 of the Statute
has as its object the preservation of the respective rights claimed by the parties in a case, pending its
decision on the merits. It follows that the Court must be concerned to preserve by such measures the
rights which may subsequently be adjudged by it to belong to either party. Therefore, the Court may
exercise this power only if it is satisfied that the rights asserted by the party requesting such measures
are at least plausible (see, for example, Allegations of Genocide under the Convention on the
Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), Provisional
Measures, Order of 16 March 2022, I.C.J. Reports 2022 (I), p. 223, para. 50).
53. At this stage of the proceedings, however, the Court is not called upon to determine
definitively whether the rights which the Applicant States wish to see protected exist; it need only
decide whether the rights claimed by them on the merits, and for which they are seeking protection,
are plausible. Moreover, a link must exist between the rights whose protection is sought and the
provisional measures being requested (Allegations of Genocide under the Convention on the
Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), Provisional
Measures, Order of 16 March 2022, I.C.J. Reports 2022 (I), p. 224, para. 51).
* *
54. The Applicants contend that, as they are States parties to the Convention against Torture
with a common interest to seek compliance with its obligations, the rights that they assert in the
present case are plausible. The Applicants refer to their rights to secure compliance by Syria with its
obligations under the Convention against Torture, in particular the obligations under Articles 2, 7,
- 15 -
10, 11, 12, 13, 15 and 16. They further submit that protecting their rights to seek Syria’s compliance
will also protect persons in Syria who, they argue, are currently, or are at imminent risk of, being
subjected to torture and other cruel, inhuman or degrading treatment or punishment.
*
55. In its letter dated 10 October 2023, Syria contends that for the alleged rights under the
Convention against Torture to be plausible, specific evidence of alleged acts of torture must be
presented by the Applicants. It states that no such evidence, however, was provided by the
Applicants.
* *
56. The Convention imposes a number of obligations on States parties with regard to the
prevention and punishment of acts of torture and other acts of cruel, inhuman or degrading treatment
or punishment. Article 1, paragraph 1, of the Convention defines torture in the following terms:
“[A]ny act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person for such purposes as obtaining from him or a third
person information or a confession, punishing him for an act he or a third person has
committed or is suspected of having committed, or intimidating or coercing him or a
third person, or for any reason based on discrimination of any kind, when such pain or
suffering is inflicted by or at the instigation of or with the consent or acquiescence of a
public official or other person acting in an official capacity. It does not include pain or
suffering arising only from, inherent in or incidental to lawful sanctions.”
Other provisions of the Convention require States parties, inter alia, to take effective legislative,
administrative, judicial or other measures to prevent acts of torture in any territory under their
jurisdiction (Article 2); to extradite persons alleged to have committed acts of torture or to submit
the case to their competent authorities for the purpose of prosecution (Article 7); to ensure that
education and information regarding the prohibition against torture are fully included in the training
of personnel who may be involved in the custody, interrogation or treatment of any individual
subjected to any form of arrest, detention or imprisonment (Article 10); to ensure that their competent
authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to
believe that an act of torture has been committed in any territory under their jurisdiction (Article 12);
to ensure that any individual who alleges having been subjected to torture in any territory under their
jurisdiction has the right to complain to, and to have the case promptly and impartially examined by,
their competent authorities (Article 13); and to prevent in any territory under their jurisdiction other
acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture
(Article 16).
- 16 -
57. The Court notes that the provisions of the Convention against Torture are intended to
protect individuals from torture and other acts of cruel, inhuman or degrading treatment or
punishment. The Court has previously held that there is a correlation between respect for individual
rights enshrined in the International Convention on the Elimination of All Forms of Racial
Discrimination, the obligations of States parties thereto and the right of States parties to seek
compliance therewith (Application of the International Convention on the Elimination of All Forms
of Racial Discrimination (Armenia v. Azerbaijan), Provisional Measures, Order of 7 December
2021, I.C.J. Reports 2021, p. 382, para. 57). In the view of the Court, the same applies to the
Convention against Torture. The Court considers that the Applicants have a plausible right to
compliance by Syria with those obligations under the Convention which have an erga omnes partes
character. The assertion by Syria that the Applicants have not presented specific evidence of alleged
acts of torture (see paragraph 55 above) will be considered below (paragraphs 72 and following), in
the context of the Court’s examination of the conditions of a risk of irreparable prejudice and
urgency.
58. In light of the above, the Court considers that the rights claimed by the Applicant States
and for which they are seeking protection (see paragraph 54 above) are plausible.
* *
59. The Court now turns to the condition of the link between the rights claimed by the
Applicant States and the provisional measures requested.
* *
60. The Applicant States submit that the provisional measures requested are directly linked to
the rights which form the subject-matter of the dispute, in that they are aimed at ensuring compliance
by Syria with its obligations to prevent torture and other cruel, inhuman or degrading treatment or
punishment, protecting the integrity of the proceedings before the Court and safeguarding the right
of the Applicants to have their claim fairly adjudicated. They add that certain provisional measures
requested aim to address specifically the “substantially enhanced risk” of being subjected to torture
and other cruel, inhuman or degrading treatment or punishment for detainees who, they claim, are
being arbitrarily detained, held incommunicado or living in abhorrent detention conditions.
*
- 17 -
61. In its letter dated 10 October 2023, Syria argues that the requirement that a link must exist
between the rights whose protection is sought and the provisional measures being requested has not
been satisfied.
* *
62. The Court considers that, by their very nature, some of the provisional measures sought by
the Applicant States (see paragraph 5 above) are aimed at preserving the rights they assert on the
basis of the Convention against Torture in the present proceedings. This is the case, in particular,
with regard to the requested measures requiring Syria to prevent acts of torture and other cruel,
inhuman or degrading treatment or punishment and to preserve evidence relating to any such acts.
63. The Court concludes, therefore, that a link exists between the rights claimed by the
Applicant States and some of the requested provisional measures.
IV. RISK OF IRREPARABLE PREJUDICE AND URGENCY
64. The Court, pursuant to Article 41 of its Statute, has the power to indicate provisional
measures when irreparable prejudice could be caused to rights which are the subject of judicial
proceedings or when the alleged disregard of such rights may entail irreparable consequences (see,
for example, Allegations of Genocide under the Convention on the Prevention and Punishment of
the Crime of Genocide (Ukraine v. Russian Federation), Provisional Measures, Order of 16 March
2022, I.C.J. Reports 2022 (I), p. 226, para. 65).
65. However, the power of the Court to indicate provisional measures will be exercised only
if there is urgency, in the sense that there is a real and imminent risk that irreparable prejudice will
be caused to the rights claimed before the Court gives its final decision. The condition of urgency is
met when the acts susceptible of causing irreparable prejudice can “occur at any moment” before the
Court makes a final decision on the case (see, for example, Allegations of Genocide under the
Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian
Federation), Provisional Measures, Order of 16 March 2022, I.C.J. Reports 2022 (I), p. 227,
para. 66). The Court must therefore consider whether such a risk exists at this stage of the
proceedings.
66. The Court is not called upon, for the purposes of its decision on the request for the
indication of provisional measures, to establish the existence of breaches of obligations under the
Convention against Torture, but to determine whether the circumstances require the indication of
provisional measures for the protection of rights under this instrument. It cannot at this stage make
definitive findings of fact, and the right of each Party to submit arguments in respect of the merits
remains unaffected by the Court’s decision on the request for the indication of provisional measures.
* *
- 18 -
67. The Applicants allege that Syria has committed acts of torture and subjected detainees to
other acts of cruel, inhuman or degrading treatment or punishment on a mass scale since at least 2011
and that it demonstrates no intention of preventing ongoing or future violations. In this regard, the
Applicants refer to various reports by the Independent International Commission of Inquiry on the
Syrian Arab Republic, which was established by a resolution of the Human Rights Council in 2011
(hereinafter the “Commission of Inquiry” or the “Commission”). The Applicant States claim that
these violations are causing irreparable prejudice to their right to seek Syria’s compliance with its
obligations. They also argue that each new act of torture or other acts of cruel, inhuman or degrading
treatment or punishment by Syria constitute irreparable harm with respect to each victim. They point
out that, where past violations have occurred, the Court has found provisional measures appropriate
when it is “not inconceivable” that they might occur again.
68. The Applicant States further contend that, in view of the continuing violations, the urgency
to indicate provisional measures has persisted over the entire length of time since they invoked
Syria’s responsibility for violations of the Convention against Torture and attempted to settle the
dispute through negotiation and arbitration, and still exists to date.
*
69. Syria, for its part, in its letter dated 10 October 2023, states that, in the current proceedings,
there is no urgency as there is no real and imminent risk that “needs to be addressed immediately”.
In particular, according to Syria, the “Statement of Facts” presented by the Applicants relates to the
period between 2011 and 2014, which is not consistent with the condition of urgency. In addition,
Syria argues that the fact that the Applicants did not respond to its request to provide specific cases
of torture to be investigated or its request to hold another substantive meeting on the issue shows a
lack of urgency.
* *
70. Having previously determined that the rights asserted by the Applicant States are plausible
and that there is a link between those rights and some of the provisional measures requested, the
Court turns to the questions of whether irreparable prejudice could be caused to those rights and
whether there is urgency, in the sense that there is a real and imminent risk that irreparable prejudice
will be caused to those rights before the Court gives its final decision.
71. The Court considers that individuals subject to torture and other acts of cruel, inhuman or
degrading treatment or punishment, which entail bodily harm and psychological distress, are at
serious risk of irreparable prejudice (see Application of the International Convention on the
Elimination of All Forms of Racial Discrimination (Armenia v. Azerbaijan), Provisional Measures,
Order of 7 December 2021, I.C.J. Reports 2021, p. 389, para. 82). In view of the relationship
between the rights of such individuals and the rights of States parties to the Convention (see
paragraph 57 above), it follows that there is also a risk of irreparable prejudice to the rights asserted
by the Applicants.
- 19 -
72. In the present proceedings, the information placed before the Court includes various
reports drawn up by the Commission of Inquiry. The Court notes that the report of the Commission
of Inquiry dated 11 March 2021 indicated that “[t]he use of arbitrary detention, torture and
ill-treatment, including through sexual violence, involuntary or enforced disappearance and summary
executions, has been a hallmark of the conflict”, and that
“[v]iolations and abuses have been perpetrated with such consistency, particularly by
the Government of the Syrian Arab Republic, and have been reported so widely by the
Commission of Inquiry and others that it is impossible to claim that they were
committed without the knowledge of the relevant chains of command”.
The Commission concluded that “[t]hose who have survived describe executions and deaths from
neglect and appalling prison conditions, suggesting that those still in incommunicado custody may
slowly die unless released expeditiously”. Moreover, the Commission has drawn attention in several
reports to the systematic aspect of torture and other acts of cruel, inhuman or degrading treatment or
punishment in detention facilities operated by the Syrian authorities, leading to extensive deaths in
detention.
73. The Court notes that, in resolution 77/230 of 15 December 2022, the General Assembly
“[d]eplore[d] and condemn[ed] in the strongest terms the continued widespread and systematic gross
violations and abuses of human rights and fundamental freedoms” in Syria, including “torture,
systematic sexual and gender-based violence, including rape in detention, and ill-treatment, other
violations and abuses of human rights, including those of women and children”. The Court also takes
note of the report of the Commission of Inquiry dated 7 February 2023, in which it pointed out that
it
“ha[d] reasonable grounds to believe that the Government continued to commit acts of
murder, torture and ill-treatment against persons in detention, including practices
causing death in detention, as well as arbitrary imprisonment and enforced
disappearances”,
and that it “continued to document pervasive violations of human rights and humanitarian law across
the country”. In its report dated 10 July 2023, the Commission of Inquiry documented continuing
torture and other acts of cruel, inhuman or degrading treatment or punishment in government
detention facilities and emphasized that
“continuing involvement of multiple State actors, including intelligence directorates,
police, military and the judiciary, in . . . acts [of torture, rape and sexual violence,
enforced disappearance, murder, extermination, imprisonment, and other inhumane acts
in the context of detention], coupled with the complete lack of accountability among the
intelligence or security apparatus, indicates that the attack against the civilian
population remains ongoing, widespread, systematic, and carried out in furtherance of
Government policy”.
In its most recent report of 14 August 2023, the Commission of Inquiry indicated that it “has
reasonable grounds to believe that the Government continued to commit acts of torture and
ill-treatment”.
- 20 -
74. The Court also notes that the Commission of Inquiry addressed sexual and gender-based
violence in its report of 8 March 2018. In that report, the Commission found that, both inside and
outside of detention, sexual and gender-based violence against women, girls, men and boys has been
a persistent issue in Syria since the uprising in 2011. Outside of detention, the Commission has found
that
“[g]overnment forces and associated militias have perpetrated rape and sexual abuse of
women and girls and occasionally men during ground operations, house raids to arrest
protestors and perceived opposition supporters, and at checkpoints”.
The Commission documented rape of women and girls in detention, as well as male detainees. After
the Human Rights Council requested the Commission to consider updating this 2018 report, the
Commission found in its February 2023 report that sexual violence in government-controlled
detention facilities “continues to occur countrywide”.
75. The Court is of the opinion that, in light of the above, there is a real and imminent risk of
irreparable prejudice to the rights invoked by the Applicant States before the Court gives its final
decision.
V. CONCLUSION AND MEASURES TO BE ADOPTED
76. The Court concludes from all of the above considerations that the conditions for the
indication of provisional measures are met. It is therefore necessary, pending its final decision, for
the Court to indicate certain measures in order to protect the rights claimed by the Applicant States,
as identified above (see paragraph 58).
77. The Court recalls that it has the power, under its Statute, when a request for provisional
measures has been made, to indicate measures that are, in whole or in part, other than those requested.
Article 75, paragraph 2, of the Rules of Court specifically refers to this power of the Court. The Court
has already exercised this power on several occasions in the past (see, for example, Allegations of
Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide
(Ukraine v. Russian Federation), Provisional Measures, Order of 16 March 2022, I.C.J. Reports
2022 (I), p. 229, para. 79).
78. In the present case, having considered the terms of the provisional measures requested by
the Applicant States and the circumstances of the case, the Court finds that the measures to be
indicated need not be identical to those requested.
79. The Court considers that, pending the final decision in the case, Syria must, in accordance
with its obligations under the Convention against Torture, take all measures within its power to
prevent acts of torture and other cruel, inhuman or degrading treatment or punishment and ensure
that its officials, as well as any organizations or persons which may be subject to its control, direction
or influence, do not commit any acts of torture or other acts of cruel, inhuman or degrading treatment
or punishment.
- 21 -
80. The Court is further of the view that Syria must take effective measures to prevent the
destruction and ensure the preservation of any evidence related to allegations of acts within the scope
of the Convention against Torture, including medical and forensic reports or other records of injuries
and deaths.
*
* *
81. The Court recalls that its orders on provisional measures under Article 41 of the Statute
have binding effect and thus create international legal obligations for any party to whom the
provisional measures are addressed (Allegations of Genocide under the Convention on the Prevention
and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), Provisional Measures,
Order of 16 March 2022, I.C.J. Reports 2022 (I), p. 230, para. 84).
*
* *
82. The Court reaffirms that the decision given in the present proceedings in no way prejudges
the question of the jurisdiction of the Court to deal with the merits of the case or any questions
relating to the admissibility of the Application or to the merits themselves. It leaves unaffected the
right of the Governments of Canada, the Netherlands and Syria to submit arguments in respect of
those questions.
*
* *
83. For these reasons,
THE COURT,
Indicates the following provisional measures:
(1) By thirteen votes to two,
The Syrian Arab Republic shall, in accordance with its obligations under the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, take all measures
within its power to prevent acts of torture and other cruel, inhuman or degrading treatment or
- 22 -
punishment and ensure that its officials, as well as any organizations or persons which may be subject
to its control, direction or influence, do not commit any acts of torture or other acts of cruel, inhuman
or degrading treatment or punishment;
IN FAVOUR: President Donoghue; Judges Tomka, Abraham, Bennouna, Yusuf, Sebutinde,
Bhandari, Robinson, Salam, Iwasawa, Nolte, Charlesworth, Brant;
AGAINST: Vice-President Gevorgian; Judge Xue;
(2) By thirteen votes to two,
The Syrian Arab Republic shall take effective measures to prevent the destruction and ensure
the preservation of any evidence related to allegations of acts within the scope of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
IN FAVOUR: President Donoghue; Judges Tomka, Abraham, Bennouna, Yusuf, Sebutinde,
Bhandari, Robinson, Salam, Iwasawa, Nolte, Charlesworth, Brant;
AGAINST: Vice-President Gevorgian; Judge Xue.
Done in French and in English, the French text being authoritative, at the Peace Palace,
The Hague, this sixteenth day of November, two thousand and twenty-three, in four copies, one of
which will be placed in the archives of the Court and the others transmitted to the Government of
Canada, the Government of the Kingdom of the Netherlands and the Government of the Syrian Arab
Republic, respectively.
(Signed) Joan E. DONOGHUE,
President.
(Signed) Philippe GAUTIER,
Registrar.
- 23 -
Vice-President GEVORGIAN appends a dissenting opinion to the Order of the Court; Judge XUE
appends a declaration to the Order of the Court.
(Initialled) J.E.D.
(Initialled) Ph.G.
___________