The conflict in the Syrian Arab Republic has raged for close to ten years. During that time the outside world has largely been a spectator to the suffering of the Syrian people who have been subjected to some of the worst forms of ill-treatment imaginable. More than half a million have been killed, tens of thousands remain detained in secret prisons where torture is practised on an industrial and truly frightening level, civilian neighbourhoods have been subjected to aerial bombardment and ground force attacks, attacks using chemical and other forms of prohibited weapons, and sexual and gender based violence has been incorporated as a weapon of war. More than half the pre-war population have been either killed, detained or forced to flee their homes.
The international community and the systems set up to ensure the mantra “never again” means something has failed the Syrian people. The UN Security Council has become hamstrung where an active participant in the daily atrocities can prevent any international intervention or international accountability. The humanitarian support continues but that is like using a dustpan and brush to sweep up after a devastating earthquake or a kitchen mop to clean up after a Tsunami. The International Criminal Court was established to deal specifically with this type of conflict and yet it is unable to as a result of jurisdictional limitations. The United Nations, Arab League and OIC are all powerless or uninterested. The Kingdom of the Netherlands seeks to change that and has initiated a process that aims, innovatively, to bring an end to the impasse and hold the Syrian Government accountable. The initiative has received mostly widespread support from States and Syrian victims alike. There have; however, been some voices of discontent. These voices are mostly from a position of lack of awareness or understanding of the process and focus on ill perceived notions. For example, one critical voice has focused on the notion that this undermines criminal accountability and risks legitimising a criminal state. Such a proposition is ill-conceived and regrettably displays a distinct lack of knowledge of the process. Other voices have asked “Why now?”, “Why the Netherlands?” or “Why not the ICC?” All of these questions are relevant and can be answered clearly. The Netherlands has been a longtime advocate of accountability in Syria and was one of the first States to break diplomatic ties with the Assad Regime and has shown no sign of re-establishing diplomatic relations and allowing Syria to become a legitimate State. The Netherlands has been at the forefront of humanitarian efforts and has been active in supporting a number of transitional justice mechanisms including the UN IIIM. The Netherlands was a vocal advocate of efforts in the UN Security Council to refer the situation in Syria to the ICC and to ensure humanitarian protection to those most in need. This most recent effort is largely as a result of the frustration of the ineffectiveness of those efforts on an international level and the lack of jurisdiction at the ICC. This effort by the Netherlands is therefore a critically important step to hold the Syrian State accountable for breaches of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. It will not establish individual criminal responsibility and it will not amount to a criminal trial. However, the process is an important step in ensuring that impunity does not prevail. The Syrian regime, its Commander-in-Chief, Bashar al Assad, the Branches of Intelligence and Security, the army, law enforcement and the courts, bear responsibility for the breaches and therefore must be held accountable. It will not frustrate or interfere in any present or future criminal trial on the national or international level. It will not replace criminal accountability; rather it will complement and reinforce those efforts and may provide a path to greater accountability on the national and international level. The procedure under the UN Convention against Torture requires that the Netherlands first tries to negotiate and if this is unsuccessful to arbitrate the dispute. It is here where much of the criticism lies. This process will legitimise an illegitimate and criminal State. It will not. The fact that the Regime, headed by Bashar al-Assad, is in power and acts as the State does not confer legitimacy. The fact that Assad and his State apparatus holds on to power through the brutal use of force against the civilian population and that there have been fraudulent elections again does not confer legitimacy. Regardless of that fact, for the purpose of the UN Convention against Torture and the jurisdiction of the International Court of Justice, the Regime represents the State and as there has been no reservation filed in respect of Article 30 of the Convention, the International Court of Justice has jurisdiction. The process was initiated by the Netherlands serving a diplomatic note on the Syrian Government of its intention to hold Syria responsible for breaches of the UN Convention against Torture and that it seeks to negotiate the dispute. That is a requirement that must be exhausted before the claim can proceed further and it must be undertaken in good faith and must be credible. No official response has thus far been received by the Netherlands, although an initial response through media channels was made by the Ministry of Foreign Affairs accusing the Netherlands as acting as a puppet of the United States of America and that it lacked the moral authority to bring allegations of human rights violations. One can surmise from this response that the negotiations are not likely to proceed and this will trigger step two, arbitration. It is important to recall that the legal action brought in the United States by the family of the murdered journalist, Marie Colvin, followed a failure by the Syrian State to engage in arbitration proceedings. The result of this failure was an order by a Federal Court in Washington DC ordering the Syrian State to pay $300m in damages. The likelihood therefore is that this matter will ultimately end up in front of the International Court of Justice. It remains to be seen whether the Assad Regime will engage in the process in any meaningful way, or at all. Regardless of that engagement this initiative is of critical importance and will provide Syrian victims a much needed voice. This process is aimed at holding the Syrian Regime accountable for acts of torture that have been committed for almost a decade on a truly astonishing industrial level. It will seek to demonstrate that this was a State policy. It will also more importantly seek to bring an end to the practice and to provide a system of recognition and reparation for the tens of thousands who remain in illegal detention, for those who tragically and senselessly died under torture, and for those who managed to flee Syria and continue to suffer from the physical and psychological scars that will remain with them forever. It is for that reason that this is important. Recently, during an interview with a torture survivor whose evidence has now been provided to the Netherlands as part of the documentation process, I asked whether he supported this process in light of some of the criticisms that have been made. His response compelled me to write this. He started by asking if I have children. Dreading his next question, I replied that I had two daughters. He then asked, do they tidy up their room. No, I replied, mostly my wife does. He then said thoughtfully, get them to tidy up their room by picking up one thing at a time, one shirt, one sock, one book, each day. It will soon be clean. That is how we will deal with the Syrian Crisis by cleaning our room one sock at a time.