Gone without a trace: detention and abduction of civilians in Syria

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This article is a brief presentation of the policy paper released by ICTJ in May on the unlawful detention and abduction of civilians in Syria

The policy paper was authored by Hanny Megally, senior fellow at the New York University Center on International Cooperation and commissioner of the United Nations Commission on inquiry on the Syrian Arab Republic, and Elena Naughton, program expert for the International Center for Transitional Justice (ICTJ). 

‘In most cases, to be imprisoned in Syria is to disappear.’ When a person is detained by the regime or abducted by one of the armed groups involved in the conflict, the results are similar. The Syrian regime has been using enforced disappearances as a tool to quell any opposition for decades, and its use has dramatically increased since the beginning of the conflict. Many armed opposition groups have adopted similar tactics.

The paper estimates that approximately 100,000 individuals have been arbitrarily or unlawfully detained by the government forces and affiliated militias since the 2011 uprisings. Furthermore, Amnesty International estimated in 2016 that more than 17,000 individuals were killed in state custody. The vast majority of arbitrary arrests, detentions and enforced disappearances has been carried out by the Syrian Arab Army and the four main branches of the information and security services of the country: the Political Security Directorate, the General Intelligence Directorate, the Military Intelligence Directorate, and the Air Force Intelligence Directorate. The four agencies are formally organized under the supervision of a state ministry, but they appear to report directly to the president, who directly appoints its directors.

Non-state armed groups involved in the conflict ravaging the country have also abducted and detained ‘civilians, members of rival armed groups, and members of the Syrian military and its affiliates’. The number of detainees under their control is unknown, and the Syrian government claims that it could amount to a number close to 16,000. Those groups have a fluid modus operandi of, which determines the difficulty in keeping track ‘of which group is holding whom, and the fate of their abductees or detainees.’

Before the conflict, a longstanding state of emergency was used by the government ‘to arrest, detain, and hold individuals incommunicado [a situation of detention in which an individual is denied access to family members, lawyer or an independent medic] without charges or trial’. Since 2011, the situation constantly deteriorated, and the arbitrariness of state powers increased steeply. Various provisions of the penal and military penal code have been used by the government to justify arrests and detentions, and the Counter-Terrorism Law issued in 2012 has ‘largely shifted legal processes to the newly established Counter-Terrorism Court (CTC)’, where most of the conflict-related detentions are now processed.

Civilians and suspected insurgents, of all ages and all walks of life, have been subject to arrest and detention by the Syrian information and security services. The paper affirms that torture and gender-based violence are widespread in detention facilities, and that the conditions of detention are in direct contravention of the internationally mandated minimum standards for the treatment of prisoners. Many prisoners have died as a result of the inhumane conditions of detention, or have been summarily executed. It is reported that in the Sednaya prison ‘large numbers of bodies are incinerated on a weekly basis.’

Non-state armed groups or opportunistic criminal organizations have detained or abducted a significant number of civilians as well. For example, the Islamic State operated at least 54 detention facilities while at the height of its power.

While the Syrian constitution and the national code of criminal procedure formally guarantee the due process and fair trial of those who are detained, several anti-terrorism or emergency decrees and laws have de facto rendered those guarantees moot. Consequently, the fundamental guarantees in the context of detention that are established under international law ‘are routinely violated, and the right of habeas corpus is consistently denied to those in custody.’ As a matter of fact, the CTC and the military courts are exempted from following the procedures followed by ordinary courts, at every stage of the process (pre-trial, trial, post-trial).

The Syrian government consistently denies access to its records on the location of the detainees, and refuses to provide the basis on which they are detained. Many arrests are conducted without an arrest warrant, by taking away the targeted individual ‘with little or no explanation’ by the security forces.

When a person is arrested, it is transferred to the branch of the agency that is responsible for the arrest, and an investigation is undertaken. When the investigation is complete, the results are forwarded to the directorate of the agency. Once the directorate has reviewed the results of the investigation, it produces charging and sentencing recommendations and includes them in the investigation report, which has to be signed by the detainee, often without being provided with the possibility of reading it. The report is then forwarded to the relevant court, or attorney general for its implementation. 

The process just described can last months, if not years. Those who survive the gruelling conditions of pre-trial detention are subsequently transferred to Damascus for trial. The number of detainees that will actually face a court, is unknown and the report states that ‘it may be assumed that detainees are being held without any real due process in the vast majority of conflict-related cases.’

The courts hearing those cases do not observe any procedural guarantees, and the accused generally undergoes trial (often lasting only a few minutes) without having access to a lawyer, or being conceded the right to prepare and present a defense. The judges often follow the sentences recommended by the directorate of the security agencies, even if it is clear that the accused has been tortured during the investigation process.

The paper describes how the families of the detained live in a ‘limbo’, looking for formal confirmation or acknowledgement on whether their relatives are still alive and in detention, and on the location in which their relatives are detained. Rarely any answer is provided by the government. Thus, the vast majority of detainees are held incommunicado. When families discover that their relative has died in custody, it is often unclear what was the cause of death.

In addition, the families are rarely allowed to visit their detained relatives, and this is reportedly never possible when the detained is undergoing the pre-trial stage in a military police facility or in a military prison facility. Furthermore, the informal practice of obtaining information through connections within the police or security services, which was already widespread before the conflict, has been exploited by officials that extort bribes from the families seeking to communicate with their relatives. The paper remarks that the overall secrecy surrounding the detention is conducive to abuses not only against the detained, but also against their families, which ‘may be subjected to harassment, threats, acts of violence (including sexual violence), and threats of detention.’ For what concerns the families of the detained by non-state armed groups, even less options are available. This is because of the fluid character of such groups and their scarce bureaucratic capabilities.

The ICTJ’s policy paper provides some recommendations ‘presented in the spirit of breaking the deadlock around the question of detainees, abductees, and the forcibly disappeared’, that revolve around ‘four primary areas of action that must be considered urgent for Syrians: (1) official acknowledgement of detentions and the disclosure of information about the whereabouts and the fate of the forcibly disappeared and abducted; (2) detainee releases; (3) access to detention facilities by monitoring groups; and (4) addressing the consequences of enforced disappearance on families.’   

For what concerns the first area of action, ICTJ calls all parties to the conflict to take immediate steps ‘to meet families’ demand for acknowledgement of detentions and for information about detainees’ whereabouts.’ The primary responsibility lies with the Syrian government, which should publish a list of names and whereabouts of the detained, and facilitate efforts for what concerns the information gathering about individuals detained by armed groups. This process could be initiated and facilitated by the International Committee of the Red Cross (ICRC).

For what concerns detainee releases, the ICTJ calls the Syrian government and all parties to the conflict to ‘move swiftly to immediately and unilaterally release detained persons who are vulnerable, such as the sick, the elderly, children, women and the disabled.’ Furthermore, ICTJ states that the unconditional release on an urgent basis of all the prisoners ‘who are detained or serving sentences for nonviolent offenses related to the exercise of fundamental guarantees set out in the International Covenant on Civil and Political Rights’ is another necessary measure to this extent. Aware of the widespread mistrust in ‘state proposals and promises’, ICTJ suggests that process of immediate release of the most vulnerable could be monitored and administered by the ICRC, while at the same time establishing an independent prisoner review mechanism that could ‘help to distinguish between those accused or convicted of minor crimes or political crimes, and crimes considered very serious or not subject to amnesty under international law.’

In the context of access, ICTJ recommends the Syrian government and all parties to the conflict to provide the families of the detained with a mechanism ‘that would enable them to, at a minimum, be in contact and exchange personal and family news with their detained relatives.’ At the request of the families, and in accordance with international law, the paper also asks to rapidly provide ‘unimpeded access to all places of detention, including official prisons, pretrial detention centers, intelligence service detention facilities, administrative detention areas, hospitals, psychiatric institutions, and informal or unofficial places where persons are interned or detained’ to the ICRC.

Finally, it is evident that enforced disappearances, abductions or detentions can not be separated from ‘the extraordinary and longstanding emotional, psychological, social, legal, and economic impacts’ suffered by the detainees and their families. Thus, the ICTJ recommends the Syrian government to ‘cooperate with new and ongoing efforts to assess the long-term material and nonmaterial needs of released political prisoners and their families.’ The ICTJ remarks that the needs and rights of former detainees and their families are ‘of utmost and immediate importance’, and for this reason it is necessary for the Syrian government to implement immediately relief programs that are able to provide support to the victims, and this action could be also be supported by ‘nongovernmental organizations, the UN and other multilateral agencies, foreign governments, donors and other stakeholders’ in light of the ‘current reality’ of the country.

 

To know more, please read:

https://www.ictj.org/publication/gone-without-trace-syria%E2%80%99s-detained-abducted-and-forcibly-disappeared 

 

Author: Philippe H. M. Leroy Beaulieu

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