27 April, 2022
by Sam Biden, Global Leadership Fellow
Conflict & Disappearances
Since the outbreak of the Syrian civil war in 2011, hundreds of thousands of people have been displaced, forcibly disappeared and killed at the hands of the conflicting parties. More than a decade ago, pro-democracy protests erupted as a challenge to President Bashar al-Assad began to manifest. Assad vowed that he would crush the “foreign-backed terrorism” that began to cause further civil unrest after decades of corruption and abuse of political rights. The malicious attitude of the Syrian government would only exacerbate the already skeptical and rebellious views held against them.
The protests were met with horrific violence against protestors at the hands of the police, military and paramilitary forces of the Syrian government. This retaliation eventually expanded into a civil war with multiple factions on either side fighting for territorial and governmental control of Syria. Enforced disappearances have become commonplace in the conflict and have been committed by the four main domestic parties to the war; Syrian Regime Forces (SRF), Islamic State (ISIS), Syrian Democratic Forces (SDF) and Hay’at Tahrir al-Sham (HTS).
In total, over 100,000 people have been recorded as either arbitrarily detained or forcibly disappeared since 2011. The Syrian Regime Forces are supposedly responsible for at least 128,417 disappearances, Islamist groups are responsible for another 10,721 while armed oppositions and the SDF are responsible for another 2,844 and 2,907 disappearances, respectively. It’s clear from these figures that there is not a one-sided effort to enforce disappearances. While some parties are responsible for far more than others, all parties to the conflict are taking part in the widespread committing of crimes against humanity. These disappearances are primarily a result of summary executions, arbitrary detention, kidnapping and abduction or occur as a direct result of fighting where the bodies are not reported nor recovered.
The SRF has been consistently enforcing disappearances for the majority of the conflict. In many cases, people have been missing for over 8 years while others have been missing for over 5 years at least. The SRF have a proclivity for targeting key figures such as human rights advocates, academics and political opponents. The targeting of political opponents by the SRF is often used as a deterrent to others from speaking out about atrocities within the state or any dissenting opinion contrary to the Syrian government. These political opponents are identified through their opposition to the current Syrian government which raises issues under the principle of non-discrimination. This principle requires that the citizens of the state are treated without distinction of any kind on the grounds of race, colour, sex, language, religion, political status, national origin, property, birth or any other status. The systemic politically motivated enforced disappearances not only cause major concerns under the ICC Statute for crimes against humanity but also under the ICCPR for politically targeted disappearances.
Since the SRF is in control of official state prisons and therefore the judicial process for conviction of political opponents, there have been a number of procedural ambiguities regarding fair trials. For example, many individuals have been tried through military courts where their access to lawyers and their family have been subsequently revoked after initially being granted. Alongside this, family reunification and traceability is made near impossible with the sudden and silent transfer of individuals from prison to prison without any notification to either the detainees or any relevant family members or lawyers. Approximately 65% of these detainees are immediately classed as either forcibly displaced persons as an enforced disappearance occurs instantaneously after arrest. Because of this very informal process, formal protections in the prison systems do not exist. Many have claimed they’ve been tortured, denied food and water as well as being denied healthcare and a fair trial.
After rising to prominence in 2014, ISIS became a force to be reckoned with within the Middle East, and still retains substantial influence despite losing most of the territory it once held. With ideology often credited to that of Sunni extremists such as Osama Bin Laden, ISIS have developed a lawless perspective towards their opponents, resulting in them being the second most significant party to have caused enforced disappearances. ISIS are said to have replicated many of the methods of enforced disappearances used by the SRF. Some common overlaps include; targeting of human rights activists, humanitarian workers, media activists and foreigners.
Like the SRF, ISIS had control over a plethora of detention centres to which they subsequently keep their prisoners. Estimations predict they controlled around 54 of these centres early in the civil war, primarily located in Raqqa, Deir al-Zour and Aleppo. After a series of successful sieges, ISIS lost control of many of these centres, causing them to move all detainees to unknown locations where any hope of recovering them become slim. While the detainees were contained in the facilities there was at least some knowledge of their location and some tracing could be made, yet these forced transfer mean many of these individuals will never be found again. When families would enquire about their loved ones, ISIS would often pursue these families and harass them for asking such questions.
Like it’s rebellious and official counterparts, the SDF follows similar patterns of enforced disappearances. As a self-management force for the Kurdish Democratic Union Party (PYD) they’ve been involved in the enforced disappearances of any political activists that are critical of their territorial operations. In 2016, the SDF began a campaign aimed at detaining vast numbers of civilians of different ethnic backgrounds while they expanded their territories. Unlike the SRF, the SDF does not offer trials nor any information of any charges being made against the individual. As seen prior, denial of communications with relevant legal authorities and family members is a standard approach that the SDF also uses. However, the SDF has occasionally allowed for the release of some of the detainees after agreements between them and local dignitaries and tribe Sheikhs have been made.
The SDF have gone one step further than their counterparts with the attempted introduction of legislation aimed at legitimizing their enforced disappearances. It is important to note that enforced disappearances are a crime against humanity and that no piece of national legislation, whether legitimate or not, can circumvent this. This legislation is specifically designed to mirror that of the Syrian government. Most notably, this legislation would deem anyone who protests for a democratic change that’s counter-intuitive to the goals of the SDF as a criminal whose voice needs silencing.
As a previous Al-Qaeda affiliate, the HTS has maintained a jihadist-based ideology which forms the basis for the exclusion and string of enforced disappearances against those who oppose them. After the official split from Al-Qaeda in 2017, HTS became a localized and designated Foreign Terrorist Organization (FTO) by the US government.
HTS began with the removal of Iranian militias and militants from the small towns of Fu’a and Kafriya, then moving onto a new campaign against their primary armed rival, ISIS. With this new strategy came a slue of enforced disappearances. Many similarities with their civil war oppositions are present, such as; secret and private trials (sometimes no trial is given), ransom for the release of prisoners, denial of access to family and lawyers as well as transfer to totally isolated and secret prisons.
While the SDF pursued legislation as an attempt to justify their actions, HTS pursued the formation of a new alternate government known as the Syrian Salvation Government (SSG). With this new government came a new judicial mechanism that HTS could use as a formal process regarding detainment. However, HTS circumvented their own judicial body regarding enforced disappearances and instead continued to pursue secret trials where many individuals were not informed of the charges being made against them nor were able to seek effective remedy through the new SSG judicial organ.
Failed Investigative & Judicial Framework
As has been seen throughout, all four of the main parties relative to enforced disappearances have been using illegitimate methods of arrests and flawed trials to silence their own critics. This raises the question of how this compares to the official Syrian system regarding due process.
Under Article 104 the Code of Criminal Procedure; no one can be arrested without judicial order, in the event of arrest by judicial police the detainee must be brought before a judge within 24 hours and if this is not possible they must be released. Alongside this, Article 72 states that only the judge in charge of the case may halt communications with the detainee, therefore, the vast amount of revocations regarding communications with lawyers and family members is arbitrary.
Given this is the official legislation of the state, the officially recognised government of Syria is the only party that reasonably have to uphold this. The owing of due process obligations from informal or illegitimate parties to civilians cannot reasonably be forced against them. Therefore, it is solely the discretion of the Syrian government to enforce Articles 104 & 72. This explains why other parties to the conflict have attempted to setup judicial systems of their own since they assumingly won’t bow to the discretion of the Syrian government.
Military Police & Judiciary
The military police of Syria are open to requests for information from family members regarding the whereabouts of their loved ones. A number of key issues have been highlighted surrounding how the military police handle these requests. Often times, unless the individual has been killed then the police will refuse to provide any details and in some cases will even deny they have been detained or are being held somewhere. If the individual has died, the family are referred to a local medical centre where they can then verify the details of the family member and obtain a death certificate.
The military judiciary for Syria allow for similar arrangements in areas that have ‘reconciliation agreements’ in place. These agreements are essentially truces in the conflict to allow for the de-escalation of violence and to allow those with missing family members to obtain information about their whereabouts. Through these agreements the family can be told whether their family member is awaiting trial, even when this occurs the family do not always receive accurate information. This inaccurate information is all the family are entitled to, the typical restrictions against contact with family members and lawyers still stands.
1. Crimes Against Humanity (art.7 – ICC Statute)
Enforced disappearances are an absolute prohibition of humanitarian law and international law more broadly. They are not restricted to officially recognised state parties to a conflict, they apply to non-state armed groups in non-international armed conflicts as well. All four parties discussed today have had extensive involvement in the enforced disappearances of hundreds of thousands of people. Alongside this, those victims of enforced disappearences have been further victims of the denial of a fair trial, arbitrary arrest and detainment, torture and inhuman or degrading treatment as well as had their family members denied their right to information regarding their whereabouts, all in violation of customary international law.
2. Missing Persons (Article 33 (2, a-b) – First Additional Protocol to the Geneva Conventions)
This Article requires that all parties to the conflict must provide information to the next of kin of such persons who have been detained, imprisoned or otherwise held in captivity for longer than two weeks since the start of the conflict. Furthermore, to the fullest extent possible, the parties shall facilitate and if need be, carry out and search for the recording of information relevant to any deaths of those listed in section (a). This Article must be fulfilled before the end of hostilities.
As it appears, no official investigative mechanisms are underway to ensure all parties abide to these provisions. Military judiciaries and the police are certainly effective in the acknowledgement of deaths and the providing of this information to the family members. However, this cannot be said for all parties. As has been seen, denial of imprisonment and even enforced disappearances is commonplace amongst the current heated political climate. The recording of deaths appears to not be a priority for the parties, particularly the armed groups who are ethnically targeting their victims. Regardless of the reasons for the enforce disappearances, all parties to the conflict are reluctant to divulge information that is legally required of them.
3. Familial Enquiries (Article 26 – Fourth Geneva Convention Relating to the Protection of Civilian Persons)
Each party to the conflict has a legal obligation to facilitate enquiries made by members of the family relative to those who are dispersed because of the conflict. The majority of the enforced disappearances have been politically motivated which is intrinsically linked to the existence of the civil war in the first place. Therefore, thousands of families are entitled to information regarding the whereabouts of their loved ones. From secret trials to the flagrant denial of detainment, all parties to the conflict have consistently denied families the information they are legally entitled to. The private nature of the trials and detention locations demonstrates that any cooperation between the accused party and the Syrian government seems doomed to failure.
All parties to the conflict have consistently targeted their political dissenters as well as wartime rivals with enforced disappearances. These disappearances are facilitated by illegitimate conviction processes, arbitrary arrest and detainment, unlawful denial of lawyers and a fair trial as well as the refusal to provide families with information they are entitled to. National legislation designed to protect these actions has failed completely as all parties delve into a lawless state of war. The reconciliation agreements used to help families facilitate communications with their missing family members must be proposed and agreed in more territories. It’s in the best interests of all parties to ensure that civilians are not the target, distinction must be upheld at all times.