فدراسیون بین‌المللی حقوق بشر

These requirements need a significant political mobilisation, which could lead to crucial results without substantial financial contribution. FIDH and SCM call on the international community to take into account the following priorities, which should be considered as indispensable for any discussion on the future of Syria:

1- Truth and justice for detained and enforcedly disappeared persons

Under international law, each party to the conflict has the obligation to take all feasible measures to account for persons reported missing as a result of hostilities and provide their family members with any information it has on their fate.

Approximately one million Syrians are estimated to have been arbitrarily arrested and unlawfully detained since 2011, by Government forces and affiliated militias in official and makeshift detention centres throughout the Syrian Arab Republic. In 2017 only, according to the Syrian Network for Human Rights, 6,517 persons were arrested ; in the month of January 2018 only, 496. According to the same organisation, 85,000 people have been subjected to enforced disappearance by the Syrian government since 2011.

The vast majority of detainees are being held without due process and are not allowed access to legal representation or to their families. They endure various forms of brutal torture and subsist in severely inhumane conditions. Many have died in detention, while others have been summarily executed. According to Amnesty international, 13,000 persons have been killed in the sole prison of Sadnaya since 2011. The bodies of those who have died as a result of torture, neglect, inhumane conditions, or from executions are rarely returned to their families, who are also not notified about burials.

United Nations Security Council resolutions 2254 (2015) and 2258 (2015) call on all parties to the conflict to release any arbitrarily detained persons, particularly women and children. Despite these resolutions, little has changed.

In December 2017, the decision to establish under the auspices of the Astana Conference a « working group » for the release of detainees, although an interesting step whose impact remains to be seen, lacks international legitimacy. Rather than country-sponsored initiatives, the United Nations should supervise such kinds of processes.

The release of 200 detainees by Jaish al-Islam, early April 2018, as part of an evacuation deal over the holdout town of Douma, proves that decisions intervene. Nevertheless, the fate of some 3,000, allegedly captive in the stronghold, remain unaccounted for, according to the Syrian Observatory for Human Rights.

Among them, human rights defenders of the Violations Documentation Centre, Razan Zeitouneh, Wael Hamada, Samira Khalil and Nazem al-Hammadi, who were abducted by unidentified assailants in December 2013 from their office by unidentified armed men in Douma, at a time when the locality was under the control of Jaish al-Islam. While those responsible for their abduction remain unknown, allegations that they had been transferred elsewhere, or swapped for rebels jailed by the Government are plausible.

Beyond Douma, other human rights defenders remain disappeared after the evacuation and cease-fire deals are concluded, such as Jesuit priest Father Paolo, abducted by ISIS in 2013, or Abdullah al Khalil, abducted on May 2013 in Raqqa.

Thus, for many of the Russia-brokered evacuation agreements, the fate of many people taken hostage by the rebels remains unknown, and concerns remain about how effective these prisoner exchange agreements are at resolving the detention situation.

In addition, the vast number of detainees under the responsibility of the Syrian authorities remains unaddressed. Among them, the fate of detained human rights defenders, who are either detained by government authorities or likely to be arrested by the government should they be released by other warring parties, requires appropriate action.

As a consequence, our organisations call on donors and UN member States to follow-up on the recommendations of the Independent International Commission of Inquiry on the Syrian Arab Republic, and set as contingent of the assistance provided upon to the adherence of recommendations and commitments to:

• Immediately and unconditionally release all persons imprisoned solely for the peaceful exercise of human rights, or because of their identity.
• Ensure that all those detained are registered, have access to a lawyer, can challenge the legality of their detention before an independent court, are provided access to medical care, are held in recognized places of detention and are allowed regular visits by their families.
• Inform families of the fate, whereabouts and legal status of all persons in their custody and respond to all outstanding requests.
• Grant independent international monitors, such as the UN-mandated Independent International Commission of Inquiry on the Syrian Arab Republic, unhindered access to all persons deprived of their liberty and allow them to investigate and monitor conditions in all detention facilities.
• Hold accountable the perpetrators of torture and mistreatment.

In addition, donors should allocate specific funding in order to monitor, document and investigate places of detention, sexual and gender violence in the context of detention, torture and inhumane treatments, and the setting up of rehabilitation processes. In particular, an independent body to investigate the fate and whereabouts of the disappeared, as well as unidentified human remains and mass graves in Syria should be set up, with a broad mandate to investigate, including by reviewing all official records and interviewing any official.

Lastly, all cases of enforced disappearance should be investigated, and suspected perpetrators be prosecuted in civilian courts in proceedings that conform to international fair trial standards, and victims should receive full reparation.

2- The right to a safe return for internally displaced persons and refugees

Today, Syrians make up the largest refugee population in the world. Since the start of the conflict, more than 5,5 million Syrians have been forced to leave their country. 6,5 million Syrians – including 2,8 million children – have been forced to leave their homes and are internally displaced within Syria. Overall, between refugees and internally displaced persons, more than half of the Syrian population have left their homes since 2011.

A closer examination of the Syrian conflict would reveal that the Syrian regime and its allies are the main architects of an ongoing demographic engineering in the country, but not the sole perpetrators.

Over the past seven years, the Syrian government and, to a lesser degree, armed radical and opposition groups, have enforced sieges on densely populated areas, depriving civilians of food, medicine and other basic necessities in violation of international humanitarian law. Local « evacuation agreements » have increasingly become one of the Syrian government’s key strategies to force the opposition’s surrender. The agreements are presented by the government and its allies as a « reconciliation » effort, but, in reality, they come after prolonged unlawful sieges and bombardment and typically result not only in the evacuation of members of non-state armed groups but also in the mass, forced displacement of civilian residents of these areas.

In such context, our organisations urge donors and UN member States participating in the Brussels Conference to:

• State clearly the right of civilians to live where they wish and allow civilians who have been displaced to return to their homes safely, in dignity and voluntarily based on free, informed, individual choice.
• Call on parties to evacuation agreements to ensure that evacuees are able to or may choose to return to their original property, with clear guarantees for evacuations, entitlement and protection of their property, and ensure adequate compensation for displaced civilians whose properties have been destroyed or damaged in the course of the conflict.
• Refrain from engaging in reconstruction plans and funding before guarantees are secured for displaced populations to return safely to their homes and properties.

3- Support efforts by the independent civil society and victims to fight impunity

Since the start of the uprising that broke out in Syria in March 2011, the killing of civilians, the use of prohibited weapons, including chemical weapons, enforced disappearances and torture of detainees, summary executions, sieges on towns and cities, forced displacements of the population have continued, despite abundant evidence and images that have shocked the world.

To many observers, the impunity of the crimes committed have fuelled further crimes and abuse and will continue to do so.

All referral of the Syrian situation to the International Criminal Court by the UN Security Council remains blocked by the Russian and Chinese veto. And this, despite calls from the High Commissioner for Human Rights.

Faced with the impossibility of obtaining real justice in Syria and the political impasse that blocks the UN Security Council to refer the situation to the International Criminal Court, prosecutions before national justice systems in third countries, via what is known as extraterritorial jurisdiction, constitute the only hope for Syrians in search of justice and redress.

Extraterritorial jurisdiction gives prosecutors and judges in a third country the power to investigate and try crimes that took place abroad. It applies to the most serious crimes, or international crimes, such as genocide, war crimes, crimes against humanity and torture, regardless of the nationality of the perpetrator or the victim. These crimes are serious to the extent they are considered to be a stain on humanity, and therefore can and should be prosecuted abroad, if necessary.

Unfortunately, many political and legal obstacles remain which, in practice, render this supposedly “universal” form of justice extremely difficult to access for Syrian victims. Several legal hurdles and capacity gaps remain, such as the lack of political will that slows down or stops proceedings ; the narrow legal frameworks that restrict access to extraterritorial justice such as requirements that a suspect should reside in a third country to be tried there ; the little margin of manoeuvre left to prosecutors to either pursue or drop cases, that risks leaving victims without access to justice ; the lack of capacity and resources of justice systems to investigate these complex crimes, that require innovative strategies and considerable human and financial ressources.

Despite these obstacles, FIDH and SCM, as well as other NGOs, have stood by Syrian victims and found ways to trigger proceedings for crimes committed in Syria before national justice systems, including in Germany, France, Sweden and Spain.

In addition, in the face of the Security Council deadlock to address the longstanding state of impunity for these abuses on all sides to the conflict, on 21 December 2016, the UN General Assembly adopted a resolution creating an “international, impartial and independent” mechanism. Its mandate is to collect and analyse evidence of crimes committed in Syria since 2011 and share these files with investigators and judges with jurisdiction over the case, whether national or international.

Countries that voted for the resolution to establish the mechanism in December 2016 took a critically important stand for Syrian victims. Yet, the mechanism faces a demanding task ahead to process the considerable information that exists about ongoing abuses in Syria, develop strong cases, build bridges with victims, as well as collaborate with other documentation groups and national judicial authorities investigating crimes in Syria, with whom the IIIM’s files are to be shared.

In such context, our organisations demand the Brussels conference to prioritise efforts to fight against impunity, and notably, to:

• State clearly that parties to the conflict responsible for violations of IHL relating to the targeting of schools, medical units, and aid workers will be held accountable.
• Support Syrian civil society organisations engaged in documenting crimes, engaging with victim communities and fighting impunity. Support all victims and community-based initiatives working to pursuit justice for victims of war crimes and crimes against humanity in Syria.
• Allow Syrian victims and those who hold dual nationality to pursuit justice in Europe and advocate for the neutrality of its tracks in Europe, notably in facilitating Syrian victims’ capacities to travel.
• Support and make sure the International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011’ and the UN Commission of Inquiry are able to effectively carry out their respective mandates.
• Ensure the IIIM has the vital resources it needs to do its work, notably in moving the IIIM’s funding to the regular UN budget.
• Call on UN member States to pledge their commitment to cooperate with the IIIM as necessary, including by sharing relevant information about crimes committed in Syria, ensuring their laws allow their justice systems to use the evidence obtained by the IIIM, and, where relevant, providing necessary resources to war crimes units to enhance their capacity to investigate crimes perpetrated in Syria.
• Establish a Special Tribunal for war crimes and crimes against humanity committed in Syria and endow it with adequate resources.