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Grasping 'the Devil' in the Details of the Syrian Government's Response to Anti-Torture Prohibitions

Introduction


‘Drown them in the details’, a long-standing strategic tradition of the Syrian government, was cited by Syria’s foreign minister, Walid al-Muallem, in December 2011, after signing the Arab League agreement that allowed a mission to enter Syria to monitor human rights violations, and to ensure that the Syrian government implemented the Arab Initiative.[1] The Arab League peace initiative included ending the crackdown on protests, withdrawing the army from the cities, and giving the Arab mission complete freedom to visit detention centres. In the press conference following the signing of the agreement, al-Muallem said: ‘If we are going to drown the mission in the details, they must learn to swim’, in response to a journalist who asked what the intentions are behind Syria signing, and whether Syria will drown the Arabs in the details, so that the Arab Initiative would take several years to be implemented.[2]


Weeks after the UN High Commissioner for Human Rights, Navi Pillay, had stated that the Syrian Government ‘has manifestly ignored the pleas and condemnations of the international community at all levels’, the United Nations nonetheless welcomed this agreement.[3]


The agreement was, however, never implemented. The Arab League monitors withdrew from Syria because the bloodshed continued. In his concluding report, the Arab Mission head Mohammed al-Dabi said that the Syrian government’s ‘intentions towards the mission since its formation were insincere, and more generally, not serious’.[4]


Examples of the Syrian government’s insincerity and manipulation of its pledges and obligations under the Arab agreement and other related agreements include:

  • Fixing fake town signs to mislead observers into areas loyal to the government.

  • Painting olive green military vehicles with blue, so as to avoid withdrawing the army from inside the cities.

  • Transferring detainees from detention centres to buses and circling them around the city between 8am and 5pm, in case observers decided to visit detention centres.

Grasping ‘the devil’ in the details of the perpetrator governments’ reactions to the justice and human rights advocacy actions is crucial to the release of human rights defenders, lawyers, and humanitarian organisations. This will provide decision makers with the insight to plan high-impact and low-effort strategies to address and prevent grave violations of human rights in Syria.


In this paper, I closely examine two recent cases where the Syrian government apparently acted in response to the international pressures to end its grave violations of human rights and consider whether those responses had a genuinely positive effect in ending the violations:

  • Case I. Issuing a law criminalizing torture.

  • Case II. Abolishing military Field Courts.

I. Case 1. Anti-Torture Law: Nullum crimen sine lege


On 30 March 2022, Syrian President Bashar al-Assad issued Law No. 16 of 2022 to criminalize torture ‘in accordance with…the provisions of the Convention against Torture, which the Syrian Arab Republic had previously ratified’,[5] according to a tweet by the Syrian presidency.[6]


Like most Syrians, including victims and survivors of torture, various international human rights organizations responded to this news with a grain of salt. Human Rights Watch, for example, described the decree as an April Fools’ joke, ‘given how pervasive the use of torture is by Syrian state authorities’.[7] They noted that:


While it is hard to attribute intent to a government defined by arbitrariness, the passage of the law could be a response to ongoing efforts to prosecute the use of torture by Syria officials in the conflict, including an effort by some states to hold the Syrian government accountable for torture under the United Nations Convention Against Torture.[8]


Amnesty International described the decree as a legislative step towards complying with internationally recognized anti-torture conventions, but noted that ‘the new law effectively whitewashes decades of state-sanctioned human rights violations’.[9]


On 18 September 2020, the Netherlands announced that it had asked the Syrian government to enter negotiations to resolve a dispute concerning Syria’s violations of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), to which the Netherlands and Syria are parties.[10] The Netherlands confirmed that in case no agreement was reached, it would submit the case to the International Court of Justice (ICJ).


On 4 March 2021, Canada also announced that it had requested formal negotiations under UNCAT to hold Syria accountable, citing the Netherlands’ announcement.[11]


In June 2022, I contacted the governments of Canada and the Netherlands to inquire about the status of their negotiations with the Syrian government.[12] They replied that to negotiate in good faith implies that the process, strategy, and correspondence with Syria are confidential and that they ‘cannot comment on the exact dates or content of any submissions or letters to the Syrian Arab Republic, the International Court of Justice, or any other party regarding this dispute for reasons of confidentiality’. Global Affairs Canada added that they can however confirm that the dispute resolution process is ongoing.[13] They said that once they reach a stage where more information can be provided, they will do so, keenly aware of the people—the Syrian victims—for whom this step was taken.[14] Whilst the dispute resolution process was ongoing, and a complex and lengthy process, they stressed that it was the next step in combating impunity and obtaining justice for the most serious crimes under international law committed against Syrian victims.


On 8 June 2023, the ICJ published the document of the Dutch-Canadian joint application instituting proceedings concerning UNCAT violations.[15] The application document detailed the process of negotiations with the Syrian government, including the correspondence and meetings dates and requests made by the Netherlands and Canada.


Examining these details shows that the negotiations and the issuing of Law No. 16 of 2022 to criminalize torture are significantly correlated.


On 9 August 2021, the Netherlands and Canada presented a Statement of Facts and a Statement of Law to Syria in writing. The statements included a description of the relief sought by the Netherlands and Canada, in particular: ‘cessation of violations of the Convention against Torture, assurances and guarantees of non-repetition, and full reparation for victims’. The UNCAT articles which the Netherlands and Canada accused Syria of violating include Article 2:


Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.[16]


Since then, sixty-six Notes Verbales have been exchanged between the Netherlands, Canada, and Syria, including discussions about the dispute and attempts to negotiate a resolution.[17]


On 30 September 2021, Syria informed the Netherlands and Canada that it rejected ‘in toto’ the characterisation of the dispute as an admission of international responsibility for the recent breaches of its obligations under UNCAT.


As a response to the Netherlands’ and Canada’s negotiations with Syria regarding its violations of UNCAT Article 2,[18] and as a pre-emptive measure to counter the accusations made by the Netherlands and Canda in foreseeable legal proceedings at the ICJ, the Syrian president Bashar al-Assad issued Law No. 16/2022 on 30 March 2022 to criminalize torture ‘in accordance with the constitutional obligations of the state that prohibits torture, and with the provisions of the Convention against Torture, which was previously ratified by the Syrian Arab Republic’.


On 25 April 2022 and 5-6 October 2022, representatives from the Netherlands and Canada met in-person with representatives from Syria in Abu Dhabi, United Arab Emirates, as part of their efforts to negotiate a resolution of the dispute.


After more than two years of exchanges of Notes Verbales, without any progress towards settling the dispute, the Netherlands and Canada concluded that negotiations had become deadlocked or futile.[19] On 17 October 2022, they informed Syria of their conclusion by Note Verbale.


On 8 June 2023, the Netherlands and Canada (the Applicants) started legal proceedings at the ICJ to hold Syria accountable for torture under the UNCAT. They filed a joint application instituting proceedings concerning violations of the UNCAT. Together with the Application, the Applicants filed a Request for the indication of provisional measures, pursuant to Article 41 of the Statute of the Court and Articles 73, 74, and 75 of the Rules of Court.


However, on 15 July 2023, the ICJ announced that it decided to postpone the proceedings that were originally due to commence on Wednesday 19 July 2023, to 10 and 11 October 2023, following Syria’s request for a postponement.


Law No. 16/2022: Nullum crimen sine lege


Based on the UNCAT torture definition,[20] Law No. 16/2022, defines torture in Art. No. 1 as follows:


For the application of the provisions of this law, torture means any act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for obtaining information or a confession from him or another person, or punishing him for an act he has committed, or intimidating or coercing him to perform an act. When such pain or suffering is inflicted on a person for any reason based on discrimination of any kind, or when it is instigated or consented to, expressly or implicitly, by an employee or any person acting in his official capacity. It also includes actions committed by a person or group to achieve personal, material, or political goals or with the intention of revenge or retaliation. [21]


The Latin phrase ‘Nullum crimen sine lege’ or its English equivalent ‘no crime without law’ reflects an essential principle of criminal law: that only the law can define a crime and prescribe a penalty.[22] This means that no person may be convicted of a crime for an act that was not forbidden by law at the time it was committed.


Whilst the Syrian constitution and the Public Penal Code prohibit torture in loose and ambiguous terms, the act of torture itself was never defined under Syrian law. Law No. 16/2022 was the first-time torture was defined, creating a new criterion for punishment. Based on the new definition, the Syrian government can only punish torture defined in this law after the law was created.


Another attention-grabbing element in the new definition is the term ‘omission’, which is not included in the UNCAT definition. Previously, Syrian law prohibited and punished those who committed torture, but not those who allowed it. The new law criminalises those who abstained from action. This means that every official, especially high-ranking officials including the head of the state, cannot be punished for omissions before this new law was issued.


Law No. 16/2022 also included a provision that is not mentioned in the UNCAT definition, namely: ‘It also includes actions committed by a person or group to achieve personal, material, or political goals or with the intention of revenge or retaliation’. [23] This addition apparently targets torture committed by individuals, including non-state actors, and the opposition.


Thus, under Syrian national law, the Syrian judiciary is ‘legally’ permitted to not punish acts of torture committed by the state before Law No. 16/2022 was issued. However, under international law, as a state party to UNCAT, and under the command responsibility and failure to act, Syria should be obliged and be able to punish acts of torture from all perpetrators, including high-ranking officials.


II. Case 2. Abolishing Military Field Courts: Between Scylla and Charybdis


On 3 September 2023—only 30 days before the first ICJ hearing and following Syria's request to postpone it, in an apparent pre-emptive step to counter the accusations made by Applicants in the legal proceedings at the ICJ, al-Assad issued Decree No. 32/2023, ending the effect of Legislative Decree No. 109 dated 17/8/1968 and its amendments on the establishment of Military Field Courts. The Decree effectively abolished the Military Field Courts and stipulated in its Art. 2 that ‘all cases referred to the Military Field Courts shall be referred in their present condition to the military judiciary for prosecution’.


The Syrian president issued Decree No. 32/2023 ending the effect of Legislative Decree No. 109/1968 and its amendments on the establishment of Military Field Courts, after decades of countless calls from Syrians, the United Nations, human rights organisations, and others to reform or abolish these courts.


This decree seemed surprising to many Syrians. For 55 years, Syrians (even children and other nationals such as Palestinians[24] and Lebanese[25] and lately dual US-Syrian citizens)[26] have suffered under these Military Field Courts. Since its creation, those courts have been used to imprison and execute tens of thousands of Syrians, including military and political opponents, journalists, lawyers, human and ethnic rights activists, and children. The rules and proceedings of those courts were so summary and arbitrary that they cannot be considered to constitute a fair trial, let alone a judicial process.[27]


Military Field Courts: Background


Military Field Courts were created after the 23 February 1966 military coup d’état in Syria. The coup was planned and led by Chief of Staff of the Armed Forces Salah Jadid, the commander of the Syrian Air Force, Hafez al-Assad, and army Lieutenant Colonel Mustafa Tlass, among others.

Since March 1949, Syria went through around 16 military coups and coups attempts, which in some cases, handed over the government to civilians. The 1966 coup was the final nail in the coffin of democratic experimentation, parliamentary and civilian governing in post-colonial Syria and made Syria a one-party state with military authoritarian domination over the daily life of Syrians.


The 1966 coup overthrew the Syrian government, took over the Baath Party leadership and announced the Interim Regional Command of the Arab Socialist Ba'ath Party, which issued Statement 1 with 2 articles:

  1. Suspending the Constitution

  2. Appointing Hafez al-Assad as defence minister

The coup leadership in the Interim Regional Command appointed the head of the state and the prime minister, and within one year issued decrees and decisions that tightened the military coup leaders’ grip over the social, economic, legal, military, and intelligence aspects of life in Syria, including:

  • Decree no. 130/1966, ‘based on the provisions of the Interim Regional Leadership of the Arab Socialist Baath Party’, creating the National Union of Syrian Students, which ensured the coup leaders’ control and monitoring of universities and higher education. After 2011, Bashar al-Assad used it as an intelligence branch inside universities and university residences to arrest, torture, and kill university students, and hand them over to the intelligence services,[28]

  • Decree no. 117/1966, ‘based on the provisions of the Interim Regional Leadership of the Arab Socialist Baath Party’, establishing the system of the Red Crescent Organization, a leading organisation directing and implementing humanitarian aid, which is subject to the supervision and intervention of intelligence services,[29] and practises discrimination and other violations of the principles of humanitarian work,[30]

  • Decree no. 96/1966, ‘based on the provisions of the Interim Regional Leadership of the Arab Socialist Baath Party’ allowing the seizure of the official Syrian Civil Aviation Company by the Ministry of Defence,[31]

  • and Decree no. 109/1968,[32] ‘based on the provisions of the Interim Regional Leadership of the Arab Socialist Baath Party’, establishing Military Field Courts.


Military Field Courts and Fair Trial


In Field Courts, sessions would last only minutes, with no witnesses or lawyer present. Some defendants were only informed of their verdict years after their trial. Others were sentenced without ever being present at a hearing.[33]


Detainees that were eventually referred to parts of the court system on criminal charges were invariably subjected to multiple violations of the right to a fair trial. Proceedings of the Military Field Courts were of particular concern, owing to the general lack of evidence utilised and the imposition of death sentences.[34]


Military Field Courts are exceptional courts that issue sentences that are not subject to any form of appeal. These courts can pass any sentence, including the death penalty. Their rules and proceedings are summary and arbitrary that they cannot be considered a legitimate judicial. They are not required to operate within existing legislation and, once a sentence is issued, there is no possibility of appeal. However, the sentences they issue are subject to the approval of the head of state and the Minister of Defence.[35]


These courts constituted a powerful authoritarian tool: to suppress any counter-coup attempt and to persecute and prosecute rivals to power without the intervention of the fair judiciary and lawyers. These courts enabled absolute power to the 1966 coup leaders, including the new minister of defence Hafez al-Assad, to eliminate political opponents.


In 2005, the German magazine Der Spiegel published an interview with Mustafa Tlass after he retired as a defence minister, having served for 32 years:


Tlass no longer knows exactly how many death sentences he has signed personally, and he speaks quietly as he explains why these horrific acts were unavoidable, even the many who died by hanging. At times in the 1980s, he says, 150 death sentences a week were carried out by hanging in Damascus alone. ‘We used weapons to assume power, and we wanted to hold onto it. Anyone who wants power will have to take it from us with weapons’, says the general, smiling.[36]


It is unclear if the executions Tlass signed were only issued by the Military Field Courts, or included those issued by the military courts. However, it indicates the huge number of executions issued by both military courts and Military Field Courts against opponents of the 1966 coup leaders and the Syrian regime.


Syrian officials and lawyers affiliated with the Syrian bar described this decree as a positive step towards juridical reform and to end the violations of a fair trial. However, according to Decree No. 32/2023:


all cases referred to the Military Field Courts will be transferred to the military justice to make the pursuit according to the rules of punishment law and military trials issued by legislative decree No. 61 for 1950. [37]


The news of abolishing Military Field Courts had an emotional impact on Syrians with painful collective and personal memories of these notorious courts. It invoked the decades-long struggle and traumas of several generations in these courts.


Generations of opponents, human rights activists, and lawyers have called for its abolition, some of whom spent their childhood and upbringing amid these demands and the trauma caused by these courts.


The Syrian government’s comment on abolishing Military Field Courts


The Director of the Military Justice Department in Syria, Major General Yazan Al-Homsi, said that ‘Legislative Decree No. 32 forms part of the reform process adopted by President Al-Assad. It is a process that is not newly born but began in the pre-war years and included various fields in administration and institutions, in the judiciary, in the military, and others’.[38]


Syrian lawyer and member of the Syrian government Bar Association Ghassan Abu Alwan considered this new presidential decree ending the Military Field Courts a ‘positive step’: The new presidential legislative decree to end the work of Field Courts and transfer them to the military judiciary is a positive and important step’.


It took the Assad regime 55 years of slaughtering Syrians and political opponents by illegal executions and hundreds and perhaps, thousands of demands and calls to finally end these courts.


But the grim, yet unsurprising news is that Assad handed over the commission of violations and crimes against fair trials and other international law obligations from one apparatus to another. Therefore, the same crimes and violations will continue under a different name. Perhaps judges and employees of military courts will continue their work under a new desk nameplate and job title.


The Military Penal Code and Fair Trial


The Syrian criminal justice system, which includes civilian courts, the Counter Terrorism Court, and military and Field Courts, is systemically failing to uphold international human rights standards at every step of the judicial process.[39]


Law No. 61/1950 (the Military Penal Code), [40] regarding the military courts to which Decree 32 [41] referred the Military Field Courts’ ongoing cases, allows for violations of several international treaties adopted by Syria and have articles which are not substantially different from the regulations of the abolished Field Courts.


Military judiciary jurisdiction over civilians


The Military Penal Code allows targeting civilians on charges based on freedom of expression, assembly, and association, and peaceful criticism, whether it is criticism of the army, the government, or economic conditions.


Article 47 of the military penal code specifies the military courts’ jurisdiction and states that:


These courts may be granted, by a decree taken by the Council of Ministers based on the proposal of the Commander-in-Chief of the Army and Armed Forces and the Minister of Justice, the right to consider all or some crimes against the internal security of the state.[42]


Definition of crimes against the internal security of the state


The Military Penal Code does not define ‘crimes against the internal security of the state’; these crimes are stipulated in the General Penal Code. According to the ‘Arab Encyclopaedia Authority’, which was established by Legislative Decree No. 3 of 1970 [43] and is affiliated with the Syrian Presidency:


The Syrian legislator stipulates crimes against state security in Articles (291-310) of the Penal Code, which are: felonies against the constitution—usurpation of a political or civil authority, or military leadership—sedition—terrorism—crimes that undermine national unity or disturb peace among the elements of the nation—undermining the state’s financial position. [44]


Articles (291-310) of the General Penal Code allow criminalising freedom of speech, peaceful political expression, and the freedoms of assembly and association.


For example, Article 307 of the General Penal Code states that for:

  1. Every action, every writing, and every speech that intends or results in inciting sectarian or racist strife or inciting conflict between sects and various elements of the nation...

  2. The court may order the publication of the judgement. [45]

2 means in practice that the rule is not to publish.


Article 309 states that:

  1. Whoever broadcasts, by one of the means mentioned in the second and third paragraphs of Article 208, fabricated facts, or false allegations to cause a decline in national banknotes or to undermine confidence in the strength of the state’s currency, its bonds, and all documents related to public financial trust, he shall be punished with imprisonment from six months to three years and a fine from two hundred and fifty pounds to one thousand pounds. [46]

Article 123 of the Military Penal Code punishes:


Every military or civilian person who insults the flag or the army, harms its dignity, reputation, or morale, or does anything that might weaken in the army the spirit of the military system, obedience to superiors, or the respect due to them, or criticises the actions of the General Command and those responsible for the actions of the army, in a manner degrade their dignity. [47]


The Syrian Military Penal Code contains provisions that blatantly breach fair trials by allowing secret trials, banning publishing procedures, immunity for perpetrators, and targeting civilians including journalists:

  • Decisions issued by the investigating judge are not subject to any method of review.[48]

  • It allows execution sentences for military and civilians under many charges, including ‘anyone who incites the military to join the enemy or the rebels’.[49]

  • Sentences in absentia allow sentenced individuals to appeal the decision within only five days.[50]

  • Sentences in absentia allow the confiscating of all ‘existing and future movable and immovable shared and non-shared funds’.

  • It allows prosecuting and punishing journalists.[51]

  • It gives the military judiciary the sole right to decide on conflicts of jurisdiction with civilian courts.[52]

  • Its jurisdiction includes crimes that military courts were given the right to decide under special regulations and laws.[53]

  • It provides protections to the perpetrators and immunity from prosecution. The prosecution order is issued only by the Commander-in-Chief of the Army and the Armed Forces, the Syrian president.[54]

Law No. 16/2022, defining and punishing torture, and Decree No. 32/2023, abolishing military Field Courts, will be used by the Syrian government at the ICJ in order to counter accusations made by the Applicants in the Court.


Destroying evidence of crimes and information about disappeared persons


In its Article 2, Decree No. 32 states that ‘all cases referred to the Military Field Courts shall be referred in their present condition to the military judiciary for prosecution’. [55] The decree does not address the fate of the previous/completed/past cases records. Those records should have strong evidence of systematic grave violations of fair trial which may amount to crimes against humanity. The records likely also include vital information about the victims of enforced disappearance.


According to the Syrian Military Penal Code, records of trials, decisions, and sentences should be sent to Military Public Prosecution which is tasked with handling incoming and outgoing mail between military judicial departments in the governorates. For example, execution reports should be registered and kept at the Public Prosecution.[56]


Abolishing Field Courts risks getting rid of their records including death sentences. Therefore, eliminating these records means destroying the information necessary to know the fate of those who were sentenced and executed, including those who were forcibly disappeared.


Evidence of crimes includes killing forcibly disappeared people by execution sentences issued by these courts under unfair trials, whose records show the absence of lawyers, and disregard claims of forced confessions under torture and various other violations under the UN Charter.


III. Criminalizing Torture and Abolishing Military Field Courts: International Optics for the Syrian Government


The Syrian government’s responses to international pressure and demands to end its violations of international law have been consistent for decades: if there is no benefit, enforcement mechanism, or imminent threat to the regime’s hold on power, the Syrian government ignores the pressure and denies any wrongdoing. In some cases, it responds with misleading and meaningless actions, mostly by issuing laws and decrees that do not contribute to ending its violations in practice, as established.


Aside from utilising these new laws in its propaganda and destroying highly important evidence of crimes in defiance of the Applicants’ request to not destroy or render inaccessible any evidence related to the Application (including information about mass graves’ locations and death certificates stating the true causes of death), the same responses and strategies are likely to be used at the ICJ in the upcoming proceedings by the Applicants under the UNCAT.


For example, in its response to the concerns of the UN Committee against Torture (CAT) over the State of Emergency and widespread use of torture in 2011, the Syrian government denied any routine use of torture and said:


With the enactment of Decree No. 161 of 21 April 2011, ending the state of emergency, and Legislative Decree No. 55 of 21 April 2011, there can be no further talk about arbitrary or unlawful detention in any institution.[57]


Then, in response to the CAT’s request to reform or abolish the Supreme State Security Court, the Syrian government said:


The Supreme State Security Court was abolished by Legislative Decree No. 53 of 21 April 2011. The decree provided for all cases pending before the Court or with the public prosecutor’s office at the Court, to be transferred in their current state to the appropriate competent courts in accordance with the rules and procedures laid down in the Syrian Code of Criminal Procedures.[58]


Additionally, on the torture complaints mechanism, Syria provided a table of the number of cases pending before the judiciary relating to allegations of torture, that are almost impossible to verify or deny.


On appropriate education for persons involved in the custody, interrogation, or treatment of detainees, Syria said:


The course ‘Human Rights and Public Freedoms’ is taught within the Judicial Institute. Many courses have been conducted for judges in the field of combating money laundering and the financing of terrorism, in cooperation with the World Bank and the Anti-Money Laundering and Combating the Financing of Terrorism Authority in the Syrian Arab Republic. Judges also participate in all courses held inside the country and in many courses held outside it within the framework of Human rights and public freedoms. Currently, there are many workshops implemented by the Ministry of the Interior in cooperation with the International Organization for Migration and the Austrian government within the framework of combating trafficking in persons. The ‘Human Rights’ course is taught in law colleges for undergraduate students, and it is also taught to postgraduate students in English and French. This course is also taught in the College of Political Science and many other colleges and institutes.[59]


On ensuring that victims of torture obtain redress and adequate compensation:


Article 164 of the Civil Code stipulates that: ‘Any mistake that causes harm to others obligates the person who committed it to compensate’, and Article 165 stipulates that: ‘A person shall be responsible for his unlawful acts whenever they are committed by him while he is distinct’. The state is responsible for free treatment for all citizens, including those who have been subjected to torture, whether health or psychological treatment.


In 2012, the Syrian government responded by Note Verbale to the CAT’s request to submit a special report on measures taken to ensure that all its obligations under the UNCAT were fully implemented, that Syria would inform the CAT about the measures in its next periodic report (due in 2014) and that Syria considered that Article 19 of the Convention did not provide for the possibility for the CAT to request a special report. It also said that Syria:


informed the Secretary-General, the Security Council and the Committee, about the human and material losses that have occurred in the Syrian Arab Republic since the beginning of the events in the State party until 15 March 2012, caused by the ‘actions of armed terrorist groups.[60]


IV. How the Syrian government will use the new laws in its legal argument at the ICJ


Legal grounds for Canada and the Netherlands’ claims at the ICJ and the new Syrian laws


Based on the Syrian government's long-standing strategies of manoeuvre and manipulation, Syria will likely use these two laws as a ‘legal’ weapon at the ICJ to argue that it is fulfilling its obligations under the UNCAT to refute the accusations of the Applicants.


Laws criminalizing torture and abolishing the Field Courts would be used to refute seven (a, b, c, d, i, j, k) of the twelve accusations brought by the Applicants in their complaint before the ICJ.


As for the remaining five accusations (e, f, g, h, l), Syria will deny them, claiming its financial inability and state of war prevented it from submitting periodic reviews and reports.


Syria will deny accusations of state torture and make the same allegations that the Syrian president deployed in an interview with the Swedish newspaper Expressen. The journalist’s question:


As you know there are many serious allegations against your government, about human rights abuses committed by your side. How much do you know about torture in your prisons here?[61]


The Syrian president’s answer:


When you talk about torture we have to differentiate between policy of torture and individual incidents that happen by any individual…With Syria, we never had under any circumstances such a policy. If you have any breach of law, torture, revenge, whatever, it could be an individual incident that the one who committed should be held accountable for.[62]


On 7 March 2020, Justice Minister Najm al-Ahmad acknowledged the existence of torture, but echoed Assad’s narrative that torture constitutes an exceptional phenomenon:


I do not want to say that the prisons in Syria are five-star prisons in which there is no torture, but all I want to say is that torture constitutes a purely exceptional phenomenon.[63]


The Minister, referring to Caesar’s photos,[64] also stated that the government does not allow evidence of torture or killing under torture to exist:


Who is that person that we authorize—assuming that a person has been subjected to torture—to photograph this person, whether alive or dead.[65]


Accusation (f) would be refuted by the Syrian government by alleging that it has many courses to ensure appropriate education of human rights to its employees.


Accusation (h) would be refuted by the Syrian government by providing a table of the number of cases pending before the judiciary in cases relating to allegations of torture, that are almost impossible to verify or deny.


Accusation (l) would be refuted by the Syrian government by referring to ‘the actions of armed terrorist groups’, ‘the war’, ‘the economic impact of the war’, and ‘the sanctions’ as reasons that prevented it from fulfilling its obligations to report to the Committee against Torture.


V. Conclusion


‘Drowning them in the details’ and pretexts of ‘the actions of armed terrorist groups’, ‘the war’, ‘the economic impact of the war’, and ‘the sanctions’ are often used by the Syrian government to address the international pressures and to justify its various failures and egregious actions, that range from the inability to fulfil specific obligations to committing war crimes.


Issuing or abolishing some laws in Syria in response to international pressures and action does not reflect an effective and positive change in the Syrian legal system in either theory or practice. Even if the Syrian government issued new laws or abolished others, it still has its arsenal of laws and courts. This includes the Military Penal Code, the Couter-Terrorism Court and the legalised tools and regulations that allow the authoritarian regime in Syria to continue to target the Syrian people by torturing, killing, and violating the basic principles of fair trials. The government also has its laws to protect perpetrators of torture and other grave crimes, including in its Military Penal Code.


It should be clear that the real purpose of issuing such laws has nothing to do with ending human rights violations. The purpose of issuing these recent two laws is to counter accusations at the surface level before the ICJ.

 

Mansour al-Omari


Mansour al-Omari is a Syrian human rights defender and legal researcher. He holds an LLM in Transitional Justice and Conflict. Al-Omari works with international and Syrian human rights organisations to hold the perpetrators of international crimes in Syria accountable. In 2012, al-Omari was detained and tortured by the Syrian government for 356 days for documenting its atrocities while working with the Syrian Center for Media and Freedom of Expression as the supervisor of the Detainees Office.

 

[1] ‘UN welcomes move enabling Arab League monitors to visit Syria’ UN News (20 December 2011) <https://news.un.org/en/story/2011/12/398972> accessed 16 September 2023. [2] ‘المعلم . على العرب ان يتعلموا السباحة ب19-12-2011.flv’ HomeTears (21 April 2012) <https://www.youtube.com/watch?v=9jYm4lxf0cQ&ab_channel=HomeTears> accessed 16 September 2023. [3] UN News (n 1) [4] Anwar Malek, Revolution of a nation; Secrets of the Arab League mission to Syria (Obeikan Publishing 2017). [5] Law No.16, Law No 16, 30 March 2022 (Syria) [6] Syrian Presidency, ‘الرئيس الأسد يصدر القانون رقم /16/ للعام 2022 لتجريم التعذيب، بما يتوافق مع الالتزامات الدستورية للدولة التي تحرم التعذيب، ومع’ <https://twitter.com/Presidency_Sy/status/1509177235793711107?lang=ar-x-fm> accessed 1 October 2023. [7] ‘Torture in Syrian Prisons is Not a Joke’ (Human Rights Watch, 1 April 2022) <https://www.hrw.org/news/2022/04/01/torture-syrian-prisons-not-joke> accessed 16 September 2023. [8] ibid. [9] ‘Syria: New anti-torture law ‘whitewashes’ decades of human rights violations’ (Amnesty International, 31 March 2022) <https://www.amnesty.org/en/latest/news/2022/03/syria-new-anti-torture-law-whitewashes-decades-of-human-rights-violations/> accessed 16 September 2023. [10] ‘The Netherlands holds Syria responsible for gross human rights violations’ (Government of the Netherlands) <www.government.nl/latest/news/2020/09/18/the-netherlands-holds-syria-responsible-for-gross-human-rights-violations> accessed 16 September 2023. [11] ‘Minister of Foreign Affairs takes action on Syria’s human rights violations’ (Government of Canada) <www.canada.ca/en/global-affairs/news/2021/03/minister-of-foriegn-affairs-takes-action-on-syrias-human-rights-violations.html> accessed 16 September 2023. [12] Emails from author to Ministries of Foreign Affairs of Canada and the Netherlands (27 June 2022). [13] Email from Global Affairs Canada, Government of Canada to author (14 July 2022). [14] Email from the Dutch Ministry of Foreign Affairs to author (5 July 2022). [15] Canada and the Kingdom of the Netherlands v The Syrian Arab Republic, International Court of Justice, Joint application instituting proceedings concerning a dispute under the convention against torture and other cruel, inhuman or degrading treatment or punishment. [16] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, United Nations Treaty Series, Vol. 1465, P. 85 (entered into force 26 June 1987) [Convention against Torture]. [17] Application of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Canada and the Netherlands v. Syrian Arab Republic) (Pending) (8 June 2023) <https://www.icj-cij.org/sites/default/files/case-related/188/188-20230608-APP-01-00-EN.pdf> accessed 16 September 2023. [18] Convention against Torture, Article 2, states ‘1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. 2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture. 3. An order from a superior officer or a public authority may not be invoked as a justification of torture’. [19] Application of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Canada and the Netherlands v. Syrian Arab Republic) (n 4). [20] Convention against Torture, Article 1 (1), states: For the purposes of this Convention, the term ‘torture’ means any 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. [21] Article 1, Law No. 16 of 2022 criminalizing torture (n.d) (Syria). [22] Guide on Article 7 of the European Convention on Human Rights, European Court of Human Rights (31 August 2022) <https://www.echr.coe.int/documents/d/echr/Guide_Art_7_ENG> accessed 16 September 2023. [23] Article 1, Law No. 16 of 2022 criminalizing torture (n.d) (Syria). [24] ‘Syria: Extrajudicial execution of Bassel Khartabil a grim reminder of Syrian prison horrors’ (Amnesty International) <www.amnesty.org/en/latest/press-release/2017/08/syria-extrajudicial-execution-of-bassel-khartabil-a-grim-reminder-of-syrian-prison-horrors/> accessed 29 September 2023. [25]وثائق رسمية تؤكد إعدام دمشق أربعة معتقلين لبنانيين لم تعترف باحتجازهم’ (الشرق الأوسط | اطلع على أخبار اليوم عبر صحيفة العرب الأولى) <https://aawsat.com/home/article/57366> accessed 29 September 2023. [26] ‘U.S. Citizen, Believed Executed in Syrian Prison, Heightens Fears for Others’ (The Wall Street Journal) <www.wsj.com/articles/u-s-citizen-believed-executed-in-syrian-prison-heightens-fears-for-others-11545153440> accessed 29 September 2023. [27] ‘Syria: Human slaughterhouse: Mass hangings and extermination at Saydnaya Prison, Syria’ (Amnesty International 7 February 2017) <https://www.amnesty.org/en/documents/mde24/5415/2017/en/> accessed 16 September 2023. [28] ‘Victims of Assad's notorious Students' Union speak out – but the UN is not listening’ (Home | Amnesty International UK) <www.amnesty.org.uk/blogs/campaigns-blog/victims-assads-notorious-students-union-speak-out-un-not-listening> accessed 29 September 2023. [29] ‘Inside the Syrian Arab Red Crescent’ (Syria Justice & Accountability Centre, 8 August 2019) <https://syriaaccountability.org/inside-the-syrian-arab-red-crescent/> accessed 29 September 2023. [30] ‘The Syrian Arab Red Crescent…The Reality of the Organization and its Commitment towards the Seven Principles’ (Jusoor For Studies)<https://jusoor.co/en/details/the-syrian-arab-red-crescent…the-reality-of-the-organization-and-its-commitment-towards-the-seven-principles> accessed 29 September 2023. [31] ‘مرسوم ربط شركة الطيران العربية السورية بوزارة الدفاع عام 1966 - التاريخ السوري المعاصر’ (التاريخ السوري المعاصر) <https://syrmh.com/2019/12/05/ربط-شركة-الطيران-العربية-السورية-بوزا/> accessed 29 September 2023. [32] Constituted by Legislative Decree No. 109 of 17 August 1968, published in the Official Gazette of 1968 No. 38, 12542. [33] Report of the Independent International Commission of Inquiry on the Syrian Arab Republic (11 March 2021, A/HRC/46/55). [34] ibid. [35] (n 7). [36] Translated by Christopher Sultan at ‘A 101 Course in Mideast Dictatorships’ The New York Times (New York, 21 February 2005) <https://www.nytimes.com/2005/02/21/international/europe/a-101-course-in-mideast-dictatorships.html> accessed 3 October 2023. [37] Article 2, Decree No. 32 for 2023 to end the effect of Legislative Decree No. 109 dated 17/8/1968 and its amendments on the establishment of military field courts (Syria). [38] Muhammad Manar Hamijo, ‘Major General Al Homsi to Al Watan: It is part of the reform process that began years ago, and the war may have delayed many steps, but it does not cancel them... President Al–Assad ends the work of the Field Courts and refers their cases to the military judiciary’ Al Watan Newspaper (Damascus, 4 September 2023) <https://alwatan.sy/archives/359480> accessed 5 September 2023. [39] ‘Out of Sight, Out of Mind: Deaths in Detention in the Syrian Arab Republic’ UN Human Rights Council (3 February 2016, A/HRC/31/CRP.1). [40] Military Penal Code (n.d) (Syria). [41] Decree No. 32 of 2023 to end the effect of Legislative Decree No. 109 dated 17/8/1968 and its amendments on the establishment of military field courts (n.d) (Syria) [42] Article 47, Military Penal Code (n.d) (Syria). [43] Legislative Decree No. 3 of 1970 (n.d) (Syria). [44] الجرائم الواقعة على أمن الدولة (الموسوعة العربية) <https://arab-ency.com.sy/ency/details/2479/7> accessed 29 September 2023. [45] Article 307, General Penal Code, (n.d) (Syria). [46] Article 309, General Penal Code, (n.d) (Syria). [47] Article 123, Military Penal Code, (n.d) (Syria). [48] Legislative Decree No. 61/1950 Penal Code and Military Procedures (Arabicالمرسوم التشريعي 61 لعام 1950 قانون العقوبات وأصول المحاكمات العسكرية), Art. 26. [49] Legislative Decree No. 61/1950 Penal Code and Military Procedures (Arabicالمرسوم التشريعي 61 لعام 1950 قانون العقوبات وأصول المحاكمات العسكرية), Art. 160. [50] Legislative Decree No. 61/1950 Penal Code and Military Procedures (Arabicالمرسوم التشريعي 61 لعام 1950 قانون العقوبات وأصول المحاكمات العسكرية), Art. 15 (1). [51] Legislative Decree No. 61/1950 Penal Code and Military Procedures (Arabicالمرسوم التشريعي 61 لعام 1950 قانون العقوبات وأصول المحاكمات العسكرية), Art. 47 (6). [52] Legislative Decree No. 61/1950 Penal Code and Military Procedures (Arabicالمرسوم التشريعي 61 لعام 1950 قانون العقوبات وأصول المحاكمات العسكرية), Art. 51. [53] Legislative Decree No. 61/1950 Penal Code and Military Procedures (Arabicالمرسوم التشريعي 61 لعام 1950 قانون العقوبات وأصول المحاكمات العسكرية), Art. 47 (4). [54]Legislative Decree No. 61/1950 Penal Code and Military Procedures (Arabicالمرسوم التشريعي 61 لعام 1950 قانون العقوبات وأصول المحاكمات العسكرية), Art. 53 and Legislative Decree No. 64 of 2008 on the trial of police officers, customs officers, and political security personnel before the military judiciary (المرسوم التشريعي 64 لعام 2008 المتضمن محاكمة ضباط الشرطة وعناصرها وعناصر الجمارك والأمن السياسي أمام القضاء العسكري). [55] Article 2, Decree No. 32 of 2023 to end the effect of Legislative Decree No. 109 dated 17/8/1968 and its amendments on the establishment of military field courts (n.d) (Syria). [56]Legislative Decree No. 61/1950 Penal Code and Military Procedures (Arabicالمرسوم التشريعي 61 لعام 1950 قانون العقوبات وأصول المحاكمات العسكرية), Art. 92. [57] United Nations, Committee against Torture, Consideration of reports submitted by States parties under article 19 of the Convention Comments and follow–up responses of the Syrian Arab Republic to the concluding observations of the Committee against Torture report of Committee against Torture (6 September 2011, CAT/C/SYR/CO/1/Add.1). [58] ibid. [59] ibid. [60] United Nations, Committee against Torture, Consideration by the Committee against Torture of the implementation of the Convention in the Syrian Arab Republic in the absence of a special report requested pursuant to article 19, paragraph 1, in fine; Concluding observations of the Committee against Torture (29 June 2012, CAT/C/SYR/CO/1/Add.2). [61] Kassem Hamadé, ‘He denies torture – that has been caught on camera’ Expressen (Damascus, 17 April 2015) <https://www.expressen.se/nyheter/mote-med-al-assad/del-2/en/> accessed 16 September 2023. [62] Ibid. [63] Mansour Omari, ‘al Fatih al–Islami symposium: acknowledging ‘Caesar’ and torture’ Enab Baladi Newspaper (10 March 2020) <https://www.enabbaladi.net/archives/368924> accessed 16 September 2023. [64] ‘If the Dead Could Speak; Mass Deaths and Torture in Syria’s Detention Facilities’ Human Rights Watch (16 December 2015) <https://www.hrw.org/report/2015/12/16/if-dead-could-speak/mass-deaths-and-torture-syrias-detention-facilities> accessed 16 September 2023. [65] Omari (n 63)

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