Enforced  Disappearances in Syria: Impact on families

The crime of enforced disappearances has two aspects to it. Firstly, there is a deprivation of liberty against the concerned persons will. Secondly, enforced disappearances are characterized by the refusal to give information on the fate or whereabouts of the arrested person. The denying of information on the deprivation of liberty is the factor that distinguishes enforced disappearances from other offences. [1]

Syria being under emergency rule since 1963 has had a long history of using enforced disappearances as a key tool to repress dissent. [2] When confronted with the peaceful uprising in 2011, the Syrian government again used the tool of disappearances. In a country wide pattern, as the Report by the Commission notes, ‘adult males – have been seized by the Syrian security and armed forces, as well as by pro-Government militias, during mass arrests, house searches, at checkpoints and in hospitals.’ [3]

The mass nature of disappearances is indicated by the testimonies. As the Commission notes, ‘consistent testimonies reveal a pattern; the vast majority of those disappeared in 2011 and early 2012 were young men. In addition, documentation shows that disappearances were a form of reprisal against family members of protestors. As the conflict evolved it became a tactic of war with cities becoming scenes of mass arrests and disappearance. In another horrifying development, ‘wounded civilians perceived to be affiliated with the opposition are being disappeared from hospitals.’ In short, disappearances are a policy of the Syrian regime being used to fulfill multiple objectives.

Conforming to the textbook definition of an enforced disappearance, the government refused to release any details of those who were abducted to the family members.  In a section aptly titled ‘without a trace’ the thematic paper on disappearances released by the Commission  notes how ‘despite the organized nature of the arrests and detention, authorities often failed to record the personal details of detainees, including those who died in detention, making it difficult to trace them and inform their families.’[4]

Consequently, as the Commission notes, ‘women standing outside detention centres and holding photographs of their disappeared male relatives, have become an enduring image of suffering in Syria. It is an image which speaks to the essence of the violation of enforced disappearance: the taking of a loved one, the desperate search for information through official and unofficial channels, and the torment of those left behind. Those who wait are often the only visible trace of the violation.’[5]

This search for any sign of the missing loved one emerges most poignantly in the testimony of an interviewee who was released after a court hearing in Damascus in 2013 and was ‘confronted with hundreds of people waiting outside the court, begging for news of their loved ones, in the hope that he had seen them in detention.’

The search by families for their loved one is not without repercussions in Syria. In Syria, ‘silence and fear shroud enforced disappearances’ and ‘interviewees reported that they could not approach the authorities because of a well founded fear of reprisal.  Families revealed that attempts to locate the relatives would expose them to a fate similar to their loved ones and may subject the disappeared to greater danger. A young man whose brother disappeared in December 2012 in Homs explained, ‘Families constantly pray for their relatives, but will not risk sending another family member to detention.’[6]

Thus these disappearances leave families in an impossible state of fear and anguish. ‘Not knowing whether the disappeared is still alive, and if so in what state of health and under what conditions, causes a level of grief impossible to convey. The secrecy surrounding the fate of the disappeared has the effect of intimidating and punishing families by leaving them in a state of uncertainty and mental distress. This mental anguish may rise to the level of torture or inhuman treatment and makes entire families the victims of enforced disappearances.’[7]

Apart from mental distress which may rise to the level of torture, family members also face the ‘economic consequences of disappearances’. ‘The desperation of families has left them vulnerable to extortion. Some pay bribe to those who, often falsely claim they can provide information.’ ‘The absence of the main breadwinner creates financial difficulties that add to the extreme vulnerability of families. Women and children face specific hardships. The uncertainty created by the disappearance of their husbands or fathers has social and legal consequences including on the status of marriage, right to inheritance and social welfare, and the management of the property of the disappeared person. Children of disappeared experience acute suffering with the loss of a parent.’ [8]

The documentation of the Commission gives flesh to the theory that the victims of a disappearance are multiple, and disappearances themselves are a ‘complex and cumulative violation’[9]. What the documentation is urging us to take seriously is not only the fact that enforced disappearance could involve multiple rights violations caused to those who are disappeared[10], but also multiple violations which are caused to the family members.

This emerges powerfully in the iconic image of Syrian women with photographs of their disappeared male relatives. The family members of the disappeared also suffer a series of rights violations which could include torture or inhumane treatment, arbitrary detention and the violation of their right to peaceful enjoyment of their family life.

It is the jurisprudence on how family members are affected by disappearances which the documentation of the Commission gives fresh blood to.

In international law, The Convention Against Enforced Disappearances under Article 18 guarantees ‘relatives of the person deprived of liberty, their representatives or their counsel’ the right to information regarding the person deprived of liberty. Article 20(2) also guarantees ‘the right to a prompt and effective judicial remedy as a means of obtaining without delay the information’ regarding the detainees. This provision enshrines the family members right to truth regarding the details of the detention of their loved one.  However the suffering of families due to the disappearance does not find explicit legal recognition.

It is the jurisprudence of the Inter-American Court of Human Rights which most powerfully crystallizes the norm that the suffering caused to family members as a consequence of a disappearance is legally actionable.

In Blake v. Guatemala, the Court held that in cases that involve the forced disappearance of persons, the violation of the right to psychological and moral integrity of the victims next of kin is a direct consequence of the disappearance, which causes them by the fact itself, serious suffering that is further aggravated by the state authorities continued refusal to provide information on the victims whereabouts or to open an effective investigation to find the truth. [11]

In Trujillo Oroza v. Bolivia, the Court held that the victim’s mother’s health suffered as a consequence of the disappearance of her son, and the prevailing impunity in the case and that the other members of the victim’s family (his step father and his two brothers) suffered moral damage due to the facts of the case and that the suffering continued in view of the victims continued disappearance. [12]

In Radilla Pacheco v. Mexico, the Court stated that it can declare the violation of the right to mental and moral integrity of the next of kin of the victims of certain violations of human rights applying a presumption juris tantum regarding mothers and fathers, sons and daughters, spouses and life partners … as long as this corresponds to the particular circumstances of the case. In the case of those direct relatives it is the state who shall invalidate such presumption. [13]

It should also be noted that the African Commission of Human Rights in Amnesty International v. Sudan has also found that, ‘refusing to inform the family whether the individual is being held and his or her whereabouts is an inhuman treatment for both the detainee and the family concerned.’[14]

It’s essential that when the crimes committed in Syria are accounted for, disappearances are dealt with and more specifically the harm that disappearances do to family members is dealt with as well.  The documentation of the Commission of Inquiry aids a deeper understanding of the harm that disappearances inflict not just on victims but also on their families. The images of Syrian women with pictures of their loved ones who have been disappeared must not be forgotten and must indeed find legal recognition in any post conflict situation, drawing heavily upon the wider jurisprudence of the Inter American Court of Human Rights as well as the African Court of Human Rights.

Introduction

Enforced  Disappearances in Syria: Impact on families

Re-imagining the Protection of the family Resolution at the Human Rights Council

Sexual violence as a continuum affecting both women and men

Genocide of the Yazidis: Can the logic of genocide law be extended to also protect sexual minorities?

Is genocide the ‘crime of crimes’?

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[1] Lisa Ott,  Enforced Disappearances in international law,  Intersentia, Cambridge, 2011. P.21.

[2] Human Rights Watch,  A wasted decade Human Rights in Syria during Bashar Al Asad’a first ten years in power, https://www.hrw.org/report/2010/07/16/wasted-decade/human-rights-syria-during-bashar-al-asads-first-ten-years-power

[3] Without  a trace: enforced disappearances in Syria, www.ohchr.org/Documents/HRBodies/HRCouncil/…/ThematicPaperEDInSyria.pdf

[4] Ibid.

[5] Ibid.

[6] Ibid.

[7] Ibid.

[8] Ibid.

[9] Lisa Ott, op.cit. p.15.

[10] Including the right to life, the right to be free of arbitrary detention,  the right to recognition before the law and the right to freedom from torture.

[11] Blake v. Guatemala, Judgment of January 24, 1998. (Merits)

[12] cf.  Antonio Augusto Cancado Trinidade, Enforced Disappearances of persons as a violation of jus  cogens: The contribution of the jurisprudence of the Inter-American Court of Human Rights , Nordic Journal of Human Rights 81(2012)507-536

[13] Lisa Ott, op. cit. p.92. Also See Cantuta v. Peru and Castro v. Bolivia  for the proposition  that  factors such as the ‘necessity to move to another area or country and other impact of the disappearance on the social and labour relations of the family or the altering of family dynamics’ can be taken into account to determine if  family members could become victims of disappearances as well.

[14] African Commission on Human and Peoples’ Rights, Comm. No. 48/90, 50/91, 52/91, 89/93 (1999).