Relatives of the 100,000-150,000 forcibly disappeared in Syria flip through the remaining photos of their loved ones, recalling their memories with a choked voice and a heavy heart. Their forgotten tragedy is felt only by the mother, sister, wife, or child who is still waiting for a knock on the door to let their loved ones in, or a phone call to hear their voice, or even a grave to mourn their grief. The fire that consumes the hearts of many Syrians will not subside until they find convincing answers to their question: What is the fate of our loved ones?

The issue of missing persons has long been a symptom of every war, during which many people go missing and or are forcibly disappeared through violence; this is despite the obligation imposed by international law, including humanitarian and human rights law, on parties to a conflict to take necessary measures to protect persons from enforced disappearance. In the case of disappearance, the parties must ensure that the missing person’s fate is revealed and that their families are informed. However, this international legislative and legal environment has not been translated into the laws of conflict countries. This is especially true in Syria, which has just completed its thirteenth year of conflict and is drowning in the violent quagmire of one of the ugliest crises since World War II. This conflict has seen humanitarian and political issues mixed and muddied into tools of social, political, and resource blackmail.

Enforced disappearances, in their various forms, have been one of the tools that the parties to the Syrian conflict use to get rid of their opponents and terrorize communities. These include kidnappings in public ambushes or in residences, arrests at security and military checkpoints in various areas of control or border crossings; these kidnappings occur without informing the targeted person or their family of the reason for the arrest or where they have been taken. This is without mentioning the many massacres and field executions.

Armed groups and repressive authorities also follow a policy of concealing the fate of their detainees, turning the detainee into a number in order to obscure their name, which is forbidden to be used or disclosed. The families of the disappeared or detainees are prevented from visiting these groups in order to inquire about the fate of their loved ones and are even terrorized to the point of their own arrests or enforced disappearances. Lawyers are prevented from visiting the victims; their role is limited to visiting judicial bodies – except for the notorious field courts, which were recently abolished – and official prisons.

For its part, the Syrian Network for Human Rights said in a infographic published on its official website in August 2023 ,“At least 155,604 individuals, including 5,213 children and 10,176 women, [are] under arrest or forcibly disappeared by the parties to the conflict and controlling forces [in Syria] from March 2011 to August 2023.” The graphic further breaks down the disappearances by the party responsible:

In another statement, published at the end of June 2023 on its website, the Syrian Network for Human Rights said, “At least 111,907 persons, including 3,041 children and 6,642 women, have been forcibly disappeared at the hands of the parties to the conflict and controlling forces in Syria [from] March 2011 up until August 2022, with the Syrian regime responsible for roughly 86 percent of all enforced disappearance [cases].”

“[O]ver 100,000 [people] are still missing or forcibly disappeared”, said Paulo Pinheiro, head of the UN Commission of Inquiry on Syria, during the 49th session of the Human Rights Council, after 11 years of Syrian conflict.

In April 2022, High Commissioner for Human Rights Michelle Bachelet told member states in the General Assembly Hall in New York:

The quest for determining the whereabouts and fate of Syria’s missing persons, including those forcibly disappeared, abducted, and those arbitrarily detained, is emblematic of the pain, fear, and enduring suffering caused by the country’s long and terrible conflict… Despite the relentless work of Syrian victim, survivor, and family associations and other civil society groups – and the efforts of many international bodies – the current status, whereabouts, and fate of tens of thousands of people remain unknown. Thousands of families of the missing remain in the dark. It is urgent that they are informed of the fate and whereabouts of their loved ones and be allowed to visit or communicate with them.

She further called for human rights and humanitarian agencies to be allowed access to all places where detainees and abductees are held.

Mechanisms to Reveal the Fate of Detainees and Forcibly Disappeared Persons

UN and International Mechanisms

On 29 June 2023, the UN General Assembly established an independent institution to “clarify” the fate and whereabouts of tens of thousands of missing persons in Syria. However, the text does not specify the working methods of this institution, whose “terms of reference” were developed by the UN Secretary-General within 80 days of its establishment in cooperation with the High Commissioner for Human Rights.

The text states that the institution will have to ensure “participation and representation of victims, survivors and the families of missing persons… [including] women’s organizations and other civil society organizations… [and] shall apply a victim- and survivor-centred approach”. The General Assembly calls on States and “all parties to the conflict” in Syria to “cooperate fully” with the new institution.

The Syrian government has not been receptive to the new institution. Syria’s ambassador to the UN, Bassam Sabbagh, said the resolution reflected “blatant interference” in the country’s internal affairs, referring specifically to the United States.

The issue of the disappeared and missing has also been noticed or acted upon in recent years by countries and international organizations. The International Committee of the Red Cross has worked to document and try to gain access to detention facilities and provide health care for detainees. However, its effectiveness in uncovering the fate of the disappeared remains limited. There have also been some international efforts by nations such as China, Russia, the US, and others, to uncover the fate of specific detainees – such as opposition figure Abdulaziz al-Khair and his companions – in addition to other demands and appeals, without any significant success to date.

The Syrian Government’s Mechanisms

The Syrian government has created mechanisms to deal with detainees and forcibly disappeared persons whose fate is unknown. According to a Damascus-based lawyer who requested anonymity, there are “two mechanisms for this process. The first is the Missing Persons Office, which was established in late 2011 in the building of the Syrian Ministry of Justice in Damascus. The first step is that the families of the missing person fill out a special form containing their personal information and the date and area of their disappearance. The ministry then contacts the prison administration and security branches, hoping to receive a response a few weeks later, but this mechanism is not binding on the security services, and therefore they often do not respond.” The second method, according to the same source, is “submitting almost the same request to the military judiciary, which in turn sends it to the military police, which responds if it knows the person or if they are in one of its branches. But this mechanism is unclear in terms of its obligation to entities that detain people in violation of the law in the first place.”

The source pointed out that there are “ways that may be more widespread in Syrian society, but they are outside the legal mechanisms. They rely on corruption networks based on people who claim to have influence or sources in places of detention. They provide information about detainees and disappeared persons in exchange for money, while their families are subjected to fraud and extortion, with no success in finding out their fate.”

If they wish to pursue a different path, “Families of the disappeared and detainees in some areas resort to social and religious leaders and leaders of armed groups, hoping that they have connections with the de facto forces, which in turn strengthen their presence and prominence as community leaders at the expense of civil forces and intellectuals by granting them some privileges and accepting their positions as intermediaries in some cases,” he said. “They use them to manage society, disrupt any real change or representation, and confiscate the public scene. It also prevents the emergence of new leaders and, therefore, pressure to produce legal mechanisms to reveal the fate of the disappeared.”

Syrian lawyer and human rights activist Kamal Salman noted that there are other methods, other than the previously listed mechanisms, that relatives of the missing have tried, “such as submitting a request for a visit from first-degree relatives to the prison administrations and waiting for a response to reveal the person’s presence in prisons… There are cases in which you can turn to the provincial security committee by submitting a written request to clarify the fate of the person”, he said.

As Salman explained, “Families began extracting family data from the civil registry after deaths were recorded in the registry without the knowledge of the missing person’s family, contrary to the provisions of Articles 38 and 39 of Law 13 of 2021, which includes the Syrian Civil Status Law, which requires adherence to the principles and procedures for registering the deceased in detention centers and prisons. It relies on the public prosecutor who organizes the fact of death and then refers it to the civil registrar within the legal period… In some cases, it is possible to communicate with international organizations such as the International Committee of the Red Cross, which is able to access declared places of detention.”

The civil registry has become one of the mechanisms to reveal the fate of the forcibly disappeared, but it does not always have the truth of their disappearance nor can it always show how they met this fate. Many organizations have taken an interest in documenting the processes of registering the deceased detainees and forcibly disappeared without informing their families. In a report published on its website at the end of 2022, the Syrian Network for Human Rights reported that there are two categories of death data recorded in the civil registry; the first type is the data recorded on a death certificate that families of the forcibly disappeared can get from the civil registry departments. Most of these certificates have only “Damascus” as the place of death; Damascus has the most detention centers, which indicates that the forcibly disappeared person most likely died in detention, but these certificates do not specify any detention center names.

The second type of death certificates are also kept within the civil registry departments but are not available to the families. The Syrian Network for Human Rights team reviewed a number of them: these certificates listed the location of death as either Tishreen Military Hospital or al-Maidan Military Court, which may indicate that the person was sentenced to death.

Damascus-based lawyer and human rights activist Aref al-Shaal expressed concerns about the possibility of uncovering the fate of the missing. “I fear that there is no legal way to uncover the fate of missing persons, other than organizing a disappearance report,” he said, adding, “The Ministry of Justice’s missing persons window is an administrative mechanism, not a legal one, and has not proven to be useful… There is no binding legal mechanism to reveal the fate and whereabouts of missing persons... Detention for more than two months without referral to a court has no legal basis and is a crime in the eyes of the law…A detainee forcibly disappeared by some parties is often referred to the field court, which no one knows anything about, as it is secret and does not accept lawyers’ arguments before it.”

For his part, lawyer and public affairs activist Adel al-Hadi said, “The legal route, in the event that any citizen goes missing without anyone knowing their whereabouts, is to file a report with the public prosecution, stating the person’s name, circumstances, location, date of disappearance and all available information… The public prosecution must take the appropriate measures to search for them…  If the place of arrest is known and the legal time has passed, i.e. more than 72 hours, without a transfer to the judiciary or a release, their relatives will file a complaint with the public prosecution to find out their fate.”

Al-Hadi further explained: “The extension of the detention is subject to the approval of the public prosecutor, and after convincing reasons justifying it, because if the investigation with the detainee proves that they are a perpetrator, it is the judiciary that decides to arrest… and sentence them… The presence of a citizen with the intelligence services means that they are detained. When... referred to the judiciary, the judge interrogates them, and if the judge decides to detain them, the name becomes suspended pending investigation until it is completed, and the detainee is either released or referred to the competent court, depending on the crime they are accused of.”

Al-Hadi continued, saying that “the public prosecutor, after the complaint is directed to them, is supposed to address the security agency that arrested the person, so that it can refer them to the judiciary or release them,” al-Hadi said. As for detentions for months or years, he considered them “illegal, because they are not carried out by a judicial decision, but rather by orders issued by the intelligence services, without knowing the charge, trial, and the right of defense”.

One of the mechanisms for uncovering the fate of detainees and the forcibly disappeared is the memory of released detainees. They memorized the names, phone numbers, or addresses of those they met in detention. Some of the released detainees were afraid to communicate with the relatives of the detainees, and sometimes they were unable to reach them, either because their areas were destroyed or they were relocated, according to a number of released detainees.

Photos of victims, leaked in 2013 by a soldier who defected and went by the codename Caesar, have been one of the tools for uncovering the fate of the missing. He provided 55,000 photos related to the death of 6,786 people inside Syrian detention centers, in addition to videos and photos of massacres, field executions, and mass graves – although the latter require expertise and capabilities to reveal the identity of the bodies in them.

In northeastern Syria, under the control of the Syrian Democratic Forces, there are no legal mechanisms to uncover the fate of detainees that have been disappeared by the de facto authority. Families of the forcibly disappeared often turn to elders and clerics to find out where they are being held. If they get any information, they may learn the reason for the arrest, but it is often inaccurate, according to a lawyer working in the region who preferred to remain anonymous. “A special office for detainees was established at the Asayish headquarters to provide information about the detainee’s place of detention and the charges against them, but it remained a formality and was not activated,” the lawyer said.

As for northwestern Syria, which is under the control of Hay’at Tahrir al-Sham and the National Army factions, a civilian activist living in the Aleppo countryside who requested anonymity explained: “There are no laws or procedures adopted, or bodies or entities to which one can go to file a report about a disappeared or arrested person, but their relatives resort to social media and write a post about the disappearance. The circle around the victim can interact through personal relationships with factions or public figures in search of information about their fate.”

The activist further pointed out that, “A distinction can be made between the areas controlled by Hay’at Tahrir al-Sham in Idlib and its countryside, and the areas controlled by the National Army factions. In the former, there is a centralization of leadership that limits any arrest or enforced disappearance, and the process of recognizing it becomes a matter for these central authorities. In the latter, there is randomness, and a faction may arrest people who are not affiliated with the Ministry of Defense of the interim government. In some cases, the perpetrator is not known, and the mechanism is limited to personal relationships and knowledge of area groups.”

International Experiences

Although the general ideas or procedures for discovering the fates of the forcibly disappeared are similar in other countries, the details differ in terms of the form of the conflict, the parties involved, the body accredited to conduct the procedure, the powers granted to it, and the extent to which its recommendations and procedures are binding.

Investigation Committees

According to the Bahrain Independent Commission of Inquiry, commissions of inquiry are “non-judicial fact-finding bodies that are established in the aftermath of conflict for the purpose of providing a narrative of events which took place during specified period(s) of unrest. Commissions of inquiry are generally delegated a range of powers depending on their context and typically issue a final fact-finding report at the conclusion of their investigations, which includes determinations of responsibility and the formulation of recommendations. All share a commitment to fact-finding and helping societies to heal and implement successful, post-conflict transitions.”

Argentina was one of the first countries to set up a commission to uncover the fate of the disappeared in 1983, called the National Commission on the Disappearance of Persons (Comisión Nacional sobre la Desaparición de Personas). Its mandate was specific and focused on investigating the fate and whereabouts of the disappeared and cases of torture that occurred during eight years of state-sponsored violence under military dictator Jorge Videla. It submitted a 50,000-page report titled “Never Again (Nunca Más)” in 1985, which identified 365 secret detention centers and the names of 9,000 forcibly disappeared. Following its release, nine senior military commanders were prosecuted, and several laws were passed granting compensation to survivors and the families of those who died.

Among the Arab experiences, the first was the Moroccan Equity and Reconciliation Commission in 2004, established by King Mohammed VI of Morocco to investigate disappearances and state-sponsored violence that had lasted for 43 years. Although it provided financial compensation to 9,799 of those affected, it was not empowered to reveal the identities of implicated state agents or compel individuals to testify at any of the seven public hearings it organized. In its final report, it identified 742 forcibly disappeared persons and described the methods of torture used by the authorities.

In 2011, the Human Rights Council established the UN Independent International Commission of Inquiry in Libya. The council asked the commission to investigate all alleged violations of international law and human rights in the Libyan Arab Jamahiriya and to establish the facts and circumstances of the violations and crimes committed. It also asked the commission to identify, if possible, individuals responsible for human rights violations throughout the Jamahiriya. It was tasked with making recommendations to ensure that those responsible are held accountable. The commission provided factual findings and presented its recommendations to the government of the Libyan Arab Jamahiriya and the National Transitional Council.

Recommendations

1. Form a commission of inquiry that includes Syrian personalities of recognized competence, objectivity, and good reputation, which will be empowered with broad powers to access information and places of detention, hear testimonies, identify those responsible, refer files to the judiciary, hold reconciliation and forgiveness, and develop appropriate material and moral compensation formulas.
2. Negotiate with all actors to address the issue of uncovering the fate of the forcibly disappeared and accept cooperation with organizations and entities working on the case.
3. Create a legislative and legal environment that supports and binds the parties to the conflict to reveal the fate of the disappeared.
4. Work to create civilian networks that include the latest UN institutions, the International Committee of the Red Cross, and other organizations to engage in confidence-building processes with the families of detainees, collect information, and find legal formulas for pursuing the issue.
5. Achieve a political solution to the Syrian crisis on the basis of UN resolutions, especially Resolution 2254; this is one of the most important factors supporting the resolution of the crisis of detainees and forcibly disappeared persons.
6. Support the families of the forcibly disappeared and detainees and empower them economically and legally.
7. Continue advocacy and mobilization campaigns as a peaceful means of pressuring the parties to the internal conflict and the governments intervening in the Syrian case.
8. Adopt media and dialogue as advocacy tools, and direct appropriate support to enhance the role of civil media.