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Enforced disappearances in peace agreements (2)


A comparative study

by wael.m
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Enforced disappearances in peace agreements (2)

Introduction: The conflict in Syria currently is at a crossroad. The regular Syrian forces and its allied have secured areas around the capital Damascus, as well as Homs and Hama provinces. Left out of its reach are northwestern areas, including Idleb, part of Aleppo countryside and Hama, and southwestern Syria, more specifically parts of Daraa and Quneitra under control of armed opposition factions an jihadist groups.

The north is also divided. The northwestern region, especially Afrin and Euphrate shield areas, are under Turkish control, and northeastern Syria, under Syrian Democratic Forces control, backed buy the international coalition. At the time these lines are written, the regular Syrian forces and its allies are engaged in a battle in southern Syria’s de-escalation zone, in breach of a trilateral agreement concluded with Russia, Jordan, and the United States.[1] Military operations started on 17 July have already caused 325,000 people to be displaced, and could impact the security of the entire region, with Israel and Jordan at the border, and Iran based in Syria.

            Peace efforts are largely unsatisfying. Two sets of peace talks are being conducted. The first one, conducted by the United Nations in Geneva, started in 2012, and has been making little to no progress over the past six years. Concomitantly, Russia, Iran and Turkey have acted as guarantors to another set of peace talks, that has come to be named Astana talks, in reference to the Kazakh capital where the discussions are most often taking place. These talks are, however, giving little to no consideration to civilians, who are yet the first victims of the conflict, and instead agreed de-escalation zones and the establishment of military checkpoints aimed at securing their influence over the conflict, all the whilst limiting the cost of their engagement.[2]

            Additionally, over the past few days, several towns of Daraa area have concluded agreements with the regime that mainly involve disarmament of some opposition factions, absent any reflection on past abuses or human rights. On the opposite, the relocation of the conflict in southern Syria should prompt all stakeholders to encourage warring parties to open a dialogue on the basis of international standards.

            Peace talks should put human rights at the core of an agreement, not only for moral and ethic reasons, but also because it is the only way to ensure a sustainable peace in Syria. A broad range of issues should be addressed. In the first issue of this series dedicated to peace agreement, we reflected on the place that should be given to prisoners. In this second and last part of the series, we will study the issue of enforced disappearances and how they should be dealt with during peace talks and eventually in a peace agreement.

            Enforced disappearance is the act of disappearing a civilian against their will. It consists in the arbitrary abduction and detention of civilians, during a period of conflict or dictatorship. Following the abduction, the disappeared is deprived from legal protection, and their family and relatives denied information on their fate. The enforced disappearances can occur at the earliest stages of the detention, or later on.[3] The disappearance’s first victim is the disappeared themselves. Once abducted, they are detained, tortured and in some cases killed.[4] But the burden of enforced disappearances also weighs heavily on the families and relatives of the direct victim in a myriad of ways. Article 24 of the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED) in that regard qualifies as victims not only the disappeared themselves, but anyone who suffers harm from the disappearance, including the family, that are affected on several levels.[5] In August 2017, Syrians for Truth and Justice, in partnership with Justice for Life, published the outcome of their research on the impact of enforced disappearances on the families.[6] First, the uncertainty about the fate of the disappeared leaves them deeply affected, impacting their mental and physical health. Second, the disappearance leaves families in financial hardship. Thirdly, the fear felt by neighbours and other relatives to be associated with families of disappeared often results in them being socially ostracised. Finally, the disappeared not being acknowledged as deceased, and not being able to fulfil administrative requirements, families are caught in legal and administrative hustles, preventing them from moving on with basic rights and obligations, such as the registering of a newborn, the collection of an inheritance, or a divorce.

           

            The conflict in Syria has been heavily marked by the massive occurrence of the crime of enforced disappearances, perpetrated by all sides to the conflict. Documented as soon as  2012 by Human Rights Watch, 2013 by the Commission of Inquiry, and 2017 by Syrians for Truth and Justice, it has not declined ever since, and as of August 2017, 85,036 victims of enforced disappearances had already been accounted for.[7] In February 2014, the UN Security Council drafted a Resolution 2139 condemning the occurrence of the crime, with little effect.[8]

            The course of the conflict is hard to anticipate, and we can only rely on our knowledge of the field and learn from previous foreign experiences of conflict. Although, as mentioned earlier, it appears that the regular Syrian forces and its allies is taking over a good part of the territory, transforming the face of the conflict into a low-level one, a peace agreement is still essential, in a near or distant future.

            We have envisioned the main topics related to enforced disappearances that should be considered by mediators, warring parties, stakeholders and human rights activists as part of peace negotiations. We will start by laying a prerequisite to the success of meaningful and successful peace negotiations: the participation of women to the talks, without which all hope for peace is doomed (I). We will then focus on the issue of law reform with regards to enforced disappearances, first in an effort to adhere to international law, and second to improve domestic law (II). We will then study the topics related to enforced disappearances we think must imperatively be addressed during the peace talks (III). We will end with an overview of the implementation of peace processes, with reference to tools that, if planned right from the peace negotiations and enshrined in the agreement, might help ensuring compliance with human rights provisions (IV).

 

  1. The participation of women in peace talks: a prerequisite to sustainable peace

            Men and women experience enforced disappearances in different ways. While most of direct victims of enforced disappearances are men, women are concomitantly disproportionally represented as secondary victims, those who are left and have to support their family in the absence of the man, who was often the breadwinner. This leads to a disproportional effect on them, socially, economically, and psychologically. Socially, the stigma surrounding the disappearance of their husband, father or brother tends to exclude them from the society, by fear to be associated to enemies and face the same fate.[9] Women whose husband disappear are also left in a marital limbo status, unable to divorce or remarry.[10] Economically, women are forced to take on low-paying and insecure jobs.[11] This finding can be perceived easily in Syria, where 90% of direct victims of enforced disappearances are men, who, in a patriarchal society as Syria’s, constitute the main breadwinner of the family.[12]

           

Concomitantly, few women happen to be involved in the ongoing peace-process, when it has been proved that they are powerful agents of peace. Resolution 1325 (UNSCR 1325), institutionalises the Women, Peace, and Security (WPS) agenda at the international level, and recognises women’s contribution to conflict resolution and prevention. One of the resolution’s four pillar directly focusses on the participation of women in peace negotiations.[13] In Philippines, Northern Ireland, Guatemala, Kenya, Sudan, Darfur, or Colombia, Myanmar or Ukraine, their contribution is key to the success of the peace process and to a sustainable peace.[14] Two experiences are worth reflecting on.

            In Guatemala, although women were few to sit on behalf of the parties to the negotiations, women peace activists formally organised and joined the Asamblea de la Sociedad Civil (Civil Society Assembly, ASC), that allowed them to take part to the peace talks and advance issues relevant to women. During the whole peace process, they drafted non-binding proposals to negotiating parties, informed them on key issues and influenced them. Eventually, they managed to include within the peace agreement a range of issues through a women-oriented lens, such as “land access, credit and development assistance, an end to discrimination against indigenous women, support for women’s rights and equality within the home, equal rights for working women, greater access to education for women, and increased opportunities for women to serve in the armed forces.”[15]

            In Colombia, women were present in the peace process at all levels, including as officials in the government’s Office of the High Commissioner for Peace.[16] Their increasing involvement in the peace process produced positive effects on a range of topics. In addition to their focus on women and girls rights, they are credited for their commitment to bringing to the process issues that are fundamental to victims, such as land restitution, right to justice, and accountability. They also played a major role in improving the security situation by negotiating local ceasefires, facilitating the release of hostages, and advocated for measures to recover remains of disappears.[17]

 

How this applies to Syria?

In a highly patriarchal society, Syrian women are underrepresented in high-level discussions. It is essential that peacemakers and mediators create a space for them and involve them to the peace negotiations. Women movements must be formally and effectively part of the negotiations. Initiatives such as the UN peace talks’ Women Advisory Board must be supported and improved to be truly representative. Other feminist political movements, inclusive and representative of all parts of Syria, must also participate in the negotiations. Negotiators and parties must also increase the number of women representatives among their teams. This means, inter alia, including them in leadership positions, valuing their experience, increasing their protection and security, insisting on gender considerations, allocating fundings dedicated to supporting women’s participation, and monitoring and evaluating the implementation of these objectives.[18]

  1. A necessary work on legal instruments

            A solid respect for the rule of law is key to a sustainable peace. This must be done jointly with a law reform that ensures Syrian law’s respect for international standards. Peace talks must address the gap that distinguishes Syrian law on enforced disappearances, with regards both to international law and domestic law.

  1. Adherence to international law

            Several tools compose the legal regime of the fight against enforced disappearances in international human rights law, international humanitarian law and international criminal law.

  • International Human Rights Law

            The act of enforced disappearances is an autonomous violation of human rights, condemned by several instruments:

  • 1992 UN Declaration on the Protection of All Persons from Enforced Disappearance;[19]
  • 1994 Inter-American Convention on The Forced Disappearance of Persons;[20]
  • 2007 International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED), that sets out three core elements for an enforced disappearance:

                        1. There is an arrest, detention, abduction or any other form of deprivation of liberty.

                        2. That conduct is carried out by agents of the state or by persons or groups of person acting with the authorization, support or acquiescence of the state.

                        3.  The conduct is followed either by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which places such a person outside the protection of the law.

            On the other hand, the crime of enforced disappearances is also a violation of a multitude of human rights, enshrined in international instruments Syria has ratified, such as the International Covenant on Civil and Political Rights (ICCPR), including:

  • the right to liberty and security of person;
  • the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment;
  • the right to security and personal dignity;
  • the right to humane conditions of detention;
  • the right to legal representation;
  • the right to a fair trial;
  • the right to a family life; and
  • even the right to life, when the disappeared is killed.

            Additionally, enforced disappearances are deeply connected to the right to truth. Indeed, this right was initially a tool by the Madres de la Plaza de Mayo when, in 1977, Argentinian mothers published a statement asking for the truth on the fate of their children disappeared by the military junta. It was then an apolitical tool, used to depoliticise the violence of the state, but also a legal instrument to remedy to the absence of legal protection the disappeared suffered. The right to truth is now an autonomous right asserted by the United Nations and enshrined in Additional Protocol I to the Geneva Convention, ratified by Syria and that provides in its Article 32 to 34 for the “right of families to know the fate of their relatives”.[21]

 

            Regional and Universal Human Rights bodies have significantly contributed to the enforcement of the criminalisation and the building of the case law with regards to enforced disappearances. Among the most notorious cases, in Bazorkina v. Russia, the European Court of Human Rights found that family and relatives could claim their status of victim based on the authorities’ reactions and attitudes when the disappearance was brought to their attention; in Velasquez-Rodrigez v. Honduras, the Inter-American Court acknowledged that the crime of enforced disappearances is a “multiple and continuous violation of many rights under the Convention that the States Parties are obligated to respect and guarantee;” and the UN Human Rights Committee in Edriss El Hassy v. The Libyan Arab Jamahiriya recalled the States Parties their duty to address the alleged violations of rights under domestic law.[22]

 

How this might apply to Syria?

Syria currently is not part of the ICPPED.  Similarly, although it is a state party to the Convention Against Torture (CAT), it declared that it doesn’t recognise the Committee, with whom it does not cooperate, forcing the body to consider Syria’s situation in absence of a report.[23]

Peacemakers must bring the issue of the ICPPED to the table of negotiations and push for its ratification by Syria and its integration within domestic law.

 

            Alternatively, in 2004, the Council of the Arab League, whose Syria is a state party, adopted the Arab Charter on Human Rights, ratified by Syria and providing for fundamental rights including freedom from torture, equality before the law, and the right to liberty and security. For ten years the Charter had no enforcement body, remaining virtually illusory. In 2014, however, the Arab League came up with statutes of an Arab Court of Human Rights. These, however, proved unsatisfying, the main issue lying in the inability for citizens to file complaints with the court, leading Pr. Cherif Bassiouni to coin the court with the term “Potemkin tribunal”, to refer to its deceptive nature.[24] Peace-makers and human rights activists could use the circumstances of the Syrian peace-making process to push stakeholders to embark on a reflection on the opportunity to reform such a body. The current conflict involving almost all actors of the region, even more with the relocation in southern Syria, creates a momentum to bring the idea and advocate for its realisation. The challenge might seem unsurmountable, but activists can reflect on the work accomplished by their African counterparts, who took the Organisation of African Unity (OAU), that was dealing only with economic matters and decolonisation, to another level by pushing for the drafting of an African Charter on Human and Peoples’ Rights, that came into force in 1986. The establishment of the African Commission on Human and Peoples’ Rights came shortly later, in November 1987 in Addis Ababa, Ethiopia, but It took ten more years to see an enforcement body established, with the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court in 1998, and six others for the court to start working with the ratification by a fifteenth state in 2004.  In their doubtful moments, activists can keep in mind that African states members of the Commission did not ease the process: “they were unelected, undemocratic military dictators. Others were from one-party states and Presidents-for-Life, a system of governance then in vogue in the Continent.”[25] The same obstacles were on the way of the establishment of an Inter-American court. The twenty-four state parties to the American Convention on Human Rights have large records of violations, with state-sponsored practices of torture, forced disappearances, or arbitrary killings.

 

  • International Humanitarian Law

            The prohibition of enforced disappearances is a rule of customary international law, applicable to both international and non-international armed conflicts. Although the crime of enforced disappearances per se is not referred to, the conduct violates a range of rules including the prohibition of arbitrary deprivation of liberty (Rule 99), the prohibition of torture and other cruel or inhuman treatment (Rule 90) and the prohibition of murder (Rule 89). Because it is deeply ingrained in the mindset of armies around the world, one way to eradicate it is to reform the institution, and educate recruits on its prohibition, as is the case in Colombia, El Salvador, Indonesia or Peru.

 

How this might apply to Syria?

Peacemakers and human rights activists should push the parties to include a reform of institutions right from the discussions on a peace agreement, and include, as was the case in the aforementioned countries, a prohibition of enforced disappearances in military manuals.

 

  • International Criminal Law

            The International Criminal Court (ICC) qualifies in its 1998 Rome Statute, Article 7, the crime of enforced disappearances as a crime against humanity, when it is part of a widespread or systematic attack directed against any civilian population.[26] It gives a similar definition of enforced disappearances to the ICPPED, although it broadens the scope of the perpetrators to include political groups, where the convention only refers to the state and its officials. In application of Article 7, the act must be perpetrated “as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack,” an attack being defined in paragraph 2 of the same article as “a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organisational policy to commit such attack”. The International Criminal Court has yet to examine a case of enforced disappearance.

 

How this might apply to Syria?

            Syria currently is not a signatory of the Rome Statute. Therefore, only if the Security Council refers the case to it, or if Syria rarifies the Rome statute, could the ICC have jurisdiction. As far and uncertain as it might seem, it is the responsibility of human rights activists, lawyers and political dissidents to push in the direction of a ratification of the statute by Syria, and must be an integral part of the peace talks.

 

  1. Reform of domestic law

            A ratification of international instruments implies their integration to domestic law. This section therefore explores alterations on the domestic level.

            In Bosnia-Herzegovina 25,000 to 30,000 were missing after the conflict. In absence of a provision in the 1995 Dayton agreement to draft it, it took almost ten years to adopt the 2004 Law on Missing Persons. It establishes the Missing Persons Institute (MPI), designed to take over the existing regional commissions on missing persons, defines the status and rights of the families of disappeared, and creates an obligation for the authorities to account for all missing persons by providing information and support to the MPI. It also creates a central database of the missing (CEN), and the establishment of a fund for the families of the missing.

 

            In Nepal, the Comprehensive Peace Accord (CPA) was signed in 2006 and put an end to a decade of violent conflict between the Nepalese government and the Communist Party of Nepal-Maoist (CPN-M), that killed more than 14,000 and caused 1,400 people to disappear. The peace process did not plan for a reform of domestic law or a criminalisation of enforced disappearances. Although two cases by the Supreme Court – namely Rajendra Prasad Dhakal  v. the Government of Nepal (2007) and Madhav Kumar Basnet v. the Government of Nepal (2014) – and  the Commission of Investigation on Enforced Disappeared Persons (CIEDP) lobbied for a criminalisation of certain offences, including enforced disappearances, but law-makers failed to reform Nepalese law in that direction.[27]

           

How this might apply to Syria?

 These examples demonstrate the lengthy processes that ensue from a lack of specific commitment to reform law in peace agreements. Parties, peacemakers and human rights activists must commit to put the issue at the centre of their discussions and plan for a law criminalising enforced disappearances. The issue will be critical to assert the next government’s dedication to ensure adherence to the rule of law.

 

  1. The core of the negotiations

            A comprehensive reflection on the crime of enforced disappearances, its impact on the individuals, the families and the social fabric is crucial to a peace deal aiming at a sustainable peace. This section deals with critical topics a peace deal must address. This includes the issue of amnesties, that is relevant in the context of peace talks, since often central to warring parties’ concerns (A). We will then dive into questions more specific to enforced disappearances, such as the opportunity to create bodies dedicated to the issue of enforced disappearances (B), the question of reparations for families of disappeared (C) and the search for disappeared (D). We will end with an overview, quick in regards to the attention it deserves, of the value to establish a Truth Commission in a peace agreement (E).

 

  1. Amnesty

            We studied in our previous issue the primary importance of justice. Amnesty can never be included for perpetrators of enforced disappearances. We have explained that not only amnesties are illegal with regards to international law, but also, do not serve a sustainable peace. Accountability on the other hand, has been proved to support long-standing peace and minimise the recurrence of conflicts.[28]

            Although a consultation of the Syrian society might be conducted to collect their voice on amnesty for lower level perpetrators or minor crimes, the grave crime of enforced disappearances cannot remain unpunished, and this position must be asserted from the very early stages of the peace process, at the risk of seeing politicians bringing the issue later on back on the table.

 

            In Nepal, the matter of amnesty was absent the 2007 CPA, leading to the attempt by politicians to include it subsequently to the legislation on the creation of th

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