“Swap of Combatants” Does Not Solve Crisis of Tens of Thousands Detainees and Missing in Syria

Introduction: The first round of the Astana negotiations sponsored by Russia, Iran and Turkey was held in the Kazakh capital on January 24, 2017. The talks revolved around the establishment of a "trilateral mechanism" to monitor the ceasefire, ensures its strict compliance by parties to the conflict to prevent any provocations and to determine the extent of its application, these areas were subsequently designated as “de-escalation/reducing tension" zones between the military parties.

December 31, 2016, The UN Security Council unanimously adopted resolution No. 2336 on, which was submitted by Russia and Turkey after prolonged talks in the Turkish capital of Ankara with the Syrian opposition, and the resolution was aimed at supporting the efforts by Russia and Turkey to end the violence in Syria, according The United Nations.

After the first meeting in Astana, Mohamed Alloush, the head of the Syrian opposition delegation to the negotiations, stated that they had spoken with the Russian to release the female detainees from Syrian prisons, adding that the Russians had promised that they would all be released.

Preface:

Following the agreement on the fourth de-escalation zone[1] in Idlib province in "Astana-6" on September 14, 2017, there is a growing talk on finding a solution to the issue of detainees and missing persons in Syria. The Syrian opposition through Dr. Yahya al-Aridi, the delegation spokesperson to Astana estimated number of the detainees[2] in Syrian government jails to be 250,000 inmates, and stated in a press release that two key issues were discussed at the "Astana-6" conference, firstly: the inclusion of Idlib into areas of ‘reducing tension/de-escalation” zones and the second: the case of detainees.

Alexander Lavrentiev, the head of the Russian delegation to "Astana-6", vowed following the conference that the Russian side would make further measures to respond to the opposition's demand to prompt the process of "releasing prisoners and handing over dead bodies."

Concerning the main topics on the agenda of the seventh round of the Astana negotiations on Syria scheduled by the end of October 2017, Kazakh Foreign Minister Kairat Abdrrakhmanov declared on 6 October 2017, that representatives of the Syrian armed opposition at Astana-6 had paid special attention to the issue of “captives and hostages”, stressing that the opposition hoped to find a solution to these issues with the contribution of the Guarantor Powers.

The Russian side had proposed the formation of a "Working Group" on the exchange of detainees in the words of Alexander Lavrentyev, the Russian lead delegator to Astana negotiations on Monday, 14 March 2017.

First: The Most Notable Patterns that Characterized the Exchanges that the Civilians were one of its parts:

Syrians for truth and justice-STJ in this report has documented at least 37 outstanding exchange/swap/exchange transactions in Syria from 2012 to the date of preparing this report in October 2017, between all parties to the conflicting in Syria, especially the Syrian government and the armed opposition. This figure includes only the exchanges in which the civilians formed one part of it (i.e. we only mentioned the exchanges that included the presence of civilians). The report-based team has not mentioned hundreds of other exchanges where only combatants or their bodies have been the subject of exchange. The report attempts to explain the sufferings of thousands of civilians who were exchanged and how they were used as a tool for political and military pressure on the one hand and the risk of reducing the issue of detainees and missing persons in Syria by exchanging combatants between the conflicting parties.

Several patterns were observed in the exchanges that had been documented:

1.   Most of the exchanges, STJ could document, had been mediated by external States, both regional and Gulf states.

2.   It was noted that exchanges involving fighters of the Syrian army, police or security were slow and had a bureaucratic control on the exchange procedures until the process of their release. Whereas all exchanges involving foreign fighters (combatants of all Parties to the conflict, in particular fighters of the Lebanese Hezbollah and Iranian militias) were more rapid than others.

3.  Nepotism and mediation have played a significant role in identifying the persons to be exchanged for, for example, when there were talks on  a deal or a swap, the "black market" that accompany the process was being active, because people were rushing to pay large sums of money often to put their children’s names in the bargain. Besides, kinship and knowledge often played a role in identifying the persons whom must be released. Some names for ordinary civilians were inserted in the lists to cover the names of "others important in the deal", hence, some of the ordinary prisoners were unaware of the exchange process only after their release; they believed that they had been released because of a Presidential Amnesty or something like that.

4.  A series of financial extortion to families of detainees and missing persons accompanied many exchanges; particularly of people who always claimed to be able to release their sons and daughters as soon as inserting their names on the exchange lists. Dozens of cases of fraud against the residents occurred.

5.  Spread of the "culture of swap" between parties to the conflict has led to an increase in the arbitrary abduction and detention of civilians (in advance), in order to swap them later or take them as hostages and gain military, political and financial benefits through pressuring their relatives.

6.  Exact details of most of the exchanges, especially the large, remain unclear, owing to media and political propaganda that usually accompany the exchanges.  When exchanges are promoted as a political victory and interest in the release of civilians, the real gains of parties to the conflict reveal after periods. In many cases, high-rank personalities and military commands found to be included in exchanges, as well as substantial sums of money were paid to the kidnappers, and many names of civilians have been inserted to hide the key people in the swap.

Second: Riskis of Transferring the Case of Detainees, Disappeared and Abductees to Astana without Controls and Building on what was Theoretically Accomplished in Geneva:

• The Astana Talks characterized to be talks between military actors and tend to delve into precise military details in order to stabilize and monitor the ceasefire and establish de-escalation zones-areas.  Arousing the issue of detainees and missing in this framework/context without controls and clear frameworks may reduce the issue of exchanging combatants, especially as the talks are usually confined to the "exchange of combatants or their bodies" and not finding a real solution to a case involving hundreds of thousands of Syrians. The Geneva negotiations constitute an international framework for discussing political transition issues along with a number of other issues, including the issue of detainees/prisoners in accordance with UN and international resolutions, for example, in article 12, Security Council resolution 2254 (2015) called on parties to the conflict to release each arbitrarily detainee, in particular women and children. In its article 11, Security Council resolution 2139 (2014) condemned arbitrary detention and called for the release of detainees, which said:

“Strongly condemns the arbitrary detention and torture of civilians in Syria, notably in prisons and detention facilities, as well as the kidnappings, abductions and forced disappearances, and demands the immediate end of these practices and the release of all arbitrarily detained persons starting with women and children, as well as sick, wounded and elderly people and including UN personnel and journalists”

Security Council resolution 2118 (2013) speaks in annex II on the steps and measures identified by the Security Council to the warring parties to ensure full implementation of the six-point plan, and with regard to the subject of detainees, it says:

  “Intensification of the pace and scale of release of arbitrarily detained persons, including especially vulnerable categories of persons, and persons involved in peaceful political activities; the provision, without delay and through appropriate channels, of a list of all places in which such persons are being detained; the immediate organization of access to such locations; and the provision, through appropriate channels, of prompt responses to all written requests for information, access or release regarding such persons;

 Geneva Communiqué of 30 June 2012 had confirmed the implementation of the steps and measures identified by the parties to secure the full implementation of the six-point plan and both resolutions of the Security Council, including the immediate cessation of violence in all its forms, including the "release of persons arbitrarily detained".

•  STJ, through the declarations and statements that have been circulated since the start of the Astana negotiations on January24, 2017, have noticed an increased use of terms that reverse the essence of the problem of arbitrary detention and enforced disappearance (the missing persons in general) in Syria. Despite International Organizations, United Nations Bodies and local Syrian organizations speak about tens of thousands of detainees, disappeared and kidnapped in Syria, vague and unclear terms are used in the course of talking about those issues in Astana such as (Exchange of detainees – release of captives”, in Military context "exchanging combatants – handing over dead bodies – exchanging hostages… etc).  Sometimes the issue of detainees and abductees in Syria is reduced by only releasing female detainees and children (it is important and necessary to release these categories in any case), but are only being demanded on a basis with tradition, without explicitly mentioning tens of thousands of other cases.

• The lack of clarity and transparency in referring to the issue of detainees and disappeared in Syria in accordance with the international laws applicable in Syria and the failure to mention the parties clearly carry out that, all encourage, in one way or another, the occurrence of arbitrary abductions and detentions of civilians in advance to be exchanged for later.
   

Third: Proposals and Recommednations:

• To the guarantor states of Astana Talks:

 1. To separate the issue of detainees and missing from the military track.

2. If the issue of detainees and missing is included as a basic item in Astana Talks, it must not be reduced to the exchange of combatants with other combatants, or swaps.

3. To secure that Syrian civil society and the families of the victims are involved when talking about the issue of detainees and missing persons.

• To the Syrian government, the Syrian opposition and other armed groups:

1. To the Syrian government:

1. To cease all executions of detainees, especially those brought before summary military courts.

2.  Cessation the transfer of detainees to the summary military court and Counter-Terrorism Court, the abolition of their sentences, and any other court’s sentences that do not observe international standards of fair trial.

3. Not to destroy documents and reports of the forcibly disappeared persons and detainees, ensure that data of all detainees are registered, inform all detainees with the reason of detaining them, periodically, impartially review the motives for their detention and ensure that all detainees have access to the necessary health care.

4. Transfer all detainees to known/recognized places of detention, and allow visits to prisons to the families, the International Committee of the Red Cross and the ad-hoc committees.

5.  To allow the Independent International Commission of Inquiry on Syria to conduct investigations into the violations occurring in Syria.

2. To the Syrian oppositions and other armed groups:

1. The cessation of all abductions, arbitrary arrests and enforced disappearances, and the immediate reveal of the fate of the disappeared.

2.  Submit lists of names of abductees and disappeared to relatives of the disappeared and to relevant international organizations.

3. Register names and data of all detainees and transfer them to known/recognized places of detention.

4. Inform detainees of the reasons for their detention as soon as possible, provide them with access to the outside world, ensure that they have the right to defend themselves, and provide the right to challenge the legality of their detention.

• To the Office of the United Nations Special Envoy (Staffan de Mistura): 

1. To separate the issue of detainees from the political track, that is, to restore the humanitarian character of the case (outside the political negotiations).

2. To provide a periodic briefing to the Security Council on the issue of detainees and missing persons in Syria in isolation from the political negotiating file.

3. To ensure that the issue of detainees and disappeared persons in Syria is prevented from being transferred to the issue of prisoner exchange, hostages and combatants.