Disappearance, Arbitrary Detention, Torture and Execution: e Most Extensive Crimes in Syria. International Visiting Researchers Program Emma Cabrol

Transcription

1 Disappearance, Arbitrary Detention, Torture and Execution: e Most Extensive Crimes in Syria International Visiting Researchers Program Emma Cabrol 21 Dec 2017

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3 HARMOON CENTER FOR CONTEMPORARY STUDIES Harmoon Centre for Contemporary Studies is an independent, nonprofit, research, cultural and media institution. Its main focus is to conduct studies and researches about the Arab region, especially Syria. It also works towards cultural and media development, enhancing the civil society performance, and spreading democratic awareness and values of dialogue, as well as respect for human rights. The Centre also provides consultation and training services in political and media fields to all Syrians on the basis of Syrian national identity. To achieve its objectives, the Centre conducts its activities through five specialized units, (1) Policy Studies Unit, (2) Social Researches Unit, (3) Books Review Unit, (4) Translation and Arabization Unit, and (5) Legal Unit. A set of action programs are also adopted, such as the program for Political Consultations and Initiatives; Program for Services, Media Campaigns, and Public Opinion Making Program; Program for Dialogue Support and Civil and Cultural Development Program; Syria Future Program. The Centre may add new programs depending on the actual needs of Syria and the region. In implementing its programs, the Centre deploys multiple mechanisms, including lectures, workshops, seminars, conferences, training courses, as well as paper and electronic press.

4 Contents TABLE OF ABBREVIATIONS... 2 INTRODUCTION... 3 FIRST: APPLICABLE LAW... 4 A) INTERNATIONAL CRIMINAL LAW... 4 Crimes against Humanity... 4 War Crimes... 4 B) INTERNATIONAL HUMANITARIAN LAW (IHL)... 5 C) INTERNATIONAL HUMAN RIGHTS LAW (IHRL)... 5 D) DOMESTIC LAW... 6 SECOND: ANALYSING EVIDENCE: THE CAESAR PICTURES... 7 THIRD: WAR CRIMES AND CRIMES AGAINST HUMANITY A) FORCIBLE DISAPPEARANCES AND ABDUCTIONS State Actors Non-state Actors B) ARBITRARY DETENTION AND CONDITIONS IN DETENTION State Actors Non-state Actors C) TORTURE State Actors Non-State Actors D) EXTRAJUDICIAL EXECUTIONS State Actors Non-state Actors FORTH: INDIVIDUAL CRIMINAL RESPONSIBILITY WITHIN THE SYRIAN REGIME CONCLUSION

5 Table of Abbreviations Name Syrian Network for Human Rights Human Rights Watch International Criminal Court Geneva Conventions Additional Protocol to the Geneva Conventions United Nations International Humanitarian Law International Human Rights Law UN Human Rights Council Non-Governmental Organisation Abbreviation SNHR HRW ICC GC AP UN IHL IHRL HRC NGO 2

6 Introduction With the world focusing on the war against terrorism in Syria and the possible international acceptance of the continuation of Assad rule, atrocities committed by the Assad regime and other armed groups against the population of Syria seem to have been largely forgotten. These state and non-state armed groups have routinely committed horrendous crimes since the outbreak of the Syrian conflict in 2011 resulting in a horrendous number of civilian casualties. According to the Syrian Network for Human Rights (SNHR), more than have been killed since the beginning of the conflict. (1) Contributing to the immense number of deaths caused by airstrikes, rockets, bombs and other weapons of war, armed groups across the conflict have used other, more illegitimate techniques to kill or otherwise remove their opponents. Such crimes clearly amount to serious war crimes and crimes against humanity. According to Human Rights Watch (HRW), arbitrary detention, torture, inhuman treatment, and forcible disappearances resulting in death continue to be systematic and widespread in Syria. (2) This situation has continued un-redressed for 7 years, and hopes of justice and prosecution appear ever more remote. Therefore, this research will focus on (1) forcible disappearances, (2) arbitrary detention, (3) torture, and (4) unlawful executions committed by the Syrian regime but also by other armed groups and the extent to which these constitute crimes against humanity. This research, although limited by accessible evidence, focuses on crimes committed by the Syrian regime and the non-state armed groups Daesh, Jabhat al-nusra, the Nour al-dine Zinki Movement, Ahrar al-sham Islamic Movement, Division 16, and Al-Shamia Front. The evidence collected by the photographer Caesar will be analysed alongside interview and documentary material, and the issue of individual criminal responsibility within the Syrian regime will be discussed. It will be concluded that presentable evidence suggests that war crimes and crimes against humanity have been committed in Syria, and the onus for the vast majority of the systemized, indeed industrialised, (1) I AM SYRIA. (2017). Death Tolls. [online] Available at: [Accessed 11 Dec. 2017]. (2) Human Rights Watch (2017), Country Summary: Syria, January

7 suffering lies at the feet of the Bashar al-assad regime. While this paper does not bring to light any new evidence, it seeks to collate the available data made available by Non-Governmental Organisations (NGO), the United Nations (UN) and other international organisations dedicated to the pursuit of rights and justice. First: Applicable Law Before an analysis can be conducted regarding whether the practices used by different armed groups are unlawful and whether they amount to war crimes and crimes against humanity, it is customary that legal terminology be defined and applicable law regarding the Syrian conflict be discussed. a) International Criminal Law Crimes against Humanity According to article 7 of the Rome Statute of the International Criminal Court (ICC), a crime against humanity is a widespread and systematic attack against civilian populations and applies when the perpetrators ordered or had knowledge of the attack. This includes crimes such as murder, torture, imprisonment in violation of IHL, enforced disappearance, and other inhumane acts. (3) War Crimes According to article 8 of the Rome Statute of the ICC, war crimes are grave breaches of the Geneva Conventions against protected persons protected by the relevant convention and that are the object of the attack on civilian or enemy combatant personnel or infrastructure for example. This includes crimes such as wilful killings, torture, and inhumane treatment of detainees. (3) Rome Statute (1998), Article 7 4

8 While Syria has not ratified the Rome Statute meaning direct prosecution is not possible, Syria became a signatory party in Consequently, Syria is obliged to refrain from defeating the object and purpose of the treaty and therefore, refrain from committing war crimes and crimes against humanity under any circumstances. (4) b) International Humanitarian Law (IHL) The Syrian conflict, despite having become an international battlefield during its course, remains an internal conflict by definition, characterised largely by opposition groups fighting against the regime and amongst themselves. IHL applies in time of armed of conflicts such as the crisis in Syria and is binding to all parties in an armed conflict, including non-state armed groups. Syria is a state party of the 1949 Geneva Conventions (GC) and ratified the Additional Protocol (AP) I to the conventions. However, Syria has not ratified AP II that applies to noninternational armed conflicts such as the conflict in the country. However, common article 3 to all GC prohibits murder, torture, mutilation, cruel treatments, executions without trial, taking hostages and a litany of other crimes. (5) Therefore, despite Syria not having ratified the Rome Statute and AP II, Syria is legally not allowed to commit crimes against humanity and war crimes since they are prohibited under all the GC, which Syria ratified. c) International Human Rights Law (IHRL) According to the International Court of Justice and the United Nations Human Rights Committee, IHRL applies both during times of peace and during armed conflicts. Syria is a state party to some significant human rights treaties such as the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights (ICCPR) and consequently, is legally bound to the conditions of these treaties. The (4) The Vienna Convention on the Law of Treaties (1969), Article 18, 23 May 1969 (5) Common article 3 to all Geneva Conventions (1949) 5

9 ICCPR strictly prohibits the act of torture for example, even during a state of emergency. (6) Syria is also a party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment (7) and the Arab Charter on Human Rights, that both protect the lives of detainees and declare summary executions, torture, forcible disappearances and other such crimes unlawful. d) Domestic Law Within Syria s own domestic law, both article 1 of the Constitution of the Syrian Arab Republic and article 391(i) of the Syrian Criminal Code prohibit the use of torture. Articles 51 to 53 of the Syrian Constitution also consider arbitrary detention unlawful and guarantee fair legal processes. Therefore, both IHL and IHRL apply to the Syrian conflict and to both state and non-state armed groups. Furthermore, customary IHL also apply to this internal conflict. Moreover, Syrian domestic law also forbids practices such as torture and arbitrary detention without fair trial. This paper will analyse the extent to which state agents and non-state armed groups involved in the Syrian conflict have respected the above mentioned applicable law. (6) International Covenant on Civil and Political Rights, adopted December 16, 1966 GA Res 2200A (XXI), articles 4 and 7 (7) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. res. 39/46 UN Doc A/39/51 (1984) 6

10 Second: Analysing Evidence: the Caesar Pictures Caesar is a code name for a former official military photographer in the Syrian military police who escaped Syria in 2013 and, in the process, smuggled around pictures of bodies of detainees from Syrian prisons in the region of Damascus. Before the images could validated, Caesar was first interviewed in January 2014 by British and American lawyers to ensure his credibility, and his images were analysed by doctors and forensic professionals. (8) The images were taken between May 2011 and August 2013 when Caesar abandoned the Syrian army. The pictures, showing bodies with signs of, for example, torture, emaciation and starvation, were given to the Syrian opposition Syrian National Movement. Members of that movement then created the Syrian Association for Missing and Conscience Detainees to analyse the files and later gave the files to HRW. (9) HRW analysed that out of the total amount of the images, photographs show Syrians that died in the regime s detention centre or military hospitals. HRW identified at least dead persons in these photographs. When being questioned by the US Congress, Caesar explained that the photographs were taken in morgues or in the courtyards of the Military Hospital 601 in Mezze, and Tishreen Military Hospital. This was confirmed by geolocation techniques, satellite imagery, and testimonies of other defectors from the regime army. Caesar explained that he used to be a scene of crime investigator. When the Syrian revolution started in 2011, his job consisted only of photographing dead detainees, a job that by his own admission caused him and the other military photographers deep psychological suffering. Caesar photographed at least 50 dead bodies per day, demonstrating that executions were systematic and widespread. Caesar revealed the location of the executions, suggesting they took place detention centres before the bodies were transferred to the military hospitals to give the illusion that the death occurred of natural causes. After the (8) Carter-Ruck and Co. Solicitors of London (2014), A Report: into the credibility of certain evidence with regard to Torture and Execution of Persons Incarcerated by the current Syrian regime, London (9) Human Rights Watch (2015), If the Dead Could Speak: Mass Deaths and Torture in Syria s Detention Facilities, p.1-3 7

11 pictures were taken in the hospitals, the corpses were transferred in rural areas for mass burial. (10) However, these photographs do not represent the total number of death in the regime s detention centres and military hospitals for this period. According to defectors testimonies, not all bodies were transferred to Mezze s or Tishreen Military Hospital and bodies were also transferred to Harasta hospital for example. Moreover, Caesar was not able to copy all pictures from that period of time before defecting and consequently, these images represent only a small number of the total number of pictures showing dead bodies. (11) These pictures will undoubtedly prove pivotal in the process of achieving justice for the Syrian people, providing clear evidence of crimes committed for future prosecution of perpetrators. Caesar explained his motivations as being for the sake of Syria and the Syrian people so that the killers could be prosecuted to achieve justice. (12) According to Steven Rapp, the former US ambassador-at large for war crimes, the evidence against the Syrian regime including the Caesar photography is the strongest he has never seen. Rapp worked at the Nuremberg tribunal, was the chief prosecutor at the Special Court for Sierra Leone, was a prosecutor at the International Tribunal for Rwanda, and has worked closely with other ad hoc international tribunals. Despite his extensive experience in international justice, he explains that he has never seen such extensive and clear-cut evidence of torture, abduction, execution and other heinous atrocities. He is currently collecting evidence such as the Caesar pictures, and leaked and abandoned documents from the Assad regime to build a case against Assad. (13) (10) Carter-Ruck and Co. Solicitors of London (2014), p.13 (11) Human Rights Watch (2015), p.4 (12) Carter-Ruck and Co. Solicitors of London (2014), p.14 (13) Afshar S. and Cutcher N. (2017), Syria s Disappeared: The Case Against Assad, A documentary about the Syrian regime s detention centres, Afshar Films 8

12 Finally, it is important to point out that these pictures only represent crimes committed by the Syrian regime and not by non-state armed groups. For this reason, the Caesar pictures will be used in this paper as one of the main evidence to prove crimes committed by the Syrian regime. Other evidence such as testimonies or YouTube videos will be used to prove the crimes committed by the non-state actors. 9

13 Third: War Crimes and Crimes Against Humanity a) Forcible Disappearances and Abductions State Actors A considerable number of those detained by the Syrian regime could be described as forced disappearances. According to the SNHR, people have forcibly disappeared since the outbreak of the conflict in The regime is responsible for 9 out of 10 of these disappearances and has a long history of disappearing those who speak out against its rule. (14) According to HRW, these disappearances often are associated with other fundamental rights violations such as torture, inhumane treatments, absence of fair trial, executions and an absence of information regarding the victim. (15) The SNHR has proven that the Assad regime is responsible for abductions, including and women and children with 200,000 currently detained. Government forces principally target family members of defectors, activists, humanitarian workers, opposition members and medical staff who provide aid to opposition groups. (16) According to Amnesty International, enforced disappearances in Syria are widespread, systematic (17) and according to the United Nations Commission of Inquiry for Syria, these attacks against civilians constitute crimes against humanity. (18) The ICC also considers enforced disappearances as crimes against humanity. (19) (14) Syrian Network for Human Rights (2017), Enforced-Disappearances is a Weapon of War in Syria, no less than are Forcibly Disappeared: Where are they?, 30 August 2017 (15) Human Rights Watch (2017). Syria: Talks Should Address Disappeared. [online] Available at: [Accessed 22 Nov. 2017]. (16) Syrian Network for Human Rights (2017), Enforced-Disappearances is a Weapon of War in Syria, no less than are Forcibly Disappeared: Where are they?, 30 August 2017 (17) Amnesty International. (2017). 10s of 1000s - The Evidence. [online] Available at: [Accessed 21 Nov. 2017]. (18) United Nations Commission of Inquiry for Syria (2013), Without a trace: enforced disappearances in Syria, 19 December 2013 (19) ICC Statute, Article 7(1)(i) (cited in Vol. II, Ch. 32, 2372). Article 7(2)(i) (ibid., 2374) 10

14 Indeed, such inhuman practices are illegal, even during wartime. Forcible disappearances are defined by the ICC and the International Convention for the Protection of All Persons from Enforced Disappearances as the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law. (20) It remains obvious that forcible disappearance always violates other fundamental rights. Enforced disappearance, deprivation of liberty, fair trial guarantees and prohibition of murder are provided in Customary International Humanitarian Law and consequently, must be respected at all times in both national and international conflicts. (21) UN Security Council Resolution 2139 severely condemned forced disappearances in Syria and required the release of the Syrians unlawfully detained. (22) However, since the adoption of the resolution in February 2014, no action has been taken to return the victims to their families or provide proof of life. According to the Middle East director of HRW, the issue of disappearances is crucial in political negotiations and to bring justice especially for victims and their families. (23) These crimes also have a detrimental impact on the families of the disappeared and cause severe mental suffering as the fate of their relatives is uncertain. Recently, Syrian women in the UK launched Families for Freedom, a campaign aimed at raising awareness regarding their missing or unlawfully detained relatives in Syria. These courageous women explain for themselves the suffering they experience. Noura explains that her husband "Bassel Khartabil Safadi", a computer programmer and peaceful activist, was kidnapped by regime forces in 2012 and detained. In 2015, his wife and family stopped receiving news from him. Rumours (20) ICC Statute, Article 7(1)(i) (cited in Vol. II, Ch. 32, 2372). Article 7(2)(i) (ibid., 2374); International Convention for the Protection of All Persons from Enforced Disappearance (ICCPED), adopted December 20, 2006, G.A. Res. 61/177, U.N. Doc. A/RES/61/177 (2006), entered into force December 23, 2010, art. 2 (21) ICRC Customary IHL, Rules 89, 98, 99 and 100 (22) UN Security Council Resolution 2139, SC/11292, 22 February 2014, 7116th Meeting (23) Human Rights Watch (2017). Syria: Talks Should Address Disappeared. [online] Available at: [Accessed 22 Nov. 2017]. 11

15 started to spread that he has been executed, however nothing was official. Their worst fears were confirmed two years later when the Syrian regime officially notified Noura of her husband s execution in Noura is one of the thousands of Syrians suffering from this terrible blight. (24) The families and friends of the disappeared are crucial for any legal assessment since they are often the only proof that the individuals were illegally abducted. Non-state Actors When considering non-state armed groups, the SNHR declared that Daesh has kidnapped approximately individuals including 182 women and 204 children. It has also been demonstrated that Jabhat Fatah al-sham, opposition groups and Kurdish forces are responsible for forcible disappearances. (25) More precisely, the SNHR stated that between early 2012 and June 2016, 367 journalists and media activists were kidnapped by armed groups in the governorates of Idleb and Aleppo. These numbers only include the number of cases reported, Amnesty International suspects that the number is far higher, but that people fear reprisals if they report incidents. According to testimonies, forced disappearances are performed mainly by the groups Jabhat al-nusra, Nour al-dine Zinki Movement, Al-Shamia Front and Ahrar al-sham Islamic Movement and the main cause for these abductions seems to be repression of freedom of expression. (26) Another reason for disappearances appears to be ethnic identity since, according to Amnesty International, 25 Kurdish Syrians were taken in Aleppo by the armed group Division 16 between 2012 and (27) Moreover, abductions have been very frequently used by (24) The Syria Campaign. (2017). Listen to the Families For Freedom. [online] Available at: [Accessed 22 Nov. 2017].; They Can t Stop Us. (2017). They killed a champion of Syria and the Internet. [online] Available at: [Accessed 22 Nov. 2017]. (25) Syrian Network for Human Rights (2017), Enforced-Disappearances is a Weapon of War in Syria, no less than are Forcibly Disappeared: Where are they?, 30 August 2017 (26) Amnesty International (2015), Torture was my Punishment : abductions, torture and summary killings under armed group rule in Aleppo and Idleb, Syria, p (27) Amnesty International (2015), p.22 12

16 Daesh, who arbitrarily kidnapped individuals, including children, to bring them to their own secret detention centres where the detainees have no contact with their relatives and do not even know why they were detained. (28) As demonstrated here, forcible disappearances in Syria are crimes against humanity for both the victims and their families. While all parties conduct such practices, the responsibility lies primarily with the Syrian regime. The regime uses forcible disappearances as a weapon of war in a widespread and systematic manner that accounts to war crimes and crimes against humanity. Across the battle lines, abductions and forced disappearances are also widely committed by Daesh and account to war crimes. (28) Amnesty International (2013), Rule of Fear: ISIS Abuses in Detention in Northern Syria, Amnesty International Briefing, MDE 24/063/2013, p.2 13

17 b) Arbitrary Detention and Conditions in Detention State Actors Since the beginning of the revolution in March 2011, tens of thousands of Syrians have been arbitrary arrested and detained in horrible conditions without motive. (29) The regime s intelligence agencies have unlimited de facto authority to arrest, search, interrogate and detain anyone since there is no clear rule concerning the purpose and limits of each intelligence agency. (30) This results in unlawful arbitrary arrest and detention. In 2012, HRW identified at least 27 detention centres in Syria controlled by the regime where a large amount of deaths was reported mainly due to poor detention conditions. (31) According to the SNHR, in individuals died in detention centres controlled by the Syrian regime; (32) HRW argues that the numbers are probably way higher since the majority of the cases go unreported. (33) Testimonies of former detainees and defectors of the Syrian army and the Caesar pictures, prove that in detention centres, most of detainees are subject to torture, starvation, severe beating, inadequate access to health, sanitation, space, ventilation, sexual violations etc. Detainees have no way to contact their relatives, except when they rarely manage to bribe the guards to make phone calls. (34) Moreover, the detainees lack of space and two former jailers explained that they were staying in a common cell of approximately 20 square meters with between 60 and 75 other prisoners. There were so many people in the cells that detainees could only stand and had to take turns to sleep. (35) (29) Human Rights Council: Thirty-first session (2016), Out of Sight, Out of Mind: Deaths in Detention in the Syrian Arab Republic, A/HRC/31/CRP.1, p.2 (30) Human Rights Watch (2015), p.21 (31) Human Rights Watch (2015), p.1 (32) Syrian Network for Human Rights (2015), International Day in Support of Torture Victims: Twelve Thousand Victims of Torture in Syria, 25 June 2015 (33) Human Rights Watch (2015), p.25 (34) Human Rights Watch (2015), p.22 (35) Human Rights Watch (2015), p.24 14

18 "Fahed al-mahmoud", a defected prison guard, revealed that in the prison he was working in, 1000 detainees were held at once and that between 2 and 11 prisoners would die per day due to the inhumane conditions of the detention centre. This suggests that at least 2000 detainees die per year, per regime detention centre. Karim, a former prisoner of another Syrian detention centre, exposes that in his cell an average of 9 detainees died per month. He explains that the cell could hold between 80 and 170 prisoners at once. (36) According to doctors that were detained in these detention centres and a forensic analysis of the Caesar photographs, deaths in regime prisons are mainly caused by gastrointestinal infections, skin disease, torture, severe beating, mental distress leading to the detainee refusing to eat and drink, untreated chronic diseases, and starvation. These conditions are caused by the inhumane conditions in the prisons and denial of appropriate healthcare and sanitation. (37) Thanks to the evidence contained in the Caesar pictures and testimonies, HRW was able to prove the widespread and systematic character, and knowledge of ranking officials of the inhumane treatments and death in the regime s prisons and thus, conclude that the Syrian authorities are responsible for crimes against humanity. Non-state Actors Arbitrary detention in poor conditions is also a tactic used by non-state armed groups. Daesh has been unlawfully detaining individuals on the grounds of not respecting their unofficial Shari a law and behaviour they consider immoral. Conditions in armed groups detention centres are also inhumane and detainees are also subject to severe beating. In 2014, a former Daesh detainee explained that he witnessed a young man being beaten to death with a metal bar. In January 2014, when Daesh was forced from the Qadi Askar neighbourhood of Aleppo, they shot and killed between 40 and 50 prisoners before leaving. (38) (36) Human Rights Watch (2015), p (37) Ibid (38) Human Rights Council: Thirty-first session (2016), p.14 15

19 c) Torture State Actors HRW performed interviews with former detainees from the regime-controlled detention centres and almost all of them had been subject to torture during their time of detention, highlighting the systematic and widespread nature of such abuse. According to reports, the most brutal torture occurs during interrogative sessions, where detainees are forced to confess to crimes they had not committed such as using weapons during anti-regime demonstrations, or they had to provide information regarding the organisers of anti-regime demonstrations. However, former prisoners believe that the primary reason for using torture is to punish and to intimidate the prisoners rather than to obtain information. Torture methods include; Shabeh, suspending the individual by the wrists for extremely long periods of time, whipping with cables, and beating with PVC pipes. Other methods such as the German chair, sitting on a chair with no back and bending backwards against a metal pole until it feels like the back is going to break, and Bsat al-reeh, being immobilised on a flat cross shaped board during beatings (sometimes the board would be folded and dangerously stretch the limbs). Prison guards also use electric shocks, genital clamps, suffocation, severe beatings and Dulab, immobilising a person in a car tyre and severely beating that person. Former detainees revealed that often detainees would die on the spot or shortly after the torture sessions due to severe injuries. Dr. Mamoun, a former detainee explains his nephew died in detention because of intense torture sessions where the guards even set fire to his hands. (39) Considering this evidence, the Syrian regime is clearly culpable for crimes against humanity. (40) (39) Human Rights Watch (2015), p (40) Human Rights Watch (2012), Torture Archipelago: Arbitrary Arrests, Torture, and Enforced Disappearances in Syria s Underground Prisons since March

20 Non-State Actors Although there is considerably more evidence that torture is occurring in the Syrian regime detention centres, torture has been used as a weapon of warfare by other armed groups as well. While torture is performed on a smaller scale by non-state armed groups, it cannot be ignored. In an interview with Amnesty International, Ibrahim revealed that he thought he would be safe in an opposition-held area since he had heard about the government torture techniques. He adds, I was wrong. I was subject to the same torture techniques but at the hands of Jabhat al-nusra. According to Amnesty International, in a case of five kidnappings in Aleppo by armed groups, four of them were subjected to torture and inhumane treatment in either Nour al-dine Zinki Movement s or Jabhat al-nusra s detention facilities. Moreover, in Aleppo and Idleb, armed groups such as Jabhat al-nusra and the Ahrar al- Sham Islamic Movement established strict Shari a courts creating their own quasi-judicial systems within the anti-regime areas. Infractions of Shari a rules can lead to punishment or even summary execution without trial according to testimonies made against the armed groups Jahbat al-nusra, Division 16, and Al-Shamia Front. (41) In general, torture is performed against members of the Syrian regime, pro-government militias, "Daesh" or other rival armed group and suspected spies. However, it has been reported that at least ten journalists and activists have been tortured by non-state armed groups between 2014 and 2015 in the provinces of Idleb and Aleppo. Torture methods include beating with objects, suspending individuals by the wrists for hours, and forcing tied persons into a tyre to beat them. (42) The analysis suggests that armed groups use torture to punish jailers rather than extract information from them. Torture is also a very frequent weapon of war used by "Daesh". Former detainees explain that they were tortured and beaten under interrogation during their period of detention under "Daesh". (43) Torture techniques include, for example, electric shocks, beating with cables, sticks or generator belts. Other methods are used such as remaining in a contorted stress (41) Amnesty International (2015), p. 4-5 (42) Amnesty International (2015), p.24 (43) Amnesty International (2013), p.4 17

21 position for long hours which provokes severe pain and muscular damage. (44) According to testimonies, children also suffered floggings and beatings in Daesh s detention centres. A child of around 13 or 14 years old received 30 to 40 lashes per day after being accused of stealing. (45) Evidence suggests that torture is widespread and systematically used by "Daesh" to punish infidels. "Daesh" was also accused by the UN Human Rights Council (HRC) of the crime of genocide and other crimes against humanity and war crimes against the "Yazidi population" that they transferred from Iraq to Syria. (46) "Daesh" aimed to destroy the Yazidi population by the means of killings, torture, sexual slavery, enslavement, inhumane treatment, and forcible transfer. d) Extrajudicial Executions State Actors Since the outbreak of the Syrian conflict in 2011, thousands of detainees from the regime s prisons have been unlawfully executed. An example of a facility where such crimes occur is the "Saydnaya Military Prison" in Damascus. According to Amnesty International, between and individuals are constantly detained in the facility, with a rotation of persons being executed and new detainees arriving. Between September 2011 and December 2015, between 5000 and individuals were unlawfully killed in Saydnaya. Detainees are still being transferred to Saydnaya prison and therefore, all the evidence lead to believe that the executions are still taking place. Detainees in Saydnaya are inhumanely treated and endure torture, sexual violence and severe beating. Once or twice a week, between 20 and 50 detainees are transferred to a basement to be beaten during two or three hours and are then collectively hanged. The bodies are later buried in mass graves on military land in the area of Damascus. (44) Amnesty International (2013), p.6 (45) Amnesty International (2013), p.10 (46) Human Rights Council: Thirty-Second Session (2016), They came to destroy : ISIS Crimes Against the Yazidis, A/HRC/32/CRP.2, 15 June

22 Before being hanged, detainees, including civilians are condemned in trials lasting between one and three minutes at the Military Court. However, the victims are not aware that they were condemned to death in the trial and are told that they will be executed only minutes before the hanging. According to Amnesty International, the hangings are authorised by the highest officials of the Syrian regime that act on behalf of Assad. These executions are widespread and systematic since thousands of Syrians have been subject to these extrajudicial executions and evidence suggests they occur once or twice a week. Moreover, high ranking officials that act on behalf of Assad s order the unlawful killings and consequently, this suggests that Assad himself has the knowledge that these incidents are occurring. Therefore, these summary killings are considered crimes against humanity according to the standards of international law. Non-state Actors Executions without trial is also a crime committed by non-state armed groups. In 2015 in "Hreitan", a town in the Aleppo district, three men and a young boy of 17 years old were publicly executed by "Jabhat al-nusra" on the accusation of being homosexual. Other testimonies and videos demonstrate that women accused of adultery were also detained and sometimes publicly executed by "al-nusra" in Idleb governorate. (47) Moreover, in September 2015, "al-nusra" kidnapped and executed by gunshots 70 members of the regime military in the Idleb province. (48) Therefore, it is clear that summary murder is a common practice within non-state armed groups, especially "Jabhat al-nusra". The same practice has been used by "Daesh". Detainees, including children, accused of immoral behaviour or being part of enemy groups were often executed after a very short and unlawful trial held by an "Daesh" judge wearing an explosive belt. (49) For example, in 2013, four individuals accused of being members of enemy armed groups, were executed (47) Amnesty International (2015), p (48) Youtube (2015), Execution of soldiers from the Syrian army by Jabhat al-nusra, Available at: (Accessed on 3 December 2017) (49) Amnesty International (2013), p.6 19

23 after summary trials that lasted less than a minute. Often executions took place in public places in al-raqqa governorate. (50) Moreover, in January 2017, "Daesh" targeted and executed 85 civilians and 50 soldiers from the Syrian regime in Deir al-zour. (51) Executions are often extremely brutal, and victims are generally beheaded or sometimes even thrown off a tall building. In 2014, 200 regime soldiers were shot in the desert by "Daesh". Additionally, the Syrian Observatory for Human Rights reported that at least 25 men were executed by "Daesh" for being accused of being homosexuals. In January 2017, a child of 15 years old was stoned to death in Deir al-zour for this reason. "Daesh" often makes the executions public or even records the killings to post them on internet to spread terror. (52) Therefore, the evidence demonstrates that "Jabhat al-nusra" and other armed groups are responsible for war crimes of extrajudicial executions without fair trial. The most notorious non-state armed group, "Daesh", has committed the same crimes but in a more widespread and systematic manner and thus can be held responsible for the crime against humanity of murder. (50) Amnesty International (2013), p (51) Human Rights Watch (2017), Country Summary: Syria, January 2017 (52) Human Rights Council: Thirty-first session (2016), p.15 20

24 Forth: Individual Criminal Responsibility within the Syrian Regime According to most accounts, the most prevalent perpetrator of crimes in Syria is the regime itself. When considering individual criminal responsibility, it is important to analyse the way that hierarchal orders were delivered within the regime to build a picture of who in the government was aware of the crimes being committed. According the Rome Statute, a person is criminally responsible if that person commits, orders, solicits or induces the crime. (53) Moreover, the Rome Statute and customary IHL also state a so-called doctrine of command responsibility which holds officials responsible regardless of rank if they knew or should have known about the crimes and failed to prevent them or to submit the matter for prosecution. (54) Therefore, according to the Rome Statute, officials in charge of detention centres, heads of intelligence agencies, members of the authorities and even the head of state himself can be held responsible for the crimes committed in the detention centres in Syria. (55) Within the Syrian regime, intelligence agencies report immediately to highest officials and these reports directly to Assad. Since 2011, the Syrian Crisis Management Cell, a body created and headed by Assad, that includes the chiefs of each intelligence agency, meets very regularly to discuss issues related to detention and arrest for example. (56) Furthermore, in 2011, Joint Investigating Committees were formed by the regime to coordinate investigations and manage the transfer of detainees across the country. These committees include Security Services, Criminal Police and Military Police. (57) These systems demonstrate that affairs (53) Rome Statue (1998), Article 25 (3) (54) Rome Statute (1998), Article 28; Customary IHL Rules 152 and 153 (55) Rome Statute (1998), Article 27 (56) Borger J., Smuggled Syrian documents enough to indict Bashar al-assad, say investigators, The Guardian, 12 May 2015, Available at: (Accessed on 2 December 2017) (57) Human Rights Council: Thirty-first session (2016), p.10 21

25 relating to arrest and detention have been centralised since 2011 and that the highest officials are aware and controlling what is going on across the country. Moreover, governments have an obligation to account for individuals taken into custody. According to the HRC, failure to do so, where there is evidence that the State was responsible for the detention, creates a presumption of responsibility. (58) Consequently, even when a death in detention cannot be proven, a disappearance is still a failure to protect the right to life of this person. This is even more relevant when disappearances are systematic in the state in question and the authorities have not taken steps to reduce them. (59) Therefore, it is clear that the regime can be held responsible for disappearances and deaths in their detention centres. Finally, due to the extremely high numbers of deaths in the regime s detention centres caused by inhumane prison conditions, the reasons for deaths must certainly be known by the persons in charge of the detention centre as they are also responsible for the disposal of the corpses. Moreover, there is a centralised system collecting deaths of detainees where the security intelligences report to the Military Police, further demonstrating that the number of deaths is widely understood within regime circles. Furthermore, as some families were informed about the death of their relatives in detention, this further demonstrates that members of the Syrian regime must have had knowledge of the crimes or have decided to ignore such information. In both cases, these officials and Assad himself can be held for individually criminally responsible. (58) Human Rights Council: Thirty-first session (2016), p.9 (59) Ibid 22

26 Conclusion This paper attempted to demonstrate that serious war crimes and crimes against humanity have been committed by both state agents and non-state armed groups in Syria and that the evidence available is enough to prove these crimes at future prosecutions. As a result of this analysis, it can be concluded that the Syrian regime has committed numerous crimes violating international and Syrian domestic law. In terms of IHRL, Assad s regime constantly breaches fundamentals concept of IHRL such as the right to life by ordering or failing to prevent killings and unlawful executions, implementing the death penalty without fair trial, and failing to conduct investigations regarding deaths in detention centres. The Syrian authorities are also responsible for other crimes forbidden under IHRL such as torture and inhumane treatments. On the other hand, by using such practice, Assad s regime also breaches IHL by constantly violating common article 3 to all GC. Finally, this paper has demonstrated that executions and death committed by regime forces are occurring at extremely high frequency and since These killings and deaths are happening on such a scale that it involves a significant amount of the regime s police and military resources, and thus the knowledge of the regime, including its highest commanders. Therefore, when considering all the evidence together, it can be concluded that the Syrian regime at the highest levels and even the head of state, are responsible for the crime of extermination, a most serious of crimes against humanity. All such crimes committed that amount to crimes against humanity are also inherently war crimes for which the Syrian regime is responsible. (60) This paper demonstrated that non-state armed groups are also responsible for a high number of crimes. While a plethora of rebel factions commit such crimes, Jabhat al-nusra and other armed groups are most notably responsible for the war crimes of torture, inhumane treatment and murder. Moreover, this research has demonstrated that Daesh has committed these crimes in a more systematic and widespread manner since the beginning of the Syrian conflict and consequently is responsible for war crimes but also for the crimes (60) Human Rights Council: Thirty-First Session (2016), Out of Sight, Out of Mind: Deaths in Detention in the Syrian Arab Republic, A/HRC/31/CRP.1, 3 February 2016, p.1 23

27 against humanity of torture and murder. (61) Additionally, Daesh is responsible for the war crime of abduction and unjust imprisonment. Furthermore, the HRC accused Daesh of being responsible for the crime against humanity of genocide against the Yazidi population. Therefore, now that Daesh has lost control over its abortive caliphate, and those foreign and local fighters who have committed such acts of public barbarism are being forced into the desert, the time for justice has come. It is imperative that the international community fulfil its obligations to the Syrian people, finding and arresting these war criminals who have inflicted such injustice. In terms of Daesh, the time of redress is at hand. However, the case against the Syrian regime will be infinitely more difficult to prosecute. The evidence suggests then, that despite repeated denials by the regime and their Russian allies, life in Syria remains characterised by the threat of torture, disappearance and other atrocities. While the world is focused on images of civilian suffering in Syria s gutted cities, in the cold, dank cells of places like Saydnaya, inhumane suffering continues unabated. The Syrian regime has gone to great lengths to hide these wretched places from the eyes of justice and accountability, yet the evidence is there for all to see. These crimes against humanity must not go unpunished. While justice in the near future is unlikely, indeed, impossible, it is vital that governments, NGOs and other concerned with the pursuit of redress continue to document these war crimes and crimes against humanity, and continue their tireless advocacy for the victims. History has a long memory, and if past cases provide precedent, the cause of justice and accountability in Syria is not in vain. (61) Amnesty International (2013), p.18 24

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