Interview conducted by Nizar Saghieh and Lynn Ayyoub

 

On 29 June 2023, the UN General Assembly adopted a resolution establishing an independent UN institution for uncovering the fate of missing persons in Syria. The resolution was adopted by an 83-state majority, with 11 states voting against it and 62 abstaining. The countries in favor of the resolution emphasized the gravity of forced disappearance, which is considered a crime against humanity. The countries that opposed it or abstained from voting cited the dangers of politicizing this issue, the cost, the negative impact on the Syrian people, and the ambiguity of the institution’s proposed work mechanism. The resolution put to vote merely declared that the institution must be established, leaving it to the UN secretary-general, in cooperation with the Office of the United Nations High Commissioner for Human Rights (OHCHR), to develop the institution’s statute, the means for appointing its members, and the terms governing its work. Except for Kuwait and Qatar, which voted for the resolution, all Arab states abstained. Historically, the peoples of the Arab region, including victims of oppression, have often suffered rather than benefited from foreign intervention justified under the pretext of upholding human rights.

 

The Legal Agenda interviewed two people who labored, from different positions, to achieve this resolution: Yasmen Almashan, who is a founding member and the officer of communication and coordination in the Caesar Families Association (i.e. families that recognized one of their members in leaked photos of torture in the Syrian regime’s prisons), and Habib Nassar, director of policy and research at Impunity Watch. (Editor)

 

Legal Agenda (LA): Thank you both for agreeing to speak with us. To begin with, can you introduce yourselves and the role you played in achieving the UN General Assembly resolution? Also, please specify the rights-based, humanitarian, and personal (where present) motives that prompted you to become involved in this issue.

 

Yasmen Almashan: I am a founding member of the Caesar Families Association, and I am currently in charge of communication and coordination therein. As an association, we also work intensively within the Truth and Justice Charter group, which includes nine other associations of families of victims, missing persons, and forcibly disappeared persons and survivors. On a personal level, I lost five of my six brothers in Syria under various circumstances. The first brother I lost to a sniper during the anti-regime protests in early 2012. The second brother was arrested in March 2012 and forcibly disappeared. It turned out that he was in one of the regime’s detention centers and had been tortured – he was identified in the photos leaked by [the military defector codenamed] “Caesar”. The third and fourth brothers I lost in October 2012 to a sniper. The fifth brother was abducted by ISIS after it entered Deir ez-Zor in mid-2014, and we know nothing about him since then. Subsequently, in 2015, we left Syria because we couldn’t stand any more losses and went to Turkey. There, I discovered my brother Oqba’s picture among the “Caesar photos”.

 

LA: That’s tragic. Can you give more details about the Charter group and what distinguishes your association from the other associations?

 

Almashan: Regarding the Caesar Families Association, it comprises victims’ families who identified their children in the photos leaked by Caesar. They partook in the association’s establishment or joined later. The association was established in February 2018 and officially registered in Berlin in 2019. As for the Truth and Justice Charter group, it consists of associations of families of victims of forced disappearance, arbitrary detention, and abduction. The associations differ from one another based on the type of violation committed against the [family] members, the party responsible, the location where it occurred, or even the location or nationality of the association’s members. Initially, five associations established the Truth and Justice Charter:

 

• The Caesar Families Association.
• The Association of Detainees and Missing in Sednaya Prison. They are themselves survivors of this prison and have taken it upon themselves to document the violations therein. Human-rights reports describe the prison as a “human slaughterhouse”.
• The Coalition of Families of Persons Kidnapped by ISIS – Da’esh (MASSAR).
• Families for Freedom, which is a movement exclusively comprising women who suffered the forced disappearance of loved ones, be they fathers, children, husbands, or siblings.
• Ta’afi, which comprises men and women who survived detention.

 

Later, several other associations joined the Truth and Justice Charter group as part of an effort among all victims’ associations to engage in collective action. They include the Adra Detainees Association, which comprises people who left Adra Prison and families with members believed to be hidden there, and Synergy, which comprises conflict victims in north and northeastern Syria, most of them Kurds. The General Union of Internees and Detainees and the organization Release Me, which deals with women who survived detention and rehabilitation, also joined. So did Families for Truth and Justice, which comprises relatives of disappeared people located in Turkey.

 

Of course, there are many other violations. However, it is still possible for other associations to join. They include the Yazidi association, which comprises forced disappearance victims of Iraqi descent, and the association of Palestinians in Syria, which has approximately 5,000 members.

 

Hence – as I mentioned – we share, as associations, a unified framework encompassing forced disappearance and our vision of justice, its forms, and the importance we place in uncovering the truth.

 

Habib Nassar: We at Impunity Watch are convinced, particularly in the Syrian context but also generally in all the contexts in which we work, that the victims are the ones who should lead any movement or action for justice or to achieve their rights to redress and justice. Based on this approach, we have strived to provide the various forms of support that the victims need – technical support, consultation, easier access to decision-makers, and material support for victims, including the families of disappeared and detained persons and survivors of detention and forced disappearance – to help them organize and establish groups and associations at their will and behest.

 

Within this framework, the Charter group asked us to provide support regarding how to achieve the families’ right to know their loved ones’ fates. There was an agreement to develop a specific plan within the Charter – which includes a broader vision – focusing on the right to know the truth. This was the beginning of the work that led to the recent UN General Assembly resolution.

 

LA: Before we talk about the long road that led to the resolution, can we talk a little about the issue of forced disappearance victims in and of itself? In short, what do we know, and what remains unknown or unclear? And what reports do you consider to be the best for comprehending this issue, especially in light of the differing estimates of the number of forcibly disappeared persons in the publicly available reports?

 

Almashan: It is well known that the tactic of forced disappearance did not begin with the revolution (2011). Rather, it traces back to the beginnings of the regime in Syria. It was used as a tool to eliminate and get rid of the regime’s opponents. When the events of the 1980s began, as many government opponents as possible were gotten rid of. My father was arrested in the 1980s, and although that was for a short period (six months), he was forcibly disappeared. Likewise, my uncle was arrested in the 1990s for four and a half years, and one of my brothers was arrested twice before the revolution – he too was forcibly disappeared. At the beginning of the Syrian revolution, as soon as the first signs of a movement appeared, the regime resorted to using forced disappearance extensively. It arrested thousands of opponents, even directly eliminating many of them inside the detention centers. It also created new detention centers, going as far as to allocate stadiums, centers, and schools for this purpose. Recently, we discovered many massacres committed by the regime against disappeared people, including the Tadamon massacre, via leaked videos proving that its systematic methods of retaliation and repression included getting rid of civilians. Enforced disappearance and the methodology it uses has been confirmed in multiple courts, including Germany’s Koblenz Court, which established that the regime employs the methodology of enforced disappearance, murder, and torture.

 

As for credible reports on forced disappearances, I think that the report by the Syrian Network for Human Rights is the most “accurate” in the sense that the network methodically documented the cases it observed. However, that does not mean that it was able to identify all cases. Many families have been unable to report their members’ disappearances because they can’t access documentation centers or the entire family has been disappeared.

 

Nassar: I agree with what Yasmen said about the Syrian Network for Human Rights being the best party to have systematically monitored and documented disappearances. This is the report that most international organizations adopt. It estimates the number of people to have gone missing in Syria from 2011 onward to be 100,000. This estimate is the lower range for forced disappearances as it includes [only] the cases that the network was able to observe and document. It includes forced disappearances by the Syrian regime as well as by armed groups, the most famous being the cases of Razan Zaitouneh and her companions in Douma. Also important is the work done by the Association of Detainees and Missing in Sednaya Prison, which focused on forced disappearances in that prison.

 

LA: In the past years, there has been talk about forcibly disappeared people being declared dead by authorities. Have you or any other parties documented these practices?

 

Almashan: The Syrian Network for Human Rights has documented these cases. I believe that the number of declarations is approximately 2,000. In our view, this is an attempt by the regime to circumvent the issue of forcibly disappeared persons in response to the families’ demands that it be addressed. When some families of disappeared persons discovered by chance that their loved ones had been declared dead upon viewing their personal status records, a commotion erupted among relatives of missing persons. They rushed to government departments, and many found that death had indeed been declared.

 

Besides the cases in which the regime declared people dead, some families [themselves] declared their forcibly disappeared children dead to overcome legal obstacles created by their disappearance, e.g. to obtain compensation or resolve inheritance issues. Note that some did this using illegal means because of legal obstacles preventing them from [using the normal channels].

 

Nassar: Clearly, there is a will among the Syrian authorities to resolve and close the issue of missing persons by declaring them dead. The regime began issuing death certificates approximately five years ago, without making any official announcement. I’m not certain about the number of certificates that have been issued in this regard.

 

LA: When did the choice to go to the UN General Assembly emerge? Was this move a strategy that existed from the beginning of your work on the issue, or did you reach it after several other pathways or attempts failed?

 

Almashan: We are talking here about a struggle that has continued for approximately four years. In reality, our path began even before the Charter was formed. As families (three associations), we were raising the issue of missing, detained, and forcibly disappeared persons on the sidelines of the Human Rights Council and many international forums. All these meetings produced no solutions – as the regime was unresponsive – or practical reaction beyond sympathy. We felt like we were being slaughtered every time we told our stories without achieving any result. Amidst these experiences, the idea of the Charter was born because of the need for a clear vision, clear demands, and a clear plan. The idea evolved, with assistance from Impunity Watch, until it became a reality and the Charter was established. We all agreed that the right to know is the first step toward justice. Then, during the discussions about the Charter, the idea of preparing a study on establishing an institution for uncovering fates was raised. The study would examine the mechanisms existing around the world and similar international contexts, including the Cypriot mechanism, the International Commission on Missing Persons (ICMP) established by various countries, and the International Committee of the Red Cross. This study made three proposals:

 

• That this institution be established by a group of countries.
• That the institution arise from a Security Council resolution.
• Going to the UN General Assembly.

 

Going to the General Assembly was the best possible option once the other two had been ruled out. The Security Council is constantly blocked by the Russian-Chinese veto. As for the first option, i.e. a mechanism established by a group of countries, we considered the fact that the ICMP already exists. It is unable to achieve results because the mandate given to it does not allow it to enter Syrian territory without the Syrian regime’s consent. It also specializes in searching for mass graves, whereas we are searching for people we hope are still alive. Hence, we went to the General Assembly because, to us, it was the option with the best chance of establishing a UN body that can sustain the issue and might manage – even if only after some time – to penetrate the Syrian interior and access the detention centers.

 

Nassar: Here, I would like to add a response to your question about other pathways. Before we took the General Assembly path, there were several attempts, albeit not collective ones, by – for example – other groups or families seeking assistance from states. Some even went directly to the Syrian authorities to obtain information. There was also the Astana process (Russia, Iran, and Turkey), which examined issues that included the detainees issue. However, in reality, this process produced only an exchange of prisoners of war between the regime and the factions. Hence, it did not address the largest component of this humanitarian catastrophe, namely the disappearance of ordinary civilians, activists, and others.

 

Subsequently, the international approach emerged, because the national approach is unrealistic under the present circumstances and because the existing international tools, such as the ICMP, had produced no tangible results – not to mention the fragmentation resulting from the fact that multiple parties were handling the matter. For example, the Independent International Commission of Inquiry on the Syrian Arab Republic (IICI Syria) was documenting violations without conducting searches. As for the International Impartial and Independent Mechanism for Syria (IIIM), which assembles files on crimes against humanity and war crimes in Syria, it also documents the crime of forced disappearance with the goal of accountability. But in the Syrian context, there was no party specialized in searching for the truth.

 

In reality, we realize that the independent institution will, as its work progresses, face the obstacle of the difficulty of accessing Syrian territory as the regime will probably not cooperate with it. However, the idea behind establishing it was to make the international community shoulder its responsibilities in this matter, to make the missing persons issue sustainable by having the institution exist within the UN, and to have the institution provide centralization whereby all victims can resort to it. At the very least, if some settlement of the Syrian issue, normalization, or peace agreement occurs, the existence of this institution will ensure that the issue will not be closed at the expense of the families, detainees, and forcibly disappeared persons.

 

LA: Returning to the resolution, the first things we notice are the use of the term “missing” and not “forcibly disappeared” and the absence of any mention of the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED) from its preamble. Does this mean that the resolution tries to focus the institution’s work on determining the fates of missing persons and supporting the victims, and spare it from having to level accusations of crimes perhaps most accurately classified – because of their systematicity – as war crimes and crimes against humanity? Does it mean that the humanitarian approach was intentionally put before the accountability-based approach, or was it a tactical choice to increase the institution’s chances of fulfilling its mission, or was it a compromise to obtain the votes of as many states as possible?

 

Almashan: It was indeed a tactical decision to win as many votes as possible in the General Assembly and promote the issue such that the approach becomes a purely humanitarian one not subject to any political settlements or manipulation in one form or another. From another angle, two mechanisms for accountability [already] exist, namely the IICI Syria and the IIIM (whose mission is to collect files on war crimes and crimes against humanity in Syria). Hence, we deemed that the choice of an institution concerned with [both] uncovering fates and accountability would meet stiff opposition. But [our] choice certainly does not mean that we are dispensing with accountability. We studied deeply the effect that the existence of an institution for uncovering fates would have on the existing accountability mechanisms and confirmed that it would not remove any pathway for accountability. Rather, the institution will work in parallel with the accountability mechanisms, especially given the absence of any international charter or any law forfeiting the right to accountability.

 

As for the use of the term “missing” instead of “forcibly disappeared”, the former includes victims of forced disappearance as well as all other categories of missing persons, such as migrants lost at sea and people who went missing during bombings or the earthquake (of February 2023). There is also a debate about whether the ICPPED’s definition of forcibly disappeared persons includes people who were disappeared by armed organizations and groups not linked to the regime. Hence, the term “missing” was used in order not to exclude any category of missing persons.

 

Nassar: During the debates preceding the vote among member states on this resolution, it became evident that adopting the humanitarian approach would attract more votes. Given the international context today, the resolution to establish the independent institution obtained [only] 83 votes, while the resolution to establish the IIIM had won 95 votes. The difference in votes is related not to the missing persons issue in and of itself but, firstly, to the international context following the war in Ukraine and, secondly, to the Arab states’ process of normalization with Syria. Many Arab states that had voted to establish the IIIM (before normalization) abstained from voting on the establishment of the independent institution.

 

True, some articles criticized the absence of any mention of the ICPPED, including an article published by Working Group on Enforced or Involuntary Disappearances member Grażyna Baranowska. She argued that ignoring the convention means ignoring the obligations that it imposes on the states. However, this criticism is rebutted by the fact that the Syrian state has not ratified the ICPPED to begin with and that its obligations in the context of forced disappearance stem not from this convention but from the Geneva Convention, which addresses the subject of missing persons in general. In the face of these criticisms, many statements in support of the resolution were issued before it went to the vote. They include a statement issued via the Special Procedures of the Human Rights Council and a letter sent by 102 international and Syrian civil society organizations, including Amnesty International and Human Rights Watch.

 

It is also certain that nothing in the resolution establishing the international institution prevents accountability. Today, there are institutions that Yasmen mentioned, particularly the IIIM, whose powers include the mandate to assemble a file on forced disappearance as a crime against humanity. Besides the international mechanisms that we mentioned, cases have been filed before national courts, the most famous being the Koblenz Court, which the Truth and Justice Charter group attended. Regarding the Charter, which is the principal document, it clearly does not adopt the humanitarian approach at the expense of accountability, but there is an order of priorities, the first being the right to know the truth. Hence, the associations deemed that it would be beneficial to separate the pathways from one another to increase their chances of success.

 

LA: From another angle, we noticed that the resolution focuses, in its preamble and its substance, on adopting an approach centered on the victims and survivors. What does this approach involve? What does it mean in practice?

 

Nassar: This means that the victims have a pivotal role in establishing this institution and defining its terms of reference. It also means that no work to guarantee the rights of the victims can be conducted in isolation from them. For example, if a grave belonging to a certain person is exhumed, that person’s family must be informed or invited to attend in order to ensure their rights. This is the aspect related to individual cases. As for the aspect related to influence over the institution’s policies, the victims have the right to voice opinions on them. And there is a third aspect to this approach: the need to communicate with the community of victims more comprehensively and not just the participants or activists in the associations, to support victims’ efforts to present requests and information to the institution, and to familiarize victims with their rights.

 

Almashan: I will add a fourth dimension of the victim-central approach: enabling survivors and victims who are relatives of missing persons to monitor and evaluate the institution’s work. This allows us to prevent the body from slipping into UN bureaucracy and to counter any kind of politicization or manipulation by the regime.

 

LA: Does this approach mean that the associations will have members representing them in the institution itself?

 

Almashan: The resolution stipulates structural participation from the victims. We are trying to determine the best form for this involvement. Can it be provided via a consultative committee, or via micro committees within the structure of the institution? Of course, it won’t come in the form of employees, lest we end up back at UN bureaucracy.

 

LA: We noticed that the resolution does not define any time period for missing person cases. Rather, its preamble only mentions 12 years of “conflict and violence in the Syrian Arab Republic”. How should we interpret that? Does it enable victims of forced disappearance before 2011 or their relatives to demand that they be included in the institution’s terms of reference?

 

Almashan: The time frame was not defined in the resolution but may be defined in the terms of reference developed by the secretary-general. We stress the need to focus on people who went missing after 2011 because of the likelihood that they are still alive, but we also stress the need to account for earlier missing person cases. Suppose a mass grave is discovered and a body from before 2011 is exhumed – what do we do? Re-bury the body? From this perspective, restricting the timeframe to 2011 and beyond is problematic, and this must therefore be remedied in the institution’s terms of reference.

 

Nassar: The resolution did not define any time frame, which means that the institution’s purview includes people who went missing before 2011 too. This can be specified, or not specified, in the terms of reference such that all missing persons are included, even people who may go missing in the future after the institution is established. Of course, the practices and crimes following 2011 are difficult to separate from the practices preceding that year, especially as the party responsible for the vast majority of missing person cases – i.e. the regime – is the same.

 

LA: Some states (including Lebanon and several other Arab states) justified their refusal to approve the resolution on the basis that it does not clearly define the institution’s terms of reference, instead leaving it up to the UN secretary-general to do so within 80 days. What might these states fear from the non-definition of the terms of reference? What are the main matters that could prove contentious or controversial when it comes to defining these terms of reference? The resolution also states that the secretary-general must develop these terms in consultation with the parties concerned. Are you or any of these parties being contacted to this end?

 

Nassar: The secretary-general tasked the OHCHR with conducting the consultations needed to reach a first draft of the terms of reference. Several organizations and associations from Syrian civil society will participate in these consultations, and written contributions will be allowed. As for some states’ argument that the terms of reference are unclear, my response is that the institution’s basic competencies – namely to determine the fate of missing persons and support the families and survivors – are clear. Of course, the functions will become clearer when the terms of reference are developed, and the member states can voice their opinion in this regard. But if these states are concerned that the emergence of the institution will obstruct the process of normalization with the Syrian regime, that’s another matter not related to the resolution’s content or what it includes or doesn’t include.

 

Almashan: Regarding Nassar’s last point, we anticipated that most Arab states would abstain from voting after the normalization with the Syrian regime began. The abstaining states presented unconvincing and inadequate justifications, completely ignoring the human dimensions of forced disappearances.

 

LA: Did you try to contact the ambassadors of these states?

 

Almashan: We tried to contact many of them, including Saudi Arabia, Egypt, Jordan, and Morocco, and were rejected or – in most cases – received no response. As for Lebanon, we honestly did not try to contact it as we know that the Lebanese authorities do not take stances against the Syrian regime.

 

LA: What matters could prove contentious or controversial when it comes to defining the institution’s terms of reference?

 

Almashan: The OHCHR has begun communicating with us, as we previously mentioned, and we have contacted many civil society organizations. In general, there are no fundamental points of disagreement among us, save perhaps for the concern about the form of the institution’s leadership or that the people participating in this leadership will not work full time. In other words, we want to ensure that the institution is effective and productive and that its leadership is strong and capable of convincing states to cooperate with it.

 

Nassar: On my part, I don’t envision serious disagreements. But of course, there will be different perspectives regarding the administration of this institution and the way that victims and survivors participate in its work. I also estimate that some Syrian associations will raise questions about the link between this institution’s work and accountability processes.

 

LA: This institution is set to be the only independent UN institution for determining the fates of missing persons. All other institutions (including the Lebanese one) are national institutions. How is it possible to capitalize on the existence of this institution and the tools and capabilities that may be available to it in order to improve the performance of the independent national institutions?

 

Nassar: It is, of course, the first international institution of its kind. However, I must mention the existence of the Cypriot committee, which is semi-international as it has a national component and an international component and its president is appointed by the UN secretary-general. While the national institutions will hopefully benefit from the establishment and performance of the international institution, I envision that this institution will also draw on the national experiences. Given the scant chance of the regime cooperating with the institution, at least during the initial period, and the difficulty it will face in entering Syrian territory, it will have to invent its own methods of research. It might draw on the experiences of national institutions, such as the Columbian national institution, especially in the realm of victim participation. Later, the UN institution can provide the national institutions with the expertise and training they may need.

 

Here, I will mention something just as important as communication and experience-sharing among the various institutions: communication and experience-sharing among the victims’ associations. In particular, the Syrian associations communicated with the National Commission for the Missing and Forcibly Disappeared and the Committee of the Families of Kidnapped and Disappeared in Lebanon before establishing the Charter group. Wadad Halwani [founder of the aforementioned committee] participated in many activities with the Syrian organizations in order to present the path she took, her expertise, and her experience. She spoke about the importance of a coalition among the committees and associations of missing persons’ relatives – a coalition without which the aforementioned National Commission would never have been created in Lebanon.

 

Almashan: I think that our experiences and the experiences of forced disappearance victims [in other countries] benefit from one another. After the UN General Assembly resolution was issued, we received letters of congratulation and solidarity from Mexican associations and many Arab countries, particularly Algeria and Lebanon.

 

LA: Thank you very much. The discussion was very beneficial thanks to your thorough and generous answers. On our part, we are committed to following the developments regarding this issue in the hope that what is right will for once prevail over political machinations, which often have fatal ends.

 

This interview is an edited translation from Arabic.