BEIRUT: When Heba learned her husband had been detained in a Damascus prison, she frantically tried to track him down.
Requests were made to the military court for information, endless calls were placed to government hospitals to see if anyone matching his description had been brought in and his case was registered with both the Interior Ministry and, as a Palestinian, the PLO.
In desperation, the family even bribed a prison official at the notorious Palestine branch of the intelligence services.
But it was all to no avail. Khaled was dead. A healthy 29-year-old two weeks earlier, his death certificate said he suffered cardiac arrest.
“I was totally lost trying to work out what happened to him. I felt like I was going insane. We have been together for 10 years, and suddenly he’s gone, just like that. He’s gone and I don’t have the right to ask or know anything; what happened, where his body is,” Heba told The Daily Star from the Beirut apartment where she now resides with friends.
“Of course he died under torture. We knew it [the death certificate] was fabricated, but what could we do? We tried to find out where was his body but instead of getting an answer, his father was attacked for asking.”
A Qatari-sponsored report last month plainly shows that Heba is not alone; thousands of Syrians have disappeared in government-run jails. The deaths are often attributed to natural causes and their bodies are rarely recovered. The report said its findings could support cases for war crimes and crimes against humanity to be brought against the Syrian government.
Yet despite the report’s conclusions, in perhaps an indication that planning for criminal prosecutions in Syria is currently wanting, one of its authors told The Daily Star that the legal experts would not be taking the case further.
Although Desmond de Silva said the United Nations Human Rights Council was “aware” of the report, the remit for any specific investigation had ended. “Our function was to interrogate a defector and seek to verify if he was telling the truth. Our mandate ended there,” he said.
While discussing criminal prosecutions in a peacetime Syria may seem perverse as the country’s three-year civil war wages on, experts warn that the future functioning of any Syrian state may be dependent on successful reconciliation. Part of this process will likely require action that seeks to balance the desire for peace with the cries for justice from people like Heba.
Mohammad al-Abdullah, executive director of Syrian Justice and Accountability Center, warns that “the transitional justice process will leave some groups, individuals and actors dissatisfied. The perfect balance that will make everyone happy is not realistic. ... That’s why you need to engage people at an early stage to manage their expectation about the outcome of this process.”
The SJAC is one of a number of organizations working to produce a vast database of alleged crimes committed by hundreds of different groups in every corner of the country. Yet inevitably in a vicious war zone, collecting reliable information is hugely challenging.
One of the key issues is access. The U.N. International Commission of Inquiry into Human Rights Violations in Syria has never been granted entry to the country. As such, organizations such as SJAC and Human Rights Watch have been forced to carry out this role, with smaller budgets and limited access.
Some investigators have been forced to rely on third party sourcing, including a wealth of YouTube videos. The International Center for Transitional Justice monitoring group warns that amateur filmmakers often fail to carry out even basic verification processes such as recording the time, date and exact location of a video.
Meanwhile, pro- and anti-government factions across the country have been waging a huge war of misinformation: altering footage, faking images and in some cases fabricating entire events.
HRW’s Lama Fakih acknowledged that while the documentation process was “difficult,” there were ways to counter distortion.
“Not relying on second-hand information, speaking directly to victims [and] corroborating witness testimony ... are the best ways to ensure we get as close to the truth as possible,” she said.
Even if credible evidence is collected, it’s unclear whether much of it will ever be introduced in trial.
Perhaps the most obvious route to justice would be through the International Criminal Court, based in The Hague.
The Syrian opposition is certainly keen on such a route. Fayez Sara, a member of the opposition-in-exile umbrella group the Syrian National Coalition and whose son died in a Damascus prison last month, said he was hoping for international trials.
“I am counting on the international community to help Syrians find justice through referring these cases [of enforced disappearances] to the International Criminal Court,” Sara told The Daily Star.
Since Syria has not signed up to the remit of the international court, a trial requires a referral from the U.N. Security Council. With Damascus’ staunch ally Russia wielding veto power, such a route looks unlikely in the short term.
“Up to now, Russia, a permanent member of the Security Council, has strongly opposed referring matters in Syria to the ICC. Russia’s veto is sufficient to prevent such a referral,” de Silva said.
The creation of a U.N.-mandated tribunal for Syria, similar to the Special Court for Sierra Leone or the International Criminal Trial for Yugoslavia, is also likely to be rejected by Russia.
In light of such hurdles, some experts are concerned that Syria may follow the path set by Lebanon, which largely avoided criminal prosecutions for political and military leaders following its 15-year civil war. Some 17,000 Lebanese who went missing during the fighting never returned home, nor were their bodies ever recovered. A sweeping amnesty prevented prosecution of the vast majority of war criminals.
“The amnesty [in Lebanon] abolished the ‘deterrence’ aspect of justice and therefore introduced and established the impunity culture, which is very clear in Lebanese daily life. The perpetrators skipped justice, victims were not compensated and there are thousands of forcibly disappeared who their loved ones don’t have any information about,” SJAC’s Abdullah said. “And there is a concern that Syria might end up taking the Lebanese path.”
That idea appears to have little support from the Syrian populace. A report commissioned by SJAC and published last week shows that Syrians across the political and sectarian spectrum do not support amnesties. Instead, they broadly want to see justice through legal channels.
“The past cannot be forgotten. Anyone who committed a crime from both sides should be prosecuted to the fullest extent,” an Alawite woman from Tartous was quoted as saying in the report.
With the sheer number of perpetrators in a conflict as brutal as Syria’s, experts say victims may need to accept that the top brass of Bashar Assad’s regime and the leaders of rebel groups like the Islamic State of Iraq and Greater Syria (ISIS) may never have their day in court. A sustained peace may instead require sacrificing elements of justice in exchange for a robust transition that incorporates Syrians of all political backgrounds and does not fall prey to accusations of victor’s justice.
“Criminal prosecutions alone cannot adequately address a legacy of abuses as extensive as Syria’s,” said Mohamed Abdel Dayem, a senior Middle East associate at ICTJ, urging dialogue on the transition process.
‘Transitional justice measures – including truth-seeking, criminal justice, reparations and institutional reform – are most effective at restoring civic trust and preventing future violence.”
Abdullah also believes truth commissions and compensation may be the most realistic way to provide some closure for victims, without letting the country to slip back into a cycle of tit-for-tat fighting.
“When there is perfect justice, you lose the transition. ... The reality is we cannot imprison hundreds of thousands of people. It would only spark more violence. So options like truth commissions organized within Syria and compensation to the families of the dead is perhaps the best trade-off,” he said.
For Heba, however, justice for the death of her husband can only come through a criminal case.
“We need to know what happened to Khaled. This regime is committing some of the most terrible crimes in human history. ... We won’t remain silent. We want to see them in court,” she said.