By: Lilian Srour, Junior Research Associate, PILPG-NL
Over the past decade, documentation has shown that the Syrian regime has employed a systematic strategy that oppresses its citizens through the widespread use of torture perpetrated by state authorities. Many have condemned these practices, including United Nations (UN) mechanisms, such as the Security Council and the Committee Against Torture (Committee), urging Syria to cease such practices. More recently, Canada and the Netherlands have jointly announced their intentions to hold Syria to account for its human rights violations.
Nonetheless, Syria has recently issued Law No.16 criminalizing acts of torture. Seeing that Syria is party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), this short piece takes a closer look at whether this law is in line with the provisions of the CAT, particularly Article 14 which requires that victims of torture and cruel, inhuman, degrading treatment obtain redress.
The Prohibition of Torture and the Right to Redress
The Committee has explained that in line with Article 14 CAT the term “redress” entails both the concepts of “effective remedy” and “reparation.” The reparative concept outlined by the Committee refers to the full scope of measures required to address violations of the CAT. In its General Comment No. 3, the Committee also underlines that the implementation and enforcement of Article 14 CAT is highly important to ensure the effective prohibition of torture. It clarified that, for states parties to be considered to provide redress in line with the provisions of the CAT, their obligations are two-fold: procedural and substantive. To fulfil their procedural obligations, states shall enact laws and establish investigation bodies, complaints mechanisms, and independent judicial bodies competent to ensure redress for torture victims. At the substantive level, states must ensure that victims obtain restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition.
Keeping with the Committee’s General Comment, states parties are to ensure that all victims of torture or ill-treatment, regardless of when the violation occurred or whether it was carried out by a former government, have access to their rights to remedy and to effectively obtain redress. Furthermore, the Committee explicitly reinforces the absolute notion of the prohibition of torture by reiterating that under no circumstances may arguments relating to national security be relied on to deny redress for victims.
Moreover, the Committee also clarifies that states are required to investigate and criminally prosecute allegations related to acts of torture, and to refrain from interfering with proceedings regarding torture allegations. To do otherwise would constitute a denial of redress and thus a violation of a state’s obligations under Article 14 CAT.
The Syrian Law
Law No. 16 (2022) criminalizes torture by imposing a sentence of at least three years in prison. Aggravating circumstances, such as death through torture, or torture through rape, may allow for the imposition of the death penalty. It further outlines that state authorities cannot order the infliction of torture on anyone, and that evidence collected through torture is to be considered void.
Whilst the criminalization of torture can be seen as in improvement, the Syrian law falls short in many regards in relation to the provisions of the CAT, particularly Article 14 CAT. Firstly, the Syrian law does not establish any independent mechanism for the oversight and enforcement of the law and its implementation. Secondly, there is legislation in force which provides immunities for employees of the State Security Department for crimes committed whilst carrying out their duties, such as Article 16 of Legislative Decree No.14 (1969). Thirdly, in line with Syria’s Penal Code, criminal laws do not apply retroactively. If this would be the case for this legislation, this would leave many individuals tortured before this date no option of redress.
The proper enforcement and implementation of Article 14 CAT ensures for the effective prohibition of torture. As the law stands currently, victims of torture, particularly those of the last decade, do not appear to have access to effective remedies and reparations. Furthermore, the lack of independent mechanisms for the oversight and enforcement of the law, as well as the legislation in place that provides for immunities, leave Syria in arrears of the procedural and substantive obligations encompassed under the CAT and Article 14.
Conclusion
The Committee has previously clarified in its General Comments that specific impediments to the right to redress and the proper implementation of Article 14 include, but are not limited to, inadequate national legislation, state secrecy laws, statutes of limitations, amnesties, and immunities. In the case of Syria, several of these factors challenge the full respect and enforcement of the CAT’s provisions, especially in relation to redress for victims. Thus, whilst the promulgation of a law criminalizing torture is a step in the right direction, this should not overshadow the remaining gaps that need to be addressed, in relation to the proportionality of punishments imposed (i.e. death penalty), enforcement of the prohibition of torture, and redress for victims. It remains to be seen how and whether this law will be enforced, and how its shortcomings will be addressed.