The recent unsealing of a civil lawsuit filed in the United States against the Syrian Arab Republic for widespread and systematic torture in its detention centers has provided some Syrian survivors a sliver of hope to combat the protracted era of impunity for alleged atrocity crimes committed by the Assad regime in Syria since 2011. Thus far, accountability for war crimes including the deliberate targeting of hospitals and civilian areas, use of chemical weapons, widespread and systematic practice of enforced disappearances, extrajudicial killings, sexual and gender-based violence, torture and other forms of ill-treatment amounting to crimes against humanity, have taken place in piecemeal and extraterritorially.
The U.S. civil case was filed under the Foreign Sovereign Immunities Act, a federal law that permits a U.S. citizen to sue, in a U.S. court, a foreign government designated as a state-sponsor of terrorism for personal injury or death caused by torture or other unlawful conduct. The named plaintiff in the complaint, Syrian-American Obada Mzaik was detained and tortured by officers from the Air Force Intelligence Directorate at the Mezzeh Military Airport in January 2012. He is seeking compensatory and punitive damages for harms arising from the regime’s acts of torture.
Amid the current growing tide to normalize relations with Assad across the region without holding alleged rights violators to account, the extraterritorial efforts for accountability are now, more than ever, crucial to amplifying survivor-led justice in the international and regional fora.
Ineffective domestic remedies for victims of torture
On a domestic level, impunity for human rights violations including torture, summary executions, and other forms of state-sanctioned violence has been the defining feature of the Assad family’s rule. The regime unilaterally centralized its authority over the people under the 1963 State of Emergency Law without providing adequate safeguards to protect victims from government abuses. Under the leadership of Bashar al-Assad, the Syrian regime has expanded its system of repression to quell anti-government dissent—particularly following the 2011 public demonstrations. Relying on the state’s intelligence apparatus the regime targeted perceived political opponents with arbitrary arrests and detention, torture, and a brutal military campaign with rampant bombardment on civilian areas including the use of barrel bombs and chemical weapons. Pathways for Syrian victims seeking accountability for violations committed by the regime are confined to a domestic legal framework that does not criminalize atrocity crimes and a government system that lacks checks and balances—whereby excessive interference from the executive branch usurps traditional functions of the judicial and legislative arms of government.
Immunity from prosecution for members of the state security apparatus was initially guaranteed by Decree No. 14 of 1969 and institutionalized by subsequent decrees. While Law No. 1965 and Decree No. 109 of 1968 established military courts and authorized the prosecution of civilians in military tribunals, due process and fair trial rights—including right to access counsel and prepare an adequate defense, right to be free from torture and arbitrary detention—were further limited by the Counterterrorism Act of 2012 and Law No. 22 of 2012 (Establishing the Counterterrorism Court). The counterterrorism courts created under Bashar al-Assad operate in an extrajudicial system—where torture and inhumane treatment of detainees by state security officers are institutionalized practices and legally unfounded death sentences are frequently issued against civilians processed in trials marred by legal and institutional ineptitudes.
Although the parliament is vested with law-making powers […], the president’s broad and unchecked decision-making authority in effect overrides legislative priorities set by the parliamentarians and extends with undue influence over the judiciary as well
Although the parliament is vested with law-making powers according to Articles 55, 74, and 75 of the Syrian Constitution, the president’s broad and unchecked decision-making authority in effect overrides legislative priorities set by the parliamentarians and extends with undue influence over the judiciary as well. The majority of legislation in Syria is issued by executive decree, which is not subject to review by the Supreme Constitutional Court (SCC). Furthermore, Law No. 7 of 2014 restricts the ability for lawyers to challenge the constitutionality of certain legislation that adversely impacts the rights of Syrian citizens. Syrian individuals cannot directly petition the SCC nor can ordinary courts transfer cases challenging the constitutionality of some laws directly to the SCC.
The SCC is effectively an organ of the executive branch given the exclusive nomination powers vested in the President. Judges are often hand-picked by the executive based on political alliances and allegiances. The lack of oversight for judicial appointments precludes any prospect of an independent and impartial Syrian judiciary to administer justice—let alone one to hold government perpetrators accountable for gross rights violations.
The executive’s arbitrary and unilateral infringement into other branches of government has tainted Syria’s legislative framework by immunizing state actors from accountability for rights violations whilst failing to create legal pathways for victims seeking redress for grievances inflicted at the hands of government officials. According to the findings of the UN Commission of Inquiry on Syria, the Syrian regime has repeatedly failed to investigate alleged crimes committed in its detention facilities and continues to withhold information on those arbitrarily detained or forcibly disappeared. The ill-treatment of those detained across Syria—including the use of at least 72 torture techniques—amount to crimes against humanity given the widespread and systematized state practice.
Critics derided the regime’s orchestrated ruse of fictitious reform given the lack of procedural and substantive legal safeguards protecting victims’ rights to redress past harms
Although Article 53 of the Syrian Constitution prohibits the use of torture and Article 391 of Syria’s Penal Code criminalizes the use of excessive violence to obtain a coerced confession during interrogations, the domestic legal framework does not define specific acts that amount to torture nor provide safeguards for victims to hold government officials complicit in perpetrating torture, accountable. Rather, exceptions guaranteeing immunity for state security officials under national legislation including—Article 16 of Decree No. 14 of 1969, Article 47 of Decree No. 549 of 1969, Law No. 69 of 2008 (expanding immunity for political and police officers)—remain in effect; torture has never been prosecuted as a standalone criminal offense. One might perceive the recent passing of the Anti-Torture Act on March 30, 2022 as a welcome—albeit overdue—step for the Assad government to domesticate its international legal obligations to prohibit and prosecute acts of torture without exception. However, critics derided the regime’s orchestrated ruse of fictitious reform given the lack of procedural and substantive legal safeguards protecting victims’ rights to redress past harms as required under the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), to which Syria is a state party. For the same year in which Syria’s anti-torture legislation went into effect, rights groups documented over 2,200 cases of arbitrary arrests and detention amid continued regime-led military assaults across civilian areas. Meanwhile, this past May, rights groups recorded the year’s highest number of arbitrary arrests and detention in one month, with at least 226 documented cases.
The concept of effectuating justice for Syrian victims of torture and other government abuses is far from being a lived reality as alleged war criminals continue to evade accountability by garnering an unsubstantiated sense of legitimacy through ineffective legal reforms.
After more than a decade of near global and regional isolation, Assad was welcomed back into the Arab League on May 19, 2023. Nevertheless, stakeholders including Syrian victims’ groups that have successfully pushed the UN General Assembly to establish an international mechanism to investigate the fate of the forcibly disappeared and detained in Syria, recognize the lack of internal pathways for accountability, and continue to challenge ongoing impunity for regime-perpetrated crimes through extraterritorial means.
Despite the grim reality of the lack of domestic judicial remedies in Syria, the first-ever lawsuit filed in the U.S. for torture against Bashar al-Assad’s government is currently underway; while U.S. federal agents have also been investigating top Syrian officials for complicity in potential war crimes. Other foreign national efforts to hold architects of the regime’s torture and detention apparatus accountable for rights violations include the recent judicial decision from the Paris Criminal Court ordering Ali Mamlouk, Jamil Hassan, and Abdel Salam Mahmoud to trial; in addition to dozens of cases filed in foreign courts implicating the Assad regime of torture among other egregious rights violations. On the global front, the Netherlands and Canada officially lodged a complaint before the International Court of Justice against the Syrian government alleging countless violations to international law under UNCAT. It remains to be seen how accountability efforts in foreign and international courts will intersect with state policies shifting toward normalization with Assad.
Meroua Zouai is the Legal Associate at TIMEP.
This analysis was originally published as a feature piece in Issue 2 of the Rule of Law Developments in the Middle East and North Africa newsletter, produced by Konrad-Adenauer-Stiftung Rule of Law Programme Middle East & North Africa and TIMEP.