Syria’s future constitution must protect the missing and their families while ensuring the crimes that caused this crisis are never repeated.
An estimated 100,000 people are missing in Syria, an issue which will have serious social and political consequences for decades to come. Two years since the Syrian Constitutional Committee was established by the UN, the constitutional process remains stalled on largely procedural matters. Whether the talks will succeed is yet to be seen but work should begin now on a constitution that provides the necessary institutional guarantees and legal protections for Syrians and, importantly, the rights of the missing and disappeared. Any future constitution must include protections and mechanisms to address the rights of the missing and their families. Constitutional provisions must also ensure the non-repetition of the crimes of enforced disappearance by criminalizing such actions and providing the basic framework to support the rule of law and separation of powers.
The Policy Coordination Group for Syria’s Missing and Disappeared (PCG) is a Syrian-led initiative on the missing and disappeared, facilitated by the International Commission on Missing Persons (ICMP). It is comprised of 27 members including representatives of Syrian family associations, families of the missing, civil society organizations (CSOs), human rights defenders, as well as international advisers. The PCG recently issued a paper on constitutional principles that should be included in a future constitution to ensure that survivors’ rights in respect to missing and disappeared persons are met.[i]
In developing constitutional principles, the PCG consulted with both Syrian and non-Syrian constitutional and transitional justice experts, reviewed relevant research, publications and international instruments, and examined Syria’s previous and current constitutions. It also conducted consultations with Syrian family associations, victims’ groups and CSOs.
Syria’s constitutional history
Neither Syria’s current constitution nor its legislation provides sufficient guarantees for the missing and their families. From Syria’s first constitution in 1920 to the present, constitutional provisions of rights and guarantees have been disparate, expanding or contracting depending on the political system in power. The 1950 constitution, for example, was drafted by a democratically-established Constituent Assembly. It prohibited arbitrary detention and included the right to be informed in writing of the reasons for one’s arrest within 24 hours and to be presented before a judge within 48 hours.
While weaker in ensuring the separation of powers and rule of law than the 1950 constitution, the 1973 and 2012 constitutions, developed under Ba’ath Party rule, contain some similar guarantees which were subsequently undermined by legislative decrees. In the 2012 constitution, for example, Article 53 stipulates that ‘no one may be investigated or arrested, except under an order or decision issued by the competent judicial power’ and provides that any person arrested must be informed of the reasons for their arrest as well as their rights. Despite these constitutional protections, legislative decrees allowing for the forcible disappearance of individuals, a prolonged state of emergency lasting nearly half a century and autocratic rule have restricted constitutional freedoms and rights. The current Syrian constitution does not provide the full gamut of protections that should be afforded to the missing and their families.
The stakes are high
Syria’s future constitution must not only provide the rights to life and dignity, but should also explicitly include the right to effective, official investigations of disappearances and missing persons as well as the right to a public and fair trial. In addition, there should be unambiguous protections against enforced disappearance, torture and the use of military courts for civilian matters – including the prosecution of juveniles – which lack basic due process guarantees. Given the history and sheer number of Syria’s missing and disappeared, its constitution either within its body or as part of an annex or schedule should include intermediary transitional justice provisions and bodies to determine the fate of the tens of thousands of missing, including the establishment of a missing persons commission, as well as accountability measures for families of the missing, including just compensation.
Syria’s missing persons crisis has been caused by its underlying political structure over the past six decades so any future constitution should include provisions to safeguard against the enactment of bodies and laws that infringe on constitutional rights. This includes, for example, the establishment of an independent and impartial constitutional court to review the constitutionality of laws and ensure they do not restrict or undermine constitutional guarantees. In addition, the constitution should clearly articulate a separation of powers between the executive, legislative and judicial branches, which is essential to preclude future autocratic rule.
The issue of missing persons has had a huge impact on women. It is more often men who go missing, often leaving women unable to inherit, gain child custody or seek a divorce. The constitution should therefore ensure full gender equality in all rights and non-discrimination on the basis of any protected status, including sex, religion and political conviction. It should also provide basic freedoms so that persons are not disappeared for protected rights, such as peaceful assembly, political opinion and expression.
While redrafting the Syrian constitution will not resolve the decade-long conflict rooted in a history of dictatorship and human rights abuses, a strong constitution that provides both guarantees and protections for the missing and their families will be an essential pillar for any future state based on the rule of law. Any future constitution must address the plight of the missing and include guarantees to ensure the crimes that caused this crisis are never repeated. If it falls short, Syria will remain in turmoil.
[i] The PCG has also issued an ethical charter on data collection and documentation of Syria’s missing and has submitted a report on the Syrian missing persons issue to the UN’s Universal Periodic Review (UPR).