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Derechos | Equipo Nizkor
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Derechos | Equipo Nizkor
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15Aug12
Report of the Independent International Commission of Inquiry on the Syrian Arab Republic *
United Nations
General AssemblyA/HRC/21/50
Distr.: General
15 August 2012
Original: EnglishHuman Rights Council
Twenty-first session
Agenda item 4
Human rights situations that require the Council's attention
Contents
A. Political background
B. Military situation
C. Socioeconomic and humanitarian situationA. Casualties
B. Special inquiry into Al-Houla
C. Unlawful killing
D. Arbitrary detention and enforced disappearance
E. Torture and other forms of ill-treatment
F. Indiscriminate attacks
G. Sexual violence
H. Violations of children's rights
I. Attacks on protected persons and objects
J. Pillaging and destruction of propertyA. State responsibility
B. Responsibility of anti-Government armed groups
C. Individual responsibility
D. Command responsibilityV. Conclusions and recommendations
I. Correspondence with the Government of the Syrian Arab Republic
II. Applicable law
III. Military situation in the Syrian Arab Republic
IV. Special inquiry into Al-Houla
V. Unlawful killing
VI. Indiscriminate attacks
VII. Arbitrary detention and enforced disappearances
VIII. Torture and other forms of ill-treatment
IX. Sexual violence
X. Violation of children's rights
XI. Pillaging and destruction of property
XII. Map of the Syrian Arab Republic
Summary
The situation of human rights in the Syrian Arab Republic has deteriorated significantly since 15 February 2012. Armed violence increased in intensity and spread to new areas. Active hostilities raged between Government forces (and the Shabbiha) and anti-Government armed groups. Sporadic clashes between the armed actors evolved into continuous combat, involving more brutal tactics and new military capabilities on both sides. The level of armed violence varied throughout the country.
During the reporting period, the commission of inquiry determined that the intensity and duration of the conflict, combined with the increased organizational capabilities of anti-Government armed groups, had met the legal threshold for a non-international armed conflict. The commission therefore applied both international humanitarian law and international human rights law in its assessment of the actions of the parties to the hostilities.
The commission found reasonable grounds to believe that Government forces and the Shabbiha had committed the crimes against humanity of murder and of torture, war crimes and gross violations of international human rights law and international humanitarian law, including unlawful killing, torture, arbitrary arrest and detention, sexual violence, indiscriminate attack, pillaging and destruction of property. The commission found that Government forces and Shabbiha members were responsible for the killings in Al-Houla.
The commission confirms its previous finding that violations were committed pursuant to State policy. Large-scale operations conducted in different governorates, their similar modus operandi, their complexity and integrated military-security apparatus indicate the involvement at the highest levels of the armed and security forces and the Government. The Shabbiha were identified as perpetrators of many of the crimes described in the present report. Although the nature, composition and hierarchy of the Shabbiha remains unclear, credible information led to the conclusion that they acted in concert with Government forces.
The commission found reasonable grounds to believe that war crimes, including murder, extrajudicial execution and torture, had been perpetrated by organized anti-Government armed groups. Although not a party to the Geneva Conventions, these groups must abide by the principles of international humanitarian law. The violations and abuses committed by anti-Government armed groups did not reach the gravity, frequency and scale of those committed by Government forces and the Shabbiha.
Both groups violated the rights of children.
The commission is unaware of efforts meeting international standards made by either the Government or anti-Government armed groups to prevent or punish the crimes documented in the present report.
The lack of access significantly hampered the commission's ability to fulfil its mandate. Its access to Government officials and to members of the armed and security forces was negligible. Importantly, victims and witnesses inside the country could not be interviewed in person.
A confidential list of individuals and units believed to be responsible for crimes against humanity, breaches of international humanitarian law and gross human rights violations will be submitted to the United Nations High Commissioner for Human Rights at the close of the commission's current mandate, in September 2012.
The commission reiterates that the best solution is a negotiated settlement involving an inclusive and meaningful dialogue among all parties, leading to a political transition that reflects the legitimate aspirations of all segments of Syrian society, including ethnic and religious minorities.
1. The present report is submitted pursuant to Human Rights Council resolution 19/22 of 23 March 2012, in which the Council extended the mandate of the independent international commission of inquiry on the Syrian Arab Republic established by the Council in its resolution S-17/1 of 22 August 2011.
2. In the present report, the commission |1| sets out its findings based on investigations conducted up until 20 July 2012. The report builds upon the commission's periodic updates released on 16 April and 24 May 2012, as well as the oral update presented by the commission to the Human Rights Council on 27 June 2012 (A/HRC/20/CRP.1). It also updates the findings of the commission's special inquiry into the events in Al-Houla, mandated by the Council in its resolution S-19/1 of 1 June 2012.
3. The present report should be read in conjunction with the commission's previous reports (A/HRC/S-17/2/Add.1 and A/HRC/19/69) with regard to the interpretation of its mandate and working methods, as well as its factual and legal findings concerning the events in the Syrian Arab Republic between March 2011 and 15 February 2012.
4. The commission faced a number of challenges. It was given a broad mandate -- geographically, temporally and materially -- to investigate all allegations of human rights violations committed in the country since March 2011. This meant conducting investigations in the context of a rapidly changing situation, which evolved into armed conflict.
5. Lack of physical access to the country also significantly hampered the commission's ability to fulfil its mandate. In particular, its access to Government officials and to members of the armed and security forces was negligible. Importantly, victims and witnesses inside the country, especially those allegedly abused by anti-Government armed groups, could not be interviewed in person.
6. The commission filed repeated requests to visit the country, including through notes verbales and letters dated 2 and 16 April, 1, 10 and 29 May, and 22 June 2012 (annex I), and meetings with the Permanent Representative of the Syrian Arab Republic in Geneva on 26 and 30 April and 18 and 21 June 2012. These efforts enabled the Chairperson to visit Damascus from 23 to 25 June to discuss with the authorities the commission's work, including the Al-Houla investigation. Details of the visit were reported by the commission in its oral update (A/HRC/20/CRP.1). The Government has yet to allow for in situ investigation by the commission.
7. During the commission's mandate, the Government shared a number of documents, including reports of investigations conducted by national authorities, as well as lists of casualties. Such information is reflected in the present report, where relevant.
8. The commission sought to adapt its methodology in view of the above challenges. While continuing efforts to reflect violations and abuses of human rights, irrespective of the alleged perpetrator, the commission focused on the most serious allegations. It was mindful of the protection of victims and witnesses, concerns that lie at the heart of the methodology of human rights investigations.
9. Owing to the lack of access to the Syrian Arab Republic, the commission continued to deploy to the region to collect first-hand accounts from those who had left the country. Starting on 15 February, the commission conducted 693 interviews in the field and from Geneva, including by Skype and telephone with victims and witnesses inside the country. This brought the total number of interviews conducted by the commission to 1,062 since its establishment in September 2011.
10. The commission also examined photographs, video recordings, satellite imagery and additional material, such as forensic and medical records. It continued to review reports from Government and non-governmental (both international and Syrian opposition) sources, academic analyses, media accounts (including Syrian news outlets), as well as United Nations reports, including from human rights bodies and mechanisms.
11. The commission applied the standard of proof used in previous reports, namely "reasonable grounds to believe". The commission relied mainly on first-hand accounts to corroborate incidents.
12. In its previous reports, the commission did not apply international humanitarian law. During the present reporting period, the commission determined that the intensity and duration of the conflict, combined with the increased organizational capabilities of anti-Government armed groups, had met the legal threshold for a non-international armed conflict. With this determination, the commission applied international humanitarian law in its assessment of the actions of the parties during hostilities. (See also annex II.)
13. The commission continued its engagement with representatives of Member States, United Nations bodies and other international and regional organizations. The commission is grateful to all those who cooperated with it in the fulfilment of its mandate, first and foremost the victims of and witnesses to human rights violations and abuses.
14. Efforts to find a solution to the crisis in the Syrian Arab Republic continued throughout the reporting period. The Government launched several political and governance reforms, while the United Nations and the League of Arab States appointed a joint special envoy, Kofi Annan, on 23 February 2012. These efforts brought little progress, given the escalating violence and the significant deterioration in the situation on the ground.
15. The reform initiatives included a referendum on a new Constitution, held on 26 February 2012, parliamentary elections, held on 7 May, and the appointment of a new Government, on 23 June. These events were opportunities for introducing political pluralism and a democratic political process. They were not, however, viewed as inclusive enough to satisfy the growing dissident movement within the country or the exiled opposition.
16. President Bashar Al Assad did not succeed in engaging the opposition in a meaningful dialogue. The elections were boycotted by the opposition, and their outcome preserved the supremacy of the Baath party in Parliament as well as in the new Government, thus failing to bring emerging political forces into governance institutions. This development further antagonized segments of the population and opposition groups.
17. The efforts of the international community channelled through the joint special envoy resulted in the presentation of a six-point plan on 10 March 2012. The plan outlined steps to bring about a cessation of violence by all parties and a commitment to a political process. The ceasefire came into effect on 12 April, followed by the deployment by the Security Council of the United Nations Supervision Mission in the Syrian Arab Republic (UNSMIS) on 21 April for an initial period of 90 days to monitor the plan's implementation. The arrival of UNSMIS observers had an initial positive impact on the ground, and levels of violence decreased in April. Thereafter, however, military operations intensified to such a level that, by 15 June, UNSMIS had to suspend its activities temporarily. On 20 July, the mandate of UNSMIS was extended for a final period of 30 days. Further renewal was conditional on the cessation of the use of heavy weapons and a reduction in violence by all sides.
18. Opposition groups represented in the Syrian National Council refused to engage with President Assad, calling for him to leave power. Both the Syrian National Council and the Free Syrian Army (FSA) accepted the six-point plan, including the ceasefire. In March, an agreement was signed by the Council and the FSA to cooperate on channelling funds to the FSA via a liaison office within the Council; it was not implemented, however, and each group continued to operate independently.
19. Positions varied in the international community on how to deal with the conflict. Some States demanded the immediate departure of the President; others focused on preventing any form of outside intervention. Others continued to provide military supplies to the Government. Still others called for funding, and provided communication and material support to anti-Government armed groups. The alleged presence of foreign advisers was also a point of contention among States, as was the use of sanctions. The uncertain international context undermined the efforts of the joint special envoy to achieve a political solution to the conflict.
20. On 30 June 2012, the joint special envoy convened a meeting of an action group consisting of the United Nations, the League of Arab States and the European Union, as well as countries with an influence over the parties to the conflict, including the five Permanent Members of the Security Council. In a communiqué, the Action Group renewed a commitment to the six-point plan and set out principles and guidelines for a Syrian-led political transition. Opposition groups criticized the proposed transition for leaving the door open for President Assad to be part of a transitional Government. In a meeting held in Cairo on 2 and 3 July under the auspices of the League of Arab States, the Syrian opposition issued a common vision of a political transition and a national pact establishing justice, democracy and pluralism as the constitutional foundations of the future Syria. However, they were unable to agree on the election of a body that would represent them at the international level.
B. Military situation |2|
21. During the reporting period, the security situation deteriorated significantly, with armed violence increasing in intensity and spreading to new areas. Active hostilities increased between Government forces (and pro-Government militia) and anti-Government armed groups. Sporadic clashes between the armed actors evolved into continuous combat, involving more brutal tactics and new military capabilities on both sides. Levels of armed violence varied throughout the country.
22. The Government increasingly deployed its troops and heavy equipment in operations against areas perceived to be supporting opposition groups. All army divisions and security services engaged in military operations. Typically, such operations began with the cordoning off of a targeted area with checkpoints, then shelling as a prelude to incursions by ground forces to dislodge insurgents and their supporters. Shelling was also used in the context of direct clashes and in operations to quell demonstrations. Air assets also fired on fighters and unarmed demonstrators in localities under the influence of armed groups.
23. Government forces directed their main efforts towards the control of major cities such as Damascus, Aleppo, Homs and Hama. Attacks on areas allegedly infiltrated by anti-Government armed groups had the unintended effect of increasing the support of local populations for those groups. During many operations, large numbers of fighters and civilians were killed.
24. Pro-Government militia, including Shabbiha, reportedly acted alongside Government forces in security and military operations. Their precise nature, strength and relationship with the Government remains unclear.
25. The army faced increased attrition in personnel and equipment owing to combat operations, defections and casualties. Defections affected the troops psychologically, fuelling a crisis of confidence within the ranks and encouraging further defections. The Government also had difficulties in drafting new recruits, as many of those called up for mandatory military service refused to report.
26. Anti-Government armed groups expanded their activities throughout the country, clashing with Government forces on multiple fronts simultaneously. At the time of writing, they were involved in sustained armed confrontations inside the capital, while establishing sanctuaries throughout the rest of the country. Accounts indicated that there were foreign fighters in the ranks of some armed groups.
27. The FSA took measures to address the apparent deficiencies in its overall effective command structure. In some governorates, the FSA created local military councils that claimed leadership over groups fighting in those areas. Many groups claimed affiliation with the FSA, while other groups are emerging without a pronounced affiliation with it.
28. Anti-Government armed groups engaged with the Government forces through direct clashes, ambushes and raids. While investigations did not confirm the use of more sophisticated weaponry by anti-Government armed groups, their access to and capacity to effectively use available weapons improved. They appeared to have access to increased funding and logistical support.
29. The commission noted the increased and effective use of improvised explosive devices against the convoys, patrols and facilities of Government forces. They were also used to target members of military and security forces and Government officials.
30. Several radical Islamic armed groups have emerged in the country. The most important is the Al-Nusrah Front for the People of the Levant, a group allegedly linked with Al-Qaida, which claimed responsibility for several attacks, including suicide bombings against Government forces and senior officials.
31. There are also self-defence groups in several localities. Some of these groups emerged in villages populated by allegedly pro-Government minorities.
C. Socioeconomic and humanitarian situation
32. The crisis precipitated a rapid decline in the State's economy. It has exacerbated pre-existing levels of poverty and unemployment driven by a decade-long drought in rural agricultural areas, which led to the displacement of farmers to cities, and growing resentment against those who were, or appeared to be, enjoying the economic benefits distributed by the Government. According to the International Monetary Fund, the economy of the Syrian Arab Republic will contract significantly in 2012, primarily because of sanctions. The sharp drop in economic growth has been accompanied by alarming indicators, such as the devaluation of the Syrian pound, which has lost 30 per cent of its value since the onset of events, and inflation that soared to over 50 per cent. |3|
33. The militarization of the conflict deepened the humanitarian crisis. Thousands of Syrians have been internally displaced or have fled to neighboring countries. At the time of writing, the United Nations High Commissioner for Refugees (UNHCR) estimated that 1.5 million people had been internally displaced. The Syrian population is increasingly turning to the Syrian Arab Red Crescent, the World Food Programme and other organizations for help. |4| By July, there were 114,208 Syrians registered as refugees, receiving assistance in four neighbouring countries (42,682 in Turkey, 34,050 in Jordan, 29,986 in Lebanon and 7,490 in Iraq). |5| Refugees inside the Syrian Arab Republic, including some 500,000 Palestinians and more than 103,000 registered Iraqi refugees, |6| are also affected by the situation. UNCHR reported that more than 13,000 Iraqi refugees left the Syrian Arab Republic in the first half of 2012, most returning to Iraq. |7|
34. On 16 July, the commission received information from the Government of the Syrian Arab Republic stating that it had been subjected "to more than 60 packages of illegal unilateral coercive sanctions by the United States of America, the European Union, the League of Arab States, Turkey, Switzerland, Canada, Australia, Japan and others". In the Government's view, these sanctions, which target economic, financial and agricultural life in the country, amount to collective punishment against the Syrian people. The Government particularly deplored the sanctions imposed on the import of oil products, including domestic gas and fuel oil, which severely affected the livelihood of ordinary Syrians. The negative consequences of sanctions, including those on public and private banking systems, oil exports and the import of medical supplies, were also denounced.
35. Accounts from interviewees demonstrated that entire communities are suffering from a lack of food, fuel, water, electricity and medical supplies. Shortages are especially acute in areas such as Homs, Idlib, Dar'a and Hama. People forced by the hostilities to leave their homes are in urgent need of shelter. According to the Office for the Coordination of Humanitarian Affairs, the number of people in urgent need of assistance has risen sharply, from an estimated 1 to 1.5 million people, |8| and continues to rise steadily.
36. The fourth meeting of the Syrian Humanitarian Forum, held on 16 July 2012, concluded that the deteriorating humanitarian situation was a matter of grave concern to the international community. The security situation has hindered the capacity of aid workers to assist the population in need. The two humanitarian assistance appeals for refugees in neighboring countries and the internally displaced persons and others in need inside the Syrian Arab Republic are only funded to 20 per cent. |9|
37. While the commission focused on most serious violations of human rights, it wishes to note the overall deteriorating human rights situation. In addition to the right to life and the right to liberty and personal security, other fundamental human rights continue to be violated. Increased violence has further restricted the freedoms of expression, association and peaceful assembly, which had initially sparked the March 2011 uprising. The Syrian population is generally deprived of basic economic, social and cultural rights. As it noted in previous reports, the commission remains gravely concerned at the prevailing climate of impunity for violations of human rights law.
38. Information provided by the Government indicates that, as at 9 July 2012, 7,928 people, including Government forces and civilians, had been killed as a result of the unrest.
39. Other entities, in particular Syrian non-governmental organizations and opposition groups, including local coordinating committees, the Centre for Documentation of Violations in Syria, the Syrian Network for Human Rights and the Syrian Observatory for Human Rights, are also counting casualties by employing a variety of methods. The numbers they report range from 17,000 to 22,000. The commission was unable to confirm these figures.
40. The commission recorded numerous casualties resulting from incidents across the country. It reports the deaths only of those persons about which it has first-hand information through interviews conducted by its investigators. In the commission's figures, no distinction is made between civilians and fighters. Injured persons are not included. The commission, through interviews of victims and witnesses of events from 15 February to 20 July, confirmed 840 deaths.
B. Special inquiry into Al-Houla
41. The commission delivered its preliminary findings (A/HRC/20/CRP.1) to the Human Rights Council on 27 June 2012, based on evidence gathered up until 22 June. In its report, the commission concluded that the Government was responsible for the deaths of civilians as a result of shelling the Al-Houla area and, particularly, Taldou village. It also found that the Government's investigation fell short of international human rights standards. With regard to the deliberate killing of civilians, the commission was unable to determine the identity of the perpetrators. Nevertheless, it considered that forces loyal to the Government were likely to have been responsible for many of the deaths.
42. Access to the country was not granted despite specific requests addressed to the Government in a note verbale dated 4 June 2012 (annex I) and in person by the chairperson during his visit to Damascus on 24 and 25 June. The Government has not delivered a final report on its own inquiry, nor has it indicated when the report might be forthcoming.
43. The commission conducted eight additional interviews, including with six witnesses from the Taldou area, two of whom were survivors. It examined other materials, including video recordings and satellite imagery. It also reviewed analyses from other sources.
44. Forty-seven interviews from various sources were considered by the commission. Interviews were consistent in their depiction of events and their description of the perpetrators as Government forces and Shabbiha. Apart from the two witnesses in the Government report, no other account supported the Government's version of events. The commission carefully reviewed the two witnesses' testimony as set out in that report, and judged their accounts as unreliable owing to a number of inconsistencies (see also annex IV). Accounts of other witnesses interviewed by different investigators remained consistent, including those collected from children, despite the fact that they were conducted over an extended period of time.
45. In its oral update to the Human Rights Council, the commission determined that anti-Government armed groups, Government forces and Shabbiha could have had access to the two crime scenes: the first, the seven Abdulrazzak family homes on Saad Road (Tariq Al-Sad) and the second, the two Al-Sayed family homes on Main Street (Al-Shar'i Al-Raisi), across from the National Hospital. |10| The commission has since determined that the checkpoint at Al-Qaws, which is closest to the Al-Sayed house on Main Street, remained in Government control on the day of the incident. The front line between the opposition and Government forces was north of the checkpoint. The commission, therefore, concluded that it was highly unlikely that an anti-Government armed group would have had access to the Al-Sayed family house on the day of the killings.
46. Regarding the Abdulrazzak site, where more than 60 people were killed, the commission considered that a large number of perpetrators would have been required to carry out the crime. The commission found, through satellite imagery and corroborated accounts, that the movement of vehicles or weapons, as well as the size of the group, would have been easily detectable by Government forces stationed at the Water Authority position. The commission therefore believes that access to the scene was not possible for any sizeable anti-Government armed group.
47. The National Hospital had been occupied by the army for several months when the incidents took place. Although it was accessible by foot from both crime scenes, no one -- whether injured or fleeing the crime scenes -- sought refuge there for treatment or protection. As far as the commission could determine, all the injured and their relatives, as well as people from nearby houses, fled to opposition-controlled areas. None of the injured sought medical attention in the National Hospital. The Government report depicted the loyalties of the Al-Sayed family as pro-Government, but surviving family members fled to opposition-controlled areas of Taldou, choosing not to seek assistance from nearby Government forces.
48. The commission remains of the view that the Government has failed in its legal obligation to investigate the murders in Al-Houla of 25 May 2012.
49. On the basis of available evidence, the commission concluded that the elements of the war crime of murder have been met. The killing of multiple civilians, including women and children, was deliberate and connected to the ongoing armed conflict. There are reasonable grounds to believe that the perpetrators of the crime, at both the Abdulrazzak and Al-Sayed family locations, were Government forces and Shabbiha members.
50. There are also reasonable grounds to believe that these acts were part of a series of attacks directed against civilians, and as such, formed part of the conclusion (see section C below) that crimes against humanity were perpetrated by the Government and Shabbiha.
C. Unlawful killing |11|
51. Cases of attacks on civilians, murder and extrajudicial executions rose sharply during the reporting period. The commission conducted some 300 interviews as it investigated incidents alleging the unlawful killing of civilians and hors de combat fighters. The incidents that occurred in the contexts described below were corroborated by multiple accounts. |12| While both parties to the conflict perpetrated unlawful killings, the gravity, frequency and scale of the violations committed by Government forces and Shabbiha was, according to information available, well in excess of those committed by anti-Government armed groups.
1. Government forces and Shabbiha
52. Most unlawful killings occurred in the context of attacks against the strongholds of anti-Government armed groups. According to the most prominent pattern, attacks began with a blockade of the area and shelling, |13| followed by an assault by ground forces, including special forces and Shabbiha. Snipers were used extensively. |14| On securing the area, Government forces undertook house-to-house searches. Defectors, activists and fighting-age men were systematically sought out during these operations. Wounded or captured anti-Government fighters were executed. In some cases, family members of fighters, defectors and activists, as well as others who appeared to have been randomly selected, were also executed.
53. This pattern was recorded in, inter alia, Tremseh, Al Qubeir, Al-Houla, Kili, Tal Rifat, Taftanaz, Sarmin, Ain Larouz, Atarib, Abdita, Homs and Al Qusayr.
54. Excessive force continued to be used against demonstrators exercising their right to peaceful protest in Al Qamishli in March, and in Damascus, Aleppo and Jabal Al Zawiya in April.
55. The commission finds that the cases of unlawful killing described in the present report provide reasonable grounds to believe that the Government forces and Shabbiha violated provisions of international human rights law protecting the right to life. Furthermore, many of the same killings met the elements of the war crime of murder under international criminal law. |15|
56. Attacks were frequently directed against civilians and civilian objects. Although the Government's stated aim was to attack "terrorists", the attacks were directed at neighbourhoods, towns and regions with civilian populations (see annex VI). The commission therefore concludes that there are reasonable grounds to believe that the war crime of attacking civilians was perpetrated in many instances.
57. There are also reasonable grounds to believe that the documented incidents constituted the crime against humanity of murder. In towns and villages where there was a pattern of blockade, shelling, ground assault and house-to-house searches, the conditions for a widespread or systematic attack against a predominately civilian population were met. The scale of the attacks, their repetitive nature, the level of excessive force consistently used, the indiscriminate nature of the shelling and the coordinated nature of the attacks led the commission to conclude that they had been conducted pursuant to State policy.
2. Anti-Government armed groups
58. Despite its limited access to victims of anti-Government armed groups, the commission was able to document cases of killing by anti-Government fighters of captured Government soldiers, Shabbiha and informers who admitted taking part in military attacks (see annex V). While the human rights legal regime differs with regard to such non-State actors as anti-Government armed groups, international humanitarian law applies equally to all parties to a conflict.
59. The commission considered corroborated evidence of killing hors de combat soldiers and Shabbiha. In Al Qusayr, Bab Amr, Qaldiya and elsewhere, the commission noted that persons captured by anti-Government armed groups on occasion faced a quasi-judicial process prior to their execution. A consistent account of the trial process has not been forthcoming, nor has information on the extent of adherence to fair trial standards. Executing a prisoner without affording fundamental judicial guarantees is a war crime.
60. The commission concluded that information on executions perpetrated by anti-Government armed groups -- with or without a "trial" -- constituted reasonable grounds to believe that the war crimes of murder or of sentencing or execution without due process had been committed on several occasions. The commission was not able to corroborate alleged attacks directed against individual civilians not participating in hostilities or against a civilian population.
3. Unknown perpetrators
61. The commission found that scores of civilians had been killed in nine explosions between March and July by unknown perpetrators. |16| The explosions appeared to have been caused by suicide bombers or by improvised explosive devices, including vehicle-borne ones.
62. While the above-mentioned acts may be linked to non-international armed conflict and thus assessed under international humanitarian law, lack of access to the crime scenes combined with an absence of information on the perpetrators hampered the commission's ability to make such an assessment. These are nevertheless domestic crimes prosecutable under the Syrian criminal code. The Government is obliged to ensure that an investigation is conducted impartially, promptly, effectively and independently, in accordance with its international human rights obligations.
D. Arbitrary detention and enforced disappearance |17|
63. The commission interviewed 25 people who alleged to have been arbitrarily arrested and unlawfully detained. A further five interviews were conducted with defectors claiming to have observed arbitrary arrests and detentions while in active service.
64. According to the Government, more than 10,000 people have been released since February 2011, pursuant to 4 amnesties, including 275 people released on 10 July 2012. In his report on the implementation of Security Council resolution 2043 (2012) (S/2012/523), the Secretary-General noted that UNSMIS had observed the release of 468 detainees in Dar'a, Damascus, Hama, Idlib and Deir el-Zour on 31 May and 14 June 2012.
65. Official statistics on the number of detainees and detention centres have yet to be provided by the Government. As at 25 June, UNSMIS had received and cross-checked information on 2,185 detainees and 97 places of detention across the country. Syrian non-governmental organizations put the number of those currently detained as high as 26,000. The commission was unable to confirm the number of those arrested and detained.
66. Most arrests were made in four situations: those believed to be planning to defect or who had refused to follow orders (usually to open fire on civilians); during house searches; at checkpoints; and protesters, either at or subsequent to protests. In a few cases, people were arrested randomly in areas where there were no active hostilities. Four of those so reported were women. Two were children, a boy of 14 and a girl of 9.
67. No interviewee was offered or received legal counsel. With one exception, no interviewee received a family visit. Only two interviewees, arrested on suspicion of planning to defect, were formally charged with an offence.
68. Many claimed that, prior to release, they were made to sign or thumbprint a document, the contents of which were unknown to them. Three detainees were brought before a judge and then released. In one unverified incident, the interviewee stated that, although the judge had ordered his release, he had remained in detention for another 3 months. Also interviewed was a former judge who stated that security agents prohibited questioning unless they were present and, on one occasion, held the judge at gunpoint.
69. The duration of detention of interviewees ranged from a few hours to 5 months. Most of those interviewed were held for 60 days or fewer.
70. The commission considers that domestic legislation in the Syrian Arab Republic (see annex II) fails to meet its obligations under article 9 of the International Covenant on Civil and Political Rights to ensure that those arrested and detained on criminal charges appear "promptly before a judge or other officer authorized by law to exercise judicial power".
71. There are reasonable grounds to believe that Government forces arbitrarily arrested and detained individuals. Of particular concern are the detention of individuals without charge, the failure to provide detainees with legal counsel or family visits and the absence in most cases of any form of judicial review.
72. Regarding enforced disappearance, families of those arrested were not informed at the time of arrest or at any point thereafter of the place of detention of their relatives. In most cases, families were unaware of their relatives' place of detention.
73. Where the Government refuses to acknowledge the arrest and detention or to disclose the fate of the person concerned, the crime of enforced disappearance has been committed.
E. Torture and other forms of ill-treatment |18|
1. Government forces and Shabbiha
74. Starting on 15 February 2012, the commission interviewed 81 people regarding allegations of torture and other forms of cruel, inhuman or degrading treatment. Fifty-nine interviews concerned events within the reporting period. The commission was unable to visit detention centres to interview detainees or to observe detention conditions.
75. Thirty of the above-mentioned 59 stated that they had been arrested and/or detained by Government forces or Shabbiha. All but one reported suffering physical violence during detention. Nineteen other interviewees reported witnessing detainees being tortured or ill-treated; this included 10 individuals who had worked in detention centres or at checkpoints before defecting. Where possible, the commission observed the wounds or scars of alleged victims.
76. While most had been held in official detention centres, six stated that they had been detained in unofficial facilities, such as civilian houses, prior to being transferred to an official centre. In unofficial centres, interviewees reported abuse by soldiers and Shabbiha. A further nine interviewees stated that they had been beaten or assaulted during house searches or at checkpoints, or had witnessed the assault of others. None of the nine was subsequently detained.
77. Reported methods of torture were consistent across the country. Interviewees described being severely beaten about the head and body with electric cables, whips, metal and wooden sticks and rifle butts, burned with cigarettes, kicked, or subjected to electric shocks applied to sensitive parts of the body, including the genitals. Six interviewees reported having lost consciousness during interrogation.
78. Multiple reports were received about detainees being beaten on the soles of the feet (falaqa). Common practices included keeping detainees in prolonged stress positions, including hanging from walls or ceilings by their wrists (shabeh) or hanging by their wrists tied behind their backs. Other methods comprised forcing detainees to bend over and put their head, neck and legs through a tyre while beatings were administered (dulab); and tying detainees to a board with their head unsupported and either stretching them or folding the board in half. Some detainees were subjected to rape and other forms of sexual violence. |19| On many interviewees, scars and wounds consistent with their accounts were visible.
79. Several forms of torture and ill-treatment meted out did not result in physical evidence. Detainees were forcibly shaved, made to imitate dogs and declare that "there is no God but Bashar". Other interviewees stated that they were forced to undress and remain naked for prolonged periods. Three interviewees stated that they were threatened with execution. One reported being present when another detainee was threatened with sexual assault; another stated that interrogators threatened to arrest and rape female relatives.
80. Six interviewees were moved to multiple detention facilities, among different intelligence agencies. One interviewee reported having been moved to 10 different centres across four governorates in five months. Another interviewee was transferred to four different locations in Dar'a and Damascus, again during five months. Where there were multiple transfers, interviewees suffered physical violence in each location.
81. The majority of detainees described being held in small, overcrowded cells. Two interviewees reported that cells were so overcrowded that it was impossible to sit or lie down. All but one reported that food and water were inadequate. One interviewee stated that, having been without water for a week, he had to drink his own urine. Several interviewees stated that their cells had no toilet. Four interviewees described cells infested with insects and lice. The commission was unable to corroborate reports of the denial of medication and medical treatment.
82. The commission recorded accounts that, if verified, would amount to a breach of the Standard Minimum Rules for the Treatment of Prisoners (see annex II).
83. The commission confirms its previous finding that torture and other forms of cruel, inhuman or degrading treatment were committed by Government forces and Shabbiha, in violation of the State's obligations under international humanitarian law and international human rights law.
84. The commission determined that severe pain was inflicted upon persons in official and unofficial detention centres, during house searches and at checkpoints. It also found that torture was inflicted to punish, to humiliate or to extract information. Much of the physical violence described by interviewees has been found to constitute torture by various international tribunals (see annex II).
85. The commission found reasonable grounds to believe that torture was perpetrated as part of a widespread attack directed against civilians by Government forces and Shabbiha who had knowledge of the attack. It concludes that torture as a crime against humanity and as a war crime was committed by Government forces and Shabbiha members. Members of security forces, in particular military and air force intelligence, appear to be primarily responsible for torture and ill-treatment. The commission noted the involvement of Shabbiha members in acts of torture in unofficial detention centres in Homs in February and March.
86. The commission found that conduct such as forcibly shaving detainees and forcing them to imitate dogs constitutes cruel, inhuman or degrading treatment. Similarly, the conditions of detention as described in interviews constitute cruel, inhuman or degrading treatment of detainees.
2. Anti-Government armed groups
87. Fifteen interviews were conducted about the treatment of members of Government forces and Shabbiha members by anti-Government armed groups. All interviewees claimed to be members of these armed groups and detailed the capture, interrogation and either release or execution of those detained. Three interviewees stated that captured Government fighters and Shabbiha members were tortured during interrogation prior to execution.
88. The commission found reasonable grounds to believe that torture and other forms of ill-treatment were committed by anti-Government armed groups during interrogation of captured members of Government forces and the Shabbiha. It determines that severe pain was inflicted to punish, to humiliate or to extract information.
89. The commission determines, however, that the acts of torture were not committed as part of either a widespread or systematic attack on a civilian population; therefore, they do not constitute crimes against humanity, but may be prosecutable as war crimes.
90. To comply with international humanitarian law, those ordering and carrying out attacks must ensure that they distinguish between civilian and military targets. |20| Accounts indicated that Government forces on occasion directed shelling to target small opposition strongholds. In many attacks, however, those firing projectiles did not distinguish between civilian and military targets. In most of the cases investigated, shelling preceded an assault by ground forces; it was also used against demonstrations. In some cases, it was used against anti-Government armed groups where the military was unwilling to risk equipment and troops.
91. Most deaths in Bab Amr during the military operation that began in February 2012 were caused by extensive and indiscriminate shelling by Government forces of primarily civilian infrastructure and residential areas. The city of Al Qusayr suffered indiscriminate attacks between February and May; one credible source told the commission, "I witnessed what people call indiscriminate shelling - the Syrian army just spreads mortar fire across an entire neighbourhood." On 5 June, Government forces began an assault on Al Haffe by cordoning off the town and then shelling with tanks, mortars and helicopter gunships.
92. Additional corroborated accounts of indiscriminate shelling were recorded in Atarib, on 14 February; Ain Larouz, on 5 March; Sermin, on 22 March; Taftanaz, on 4 April; Kili, on 6 April; Al-Houla, on 25 May, and 12 and 13 June; Akko, on 9 June; Salma, on 11 June; and Jobar, on various dates in late June.
93. The commission took note of video evidence from Hama governorate in July indicating the use of cluster munitions. The material could not be corroborated. Although the Syrian Arab Republic is not a party to the Convention on Cluster Munitions, the commission notes that such weapons are inherently indiscriminate when employed in residential areas or areas frequented by civilians.
94. On the basis of its findings, the commission determined that the legal threshold for an indiscriminate attack as a violation of customary international humanitarian law was reached. Government forces fired shells into areas inhabited by civilians while failing to direct them at a specific military objective.
95. Moreover, the attacks, especially shelling, caused incidental loss of civilian life and injury to civilians, as well as damage to civilian objects. There are reasonable grounds to believe that the damage was excessive when compared to the anticipated military advantage.
G. Sexual violence |21|
96. Forty-three interviews were conducted on incidents of sexual violence, against men, women and children, committed by Government forces and the Shabbiha since February 2012. Interviewees included two female and three male victims of rape. Also interviewed were five eyewitnesses of rape, three of whom were also victims. Seven interviewees were defectors who stated that rape and sexual assault had been committed by soldiers and the Shabbiha.
97. There were difficulties in collecting evidence of sexual violence owing to cultural, social and religious beliefs surrounding marriage and sexuality.
98. Accounts indicated that rape and other forms of sexual violence had been committed in two circumstances. The first was during house searches and at checkpoints by Government forces and Shabbiha; the second, in detention. In addition, in Homs, between late February and April, there were several reports of abduction and rape of women, and corroborated accounts of women forced to walk naked in the streets of Karm-Al Zeitoun in February.
99. Fifteen interviewees described incidents of sexual violence committed during house searches and at checkpoints during military operations in Homs between February and May, and in Al Haffe in June. Five interviewees detailed incidents of sexual violence in Zabadani in late February and in various locations in Hama governorate in April. The attacks were reportedly perpetrated by soldiers and Shabbiha.
100. The commission continued to receive reports of rape and sexual assault in detention centres, committed usually as part of torture and/or ill-treatment. Multiple reports were received of male detainees receiving electric shocks to their genitals during interrogations.
101. The commission finds reasonable grounds to believe rape and sexual assault were perpetrated against men, women and children by Government forces and Shabbiha members. Rape and sexual assault were also part of torture in official and unofficial detention centres.
102. Having previously determined that military operations such as those in Homs in February and March and in Al Haffe in June were part of a widespread or systematic attack against a civilian population, the commission finds that the rapes committed during these attacks, made with knowledge of the attacks, could be prosecuted as crimes against humanity.
H. Violations of children's rights |22|
103. The commission conducted 168 interviews concerning alleged violations of children's rights. Of these, 30 interviewees were under the age of 18. In interviews, the adverse psychological and social impact of the violence on children was evident.
1. Government forces and Shabbiha
104. The commission recorded the killing of 125 children, mainly boys, after 15 February 2012.
105. Children were killed and injured during the shelling of towns and villages. During a visit to a hospital in Turkey, the commission saw a 2-year-old girl, severely injured in the June shelling of Azaz. There were also multiple reports of children killed and wounded by snipers.
106. Children were also killed during attacks on protests, such as the attack in Menaq village on 15 March, and in attacks on villages believed to be harbouring defectors or anti-Government armed groups. There were multiple accounts of children killed during military ground operations and house searches (see annex V). Forty-one children were among those killed in Al-Houla on 25 May. Some were killed during shelling, but most appeared to have been shot at close range.
107. There were reports of the arbitrary arrest and detention of children. Children described having been beaten, whipped with electrical cables, burned with cigarettes and subjected to electrical shocks to the genitals. There were multiple reports of detained minors held in the same cells as adults.
108. The commission received reports of the rape and sexual assault of girls under the age of 18 (see annex VII).
109. No evidence of Government forces formally conscripting or enlisting children under the age of 18 was received. However, three incidents were documented in which Government forces used children as hostages or as human shields.
110. Schools in various locations across the Syrian Arab Republic were looted, vandalized and burned in response to student protests. Various accounts described their use by Government forces and Shabbiha members as military staging grounds, temporary bases and sniper posts (see paragraphs 116-125 below).
111. Reports also indicated that injured people, including children, feared to seek medical treatment at public hospitals. Many children were brought to field clinics that could treat only minor injuries.
112. Evidence gathered indicated that children's rights continue to be violated by Government forces and the Shabbiha. The legal conclusions reached in annexes IV, V, VII, VIII and IX apply.
113. The detention of adults and children together is in breach of the Government's obligations under the Convention on the Rights of the Child, unless a separation breaches the right of families to be housed together.
2. Anti-Government armed groups
114. Eleven interviewees, including four minors, discussed the use of children by anti-Government armed groups. All stated that anti-Government armed groups, including the FSA, used children in support roles, such as assisting medical evacuations or as couriers. Five interviewees stated that the anti-Government armed groups used children under the age of 18 -- and in one account, under 15 -- as fighters.
115. The commission considers that there is currently insufficient information to find that anti-Government armed groups used children under the age of 15 to participate actively in hostilities. It notes with concern, however, the reports that children under 18 are fighting and performing auxiliary roles for anti-Government armed groups.
I. Attacks on protected persons and objects
116. The conflict in the Syrian Arab Republic has generated thousands of casualties. Hospitals and clinics have been caught up in hostilities. Field clinics have been deliberately targeted. Civilian objects, such as schools, municipal buildings and hospitals, are routinely occupied by Government forces seeking to establish a presence. Underground field clinics are poorly equipped, unsterile and lack basic tools, medical supplies and blood. The Syrian Arab Red Crescent is also active in providing for the medical and humanitarian needs of the conflict-affected.
117. International humanitarian law not only prohibits attacks on civilians and civilian objects but also requires their protection. |23| The commission collected video materials and conducted 12 interviews about attacks on protected persons or objects, in particular schools and medical facilities.
118. The commission recorded multiple incidents of attacks on field hospitals. During an intense shelling period, the Bab Amr field hospital was hit and partially destroyed. In Al Qusayr, in late February, a field clinic was attacked by a helicopter. One witness stated that, in February, the Yousef al-Atmeh school building in Jisr Al Shughour, used as a field clinic by local residents, was bombed by security forces.
119. Members of the Syrian Arab Red Crescent were victims of attacks. Five staff members have been killed since the beginning of the crisis, the latest on 10 July in Deir el-Zour. In May, while evacuating two injured persons in A'zaz, a Red Crescent ambulance was shot at by military snipers and two medics were injured; all of them were wearing Red Crescent uniforms. On the same day, the Red Crescent office in A'zaz was shelled and burned. The director was arrested and held for 20 days.
120. On 24 April, in Duma, five ambulances belonging to the Syrian Arab Red Crescent were caught in crossfire. One doctor was killed and four Red Crescent staff members were injured.
121. Government forces continued to occupy public hospitals in several localities. In May, the military placed tanks, armed vehicles and troops inside the compound and snipers on the roof of the national hospital in A'zaz and Al Qusayr. The same occurred in Al Haffe in June.
122. Government forces occupied schools and other civilian buildings, transforming them into military staging grounds, temporary bases and sniper posts. For instance, in March, a girl from Atarib described the use of two schools as barracks for Government forces, with tanks at the school gates and snipers posted on the rooftops. The school in Al Qusayr was similarly occupied in May. One interviewee stated that, on 11 March, he was shot at by a sniper from the rooftop of the local school in Jondia.
123. The commission finds reasonable grounds to believe that Government forces acted in violation of international humanitarian law by targeting members of the Syrian Arab Red Crescent. These acts may also be prosecutable as a war crime. Furthermore, by positioning its military assets, which are legitimate targets of enemy forces, inside civilian objects, Government forces are violating the international humanitarian law principle of distinction. Government forces have also violated international humanitarian law by deliberately shelling field clinics.
124. The Government's occupation of hospitals and schools infringes the rights to education and health.
125. The commission was unable to corroborate allegations of anti-Government groups targeting civilians or civilian objects.
J. Pillaging and destruction of property |24|
1. Government forces and Shabbiha
126. The commission received corroborated reports of the pillaging, destruction and burning of property by Government forces and Shabbiha members during its military operations. Where such acts occurred during house searches, the commission documented dozens of cases of looting of property, including of money, vehicles, jewellery and electrical goods.
127. Those interviewed indicated that searches, and thus the pillaging, burning and destruction of property, targeted groups and individuals who appeared to be defectors, members of anti-Government armed groups, demonstrators, and family members of the aforementioned. In particular, family members of defectors described how their homes, farms and shops were burned. In some instances, the looting, burning and destruction of property appeared to be directed at entire communities rather than at specific individuals.
128. According to soldiers who later defected, the looting and burning of property of opposition activists and defectors was intended to, inter alia, impose financial constraints on them and their activities. Government soldiers and Shabbiha also benefited from these acts financially, conducting them with complete impunity.
129. There are reasonable grounds to believe that Government forces and Shabbiha members committed the war crime of pillage. The commission also determined that Government forces and Shabbiha members engaged in the destruction and burning of property during house searches.
2. Anti-Government armed groups
130. The commission received no reports of the pillaging or destruction of property by anti-Government armed groups, but lack of access to Syrian Arab Republic hampered investigations. The Government provided information relating to crimes allegedly perpetrated by anti-Government armed groups, including looting and vehicle theft, which the commission was unable to corroborate. Consequently, the commission was unable to reach any findings regarding the alleged pillaging, burning and destruction of property by anti-Government armed groups.
131. The commission finds reasonable grounds to believe that crimes against humanity, breaches of international humanitarian law and gross human rights violations have been committed in the Syrian Arab Republic. The commission endeavoured, where possible, to identify individuals in leadership positions who may be responsible. In March, the commission handed over to the United Nations High Commissioner for Human Rights confidential lists of suspected individuals and units. |25| Further lists will be provided at the close of its current mandate, in September 2012.
132. The evidence collected confirmed the commission's previous finding that violations had been committed pursuant to State policy. Large-scale operations conducted in different governorates, their similar modus operandi, their complexity and integrated military/security apparatus indicate involvement at the highest levels of the armed and security forces and the Government.
133. Eyewitnesses consistently identified the Shabbiha as perpetrators of many of the crimes described in the present report. Although the nature, composition, hierarchy and structure of this group remains opaque, credible information led to the conclusion that Shabbiha members acted with the acquiescence of, in concert with or at the behest of Government forces. International human rights law recognizes the responsibility of States that commit violations through proxies.
B. Responsibility of anti-Government armed groups
134. Although not a State party to the Geneva Conventions, organized armed groups must nevertheless abide by the principles of international humanitarian law. |26| During non-international armed conflicts, serious violations of international humanitarian law committed by members of such groups are prosecutable as war crimes. Non-State actors may also bear responsibility for gross abuses of human rights, in particular those that amount to international crimes. |27| The commission identified such violations, including murder, extrajudicial execution and torture, perpetrated by members of anti-Government groups.
135. Whether members of Government forces or anti-Government groups, those who intentionally commit the crimes identified in the present report bear responsibility. In addition, those who order these crimes to be committed (or plan, instigate, incite, aid or abet) are also liable. The commission received consistent evidence that mid- and high-ranking members of Government forces were directly involved in illegal acts. Defectors stated that commanders ordered their subordinates to shoot civilians and hors de combat fighters, and to torture and mistreat detainees. Orders were often enforced at gunpoint, and anyone hesitating to comply risked arrest or summary execution. Evidence showed that widespread looting and destruction of property occurred with the acquiescence of commanders.
136. Leadership within anti-Government armed groups was also implicated in the war crimes and human rights abuses detailed in the present report. Local commanders either ordered the execution of captured members of Government forces and the Shabbiha or killed them themselves.
137. Military commanders and civilian superiors bear responsibility for crimes against humanity and war crimes if they fail to take reasonable measures within their power to prevent or repress the commission of these crimes or to submit the matter to the competent authorities. These measures must be implemented with respect to subordinates over whom they exercise effective command and control.
138. Extensive coverage of events, including the likely occurrence of violations and crimes, led the commission to conclude that military commanders and civilian superiors at the highest levels of Government must have known about such events.
139. The same applied to abuses and crimes committed by anti-Government armed groups. Local-level commanders acknowledged some of the acts described in interviews.
140. The commission is unaware of efforts that meet international standards made by either the Government or anti-Government armed groups to prevent or punish crimes documented in the present report.
141. The Government's National Independent Legal Commission has reportedly been investigating some allegations of violations. |28| The Government also set up a special inquiry into the events of Al-Houla. The investigation reports received on Tremseh, Al Qubeir and Al-Houla were considered by the commission. The commission was unable to identify any case of successful prosecution of any military or security force commanders or civilian superiors who bore responsibility for crimes against humanity, war crimes or gross human rights violations committed since March 2011.
142. No credible information has been received about anti-Government armed groups investigating, prosecuting and punishing members of their groups alleged to have committed crimes and abuses identified.
V. Conclusions and recommendations
143. The human rights crisis has escalated significantly in the context of unrestrained hostilities, which have evolved into a non-international armed conflict. The civilian population across all communities bears the brunt of this conflict, thousands having lost their lives in the spiral of violence.
144. The socioeconomic and humanitarian situation has further deteriorated, leaving the majority of the population in a state of disarray. The commission maintains that sanctions result in a denial of the most basic human rights of the Syrian people.
145. The commission concludes that there are reasonable grounds to believe that Government forces and the Shabbiha committed crimes against humanity, war crimes and violations of international human rights law and international humanitarian law. There are also reasonable grounds to believe that anti-Government armed groups committed war crimes and abuses of international human rights law and international humanitarian law. Both parties violated the rights of children.
146. Human rights violations and abuses must be thoroughly investigated. Evidence of violations and abuses, including international crimes, must be systematically collected to facilitate the process of holding perpetrators accountable. Access must be accorded to the commission so that it may investigate such violations impartially and in situ.
147. The commission believes that the large-scale operations during which the most serious violations were committed were conducted with the knowledge, or at the behest, of the highest levels of Government. Responsibility therefore rests with those who either ordered or planned the acts or, in the case of those in effective command and control, those who failed to prevent or punish the perpetrators. The consistent identification of the Shabbiha as perpetrators of many of the crimes does not relieve the Government of its responsibility, as international law recognizes the responsibility of States that commit violations through proxies.
148. The commission identified violations of international humanitarian law and international human rights law committed by members of anti-Government groups. Those who either ordered or planned the acts, or in the case of those in effective command and control, failed to prevent or punish perpetrators, bear responsibility.
149. The increased militarization of the conflict is disastrous for the Syrian people and could provoke tragic consequences for the entire region. A sustained cessation of hostilities by all parties remains of paramount importance to end the violence and gross human rights violations and abuses.
150. The commission reiterates that the best solution continues to be a negotiated settlement involving an inclusive and meaningful dialogue among all parties, leading to a political transition that reflects the legitimate aspirations of all segments of Syrian society, including ethnic and religious minorities.
151. Considering the catastrophic threats to the Syrian polity and people, as well as to the stability of the region, the commission renews the recommendations made in its previous reports, and emphasizes those that follow.
152. With regard to the international community:
(a) Countries with influence over the parties to the Syrian conflict, in particular the permanent members of the Security Council, should work in concert to put pressure on the parties to end the violence and to initiate all-inclusive negotiations for a sustainable political transition process in the country;
(b) The continued presence of the United Nations in the country is essential for the effective implementation of the ceasefire and to support the Syrian people in initiating broad, inclusive and credible consultations to achieve reconciliation, accountability and reparation within the framework of international law.
153. The commission recommends that the Government of the Syrian Arab Republic:
(a) Investigate all violations of international human rights law and international humanitarian law as set out in the present report to ensure that those responsible are held to account, in accordance with due process, and that victims are afforded access to justice and reparation;
(b) Release immediately all persons arbitrarily detained, publish a list of all detention facilities and ensure that conditions of detention comply with applicable law;
(c) Abide by the rules of armed conflict and distribute the rules of engagement guiding army and security forces operations;
(d) Grant the international community immediate access to the affected areas to provide humanitarian assistance to all those in need.
154. The commission recommends that anti-Government armed groups:
(a) Adopt, publicly announce and abide by rules of conduct that are in line with international human rights law and international humanitarian law standards, and hold perpetrators of abuses to account;
(b) Provide relevant humanitarian and human rights institutions with information on the fate of persons captured, and to give access to detainees.
155. The commission recommends that the Office of the High Commissioner consolidate a presence in the region to strengthen efforts to promote and protect human rights in the Syrian Arab Republic.
156. The commission recommends that the Human Rights Council transmit the present report to the Secretary-General for the attention of the Security Council so that appropriate action may be taken in view of the gravity of the violations, abuses and crimes perpetrated by Government forces and the Shabbiha, and by anti-Government groups, documented herein.
[Arabic/English only]
Correspondence with the Government of the Syrian Arab Republic
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[English only]
Applicable law
I. Background
1. Whether during peacetime or periods of armed conflict, a substantial body of international law will be in operation. The sources comprise primarily treaties ratified by the country in question. Customary international law (CIL) is also applicable. In its first report submitted in November 2011, the Commission identified the Syrian Arab Republic's legal obligations under international human rights law (IHRL). |1| At that time, although violent clashes were occurring, the Syrian Arab Republic was in a state of peace and has not sought to derogate from any applicable treaty provisions.
2. In its second report submitted in February 2012, the commission expressed its concern that the violence in the Syrian Arab Republic had reached the requisite level of intensity to trigger the applicability of International Humanitarian Law (IHL). However, because it could not verify whether the FSA, or its associated groups, had reached the necessary level of organization, the commission determined that it could not apply IHL.
3. During the period covered by this third report, the commission has determined that the intensity and duration of the conflict, combined with the increased organizational capabilities of the FSA, |2| do, in fact, meet the legal threshold for a non-international armed conflict. |3| With this determination, the commission applied IHL, including Common Article 3, in its assessment of the actions of the parties during hostilities.
4. As described below, egregious violations of human rights, customary or humanitarian law can give rise to individual criminal responsibility under international criminal law (ICL).
II. Regimes in effect
5. The onset of IHL applicability does not replace existing obligations under IHRL; both regimes remain in force and are generally considered as complementary and mutually reinforcing. Where both IHL and IHRL apply, and can be applied consistently, parties to a conflict are obliged to do so. In situations where IHL and IHRL are both applicable, but cannot be applied consistently, the principle of lex specialis applies. |4|
6. Gross violations of either regime expose the perpetrator to criminal liability at the international level. Courts in any country can employ the principle of universal jurisdiction to try such cases. The definitional elements of international criminal law (ICL), have recently been bolstered with the adoption of the Rome Statute and the creation of the International Criminal Court (ICC), discussed below.
7. The specific applicability of each regime is discussed below.
III. International human rights law
8. At all times relevant to this report the Syrian Arab Republic was a party to the major United Nations human rights treaties and a number of optional protocols. |5| The Government did not declare a state of emergency nor otherwise seek to derogate from any of the aforementioned obligations which consequently remained in effect throughout the conflict, irrespective of the applicability of other legal regimes. |6|
9. All branches of the Syrian government were therefore bound to respect, protect, promote and fulfill the human rights of all persons within its jurisdiction. The obligation included the right to afford an effective remedy to those whose rights were violated (including the provision of reparations) and to investigate and bring to justice perpetrators of particular violations. |7| The Syrian Arab Republic was also bound by relevant rules of IHRL which form a part of customary international law.
10. Non-state actors and IHRL: Non-state actors cannot formally become parties to international human rights treaties. They must nevertheless respect the fundamental human rights of persons forming customary international law (CIL), in areas where such actors exercise de facto control. |8| The commission therefore examined allegations of human rights violations committed by the Syrian Government as well as abuses of customary international human rights norms perpetrated by the anti-Government armed groups.
IV. International humanitarian law
11. International humanitarian law (IHL), also known as the law of armed conflict, is binding on all parties to a conflict. |9| Its applicability is triggered whenever hostilities meet the threshold criteria of "armed conflict," and applies irrespective of whether any party involved has in fact declared war. IHL comprises the four Geneva Conventions of 12 August 1949 as well as its Protocols I and II and an array of other instruments and customary principles that protect those most vulnerable to the effects of armed conflict. |10|
12. The Syrian Arab Republic is a party to the Geneva Conventions and its Protocol I, as well as to several other IHL instruments concerning weaponry and mercenaries. |11| The Syrian Arab Republic has not, however, ratified Protocol II to the Geneva Conventions which is specifically applicable during non-international armed conflict. A number of provisions of customary IHL nevertheless apply to non-international armed conflict and must be respected when the armed conflict threshold is met. The commission took note that a non-international armed conflict developed in the Syrian Arab Republic during February 2012 which triggered the applicability of Common Article 3 of the Geneva Conventions as well as customary law relevant to non-international armed conflict.
13. As the Security Council underlined in its resolution 1325 (2011), it is important for all States to apply fully the relevant norms of IHL and IHRL to women and girls, and to take special measures to protect women and girls from gender-based violence during armed conflict. |12|
V. International criminal law
14. International criminal law provides the means of enforcement at the international level of penalties for grave violations of customary law, IHRL and serious violations of IHL which are recognized as attracting individual liability. As noted, the ICC tries persons accused of such crimes, namely genocide, crimes against humanity, aggression and war crimes. |13| The Rome Statute had been joined by 121 countries as of July 2012. |14| Although the Syrian Arab Republic has signed the text, it has not yet become a party. Pursuant to its Article 13 (b), the Security Council can refer the situation of the Syrian Arab Republic to the ICC Prosecutor for investigation. At the time of writing, no such referral has been made.
15. War crimes: A complete listing of which actions constitute war crimes under the Rome Statute is contained within its Article 8. In the context of non-international armed conflict, this comprises serious violations of Common Article 3 and Protocol II, as well as other serious violations of international law.
16. Crimes against humanity: Crimes against humanity are those crimes which "shock the conscience of humanity". Under the Rome Statute, crimes against humanity occur where certain acts are undertaken as part of a widespread or systematic attack against a civilian population where the perpetrator has knowledge of the attack. |15| The elements of crimes against humanity are well established in international criminal law: |16|
1. There must be one or more attacks;
2. The acts of the perpetrator must be part of the attack(s);
3. The attack(s) must be directed against any civilian population;
4. The attack(s) must be widespread or systematic;
5. The perpetrator must know that his or her acts constitute part of a pattern of widespread or systematic crimes directed against a civilian population and know that his or her acts fit into such a pattern.The underlying "acts" -- or crimes -- referred to in the above paragraph (2) have been enumerated in the Rome Statute. |17| The list includes a number of the violations described elsewhere in this report, for example, unlawful killings; |18| enforced disappearances; |19| torture and other cruel, inhuman and degrading treatment; |20| and/or rape, |21| and therefore their elements are not repeated here.
17. Widespread or systematic: Widespread has long been defined as encompassing "the large scale nature of the attack, which should be massive, frequent, carried out collectively with considerable seriousness and directed against a multiplicity of victims". |22| As such, the element of "widespread" refers both to the large-scale nature of the attack and the number of resultant victims. The assessment is neither exclusively quantitative nor geographical, but must be carried out on the basis of the individual facts. Accordingly, a widespread attack may be the "cumulative effect of a series of inhumane acts or the singular effect of an inhumane act of extraordinary magnitude". |23|
18. In contrast, the term "systematic" refers to:
the "organised nature of the acts of violence and the improbability of their random occurrence" (citations omitted). An attack's systematic nature can "often be expressed through patterns of crimes, in the sense of non-accidental repetition of similar criminal conduct on a regular basis". The Chamber notes that the "systematic" element has been defined by the ICTR as (i) being thoroughly organised, (ii) following a regular pattern, (iii) on the basis of a common policy, and (iv) involving substantial public or private resources (citations omitted), whilst the ICTY has determined that the element requires (i) a political objective or plan, (ii) large-scale or continuous commission of crimes which are linked, (iii) use of significant public or private resources, and (iv) the implication of high-level political and/or military authorities. |24|
19. It is important to note that crimes against humanity need not be both widespread and systematic. The test is disjunctive, and therefore reaching either element suffices.
VI. Customary international law
20. Customary International Law is made up of norms of (inter)state behaviour that have developed over time and that have become binding among states in their international relations. Treaties are often the codification of CIL norms. CIL is an inseparable component of both IHL and IHRL. The relationship between those two legal regimes and CIL can be expressed in terms of specific crimes or violations, for example, those set out in the Rome Statute. CIL is identified by legal scholars, courts, military law experts, and, for example, the ICRC. |25| CIL contains a number of core precepts such as distinction of civilians, prohibition on indiscriminate attacks, that feasible precautions are undertaken, the principle of humanity (no unnecessary suffering), and imperative military necessity.
VII. State obligations to investigate, prosecute, punish and provide reparations
21. Customary law, IHL and IHRL obligate states to investigate allegations of serious violations of their respective regimes and, when appropriate, prosecute suspected perpetrators and compensate the victims. The UN General Assembly expressed the obligation in the clearest of terms when it declared in the "Basic Principles on the Right to Remedy,"
"In cases of gross violations of international human rights law and serious violations of international humanitarian law constituting crimes under international law, States have the duty to investigate and, if there is sufficient evidence, the duty to submit to prosecution the person allegedly responsible for the violations and, if found guilty, the duty to punish her or him." |26|
22. The obligation is founded in part on Article 2 of the International Covenant on Civil and Political Rights (ICCPR), |27| wherein an effective remedy is required. The obligation to investigate is specifically confirmed in the interpretation given that provision by the Human Rights Committee. |28|
23. The obligation is slightly different for internal armed conflicts under IHL. There, the obligation to investigate war crimes and prosecute the suspects is a matter of customary law. |29| The notion has been reaffirmed on several occasions by the UN Security Council specifically in relation to the conflicts in Afghanistan, Burundi, Democratic Republic of the Congo, Kosovo and Rwanda. |30| In a resolution on impunity adopted without a vote in 2002, the UN Commission on Human Rights recognized that perpetrators of war crimes should be prosecuted or extradited. |31| The commission has similarly adopted resolutions -- most of them without a vote -- requiring the investigation and prosecution of persons alleged to have violated IHL in the internal armed conflicts in Sierra Leone, Chechnya, Rwanda, Sudan, Burundi and the former Yugoslavia. It is now broadly regarded as a customary international legal obligation to investigate and punish alleged perpetrators of IHL violations - in either international or non-international armed conflicts. |32|
24. It is thus beyond doubt that each instance of alleged gross human rights violation, and all "serious" IHL violations -- perpetrated by individuals on either side of the conflict in the Syrian Arab Republic -- must be investigated, and, if appropriate, prosecuted. A final point to be made concerns the nature of the investigation that must be conducted to satisfy this obligation. The UN has developed guidelines for such investigations and they center around four universal principles: independence, effectiveness, promptness and impartiality. |33| These four principles lie at the heart of human rights protection and are binding on UN members in that they have been relied upon and further developed in the jurisprudence of UN-backed international courts and also have been agreed upon by the States represented within the relevant United Nations bodies.
VIII. State responsibility
25. Every internationally wrongful act of a State incurs the international responsibility of that State. |34| Similarly, customary international law provides that a State is responsible for all acts committed by members of its military and security forces. |35| The State is therefore responsible for wrongful acts, including crimes against humanity, committed by members of its military and security forces.
26. The prohibition of crimes against humanity is a jus cogens or peremptory rule, and the punishment of such crimes is obligatory pursuant to the general principles of international law. |36| Furthermore, crimes against humanity are the culmination of violations of fundamental human rights, such as the right to life and the prohibition of torture or other forms of inhuman and degrading treatment. |37| According to the principles of State responsibility in international law, the Syrian Arab Republic bears responsibility for these crimes and violations, and bears the duty to ensure that individual perpetrators are punished and that victims receive reparation. |38|
IX. Individual responsibility
27. The principle of individual criminal responsibility for international crimes is well established in customary international law. |39| According to article 27 of the Rome Statute of the International Criminal Court, which the Syrian Arab Republic has signed but not ratified, the Statute applies equally to all persons, without any distinction based on official capacity. In this context, Syrian laws afford extensive immunities, in most cases, for crimes committed by Government agents at all levels during the exercise of their duties. Although the Independent Special Legal Commission was established in recent months to investigate events, the State still has not provided the commission with any details of investigations or prosecutions under way by this mechanism.
X. Elements of specific violations
A. Excessive use of force
28. Excessive use of force by law enforcement officials (whether police or military or other members of State security forces) impinges on fundamental human rights guarantees, including the right to life (Article 6 ICCPR) and security of persons (Article 9 ICCPR). International standards such as the Code of Conduct for Law Enforcement Officials (Code of Conduct) and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (Basic Principals) provide further guidance for public order officials operating in potentially violent circumstances. Non-violent means are to be used as far as possible before resorting to the use of force (principle of "necessity"), and any use of force must be limited to that which is proportionate to the seriousness of the offence and the legitimate objective to be achieved (principle of "proportionality"). Firearms are to be used only in self-defence or in defence of others against imminent threat of death or serious injury; to prevent a particularly serious crime involving grave threat to life; or to arrest a person posing such a threat and who is resisting efforts to stop the threat or to prevent that person's escape. Before using firearms, law enforcement officials must identify themselves as law enforcement officials and give a clear warning that firearms will be used. Further, sufficient time must be provided for the warning to be observed, unless this would unduly create a risk of death or serious harm to the officer or other persons or would be clearly inappropriate or pointless in the circumstances. |40|
29. IHL contains provisions similarly constraining the use of force under its requirement for proportionality in attack. |41| War-time attacks, even when carefully planned, frequently result in the loss of life or injury to civilians and damage to civilian objects. Under the rule requiring proportionality, a party is required to forego any offensive where the incidental damage expected "is excessive in relation to the concrete and direct military advantage anticipated". Thus, where the military advantage is outweighed by the damage or death to civilians and their objects, the attack is forbidden. This rule applies despite the recognition that incidental injury to civilians, so-called "collateral damage", may occur even when an attack is lawful.
B. Unlawful killing
1. Arbitrary deprivation of life
30. IHRL strictly prohibits taking life arbitrarily, a restriction that bars state actors from killing a person outside a legitimate and legal basis for doing so. Those legitimate bases are twofold. First, when a fully-fledged judicial process in line with international standards has been followed. Second, in the most narrow of circumstances, where a person's life is under imminent threat.
31. Moreover, a state-sponsored deprivation of life will be arbitrary in the legal sense unless it is both necessary and proportionate. Therefore, when a state actor employs lethal force it must be in order to protect life (i.e., it must be proportionate) and there must also be no other means available, such as capture or incapacitation, to curtail that threat to life (i.e., it must be necessary). Only under these limited circumstances is the resort to lethal force by the State legal.
32. The noted IHRL standards differ to a degree from those applicable to fighters/combatants during an armed conflict under IHL. For example, one would not expect soldiers to warn their enemies before an attack. So long as all applicable IHL, CIL and IHRL requirements are met, killing an enemy fighter during an armed conflict is not illegal. The converse is also true: fighters/combatants causing another person's death, even that of the enemy, during armed conflict can be unlawful when the applicable law is breached (see below).
2. Murder as a war crime
33. In specific circumstances, killing another person during an armed conflict is murder (also known as "wilful killing" when committed in the course of an international armed conflict). The crime of murder is a recognized offense under customary law and has been codified in the Rome Statute. In non-international armed conflict, the elements comprising the war crime of murder are as follows:
(i) The perpetrator killed one or more persons;
(ii) Such person or persons were either hors de combat, or were civilians, medical personnel, or religious personnel taking no active part in the hostilities;
(iii) The perpetrator was aware of the factual circumstances that established this status;
(iv) The conduct took place in the context of and was associated with an armed conflict not of an international character;
(v) The perpetrator was aware of factual circumstances that established the existence of an armed conflict.34. Thus, murder is committed upon the intentional killing of a protected person in the context of an armed conflict when the perpetrator is aware of the circumstances of the victim and the conflict itself. Interpretations given by the international courts to the elements of murder largely mirror those of traditional criminal law. For example, even where the perpetrator does not directly kill the victim at his own hand, the act(s) of the perpetrator must at least be a "substantial cause of the death" of the victim. Premeditation does not appear as a required element.
35. Murder can also be prosecuted as a crime against humanity when it is perpetrated in the context of a widespread or systematic attack against any civilian population - whether conducted in a time of war or peace. The mental element of murder as a crime against humanity not only includes the intent to cause someone's death but also the knowledge of the act being part of a widespread or systematic attack against any civilian population.
3. Attacks on protected persons and objects; Indiscriminate attacks
36. IHL prohibits the intentional targeting of civilians in both international and non-international armed conflicts. Violations of this provision are prosecutable in ICL, including at the ICC. |42| Parties to a conflict have an obligation to distinguish at all times between those taking part in hostilities and the civilian population, and they must direct attacks only against military objectives. Referred to as the "principle of distinction", the International Court of Justice in its Advisory Opinion of 8 July 1996 on the Legality of the Threat or Use of Nuclear Weapons, recognised this principle as "intransgressible" in customary international law.
37. Attacks on places where both civilians and combatants may be found are prohibited if they are not directed at a specific military objective, or if they use methods or means of combat which cannot be directed at a specific military objective. It is prohibited to launch an attack which may be expected to cause incidental loss of civilian life, injury to civilians, and/or damage to civilian objects which would be excessive in relation to the anticipated concrete and direct military advantage.
38. Customary IHL establishes that all "parties to the conflict must take all feasible precautions to protect the civilian population and civilian objects under their control against the effects of attacks". Each party to the conflict must, to the extent feasible, avoid locating military objectives within or near densely populated areas. Each party to the conflict must, to the extent feasible, remove civilian persons and objects under its control from the vicinity of military objectives.
39. Attacking, destroying, removing or otherwise rendering useless objects which are indispensable to the survival of the civilian population is prohibited. Sieges must still allow for vital foodstuffs and other essential supplies to be delivered to the civilian population.
40. Medical personnel as well as hospitals, medical units and transport must be respected and protected in all circumstances. Medical personnel, units and transport lose their protection if they are being used, outside their humanitarian function, to commit acts harmful to the enemy.
41. IHL also incorporates specific protections for objects. It is prohibited to commit an act of hostility directed against places of worship which constitute the cultural or spiritual heritage of peoples.
42. The Rome Statute sets out a number of war crimes which correspond to these breaches of IHL guarantees. They include the crime of intentionally attacking civilians, and intentionally attacking civilian buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected. |43|
C. Arbitrary arrest and unlawful detention
43. Article 9 of the ICCPR prohibits arbitrary arrest or detention of individuals. It provides that "no one shall be deprived of liberty except on such grounds in accordance with such procedures as are established by law". Persons arrested are to be informed at the time of arrest of the reasons for the arrest and promptly informed of any charges. |44| Anyone arrested or detained on a criminal charge is to be brought promptly before a judge or other officer authorized by law to exercise judicial power and is entitled to trial within a reasonable period or release. |45| Persons have a right to take proceedings before a court for the purposes of reviewing the lawfulness of detention and to be released if the detention is unlawful. |46| The term "arbitrary" needs to be considered in terms of appropriateness, proportionality and reasonableness. |47| Lawfulness of detention is to be considered as both lawfulness under domestic law and lawfulness under international law. |48|
44. The commission therefore notes the conditions of detention provided for in the Syrian Arab Republic's domestic law. Article 4 of the State of Emergency Act (SEA) authorises the Military Governor to impose, through oral or written orders, "restrictions on the rights of people to the freedom of assembly, residence, transport, and movement, and to arrest suspected people or those threatening public security on a temporary basis, and to authorize investigations of persons and places at any time, and to allow any person to perform any task". |49| This provision has provided grounds for the arrest of peaceful demonstrators.
45. The SEA also provides for the detention of suspects for "crimes committed against State security and public order" and "crimes committed against public authorities". |50| The commission observes that these crimes do not appear to be further defined in the Syrian Arab Republic's domestic laws. The SEA also permits the security forces to hold suspects in preventive detention without judicial oversight for indefinite periods.
46. The commission observes that in April 2011, the Syrian Arab Republic's Code of Criminal Procedure -- which previously required suspects to be brought before a judicial authority within 24 hours of arrest or else be released |51| -- was amended to allow suspects to be held for up to seven days, pending investigation and the interrogation of suspects for certain crimes. This period is renewable up to a maximum of 60 days. |52|
D. Enforced disappearance
47. While the Syrian Arab Republic is not a party to the specialized convention concerning enforced disappearances, |53| it is a party to the ICCPR, provisions of which are infringed by enforced disappearance. Such action violates a person's right to recognition as a person before the law, |54| to liberty and security and freedom from arbitrary detention, including the right to be brought promptly before a judge or other official for review of the lawfulness of detention. Disappearance may also be associated with torture and other forms of cruel, inhuman or degrading treatment and extrajudicial execution, in violation of the right to life, prohibition on torture and other forms of cruel, inhuman or degrading treatment. |55|
48. Under IHL, persons taking no active part in the hostilities are entitled to be treated humanely. |56| Customary IHL rules also include a prohibition on arbitrary deprivation of liberty |57| and require parties to the conflict to keep a register of persons deprived of their liberty, |58| respect detainees' family life, to permit detainees to receive visitors, especially near relatives to the degree practicable and allow correspondence between detainees and their families.
49. Parties to a conflict must take all feasible measure to account for persons reported missing as a result of the conflict and efforts must be made to provide family members with any information the Party has on their fate. The practice of enforced disappearance also may be a gateway to other violations such as torture, murder or extra judicial executions. The combined effect of particular IHL obligations leads to the conclusion that the practice of disappearance is prohibited by customary IHL.
50. Furthermore, "imprisonment or other severe deprivation of liberty in violation of fundamental rules of international law" and enforced disappearance are acts recognized in the Rome Statute as potentially giving rise to a crime against humanity if committed as part of a widespread or systematic attack against any civilian population, with knowledge of the attack. |59| Integral to the finding of a crime of "enforced disappearance" is a refusal to acknowledge the arrest, detention or abduction, or to give information on the fate or whereabouts of such person or persons. |60|
E. Torture and other forms of ill-treatment
51. Under IHRL, there is a clear prohibition on torture and other forms of cruel, inhuman or degrading treatment in Article 7 of the ICCPR. The Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) provides a fuller definition: "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
52. Torture during armed conflict is both a violation of IHL and a breach of international criminal law. Torture must not be balanced against national security interests or even the protection of other human rights. No limitations are permitted on the prohibition of torture. International humanitarian law explicitly prohibits the torture and cruel treatment of persons taking no active part in hostilities (including members of armed forces who have laid down their arms or been rendered hors de combat). Such conduct constitutes a war crime.
53. Torture can form part of a crime against humanity. The ICC's Elements of Crimes set out the following elements for the crime of torture during armed conflict:
(i) The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons;
(ii) The perpetrator inflicted the pain or suffering for such purposes as:(1) Obtaining information or a confession;
(2) Punishment;
(3) Intimidation or coercion;
(4) Or for any reason based on discrimination of any kind.54. The definition, both under CAT and under the ICC's Elements of Crimes, provides that "severe" pain must be inflicted. International tribunals and human rights bodies have, to date, found the following acts constituted torture: kicking, hitting, beating (including beating on the soles of the feet), flogging, shaking violently, inflicting electric shocks, burning, subjecting the victim to "water treatment", extended hanging from hand and/or leg chains and suffocation/asphyxiation. Mental torture has been found to have occurred where the perpetrator threatened the victim with death or simulates an execution, while having the means to carry it out. These acts have been held to constitute torture irrespective of any subjectively experienced pain of the victim.
55. In its General Comment, the Committee Against Torture emphasised that an obligation on all state authorities exists in respect of torture. Any official who has reasonable grounds to believe that acts of torture or ill-treatment are being committed is obliged to prevent, investigate, prosecute and punish. Otherwise, the State bears responsibility and its officials will be individually considered as complicit or otherwise responsible "for acquiescing in such impermissible acts". Investigations should be conducted in accordance with the Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
56. All persons detained in connection with an armed conflict must be treated humanely. At the end of armed conflict, persons deprived of their liberty enjoy the protection afforded under Articles 5 and 6 of Protocol II, or at a minimum such protections as are recognized as customary law, until their release.
57. The United Nations has developed a comprehensive set of standards to be enforced in places of detention. The underlying principles, based in IHL and IHRL, are humane treatment and non-discrimination. Particularly relevant is Protection Principle 7 which requires that all maltreatment of detainees be investigated and punished.
58. The commission notes that according to the 2012 Syrian Constitution, "[n]o one may be subjected to torture or to degrading treatment and the law shall define the punishment for any person who commits such acts". |61| Further, Article 391 of the Syrian Criminal Code stipulates that: "Anyone who batters a person with a degree of force that is not permitted by law in order to extract a confession to, or information about, an offence shall be subject to a penalty of from three months to three years in prison". |62| These provisions do not, however, further define the crime of torture.
F. Rape and sexual violence
59. Rape violates the prohibition on torture and cruel, inhuman or degrading treatment and also impairs other human rights including the right to the highest attainable standard of physical and mental health under the International Covenant on Economic, Social and Cultural Rights (ICESCR). It is also expressly prohibited in armed conflict. Common article 3 to the Geneva Conventions also prohibits "violence to life and person, in particular … cruel treatment and torture" and "outrages upon personal dignity, in particular, humiliating and degrading treatment". Rape constitutes a war crime under the Rome Statute as well as potentially constituting a crime against humanity if it is part of a widespread or systematic attack on civilians. The elements of the crime of rape in non-international armed conflicts in the Rome Statute are as follows:
(i) The perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body;
(ii) The invasion was committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent;
(iii) The conduct took place in the context of and was associated with an armed conflict not of an international character;
(iv) The perpetrator was aware of factual circumstances that established the existence of an armed conflict.
60. The Security Council has urged parties to armed conflict to protect women and children from sexual violence. Its resolution 1325 (2000) calls on all parties to the conflict to take special measures to protect women and girls from rape and others forms of sexual abuse and its resolution 1820 (2008) stresses that "sexual violence, when used or commissioned as a tactic of war in order to deliberately target civilians or as part of a widespread or systematic attack against civilian populations, can significantly exacerbate situations of armed conflict".
61. Sexual violence can meet the definition of torture and has been prosecuted as such.
G. Children and armed conflict
62. The Convention on the Rights of the Child (CRC) generally defines a child as any person under the age of 18. However, with respect to armed conflict, the Convention draws its language from the Protocols to the Geneva Conventions, and consequently sets the lower age of 15 as the minimum for recruitment or participation in armed forces.
63. The Optional Protocol, which the Syrian Arab Republic adopted in 2003, without reservation, sets 18 as the minimum age for direct participation in hostilities, for recruitment into armed groups and for compulsory recruitment by governments.
64. Under the Rome Statute, it is a war crime to use, conscript or enlist children under the age of 15 years into armed forces or use them to participate actively in hostilities. |63|
65. Active participation in hostilities does not solely denote children's direct participation in combat but encompasses activities linked to combat such as scouting, spying, sabotage, and the use of children as decoys, couriers, or at military checkpoints. Also prohibited is the use of children in "direct" support functions such as carrying supplies to the front line.
66. The commission notes that international law requires that child detainees must be separated from adults, unless to do so would involve a violation of the right of families to be housed together. The requirement to incarcerate child and adult detainees separately is set forth in the CRC. |64|
H. Pillaging
67. By definition pillage (or plunder) is theft within the context of, and in connection with, an armed conflict. Under the Rome Statute, pillage is "the forcible taking of private property by an invading or conquering army from the enemy's subjects". |65| The Elements of Crimes of the ICC specify that the appropriation must be done for private or personal use. The prohibition of pillage is a long-standing rule of customary and treaty-based international law. It constitutes a war crime to pillage a town or place, even when taken by assault.
I. Destruction of personal property
68. International human rights law protects an individual's home from interference by the State. Article 17 of the ICCPR prohibits arbitrary or unlawful interference with a person's home or correspondence. The Human Rights Committee has interpreted this provision to mean that no interference can take place except in cases envisaged by the law, and that law must comport with the objectives of the ICCPR. |66| Article 11 of the ICESCR commits States Parties to providing everyone "an adequate standard of living for himself and his family, including housing, and to the continuous improvement of living conditions".
[English only]
Military situation in the Syrian Arab Republic
1. During this reporting period, the military situation has deteriorated significantly with armed violence gaining in intensity and spreading to new areas. While events in the Syrian Arab Republic were once viewed as an excessive use of force against peaceful demonstrators, the dynamics of the crisis have shifted dramatically. Active hostilities between Government forces (and pro-Government militia) and anti-Government armed groups took place across broad sections of the country. Sporadic clashes between the armed actors have evolved into continuous combat, involving more brutal tactics and new military capabilities by both sides. Levels of armed violence vary throughout the country.
I. Government forces and pro-Government militia
2. As the Syrian Government attempts to re-establish its authority in areas which have fallen, or are at risk of falling, under the de facto control of anti-Government armed groups, it has increasingly engaged its military troops and heavy equipment, such as tanks and helicopters, in operations against areas perceived to be in support of the armed groups.
3. All army divisions and security services have engaged in military operations that varied in terms of used capabilities, tactics and scale according to the confronted armed group's size, capabilities and degree of influence and support. Military operations consistently begin with Government forces deploying reinforcements to establish checkpoints around the periphery of a targeted area. This differs from the previous approach which focused on establishing checkpoints within the area. Defections among deployed soldiers and repeated attacks on isolated checkpoints by anti-Government armed groups were reportedly behind this tactical shift. Once the area has been cordoned, artillery and tank units -- increasingly joined by helicopters -- conduct shelling before ground forces raid the area to dislodge the insurgents. Security forces and pro-Government militia, including Shabbiha, have reportedly been involved in these final clearing operations, which often involve house-to-house searches.
4. The use of heavy fire assets, such as artillery and helicopters, which earlier had been limited to certain areas such as Homs city and Zabadani, in Rif Dimashq, has been extended to all restive provinces. While previously mortars and artillery shelling had been used as a prelude to incursions by ground forces, they are regularly employed in the context of clashes, when quelling demonstrations, and when Government forces are unable to regain control of a contested area. The use of air assets, once limited to observation and transportation purposes, was also extended to fire support; as attack helicopters were used to shell localities under the control of anti-Government armed groups.
5. In the face of rising insurgency, Government forces directed their main efforts towards the control of major population centres such as Damascus, Aleppo, Homs and Hama. They targeted suburban towns and neighbourhoods of these major localities which were perceived to have been infiltrated by anti-Government armed groups. Their attacks on such areas had the unintended effect of increasing the local populations' support for those groups. Simultaneously, operations with heavy artillery and helicopters shelling were conducted to neutralize the anti-Government armed groups' influence in key countryside towns located along main lines of communication such as in Sahl Al-Ghab between Hama and Idlib governorates, and the Northern Aleppo countryside. During many of these operations, large numbers of fighters and civilians were killed.
6. According to testimonies received by the commission, Shabbiha, continues to act alongside Government forces in security and military operations. With the increased militarization of the crisis, Shabbiha has supported army units by conducting raids and clearing operations once Government forces re-established control of targeted localities. Nevertheless, the composition, strength, and level of involvement of this militia remain opaque. The role of Syrian authorities in supporting this militia could not be ascertained with a sufficient degree of certainty. In part, this difficulty stems from the diverse use of the term "Shabbiha". Many of those interviewed by the commission use the term to refer to any armed individual dressed in civilian clothes or in mixed civilian and military clothes. Others report that, in some areas, the Shabbiha are composed of civilians of neighbouring villages predominantly populated by Alawites. Some interviewees claim that Shabbiha are organised, trained and paid by central or regional authorities, while others have stated they are local volunteers, with loyalties to the Government arising from ethnicity and/or a fear of the consequences of the fall of Government on them and their families. While it is evident that Shabbiha act in concert with Government forces, their precise nature and the relationship between the Shabbiha and the Government remains unclear.
7. Government forces faced increased attrition in personnel and equipment due to combat operations, defections and casualties. While the number and level of defections are not yet having an operational impact, they had a psychological effect on the troops, thus fuelling a crisis of confidence within the ranks and encouraging further defections. Defections continued steadily but reach their peaks particularly in the aftermath of military operations. The Government also faced difficulties in drafting new recruits; as those called in for mandatory military service refuse to report. This situation forced the leadership to extend the conscription of those already serving in the ranks which, in turn, has created frustration and further defections among them.
II. Anti-Government armed groups
8. During the reporting period, anti-Government armed groups continued to engage with Government forces through direct clashes and ambushes, the use of Improvised Explosive Devices (IEDs) and raids on military/security facilities.
9. Despite the apparent absence of an overall effective command structure, the FSA continued to "represent" the main anti-Government armed group with a significant number of groups claiming affiliation to it. The FSA has created Local Military Councils in specific governorates which claim leadership over fighting groups operating in each of those areas. High-ranking defectors within the FSA have also announced the creation of a new command structure, namely the Joint Military Command of the Syrian Revolution, in charge of organizing and unifying all armed groups, coordinating military activities with political partners and managing security and stability in the transitional period.
10. Anti-Government armed groups vary in terms of capabilities, composition and tactics. At one end of the spectrum, there are small groups operating at the local level, mainly composed of civilians and defectors from the area, and often eluding direct confrontations with Government forces by temporarily withdrawing from their villages during army raids. Such groups mainly use IEDs attacks, overnight raids and low scale ambushes on small military units and facilities. On the other end, there are increasingly larger groups that have succeeded in integrating a number of smaller groups, and which are able to control some territory, directly confront army units in urban environment for days and conduct coordinated attacks on army positions and large convoys. The longer these groups have been able to control territories, the better they were then able to regroup and organize in the event of being ousted. Many groups claim affiliation to the FSA, while some others reject it but increasingly coordinate their actions, and support each other with fighters and equipment. Accounts indicate the existence of foreign fighters in the ranks of some armed groups. The commission has not, however, been able to determine their significance.
11. Anti-Government armed groups expanded their presence and activities throughout the country, clashing simultaneously with Government forces on multiple fronts. While Homs governorate was for months the main open battlefield between anti-Government armed groups and Government forces, military confrontations have spread to several other cities and regions, including Rif Dimashq, Aleppo and Deir el-Zour. At the time of writing, they are reportedly involved in sustained armed confrontations inside the capital, while establishing sanctuaries throughout the rest of the country.
12. By July 2012, anti-Government armed groups had extended their influence to further areas in Homs, Dar'a, Sahl Al Ghab in northern Hama, Idlib countryside, Deir el-Zour and north and west of Aleppo as a result of their increased ability to coordinate their operations at the provincial level. Anti-Government armed groups have also expanded the eastern front in Deir el-Zour, requiring the Syrian forces to re-deploy key units from the Damascus area, geographically stretching State forces and forcing the regime to deploy its strongest military units.
13. Anti-Government armed groups have increased their attacks on key infrastructure, such as oil installations and electrical plants. They have seriously undermined Government forces' control of the country's borders, leading most recently to their temporary control of some border crossing points. Cross-border movements of refugees as well as of anti-Government fighters appears to be more frequent, dense and fluid, although crossing the border through official crossing points remains a perilous trip in some areas.
14. During the reporting period, investigations have not confirmed the use of more sophisticated weaponry by anti-Government armed groups. However, their capacity to access and effectively use available weapons has improved. Anti-Government armed groups appeared to have increasing access to more funding and logistical support, such as ammunition and small arms. Some anti-Government armed groups also possess mortars and anti-tank missiles, reportedly looted during seizure of army positions. The level of destruction lately observed on destroyed government equipment indicates the use of new military capabilities such as anti-tank weapons.
15. The Commission has noted the increased and more efficient use of IEDs by anti-Government armed groups against army and security convoys, patrols and facilities. This asset has also been used to target members of military and security forces and Government officials; causing in many cases collateral damage among civilians and their properties.
III. Other actors
16. Several radical Islamic armed groups have emerged in the country. The most significant of those is the Al-Nusrah Front for the People of the Levant, an alleged Al Qaeda-linked group that has claimed responsibility for several attacks, including suicide bombings against Syrian Government forces and officials. The attacks that took place throughout the country, including in the cities of Damascus, Aleppo, Deir el-Zour, and Idlib, have targeted members of the Government, police, military, intelligence and the Shabbiha. The attacks consisted of suicide bombings, ambushes, assassinations, car bombings and IED attacks. The group has identified its leader as the Syrian national Sheikh Abu Muhammad al Julani. In addition to the Al Nusrah Front, other groups announced as operating within the country include Syrian Al Baraa Ibn Malik Martyrdom Brigade in Homs and the Abdullah Azzam Brigades, a regional al Qaeda affiliate.
17. The Commission noted the emergence of self-defence groups in several localities. Some of these groups emerged in villages populated by allegedly pro-government minorities that are not necessarily part of the Shabbiha militia.
[English only]
Special inquiry into Al-Houla
I. Background
1. Mandated to conduct a special inquiry into the events in Al-Houla of 25 May 2012, the commission delivered its preliminary findings to the Human Rights Council on 27 June (A/HRC/20/CRP.1), based on the evidence and materials gathered through 22 June. |a| The initial report found the Government responsible for the deaths of civilians as a result of shelling Al-Houla area and particularly the Taldou village. It also found that the Government had failed to properly conduct an investigation into the events in Al-Houlain accordance with international human rights standards. While the commission did not rule out the responsibility of other potential perpetrators in the killing of the Abdulrazzak and Al-Sayed families, |b| it concluded that it was unlikely that opposition forces were implicated.
2. The commission has since continued its investigation focusing on identifying the perpetrators. Access to the country was not granted despite specific requests to the Syrian Arab Republic via Note Verbale dated 4 June 2012 (annex XI) and in person by the Chairperson during his visit to Damascus 24-25 June 2012. Moreover, the commission had not received a response to a request dated 13 July to interview two specific witnesses whose testimony had appeared in the Government report and who had been interviewed by both Syrian and Russian journalists (annex XI). |c| Although the Syrian Government provided the preliminary report of its own commission of inquiry on 7 June, it has not delivered a final report, nor indicated when such a report might be forthcoming.
3. In its continued investigation the commission examined additional satellite imagery and interviewed a further eight witnesses, six of which were from the area of Taldou by telephone, including two survivors. It gathered several other witness accounts, video material and analysis from other sources, always giving due regard to their reliability and authenticity.
4. As noted, the Government's report stated that the Syrian Army had defended itself from an attack by what it deemed "terrorists", and that a number of soldiers were killed in the clashes. The report acknowledged the deaths of civilians and described the Abdulrazzak family as peaceful and stated that it had refused to rise up against the State or participate in demonstrations - suggesting they were attacked by anti-government groups for their failure to support the rebellion. The motive provided for the Al-Sayed family killings was their familial ties to Abdelmuti Mashlab, a new member of parliament, and existing feuds with some members of the armed groups.
II. Findings from further investigation
A. Consistency of accounts
5. More than forty separate interviews were considered by the commission. All interviewees were consistent in their portrayal of the events and their description of the perpetrators as Government forces and Shabbiha. Apart from the two witnesses in the Government report, no other account supported the Government's version of events. As noted, the commission's request to interview those two witnesses was not fulfilled. The commission, nevertheless, carefully reviewed their testimony as set out in the Government report and interviews they gave to other sources, and deemed their accounts to be unreliable as they contained a number of inconsistencies. |d| Not making the witnesses available to the commission meant that those inconsistencies could not be further explored. Separately, a high-ranking defector that the commission deemed credible reported that, prior to his defection, he was asked to help manufacture evidence supporting the Government's version of events.
6. At the same time, accounts of other witnesses interviewed by the commission remained consistent over time, including those collected from children, despite the fact that they were conducted by different interviewers. |e| The commission found it highly unlikely that the dozens of people interviewed in Taldou could be taking part in an extensive fabrication over such an extended period.
7. Consequently, the commission found the version of events received from the Government to be uncorroborated and insufficient when compared to the larger body of evidence collected from other sources. Besides the Government's report, little evidence was collected suggesting that anyone other than Government forces and Shabbiha committed the killings. |f|
B. Location and access
8. The commission's earlier report determined that both the anti- and pro-Government forces could have accessed the two crime scenes - the first scene being the seven Abdulrazzak family homes on Dam Street (Tariq al-Sad) and the second being the two Al-Sayed family homes on Main Street (Al-Shar'i Al-Raisi), across the street from the National Hospital (see map). The commission has since determined that the checkpoint at Al-Qaws remained in Government hands at the end of the day the incident occurred. The checkpoint demarcated the new front line between the opposition and Government forces. The commission concluded that Al-Sayed house was adjacent to the National Hospital and lying south of Al-Qaws checkpoint and that the crime scene remained in Government-controlled territory the entire time. Indeed, when UNSMIS arrived the next day and negotiated the handover of the bodies from the site (see the report of the Secretary-General to the Security Council, S/2012/523, 27 May 2012), Government soldiers were on duty at the checkpoint and in control of the crime scene.
9. In a related finding, the commission ruled out the theory proffered by the Government that the target of the killing was in fact the newly elected Member of Parliament from Taldou, Abdelmuti Mashlab. According to the Government report,
The first targets of this massacre were relatives of the People's Assembly member Abd Al-Moa'ti Mashlab. What was required was to take revenge, because he challenged them when he submitted his candidacy to the People's Assembly and managed to be elected as a member. This indeed happened before things went out of control and the massacre extended to slaughter other families. |g|
10. The "other families" are those of Mashlab's distant relatives, namely the Al-Sayed family. The commission determined that the Mashlab household was in opposition-controlled areas of the town at the time of the attack. Thus it would have been accessible to an anti-Government armed group seeking to mete out such a punishment, yet the house remained untouched. Both Al-Sayed family homes, conversely, were readily accessible to Government forces or local militias, but the same access would have been extremely risky if not impossible for anti-Government groups.
11. At the Abdulrazzak crime scene, where over 60 persons were killed, the commission considered it likely that a large number of perpetrators would have been necessary to carry out the crime. The killings occurred in broad daylight. Testimony received indicated that the perpetrators arrived both by foot and in vehicles, and that some arrived with pickups with machine guns mounted on top, in addition to a number of cars and minivans. The commission found that the movement of vehicles or weapons, as well as the size of the group, would have been detectable by Government forces at the Water Authority position. At the same time, access to the scene for any sizable group of anti-Government armed men would have been practically impossible, especially if they arrived in vehicles as multiple eyewitnesses attested.
12. Opposition members did manage to access the scene and remove the bodies later that evening and apparently did so using vehicles. However, they were apparently shot at by Government forces and had to abandon their efforts until the following morning.
C. Loyalties
13. The National Hospital had been occupied by the army for several months prior to the incidents. Although it was accessible by foot from both crime scenes, no one -- whether injured or fleeing the crime scenes -- sought refuge there. As far as the commission could determine, all injured and surviving family members, as well as people from nearby houses, fled to opposition-controlled areas. Moreover, as mentioned in the commission's previous report, it was anti-Government activists who arrived at the area first, took care of the deceased and assisted in treating the wounded and organized their burial. The commission saw no indication that pro-Government entities attempted to do the same, namely to secure the crime scenes or to recover the wounded and deceased after news of the events broke - at either site.
14. The Government report depicted the loyalties of the Al-Sayed family as pro-Government. Muawia Al-Sayed, who was killed alongside his son and young daughter that day, was a retired colonel in the security forces. His son Ahmad was still on active duty, but had been home on extended sick leave. The commission found it compelling that their family members, who survived, fled to opposition-controlled areas of Taldou and chose not to seek assistance from the Government forces nearby. From there, they requested that UNSMIS facilitate the handing over of the bodies to their location. Moreover, testimonies from surviving members of those families clearly describe Government forces and Shabbiha, as the perpetrators.
III. Conclusion
15. The continued investigation since its preliminary report of 27 June 2012, has supplemented the commission's initial understanding of the events in Al-Houla. On the basis of available evidence, the commission has a reasonable basis to believe that the perpetrators of the deliberate killing of civilians, at both the Abdulrazzak and Al-Sayed family locations, were aligned to the Government. It rests this conclusion on its understanding of access to the crime sites, the loyalties of the victims, the security layout in the area including the position of the government's water authority checkpoint and the consistent testimonies of victims and witnesses with direct knowledge of the events. This conclusion is bolstered by the lack of credible information supporting other possibilities.
16. The commission remains of the view that the Government has manifestly failed in its obligation to properly investigate the murders that took place in Al-Houla on 25 May 2012.
Map 1 - Al-Houla area
(Click to enlarge)
Map 2 - Inset from Map 1 - South Taldou
(Click to enlarge)
[English only]
Unlawful killing
1. The commission conducted more than 300 interviews relating to the unlawful killing of civilians and hors de combat fighters in more than 30 separate incidents. The bulk of the interviews -- 285 -- related to killings perpetrated by Government forces and Shabbiha. These killings occurred in the contexts set out below. The frequency of such violations has increased considerably during the reporting period. Concerning anti-Government armed groups, 15 interviewees provided information on the unlawful killing of captured members of Government forces and Shabbiha.
2. Under IHRL Government forces may take the life of a citizen only when doing so is both necessary and proportionate. |a| It is manifestly illegal to kill a person that has been arrested or disarmed and thus poses no threat. |b| When the threshold of armed conflict is reached in a country and IHL is in effect, the applicable rules differ to a degree, |c| but the underlying principles remain. Purposefully killing a civilian |d| or hors de combat fighter, |e| without first affording them a judicial process meeting international standards is a war crime.
I. Government forces and Shabbiha
3. Many forms of unlawful killing took place in the context of attacks against anti-Government armed group strongholds. The most prominent pattern began with a blockade, then shelling, use of snipers, and an assault by ground forces including Shabbiha followed by house searches. Defectors, activists or fighting aged men were systematically sought out during these operations. Wounded or captured Anti-Government fighters (i.e. hors de combat) were executed. In some cases, family members of fighters, defectors and activists as well as others who appeared to be randomly selected, were also executed.
4. Snipers regularly accompanied attacking forces during ground assaults and were responsible for a significant number of the civilian deaths. The commission recorded 35 instances of civilians shot by sniper fire over the reporting period. |f|
5. The following cases are emblematic of this pattern. Updates on previously reported incidents are also included below.
Tremseh (Hama), 12 July 2012
6. On 12 July 2012, in the early morning, FSA positions in Tremseh came under attack by Government forces using shelling, ground troops and helicopter gunships. Prior to the offensive, Government forces had cordoned the town with checkpoints. Reports from credible sources suggest that Shabbiha deployed together with the army.
7. The motive for the assault appears to have been a Government intervention to root out armed groups that had been involved in a series of tit-for-tat kidnappings with Shabbiha, reportedly from the neighbouring Alawi town of Safsafiah.
8. Initial reports indicated that the attack began with cutting supplies of electricity, water and mobile-telephone services. Shelling began around 5:00 am. Helicopter gunships supported the Government ground forces, which entered the town at 8:00 am. Together they inflicted heavy losses on the anti-Government forces.
9. Individuals attempting to flee were shot in fields on the outskirts of the town, though the commission could not determine whether they were civilians or fighters. The assault continued throughout the day, ultimately ending with Government forces retaking control of Tremseh. They withdrew around 8:00 pm.
10. UNSMIS observers attempting to reach Tremseh on 12 July were stopped outside the town by Government forces. When UNSMIS reached the village on 13 July, they reported that civilian objects, including over 50 homes and a school, were affected. They also observed "pools of blood and brain matter ... in a number of homes". UNSMIS interviewed 27 villagers who gave consistent accounts of extrajudicial executions of men arrested by Government forces.
According to those interviewed, the army was conducting house to house searches asking for men and their ID cards. They alleged that after checking their identification, numerous were killed.
11. Other uncorroborated reports blamed rebels for the civilian deaths in this incident. The commission viewed video material purportedly from Tremseh, broadcast on Russian television, of two FSA members captured by the army confessing to having killed civilians in the town. The commission could not assess whether these confessions were obtained voluntarily.
Al-Qubeir (Hama), 6 June 2012
12. Al-Qubeir is a predominantly Sunni village 20 km northwest of Hama. Although emptied as a result of fighting at the time of writing, it had consisted of approximately 25 houses with no more than 150 residents, most of them from the al-Yatim family. The commission examined a testimony from an eyewitness (defector), as well as reports from other credible sources with direct knowledge of the 6 June events. The Government provided the commission with a report of its findings in a Note Verbale, dated 19 June 2012. |g|
13. The Al-Qubeir area had reportedly been experiencing ethnic tensions since the beginning of the conflict. |h| In the days leading up to the incident a resident of Al-Qubeir had an altercation with Alawi members of the neighboring village of Al-Twaime. Anticipating reprisal, the villager requested support from members of the FSA, including seven defectors from the nearby village of Grejis. According to the Government, when they arrived at the village, the FSA elements shot at some of the men in Al-Twaime. The men from Al-Twaime alerted Government security forces.
14. From evidence collected, it appears that after shelling the houses where the anti-Government forces were holed up, ground forces moved in. They were supported by the Shabbiha who also deployed in the area. An eye-witness stated that many people were killed and injured in the shelling. The injured were reportedly executed by the Shabbiha, and their bodies burned in the houses. Video footage taken during the visit of UNSMIS monitors shows bullet holes on an interior wall of a house, accompanied by blood splattering, suggestive of deliberate killing. The number of deceased has not been confirmed and varies from the Government's account of 40, a figure that includes both killed and missing, to 78, a figure put forward by anti-Government activists. Under both accounts, at least two women and four children were among those killed.
15. In its report the Government described how it deployed to the village with security forces in response to a request from villagers seeking protection from "terrorists". It mentioned the use of RPGs and light arms in its assault on Al-Qubeir. According to the Government's inquiry, initially its forces were repelled and at least one officer was killed, while several more were wounded. Reinforcements were brought in and, according to the report, "shelled also the places where the terrorists were stationed with RPG shells". The clash ended on the same day at about 8:00 pm and resulted in the deaths of a number of the terrorists". According to the report, security forces attacked only the house of Alman Al Yatim where allegedly the "terrorists" were located.
16. The report also states that the bodies of some women and children were examined by a forensic pathologist who determined that they had been killed by gunfire at close range prior to the arrival of the security forces in the village - the implication being that the perpetrators were the "terrorists".
17. It is likely that many people died as a result of shelling. Some clearly died from gunshot wounds. However, some of these individuals may have been directly participating in the hostilities, which means targeting them would not be illegal under international law.
18. The commission found that a reasonable suspicion exists that unlawful killing of civilians or hors de combat fighters occurred at the hands of pro-Government forces, including Shabbiha from neighboring villages. This conclusion is based on the following factors: the eyewitness account; the Government's report and other materials gathered indicating that residents of Al-Qubeir were feuding with their Alawi neighbors, providing a motive for reprisals; and the FSA and defectors having been invited to Al-Qubeir by villagers seeking their protection.
Al-Houla (Homs), 25 May 2012
See A/HRC/21/50, paras. 41-50.
Kili, Idlib governorate, 6 April 2012
19. The commission interviewed six men and two women who gave accounts of extra-judicial killings in raids on the village of Kili in early April. Security forces entered this town of approximately 15,000 inhabitants following an anti-Government demonstration. The eyewitnesses described in detail how the security forces entered the town after an extensive bout of shelling, arrested two brothers, Moustapha Qarsoum and 'Adil Qarsoum, executed them and then burnt the two bodies. The shelling of Kili resulted in at least eight additional civilian deaths. Many houses of perceived opposition collaborators were burned.
Tal Rifat (Aleppo), 5 April 2012
20. The commission conducted 18 interviews with five women and 13 men who had knowledge of the events in Tal Rifat on 5 April. During a demonstration that turned violent, protestors captured four members of the security forces. The four were held for ransom, with their captors threatening to kill them unless the security forces, who had surrounded the city, withdrew. The Government forces complied, and the four were released. Immediately afterwards, the 4th Division of the Syrian army raided Tal Rifat. The village was cordoned in advance. Many of the inhabitants who supported the anti-Government armed groups had already fled. One family, the Sakrans, that was openly pro-Government, and had a member working in the military security, stayed behind, as did a small number of anti-Government fighters.
21. At the end of the hostilities at least 52 corpses were discovered, including members of the Sakran family who had been burned in their home. At least seven of the anti-Government fighters who had stayed behind were also found dead. One testimony presented evidence suggesting three people had been executed standing against a wall. Hundreds of homes were looted and burned, reportedly as punishment for the villagers who were accused of having captured the security force personnel and harbouring members of anti-Government armed groups.
Taftanaz (Idlib), 3-4 April 2012
22. The commission conducted 16 interviews with persons having direct knowledge of the events of 3 April 2012 in Taftanaz, including fighters and civilians. Interviewees stated that the Syrian army launched an intensive attack on the town which had been the scene of several anti-Government protests. Multiple reports indicated that shelling from two directions commenced at 7:00 am and continued for several hours while tanks formed a cordon around the town. As civilians attempted to flee, they came under attack by helicopter gunships. The commission recorded at least six civilian casualties resulting from the shelling and gunship attacks. At the time, many men from the town reportedly took up arms and engaged the Syrian army in battle, slowing their progress into Taftanaz. The commission received reports of tanks being destroyed by anti-Government forces, the latter of which were using mosque loudspeakers to direct and motivate their fighters. Two mosques were allegedly destroyed by the Syrian army.
23. In the early hours of 4 April 2012, anti-Government forces reportedly made a tactical withdrawal from Taftanaz, leaving the way free for Government forces together with Shabbiha to enter Taftanaz and to conduct house searches. The commission recorded multiple executions occurring during these searches. In one case, the bodies of two adults and five young children were found burnt in a house. Some bodies were reportedly found with gunshot wounds to the head and chest. Some of those bodies were also found blindfolded with hands tied behind their backs. Casualty estimates range from 84 to 110 people, many of them from the extended Ghazal family. Over 500 houses were reportedly looted and then burnt. According to reports received between 30 and 40 people are missing, presumed to have been arrested and detained by the Government forces during the raids.
Sarmin (Idlib), 22-23 March 2012
24. According to six witnesses, the army began shelling the town of Sarmin in the early hours of 22 March 2012. Sarmin had been the scene of anti-Government protests and the base of dozens of defectors and other members of anti-Government armed groups. Most of the civilian population and members of anti-Government armed groups fled before the attack. During the shelling, which, according to witnesses was falling in random locations, 18 people were killed. The army entered Sarmin on 23 March 2012 and, in line with established practice, commenced house searches. Snipers were positioned on rooftops. The commission received reports of men being shot either during searches or while on the street. In one corroborated account, three men, all in their 20s, were taken outside during a house search and shot in the front-yard in the presence of their families. The victims were family members of a well-known lieutenant from the 15th Division Special Forces who had defected. Reports from credible sources describe approximately 300 people arrested during the search operation, of which 10 were killed shortly afterwards. Some were later released; others were reportedly still held at the time of writing.
Ain Larouz (Idlib), 4-12 March 2012
25. On 4 March 2012, four officers defected from an army base in Aranba and hid in the nearby village of Ain Larouz. Shortly after sunset, military and security forces raided the village looking for the four defectors. They searched houses, burned shops and vehicles and mistreated residents. They detained approximately 35 persons, including two women and a 10-year-old girl. Security forces were reported to have announced over the mosque loudspeakers a warning with a deadline for the people to hand over the defectors or else they would execute the captives and burn down the village. Following the threats most villagers fled.
26. Five days later, on 9 March, the army blockaded the roads and began to shell the village after positioning snipers on rooftops. According to four witnesses, several persons who tried to flee were shot, either by snipers or by pursuing ground forces. Although the defecting officers were not found, the army released most captives three days later, save for four persons - believed to be relatives of the officers - whose bodies were found outside the city a few days later.
Yabroud (Rif Dimashq), 4 March 2012
27. A defector recalled how, on 4 March, he deployed to Yabroud village to take part in an operation. Upon arrival, he joined a battalion of tanks and six buses of security and Shabbiha elements. He and the others were ordered to raid the village after it was shelled. An informer accompanied them in the village and pointed out the houses of activists and defectors.
28. A group of people had fled towards a neighbouring mountainous area, but were still visible to the soldiers. The commanding officer, after consulting his superiors, went back inside a tank and fired a round at the group of approximately 60 people, apparently killing dozens. The commission could not verify the profile of this group, which may have included members of anti-Government armed groups.
Atarib (Aleppo), February-April 2012
29. The commission conducted 17 interviews with persons with direct knowledge of the events in Atarib in February and in April 2012. The town had been the scene of several anti-Government protests. In the early afternoon of 14 February 2012, Government forces and FSA fighters clashed in Jabal Karmin, three kilometres from Atarib. On the evening of the same day, Government forces attacked Atarib. The town was reportedly shelled by tanks located on its perimeter, resulting in the death of eight people. Ground forces are said to have entered the town, positioning snipers on the rooftops of public buildings, including at least one school. The commission received multiple, consistent reports of civilians, in particular children, being shot and killed by sniper fire in February during those events, but also in March and April 2012.
Homs, Feb-May 2012
30. Government forces launched a large-scale military attack on the neighbourhood of Bab Amr in Homs city on 2 February 2012, using mortar shells, missiles and tank shells. Although Bab Amr had been targeted on previous occasions, the sustained intensity of this attack was unprecedented. The neighbourhood was considered a hotbed of anti-Government armed groups, particularly the FSA, which had a strong presence there until 2 March, the date on which Government forces reclaimed control of the neighbourhood after 27 days of sustained shelling.
31. During the same period the FSA engaged in limited skirmishes with Government forces on the outskirts of Bab Amr, especially in the nearby Insha'at neighbourhood. Despite its lesser military capacities, the FSA was able to push Government forces back in some of the areas.
32. Government forces deployed to most access points in the area, thus severely restricting movement. At the time of writing, Bab Amr remained under the control of Government forces and was suffering a shortage of food and medical care. Much of the population fled the neighbourhood to surrounding villages and other neighbourhoods, including Khaldieh, Shammas and Al Ghouta, during the intense shelling periods throughout February 2012.
33. The commission recorded a high incidence of extra-judicial executions of civilians in various neighborhoods of the city of Homs since March 2012. Multiple accounts were received of the killing of the entire Sabbouh family in Bab Amr on 5 March. On 11 and 12 March 2012, the neighbourhood of Karm al-Zeytoun reportedly came under an attack by what was described as Shabbiha protected by the army. Multiple families were killed in their homes, apparently by knives or other sharp instruments. Estimates of casualties, unverified by the commission, ranged from 35 to 80 in that attack.
34. The commission found that hors de combat fighters were similarly killed. One man interviewed by the commission stated that he assisted in the burial of 15 bodies of fighting aged men that appeared to have been executed. Syrian security forces and Shabbiha reportedly removed adult men from houses in the neighbourhood of Sultaniya, before lining them up and shooting them.
35. Multiple, consistent reports have been received about extra-judicial executions of civilians in the Shammas neighbourhood in Homs on 15 May 2012. Shammas is approximately three kilometres from the Baba Amr neighbourhood. Residents describe members of the security forces and Shabbiha entering the area and shooting into the air before commencing house searches. One of those interviewed explained that the building opposite her house was abandoned and that security had broken in, transforming it into a "slaughter house". She described how approximately every 15 minutes security forces would bring in a man handcuffed and blindfolded and that she would hear a shot shortly afterwards. The first man that was shot was dumped in the street. Another interviewee indicated that the following day he found 23 bodies, including the local imam, in a building near the mosque. Most had bullet wounds to the head.
36. Civilians were also killed, reportedly by sniper fire, in Homs, especially in the neighborhood of Bab Amr and Khaldiya, in March and April 2012. In these cases the commission documented that the bodies of people killed by snipers were often left where they fell, as no one risked retrieving them. |i|
Al-Qusayr (Homs), Feb 2012 |j|
37. Four interviewees described the city of Al-Qusayr being pinned down under sniper fire in February 2012. One male resident interviewed by the commission was hit on his way back from taking his wife and daughter to the doctor. He had stopped along the road to help some people to restart their car and was hit from behind. The bullet hit a nerve paralysing his left leg.
Abdita (Idlib), 21 February 2012
38. Four women and 17 men having direct knowledge of the events in Abdita on 21 February 2012 were interviewed by the commission. Their testimonies described in detail the army's blockade of the entrances to the village that day and how they conducted house searches, apparently looking for persons implicated in an IED attack. In one well-documented instance, the army entered the house known for hosting FSA members, took the men out to a neighbouring field, asked them about the IED and shot them when they did not receive an adequate response. One of the three survived and was interviewed by the commission. Another eyewitness stated that 15 persons, out of a total of 30 who died in the clashes that day, died from wounds that suggested execution. Relatives of the FSA leader Riad al-Assad, who is originally from Abdita, were apparently among those summarily executed.
Legal conclusions
39. The commission finds that the individual instances of killing described above provide reasonable grounds to believe that Government forces and Shabbiha violated IHRL provisions protecting the right to life. Furthermore, many of the same killings met the definitional requirements of the war crime of murder. |k|
40. Additionally, the evidence indicated that many attacks were directed against civilians and civilian objects. |l| Although the Government's stated aim was to attack "terrorists", the attacks were directed at neighborhoods, towns and regions with civilian populations. The commission therefore concludes that there are reasonable grounds to believe that the war crime of attacking civilians has been perpetrated in many instances.
41. There are reasonable grounds to believe that the documented incidents also constituted the crime against humanity of murder. In those towns and villages where there was a pattern of blockade, shelling, ground assault and house-to-house searches, the element of a widespread or systematic attack against a civilian population was met. The scale of the attacks, their repetitive nature, the level of excessive force consistently used, the indiscriminate nature of the shelling and the coordinated nature of the attacks led the commission to conclude that they were conducted pursuant to State policy.
II. Anti-Government armed groups
42. The commission documented instances of anti-Government forces killing captured members of the Government forces and Shabbiha and suspected informers. While the human rights legal regime differs with respect to non-state actors such as the anti-Government armed groups, IHL applies equally to all parties in a conflict. Thus, killing protected persons or enemy soldiers who are hors de combat is illegal and can attract individual criminal responsibility. |m|
43. Members of anti-Government armed groups have admitted killing Government soldiers after capture when the captives refused to join them or if they were deemed to have "blood on their hands". The commission documented incidents involving anti-Government armed groups -- specifically the FSA -- primarily in Homs, including the Bab Amr and Khaldiyah neighborhoods during the February 2012 siege, and in Al-Qusayr in June 2012.
44. Despite its limited access to victims of anti-Government armed groups, the commission documented anti-Government fighters having killed captured Government soldiers and Shabbiha who had admitted, probably under duress, to taking part in shelling or military attacks.
Homs Governorate, June 2012
45. In Qusayr, the FSA commanders decided to attack the municipality to dislodge Government snipers. The attack succeeded and the FSA captured 22 Government soldiers. One interviewee told the CoI that the detainees were judged by a judicial committee. Some were released to join their families. Some were executed as they were found guilty.
46. In early June 2012, FSA fighters attacked a garrison near Talbisah. Apparently in coordination with Government forces soldiers inside, the FSA overran the location, took the ammunition and weapons and left with a number of defecting soldiers. According to an eyewitness who was in the army at the time, but who later defected, two Alawite soldiers were executed during the raid. He and others found their bodies inside.
47. A defector who fought in the ranks of the FSA-affiliated Al Farouk Brigade in Homs city stated that members of the Government forces, including those he claimed were three Iranian snipers, were summarily executed after they apparently confessed to killing Syrians.
Aleppo governorate, June 2012
48. The commission viewed video footage that portrayed the bodies of approximately 20 men, allegedly Shabbiha, who had been killed by the anti-Government fighters in Aleppo governorate in mid-June.
49. The commission interviewed 10 FSA soldiers who had never heard of IHL or IHRL. One FSA fighter told the commission:
"We do not leave them alone until we kill them. Either they finish us or we finish them. We do not let them go and continue to kill people. We do not take prisoners, no one comes out alive. If he manages to escape he will come back to kill me."
50. Another FSA fighter interviewed stated that when senior military officers are captured they are exchanged for detained members of anti-Government armed groups. However, if the FSA captures an ordinary officer or soldier, "they are interrogated and submitted to trial where Sharia law is applied". The interviewee provided information on the composition and functioning of such a court in Tal Rifat. Its members are apparently educated and from diverse backgrounds. For example, some are lawyers, religious leaders and others known for their integrity. The soldier had never heard of IHL and related his view that, "[IHL] is not better than Sharia law where everyone is punished for what he has done by the same means, an eye for an eye".
51. The commission has taken note of an increased use of IEDs by anti-Government armed groups. Interviewees described how, in April 2012, they had put nails inside pipes with explosive powder and a fuse. Others described the use of gas and fertilizer to create homemade bombs. Information provided by the Government, but not corroborated by the commission, indicated that some 1149 explosive devices have exploded or were dismantled during between May and July 2012.
Legal conclusions
52. The commission considered the corroborated evidence of killing hors de combat Government soldiers and Shabbiha. In Qusayr, Bab Amr, Kaldiyeh and elsewhere the commission noted that persons captured by the FSA on occasion faced a quasi-judicial process prior to their execution. A consistent account of the trial process has not been forthcoming, nor has information on the extent of adherence to fair trial standards. Common Article three of the Geneva Conventions, recognized as customary IHL, prohibits such executions unless the accused has been afforded "all the judicial guarantees which are recognized as indispensable by civilized peoples" These guarantees include, inter alia, the presumption of innocence, an impartial tribunal, the ability to mount a defense and examine opposing witnesses, and especially in capital cases, the ability to appeal the judgment. Executing a prisoner without affording fundamental judicial guarantees is a war crime.
53. The commission concluded that the information in its possession on executions perpetrated by anti-Government armed groups -- with or without a "trial" -- gave rise to reasonable grounds to believe that the war crime of murder had been committed on multiple occasions. The commission could not corroborate alleged attacks directed against individual civilians not participating in hostilities or against a civilian population.
III. Unknown perpetrators
54. The commission noted four incidents where attacks were committed by as yet unknown perpetrators. They are as follows:
(i) In the period leading up to this report, a series of attacks, primarily gunfire, was directed at UN observers' convoys. On 12 June 2012, a convoy headed to Al-Haffe was stopped by alleged pro-Government protestors and was later fired upon by unknown gunmen. On 16 June 2012, UNSMIS stopped its patrols due to safety concerns;
(ii) Thirteen factory workers were killed on 31 May 2012 near the village of al-Buwaida al-Sharqiya, between Qusayr and the city of Homs. The men were allegedly taken by Shabbiha, who arrested, robbed and then killed them. A female eyewitness was with them, but was set free;
(iii) UNSMIS confirmed on 30 May 2012 the discovery of 13 men's bodies near the eastern city of Deir el-Zour. Their hands were tied behind their backs, and some were shot in the head. The bodies were discovered by locals in the area of Assukar, 50km east of Deir el-Zour;
iv. Journalists from Ikhbariya TV were reportedly killed in an attack on their premises in the town of Drousha south of Damascus on 27 June 2012.
IV. Explosions
55. Between March and July 2012, there have been a series of large explosions in which scores of civilians were killed. The explosions appear to be by suicide bombers or by explosives hidden in vehicles and detonated remotely. The commission has compiled the list below based on open sources it deems credible and where the information is consistent with other material on hand, including interviews conducted by the commission:
(i) 18 July 2012, bombing at Syria's national security building in Damascus killed the Minister of Defense and other senior Government security officials;
(ii) 30 June 2012, a car Bomb targeted a funeral procession in Zamalka, Damascus;
(iii) 14 June 2012, a car bomb exploded near the Sayyidah Zaynab shrine in a Damascus suburb injuring 11 people;
(iv) 19 May 2012, a car bomb exploded in the parking lot of a military compound in Deir el-Zour;
(v) 10 May 2012, two large car bombs exploded near the Military Intelligence branch in Damascus' Qazaz neighborhood killing 55 people;
(vi) 30 April 2012, twin explosions near daybreak close to a government compound in the city of Idlib killed 20 people, most of them from the security services;
(vii) 27 April 2012, a bomb near a mosque of Al-Meidan neighborhood of Damascus killed 11 people;
(viii) 18 March 2012, a car bomb killed three people in Aleppo; and
(ix) 17 March 2012, two bombs apparently aimed at an intelligence service office and a police headquarters killed 27 people in Damascus.
Legal conclusions
56. While these acts may be linked to the non-international armed conflict and thus assessed under the applicable IHL rubric, lack of access to the crime scenes combined with an absence of information on the perpetrators hampered the commission's ability to render such an assessment. They are nevertheless domestic crimes prosecutable under the Syrian criminal code. The Government is obliged to ensure an investigation is conducted impartially, promptly, effectively and independently in line with its international human rights obligations.
Annex VI[English only]
Indiscriminate attacks |a|
I. Homs Governorate
Bab Amr neighbourhood, February-May 2012
1. The majority of deaths in Bab Amr during the military operation that began in February 2012 was caused by extensive and indiscriminate shelling by Government forces on primarily civilian infrastructure and residential areas. Targets affected by the shelling included schools, state hospitals, field hospitals, shops, mosques, houses and apartment buildings, and storage facilities. While the FSA was active in the neighbourhood, either through military activity or relief efforts, shelling was the primary cause of death and injury among children, women and elderly.
2. Most of the shelling was indiscriminate, even though in some of the cases it seemed to target specific locations. On 22 February 2012, at least two shells struck on the Bab Amr Media office, killing many of its occupants, including two foreign journalists. In another incident in early February a number of shells fell on the only operational field hospital in Bab Amr, causing the death of many of the patients and medical staff. An intense period of shelling caused significant destruction to the neighbourhood infrastructure and forced the residents to flee.
Al Qusayr, February-July 2012
3. The city of Al-Qusayr is located a few kilometres southwest of Homs city in a mountainous region along the Syrian-Lebanese border, in the Western part of the country. Its strategic relevance derives from its location, as well as the demographic makeup of its citizenry which consists of a majority of Sunni Muslims, 10 percent Christians and a few hundred Alawites.
4. Large numbers of its residents have joined the anti-Government protests which have spread across the country since February 2011. Al-Qusayr has been theatre to some of the heaviest clashes between the Government forces on the one hand, and the FSA and other anti-Government armed groups on the other. The city was initially placed under blockade by the Syrian army in November 2011. The period since has been continuously marred by varied measures of violence which persist at the time of writing.
5. Since February 2012, Al-Qusayr experienced heavy armed confrontations between Government forces and anti-Government armed groups for the control of the city - particularly for the control of the Municipality building, which was used by Government forces as a base to launch attacks in the city, the market area and the main hospital.
6. The commission interviewed 10 persons who provided accounts of alleged crimes committed in Al-Qusayr. Information gathered by first-hand witnesses indicate that the city came under heavy shelling during the period mid-February to mid-July 2012, with peaks in late March-early April 2012 and the first two weeks of June 2012.
7. Witnesses have alleged that in early to mid-June 2012, the army in conjunction with security forces and pro-Government militias went on an offensive, indiscriminately attacking civilians and fighters alike in most of Al-Qusayr, particularly Arjoun, Abu Huri, Baasatin and generally West Qusayr. Accounts show that the Syrian forces resorted to a range of weapons, including missiles, shells and rifle grenades, striking residential areas and resulting in the loss of life and heavy injury. They also caused damage to private homes and public infrastructure.
8. In early May after visiting Al-Qusayr, a credible source told the commission, "I witnessed what people generally call random shelling - the Syrian army just spreads mortar fire across an entire neighbourhood. It's sometimes preventive while they put up checkpoints. While we were there we were shelled from relatively close in, and it wasn't their heaviest ammunition. Plus there were a few rocket attacks, mortar and tanks."
9. Several witnesses -- including children and women -- suffered from shrapnel wounds as a result of shells exploding within a few meters' range. The majority of witnesses who suffered serious injuries as a result of the shelling were civilians at home or in the streets. Several people suffered gunshot wounds at the hands of snipers positioned on top of buildings in Baasatin and West Qusayr.
II. Hama Governorate
Tremseh, 12 July 2012
10. Shelling in Tremseh was at times aimed at specific military objectives, while at other times appeared indiscriminate. UNSMIS reported that Government forces appeared to be targeting fighters and activists with their weaponry. However the same report stated that, "a doctor and his children were killed when a mortar shell hit their home". |b|
III. Latakya Governorate
Salma, 11 June 2012
11. Salma is located on a strategically important road towards the border on Turkey. Anti-Government fighters repelled an attack by Government forces on 11 June. Thereafter, the Syrian army repeatedly shelled the village, using helicopter gunships, mortars and artillery. Reports suggested that the shelling did not target specific locations harboring FSA fighters, but was indiscriminate.
Al Haffe, 4-12 June 2012
12. On 5 June 2012 Government forces began an assault on the town of Al-Haffe, Latakya governorate. Prior to the offensive, the town experienced an escalation of anti-government protests and was home to a small but increasing number of defectors. There was a protest on 4 July which, although non-violent, was clearly calling for the ouster of the Assad Government.
13. Al-Haffe town, whose population of 10,000 is primarily Sunni, is surrounded by Alawi villages. The FSA had a presence in the area numbering as many as 600, apparently based in the nearby village of Dofeel. Government police and military intelligence are normally present in the village and were there at the time of the assault.
14. The commission conducted over 30 interviews with persons who fled the fighting in Al-Haffe. Many of these interviews were with people who had just been injured and evacuated. They described in detail what had been the pattern during several such offensives.
15. Attacks began with cordoning off and then shelling, first the village of Dofeel and then later Al-Haffe itself. Both tanks and helicopter gunships were involved. The security forces present in Al-Haffe placed snipers on top of several buildings. Consistent reports stated that shooting was also coming from neighbouring villages, although the commission could not determine whether this was from Government or local militias.
16. While the target was likely FSA positions in both areas, the shells randomly struck civilian objects such as homes, schools and mosques. Civilians were confined in their houses, while electricity and water were cut off and food supplies dwindled. At least eight civilians, including three children, were killed when a shell hit their home. Several other houses were destroyed.
17. Injured residents were unable to seek medical treatment at the State hospital on the outskirts of Al-Haffe which was occupied by Government forces who positioned snipers on the roof. A field clinic was set up, and according to medical personnel working there, the majority of the casualties -- including both killed and injured -- was fighting age men. Still, there were women and children brought to the hospital who had injuries caused both from shelling and from machine gun or sniper fire.
18. The FSA apparently held off the initial assault, inflicting heavy losses on the Government forces. One eyewitness -- an FSA fighter -- reported seeing Government ground forces entering the village in the early afternoon on 5 June who were forced to retreat after encountering stiff resistance. This led to increased shelling and attacks from helicopters.
19. Around 16:00 on 5 June the FSA surrounded the Finance building from which military security forces had been firing. After an intense battle, the FSA overran the building, allegedly capturing several Government officers. The latter were reportedly set free, although the commission was unable to verify the assertion.
20. Over the course of the following eight days, fighting continued in and around Al-Haffe. The FSA ultimately withdrew after evacuating nearly all the remaining civilian population. According to numerous corroborated accounts, the army together with Shabbiha entered the village on 13 June. Eyewitness accounts portrayed a campaign of burning and pillaging of the houses of suspected anti-Government supporters. UNSMIS observers, who were allowed into the town only on 15 July, noted that many public buildings were looted and burned.
IV. Other incidents documented
21. Additional corroborated accounts of indiscriminate shelling were recorded in Atarib (Aleppo) 14 February; Ain Larouz (Idlib) 5 March; Sermin (Idlib) 22 March; Taftanaz (Idlib) 4 April; Kili (Idlib) 6 April; Al-Houla (Homs) 25 May, and 12 and 13 June; Al- Haffe (Latakya) 4 and 5 June 2012; Akko (Hama) 9 June; Salma (Latakya) 11 June; and Jobar (Idlib) multiple dates in late June.
22. The commission also reviewed videos of shelling in the following locations which appeared to be indiscriminate, although neither the authenticity of the videos nor the target of the attack could be verified: Talbiseh, 17 June; Zafarana, 21 June; Lajat (Dar'a), 25 June; Jalama, 12 July; Abaled, 17 July; and Hayam, 21 July.
V. Cluster munitions
23. The Commission took note of video evidence emanating from Hama governorate in July 2012 indicating the use of cluster munitions. The photographs and video of bomblets could not be corroborated. The use of anti-personnel mortar munitions was recorded in Zabadani, Damascus governorate, on 12 April. Corroborated accounts described the shells exploding just above ground to maximize human casualties. Although the Syrian Arab Republic is not a party to the Convention on Cluster Munitions, the commission notes that such weapons are inherently indiscriminate when employed in residential areas or areas frequented by civilians.
VI. Legal conclusions
24. Based on its findings the commission determined that the legal threshold for indiscriminate attack as a violation of customary IHL has been met. Government forces fired shells into areas inhabited by civilians while failing to direct them at a specific military objective.
25. Moreover, the attacks, especially shelling, caused incidental loss of civilian life and injury to civilians, as well as damage to civilian objects, which in the view of the commission were excessive when compared to the anticipated military advantage.
[English only]
Arbitrary detention and enforced disappearance
1. The commission continued to receive first-hand accounts of arbitrary arrest and detention, predominantly of men and boys. During this reporting period, 25 people were interviewed who alleged that they had been arbitrarily arrested and unlawfully detained by Government forces and Shabbiha. A further five interviews were conducted with defectors who stated that, while in active service, they had observed arbitrary arrests and detentions.
2. According to information received from the Government, over 10,000 people have been released since February 2011, pursuant to four amnesties, including 275 detainees released on 10 July 2012. The Report of the Secretary-General on the implementation of Security Council resolution 2043 (2012), noted that UNSMIS had observed the release of 183 detainees in Dar'a and Damascus on 31 May 2012, and 285 detainees in Damascus, Dar'a, Hama, Idlib and Deir el-Zour on 14 June 2012.
3. Official statistics on the number of detainees as well as the number of detention centres have yet to be provided by the Government. The Commission noted that, as of 25 June 2012, UNSMIS had received and cross-checked information on 2,185 detainees and 97 places of detention across the Syrian Arab Republic. Syrian NGOs have put the number of those currently detained as high as 26,000.
4. Given the current lack of access to the country, the commission is not able to independently confirm numbers of those arrested and detained during the reporting period.
I. Findings
5. The majority of arrests occurred in four contexts: arrests of those believed to be planning to defect or who had otherwise refused to follow orders (usually to open fire on civilians); arrests of persons in house searches; arrests of persons at checkpoints; and arrests of protesters, either at or immediately subsequent to the protests. A minority of cases were reported where people were arrested randomly in the street in areas where there were no active hostilities at the time. Four of those so arrested and detained were women. Two were children, a boy of 14 and a girl of nine.
6. Eight of those interviewed were members of the Government forces at the time of arrest. Six of these stated that they had been arrested on suspicion of planning to defect. Two others stated their arrests had been a consequence of their refusing orders to fire on civilians in Idlib (February 2012) and in Homs (May 2012) respectively. Of those arrested on suspicion of planning to defect, one stated that he had been found to be in contact with anti-Government armed groups. Most, stated that they were not informed of the basis for the suspicions. One noted that he had been arrested as part of a mass arrest of 60 Sunni soldiers in Aleppo in April 2012. Three of those arrested were detained for over two months with one moved among eight different detention facilities.
7. According to testimonies received, arrests made during house searches, were conducted by military and security forces. The commission received corroborated accounts of arrests taking places during house searches in the towns of Ibdita (Idlib) in February 2012 and of Ar-Rastan (Homs) in March 2012. House searches appeared to target specific wanted persons. As described in multiple interviews, individuals were sought because of their defections from the Government forces or their involvement in protests. Also targeted were doctors who had treated protesters or members of the anti-Government armed groups. In at least three instances where the wanted individual could not be located, security forces arrested and detained members of his or her family instead. Two interviewees reported having been arrested and detained on multiple occasions. In three cases, interviewees stated that they had been initially held in temporary detention centres -- in one case, a former fitness centre in Ar-Rastan -- before being either released or moved to official detention centres.
8. Individuals were also reportedly arrested, and in one case detained, at checkpoints in Homs, Al Ladhiqiyah, Idlib, Aleppo, Dar'a and Damacus governorates. Lists of wanted persons were allegedly circulated to checkpoints. Those arrested at checkpoints stated that they were targeted either for being defectors or for having organised or taken part in protests. In one instance, which could not be verified, an interviewee reported being arrested and detained in Tartus in March 2012 as injuries that he had suffered during a previous detention were viewed by Government forces as evidence of involvement in fighting.
9. Reports continue to be received of people being arrested -- by security forces and Shabbiha -- during and immediately following protests. According to interviews, arrests took place following protests in the cities of Idlib in March and April 2012, and Dar'a and Damascus in April 2012. One interviewee, a 14-year-old boy, stated that he and several other adolescents were arrested after a protest in Idlib city in March 2012. The commission was unable to verify this account, but notes that another interviewee, who worked in a detention centre in Damascus until June 2012, reported that minors were arrested and detained following protests.
10. A number of others interviewed were arrested in the street in areas where there were no active hostilities at the time. Those arrested reportedly included five females, including a nine year old girl. Additionally, a young man was allegedly arrested in Aleppo in April 2012, having been found carrying a large amount of foreign currency, which was viewed as evidence of support to anti-Government armed groups. None of those arrested in these circumstances were taken to official detention centres, but instead were reportedly held in unofficial centres, set up in buildings close to their place of arrest. None of these incidents could be verified.
12. Only two of those interviewed, both arrested on suspicion of planning to defect, had been formally charged with any offence. No interviewee had been offered or received the benefit of legal counsel. Only one had received a family visit, with the majority unsure if their family were aware of the location of their detention.
13. In the days prior to release, many said that they had been made to sign or thumbprint a document, the contents of which were unknown to them. Three of those detained were reportedly brought before a judge and then released. In one unverified incident, the interviewee reported that the judge had ordered his release, but he had remained in detention for another 3 months. Also interviewed was a former member of the judiciary who indicated that security agencies brought to his court detainees who showed signs of abuse, including open wounds. He said that security agents did not permit questioning unless they were present and, on one occasion, held the judge at gunpoint. Several detainees stated that the judges did not question them about their injuries and that the presence of security units in the courtroom intimidated them.
14. The lengths of detention of those interviewed ranged from a few hours to approximately 5 months. The majority of those interviewed were held for 60 days or less by Government forces.
II. Legal conclusions
15. The commission considers that Syria's domestic legislation fails to meet the country's obligations under Article 9 of the ICCPR to ensure that those arrested and detained on criminal charges appear "promptly before a judge or other officer authorized by law to exercise judicial power".
16. There are reasonable grounds to believe that Government forces and Shabbiha have continued to arbitrarily arrest and detain individuals during this reporting period. Particular concerns are the holding of individuals without charge; the failure to provide detainees with legal counsel or family visits and the absence in the vast majority of cases reported of any form of judicial review of the detentions.
17. With respect to the crime of enforced disappearance, the families of those arrested were not informed, at the time of arrest or at any point thereafter, of the places of detention of their relatives. With the exception of one detainee, no other detainees interviewed had been afforded family visits.
18. The majority of the families of those detained have not, according to their testimonies, made attempts to obtain information about their relatives' places of detention. The reasons for this are said to be twofold: fear that contact with the Government, including at the time of the arrest, would prompt further arrests; and the fact that, in some instances, on-going hostilities made going to official detention centres difficult, if not impossible.
19. Where the Government has refused to acknowledge the arrest and detention or to disclose the fate or whereabouts of the person concerned, the commission finds that there are reasonable grounds to believe that the crime of enforced disappearance has occurred.
[English only]
Torture and other forms of ill-treatment
I. Government forces and Shabbiha
1. The commission continues to receive reports of the use of torture and other forms of cruel, inhuman or degrading treatment, occurring most often in the context of interrogations by the Government's intelligence agencies. Since 15 February 2012, the commission has interviewed 81 people regarding allegations of torture and ill-treatment. Fifty nine of these interviews related to events within the reporting period.
2. Due to its lack of access, the commission has not been able to visit detention centres to interview detainees, those responsible for the detention centres or to observe detention conditions.
A. Findings
3. Thirty of the 59 individuals interviewed about events in this reporting period stated they had been arrested and/or detained by individuals from Government forces and Shabbiha. All but one of this group reported suffering physical violence during their detention. Nineteen others reported being present while others were tortured or otherwise ill-treated. This number includes ten individuals who had worked in detention centres or at checkpoints and who have since defected. The commission has not been able to verify the accounts received. Where possible, the commission observed the wounds/scars of alleged victims.
4. As set out in annex V (Arbitrary detention and enforced disappearance), most of those detained following arrest were taken to official detention centres. According to interviewees, interrogations in these centres were carried out under the auspices of the Syrian Arab Republic's four principal intelligence agencies: Military Intelligence, Air Force Intelligence, General Security Directorate and the Political Security Directorate. The majority of those interviewed indicated that they had been interrogated by members of Military and/or Air Force Intelligence. All four intelligences agencies have central offices in Damascus as well as a network of regional, city and local sub-offices across the country. They appear to operate independently of each other. Questioning during interrogations reportedly revolved around reasons for protesting, involvement of the detainee or his or her family members in anti-Government armed groups and, in the case of detainees who were members of the Government forces, about alleged plans to defect.
5. Several interviewees could not, however, confirm which agencies conducted the interrogations and, in some instances, the precise location of their interrogations. Reported reasons for this included being blindfolded during transport in and out of detention facilities, being blindfolded during interrogations, being transferred between different facilities and undergoing multiple interrogations.
6. While the majority of those held were detained in official detention centres, six interviewees reported that they were also held in unofficial detention facilities, such as civilian houses, usually as a prelude to being transferred to an official centre. Four of the six -- one of whom was a woman -- were detained in late February/early March 2012 in various neighbourhoods of Homs city. While held in unofficial centres, interviewees reported abuse by members of the army and by Shabbiha.
7. In a further nine cases, interviewees stated that they were beaten or otherwise assaulted during house searches or at checkpoints or witnessed the assault of others. While most interviewees were adult men, one was a young woman living in a village in Homs governorate in April 2012. She stated that she had been beaten by soldiers when she placed herself between them and her elder brother. In none of these cases were the victims subsequently detained.
B. Reports of torture and other forms of ill-treatment in official detention centres
8. Reported methods of torture were consistent across the country. Interviewees described severe beatings about the head and body with electric cables, whips, metal and wooden sticks, and rifle butts; being burnt with cigarettes; being kicked; and being subjected to electric shocks applied to sensitive parts of the body, including the genitals. Six of those interviewed reported losing consciousness at points during their interrogations.
9. The commission also received multiple reports of detainees being beaten on the soles of the feet (falaqa). Common practices described included the placing of detainees into prolonged stress positions, including hanging from walls or ceilings by their wrists (shabah) and hanging by wrists tied behind their backs. Other methods reported were forcing detainees to bend at the waist and place their head, neck and legs through a car tire while beatings were administered (dulab); tying the detainees to a flat board with their head unsupported and either stretching them (as on a rack) or folding the board in half (the "flying carpet"). As detailed in annex VIII (Sexual violence), some detainees reportedly suffered rape and other forms of sexual violence in the course of their detention. For many interviewees, scars and wounds, consistent with their accounts, were still visible.
10. Several forms of torture and other forms of cruel, inhuman or degrading treatment meted out to detainees did not result in physical evidence. Reports detailed detainees being forcibly shaved, made to imitate dogs and to declare "there is no God but Bashar". Other interviewees stated that they had been forced to strip and remain naked for prolonged periods. Three of those interviewed stated that they had been threatened with execution. One said he had been present when another detainee was threatened with sexual assault; another stated that his interrogators had threatened to arrest and rape female relatives.
11. One female interviewee stated that she, along with her nine year old sister, were arrested in May 2012 and taken to a Military Intelligence branch in Dar'a governorate. She reported that her father was suspected of supporting the anti-Government armed groups. During the interrogation, which she stated was conducted by female interrogators, the interviewee was reportedly tied to a chair, had her breasts grabbed, being slapped and had her headscarf removed. She and her sister were released within a week. She stated that her sister had also been beaten while in detention.
12. Another interviewee, a 14-year-old boy who said he had taken part in protests in Idlib, reported that he had been arrested and detained in the Military Intelligence branch in Idlib in March 2012. He stated that he had received electric shocks and been beaten with a pipe during this interrogation.
13. Six of those interviewed had been moved among multiple detention facilities, run by different intelligence agencies. One interviewee reported being moved among ten different detention centres across four governorates in a five month period. Another interviewee was transferred among four different locations in Dar'a and Damascus, again over a five month period. Where there have been multiple transfers, interviewees stated that they had suffered physical violence in each location.
C. Reports of torture and other forms of ill-treatment in unofficial detention centres
14. Six interviewees reported being held in unofficial detention centres. In various locations in Homs governorate during late February and March 2012, three interviews were reportedly taken to houses or, in one case, a fitness centre and being held there. Two of those interviewed stated that they had been taken from their houses by members of the army during house searches. The third stated she and two other women, all veiled, were removed from a bus by Shabbiha. In all three cases, the interviewees stated they had been beaten while detained. In two of these cases, the perpetrators were reportedly members of the Shabbiha.
15. In another case, an interviewee stated that he had been stopped by unidentified individuals in Aleppo in April 2012. When searched, he stated he was found to be in possession of a quantity of foreign currency which was viewed as evidence of support of anti-Government armed groups. He was then reportedly taken to a building in Aleppo where he was beaten with electric wire, given electric shocks and interrogated. After a week he was taken to a different area of Aleppo and released. The commission has not been able to verify this account.
16. In two cases, the interviewees were former members of the army. One reported being arrested on suspicion of planning to defect and was held at a military barracks in Idlib governorate where he was given electric shocks, hung from the ceiling by his arms and beaten about his body and on the soles of his feet. The second interviewee worked at a military airport in Hama governorate which, he stated, had been converted into a makeshift detention centre where detainees were being assaulted. The commission has not been able to verify these accounts.
D. Reports of torture and other forms of ill-treatment during house searches and at checkpoints
17. Nine of those interviewed reported being beaten or witnessing others being beaten during house searches or at checkpoints. There were corroborated reports of adult men being beaten by members of the army during house searches in Ibdita in late February 2012 and in Homs city in March 2012. Other, unverified, reports of individuals being beaten during house searches were received in respect of events in Idlib city (April and May 2012), Baniyas (April 2012), and Talf Rif'at (April 2012).
18. One interviewee reported being removed from his vehicle and beaten at a checkpoint near the Lebanese border, when photographs of demonstrations were discovered on his mobile phone. Another interviewee, a former member of the army, stated that he was present at a checkpoint in Idlib governorate in April 2012 when six men, including two defectors, were brought to the checkpoint where they were severely beaten with sticks and batons. The commission has not been able to verify these accounts.
E. Conditions of detention
19. The majority of detainees described being held in small, over-crowded cells. Two interviewees reported that the cells were so overcrowded that it was impossible to sit or lie down. All but one reported being given inadequate food and water. One interviewee stated that, having been without water for a week, he drank his own urine to survive. Health conditions in detention were reportedly poor. Several interviewees stated that their cells were not equipped with toilets. Four interviewees described cells infested with insects, including lice.
20. The commission received information it could not corroborate on the denial of medication and medical treatment. One detainee stated that a man, held in his cell in the Idlib military intelligence building in early 2012, died, having not received medication for his diabetes. Another, held in the Kafr Susah military intelligence branch in Damascus, stated that a fellow detainee was left with a broken leg in his cell.
21. Five of those interviewed said they had been held for longer than two months. Two had been held for approximately five months. During this time, none reported receiving legal visits. Only one interviewee said he had received a family visit, a single visit from his wife.
22. As noted above, lack of access has rendered the commission unable to inspect detention centres. The commission has recorded accounts that, if verified, would amount to the breach of the Standard Minimum Rules for the Treatment of Prisoners, details of which are provided in annex I (Applicable law).
F. Legal conclusions
23. The commission confirms its previous finding that torture and other forms of cruel, inhuman or degrading treatment have been committed by Government forces and Shabbiha. This is in violation of the Syrian Arab Republic's obligations under international human rights and humanitarian law.
24. The commission determines that severe pain was inflicted upon persons in official and unofficial detention centres, during house searches and at checkpoints. The Commission further finds that torture was inflicted to punish, humiliate or to extract information from detainees. Much of the physical violence described by interviewees - including kicking, hitting, beating (including beating on the soles of the feet), flogging, inflicting electric shocks, burning, extended hanging from hand and/or leg chains and threatening the victim with execution in circumstances where the interrogators had the power to carry out this threat - have been found to constitute torture by various international tribunals. |a|
25. The commission finds there are reasonable grounds to believe that torture has been perpetrated as part of a widespread attack directed against a civilian population by Government forces and Shabbiha, with knowledge of the attack. It, therefore, concludes that torture as a crime against humanity has been committed by Government forces and Shabbiha. On the basis of interviews conducted, members of the intelligence agencies, in particular Military and Air Force Intelligence appear to be primarily responsible for torture and ill-treatment. The commission notes the involvement of Shabbiha in acts of torture in unofficial detention centres in Homs city in February and March 2012.
26. The commission further finds that conduct such as forcibly shaving detainees and forcing them to imitate dogs constitutes cruel, inhuman or degrading treatment. Similarly, the conditions of detention as described in interviews conducted would, if verified, constitute the cruel, inhuman or degrading treatment of those detained.
II. Anti-Government armed groups
27. The commission conducted 15 interviews relating to the treatment of members of Government forces and Shabbiha by anti-Government armed groups. All interviewees claimed to be members of these armed groups.
28. All 15 interviews detail the capture, interrogation and either release or execution of those detained. |b| Interviewees stated that those captured were offered the chance to join anti-Government forces. Those that did not were reportedly either executed or were used as part of an exchange for captured anti-Government fighters.
29. One individual, a member of an anti-Government armed group in Idlib governorate, stated that those who did not wish to join the anti-Government forces were imprisoned. Two other anti-Government fighters stated that makeshift detention centres had been set up in the Bab Amr and El Khaldiyah neighbourhoods in Homs. The commission also notes that the majority of those interviewed claimed that those who refused to join the anti-Government armed groups were executed, in part because the groups had no means of housing and providing for prisoners.
30. Three of those interviewed stated that captured Government fighters and Shabbiha were tortured as part of an interrogation which took place before execution. One interviewee admitted that captured members of Government forces were beaten with electric wire and were threatened with drowning, with their heads forced in and out of water.
31. The commission has also received information indicating that Syrian security forces and/or their alleged supporters caught by the anti-Government armed groups have confessed under torture. Many of the video recordings of alleged incidents show those captured with signs of physical abuse, including bruising and bleeding. Two Iranians, held in late January 2012 and released in late April 2012, later made public statements about physical abuse suffered, including the breaking of bones, during their captivity. The commission could not verify those video recordings.
Legal conclusions
32. The commission finds there are reasonable grounds to believe that torture and other forms of cruel, inhuman or degrading treatment have been committed by anti-Government armed groups during interrogations of captured members of Government forces and Shabbiha. The commission determines that severe pain was inflicted to punish, humiliate or to extract information from detainees.
33. The commission determines, however, that the acts of torture were not committed as part of either a widespread or systematic attack on a civilian population. Therefore, they do not constitute crimes against humanity but may be prosecutable as war crimes.
[English only]
Sexual violence
I. Government forces and Shabbiha
1. The commission conducted 43 interviews detailing incidents of sexual violence -- against men, women and children -- committed by Government forces and Shabbiha since February 2012. These interviews included two female and three male victims of rape. Also interviewed were five eyewitnesses of rape (one of whom was also a victim). Additionally, seven of those interviewed were former members of the army, now defected, who stated that rapes and other forms of sexual assault, committed by soldiers and Shabbiha, took place during the Government forces' ground operations as described below.
2. There are difficulties in collecting evidence in cases of sexual violence in Syria due to cultural, social and religious beliefs surrounding marriage and sexuality. Victims' reluctance to disclose information stem from the trauma, shame and stigma linked to sexual assault. There are also serious consequences for female victims' lives and marriages. In one incident, the commission was informed that a female rape victim was subsequently killed by her brother-in-law to "preserve the honour of the family". Another interviewee stated another female rape victim had later killed herself. Several interviewees stated that female rape victims had been abandoned by their husbands and consequently struggled to survive. All victims and/or members of their families interviewed suffered psychological trauma. Many broke down during the interview.
3. The fear of rape and sexual assault also restricted the freedom of movement of women and young girls. Many of the women interviewed sought refuge in neighbouring countries in part because they feared sexual assault.
A. Findings
4. Information collected indicates that rape and other forms of sexual violence occurred in two distinct circumstances. The first is during the searches of houses and at checkpoints as Government forces and Shabbiha entered towns and villages; the second, in detention. In a minority of cases, all occurring in Homs city between late February and April 2012, there were reports of the abduction and rape of women, and corroborated accounts of women being forced to walk naked in the street.
Sexual violence during house searches and at checkpoints
5. Fifteen of the interviewees alleged incidents of sexual violence committed during house searches and at checkpoints during the military operations in Homs between late February and May 2012, and in Al-Haffe in early June 2012. Five interviewees detailed incidents of sexual violence in Zabadani in late February 2012 and in various locations in Hama and Idlib governorates in April and May 2012. The sexual violence was reportedly perpetrated by soldiers and Shabbiha.
Homs city ( Homs), February-May 2012
6. Eleven of those interviewed, including two of the victims, detailed rapes and sexual assault perpetrated by Government forces and Shabbiha during military operations in Homs. Four interviewees were themselves members of the Government forces in Homs during the military operations.
7. One victim, a man living with his family in Bab Amr, stated that in late February/early March 2012, 40-50 men wearing military clothes burst into his house at 5:00 am. He described being forced to watch the gang rape of his wife and two elder daughters, 14 and 11 years old, before then being raped himself, with his family being made to watch:
The men raped [my two daughters] and my wife, forcing them onto the ground to do so. They raped them at the same time. When they began to rape my daughters, they forced me to raise my head and watch. You cannot imagine what that felt like, as a man to sit there and watch them do that. They raped each of them three times. Then they forced me out of the chair and ordered me onto the ground. They raped me as well and ordered my wife and children to watch. The men were jeering and said, "Look at your father." They destroyed me.
8. The same interviewee stated that as the family fled the city with other residents of Bab Amr, the group was stopped at a checkpoint where soldiers detained eight girls. The girls were later released and, according to the interviewee, confirmed that they had been raped.
9. One of the defectors stated that he was deployed to Homs city in February 2012 and was given orders to shoot anything that moved. He said that commanders ordered them to tie up the men, tell them not to kill them, but to make them watch while they sexually assaulted their wives and daughters. The interviewee was present when members of the army raped women during the February 2012 military operations in Homs city.
10. Another interviewee spoke about the rape of his wife by members of the Syrian army during ground operations in Homs city in May 2012. He stated that his family fled their home during the shelling. His wife who had returned to check on their house was stopped by five soldiers, including one lieutenant, and reportedly raped by each of them.
11. Two residents of Karm-el-Zeytoun described soldiers and Shabbiha entering houses in March 2012 and raping females inside. One resident stated she witnessed soldiers raping and then executing a 16 year-old girl. A third interviewee, a young man, stated that 13 soldiers together with a number of Shabbiha entered his house in Karm-el-Zeytoun, looted it and detained him in a nearby house. He stated that while detained he heard women screaming in an adjoining room and believed they were being raped.
12. Another soldier stated that he defected shortly after a gang rape of women by Shabbiha in Ar-Rastan in March 2012. He described being part of a group of soldiers ordered to surround a house while Shabbiha entered, after which he could hear women shouting to leave them alone and screaming that they would prefer to be killed. Two other defectors said that they heard colleagues bragging about committing rapes during the military operations in Bab Amr in late February 2012.
Al-Haffe (Latakia), early June 2012
13. Four interviewees, including one victim, described rape occurring during military operations on, or in the days following 5 June 2012.
14. A female victim stated that she was in her house with three children when "heavily armed Shabbihas" broke in and demanded, at gunpoint, that she undress. She was accused of providing food and support to the anti-Government armed groups before being dragged into the street and raped there by one of the men. She stated that other women were abducted and later raped by Shabbiha. She stated that her marriage had fallen apart following the rape.
15. Another interviewee stated that he had been an eyewitness to the rape of several women by intelligence agents in a house in Al-Haffe in early June 2012. Two other interviewees, both resident in Al-Haffe during June 2012, stated that Shabbiha were entering houses and raping women. One person detailed the public rape of women in the streets of Shier neighbourhood of Al-Haffe.
Zabadani (Rif Dimashq), late February 2012
16. Two defectors stated that soldiers perpetrated rape during house searches in Zabadani in February 2012. One stated he was part of a contingent of soldiers that entered a house in order to loot it. When inside the house, the soldiers reportedly tied up the men and began to assault a 15-year-old girl. The interviewee, having been beaten by his colleagues, remained outside the house while the rape took place. Another defector stated that he heard his senior officers boasting about raping women during the February raid on Zabadani.
Hama, Idlib and Aleppo governorates, April-May 2012
17. Two interviewees detailed rapes occurring in various locations in Hama governorate in April and May 2012. One, a defector, stated that he had been deployed to Hama in April 2012 and was part of a contingent of soldiers undertaking house searches. He described the systematic looting of houses and stated that some soldiers and accompanying Shabbiha were raping women and girls who were found in the houses. He stated that some victims were killed after the rape.
18. Another interviewee stated that he collected bodies after the army and Shabbiha attacked Tamanaa in Idlib governorate on 12 May 2012. Among the bodies he noted one of a woman who had been eviscerated and who had a knife sticking out of her vagina.
19. The Commission also received reports of rapes and other serious sexual assaults taking place in Atarib (February 2012), Tal Rifat (April 2012) and Idlib city (April 2012).
B. Sexual violence in detention centres
20. The commission continues to receive reports of rape and sexual assault in detention centres, committed usually as part of a course of torture and/or ill-treatment. Two male members of the same family, detained from January to March 2012 at the offices of the Political Security in Damascus, described intelligence agents forcing them to rape each other.
21. Three interviewees stated that women were raped in detention centres in Latakia (March 2012), in Hama (March 2012) and in Dar'a (May 2012). In all instances the women were suspected of supporting the anti-Government armed groups, being involved in protests or of being family members of those involved in the armed groups or protests. In the latter incident, a woman reported that she had been arrested and brought to the Military Intelligence offices in Dar'a in late May 2012 where she was interrogated by female agents. She stated that in the course of her interrogation, the agents attempted to remove her clothes and beat her. She stated she witnessed the gang rape of one of her friends who had attended protests in Dara'a, and who was being held in the same detention centre.
22. As detailed in Annex VI (Torture), many reports were received of male detainees having electric shocks applied to their genitals during interrogations.
C. Abduction and rape of women
23. The commission received reports of women being abducted from the streets of Homs city in April 2012. One woman, whose husband was a member of an anti-Government armed group, was reportedly abducted along with six other women (including a 14 year old girl) in early April 2012 in Karm-el-Zeytoun by ten men, dressed in black. She stated that she and other women were placed in a van and blindfolded while being transported. They were taken to a place that looked "like a storage room". There she saw 20 naked women with injuries to their bodies. She and the other six women were raped while the men shouted at them, "You want freedom, this is your freedom."
24. The interviewee remained in the room with the other women and girls for ten days, during which time they were vaginally and anally raped on multiple occasions. She stated that the other women were from various neighbourhoods of Homs city, including Baba Amr, Bab Sbaa and El Khaldiyah. The women were released, allegedly, as part of a prisoner exchange between the Shabbiha and the FSA. Following her release, she was abandoned by her husband.
25. Another woman interviewed described being pulled off a bus by Shabbiha at a checkpoint in Bab Sbaa in April 2012. She and two other veiled women were reportedly detained while other, unveiled women were allowed back on the bus. She stated that she and the two other women were severely beaten before being taken to a house where there were eight other women from Al-Houla who were naked and injured. She stated that she and one other woman were "rescued" by a Shabbiha who knew them. She was not aware of what happened to the third woman.
D. Women forced to walk naked in the streets
26. The commission also received corroborated reports of women being forced at gunpoint to walk naked in the streets of the Karm-el-Zeytoun neighbourhood of Homs, again in February 2012.
E. Legal conclusions
27. The Commission finds that there are reasonable grounds to believe rape has been perpetrated against men, women and children by members of Government forces and Shabbiha. The rape and sexual violence was committed in connection to the armed conflict and could be prosecuted as a war crime. Rape and sexual assault also formed part of torture in both official and unofficial detention centres in violation of IHRL and IHL.
28. Having previously identified the military operations in Homs city in February and March 2012 and in Al-Haffe in June 2012 as part of a widespread or systematic attack against a civilian population, the commission finds that the rapes which occurred during this attack, made with knowledge of the attacks, could be prosecuted as crimes against humanity.
II. Anti-Government armed groups
29. The commission has not received any reports of rape or other forms of sexual assault perpetrated by members of the anti-Government armed groups. Lack of access to the country has further complicated the investigation of alleged incidents of sexual violence by all parties to the conflict.
[English only]
Violation of children's rights
1. The commission conducted 168 interviews in which violations of children's rights were alleged. Of these, 30 interviewees were under 18 years of age.
2. In the commission's interviews with children and their care-givers the adverse psychological and social impact of the continued violence was evident. Many of the children interviewed had been injured during the violence and/or saw the death or injury of parents, relatives or friends. Some children displayed signs of high stress, either mirroring that of the (often sole) caregiver or due to events the child had experienced him or herself. Some children recounted that they were "sad", while others explained that they were angry and wanted to "take revenge" for those who killed their family or community members. Many complained of sleeplessness and anxiety, or lack of ability to concentrate, all signs of Post-Traumatic Stress Disorder.
I. Government forces and Shabbiha
A. Killing and injuring of children
3. The commission recorded the death of 125 children killed during the reporting period. The majority are male.
4. The commission recorded the killing and injuring of children during the shelling of Atarib (Aleppo) in February; Bab Amr neighbourhood of Homs city between February and May; Al-Qusayr (Homs) between February and July; Sermin (Idlib) on 22 March; Kafar Zeita (Hama) in late March; Taftanaz (Idlib) on 4 April; Al-Houla (Homs) on 25 May; El Haffe (Latakia) between 4 and 12 June; Salma (Latakia) on 11 June; Azaz (Aleppo) in late June; and in Tremseh (Hama) on 12 July. During a visit to a hospital in Turkey, the commission saw, and met with the family of a two year old girl, injured in the June shelling of Azaz.
5. As noted in annex V, when Government ground forces moved into towns and villages, usually following shelling, snipers were often positioned on roofs and other raised positions. There were multiple reports of children being killed and wounded by sniper fire. In Atarib (Aleppo) in February, a 10 year old boy, playing in front of his family home, was reportedly shot dead by a sniper positioned on top of a nearby police building. Another interviewee from Atarib stated that he had seen a child shot in the chest by a sniper in February. Another 14 year old boy was injured in Atarib in the same month when he was shot in the legs by a sniper, while on his way to buy food at a local market. The commission received further reports of children shot by snipers in Bab Amr in February, March and May; Taftanaz on 3 April; Aleppo in late April; Anadan village (Aleppo) in late April; and Al-Haffe on 4-6 June.
6. Children were also killed during attacks on protests -- as reportedly occurred in Menaq village (Aleppo) on 15 March -- and in attacks on villages believed to be harbouring defectors or members of anti-Government armed groups. One defector asserted that children were also targeted for killing or arrest to pressure their parents to cease their protest activities. He stated that, "… If someone is an activist we will arrest any member of his or her family to pressure them to turn themselves in. Worse than that is the dual beating and imprisonment of a father and his son in order to break the adult. It is very carefully thought out."
7. There are multiple reports of children killed during military ground operations and house searches. As described more fully in annex V, Government forces and Shabbiha conducted a military operation in the village of Ain Larouz to look for defectors. On 4 March, Government forces detained 35 people, including two boys of 14 and 16 years and a 10 year old girl. On 12 March, all but four were released. Bodies of the two boys along with two adults were discovered lying just outside the village.
8. Interviewees recounted the killing of children in Atarib in February; Bab Amr in March; Karm-el-Zeytoun in March; Tal Rifat (Aleppo) in early April; Taftanaz in early May and in Al Qubeir (Hama) in June. These children were killed with members of their families during military ground operations in the named towns and villages.
9. Children were also amongst the victims killed in Al-Houla on 25 May. UN observers found at least 108 bodies, 41 of them children. Some had been killed by shrapnel during shelling, but most appeared to have been shot at close range.
B. Children in detention
10. Multiple reports of arrests and detentions of children were received. Children were detained during or immediately following protests or during ground operations and house searches. In two cases, children appear to have been arrested, along with older family members, because of familial links to fighters in anti-government armed groups.
11. Children interviewed by the commission described being beaten, blindfolded, subjected to prolonged stress positions, whipped with electrical cables, scarred by cigarette burns and, in two recorded cases, subjected to electrical shocks to the genitals.
12. One 15 year old boy said he was arrested in March by security and plain clothes officers after protesting, and taken to a Political Security office in Dara'a in March. He stated, "There were lots of young men, children and adolescents and also older people. I was standing and the officer stood in front of me and hit me across the face. They put electricity on my temples and my stomach … They asked us, 'Where are the weapons!' … They used lots of electricity. It felt like five hours and went on until morning, I think. There were kids as young as 10 with me in the cell ..." He was released five days later only after signing a confession "… stating that we were terrible boys and had done many things wrong…I also had to sign a blank paper."
13. A 14-year-old boy stated that he was arrested during a demonstration in Idlib in March. He had been taken with 12 others to the Military Intelligence branch in Idlib where he was beaten with a pipe and given electric shocks. Another interviewee stated that her 17 year old son had been arrested by Shabbiha in Blin (Idlib) after participating in protests in late February. She stated that he had been taken to detention where he was beaten, subjected to electric shocks and made to "kneel and pray for Bashar al-Assad".
14. Eight detainees, including two minors, stated that minors and adults were held in the same cells. This was said to have occurred in the cells of Aleppo central prison; the Political Security office in Dara'a; the Military Intelligence office in Idlib and Adra central prison which was under the control of Air Force Intelligence. One adult detainee, held in an unknown location in Damascus, stated he was held in a small overcrowded room with adult and child detainees, the youngest of who appeared to be 13 years old. Child detainees reported enduring the same conditions of detention as described in annex VIII.
C. Sexual violence
15. As noted in annex IX, the commission received a report of the gang rape of two young girls, aged 11 and 14 years, by men in military clothes, in Bab Amr in late February/early March. The girls' father was forced to watch the rape. His daughters were reportedly then forced to watch the rape of their father. A resident of Karm-el-Zeytoun (Homs) stated she had witnessed soldiers raping a 16-year-old girl during military ground operations in March. A defector stated that he had been present at the sexual assault of a 15 year old girl in Zabadani by soldiers during a house search in February.
D. Recruitment and use of children
16. No evidence of Government forces formally conscripting or enlisting children under the age of 18 years has been received.
17. However, the commission documented at least three separate incidents in which Government forces reportedly used children as young as eight as hostages and as human shields. Two interviewees stated that on 21 February in Abdita (Idlib), soldiers forced women and children to walk with them as they moved around the town. When the soldiers withdrew, reportedly three families, including a number of children, were forced to walk alongside a moving tank. The families were released once the soldiers reached the outskirts of the town. Another interviewee stated that, in Taftanaz on 3 April, women and children were reportedly removed from their houses by soldiers and forced to walk in front of a tank as it moved through the town. In Ain Larouz in March, an interviewee stated that several dozen children, boys and girls ranging between the ages of eight and 13 years, were forcibly taken from their homes. These children were then reportedly placed by soldiers and Shabbiha in front of the windows of buses carrying military personnel into the raid on the village.
E. Attacks on schools and hospitals
18. Schools in various locations across Syria have been looted, vandalized and burned by Government forces in response to student protests. A teacher from the village of Abdita (Idlib) testified that since January schools have effectively been closed in the entire region due to fears of imminent military attack. Many schools had been the site of protests and were therefore targeted by Government forces. The interviewee described how, in February, in response to anti-Government protests, the military fired at Abdita School, broke into the classrooms, destroyed school materials and placed graffiti slogans on the walls, all variants of the slogan, "Al Assad or no one else".
19. As detailed in section III.I of the report of the commission of inquiry (A/HRC/21/50), multiple accounts were received concerning the use of schools by Government forces (most often the army and intelligence services) and Shabbiha, as military staging grounds, temporary bases and sniper posts. Several interviewees also stated that the intelligence forces and the Shabbiha had installed gun emplacements on the roofs of schools while students were attending classes. The attack on schools has disrupted, and in many cases, curtailed children's ability to access education.
20. Aside from the military operations that prevented civilians from accessing hospitals over lengthy periods of time, reports also indicated that injured persons, including children and their families, failed to seek medical treatment out of fear of attack by the Government for suspected association with anti-Government armed groups. Many children who were injured were not able to receive hospital care and were taken to private or "underground" field clinics that could treat only the most rudimentary injuries. A nurse from Idlib stated she had treated dozens of women and children in her home during attacks in early March, and that two children died because there was no appropriate equipment and because she was not skilled enough to stop the bleeding of severe wounds.
21. The fear of arrest and torture by Government agents in hospitals denied basic healthcare to both children and women. With a few exceptions, field clinics could do more than stabilize those in frontline communities who were severely wounded. These patients then had to endure days of hardship under precarious circumstances en route to seeking health care in neighbouring countries. Testimonies point to the fact that many children could not tolerate the stress of these transfers and died either before they could be transferred or on the road to the border.
F. Legal conclusions
22. Evidence gathered clearly indicates that violations of children's rights by Government forces and Shabbiha have continued during this reporting period.
23. The legal conclusions of annexes IV (special inquiry into Al-Houla), V (unlawful killing), VII (arbitrary detentions and enforced disappearances), VIII (torture), IX (sexual violence) apply, in respect of the treatment of children by Government forces and Shabbiha.
24. There are multiple reports of minors being held in the same cells as adults, in breach of the Government's obligations under the Convention on the Rights of the Child.
II. Anti-Government armed groups
25. Eleven interviewees, including four minors, spoke about the use of children by anti-Government armed groups. All stated that anti-Government armed groups, including the FSA, used children to work in support roles such as assisting in medical evacuations or as messengers or porters. Five of those interviewed said the anti-Government armed groups used children under the age of 18 -- and in one account, below the age of 15 -- as fighters.
26. A 17-year-old interviewee stated that he worked in a FSA medical evacuation team in Hama governorate. He said it was FSA policy that "only at 17 could a gun be used, mostly for guard duty and no active fighting". Three other interviewees, including two minors, stated that they had seen or were aware of 17 year olds actively fighting for the anti-Government armed groups. One said that his 17 year old brother was "a member of the FSA Al Khatib battalion [and] went to the second floor of a house [in Taftanaz, Idlib governorate, in April] with a Kalashnikov and shot four soldiers". Another interviewee stated he saw two fighters, approximately 15 years old, fighting with the FSA-affiliated Al Farouk or Bab Amr battalions in Homs city in June.
27. Another interviewee spoke about the killing of a 17 year old boy -- who was reportedly fighting with the FSA -- during armed clashes with Government forces in March in Idlib governorate.
28. A 14 year old boy stated that he was given and used a weapon while fighting with the FSA for two days in Idlib in March.
29. There is significant evidence of anti-Government armed groups' use of children in auxiliary roles. One 17 year old interviewee worked as part of a FSA medical evacuation team, taking injured persons mainly from the Hama governorate into Turkey. He stated that in his team there were "about 15 boys under the age of 15 years", and that the youngest in his group was 14. The same interviewee stated that boys between the ages of 15 and 17 also performed duties including delivering messages between FSA units, cooking for units in the field and delivering medical supplies to field hospitals in front line units. He stated that no girls fought or worked as auxiliary support to the anti-Government armed groups.
30. Two other interviewees, both minors, stated that anti-Government armed groups used children aged 15 years and above to assist in the loading of ammunition.
31. The use of children as part of medical evacuation teams and as couriers has exposed them to hostilities. One interviewee stated that one minor, who had been part of a medical evacuation team, was shot and killed by a sniper while attempting to evacuate a woman and two young men from Hama city.
32. In a separate incident in March, the commission was informed about four boys, under 18 who were injured by sniper fire trying to evacuate injured from Helfaya. According to the same interviewee, three boys, one 15 year old and two 17 year olds, were captured by Government forces while working as part of a medical evacuation team in Hama city.
33. A 16 year old boy who was shot by a sniper outside of Homs while evacuating a wounded girl, explained that he was volunteering to assist the FSA with medical evacuations "… because it is all they [FSA] will allow me to do… How can I do nothing when they kill my family and my community?"
34. The commission received assurances from Colonel Riad al-Asaad that an FSA policy not to use children in combat is in place. There is evidence to suggest, however, that this policy is not uniformly being adhered to by the FSA and other anti-Government armed groups. It is also unclear whether the understanding of "in combat" by the anti-Government armed groups encompasses the auxiliary roles described above.
Legal conclusions
35. As the anti-Government armed groups are not State parties, they are not bound under the Optional Protocol, which sets 18 as the minimum age for direct participation in hostilities, recruitment into armed groups and compulsory recruitment by Governments.
36. The commission observes, however, that the conduct of anti-Government armed groups, as a party to an armed conflict, is within the jurisdiction of the International Criminal Court which has made "conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities" a war crime. The term "participate" covers both direct participation in combat and also active participation in military activities linked to combat, for example scouting, spying, sabotage and the use of children as decoys, couriers or at military checkpoints. Use of children in a direct support function such as acting as bearers to take supplies to the front line, or activities at the front line itself, would be included.
37. The commission considers that there is currently insufficient information to reach a finding that anti-Government armed groups have been using children under the age of 15 to participate actively in hostilities. It notes with concern, however, reports that children under the age of 18 are fighting and performing auxiliary roles for anti-Government armed groups.
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Pillaging and destruction of property
I. Government forces and Shabbiha
1. The commission corroborated reports of pillaging, destruction and burning of property by Government forces and Shabbiha during their military operations. Such acts occurred in two contexts: first as a consequence of the shelling of towns and villages and second during the searches for defectors and members of armed groups and their supporters that took place during ground operations. The former context is discussed in annex VI (indiscriminate attacks). In the latter context, the commission interviewed 43 witnesses who described Government forces burning, destroying and pillaging their property in the wake of searches.
2. Interviewees stated that the pillaging and destruction were targeted against groups and individuals who appeared to be defectors; members of anti-Government armed groups; demonstrators and family members of the aforementioned. In particular, family members of defectors described how their homes, farms and shops were burned following the defection of their relatives. In some instances the looting, burning and destruction of property appeared to be directed at entire communities rather than specific individuals.
3. According to soldiers who later defected, the looting and burning of property of opposition activists and defectors was intended, inter alia, to impose financial constraints on them and on their activities. Government soldiers and Shabbiha also benefited from these acts financially, conducting them with complete impunity. They were viewed as a form of reward for their allegiance to the Government. One defector told the commission:
I never got direct orders to [pillage/destroy], but it was every man's understanding that he was allowed to do everything he wanted without being held accountable for that. Not only that, but also when someone is seen not to be active in doing these things, he will be questioned about his loyalty to the regime and his relation with the oppositions.
4. In Idlib in March 2012, instances were recorded of looting followed by burning of homes after which the army and local militias sold the looted goods. One defector told the commission of his looting prior to his defections:
"Just go and get a TV, something for yourself, there is no FSA here… It [the military base] was like a flea market. Anything you want you can find there, including gold. Nothing was left in the houses... [We] swapped things and sold them to each other."
5. Twelve different witnesses described the deliberate burning and looting of homes and the purposeful destruction of personal property in various neighbourhoods of Homs. Five witnesses reported the burning of more than 100 houses during the attack on Anadan (Aleppo) in March and again in April 2012. Other witnesses put the number of houses burned at over 300.
6. One defector stated that he was ordered to shell and then to raid the village of Yabrud (Rif Dimashq) in March 2012. He had at his disposal six buses of Government forces together with tanks. A local government informer, whose face was covered, accompanied them during this operation. The informer guided them toward houses of activists and defectors. Whenever the informer pointed out the house of a defector, FSA fighter or opposition activist, the soldiers would loot and burn it.
7. Demonstrations occurred regularly in the village of Marayane (Idlib), one of which took place on 11 April 2012. A defector stated that on 12 April, he was with Government forces when they raided Marayane (Idlib) using T72 tanks, BMPs and 14.5 mm machine guns. Before entering the village his forces began shelling randomly in an effort to "weaken the enemy." Once inside the village, they burned more than 100 houses. He recalled specifically shelling two houses, ensuring they were razed to the ground. One belonged to the headmaster of the high school, while the other to an agricultural engineer. The defector presumed, but could not confirm, that the two men were suspected anti-Government fighters. The rest of the houses were looted by the soldiers and then shelled or burned.
8. Another interviewee stated that in Mare'e (Aleppo) on 10 April 2012, Government forces burned 386 houses and some two hundred shops burned during the search operations. He added that all residents fled when they knew that military and security forces were about to raid their village. When people returned, they saw painted on the walls, "from here Al-Assad forces passed; if you return, we will return," and "there is no God but Bashar al-Assad".
9. Thirteen individual accounts described widespread looting and destruction of property in Tal Rifat (Aleppo), Bayda and Jabal-az-Zawiyah (Idlib) in April 2012. When Government forces departed these villages after the attack, the inhabitants returned to find the electricity cut, crops destroyed, livestock killed, mosques and schools destroyed, money stolen and houses emptied of their furniture, jewellery, clothes and appliances. Shops had been looted completely and then destroyed either by burning or by shelling. Vehicles had been either stolen or destroyed.
10. Corroborated evidence was collected of pillaging, deliberate destruction and burning of property by pro-Government forces in Bab Amr (Homs), end of April 2012; Ablin (Idlib), 16 June 2012; Ibdita (Idlib), 21 February 2012; Jisr-esh-Shughour (Idlib), March 2012; Al Atarib (Aleppo), 15 February 2012; Taftanaz (Idlib) 4 and 5 April 2012; Sermin (Idlib), 22 March 2012; Azaz (Aleppo), April 2012; Dar'a, June 2012; Hama, end of May and beginning of June 2012; al-Haffah (al-Ladhiqiyah), 13 June 2012; and Anadan (Aleppo), 7 April 2012.
Legal conclusions
11. There are reasonable grounds to believe that Government forces and Shabbiha committed the war crime of pillage. The commission also determined that Government forces and Shabbiha engaged in the destruction and burning of property during house searches.
II. Anti-Government armed groups
12. The commission received no reports of pillaging or destruction of property by anti-Government armed groups, but lack of access to Syria hampered investigations in this regard. The Government provided information about crimes allegedly perpetrated by anti-Government armed groups, including looting and vehicle theft, which the commission was unable to corroborate. Consequently, the commission has been unable to reach any findings with regard to the alleged pillaging, burning and destruction of property by anti-Government armed groups.
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Map of the Syrian Arab Republic
(Click to enlarge)
Notes:
*. The annexes to the present report are reproduced as received, in the language of submission only. [Volver]
1. The Commissioners are Paulo Sergio Pinheiro (Chairperson) and Karen Koning AbuZayd. [Volver]
2. See also annex III. [Volver]
3. Matthew Epstein and Ahmed Saeed, "'Smart' sanctions take toll on Syria", Financial Times, 18 July 2012. [Volver]
4. NCHR, "UNHCR gravely concerned about dramatic escalation of Syria exodus", 20 July 2012, available from www.unhcr.org/50094bdcb.htm. [Volver]
5. See UNHCR, Syria Regional Refugee Response, data.unhcr.org/syrianrefugees/regional.php. [Volver]
6. The Government of the Syrian Arab Republic estimates that the number of Iraqi refugees in the country stands at more than 1 million. [Volver]
7. OCHA, Humanitarian Bulletin, Syria, No. 3, 5 July 2012. [Volver]
8. OCHA, Humanitarian Bulletin, Middle East and North Africa, No. 2, May-June 2012. [Volver]
9. "Critical funding shortage threatens humanitarian response for Syria - UN official", UN News Centre, 16 July 2012. [Volver]
10. See A/HRC/20/CRP.1, para. 44 and annex. [Volver]
11. See also annex II, paras. 30-42. [Volver]
12. For a full account of the unlawful killings investigated by the commission, see annex V. [Volver]
13. For more information on shelling, see annex VI. [Volver]
14. Snipers regularly accompanied forces during ground assaults and were responsible for a significant number of civilian deaths. The commission recorded 35 instances of civilians shot by snipers. Dozens of interviewees described the detrimental psychological and social effects of the presence of snipers in their neighborhood. People feared leaving their houses and, when shelling started, feared staying at home. [Volver]
15. Rome statute, art. 8 (2) (c) (i) - 1. See also annex II, paras. 30-42. [Volver]
16. See annex V, para. 55. [Volver]
17. See also annex VII. [Volver]
18. See also annex VIII. [Volver]
19. See also annex IX. [Volver]
20. See annex II, paras. 30-42. [Volver]
21. See also annex IX. [Volver]
22. See also annex X. [Volver]
23. This protection remains in place unless the protected persons or objects take part in hostile acts. See annex II, paras. 30-42. [Volver]
24. See also annex XI. [Volver]
25. A/HRC/19/69, para. 87. [Volver]
26. See annex II, paras. 11-13. [Volver]
27. See annex II, paras. 8-10. [Volver]
28. On 25 June, the commission chairperson met the head of the National Independent Legal Commission in Damascus. The Commission is represented in the capital and governorates. It reportedly received 6,500 complaints, most of which refer to deaths and missing persons, levelled against the army, police and anti-Government armed groups. [Volver]
1. A/HRC/S-17/2/Add.1 paras. 23-26. [Volver]
3. This view is supported by the ICRC, among others. See "the Syrian Arab Republic in civil war, Red Cross says," 15 July 2012, Available from http://www.bbc.co.uk/news/world-middle-east-18849362. President Assad himself described the Syrian Arab Republic as being in a state of war in a statement on 26 June 2012, see "the Syrian Arab Republic in a State of War, says Bashar al-Assad," 26 July 2012. Available from http://www.bbc.co.uk/news/world-middle-east-18598533. [Volver]
4. See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996. The International Court of Justice ruled that IHL is lex specialis vis-à-vis IHRL during armed conflicts. Thus, the parties must abide by the legal regime which has a more specific provision on point. The analysis is fact specific and therefore each regime may apply, exclusive of the other, in specific circumstances. The Human Rights Committee generally concurs with this view as set out in the General Comment 31 to the ICCPR. "The Covenant applies also in situations of armed conflict to which the rules of international humanitarian law are applicable. While, in respect of certain Covenant rights, more specific rules of international humanitarian law may be specially relevant for the purposes of the interpretation of Covenant rights, both spheres of law are complementary, not mutually exclusive." [Volver]
5. The International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights were ratified by the Syrian Arab Republic in 1969, the same year it ratified the Convention on the Elimination of All Forms of Racial Discrimination. The Syrian Arab Republic is also party to the Convention on the Elimination of Discrimination against Women which it ratified in 2003, the Convention on the Prevention and Punishment of the Crime of Genocide in 1955, the Convention against Torture and other Cruel, Inhuman or Degrading Treatment and Punishment in 2004 and the Convention on the Rights of Child in 1993. The Syrian Arab Republic ratified the Optional Protocol to the Convention on the Rights of Child on the involvement of children in armed conflict in 2003. The Syrian Arab Republic has not ratified the Convention on the Non-applicability of Statutory Limitations to War Crimes and Crimes against Humanity. [Volver]
6. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 178, paras. 105-106, "[t]he protection offered by human rights conventions does not cease in case of armed conflict." See also Nuclear Weapons case, statements concerning IHL as lex specialis, at p. 240, para. 25. [Volver]
7. See Human Rights Committee, General Comment No. 31 on The Nature of the General Legal Obligation Imposed on State Parties to the Covenant (2004), paras. 15-19. In this General Comment, the Human Rights Committee considered that the duty to bring perpetrators to justice attaches in particular to violations that are criminal under domestic or international law, torture and similar cruel, inhuman and degrading treatment, summary and arbitrary killing and enforced disappearance. See also the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted by the General Assembly in December 2005, and the Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity (which were recognised in a consensus resolution of the UN Commission on Human Rights in 2005). [Volver]
8. For a more expansive view of the application of IHRL, see Andrew Clapham, Human Rights Obligations of Non-State Actors (Oxford, Oxford University Press, 2006). To similar effect, see UN Secretary-General, Report of the Secretary-General's Panel of Experts on Accountability in Sri Lanka, 31 March 2011, para. 188, available from: http://www.un.org/News/dh/infocus/Sri_Lanka/POE_Report_Full.pdf. [Volver]
9. As the Special Court for Sierra Leone held, "it is well settled that all parties to an armed conflict, whether States or non-State actors, are bound by international humanitarian law, even though only States may become parties to international treaties." See Prosecutor v. Sam Hinga Norman, case SCSL-2004-14-AR72(E), (31 May 2004), para. 22. Common Article 3 of the Geneva Conventions itself states that "each party ... shall be bound." (emphasis added). [Volver]
10. One repository of the principles of customary IHL can be accessed in Customary International Humanitarian Law (3 vols.), by Jean-Marie Henckaerts and Louise Doswald-Beck for the International Committee of the Red Cross, (Cambridge, Cambridge University Press, 2005) (ICRC Study). [Volver]
11. The Syrian Arab Republic is a party to the following treaties: The Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare (1925); the Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field (1929); the Convention for the Protection of Cultural Property in the Event of Armed Conflict(1954) and its Protocol(1954); the International Convention against the Recruitment, Use, Financing and Training of Mercenaries (1989). [Volver]
12. See also S/RES/1820. [Volver]
13. See William Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford, Oxford University Press, 2010), Otto Triffterer, Commentary on the Rome Statute of the International Criminal Court: Observers' Notes, Article by Article 2nd ed., (Oxford, Hart Publishing, 2008) and M. Cherif Bassiouni, International Criminal Law (3 vols.) 3rd ed., (Boston, Martinus Nijhoff, 2008). [Volver]
14. See http://www.icc-cpi.int. [Volver]
15. Article 7, Rome Statute. See M. Cherif Bassiouni, Crimes Against Humanity: Historical Evolution and Contemporary Practice (Cambridge, Cambridge University Press, 2011). [Volver]
16. The "Elements of Crimes" applied to cases at the International Criminal Court, Available from http://www.icc-cpi.int. See also Prosecutor v. Kunarac et al., IT-96-23-T & IT-96-23/1-T, Judgement, Trial Chamber, 22 February 2001. [Volver]
17. The list in the Statute includes murder, extermination, enslavement, forcible transfer of population, imprisonment, torture, rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, sexual violence, persecution, enforced disappearance, apartheid and other inhumane acts. See Article 7 (1) (a-k). [Volver]
18. Listed as murder under Article 7 (1) (a) of the Rome statute. See annex V. [Volver]
19. Article 7 (1) (h) of the Rome statute. See annex VII. [Volver]
22. ICC Pre-Trial Chamber, Situation in the Republic of Kenya, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, ICC-01/09-19, 31 March 2010, para. 95 (citations omitted). [Volver]
23. ICTY, Dusko Tadic Judgment, 7 May 1997, para. 648. [Volver]
24. ICC Pre-Trial Chamber, Situation in the Republic of Kenya, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, ICC-01/09-19, 31 March 2010, para. 96. [Volver]
25. See for example the ICRC Study (supra fn 46). In that extensive study, the ICRC identified 161 customary international humanitarian legal norms. [Volver]
26. See Supra, fn 43, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, UNGA Resolution 60/147, 16 Dec. 2005, Art. 4. [Volver]
27. Article 2 of ICCPR requires a State party to respect and ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in it and also to ensure an effective remedy for any person whose rights have been violated. [Volver]
28. General Comment 31, para. 8. [Volver]
29. Unlike in internal conflicts, the obligation in international armed conflicts rests not only with customary law, but also with the "grave breaches regime," set out in the four Geneva Conventions. See Article 49 of the First Geneva Convention, Article 50 of the Second Geneva Convention, article 129 of the Third Geneva Convention and article 146 of the Fourth Geneva Convention. The 'grave breaches regime' contains a specific list of crimes that, whenever violated, oblige the state to 'try or extradite' the suspected perpetrator. The International Humanitarian Fact Finding Commission, http://www.ihffc.org/, was set up for the purpose of conducting such investigations. [Volver]
30. UN Security Council, Res.978 (§558), Res.1193 (§559) and Res.1199 (§560); UN Security Council, Statements by the President (§§561-569). [Volver]
31. UN Commission on Human Rights, Res.2002/79 (§589). [Volver]
32. See ICRC's Customary IHL Rule 158. [Volver]
33. Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions (Economic and Social Council resolution 1989/65;text available at: http://www1.umn.edu/humanrts/instree/i7pepi.htm) and the Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (General Assembly resolution 55/89, 2000; text available at: http://www2.ohchr.org/english/law/investigation.htm). Note that the investigation need not be conducted by a court or even a judicial body. Administrative investigations, where appropriate, may equally comply with the four principles. [Volver]
34. Official Records of the General Assembly, Fifty-sixth Session, Supplement No. 10 (A/56/10), chap. IV, sect. E, art. 1. [Volver]
35. Ibid., commentary to article 7. [Volver]
36. Case of Almonacid-Arellano et al v. Chile, Inter-American Court of Human Rights, Judgement of September 26, 2006, (Preliminary Objections, Merits, Reparations and Costs), para. 99. See also Official Records of the General Assembly (see footnote 33), Art. 26. [Volver]
37. Almonacid-Arellano et al. v. Chile, para. 111. [Volver]
38. See the Preamble to the Rome Statute of the International Criminal Court: "Recalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes." [Volver]
39. Prosecutor v. Tharcisse Muvunyi, Judgement, Case No. ICTR-00-55-T, 12 September 2006, para. 459. [Volver]
40. See Article 3 of the Code of Conduct. See generally the Basic Principles. [Volver]
41. ICRC Study Rule 14. [Volver]
42. Rome Statute, Art. 8 (2) (e) (i)-(iv). [Volver]
43. Rome Statute, Art. 8 (2) (e) (iv). [Volver]
44. Article 9 (2) ICCPR. [Volver]
45. Article 9 (3) ICCPR. [Volver]
46. The ICCPR also provides for a right of compensation for unlawful arrest or detention. [Volver]
47. A. v. Australia, Human Rights Committee, communication No. 560/1993, CCPR/C/59/D/560/1993, para. 9.2. In considering unlawful remand, the Committee has also highlighted that factors of inappropriateness, injustice and lack of predictability that may render arbitrary an otherwise lawful detention; see Van Alphen v. The Netherlands, Human Rights Committee, communication No.305/1988, CCPR/C/39/D/305/1988. [Volver]
48. See for instance, A. v Australia, Human Rights Committee, communication No. 560/1993, CCPR/C/59/D/560/1993, para.9.5. [Volver]
49. While the state of emergency was lifted on 21 April 2011, the Government did not abolish the SEA, which remains in force under Syrian domestic law. [Volver]
50. State of Emergency Act, art. 6. [Volver]
51. Code of Criminal Procedure, Law No. 112 of 1950 as amended, arts. 104 (1) and (2). [Volver]
52. Legislative Decree No. 55/2011, amending article 17 of the Code of Criminal Procedure. [Volver]
53. International Convention on the Protection of all Persons from Enforced Disappearance, 2006. [Volver]
55. The Human Rights Committee in its General Comment No 20 (1992), para. 11, on Article 7 of the ICCPR, recognized that safeguards against torture included having provisions against incommunicado detention, granting detainees suitable access to persons such as doctors, lawyers and family members, ensuring detainees are held in places that are officially recognized as places of detention and for their names and places of detention, as well as for the names of persons responsible for their detention, to be kept in registers readily available and accessible to those concerned, including relatives and friends. [Volver]
56. Article 4 (1) AP II, Common Article 3 of the four Geneva Conventions of 1949. [Volver]
57. ICRC Study, Rule 99. [Volver]
58. ICRC Study, Rule 123. [Volver]
59. Rome Statute, Art. 7 (1) (i). [Volver]
60. ICC Elements of Crimes, Article 7 (1) (i). [Volver]
61. Syrian Constitution, Article 53. [Volver]
62. Law No. 148/1949 of the Syrian Criminal Code. [Volver]
63. Rome Statute, Art. 8 (2) (e) (vii). [Volver]
64. See CRC Art. 37 (c). [Volver]
65. Rome Statute, Art. 8 (2) (e) (v). [Volver]
66. General Comment 16, Art. 3. [Volver]
a. This report is to be read together with the Commission's first report, see A/HRC/20/CRP.1, 27 June 2012. [Volver]
b. The anti-Government activists and many victims and witnesses blamed the killings on Government forces working in concert with Shabbiha from neighbouring villages. The Government in its report blamed the 600-700 "terrorists" for the killings. The commission also considered the possibility that foreign groups were involved. [Volver]
c. On 3 August, the commission received a call from the Geneva Mission of the Syrian Arab Republic offering to arrange interviews with the two witnesses. By the deadline for submission of this report the interviews had not taken place. [Volver]
d. As examples: 1. They failed to describe the location of the main incident, specifically the Abdulrazzak family home; 2. The witness purported to know that in the northern part of the town "terrorists" were distributing ammunition to each other, but elsewhere the witness described her presence as being in the centre near the clock tower or further south during the same time frame; 3-. The witness also stated that the "terrorists" included "strangers who don't belong to our village," and was able to remember their names individually while the village has 30,000 people, and the whole area of Al-Houla's population is more than 100,000. It is unclear how she could be so certain of terrorist individual identities\names in the described context; 4. The witness said she saw the burning at the hospital area "when we passed by." The area around the hospital was in government hands throughout, so it is unclear when and how she was able to reach the given location given the circumstances of the day; 5. She suggested that the armed groups were in fact mentioning the real first names of the groups' leaders over their radio communications. The commission finds this lacking credibility; 6. The witness described the Al-Sayed family as having been shot from across the street when all other evidence, including by UNSMIS visiting the scene, indicate the victims died from gunshots at close range. [Volver]
e. UNSMIS, international human rights NGOs, journalists and the CoI have all conducted interviews during the course of their investigations into the events. [Volver]
f. The commission examined the version of events reported in the Frankfurter Allgemeine Zeitung (FAZ), 7 June 2012, by Rainer Hermann, and by journalist Marat Musin, on Anna news and Russia Today, 2 June 2012, (Available at http://www.youtube.com/watch?v=pyi-tJ_0PPg) both of which blamed the killings on anti-Government armed groups. The commission found these reports relied primarily on the same two witnesses as the Government's report and not on additional investigation or witnesses in Al-Houla. Moreover, these reports asserted that the Abdulrazzak family had converted to Shiism. The commission confirmed that all members of both families were Sunni and that no one in either family had converted. [Volver]
g. Note Verbale, 281/2012 of 7 June 2012, p.3 (unofficial translation). [Volver]
a. See annex II, paras. 30-42. [Volver]
b. The only exception to this proscription is when the person has been sentenced to death by a lawfully constituted tribunal that provided all fundamental judicial guarantees. [Volver]
d. Use of the terms 'civilians' in this section refers to those not taking direct part in hostilities. See ICRC Study, Rule 6. [Volver]
e. Much like in IHRL, the principle of proportionality is in effect during armed conflict. It prohibits the incidental deaths of civilians that are excessive in relation to the concrete and direct military advantage anticipated. See annex I (Applicable law). See also ICRC Study, Rule 14. [Volver]
f. Dozens of interviewees described the detrimental psychological and social effects of the presences of snipers in the neighbourhood. People feared leaving their houses, but when shelling started they feared staying home. Routine tasks such as shopping, going to work or playing outside became life threatening. [Volver]
g. Regarding the Government's report, the commission viewed video material wherein one member of the Government's commission who compiled the report on Al-Qubeir was announcing his defection. Therein he implied that the judiciary had been co-opted into covering up the misdeeds of Government forces and aligned forces. The video could not be authenticated. [Volver]
h. A journalist who visited Al-Qubeir shortly after the incident and who interviewed a person who had come back to retrieve some items, reported his interviewee as saying, "Many young men from the Alawite villages around Al-Qubeir have died fighting for Assad against the rebels. They wanted revenge, and so they took it out on the nearest Sunni village." [Volver]
i. A more detailed discussion of the attack on Homs has been set out above. [Volver]
j. A more detailed discussion of the events in Al-Qusayr has been set out in annex VI. [Volver]
k. Rome statute, Art. 8 (2) (c) (i). See also annex II. [Volver]
l. See ICRC Customary IHL Study, Rule 1. Rome statute, Art. 8 (2) (e) (i). [Volver]
a. See Annex II, paras. 30-42. [Volver]
b. See annex V for more details on the events in Tremseh on 12 July. [Volver]
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