VI. Relevant International Standards

Freedom of Expression, Association, and Assembly

Syria’s repression of Kurdish political activism violates a number of basic tenets of international law: the right to freedom of expression and association, and the associated right to freedom of assembly. Syria has obligations under several international treaties to uphold these rights, including the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).[182] Syria ratified the ICCPR on March 23, 1976, and the ICESCR on January 3, 1976.

Article 19 of the ICCPR guarantees all individuals the “freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media.”[183] The UN Human Rights Committee, which monitors state compliance with the ICCPR, has stated that “the legitimate objective of safeguarding and indeed strengthening national unity under difficult political circumstances cannot be achieved by attempting to muzzle advocacy of multi-party democracy, democratic tenets and human rights.”[184]

Syria’s penal code provisions—notably article 267 (undertaking “acts, speech, writings or other means to cut off part of Syrian land to join it to another country”) and article 307 (undertaking “acts, writings or speech that incite sectarian, racial or religious strife”)—are so broadly articulated that the Syrian judiciary has been able to punish a range of peaceful activities that were critical of the government’s policies, with the legal cover of protecting national security.

The ICCPR also guarantees the right to freedom of association and assembly. While the government may restrict the right to freedom of association, it can only do so on certain prescribed grounds and only when particular circumstances apply. According to article 22 of the ICCPR,

(1) Everyone shall have the right to freedom of association with others

(2) No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others ...

The restrictions specified in article 22 (2) should be interpreted narrowly. For example, terms such as “national security” and “public safety” refer to situations involving an immediate and violent threat to the nation. This implies that the limitation must respond to a pressing public need and be oriented along the basic democratic values of pluralism and tolerance.[185] Syria’s penal code provisions dealing with public gatherings fail to meet this test. Article 335 (which criminalizes attending “a meeting that is not of a private nature ... where an individual issues calls for rioting or displays signs that perturb the general safety, or undertakes any form of rioting”), and article 336 (which criminalizes any gathering or convoy in a public space if there are at least seven people gathered to protest a decision or measure taken by the public authorities), cast the net too widely by punishing any gathering that is critical of the government.

The ICCPR also guarantees the right to take part in the conduct of public affairs either directly or through freely chosen representatives, and the right to vote and to be elected at genuine periodic elections (article 25). These rights entail participation in, and voting for, political parties. They are guaranteed “without unreasonable restrictions.” Plurality of parties and the opportunity for new and varied political parties to emerge is central to the right to take part in the conduct of public affairs either directly or through freely chosen representatives and the right to vote and to be elected in periodic and fair elections.

Article 288 of Syria’s penal code criminalizes joining a “political or social organization or an international group without the permission of the government.” However, the government never enacted a law to register political parties and has consequently never legalized any political party. The Syrian government’s policy amounts to a de facto ban on political parties and an effective denial of the right of Syrian citizens to a meaningful exercise of their rights in the context of their right to organize and associate according to their political beliefs.

Syria’s continued application of the Emergency Law since 1963 also violates the ICCPR. Article 4 of the ICCPR limits the application of emergency laws to a time of “public emergency which threatens the life of the nation and the existence of which is officially proclaimed.” It further stipulates that states party to the ICCPR may derogate from their obligations under the treaty only “to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law.” The UN Human Rights Committee has gone on to say that such emergency derogations from human rights “must be of an exceptional and temporary nature.”[186]

In its 2000 report to the UN Human Rights Committee, Syria justified the continued application of the Emergency Law by saying that since Israel’s establishment in 1948, Syria had faced “a real threat of war by Israel,” and that this “gave rise to an exceptional situation that necessitated the rapid and extraordinary mobilization of forces in the Syrian Arab Republic and, consequently, the promulgation of legislation to ensure the Administration's ability to act rapidly in the face of these imminent threats.” However, the committee found that Syria did not provide “convincing explanations as to the relevance of these derogations to the conflict with Israel and as to the necessity of these derogations.”[187]

Minority Rights

International law protects the identity of minorities and prohibits discrimination against them. It also guarantees the right of minorities to actively participate in the public and cultural life of society. Article 27 of the ICCPR states, “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.” The 1993 UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, adopted by the UN General Assembly, goes further in outlining these rights. According to article 2,

3. Persons belonging to minorities have the right to participate effectively in decisions on the national and, where appropriate, regional level concerning the minority to which they belong or the regions in which they live, in a manner not incompatible with national legislation.

 4. Persons belonging to minorities have the right to establish and maintain their own associations.

 5. Persons belonging to minorities have the right to establish and maintain, without any discrimination, free and peaceful contacts with other members of their group and with persons belonging to other minorities, as well as contacts across frontiers with citizens of other States to whom they are related by national or ethnic, religious or linguistic ties.[188]

This means that a state not only cannot prevent a minority from using its language or setting up an association; it is under a positive duty to ensure that a minority can set up associations, participate in decision making, and publish in its own language without discrimination.[189]

Syria has denied the Kurds the right to participate effectively in decisions affecting them. As shown in this report, Syria stifles any effort by Kurds to organize or advocate for their political and cultural rights. The authorities restrict the use of the Kurdish language in public, in schools, and in the workplace, banning Kurdish-language publications, as well as prohibiting celebrations of Kurdish festivities, such as Nowruz. While there are Syrian Kurds who have achieved positions of authority, such Kurds had not shown any special Kurdish consciousness and did not advocate for Kurdish rights from their position of power.

In its 2004 report to the UN Human Rights Committee, Syria noted that “there are Kurdish representatives in the People’s Assembly and on the Council of Ministers and some of them had attained the post of President of the Republic or Prime Ministers. Thus Kurds are considered to be fully assimilated into Syrian society where they act and react along with other Syrian citizens.”[190] However, the committee did not find the statement convincing and concluded its observations regarding Syria’s submissions by noting that it “remains concerned at discrimination against Kurds and that the practical enjoyment by the Kurdish population of their Covenant rights is not fully guaranteed.”[191]

Detention and Trial Standards

International human rights law prohibits arbitrary arrest.[192] An arrest or detention is arbitrary when not carried out in accordance with the law, or if the law allows for the arrest and detention of people for peacefully exercising their basic rights such as to freedom of expression, association, and assembly.[193] Syria cannot justify such detention by simply relying on its Emergency Law.

Syria’s security services also routinely hold activists in incommunicado detention while interrogating them.[194] Incommunicado detention violates important rights of detainees, including access to family and legal counsel, to be brought promptly before a judge, and to be treated with humanity and dignity.[195] The UN Standard Minimum Rules for the Treatment of Prisoners provides, “An untried prisoner shall be allowed to inform immediately his family of his detention and shall be given all reasonable facilities for communicating with his family and friends, and for receiving visits from them, subject only to restrictions and supervision as are necessary in the interests of the administration of justice and of the security and good order of the institution.”[196]

The practice by Syrian security services of holding Kurdish detainees in incommunicado detention, for periods ranging from a few days to a few months, where detainees are unable to inform their families of their arrest or detention, much less to receive visits from them or their counsel, violates Syria’s obligations under human rights law and the Minimum Rules referenced above. It is a particularly inhumane practice, causing unnecessary anguish and suffering not only to the detainees, but to their families, who remain in the dark about the fates of their loved ones.

The prohibition on the torture and other mistreatment of all persons in detention is enshrined in international treaty law and is considered a fundamental principle (peremptory norm) of customary law. Article 7 of the ICCPR states that “[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Article 10 states that “all persons deprived of their liberty shall be treated with humanity and respect for the inherent dignity of the human person.”[197] Article 14 protects the right of every person “[n]ot to be compelled to testify against himself or to confess guilt.”[198]

Prohibitions on torture and other ill-treatment are found in other international documents, such as the Universal Declaration of Human Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which Syria ratified on August 19, 2004, the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, and the UN Standard Minimum Rules for the Treatment of Prisoners. International law, set out most clearly in the Convention against Torture, requires a prompt and impartial investigation when it is reasonable to believe torture has been committed in a state’s territory, as well as requiring that every victim of torture should obtain redress, including compensation.[199]

Of the 30 Kurdish political activists we interviewed who had been imprisoned or detained by Syrian security services, 12 reported severe instances of torture and ill-treatment, including severe beatings and prolonged sleep deprivation. To our knowledge, the Syrian government has conducted no investigations of these torture allegations, notwithstanding complaints made by some of these men to judicial authorities. The complaints Human Rights Watch heard from these detainees comports with numerous cases of torture and ill-treatment of political detainees that it has documented in Syria in recent years.[200] The torture and ill-treatment reported by detainees, as well as Syria’s failure to investigate these claims and to punish those found to be responsible, violate Syria’s obligations under the ICCPR and Convention against Torture.

International human rights law also establishes limits on the use of military tribunals to try civilians. A clear doctrine has evolved in the jurisprudence of international human rights bodies over the past 15 years that the jurisdiction of military tribunals over civilians violates the due process guarantees protected in article 14 of the ICCPR. In its General Comment No. 13, issued in 1984, the Human Rights Committee held that while the covenant did not prohibit military tribunals, their use to try civilians must be “very exceptional and take place under conditions which genuinely afford the full guarantees stipulated in art. 14.”[201] During the 1990s the position of the Human Rights Committee on military tribunals became even more robust: It rejected their use to try civilians under any circumstances, or to try military personnel for infractions other than those committed in exercise of military functions.[202]

Military Courts tried 18 of the 30 Kurdish activists interviewed by Human Rights Watch for this report. Such trials violate Syria’s obligations under the ICCPR not to try civilians before military courts. In addition, the Supreme State Security Court has tried Kurdish activists in violation of internationally guaranteed fair trial standards.[203]