As the Syrian regime advances in Idlib, the last stronghold of the opposition, the international community seems unable to find an effective way to protect civilians from this brutal military operation. Regardless of last week’s ceasefire in Idlib between Russia and Turkey, hundreds of thousands of civilians remain in imminent danger, and first responders continue their appeals for help. Activists on the ground still risk their lives to document atrocities, believing that accountability is the most powerful tool for challenging the Syrian regime.
But with Russia and China using their veto power to block a United Nations Security Council referral of the situation in Syria to the International Criminal Court, a rare judicial avenue for accountability is the limited use of universal jurisdiction against low-ranking individuals, mostly Syrian refugees in Europe, while preparing for potential future tribunals in the aftermath of the conflict.
Given this legal uncertainty, efforts to achieve accountability have concentrated on advocacy. However, the enthusiasm and passion for justice too often leads to misguided and indeed harmful efforts, however well-intentioned. This has resulted in an elitist approach to justice, according to which donors, government foreign affairs officers, heads of nongovernmental organizations (NGOs), and legal pundits shape and decide the type of justice fit for ‘victims,’ where the stories of Syrian victims and survivors too often are sold as cosmetic products to validate various narratives.
A Misguided Approach Favoring Visibility
One such instance became clear just last month. On Feb. 23, Syrian social media activists circulated news that Mazen al-Hamada, a former detainee of the Syria regime, might have returned to Damascus. Hamada was an asylee in the Netherlands who became prominent as he repeatedly put the spotlight on the regime’s brutality with his own story of personal suffering during 18 months of detention in Syrian regime facilities.
According to the February news reports, Hamada had arranged a ‘reconciliation’ process with the Syrian regime through its embassy in Berlin. While activists have been immersed in lengthy arguments about whether the reports could be true and the reasons that might have led him to such a decision, they agree that his videos and his testimony indicate he is in need of psycho-social and emotional support.
“They have wrecked me both physically and mentally,” Hamada said in one of his interviews published by Echoes of IS in November 2017.
If the news of Hamada’s return is confirmed, it will reveal major defects in the approach that we activists take to the campaign for justice and accountability, in particular the respect for the needs of our witnesses and the principle of “do no harm.”
Hamada’s story has been featured by national and international NGOs and by media outlets including PBS Newshour, the Washington Post, and in especially graphic detail in The New Yorker, which reported at one point, “Recalling the event, Hamada’s eyes grew damp and red. His voice faltered, and he sobbed desperately.” He also testified in front of foreign governments and met with U.S. government leaders to raise awareness about the situation in the northeast of Syria. Despite these multiple — and inevitably retraumatizing — occasions in which he recounted his torture and abuse and that of others, and the widespread use of his story by NGOs, governments and media outlets, activists who met and know Hamada say he ultimately had to deal with his emotional and psycho-social distress alone in his exile.
While the news about his return to Syria has not been confirmed, Hamada reportedly has disappeared, and activists say they believe the regime re-arrested him upon his arrival to Syria. It would be no surprise if he shows up on Syrian government media in the coming weeks, refuting his previous testimonies about the cruel practices he experienced by Syrian intelligence members.
Such instances have occurred before. The Syrian regime previously arrested one of the early defectors from the Syrian military, Hussein Harmoush, who exposed atrocities committed by government forces and who later appeared on Syrian television in 2011 to refute his previous narratives and ‘confess’ that legal violations were primarily committed by armed opposition groups instead. In the same vein, in 2018, following the regime’s recapture of Al Ghouta, an area just outside Damascus, the Syrian and the Russian governments put members of a medical team who had worked in Al Ghouta on television and flew them to an event in Geneva to echo the Syrian regime’s version of the infamous chemical attack of 2013.
It is possible that all these individuals were powerless and had no choice but to cooperate with the regime. While Hamada’s case ultimately may resemble that of Harmoush and the medical team from Al Ghouta, it constitutes a new precedent: the regime did not forcibly capture Hamada, nor was he under its control, but he ‘voluntarily’ chose to return, possibly out of despair caused by the trauma he endured, coupled with a lack of support from those who benefitted from his story.
Impact on Justice and Accountability
Best practice for documenting human rights violations for international justice and accountability necessitates that anyone conducting the work have the capacity and expertise to adhere to fundamental principles that maximize the value of information gathered and prioritize the protection of victims and sources. One of the most important principles, as outlined by the U.N. Office of the High Commissioner of Human Rights is to “do no harm,” which requires, inter alia, prioritizing the safety and well-being of witnesses, avoiding exposing witnesses to re-traumatizing events, and calculating potential risks of harm when interacting with witnesses.
The principles also obligate anyone working with witnesses to assess their needs and provide necessary support, including medical, psycho-social, and logistical. It is unclear whether Hamada was offered such support.
In addition, the U.N. principles call for human rights officers to respect confidentiality by refraining from disclosing information about their witnesses when that may endanger them even if a consent has been given. Justice actors should exercise good judgement when disclosing any information about their witnesses, particularly when there are no witness protection programs in place. Witness protection programs in the case of Syria are limited, if available at all, in part because there is no active prosecution or sustainable funding for such efforts.
Failure to comply with such guidelines risks compromising the evidentiary value of the testimony elicited from these sources. Harmoush and the medical team in Al Ghouta were likely subject to duress when appearing on Syrian government TV, and the same may soon be true of Hamada. But short of any further about-turn, none of them will be available to prosecutors to substantiate such conditions, and even if they were to become available, their testimony would be tainted by the vacillating.
It is no secret that Syrian civil society has limited resources and experience in dealing with formal documentation of human rights violations. International NGOs also risk losing sight of such standards amid their workload.
But it is essential to adhere to these standards in order to ensure that perpetrators are held accountable for crimes, while also prioritizing the mental and physical safety of victims and witnesses. Hamada’s unfortunate story reveals how our well-intended efforts can easily deviate from these established legal and humanitarian principles, endangering our witnesses and compromising the evidentiary value of their testimony.
The Way Forward
Underdeveloped Syrian civil society organizations as well as local and international NGOs are trying to do good, but also operate in an environment in which they essentially are competing for public and policy attention. Visibility generates funding.
But we must never jeopardize the safety of witnesses. Groups and individuals documenting horrific crimes and other violations in war or otherwise must revisit their methodology for evidence collection and their compliance with the principle of “do no harm.”
Donors also should support witness protection programs and be realistic with their expectations about the outcome of documentation processes. They should practice patience and favor impact rather than stories elicited for the primary purpose of showing their constituents the results of their investment, particularly when there are so few established protection measures.