Op-Ed: Incomplete disappearance and impossible justice: ‘I still speak about him in the present tense’


August 30, 2022

Suddenly, I’ve noticed that the term I use most in my life, whether speaking or writing, is “enforced disappearance.” To tell the truth, I don’t remember when this term entered my daily life, but I started using it at an early age. Perhaps I began to pronounce it before I understood what it meant. 

I tried once to count the number of times I use “enforced disappearance” in an average work day, in both Arabic and English, while running a training or panel discussion, giving a media interview or having discussions with my colleagues. For three days, I counted.

The first day, I used the term 63 times. The second, 71 times. On the third day, while trying to minimize using it as much as possible, the result was 47 times. This is to say nothing of how many times my brain subconsciously mentioned the term “enforced disappearance.” These numbers led me to wonder: Is it normal for a person’s mind to spend half its daily energy in this cycle, with all the connotations and implications of the term? 

Syrians call this month “Flaming August,” referring to its high temperatures. I call it this too, as a Syrian who burns in its flames starting on the first day of the month: the date [in 2017] I announced the news of the execution of my husband, the activist Bassel Khartabil, following several years of enforced disappearance. Then comes the anniversary of the death of a man I loved when I was young, who died in my arms after suffering from lung cancer. Next, the anniversary of my parents’ marriage, a marriage that continued despite my father’s arrests, prosecutions and multiple enforced disappearances. Then the anniversary of the Ghouta chemical massacre on August 21, which still chokes me, as it has choked millions, for years. And finally, the International Day of the Victims of Enforced Disappearances, which brings all the previous memories to the fore, on the 30th day of this burning month. 

Recently, I’ve been thinking about the meaning of the word “disappearance,” from a philosophical, psychological and emotional perspective. For years, I have thought about it, explained it and analyzed it from a legal, human rights perspective, to the point of feeling a contradiction or duplicity in it. 

Legally, enforced disappearance means: “the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.” This is how Article II of the International Convention for the Protection of All Persons from Enforced Disappearance, adopted by the United Nations General Assembly in December 2010, puts it. 

In the Arabic language, the words for disappearance (al-ikhtifa) and concealment (al-ikhfa) come from the  verb “to conceal” (akhfa). That is, to hide something, cover it, silence it. The intransitive verb “to disappear” (ikhtafa), means to be hidden so nobody sees. Enforced (qasri) means unjustly, forcibly, by coercion. 

The definitions above seem logical. They precisely describe what is committed against those who are forcibly disappeared in Syria. But what I am living does not resemble what I explained above, although I agree with every word of it. Perhaps it is because I live it in secret, and I try not to reveal it. But I do not feel that my husband disappeared in the psychological and emotional sense, or even in terms of everyday details. I still speak about him in the present tense. When I speak in languages other than Arabic, my native tongue, I always explain that this is deliberate, not a grammatical error, because this is how I feel. 

How could Bassel be a disappeared person when he lives with me in my daily dreams and nightmares? How can he have disappeared, while I still feel I communicate with him? We discuss, sympathize, argue, disagree, reconcile and I hear his opinion and advice in all my affairs. How can he have disappeared, when I can still hear his voice, still smell him? How can my husband have disappeared, and I am still, in some very deep unconscious place, waiting for his return? 

This deadly uncertainty is not my opponent alone. It is the opponent of thousands of women and families in Syria, and around the world. There is no information about our loved ones’ location or fate. What information and death certificates are delivered do not convince us as absolute proof of death (murder), so long as we do not have the bodies. 

For decades, people have struggled to uncover the truth, to receive the bodies, to achieve justice. On August 30, I too will stand in the Place de la République in Paris to speak about my rights, and the rights of all Syrian families to truth and justice. Again, I will demand Bassel’s body. Then I will go back to my strange little new house in the French capital, to tell Bassel about my participation in the demonstration. 

I have lived seven years this way. Others have lived four years, others 10. We do not know how long we will wait. We do all that must be done. We wear black. We use the word “widow” to describe our civil status on any document we fill out. But all that is not enough to make us believe our loved ones died. We do not have even the comfort of believing, as we should. 

I remember how much I struggled to convince Syrians to use the term “disappearance,” or “enforced disappearance,” instead of “detention,” which we were accustomed to using. I spent years convincing people that the crime of enforced disappearance is worse than arbitrary detention, and this term became part of everyday Syrian life. 

The 1998 Rome Statute of the International Criminal Court (ICC) classifies enforced disappearance as a crime against humanity in Article 7(1)(i). 

The crime of enforced disappearance is clearly linked to other violations against the rights of forcibly disappeared persons. At the top of these violations are torture and deprivation of a fair trial, which worry their loved ones and human rights defenders the most. 

This leads us to other crimes. According to Article 8 of the Rome Statute, torture, inhuman treatment and “wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial” as well as “unlawful deportation or transfer or unlawful confinement” are war crimes. 

The same Article classifies “The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable” as a war crime.

Enforced disappearance cannot be separated from these crimes. Nor can I encompass all the crimes associated with enforced disappearance in this article.

Given that we are discussing international criminal law, based on the Rome Statute, we cannot avoid mentioning, if only briefly, the issue of accountability and impunity. This is particularly relevant given the increasing number of recent court cases, allegations and verdicts in a number of European countries through the efforts of dozens of Syrian activists and victims, as well as non-Syrians in these countries. 

As a lawyer, I highly value all that is being done to achieve justice, even if only a small part of the justice that Syrians deserve. But also as a professional, and as a nonviolent activist, I find that using the term “punishment” is frustrating, and sometimes hurtful, in this moment. Most countries of the world view criminal law as having a reformative, not a punitive, goal, even if this is in form only (that is, in the text of the law, not as applied in reality). 

While studying law in Syria—specifically criminal law, criminology and punishment—and later while studying for my master’s degree in Lebanon on nonviolent struggle and explanations for violent behavior, I found there are two main schools of thought, or theories, to explain criminality and violence. The first holds that criminal behavior is innate (genes are responsible). The second says that criminal behavior is acquired because of psychological, social and biological factors. There are many theories that fall in between these two views as well. 

This is a controversial, deep and complex topic, and I will not go into my own opinion of the causes and motives of criminal behavior here. I just want to say that, whatever the reasons, motives and aims of criminal behavior, the word “punishment” still seems inappropriate to me. I use the term impunity (al-iflat min al-iqab), or escape from punishment, in Arabic, to describe the state of evading accountability and criminal responsibility. This needs to be reconsidered if we really want to achieve justice for the victims, not revenge on the criminals. 

Justice in Syria’s case means a political transition, and guarantees that these crimes will not be repeated, with the criminals acknowledging what they have done. These guarantees will not be without accountability for the perpetrators, not only under the Syrian Penal Code, but under international law—specifically international criminal law and international humanitarian law.  

This is from my point of view as a lawyer. But when I strip away my professional status and speak only about myself as a person, the matter is very different. 

As a human being, I do not think there is anything in the world that will bring me justice. I see no sense in justice, except for me to be with Bassel as we dreamed. To be in my country, in my family’s embrace. Justice would be to wake up one day and find that none of this ever happened. 

 

This article was originally published in Arabic and translated into English by Mateo Nelson. 

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