III. Human Rights and Surveillance

III. Human Rights and Surveillance

III. Human Rights and Surveillance

The Syrian regime’s control over the telecommunications infrastructure is pervasive and has been deployed to monitor and silence, sometimes permanently, journalists, activists and those working to protect human rights in the country. The human rights of the Syrian people are being breached by the surveillance capacity of the state. The Syrian Arab Republic is a party to the International Covenant on Civil and Political Rights (ICCPR) and the

⁷³ But c.f. Interview by Justin Clark with Dlshad Othman, Security Analyst, (July 26, 2018), available at: https://syriadirect.org/cyberattacks-and-surveillance-in-assads-syria-they-can-do-whatever-they-want-they-own-the-infrastructure/ (“A lot of people are saying that Russian hackers are helping the Syrian government. And they might help them on the strategic decision-making level, they might give them some advice on what approaches to use to target users, that makes sense, but when it comes to technology, we never saw any similarities between the two states. I don’t think the Syrian Electronic Army needs Russian help.”).

⁷⁴ Railton, supra note 72.

⁷⁵ *Id. *

⁷⁶ Andy Greenberg, How the Syrian Electronic Army Hacked Us: A Detailed Timeline, FORBES (Feb. 20, 2014), available at: https://www.forbes.com/sites/andygreenberg/2014/02/20/how-the-syrian-electronic-army-hacked-us-a-detailedtimeline/#d496edcc522c.

⁷⁷ Railton, supra note 72.

⁷⁸ Kastrenakes, supra note 68.

⁷⁹ Internet Usage and Marketing Report: Syria, Internet World Stats (2010) available at: https://www.internetworldstats.com/me/sy.htm. See also https://www.nytimes.com/2011/05/23/world/middleeast/23facebook.html.

⁸⁰ Jennifer Preston, Seeking to Disrupt Protesters, Syria Cracks Down on Social Media, NYTIMES (May. 22, 2011) available at: https://www.nytimes.com/2011/05/23/world/middleeast/23facebook.html.

⁸¹ Id.

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment (CAT), and is obligated to promote and protect the human rights of its’ people. ⁸² These treaties guarantee the right to privacy; freedom of expression and the right to take part in public affairs; the right to be free from torture and cruel, inhumane and degrading treatment; the right to life; and the right to a remedy when any of these rights have been breached. This report documents the violations of the right to privacy of individuals in Syria through an illegal and arbitrary surveillance framework. This report also documents the breaches of other rights that follow from that surveillance and how the regime and its affiliated groups have hacked, tracked and targeted those critical of the regime.

While the rights of all people are endangered and are being breached, the surveillance regime has especially targeted and impacted the rights and lives of human rights defenders working in and out of the country to protect the human rights of the Syrian people. A “human rights defender” is anyone that works—alone or as part of a larger organization—in striving for the realization and protection of human rights.⁸³ Human rights defenders are identified above all by the actions they take to protect or further the protection of human rights.⁸⁴ Although anyone that defends human rights is a human rights defender, the most common examples of human rights defenders include lawyers, government officials, NGO workers, journalists, professors, and persons engaged in social movements for transformative change.⁸⁵

Michel Frost, former UN Special Rapporteur on the situation of human rights defenders, explained that international human rights law “attaches particular importance to the special role of human rights defenders.”⁸⁶ Human rights defenders are not granted more rights, but rather, since human rights defenders are vulnerable based on the type of work they do, they are afforded a higher duty of human rights protections.⁸⁷ Therefore, States must take necessary measures to ensure that human rights defenders are safe in “exercise[ing] the rights to freedom of opinion, expression, peaceful assembly and association, which are essential for the promotion and protection of [all] human rights.”⁸⁸ States must take steps to ensure protection of human right defenders by refraining from portraying human rights defenders and their activities as dangerous, illegal or a threat to the security of the State.⁸⁹ States are also required to act with due diligence in preventing, investigating, and punishing those who violate the rights of human rights defenders.⁹⁰ This requires an effective legal system and a functioning and independent judiciary capable of holding violators accountable. While the human rights of all

⁸² International Covenant on Civil and Political Rights (ICCPR), U.N. HUMAN RIGHTS (Dec. 16, 1966); Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 U.N.T.S. 85 (Dec. 10, 1984).

⁸³ Aliyev v. Azerbaijan, (Judgment), App. Nos. 68762/14 & 71200/14, Eur. Ct. H.R. paras. 88-92 (2018) (discussing foundations of law related to human rights defenders); see also G.A. Res. 53/144, Declaration on Human Rights Defenders (Mar. 8, 1999) (adopting the declaration on human rights defenders).

⁸⁴Human Rights Defenders: Protecting the Right to Defend Human Rights, UNITED NATIONS, 2, https://www.ohchr.org/Documents/Publications/FactSheet29en.pdf (last visited May 6, 2019).

⁸⁵E.g., Michel Frost (Special Rapporteur on the situation of human rights defenders), Situation of Women Human Rights Defenders, U.N. Doc. A/HRC/40/60 (Jan. 10, 2019) at para. 4.

⁸⁶ Id. at para. 208.

⁸⁷ Michel Frost (Special Rapporteur on the situation of human rights defenders), Situation of Human Rights Defenders, U.N. Doc. A/73/215 at para. 14 (July 23, 2018).

⁸⁸Aliyev v. Azerbaijan, Eur. Ct. H.R. para. 88 (quoting G.A. Res. 31/32, Protecting Human Rights Defenders, Whether Individuals, Groups or Organs of Society, Addressing Economic, Social and Cultural Rights (Mar. 24, 2016)) (The UN’s Declaration on Human Rights Defenders states that States are required to “protect, promote and implement all human rights.”); General Assembly Resolution A/RES/53/144 adopting the Declaration on human rights defenders at section 2(b); see also Aliyev v. Azerbaijan, Eur. Ct. H.R. paras. 114-140 (analyzing allegations of “ill-treatment” of a human rights defender by the state of Azerbaijan); Human Rights Committee, Communication No. 2212/2012, (Judgment), Sannikov v. Belarus, views adopted July 12, 2012 (finding a violation of, amongst others, the right to be free from torture as it relates to a human rights defender); Human Rights Committee, Communication No. 1782/2008, (Judgment), Aboufaied v. Libya, (Judgment), views adopted Mar. 21, 2012 (finding a violation of the right to life and the right to be free from torture for a human rights defender in Libya); Human Rights Committee, Communication No. 2024/2011, Israil v. Kazakhstan, (Judgment), views adopted Oct. 31, 2011 (holding that deporting a human rights defender to his country of origin would violate the defender’s rights to life and freedom from torture).

⁸⁹ Margaret Sekaggya, Report of the Special Rapporteur on the Situation of Human Rights Defenders, UNITED NATIONS GENERAL ASSEMBLY (Dec. 30, 2009) 6, available at: https://www2.ohchr.org/english/issues/defenders/docs/A.HRC.13.22.pdf.

⁹⁰Frost supra note 85, at para 20.

people have been breached and continue to be in danger, the rights of human rights defenders are systematically and disproportionately impacted.

This section identifies the human rights implicated by the surveillance capabilities of the Syrian regime. The next section sets out how surveillance leads to tracking, hacking and violence in breach of these rights.

A. The Right to Privacy

A surveillance state with the capabilities to monitor and track its people implicates the privacy rights of everyone. Syria’s surveillance system operates pursuant to arbitrary and imprecise legal standards, breaching the privacy rights of its people and facilitating further human rights violations from the right to freedom of expression to the right to life. Article 17 of the ICCPR protects individuals from arbitrary or unlawful interference with their “privacy, family, home or correspondence.”⁹¹ Violations of the right to privacy can occur when a state intercepts correspondence, including electronic and non-electronic correspondence such as letters, emails, or social media activity.⁹² Other invasions of privacy include collecting metadata regarding communications,⁹³ audio-visual observation,⁹⁴ GPS tracking,⁹⁵ and the unauthorized storing and subsequent use of personal information.⁹⁶ Privacy is not an absolute right, it may be interfered with to advance legitimate state interests so long as that interference is lawful, necessary and proportionate.⁹⁷

The term “unlawful” means that no interference can take place except in cases authorized by law.⁹⁸ To meet the requirement that an invasion of privacy be lawful, the surveillance program must be justified by legislation.⁹⁹ The legislation must be consistent with the provisions, aims, and objectives of the Covenant, pursuant to domestic and international law, foreseeable and accessible in a manner that is timely and accurate,¹⁰⁰ precise, specific and clearly defined.¹⁰¹ A law is accessible when it is not left to “secret” determinations by unaccountable bodies,

⁹¹ ICCPR, supra note 82, Article 17.

⁹² UN HRC, The Right to Privacy in the Digital Age: Report of the Office of the United Nations High Commissioner for Human Rights, 27th session, 2nd and 3rd agenda item, A/HRC/27/37 (explaining that correspondence covers electronic correspondence); Human Rights Committee, Communication 2079/2011, Khadzhiev v. Turkmenistan, views adopted 1 April 2015, para. 8.8 (holding that interference with mail from a prisoner to his family violates the right to privacy).

⁹³ Malone v. United Kingdom, (Judgment), App. No. 8691/79, 82 Eur. Ct. H.R. (ser. A), para. 84 (1984); see also UN HRC, The Right to Privacy in the Digital Age: Report of the Office of the United Nations High Commissioner for Human Rights, 27th session, 2nd and 3rd agenda item, A/HRC/27/37 (“The aggregation of information commonly referred to as ‘metadata’ may give an insight into an individual’s behavior, social relationships, private preferences and identity that go beyond even that conveyed by accessing the content of a private communication.”).

⁹⁴ El-Haski v. Belgium, App. No. 649/08, Eur. Ct. H.R. (2012).

⁹⁵ Uzan v. Germany, (Judgment), App. No. 35623/05, Eur. Ct. H.R. para. 12-13 (2010).

⁹⁶ See S. v. United Kingdom, (Judgment), App. Nos. 30562/04 & 30566/04, Eur. Ct. H.R. paras. 20, 33 (2008).

⁹⁷ E.g., Human Rights Committee, Communication No. 2326/2013, *N.K. v. Netherlands, *views adopted July 18, 2017, para. 9.3 (No specific legislation has been adopted to regulate surveillance for law enforcement agencies or intelligence services in Syria.).

⁹⁸ Human Rights Committee, General Comment 16, U.N. Doc. HRI/GEN/1/Rev.1 at 21 (1994), available at: http://hrlibrary.umn.edu/gencomm/hrcom16.htm.

⁹⁹ High Comm’r For Human Rights, Report of the United Nations High Commissioner for Human Rights on the Right to Privacy in the Digital Age, U.N. Doc. A/HRC/27/37 (30 June 2014) paras. 22-23 (citing Communication No. 903/1999, Van Hulst v. Netherlands, Views adopted Nov. 1, 2004; Human Rights Committee, Concluding Observations on the Fourth Periodic Report of the United States of America, CCPR/C/USA/CO/4 (2014); Uzun v. Germany, (Judgment), App. No. 35623/05, Eur. Ct. H.R., (2010); Weber v. Germany, (Decision), App. No. 54934/00, Eur. Ct. H.R., para. 4 (2006); Escher v. Brazil (Judgment), IACHR (Nov. 20, 2009); Martin Sheinin (Special Rapporteur on the Promotion and Protection of Fundamental Freedoms While Countering Terrorism), U.N. Doc. A/HRC/13/37 (Dec. 28, 2009); Frank La Rue (Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression), U.N. Doc. A/HRC/23/40 (Apr. 17, 2013)).

¹⁰⁰*Id. *

¹⁰¹ See Human Rights Committee, Communication No. 2081/2011, D.T. v. Canada, views adopted July 15, 2016, para. 7.10 (holding that a violation of the right to privacy occurred although the violation—deportation of an individual to Nigeria—was provided for in national law, the law failed to account for the best interest of children); see also Big Brother Watch and Others v. The United Kingdom, (Judgment), Eu. Ct. H.R., App. Nos. 58170/13, 62322/14, 24960/15 (Sept. 13, 2018) paras. 387-388 (“[The Court] is satisfied that the intelligence services of the United Kingdom take their Convention obligations seriously and are not abusing their powers under [the national law]. Nevertheless, an examination of those powers has identified two principal areas of concern; first, the lack of oversight of

and it is “foreseeable” when the consequences of a given action is known, in order to allow people to regulate their conduct in accordance with the law.¹⁰² Domestic law must be “precise” and “clearly” defined. To be clear and precise, the legal justification for surveillance must “precisely define” the situations in which the interception, collection, and analysis of communications is legally justified. ¹⁰³

Human Rights Council General Comment 16 recognizes that “gathering and holding of personal information on computers, databanks and other devices, whether by public authorities or private individuals or bodies must be regulated by law.”¹⁰⁴ However, even when the surveillance is authorized by law, that surveillance can still interfere with the privacy rights of individuals. Therefore, the law itself must meet substantive standards and ensure the interference is not arbitrary or disproportionate.¹⁰⁵ Legislation that “allows a system for the secret monitoring of communications entails a threat of surveillance for all those to whom the legislation may be applied. This threat necessarily strikes at freedom of communication between users of the telecommunications services and thereby amounts in itself to an interference with the exercise of the applicants’ rights.”¹⁰⁶ In other words, legislation that permits secret surveillance without clear standards and processes for establishing specific justifications is in itself an interference with the privacy rights of the people.

Any interference authorized by law must also satisfy the principle of proportionality. For a surveillance program to meet the requirement of proportionality, any interference with privacy must be necessary given the circumstances,¹⁰⁷ and must be proportionate to the legitimate aim it seeks to address.¹⁰⁸ To satisfy proportionality, the law must have a legitimate aim, have a rational connection to that aim, minimally impair the right to privacy, and strike a fair balance between pursuit of the aim and limitation of the right.¹⁰⁹ The proportionality test applies even in cases where national security concerns are implicated.

Merely stating that secret mass digital surveillance is necessary for safety or national security does not satisfy proportionality.¹¹⁰ The state justifying the surveillance must produce “sufficient factual basis for the application of secret intelligence gathering measures” that would justify any surveillance “on the basis of an individual suspicion regarding the target person.”¹¹¹ The law must also use the least intrusive method to obtain the desired result.¹¹²

the entire selection process, including the selection of bearers for interception, the selectors and search criteria for filtering intercepted communications, and the selection of material for examination by an analyst; and secondly, the absence of any real safeguards applicable to the selection of related communications data for examination. In view of these shortcomings and to the extent just outlined, the Court finds that that the [national law] does not meet the ‘quality of law’ requirement and is incapable of keeping the ‘interference’ to what is ‘necessary in a democratic society’. There has accordingly been a violation of Article 8 of the Convention.”); see also The Human Right to Privacy in the Digital Age, ACLU (Feb. 2015) available at: https://www.aclu.org/other/human-right-privacydigital-age.

¹⁰² Right to Privacy in the Digital Age, supra note 99 (“Secret rules and secrete interpretations—even secret judicial interpretations—of law do not have the necessary qualities of law.”).

¹⁰³ Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights, Freedom of Expression and the Internet, (Dec., 31 2013); see also Malone v. United Kingdom, (Judgment), App. No. 8691/79, 82 Eur. Ct. H.R. (ser. A), para. 79 (1984).

¹⁰⁴ General Comment 16, supra note 97, at 10 (1994).

¹⁰⁵ General Comment 16, provides that interferences “provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances (emphasis added).” General Comment 16, supra note 97, at para. 4; See also, U.N. Human Rights Comm., Consideration of Reports Submitted by States Parties under Article 40 of the Covenant, Concluding Observations, Jamaica, U.N. Doc. CCPR/C/79/Add.83 at para. 20 (Nov. 19, 1997) [hereinafter U.N. Human Rights Comm., Concluding Observations on Jamaica].; U.N. Human Rights Comm., Consideration of Reports Submitted by States Parties under Article 40 of the Covenant, Comments, Russian Federation, U.N. Doc. CCPR/C/79/Add.54 at para. 19 (July 26, 1995) [hereinafter U.N. Human Rights Comm., Concluding Observations on Russia].

¹⁰⁶ Weber v. Germany, (Decision), App. No. 54934/00, Eur. Ct. H.R., para. 78 (2006).

¹⁰⁷ Id.; see also Human Rights Committee, Communication No. 2273/2013, Vondom v. Republic of Korea, views adopted July 7, 2018, para. 8.7.

¹⁰⁸ Id.; see also Human Rights Committee, Communication No. 2326/2013, N.K. v. Netherlands, views adopted July 18, 2017, paras. 9.3-9.11 (holding that an interference with privacy, although minor, was disproportionate to the legitimate aim the DNA collection program sought to address).

¹⁰⁹ The Human Right to Privacy in the Digital Age, supra note 101.

¹¹⁰ Szabo and Vissy v. Hungary, (Judgment), Eur. Ct. H.R., App. No. 37138/14, paras. 71-73 (2016).

¹¹¹ Id.; see also Weber v. Germany, (Decision), Eur. Ct. H.R., App. No. 54934/00, paras. 104-06 (2006).

¹¹² Right to Privacy in the Digital Age, supra note 99, at para. 25.

Further, there must be “a rational connection between the means employed and the aim sought to be achieved,” as well as a balanced relationship between the public need and the privacy interference.¹¹³ As outlined in Section IV, the legal infrastructure empowering the Syrian regime’s surveillance operations fails to satisfy the legality and the proportionality requirements established by international law. No legislation clearly articulates the scope and limits of surveillance powers.

B. Freedom of Expression and the Right to Participate in Public Affairs

Surveillance, particularly when coupled with censorship, intimidation and violence, breaches the peoples’ right to freedom of expression and interferes with the peoples’ right to fully participate in public affairs. Article 19 of the ICCPR states that “everyone shall have the right to hold opinions without interference,” and “everyone shall have the right to freedom of expression; this right shall include 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 of his choice.”¹¹⁴

Article 19 protects the ability of all persons to freely exchange ideas.¹¹⁵ Because part of the work that human rights defenders do is to report human rights abuses and provide a voice for victims of human rights violations, their ability to freely share information and ideas is essential to the nature of their work.¹¹⁶ The right to freely hold and express opinions guarantees the right “to receive and impart information and ideas of all kinds, regardless of frontiers and through any medium.”¹¹⁷ The protection of human rights more broadly is enhanced when human rights defenders are able to share ideas and information with the rest of the population and the world.¹¹⁸ Therefore, there must be an environment that permits and protects the ability of all persons, including human rights defenders, to freely form, hold, and express opinions and to publicize and share information.¹¹⁹

Although the right to freely hold and express opinions may be limited by national law in select situations, any such limitation must be necessary and proportionate to a legitimate aim.¹²⁰ There are two legitimate aims identified by the Convention: “(a) for the respect of the rights and reputation of others and (b) for the protection

¹¹³ Special Rapporteur, Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism, U.N. Doc. A/69/397, para. 51 (Sept. 23, 2014).

¹¹⁴ ICCPR, supra note 82.

¹¹⁵ ICCPR, supra note 82, at Art. 19; See Human Rights Committee, Communication No. 2158/2012, Sviridov v. Kazakhstan, (Judgment), views adopted July 13, 2017 para. 10.2.

¹¹⁶ David Kaye (Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression), U.N. Doc. A/HRC/38/35 para. 21 (Apr. 6, 2018) (“The Declaration also protects the right to develop and discuss new human rights ideas, allowing all people to be part of the progressive development of human rights ideas and to be actively engaged in setting new directions for the human rights project. This right recognizes that some of these new ideas may be culturally, religiously or politically controversial; it is precisely this potential for controversy that demands space for free and open discussion and debate.”).

¹¹⁷ Id. at para. 5 (internal quotations omitted) (quoting ICCPR art. 19) (citing African Charter on Human and Peoples’ Rights art. 9, June 27, 1981, 1520 U.N.T.S. 217; American Convention on Human Rights “Pact of San José, Costa Rica” art. 13, Nov. 22, 1969, 1144 U.N.T.S. 123; Convention for the Protection of Human Rights and Fundamental Freedoms art. 10, Nov. 4, 1950, Europ. T.S. No. 5, 213 U.N.T.S. 221).

¹¹⁸ Sviridov v. Kazakhstan, supra note 114, para. 10.3.

¹¹⁹ Kaye, supra note 115 at para. 6; see also Sviridov v. Kazakhstan, supra note 114; Human Rights Committee, Communication No. 1553/2007, Korneenko v. Belarus, (Judgment), views adopted Mar. 20, 2009; Big Brother Watch and Others v. The United Kingdom, (Judgment), App. Nos. 68762/14 & 71200/14 paras. 469-500 (2018) (holding that the U.K.’s mass surveillance system violates the right to hold and express an opinion and privacy); Matasaru v. Moldova, (Judgment), Eu. Ct. H.R., App. Nos. 69714/16 & 71685/16 para. 28 (Jan. 15, 2019) (“[The right to freedom of expression and opinion] is applicable not only to ‘information’ or ‘ideas’ that are favorably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any section of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society.’”).

¹²⁰ Article 17 ICCPR does not explicitly stipulate that any restriction on the right to privacy must be necessary for a specified purpose, but both the UN Special Rapporteur on Counter-Terrorism and the UN Special Rapporteur on Freedom of Expression have held that the “permissible limitations” test under Article 19 among other articles of the ICCPR, was equally applicable to Article 17 ICCPR. Article 19, Electronic Frontier Foundation,* International Principles on the Application of Human Rights Law to Communications Surveillance* (May 2014) available at: https://www.ohchr.org/Documents/Issues/Privacy/ElectronicFrontierFoundation.pdf.

of national security or public order (odre public) or public health or morals.”¹²¹ Vague and unsubstantiated claims of national security cannot satisfy the requirements established by international law for what amounts to a necessary and proportionate interference.¹²² Where surveillance is used specifically to silence criticism and is part of a system of state violence, the interference fails to advance a legitimate aim and to satisfy the principle of proportionality and the right is breached.¹²³

All persons have the right to freely participate in public affairs as guaranteed by Article 25 of the ICCPR.¹²⁴ To freely participate includes the right to vote, the right to be elected, and the right to access public benefits.¹²⁵ The right to participation is critical to the advancement of all human rights because it promotes democracy, the rule of law, social inclusion, and economic development.¹²⁶ The right to participation protects and provides for individuals and communities to actively engage in decision-making processes that affect them.¹²⁷ As it relates to human rights defenders, the universal human right to participate in public affairs extends beyond the state and into the international human rights system.¹²⁸

Like the right to privacy and the right to freely hold and express opinions, the right to participation is threatened by the very existence of mass digital surveillance technology.¹²⁹ Mass digital surveillance prevents people from fully participating in public life due to potential fears of retribution and violence.¹³⁰

C. Right to Life and Freedom from Torture and CIDT

As Section IV below documents, mass surveillance can be a key tool in a state’s campaign of suppression and violence. When surveillance facilitates the torture and extrajudicial killing of people, then it leads to the breach of the right to life and the right to be free from torture and cruel, inhuman, and degrading treatment. Both rights are non-derogable, meaning no justification of war or national security can excuse the state from having to protect the peoples’ right to be free from torture and extrajudicial killing. Article 6 of the ICCPR guarantees that “[e]very human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.”¹³¹ As stated in General Comment 36 of the Human Rights Committee, “the effective protection of [the right to life] is the prerequisite for the enjoyment of all other human rights and the content of

¹²¹ Human Rights Committee, Communication No. 1553/2007, Korneenko v. Belarus, (Judgment), views adopted Mar. 20, 2009 para. 8.3 (“The Committee recalls, first, that the right to freedom of expression is not absolute and that its enjoyment may be subject to limitations … [L]imitations are permissible as are provided for by law and that are necessary (a) for respect of the rights or reputation of others; (b) for the protection of national security or of public order (ordre public), or of public health or morals.”).

¹²² Roman Zakharov v. Russia, Eu. Ct. H. R., Grand Chamber (Judgement), App. No. 47143/06 (Dec. 4, 2015).

¹²³ Frank La Rue, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Unites Nations General Assembly (May. 16, 2011) available at: https://www.ohchr.org/Documents/Issues/Opinion/A.66.290.pdf.

¹²⁴ ICCPR, supra note 82, at Art. 25 (“Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (1) To take part in the conduct of public affairs, directly or through freely chosen representatives; (2) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage…”); Comm. on the Right to Participate in Public Affairs, Voting Rights and the Right of Equal Access to Public Service, Off. of High Comm’r for Human Rights on Its Fifty-Seventh Session, U.N. Doc. CCPR/C/21/Rev.1/Add.7 (1996).

¹²⁵ICCPR, supra note 82, at Art. 25; see also Human Rights Committee, Communication No. 2250/2013, Katashynski v. Ukraine, (Judgment), views adopted July 25, 2018 (holding the right to participation was violated when the state interfered with election results and refused to allow an appeal for such); Human Rights Committee, Communication No. 2668/2015, Sanila-Aikio v. Finland, (Judgment), views adopted Nov. 1, 2018 paras. 6.5-6.12 (explaining that the right to participation has a collective element when applied to indigenous groups).

¹²⁶ Report of High Commissioner for Human Rights, Draft Guidelines for States on the Effective Implementation of the Right to Participate in Public Affairs, U.N. Doc. A/HRC/39/28 at para. 1 (2018).

¹²⁷ Guidelines for States on the effective implementation of the right to participate in public affairs, OHCHR, 14-15, available at: https://www.ohchr.org/Documents/Issues/PublicAffairs/GuidelinesRightParticipatePublicAffairs_web.pdf.

¹²⁸ Frost, supra note 85, at para. 56.

¹²⁹See U.N. General Assembly, Resolution on the Right to Privacy in the Digital Age, U.N. Doc. A/RES/73/179 (Dec. 17, 2018) at para. 7; Kaye, supra note 116.

¹³⁰ Id.

¹³¹ ICCPR, supra note 82, at Art. 6.

which can be informed by other human rights.”¹³² States are required to refrain from any conduct that can result in the arbitrary loss of life. Arbitrariness must be interpreted “broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law, as well as elements of reasonableness, necessity and proportionality.”¹³³ Where a legal system fails to safeguard life, to ensure proper investigations of the loss of life and processes for accountability and redress, the right to life is breached.

Article 7 of ICCPR guarantees that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”¹³⁴ Article 2 of the CAT requires states to “take effective legislative, administrative, judicial or other measures to prevent acts of torture.”¹³⁵ The right to be free from torture protects individuals from physical or mental torture and cruel, inhuman or degrading treatment.¹³⁶ Article 1 of the CAT recognizes that torture can occur by “means of any act by which severe pain or suffering whether physical or mental, is intentionally inflicted on a person.”¹³⁷ States breach their obligation to protect individuals from torture through their acts or omissions, irrespective of their justification under domestic law.¹³⁸

Where state surveillance leads to the arrest, detention and torture of critics and human rights defenders, the right to be free from torture and the right to life are breached. In an environment where speaking up against the regime or documenting human rights violations committed by the state can lead to immediate reprisal, surveillance and violence are part and parcel of a unified campaign of repression and violence.

D. The Right to a Remedy

To ensure the rights enumerated above, the state is obligated, through a functioning legal system, to provide processes through which people can vindicate their rights and be provided a remedy when rights are violated.¹³⁹ Article 2 of the ICCPR requires states to provide any person who has their rights or freedoms violated access to an effective remedy.¹⁴⁰ A remedy may be procedural in nature, such a judicial remedy or an independent investigation, or substantive in nature, such as a reparation.¹⁴¹

The right to effective remedy is imperative to establishing a “safe and enabling environment” for human rights defenders.¹⁴² The Human Rights Council laid out five key elements in how States should maintain this “safe and

¹³² U.N. Human Rights Committee, General Comment no. 36 (Right to Life), CCPR/C/GC/35 (Sept. 3, 2019) para. 2, available at: https://www.refworld.org/docid/5e5e75e04.html.

¹³³ Id. at para. 12.

¹³⁴ ICCPR, supra note 82, at Art. 7.

¹³⁵ CAT, supra note 82, at Art. 2.

¹³⁶ Under Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment treaty, 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. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” CAT, supra note 82, at Art. 1.

¹³⁷ Id.

¹³⁸ See generally Committee Against Torture, General Comment No. 3, CAT/C/GC/3 (Dec. 13, 2012).

¹³⁹ ICCPR, supra note 82, at Art. 2

¹⁴⁰ ICCPR, supra note 82, at Art. 2

¹⁴¹ International Commission of Jurists, The Right to a Remedy and Reparation for Gross Human Rights Violations (2018) para 52, available at: https://www.icj.org/wp-content/uploads/2018/11/Universal-Right-to-a-Remedy-Publications-Reports-Practitioners-Guides2018-ENG.pdf; Human Rights Committee, General Comment No. 31 on the Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc CCPR/C/21/Rev.1/Add.13 (2004), para 16.

¹⁴² Frost, supra note 85, at para. 27.

enabling environment”;¹⁴³ they are: (1) a robust legal framework that is compliant with international standards as well as a strong national human rights protection system that safeguards public freedoms and ensures effective access to justice; (2) a political environment conducive to civil society work; (3) access to information; (4) avenues for participation by civil society in decision-making processes; (5) and long-term support and resources for civil society.

As the following section shows, the Syrian state’s campaign of mass surveillance and violence has led to the breach of the human rights of the Syrian people, most especially of journalists, activists, and human rights defenders. The legal infrastructure has failed to protect human rights, on paper and in practice. In fact, the legal and institutional infrastructure of the state has facilitated the systematic violation of the peoples’ rights to privacy, freedom of expression and of participation, the right to life and freedom from torture and cruel, inhuman and degrading treatment.