Planning for the unpredictable: exploring transitional justice options for a post-return Syria

Currently, Syria is the battleground of one of the largest ongoing international conflicts. The Syrian conflict, since its emergence in 2011, has seen hundreds of thousands of fatalities, created millions of refugees, and set the backdrop for numerous international human rights and humanitarian violations. It is likely that a post-conflict Syria, in one way or another, will wish to confront the various atrocities that have been committed, not only during the present conflict, but also during the preceding decades of oppression under the Assad regimes. Thinking about how to address these atrocities in the transitional period following conflict requires substantial preparatory work and programming.

Since as early as the fifth century B.C.E., societies have been employing political devices to administer justice during times of political transition. However, it is only since World War II that this practice has become a focus of academic scrutiny. Political theorists have found that countries emerging from periods of severe conflict, political repression, or gross human rights violations often find it necessary to come to terms with those atrocities before the dream of a conflict-free future can be achieved. When addressing such atrocities, states employ legal mechanisms or formal programs intended to promote the reconciliatory process in the afflicted society or community. The hope is that by confronting the past head-on, one can break the cycles of violence and establish a sustainable social order. It is these state-organised responses to past conflict that are often called “transitional justice.”

With the Syrian conflict continuing to develop, considering transitional justice and other post-conflict scenarios may seem premature. However, a successful transitional justice program is constructed in light of various factors, some of which include the nature of the conflict or oppression, the victims’ sense of justice, and the political realities within and without the country. And many such factors have begun taking shape in Syria, with atrocities being revealed, domestic courts unable and unwilling to ensure accountability, and international actors incapable of securing ICC jurisdiction. To ensure that restorative efforts in Syria remain feasible, effective, and sustainable, it is important to compile such information on the Syrian context for future incorporation into a sustainable and effective transitional justice program. Thus it is presently important to consider the future of transitional justice in Syria.

The WANA region, historically, has not been substantially influenced by trends in Transitional Justice. Although this has been gradually changing since the Arab Spring, there are few, recurring mechanisms employed by regional actors, and little weight is typically given to new or innovative transitional justice mechanisms. In transitional periods, countries within the WANA region generally tend to employ trials to deal with past atrocity, and other common mechanisms, such as amnesties, truth commissions, and lustration policies are left by the wayside. Thus in the WANA region, perhaps more than others, it is important that substantial preparatory research take place, in the early stages, to compensate for the region’s dearth of experience with the various availabe mechanisms.

To realise the importance of post-conflict planning with respect to transitional justice efforts, one need not look further than the case of Iraq, where the rushed and shortsighted reconciliatory justice efforts of the U.S. occupation likely fostered future destabilisation. The U.S.’s provisional government in Iraq, only days after gaining charge of the country, ordered the dissolution of the entire Iraqi military. Disbanding the armed forces—formerly a prestigious institution—left many Iraqis unemployed and likely armed, with strong feelings of indignation towards the U.S. occupiers. Such conditions created a ripe environment for a robust insurgency to emerge, which has made peace for Iraq increasingly difficult. While the U.S.’s broader de-Baathification program in Iraq could have been a valuable tool to break the Baath party’s oppressive hold on the country, the absence of substantial planning and lack of foresight severely complicated the U.S.’s efforts to establish sustainable peace. However, with careful planning, deliberation, and patience, such missteps likely could have been avoided. Iraq thus stands to highlight the importance of substantial pre-implementation programming to successful transitional justice efforts.

Such planning in the case of Syria would entail identifying and analysing those key indicators most likely to dictate Syria’s capacity to adopt a particular transitional justice program. Of the various factors likely to impact any future program, many are unlikely to change between now and a post-conflict situation in Syria. And for these static factors, transitional justice planning can begin to consider how a future program might deal or grapple with these factors. For example, the International Criminal Court’s (“ICC”) jurisdiction would be this kind of factor. While the ICC might have been a prime venue to seek accountability for the international crimes committed during the Syrian conflict, due to jurisdictional limitations the ICC will be unable to hear these cases. Since it is unrealistic to see the jurisdictional clauses of Rome statute amended, seeking ICC jurisdiction is infeasible, and thus an informed discussion concerning transitional justice for Syria would not consider the ICC as a potential venue to ensure accountability without a change in the UN Security Council’s voting disposition.

While early stage planning can easily evaluate unchanging factors, it may also contribute important analysis on those factors likely to change before Syria sees an end to the conflict. One of these developing factors is whether the Assad regime maintains control of Syria—or a portion thereof—which would directly impact the possibility of implementing a lustration program. With Assad in power, a “de-Baathification” program would be an unfeasible option, as he would certainly not consent to the removal of his own political party members from power. Accordingly, it would be premature to outline the specifics of a potential lustration program in a post-conflict Syria. However, early stage programming that presently identifies the scope of potential mechanisms to address Syria’s pre-conflict governance issues—including lustration as well as other governance reform measures—can save future time and effort in subsequent programming stages, irrespective of this factor’s ultimate outcome.

Although there is no end in sight to the Syrian conflict, the present course of the conflict, along with the political realities surrounding Syria will impact the future decisions on whether and how to employ transitional justice. Irrespective of the means of the conflict’s resolution, the emerging regime or regimes will intend to govern with an eye towards future peace and stability, and thus they will likely consider some form of transitional justice. Being prepared to inform and manage expectations, when that time comes, will be crucial to seeing a successful transitional justice program.