Limited justice for Syria on the horizon

The recent attacks in Eastern Ghouta in which a swath of land housing a population of 400,000 was surrounded, shelled incessantly and later invaded have refocused the world’s attention on the events in Syria.

As the long and tumultuous Syrian civil war grinds on, the cascade of death, displacement and physical destruction shows no signs of ending. Human Rights Watch, in its latest report, stated that the number of deaths since the conflict began tops 400,000 and cited other UN agencies’ estimates of refugees abroad at 5 million and those internally displaced at 6 million.

This war is one of the most devastating in recent memory and the resulting refugee crisis the most acute since the end of WWII. To add insult to injury, the Syrian regime, with its foreign allies, appears to be poised to remain in power for the foreseeable future.

In light of this grim reality in Syria, one has to recognize that any effort aimed at effectively pursuing transitional justice faces an especially daunting challenge.

Transitional justice refers to a series of measures taken to ensure the accountability of perpetrators of grave human rights abuses and to initiate a societal healing process after a period of mass violation. Central to this procedure, traditionally, has been the transition to democratization and liberalization that facilitates the process of holding past abusers to account and establishing truth commissions that humanized the victims and uncover the extent of the violations.

This is how the concept was understood in the Latin American context where a number of countries transitioned from military dictatorship to illiberal democracy. Critical scholars, however, have maintained that a transition to a democratic regime need not materialize for transitional justice to take hold.

In a policy briefing entitled ‘Transitional justice policy in authoritarian contexts: the case of Egypt’, Noha Aboueldahab advanced a conception of transitional justice that went beyond civil and political rights to encompass socio-economic rights. Addressing the issue of transitional justice in authoritarian post-Mubarak Egypt, she argued in favour of the adoption of a number of measures such as: the contestation of laws that govern civil society, the release of detainees to foster better relations between civil society and the state, the “increase of judicial activism via intensified litigation activism” and, with respect to past human rights violations, the pursuit of systematic documentation, public apologies, financial compensation, memorialization of victims and the continuation of litigation against perpetrators in court.

Yet when compared to the Syrian case, Egypt’s prospects for attaining a modest measure of transitional justice do not seem to be as dismal as Syria’s. The latter is still gripped by a devastating war in which the regime will in all likelihood emerge on top, emboldened in its use of repressive practices that were characteristic of it before and during the civil war.

Therefore, to describe the problem of attaining transitional justice in Syria as one that is wicked is not an exaggeration. But the possibilities were not always this dismal. In late 2013, the geo-political picture of the conflict was one in which the regime was locked in a battle for its survival. Many analysts envisioned the emergence of a transitional government and speculated about its nature and makeup.

A number of papers that laid out priorities prescribing a path forward for the realization of justice in the country came out. One of them, authored by Nicolas Rostow of the National Defense University and entitled Transitional Justice for Syria, emphasized the importance of preparing the mechanisms for restoring accountability, recognizing a diversity of institutions that can handle past abuses such as truth commissions, international courts, and hybrid courts.

Another, produced by the International Centre on Transitional Justice (ICTJ) and entitled Toward a Transitional Justice Strategy for Syria, highlighted the importance of pursuing a holistic approach that is capable of garnering credibility through processes that mesh well with the local people’s sense of justice while managing their expectations, as well as foregrounding mapping, assessment and consultation in an environment that provides sufficient levels of security, social organization, and governmental legitimacy.

Fast forward four years to 2018 and the possibility of transitioning to a new government or achieving a political solution that entails any significant compromise on part of the regime is at a nadir since the beginning of the war. This has become evident in the sidelining of the Geneva track in favour of the Russia-sponsored Sochi track which has been boycotted by the SNC, the main opposition bloc, but not other opposition factions such as the Russian Platform.

The aim seems to be to afford these negotiations a measure of legitimacy, while the regime continues to score victories on the ground further weakening the position of all the disparate opposition groups and inching closer toward a military solution to the conflict.

These developments have resulted in a shift in thinking regarding what kind of transitional justice might be attainable. An ICTJ report published in February, outlined a list of steps that ought to be taken in light of the reality of perpetual conflict and regime predominance that prevails on the ground. Given the relative success that has been achieved in collecting evidence of human rights violations, its recommendations revolved around finding new uses for it that go beyond criminal trials. It recommended providing continuous support, technical and otherwise, to Syrian organizations on the ground as they intensify their efforts to document abuses while highlighting the variety of ways in which this information can be used beyond the courtroom.

The unique situation in Syria, born out of the devastating conflict, has forced many analysts and practitioners to rethink the notion of transitional justice and how it might be applied to this case. Sheltered by major regional and global powers, the Assad regime is likely to stay in power for the foreseeable future. Therefore, despite the success in launching prosecutions in Sweden, Germany, Finland and Switzerland against low-level abusers, high level prosecutions by international courts are not likely to materialize. This leaves Syrian civil society organizations with the biggest role to play using the information they have amassed to foster acknowledgement of crimes, memorialization of victims as the crestfallen ancient nation attempts to take its first step on the long and tortuous path toward healing.