by David Tolbert* – President of the International Centre for Transitional Justice
Recent proposals on using transitional justice as a means of stabilising Syria in the aftermath of the eventual fall of the Assad regime – including by providing incentives for loyalists to give up a possible “fight to the death” in Damascus – are a significant development in the debate on Syria.
As someone who deeply believes in the importance of justice as the basis for recovery and sustainable peace in any society confronting a legacy of mass atrocity and repression, such as Syria, the proposals confirm that the concepts of transitional justice have ceased to be seen simply as idealistic and philosophical notions, but are credibly making their way into the politics of peacemaking.
Still, we must proceed with a great deal of caution and examine the preconditions necessary for measures of justice to have their desired effect. What levels of consultation and infrastructure will be needed for justice to have a genuine role in restoring trust between the state and its citizens? What will be needed for victims to feel that justice means something more than a short-term move in the chess game of post-war politics?
It has been rightly noted that all politics are local. The same can be said of transitional justice.
International law has authoritatively established the rights to justice, truth, reparations and non-recurrence for serious human-rights abuse. But how we make these rights a reality in Syria needs careful reflection. If transitional justice is promoted as a shortcut to peace, instead of as a foundation of a new rights-respecting society, it is not likely to succeed.
As Syrian groups and international actors gather as “Friends of Syria” and consider these proposals, it is of paramount importance to be clear about what is meant by transitional justice.
Transitional justice is based on two intertwined principles. Firstly, it is founded on the conceit of taking human rights seriously – victims of serious human rights abuses have a right to justice; transitional justice is premised on accountability, it is not “soft justice” or an alternative to criminal justice.
Secondly, transitional justice is focused on making accountability a reality in particularly difficult circumstances. Massive crimes followed by competing demand for services and limited resources mean that even a well-functioning system of justice will not be able to address all breaches of human rights. The challenge is overwhelming and accompanied by a complex political context, often paired with daunting technical challenges.
The idea that transitional justice somehow implies a form of “soft justice” is still a frequent misunderstanding and was, for example, noticeable among many human-rights activists in Tunisia and other countries in the aftermath of recent revolutions in the region. At the outset, many rejected discussion on transitional justice under the assumption that it advocated blanket amnesties for perpetrators of heinous crimes for the sake of national reconciliation. Anyone proposing such ideas is seriously out of touch with international law and practice over the last 20 years.
International law prohibits amnesty for perpetrators of serious international crimes, such as genocide, crimes against humanity, and torture. Further, if national authorities fail to meet their obligation to investigate such crimes and bring cases to trial, the International Criminal Court has been created to step in to ensure that some degree of justice takes place.
In a country such as Syria that has seen carnage of such tragic proportions – with the United Nations now estimating that about 60,000 have been killed – the most responsible perpetrators must be brought to justice if the society is to move forward on the basis of the rule of law and hope for a sustainable peace.
At the same time, it is important to underline that criminal responsibility is individual and cannot be ascribed to entire groups, political or ethnic, or on the basis of guilt by association. Thus, in a situation where the majority of Alawites are mobilised by a fear of retribution for siding with the Assad government, any proposal for transitional justice measures must clearly communicate that perpetrators will not be judged by their political or ethnic allegiances, but by credible evidence presented in a court of law.
This message is even more significant in view of reports about crimes being committed by the Free Syrian Army. If transitional justice proposals are to have a chance at contributing to sustainable peace in Syria, there must be no victor’s justice.
This type of accountability will not be possible without strong and independent judicial institutions that are free of political influence. Serious steps must be taken to reform institutions that either participated in abuses or failed to provide protection against them. Without those measures, all other transitional justice attempts risk withering on the vine.
Trials of Saddam Hussein and his cohorts in Iraq serve as a stark warning of how flawed criminal prosecutions can serve to further inflame wounds inflicted by a murderous regime, instead of healing them, and thus become counterproductive.
With these factors in mind, we need to recognise that not everyone who committed a crime will be prosecuted, given the massive numbers involved. Moreover, despite the importance of prosecuting those most responsible for the most serious crimes, such trials are not necessarily the best vehicle to address social and historical aspects underlying patterns of repression and crime. In some circumstances truth-seeking measures, such as truth commissions, may be a valuable tool in providing a different but effective form of accountability.
At the same time, we need to remember that justice cannot focus solely on perpetrators and retribution if there is to be a comprehensive, long-term recovery of Syrian society. Victims must be recognised and their suffering acknowledged and redressed, including through reparations programmes.
And it is not only about material compensation, as important as it is. Uncovering the truth regarding the disappeared is critical – families must be able to know what happened to their loved ones if they are ever to be able to genuinely participate in the national reconciliation. Measures of reparation that reflect an acknowledgement of the harm done can take various forms but should be focused on the victims and the communities that suffered that harm, recognising their dignity as rights-bearers, and not as recipients of charitable largesse.
All these measures, applied in a comprehensive manner, constitute transitional justice and examples of their application (to varying degrees of success) can indeed be found in countries such as South Africa, but also Argentina, Chile, Germany and many others.
However, it would be dangerous to think of models applied in these countries as something to simply replicate in Syria. There are lessons that we have learnt over time from various successful and less successful attempts to employ transitional justice measures, but there is no “one-fits-all” model. Syria will have to find its own way.
In this respect, proper consultation at the national level, especially with those most affected by decades of abuse, is of paramount importance for any credible transitional justice process.
The promise of transitional justice is that peace will be more than the end of hostilities; that the causes and consequences of war are going to be squarely faced and dealt with, to foster a more peaceful society. For that reason it is heartening to see that its mechanisms are being considered as a tool that could help bring peace to Syria.
There are few who are more committed to seeing transitional justice measures applied on the ground than those of us who have been working in this field and advocating the application of its solutions. But, let us be aware that transitional justice is not a magic wand, any more than it is an alternative to “traditional” justice.
* This article was originally published in The National.