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A man wearing a mask of Syrian President Bashar al-Assad demonstrates against Assad in front of the International Criminal Court (ICC) offices in The Hague June 7, 2011. REUTERS/Michael Kooren  (NETHERLANDS - Tags: POLITICS CIVIL UNREST IMAGES OF THE DAY)
Op-Ed

Breaking new ground: Transitional justice in Syria

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The world has seen more than 40 truth commissions established since 1983. These transitional justice processes have had two overarching things in common. The first is inadequacy: they have not always succeeded in bringing justice to victims, putting criminals on trial, or building sustainable civil peace. The second is that many came about either by virtue of an international decision, or by a decision and intervention made by other states. Moreover, most of these experiences started after the countries’ crises had ended, allowing time for evidence to be destroyed and for criminals to flee. In this way, transitional justice processes were rendered less impactful and more limited.

Anwar El Bunni

Director and Lawyer - Syrian Center for Legal Studies and Research

In the case of Syria, the usual paths to justice, such as going through the International Criminal Court (ICC) or creating a tribunal, were blocked. The possibility of political consensus on the issue of accountability was also blocked, thus leaving no chance of a political solution to ensure justice for victims. This inspired victims and their representatives to resort to universal jurisdiction in several European countries (especially Germany) in order to start justice processes. This path had rarely been taken before with significant results.

I participated in a Brookings Doha Center (BDC) workshop on innovation in transitional justice in March 2020.  This workshop was an opportunity to explain what has been achieved with respect to justice in Syria, to share this experience with organizations concerned with transitional justice, and to exchange expertise about trials and other transitional justice channels, especially memorialization, legal development, and peacebuilding. What has been achieved so far through trials and memorialization (including documents, exhibitions, movies, and pictures) would not have been possible had it not been for the Syrian diaspora and its efforts. The real heroes are the victims, some of whom are still in regime-controlled areas, who offered their testimonials despite personal pain, fears for their own and their families’ safety, and potential personal and social harm.

What has the transitional justice process in Syria achieved?

So far, the transitional justice process in Syria has achieved a number of victories. These include four cases filed in Germany, one in Austria, one in Sweden, and one in Norway, which targeted 60 high-level officials in military and security agencies, including Syrian president Bashar al-Assad. These officials were accused of crimes against humanity, including arbitrary arrest, forced disappearance, torture, death by torture, and the systematic and widespread hiding of bodies in unmarked mass graves.

A case was also filed with France’s attorney general concerning those responsible for torture in the Syrian Air Force Intelligence Directorate because two Syrian-French dual nationals were killed by torture in a detention center. As per France and Germany’s universal jurisdiction laws, several arrest warrants were issued, even though the suspects were and still are physically in Syria. It was reported that these warrants included Ali Mamlouk, head of the National Security Bureau; Jamil Hassan, head of the Air Force Intelligence Directorate; and Abdel Salam Mahmoud, head of the Air Force Intelligence Directorate’s investigative branch.

In Germany, two security officers were arrested; Anwar Raslan was a colonel in charge of the investigative section of Syria’s most important state security branch (Branch 251, or the Khatib Branch), and Eyad al-Gharib was an intelligence officer in the same branch. An historic public trial for the officers was initiated on April 23, 2020 in the city of Koblenz. A doctor who had been torturing detainees in Homs Military Hospital was also arrested in Germany.

There are more than 80 open investigations concerning those suspected of being affiliated with armed or terrorist groups in Syria. While most of these investigations are taking place in Germany, a number are also taking place in Sweden, the Netherlands, and France. There are also many open investigations in Germany, France, Sweden, the Netherlands, Austria, Switzerland, and Norway concerning members of the Syrian regime who have been accused of war crimes or crimes against humanity and who are living in Europe as refugees or residents. Arrests, which are ongoing, have included such individuals as Islam Alloush, the official spokesperson of Jaysh el-Islam in Ghouta (arrested in France). In Germany alone, there are more than 25 open trials against members of organizations such as the Islamic State group and Jabhat al-Nusra, as well as other armed groups, for war crimes. A number of individuals have been sentenced to life in prison.

Distinguishing features of the Syrian case

The transitional justice process in Syria represents a major step forward for the global history of transitional justice and how to achieve it. One key feature of the Syrian case is that the transitional  justice process started during the conflict, and not after it was over. Crimes are still being committed, and evidence is abundant, thanks to an incredible documentation movement. This matters because, historically, transitional justice processes have been delayed, evidence has vanished, been hidden, or destroyed, and victims and witnesses have died or moved away, making fully detailed memory impossible. In addition, the drawn-out nature of these processes has taken away from the meaningfulness and usefulness of enacting justice, for victims and others. Sometimes even the criminals themselves have been part of the transitional justice mechanisms; when this happens, it represents the large extent of farce and disregard for the value of justice.

Another notable feature of the Syrian case is that the transitional justice process was initiated through the will and by the decision of the victims themselves. This differentiates the Syrian case from many others that began with an international decision or a decision made by countries as a result of victory or settlement and agreement. For this reason, the influence of politics on Syrian transitional justice processes and their direction is limited, if not absent. In fact, justice processes will most probably be carried out without the consent of politicians and against their will. Previously, the will of states determined the paths, outcomes, and bounds of transitional justice, while what was achieved in the Syrian situation surpassed any state limits or restrictions.

In Syria, it is justice itself that sets boundaries, compels politics and politicians, and prescribes the crisis’ expected solutions. This includes preventing criminals from becoming part of any political operation or of the future; in other words, he who was part of the problem will not be part of the solution. This contrasts with previous experiences of transitional justice, during which politicians, and sometimes the criminals themselves, determined the limits, role, and course of justice. The process so far has included Interpol issuing international arrest warrants against suspected criminals who are still officially performing their duties in top positions within Syria’s security and military power hierarchy. It has also included a public trial of major figures accused of crimes against humanity, who were tried not only as individual defendants, but also as part of a criminal system hidden beneath the guise of state, regime, and legitimate officials.

The course of transitional justice is long and complicated, with many channels, and starting down one channel certainly does not guarantee progress in others. For example, putting criminals on trial cannot be a substitute for providing reparations and rehabilitation for victims, nor can it be a substitute for restructuring laws in such a way as to guarantee that such crimes cannot be committed again. However, what is certain is that we cannot talk about transitional justice before first and foremost holding criminals accountable and punishing them. Reparations, memorials, and preventing the repetition of crimes cannot be a form of transitional justice if the criminals themselves are still on the loose and could potentially be part of the future. Doing so would be akin to keeping coals burning under ash, or planting landmines that will explode in the future, at a much higher cost.

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