Enab Baladi – Ninar Khalifa

“The correspondent was putting his foot on his head, calling him a terrorist. I looked closer, and I found out it was my brother, yes he was my brother.” With these words, young man Nael (a pseudonym) from the city of Aleppo describes the scene of disfiguring his brother’s body, who has not left his memory for seven years and will not leave it as long as the murderer is still not held accountable, and justice is still not implemented.

Speaking to Enab Baladi, Nael (who asked to remain anonymous), described the details of what happened, saying: “I knew that my brother was killed by the regime forces arbitrarily when I was following a report presented by the Syrian TV, and the reporter Shadi Helwah was bragging about the elimination of a group of (terrorists) describing them as such while they were participating in a peaceful protest for freedom at the beginning of the revolution movement.”

The parties of the Syrian conflict have committed mass violations during the nine years of the war, during which they mastered the methods of killing, arresting, deporting, rape, and other systematic crimes, thinking that they would not be held accountable for their actions. However, “war crimes” will not be forgiven, no matter how much time goes by. The availability of irrefutable evidence, witnesses, and accurate documentation paves the way for the implementation of transitional justice, which would allow for prosecutions, accountability, compensation for harm, and reformation of corrupt institutions.

European courts have pursued prosecutions in countries that have “the principle of the mandate of universal jurisdiction” against several war criminals in Syria, as this mandate authorizes them to investigate “war crimes,” “crimes against humanity” and “genocide,” even if they are committed outside their territories.

Transitional Justice Refers to taking a full set of judicial and non-judicial measures to ensure accountability, achieve justice, provide fairness ways to victims, promote recovery and reconciliation, establish independent supervision on the security system, restore confidence in state institutions, and strengthen the rule of law.Nael is now a refugee in Germany, after choosing to live in a country that provides him with a sense of security and stability. Nevertheless, he is still looking forward to the day when justice is achieved in Syria, the dignity of the victims and their families is protected by law, and people live safely away from the authorities’ abuses and under adequate protection from any violations.

A glimmer of hope

Anas al-Khouli, a journalist from Ghouta, also chose to seek asylum, but to France, escaping the violations he had endured by the Jaysh al-Islam faction and the regime forces.

Because of his coverage of the Ghouta protests that were held against the military demanding the fall of Jaysh al-Islam and its repressive policies, Anas was arrested, tortured, and his equipment was confiscated.

“They broke into my house and arrested me with my father. In the course of the investigation, I was beaten and tortured, and they told me vulgar words and attributing contradictory charges against me, including the dealing with ISIS and al-Nusra Front, and infidelity. They were trying to make whatever charge against me to kill me,” said Anas said in an interview with Enab Baladi about what he had been subjected to.

He continued: “They stole all of my press equipment from my home, and when I got out of prison, they refused to give them back to me and said that they went to the Muslims’ home of the treasury.”

Anas believes that the implementation of transitional justice in Syria is possible only when the current regime is changed, and a civil government and a fair judiciary are available. Although he lost hope when he was forcibly displaced from Ghouta by the Syrian regime in 2018, he felt a glimmer of hope with the French authorities’ arrest of the former official spokesman of Jaysh al-Islam, Islam Alloush, on January 29, on charges of “committing war and torture crimes.”

Syrians have different points of view about “justice”

The arrest of Islam Alloush and other arrests in Europe, under the “mandate of universal jurisdiction,” have been accompanied by contradictory reactions from the Syrians between those welcoming it and those skeptical about it. Each accused person has found a team of defenders and skeptics of the integrity of the judiciary. This has exacerbated the already rooted divisions between the Syrians. How can a comprehensive transitional justice be implemented in Syria amid the absence of consensus on the concept of justice among Syrians?

The director of the Syria Justice and Accountability Centre (SJAC), Mohammad al-Abdallah, believes that the defense of violators always happens, and it is based on political opinions that do not take into account the nature, feelings, and position of the victims on the other side.

While talking to Enab Baladi, he indicated that the matter is challenging and that adds to the complexity of the Syrian situation, as it is not possible to speak about justice before reaching a social consensus based on the recognition that both sides have suffered losses, and that each of them has a different story and position even if the rest disagreed with them.

While the director of the Justice for Life, Jalal al-Hamad, considered that defending the violators is a necessity in the context of any civil war and the Syrian crisis is no exception. Al-Hamad explained to Enab Baladi that defending the violator, who belongs to any of the two parties, will not hinder the justice file significantly, as this file varies in content and tools, depending on the country and the complexity of the situation.

He noted that the establishment of a transitional justice system usually takes place after reaching a comprehensive agreement by all parties to the conflict that ends the war and decides to achieve justice and restore the rights of victims, and therefore it necessarily requires the consent of the various parties to the conflict to establish this type of justice system; otherwise, it will not be achieved.

In this context, al-Abdullah explained that reaching consensus between the Syrians requires the implementation of a ceasefire, the release of detainees, and the return of refugees, pointing out that in the absence of agreement or acceptance of a universal and realistic understanding of the concept of justice, we will be facing a more complicated situation.

Other challenges to implementing transitional justice

Head of the International Law Support Unit, in the Syrian Legal Development Program, Youssef Wahba, considered that the most significant challenges facing the establishment of a meaningful and real transitional justice in Syria is the exclusion of the people who have been directly affected by the conflict (victims and their relatives) from the decision-making process regarding the country’s future.

Wahba confirmed to Enab Baladi that the people who have been directly affected by the crisis constitute the cornerstone of the process of designing the framework of the transitional justice, as they have the utmost right to enjoy the prerogatives of this justice, i.e., truth, justice, compensations, and guarantees not to go through the same plight again.

He believed that the extent of violations and the level of atrocities in Syria had reached advanced degrees during the conflict, which, in a manner that has rarely occurred in modern history, has affected all individuals and social sectors. This situation has caused a social rupture that can be dealt with only through a political solution or military settlements.

On the other hand, keeping the future of Syria hostage by the parties to the military and political conflict, cannot pave the way for establishing a real transitional justice, since any path to move from the state of conflict to its aftermath will be based on political and military bargaining, and not on a real treatment of the underlying causes that led to the outbreak of war and taking into account the real beneficiaries of the whole situation.

In addition to these challenges, it is not possible to talk about implementing transitional justice in light of the exclusion of the components related to human rights issues from the current negotiating track, in addition to the ongoing violations, which makes it challenging to implement social programs that address the issue of justice. Nonetheless, the absence of domestic and international will makes it hard to create an atmosphere that consecrates transitional justice, according to Wahba.

Strategies to achieve transitional justice:

The following procedures can be followed to achieve the goals of transitional justice according to the International Center for Transitional Justice (ICTJ), as these mechanisms work according to a complementary vision, not as alternatives:

Prosecutions: Criminals who are found accountable must be prosecuted.

Damage reparation: This includes direct material and moral compensation for damages, restoring the honor of the victims by issuing a public apology or setting a commemoration day.

Truth commissions: To conduct investigations into violations that have occurred, and issue recommendations to address the breaches, and proposals to prevent their recurrence in the future.

Institutional reform: This includes dismantling repressive state institutions such as the police and the judiciary, and passing constitutional amendments to avoid the recurrence of violations or impunity.

Mechanisms that can be followed to achieve justice in Syria

Previous experiences in implementing transitional justice in some countries in the Balkans, Latin America, and others have proven that there are four central rules to establish effective transitional justice in the post-conflict period, according to Wahba.

The most basic rule is related to the victims and their families, who are the core of the transitional justice process, as formal channels must be formed to ensure their close involvement in thinking, planning, and coordinating this process. As such, the Colombian transitional justice experience has been based on granting the families of the victims a fundamental and practical platform to participate in the ongoing discussions at more than one level.

This was stipulated by all international legal texts, the most recent of which was UN Resolution No. 2474, which examined the issue of missing persons during armed conflicts, and demanded that their fate be revealed. Civilians are protected in all areas of conflict.

The second rule revolves around the importance of the role of women, according to Wahba, as the experiences of many of the most prosperous countries in this context indicate the existence of a fundamental women leadership or at least an active and real participation of women in establishing the transitional justice track.

In Syria, there is a deliberate exclusion and marginalization of women and their role Wahba believes that the beneficiaries from the continuation of the current conflict, and the lack of true transitional justice, are fully aware of the change that women can achieve; therefore they strive to keep them away from the scene.

The third rule that Wahba emphasized stipulates that “rights are indivisible, and victims cannot be categorized in classes.’ Thus, the willingness to implement transitional justice requires “the courage to accept the idea that victims belonging to all the parties to the conflict have the same rights, because, without this awareness, justice will become selective instead of transitional.”

The fourth rule deals with the causes of conflict, as any future mechanism that maintains the causes of conflict cannot be considered as part of transitional justice but rather a mere attempt to curb the underlying reasons that led to the outbreak of war, which can rise again and may cause a more serious social conflict. Thus, creating the necessary guarantees to avoid the reoccurrence of conflict is the essence of transitional justice, as this process cannot be considered as mediation or a solution to the immediate or interim conflict.

Scenarios for implementing transitional justice in Syria

Al-Hamad considered that implementing any kind of truth in Syria will not serve the interests of the current figures of the regime and the opposition, who will not agree to establish transitional justice, as their status is closely related to maintaining chaos in the country. Any agreement to achieve stability will not be beneficial to them. So, they will automatically refuse to contribute to it.

Al-Abdullah believed that the survival of the regime constitutes the worst and most challenging scenario for Syria, as al-Assad authorities are hindering the achievement of any justice for the Syrians, even for the victims on the regime’s part, in total negligence of the people’s interests. These facts will complicate the scene, as the government has arrested tens of thousands of Syrians and forcibly hidden a large portion of them.

Wahba agreed with al-Abdullah that the regime is not interested in establishing transitional justice while noting that the “national reconciliations” that took place in several Syrian regions stand as a clear example of the transitional justice pattern that the regime seeks to achieve. Thus, the current authorities are opting for implanting a topical treatment of the conditions on the ground, the sole purpose of which is to strengthen the regime. Therefore it has nothing to do with the concept of transitional justice.

Besides, confining the issue of detainees and victims of enforced disappearances to the scope of military exchanges and political bargaining cannot be a favorable factor to prepare for transitional justice.

Wahba indicated that the ongoing effort to amend the current constitution, through the Constitutional Committee’s meetings, under UN auspices, constitutes an opportunity to discuss transitional justice. However, dealing with this issue in light of the ongoing conflict, violations, and the deliberate absence of any real political will to achieve justice, prevented any positive contributions to the problem.