Is there any alternative to the UN-sponsored process for the Syrian constitutional committee?

Hussam al-Mahmoud|Jana al-Issa

Multiple failed political processes, both broad and narrow, were carried out in hopes of ending the conflict in Syria before Syria’s Constitutional Committee (SCC) was established. The goal of the SCC is to produce a new constitution for war-ravaged Syria. 

The SCC’s sixth round seems to be the only option available to the Syrian people right now in order to transform from war into a durable peace. 

Furthermore, numerous political aspirations and statements have been made in the framework of the Syrian issue, and now a clear methodology must be agreed upon to ensure positive long-term outcomes for the next round. 

The opposition delegation is getting ready to attend the sixth round after the failure of the five previous ones, the outcomes of which have not contributed to any notable changes for the past two years.

The UN Special Envoy for Syria, Mr. Geir O. Pedersen, has enthusiastically announced that the sixth round of the SCC talks will be held in Geneva on 18 October to re-launch the political process. Even though the Syrian regime confirmed that regardless of the results of the next committee’s meetings, they are not going to change anything on the ground, the opposition delegation is still moving forward to Geneva, relying on Pedersen’s efforts to reach an agreement. 

In this in-depth article, Enab Baladi introduces the views of many politicians and legal experts regarding the relevance of the opposition delegation’s work in the SCC today. It also sheds light on the available alternatives to the SCC, the role of the UN envoy to Syria in advancing the political process, and finally, the most prominent outcomes of the SCC’s previous rounds.  

‘The opposition is in trouble’

Why does the opposition insist on the presence of the SCC?

The opposition delegation, unwillingly, continues the UN-facilitated negotiations convened with the participation of three delegations—the opposition, the Syrian regime, and civil society organizations—said the Director of the Syrian Justice and Accountability Center (SJAC), Mohammad al-Abdullah.

Al-Abdullah told Enab Baladi that the Syrian opposition has been compelled to attend the fifth round of the SCC talks and other negotiating tracks following several concessions that led to a sense of embarrassment. The opposition has no other choice for several reasons.

According to Muhammad al-Abdullah, the Syrian opposition delegation to the committee faces a “dilemma”.

The opposition’s first fault was to engage in the SCC’s previous talks. The opposition has no other options since the SCC has become the only political process sponsored by the international community in the absence of other alternatives. 

 Muhammad al-Abdullah said that the opposition’s weakness is that it did not take the decision to withdraw from the SCC talks at an appropriate time. 

The opposition would have been in a stronger position if it had objected or taken that decision to withdraw from the SCC talks earlier, rather than making concessions to the Syrian regime. The opposition first agreed to trim the scope of the political process and the Geneva peace talks on Syria from the beginning. It first agreed to the implementation of UN Resolution 2254, then to the Four Baskets, and finally to the SCC talks. 

Muhammad al-Abdullah believes that the opposition is experiencing “great political pressure” on the ground in Syria. This is evident when it has to participate in negotiations that bring it together with the regime. Moreover, the opposition cannot withdraw from those negotiations due to the military tide on the ground tilting in favor of the regime. This is why the opposition is considered the weakest link forced to negotiate.

 

What does the opposition delegation think?

Hadi al-Bahra, the Syrian opposition’s co-chair of the UN-facilitated SCC, said that UN Security Council Resolution 2254 is “unclear” to some members of the SCC. They cannot understand that the upcoming round of the SCC talks aimed at reaching a political agreement is part of implementing the previous resolution.  

Al-Bahra told Enab Baladi that the transitional phase begins from the date of signature of the present political agreement and ends when establishing a safe and neutral environment that would enable Syrians to hold free, fair, and credible elections under UN supervision. He indicated that the first electoral process is “the constituent referendum on the new draft constitution,” which, he said, the SCC is working on. 

Al-Bahra added that the task of achieving such a safe and impartial environment begins with “the establishment of credible, inclusive and non-sectarian governance-transition body in Syria,” as stated in Article 4 of UN Resolution 2254, and in the Geneva Communiqué of 2012. This was later adopted by Security Council Resolution No. 2118.

The political transition in Syria begins with creating a “safe and neutral environment,” then by conducting a “political referendum” on the new draft constitution. And it ends after the completion of the parliamentary and presidential elections “according to the hierarchy that will be stipulated in the desired constitution,” and the start of the elected people exercising their duties according to their powers that are also determined by the “new constitution,” according to Hadi al-Bahra.

According to al-Bahra,” The new draft constitution, which is underway, will not come into force until all the previous stages are completed in sequence.

Absence of “political accountability”

Danny al-Baaji, a former Syrian diplomat and a Senior Fellow at the Omran Centre for Strategic Studies, says what makes the Syrian opposition so determined to continue to participate in the SCC talks is the work approach that it has adopted since its inception, based on “stubbornness” and its “ inability to apologize or undo its mistakes.”

The Syrian opposition presented the SCC from the very beginning as “a victory for the Syrian people” without showing or proving any serious positions taken by that committee to date, said researcher Danny al-Baaj.

Al-Baaj added that what strengthens the determination of the opposition Syrian Negotiations Commission to engage in the SCC talks (the insistence on losing) is the complete absence of political accountability tools. 

In addition, the Commission believes that it is “protected” because it participates in the UN-sponsored talks of the SCC as representatives of the Syrian opposition. 

The Syrian Constitutional Committee comprises representatives of Syria’s government, opposition, and civil society. It has the mandate to draw up a new constitution for Syria in accordance with UN Resolution 2254.  Resolution 2254 is considered a basic reference for the political process in Syria and requires the formation of a comprehensive and non-sectarian transitional government, then a schedule and process for drafting a new constitution for the country, and finally free and fair elections under the new Constitution within 18 months administered under UN supervision.

 What is the feasibility of the work of the Constitutional Committee today?

Amending the Constitution or the reforms that the SCC is talking about will not change anything on the ground in Syria, human rights defender Muhammad al-Abdullah said. Al-Abdullah believes that the main problem does not lie within the text of the Constitution but in enforcing and interpreting the Constitution. 

 Al-Abdullah added, “It is unfortunate that Syria’s entire political process and peace talks sponsored by the UN and the international community are reduced merely to talks to amend the constitution.” The Syrian Constitution is “not bad,” but it does include some articles that need to be amended, given that the Syrian Constitution draws primarily from the French Constitution.

 As long as the negotiation talks between the regime and opposition delegations are based on the repetition of the same leaders that led the negotiations for years to no avail, this will again not result in any real change that would push the political path forward, says former diplomat Danny al-Baaj.

 For his part, Hadi al-Bahra, the Syrian opposition’s co-chair of the UN-facilitated SCC, told Enab Baladi that the negotiating process has several tools and forms, including military, diplomatic, legal, and economic ones, all of its results are seen at the political negotiating table.

 Al-Bahra considered that the political battle is like the military one; its time cannot be controlled. Thus, withdrawing or stopping the political process is “like expecting someone to win a battle in which he did not accept to participate.” 

He also considered that “The outcome, in that case, is settled for the benefit of the party that went down into its battlefield.”

 Al-Bahra said the reason behind the absence of effective outcomes on the ground, even though it has been two years since the start of the SCC’s work, is that “the political process is not a ready-made template of available options, if one of them does not work out, the other will be implemented automatically.” He pointed out that those options “are subject to international and regional circumstances and consensus. We have to make a huge effort to get there.”

 Al-Bahra added that the basis of the work of the opposition Syrian Negotiations Commission in the political process (Including its work in the SCC) “is subject to a continuous evaluation process in accordance with the principles and rules within the art and science of negotiation. And this requires a continuous search for the best alternative to a negotiated agreement, and if it exists, it must be followed.”

 Al-Bahra pointed out that “In the negotiating battle, you must have wisdom and perseverance in order to make good decisions.”

He considered that “the final battle will not be in favor of whoever wins the military battle. However, the real winner is the one who can guarantee the sustainability of security, peace and justice over time.”

 After the fifth round of the SCC talks ended on 29 January with no concrete results for the interest of the Syrians, there were many calls to abandon the talks and replace them with a new mechanism. This mechanism should guarantee a return to the full implementation of Resolution 2254, not just one part(revising the Constitution).

 An article published last February by Jomana Qaddour, a member of the SCC’s civil society delegation, said that the countries supporting the efforts of the UN have two options: abort the activity of the SCC immediately or threaten to do so if its meetings continue to bear no fruit, or to establish a new diplomatic mechanism (in addition to the SCC’s activities or after its cessation) that deals with the basic provisions of Security Council Resolution No.2254. 

 After announcing the formation of the Constitutional Committee in October 2019, Muhammad Hossam Hafez–a Syrian lawyer, a legal counsel, and a former diplomat–expected noted that the SCC would face “big challenges” due to its precarious references and legal and political structure in a study published on the Arab Center for Research and Policy Studies website. Besides, it does not represent large areas of Syria. Furthermore, highly qualified specialist cadres were excluded from the committee’s delegations (the opposition, the regime, and civil society). 

The study referred to the list of names participating from the opposition delegation, which is “filled” with members of the Syrian Negotiations Commission and the Syrian National Coalition. On the other hand, the civil society delegation includes names of members “very close to the Syrian regime’s security services.” The regime’s list “though it includes experts, has a lot of the names for members associated with the Syrian regime’s security apparatus.”

Untenable alternatives 

 Mohammed al-Abdallah, executive director of Syria Justice and Accountability Centre (SJAC), sees no current alternative to the SCC talks to move the political process forward in Syria. Yet, it is the only process sponsored by the UN today. He added that the work of the negotiating bodies today is tied to the SCC, which apparently has had many problems from the beginning; it lacks credibility and does not produce effective outcomes. This is because of Russia’s clear interference in its activities and structures. It imposes adding or removing members from the SCC.

 Muhammad al-Abdullah regards other conferences that are being held to discuss the situation in Syria, such as the Astana/Sochi peace processes, as “untenable” alternatives because Turkey, Russia, and Iran, the three guarantors of the Astana format, are simultaneously the conflicting parties on the ground in Syria. Plus, Astana/Sochi peace processes are not internationally recognized by major countries (the USA and EU).

Al-Abdullah believes that opening the door for other alternatives to the SCC is feared because the opposition delegation could be replaced with other representatives. Thus, “dozens of existing copies of the opposition blocs,” would be willing to participate just to sit at the negotiating table, play a leading role, or because they covet obtaining political leadership in opposition bodies.

 The former diplomat and senior fellow at the Omran Center for Strategic Studies, Danny al-Baaj, agrees with Muhammad al-Abdullah that there are no alternatives to the committee. He added that the committee was created to “obstruct political action and suspend its agenda at this point; discussing the constitution,” a task that was entrusted to it from the beginning.

 He indicated that the main problem began when the opposition accepted to join this committee in the first place even though it already knew that there were many alternatives that could have led to better solutions. Moreover, many researchers and observers of the negotiation process warned the opposition not to take part in the SCC talks. Their views also increased the popular rejection of the SCC since the beginning of its announcement. 

 Al-Baaj believes that any alternative future move must come within the negotiating body, which will achieve nothing “new.”

He said that the opposition could not move in alternative paths because of its lack of political experience despite many years of negotiation.

 The head of the joint committee of the opposition delegation in the SCC talks, Hadi al-Bahra, stressed that the political process, sponsored and facilitated by the UN in Geneva, “is the only way out that provides a sustainable solution” to reach the implementation of Resolution 2254.

 Commenting on the available alternatives to the SCC, if its talks reached a dead end, al-Bahra believes that the opposition is working to “hasten the occurrence of several courses supporting the political process” to reach international, regional, and Arab consensus that leads to the achievement of a political agreement between the Syrian parties according to a clear road map.

 Al-Bahra said that the opposition expects to start the next round of the committee’s talks by “working seriously on drafting (and not just preparing) a constitutional reform.” 

The SCC could “fulfill the agenda of this round,” based on outcomes of the discussions that al-Bahra held with Geir O. Pedersen.

 Al-Bahra added that the agenda for the next round has been set since the beginning of the fifth round last January. The agenda includes starting the process of drafting the basic principles in the Constitution (that is, the first chapter) because these basic principles constitute the foundations upon which the rest of the Constitution’s chapters are built.

 The head of the opposition delegation considered that the dispute between the previous regime and opposition delegations was about the “methodology of work.”

He pointed out that it is necessary to agree on a methodology that leads to results that will enable the committee to accomplish its mission within the framework of its mandate.

 The Syrian regime and Russia: similar position with different tones

 On 14 September 2021, Russian news agency Sputnik quoted Syrian sources, described as “informed,” saying that the head of the Syrian regime, Bashar al-Assad, met with the Russian President, Vladimir Putin, in Moscow in mid-September. They talked about the Astana process and the Constitutional Committee. However, the Constitutional committee is no longer important for the Russians, especially after May’s presidential elections. During the meeting, Putin congratulated his counterpart on winning the presidential election and described al-Assad’s victory as “deserved.”

 The Russian position in congratulating Putin on Assad aligns with the statements made by his Foreign Minister, Sergey Lavrov. 

 Foreign Minister Sergey Lavrov, in a meeting with Pedersen on 22 July, said that Moscow is looking forward to the SCC’s sixth-round based on expectations made on 31 March during his participation in the Valdai International Forum for Dialogue in Moscow.

 Lavrov expected that the SCC’s sixth round would be “new and qualitative,” compared to the previous rounds, given that it was the first time it was agreed to hold a direct meeting between the heads of the government and opposition delegations.

 Russia supported the committee’s process; it also convinced many parties to back the process. Russia also pressed the Syrian government to attend the committee’s meetings.

All these initiatives were initially perceived as a positive step. However, it soon became clear that the Syrian regime’s “concessions” would be limited to attending the talks, according to a member of the Constitutional Committee, Jomana Qaddour, last March.

 “It soon became clear that the Syrian government’s participation was a ruse — rather than discuss substantive issues or constitutional drafting, its representatives spent their time threatening to revoke the citizenship of “disloyal” opposition members,” Jomana Qaddour said. 

Some believe that Russia is unwilling to keep its promises. Therefore, it continues to postpone any progress in the work of the committee, while some others consider its ability to secure actual concessions from the regime as an illusion. In either case, Russia’s role has borne no fruit.

In conclusion, Russia’s position is in keeping with the regime’s practices in the context of the SCC talks. Russia is not really pressing the regime to take a serious stance. Both continue to take advantage of the time factor; they are deliberately wasting it. 

 “Moscow seeks to both keep the international community engaged through this process, while simultaneously preventing it from making any genuine progress on the political file,” indicated Jomana Qaddour.

Al-Assad has attacked the SCC since its first round; the regime delegation kept talking only about “the national principles.”

 The successive sessions of the Constitutional Committee came as an actual translation of Assad’s statements and actions. The regime’s delegation focuses on issues that do not constitute a priority or a point of contention for the opposition.

 Before the third round of the committee’s meetings, al-Assad made a statement on 12 August 2020 before the Syrian parliament in which he described “political initiatives” as “political nonsense, thanks to the US and its agent Turkey and their representatives in the dialogue.” He also reaffirmed that the committee’s role is limited to drafting a new constitution.

 Three years since the appointment of Mr. Geir O Pedersen as the UN Special Envoy for Syria

 Any progress on the Syrian issue?

 On 30 October 2018, the UN appointed the Norwegian diplomat, Geir Pedersen, as the UN envoy to Syria. He was chosen among four candidates to lead the negotiations after the resignation of the former UN envoy, Staffan de Mistura, who maintained his position for four years that did not provide a political solution to the Syrian file.

After the end of the fifth round of the SCC meetings on 28 September, Pedersen announced the date of the sixth round of meetings of the SCC in Geneva, which is going to take place on 18 October.  He expressed “disappointment ”and said during a press conference held on 29 January, that “there has not been a proper understanding on how we are going to make progress in the Committee.”

Nonetheless, Pedersen pursues his mission, which has divided opinions about the feasibility of his role.

Some argue that he should withdraw, like the previous envoys, and hand over the flag to a new envoy, who could also follow in the footsteps of his predecessor in the Syrian issue. It is noteworthy that the Syrian file is no longer among the international community’s priorities due to the presence of more urgent issues at the international level. The Syrian file is an issue that does not constitute an external threat anymore. 

Senior fellow at the Omran Center for Strategic Studies, Danny al-Baaj, spoke to Enab Baladi about Pedersen’s role and the benefit he hopes from continuing the constitutional committee’s rounds.

Al-Baaj believes that the role of the UN envoy is limited to what the international parties concerned with the issue want. There is some room for maneuver provided by his position as a UN envoy whose mission is to facilitate communication, bring views closer, transfer ideas between the parties, and promote the ideas of each party to the other.

The UN envoy or the international mediator, according to al-Baaj, can initiate and divide the negotiation tracks. This refers to the actions of de Mistura, who initiated the division of the negotiation tracks into the “four baskets,” which are still stalled.

On 3 March 2017, de Mistura announced the end of Geneva 4, explaining that the agenda for the fifth round (Geneva 5) will include “four baskets.” The first basket is the establishment of a trustworthy, inclusive, non-sectarian government within six months, and the second basket includes the process of drafting a new constitution within six months as well.

The third basket includes discussing the holding of free and fair elections under UN supervision and it has members of the diaspora from the Syrian community who have the right to vote. The election is supposed to take place after the constitution is drafted, within 18 months.

The former UN envoy confirmed that there is a “fourth basket” added to the agenda, at the request of the Syrian regime delegation, which is “discussing the strategy to combat terrorism.”

Danny Al-Baaj explained that Pedersen is not obliged to take the initiative, especially in light of the existence of an international agreement on the SCC, which makes him content with trying to advance this political process. He emphasized that the success or failure of this push depends on his experience as an international envoy and the extent of his ability to mobilize international pressure and create new angles for negotiation and dialogue between the concerned parties.

Al-Baaj pointed out that international interest in the Syrian issue is declining, and this can be read through the sequence of international envoys to Syria. The process started with the former Secretary-General of the United Nations, Kofi Annan, and then Lakhdar Brahimi, who completed major mediation agreements, one of which resulted in the “Taif Agreement” in Lebanon. After that, de Mistura took the reins of political negotiation for four years and was succeeded by Pedersen.

He also held the opposition responsible for not having the experience and accumulating tools, pointing out at the same time that Kofi Annan’s resignation and his refusal to engage in a “failed” political process was a message that resolving the Syrian issue would not take place through a process of political negotiations through the UN.

Former diplomat Danny al-Baaj stresses that international mediators do not seek concessions, nor are they happy with the stumbling block of the negotiating process on the issues they are working on. The international mediator always seeks to make the case he is working on succeed as part of his political career, and it is wrong to blame the international mediator for issues that the parties to the conflict can change.

Al-Baaj also did not rule out that Pedersen would decide, at some point, to leave his position, and meet with a fate similar to his predecessors that may end with an apology and resignation.

But at least he might leave after achieving relative progress or symbolic success in the mission, similar to the previous envoys. Kofi Annan developed the basic “Geneva Statement” plan that called the political parties to the table, Brahimi held the first round of direct negotiations between the parties to the conflict, while de Mistura pushed the Constitutional Committee and the “Four Baskets”.

The mechanism by which the international envoys dealt with Syria is divided into two categories. The first is the realist approach, which was evidenced by the resignation of both Kofi Annan and Brahimi in a short time when feeling the absence of international consensus on a solution.

On the other hand, Pedersen has continued the mission for three years, following in the footsteps of de Mistura, who held the position and pushed the political process while Syrian cities were under the regime’s attacks, the director of the Syrian Center for Justice and Accountability, Muhammad al-Abdullah, told Enab Baladi.

Muhammad al-Abdullah explained that Pedersen took on a difficult file without any promises or guarantees to give him political cover or international support. And what he can actually do is manifested by proposing meetings that do not necessarily lead to tangible results on the ground, and managing and delaying in the crisis, not resolving it.

According to al-Abdullah, the Norwegian UN envoy does not adhere to the meetings of the SCC and its attempt to continue it out of belief in its ability to create political rapprochement, but rather considering the current political path pre-drawn, and there are no alternative solutions to it. Pedersen does not have an international cover, which complicates his task and the possibility of its success.