Chapter 1. The Rule of Law
1.1. Summary of Key Recommendations
- Justice System and Laws: Maintain the administration of justice during the transition. Ensure sufficient personnel for the justice system and safeguard them. Protect justice infrastructure and court records. Engage with revolutionary groups regarding their role in the administration of justice. Eliminate all extraordinary courts. Repeal laws that grant arrest and detention powers and immunity to intelligence agencies. Strategically repeal laws that violate judicial independence and human rights. Arrest persons accused of conflict-related crimes.
- Prisons: Inventory existing prisons and detention centers. Secure serious criminals. With the assistance of Detention Review Teams, release political prisoners and children. Safely detain persons arrested for conflict-related crimes. Assess prison infrastructure. Improve prison conditions to meet basic human rights standards. Clarify and unify management of prisons under the Ministry of Justice.
- Crime: Transitional periods are often threatened by crime: transnational organized crime syndicates may smuggle drugs, persons, and weapons; rebels and victims may undertake revenge attacks; spoilers may attempt to destabilize the transition; and traumatized individuals are more apt to act violently. Identify existing capacity to handle organized crime. Ensure security for judges trying serious criminal cases. Launch a broad-based public campaign to discourage revenge attacks. Monitor public gatherings where spoilers may be present. Encourage local strategies to avert crime and domestic violence.
- Oversight: Establish mechanisms of oversight and monitoring of the justice system to improve functioning and enable transparency and accountability. Independent monitoring mechanisms can include Rule of Law Committees at the national, regional, and local levels, as well as readily identifiable monitors who will attend public gatherings and visit police stations and prisons. Channels of communication between these committees, monitors, and the formal justice system will facilitate reporting, early warning, opportunities for mediation and redress, and accountability.
- Public Gatherings: Large public gatherings—whether of celebration, political expression, or protest—are likely during the transition. Establish ground rules for public gatherings. Train police in proper crowd control techniques to prevent violence. Ensure the presence of independent monitors.
- Trust and Legitimacy: Raise awareness of a culture of human rights and the rule of law. Demonstrate the transitional government’s commitment to the rule of law. Communicate about the transitional government’s rule of law initiatives. Seek input from the public at large and local organizations. Publicize successes and positive developments. At each step, act with inclusion, participation, transparency, and accountability.
|In addition to the constitution and the courts, the rule of law includes a role for independent monitoring mechanisms and public oversight.|
Goals, Principles, and Guidance
Establishing the rule of law is one of the fundamental goals of the revolution. The rule of law means that all are equal before and accountable to the law. This applies to individuals, institutions, public and private entities and the state itself. Transparent processes, clear norms, and established structures hold the population and public officials legally responsible for their actions. The rule of law is not limited to the structure and operation of the formal justice system. It also characterizes relations between state institutions and between the state and the populace. All these relations should feature transparency and accountability. In addition to the constitution and the courts, the rule of law includes a role for independent monitoring mechanisms and public oversight. Further, it entails a popular political culture that recognizes the equality of all, accepts the legitimacy of the law, and expects accountability from everyone. (For resources regarding the rule of law, see Selected Resources.)
In all its deliberations regarding the goal of establishing a rule of law in Syria, The Day After project adhered to several core principles.
Principle 1. Local ownership. Decisions over the content and shape of the rule of law reforms should be in the hands of national stakeholders. Both the immediate relevance and the long-term sustainability of efforts to establish the rule of law depend upon the meaningful involvement and control of the program by Syrians. No model, no matter how perfect in theory or successful in practice elsewhere, can succeed in Syria if it is imposed from outside.
Principle 2. Participation and inclusiveness. The rule of law applies to all, and thus all should be involved in building it. All components of society should be included, with particular attention to historically excluded or disempowered groups. When fateful decisions are being made about particular groups—such as victims of human rights abuses, former revolutionaries, or members of groups that have been discriminated against or whose input has been limited on the basis of their collective identity (ethnic, religious, sectarian, gender, etc.)—diverse representation from these groups should be included in the process. All mechanisms for establishing the rule of law should include affected stakeholders.
Principle 3. Transparency and openness. Ample public oversight and monitoring mechanisms of the justice system and effective communication by the transitional government to keep the public informed will facilitate building the rule of law, enable accountability, forestall abuses, and help to instill trust and legitimacy.
Principle 4. Process. The rule of law is an aspirational concept, one that all democratic states continually strive to realize. Making progress, particularly in a country that has been dominated by a repressive regime, will take time. While initial steps are paramount, the entire transformation of a political system and culture will take many years. As with any process, it is also dynamic, requiring reassessments and adjustments along the way. Those adjustments should take into account the reality of the local context. Finally, the process itself matters. Outcomes of accountability and transparency, which are key to the rule of law, can only be achieved if the process of achieving them is itself transparent and inclusive.
Beyond these overarching principles, The Day After project also sought to identify some helpful guidance for the transition period. In our deliberations, we were deeply mindful of uniqueness of the Syrian context and the imperative of local ownership—while also reviewing and learning from the experience that has accumulated over the last fifty years among transitional states seeking to consolidate peace after conflict and to establish the rule of law after a repressive regime. (For resources on the experiences of other transitional states, see Selected Resources.)
Guideline 1. Provide strong leadership and create coalitions of change nationally and locally. Strong national and local leadership will be necessary to model the rule of law, perhaps especially with regard to the treatment of those who have committed conflict-related crimes. At the same time, the transitional government should also build inclusive coalitions of change. These coalitions can serve as channels of communications and consultation; generate positive state-society relations, create opportunities for stakeholder input; and protect the transitional government from isolation, elite capture, or scapegoating for unpopular decisions.
Guideline 2. Develop Syrian solutions rather than imposing plans. The adoption of centrally-devised plans, standardized technical approaches, or foreign models should be avoided. While much can be learned from shared international wisdom and experience, foreign models should not be followed without further attention to the Syrian context; nor should it be assumed that one approach will be appropriate for the entire country. Strategies for implanting the rule of law should be developed through participatory processes that permit local and regional variation, and that can adapt to changing circumstances.
Guideline 3. Undertake both technical and social approaches. A functioning justice system needs to be technically sound. This includes drafting laws, building courthouses, updating technologies, and training personnel. A focus on technical improvements should be balanced by ample attention to the social aspects of the rule of law. This includes practicing inclusivity and transparency so as to build relations of confidence and trust so that citizens know the law applies to all, consider it safe to enter police stations and courthouses, trust the justice system personnel they encounter, and are ready and willing to serve as monitors and offer input. Both technical and social approaches are necessary to establish and sustain the rule of law.
Guideline 4. Deliver early results while avoiding haste. Because trust in the state is so low after repression, and chaos is often rampant during conflict, the transitional government should deliver some early tangible results in the justice sector. This will signal a distinctive break with the repressive past and mark a clear discontinuity with the previous regime, thereby gaining the public’s confidence. Such measures might include closing notorious prisons, detaining high-profile perpetrators and holding them safely for prosecution, or placing members of formerly excluded groups in key positions in the transitional government. Consultations with constituencies in Syria will suggest which early measures are most likely to build public confidence in the character and capacity of the transitional government. Genuine transformation of state institutions and shared political culture also takes time. Attempting too much change too quickly can backfire, as the capacities of the state can become overburdened, and expectations are raised and then left unmet, eroding public confidence. Accordingly, major changes should be incremental and sequenced, pursued only when the will, resources, and capacity to implement them are present. Any steps toward progress should be celebrated along the way; inevitable setbacks should be viewed as learning experiences. The rule of law is a long-term endeavor, a work in progress that all democratic societies seek to sustain.
The rule of law has been almost completely eroded in Syria by the Assad regimes. The justice system has been severely weakened and distorted. Its institutions have been subject to capture, its personnel politicized, its laws manipulated, its formal civilian courts sidelined by extraordinary courts, its prisons kept secret, and all these failings cloaked with impunity.
The institutions of the justice system in Syria, like much of the state apparatus, have been required to operate in the interests of the regime. With the President as head of the Supreme Judicial Council, responsible for the appointment, discipline and dismissal of the judiciary, the judiciary has had no independence. Although according to Syrian law judges may not be involved in politics, in practice judges have been selected from among members of the ruling Ba’th Party. Beyond these challenges, judges are greatly overburdened, with a shortage not only of judges but also of prosecutors and lawyers for handling the volume of cases before the courts. The regime has also severely curtailed the functioning of bar associations, which may be dissolved at the regime’s discretion.
Syrian law currently contains many sweeping categories of offenses that criminalize dissent and opposition, violating fundamental human rights. Among these are Article 285 of the Syrian Penal Code, which makes it a crime to “weaken national sentiment” (a provision that has been used to prosecute and imprison human rights activists who have criticized the government); Article 298, which criminalizes “inciting sectarian tensions”; Article 278, which criminalizes “acts, writing or speech unauthorized by the government that exposes Syria to the dangers of belligerent acts or that disrupts Syria’s ties to foreign states”; and Article 267, which criminalizes writings intended “to cut off part of the Syrian land to join it to another country.” Law No. 49 of 1980 also allows for the death penalty for membership in the Muslim Brotherhood. Contrary to international human rights standards, this law has retroactive effect.
Another egregious aspect of the Syrian justice system is the multiplicity of extraordinary courts. Military courts try both military personnel and civilians, and security courts try political cases. On the basis of Legislative Decree No. 51 of 1962, jurisdiction to try civilians for criminal acts was granted to military courts. Decree No. 6 of 1965 established exceptional military courts, separate from the military justice system, to try political cases. That decree made any act of opposition illegal and allowed prosecution and the imposition of the death penalty for vague crimes such as “opposing the unification of the Arab states or any of the aims of the revolution or hindering their achievement.” Decree No. 109 of 1967 created Military Field Tribunals, which could be established anywhere during war or other military operations. Military Field Tribunals have been used to try Syrian civilians seen as opposing the regime. They do not follow ordinary criminal procedures and are often conducted in secrecy without any due-process guarantees. The Supreme State Security Court was later created to handle cases deemed to concern state security. While that court was dismantled in April 2011, the secretive military courts and the Military Field Tribunals continue to operate with jurisdiction over civilians.
Prisons and detention centers are similarly secretive and have multiplied far beyond the Ministry of Justice. Each of Syria’s many overlapping intelligence agencies (the Military Intelligence Service, the General Intelligence Directorate, the Air Force Intelligence Directorate, and the Political Security Directorate) maintains a network of prisons and detention centers, many of them secret (see Chapter 3). They are located in all cities and many villages across Syria, some in the basement of intelligence service buildings and others in makeshift facilities within schools and public buildings. While the intelligence agencies work closely with the security courts and military courts, they have also held political prisoners indefinitely without trial. The numerous reports of egregious human rights violations committed in these secret prisons by agents of the intelligence services include torture, rape, and extra-judicial executions.
The laws providing impunity to state officials make a mockery of the rule of law, as they pretend to legally establish that which violates the core concept of accountability. For example, Article 16 of Legislative Decree No. 14 of 1969 provides that no legal action can be taken against any employee of the General Intelligence Directorate for crimes committed in the course of duty.
Impunity cloaks all these violations. Under Legislative Decree No. 69 of 2008, no lawsuit may be filed before courts against members of the police, customs police, or political security without the prior permission of the army commander.
Finally, there are the Shabiha: entirely outside the justice system but entirely relevant to the context of justice and the rule of law in Syria. These armed groups have their origins in criminal enterprises and networks that worked on behalf of the regime well before the uprising. Since the uprising, they have transformed into brutal paramilitary groups violently repressing the opposition. The Shabiha have been implicated in gross human rights abuses and extra-judicial execution, including the killing of children in the Houla massacre in May 2012 (see Chapter 3).
1.3. Challenges and Risks
This context of captured institutions, politicized personnel, laws that violate human rights, extraordinary courts, secret detention centers, and impunity—in short, a severely weakened and compromised civilian justice system—is one of the deepest challenges for the justice sector in the transition. It presents a very weak base from which to build the rule of law. The transitional government will inherit a situation where the state apparatus may not function, where many violations of human rights (e.g., detention of political prisoners) call for immediate redress, and where the population is right to be distrustful. Further, the course of the revolution and conflict prior to the transition will raise other challenges. The Day After project cannot predict with any precision the nature of the regime change or the conditions just after. Nonetheless, it can anticipate, and then recommend contingency plans to address, the following challenges.
Challenge 1. The existing justice system is weak, while the need for justice during the transition will be great. The transitional government must immediately cease human rights violations of the previous regime, fill a justice vacuum and avoid chaos during the transition, and prepare to bring to justice those who committed conflict-related crimes. Specific challenges include:
- The perceived and real lack of independence of the justice system;
- The existence of extraordinary courts, which violate the rights of Syrians and lack legitimacy;
- The insufficient number and capacity of personnel in the justice system, the concern that many personnel will not return to work in the transition, and the need to protect them from possible retaliation (if identified with the regime) or from public pressure that they exact vengeance from regime figures;
- Damage to or destruction of infrastructure and records, including records needed to vet prisoners and prosecute those who have committed human rights abuses and conflict-related crimes;
- The possible involvement of armed revolutionary groups in the administration of justice;
- The existence of laws that violate human rights;
- The imperative of arresting and securely detaining persons who have committed conflict-related crimes.
Challenge 2. Prisons in Syria are difficult to count, detain many people wrongfully, and provide abysmal conditions. Specific challenges include:
- The existence of secret prisons and detention centers, and the multiple lines of control through various ministries, armed forces, and intelligence agencies;
- The intentional release or the escape of serious criminals during the transition, who may be a destabilizing element by perpetrating further crimes and committing acts of violence;
- The detention of political prisoners who have been held together with common criminals, thus requiring some review process;
- The detention of children in inhumane conditions;
- The high number of pre-trial detainees and inhumane prison conditions, calling for immediate redress;
- The imperative to detain persons accused of conflict-related crimes and human rights, who will need to be held securely, in accordance with international human rights standards, and protected from retaliation.
Challenge 3. Serious crime may well escalate during the transition (as it has in other transitional states), undercutting the consolidation of peace, security, and governance. Specific challenges include:
- Transnational organized crime engaged in trafficking drugs, people, and weapons (to, from, or through Syria), including the continued activity of regime figures and of organized crime groups who supported the revolution (e.g., by supplying arms);
- Revenge attacks against those seen as loyal to the regime;
- A rise in domestic violence and other violent crime, linked to widespread trauma experienced by the population;
- The possibility that former regime elements will engage in crime so as to destabilize the transition and foment sectarian tension.
Challenge 4. Mechanisms of oversight and monitoring have been lacking, whether for elements of the formal justice system or the parallel system operated by the military and security agencies. To date, justice and security actors have operated with impunity. Specific challenges include:
- The need to invent a system of oversight, as none now exists;
- The imperative of monitoring armed rebel groups, who may continue to operate during the transition, including exercising some functions of the justice system (e.g., making arrests and detaining prisoners) or engaging in revenge attacks;
- The need for mechanisms to respond to reports of abuse, so that monitoring has consequences.
Challenge 5. Large public gatherings will probably be common during the transition, whether to celebrate the end of the regime, affirm or protest aspects of the transition, or express political support or opposition. Public gatherings are welcomed, but must be managed carefully. Specific challenges include:
- In the wake of the suppression of freedom of assembly, Syrian society and justice agents lack a set of ground rules for public gatherings, or the techniques to manage them to maintain peace;
- Spoilers may seek to incite violence at public gatherings, to destabilize the transition.
Challenge 6. The justice system lacks legitimacy and public trust. The relationship between state and society has been fundamentally broken. Even as the transition faces other immediate challenges, it will need to repair that relationship. Specific challenges include:
- Popular distrust and suspicion of the state, which may carry over to the transitional government;
- Lack of a heritage of transparency and accountability among those occupying roles in the transitional government and among the populace.
1.4. Detailed Strategies and Recommendations
The precise conditions of the transition cannot be known. The challenges can nonetheless be reasonably anticipated and preparatory steps and contingency plans recommended for meeting them. The strategies suggested here were developed by The Day After project through in-depth discussions with Syrians inside and outside the country. We have benefited from technical advice, historical reflection, and contextual study. We were also been informed by the strategies pursued—and failures experienced—by other transitional states (see Selected Resources). They further recognize the limited resources available, whether human, financial, or political. Where possible, timeframes for the strategies are suggested: prior to transition, immediate priorities once the transition occurs, and during the first few months of the transition period.
The strategies here require action, yet they often do not specifically designate a responsible actor. Just as the exact conditions of the transition cannot be foretold, so the shape, composition, purview, and exact powers of the transitional authority is yet to be determined. We recommend these strategies as appropriate to whatever body is duly vested with authority during the transition.
Finally, while offering these recommendations, we also emphasize that any strategies pursued should align with the overarching principles expressed above. Syrian stakeholders should have local ownership of all strategies; strategies should be defined with sufficient participation and inclusivity; decisions and implementation should be transparent; and the whole undertaking should be appreciated as a process that will unfold over time, require adjustments, and should itself embody the spirit of the rule of law.
Strategy 1: Administer justice during the transition.
a) Abolish extraordinary courts; revoke arrest and detention powers of security services; revoke immunity of security services.
- Abolish all extraordinary and exceptional courts. Repeal laws that grant jurisdiction to military courts (under Legislative Decree No. 51 of 1962), and Military Field Tribunals (under Legislative Decree No. 109 of 1967) to prosecute and try civilians.
- Repeal laws that provide powers of arrest and detention to the various intelligence services in Syria, including the Military Intelligence Service, the Political Security Directorate (which has an office in all civilian prisons), the Directorate General of Intelligence Services, and the Directorate of Air Force Intelligence Services.
- Repeal legislation such as Legislative Decree No. 69 of 2008, which provides immunity from prosecution to political, security, police, and customs officials for crimes committed while on duty.
b) Ensure sufficient personnel and capacity; restore judicial independence.
Prior to transition
- Compile a list of employees of the justice system (judges, prosecutors, prison officials, and police officers) and the Ministry of Justice. Use existing files, if they can be located.
- Identify current justice personnel who are “change agents” working in favor of the rule of law who can lead the justice system in the transition.
- Gather data from the Central Bank, Ministry of Finance, and Ministry of Justice to facilitate payment of justice personnel during the transition. As the transition proceeds, confirm that pay is provided only to those personnel actually working, and not to all those who remain on the roster.
- Undertake consultation and draft a plan to establish a new Ministry of Justice on Day One.
- Conduct outreach efforts and media campaigns to encourage personnel working in the regular justice system (but not the parallel system of military courts and intelligence services) to return to work. (Regarding agents in the military and security apparatus, see Chapter 3.)
- Leave existing personnel in the regular justice system in place during the transition. (Regarding the vetting of justice personnel, see Transitional Justice.)
- Provide targeted capacity development for certain justice personnel, e.g., training in criminal investigation and preservation of evidence for police and prosecutors, or training on the conduct of war crimes trials for judges.
- Reinforce both the independence and security of judges. Amend the Judicial Authority Law of 1961 to revoke the supreme authority of the executive to lead the judiciary; enforce the provisions that require judges to refrain from involvement in politics. (Regarding the separation of powers and the distinct branches of government, see Chapter 5.) To protect judges from outside influence and intimidation, ensure the security of courthouses and close protection of judges.
- Encourage communication and coordination between the various ministries concerned with the administration of justice and public order, including the Ministry of Justice and the Ministry of the Interior. Consider establishing a coordination group that meets regularly during the transition.
First few months
- Conduct a full assessment of the capacities of justice sector personnel. Incorporate a public perception survey, so that Syrian citizens can provide input regarding the obstacles and challenges they face, specifically concerning performance and capacities of justice personnel. In reviewing options for capacity development, identify the needs of the Syrian context (and training relevant to that context), rather than selecting among foreign models or approaches.
- Conduct a full assessment of the justice system. Incorporate nationwide public perception surveys to ascertain the problems the public has with the justice system and to learn what sort of system it would like in the future. Assessment and surveys can inform a national strategic planning process to address the long-term reform of the justice system.
c) Protect records and infrastructure.
Prior to transition
- Raise awareness among local groups in Syria about the importance of safeguarding records and critical justice infrastructure, so that all current prisoners can be handled justly, so that regime figures accused of conflict-related crimes can be prosecuted, and so that the administration of justice can go forward in the transition.
- Identify critical infrastructure and sites (e.g., Central Bank, state courts, other courts, prisons, detention centers, and security branch facilities) to ensure they can be safeguarded during the transition. Identify key records (e.g., criminal records, and statistics) and where they are stored (e.g., prisons, police stations, government offices) so they can be protected and preserved.
- Give local groups in each city and village a list of the critical infrastructure and location of records so they can assign people to protect them in the transition until public order can be restored.
- Assess and analyze the condition of justice infrastructure (e.g., damage to police stations and prisons) and the potential cost of repair.
- Allot an emergency budget to begin immediate priority rehabilitation of critical justice infrastructure elements (including prisons, courts, and police stations) to ensure they meet basic human rights standards and enable the functioning of the justice system.
d) Engage with revolutionary groups.
The Day After project could not come to a shared expectation regarding revolutionary groups, including the Free Syrian Army (FSA) and other armed opposition groups. A minority of members expect armed revolutionary groups to lay down their weapons and abide by the administration of justice as practiced by the transitional government. However, the majority of members anticipate that armed revolutionary groups will remain active and assume some role in the provision of security and administration of justice. The following strategies address that contingency.
We do agree that any engagement with revolutionary groups should be conducted with openness, transparency, and the utmost respect, acknowledging the key role they have played in the revolution and encouraging an honorable role in the transition. Consultations with revolutionary groups should address strategies, laws, and initiatives, so as to ensure they are closely involved in, cooperate with, and support the transitional government. Failure in this regard can result in reversion to violence.
Prior to transition
- Map the Free Syrian Army and other armed opposition groups (e.g., sectarian groups), including their organizational structure, leadership, support, resources, motivations, methods and tactics, and relationships with other internal and external actors.
- Initiate a dialogue with the Free Syrian Army and other armed opposition groups about their possible role in the transition, and what preparation they would need to be able to fulfill that role.
- Engage with the political command of the Free Syrian Army and other revolutionary groups to develop strategies to hand over the administration of justice and provision of security in the transition. Strategies should reflect the mapping of armed opposition groups and should realistically address local justice and security contexts.
- If revolutionary groups are involved in the administration of justice during the transition, work with them to agree on the basic human rights standards by which they will abide. Laws may need to be amended to grant them certain limited arrest powers, otherwise the prosecution of individuals for conflict-related crimes may be jeopardized.
- Create an oversight entity to monitor the involvement of revolutionary groups in the administration of justice and document and report any violations (see Strategy 4, below).
First few months
- Create strategies for the disarmament, demobilization, and reintegration of members of armed groups, recognizing the importance of understanding the specific groups and their contexts before formulating appropriate strategies. Some may be integrated into the police, military, or other ministries (see Chapter 3).
- Develop a law or regulation requiring registration of weapons and permits to possess weapons (see Chapter 3).
e) Begin to bring law into compliance with fundamental human rights.
Prior to transition
- Establish a legal committee to review existing laws and make recommendations of which laws to amend or repeal in the first months of the transition. The committee should be multidisciplinary, including lawyers and others knowledgeable of the law and also civil-society actors. The committee should consult broadly with civil society.
- Repeal key laws that violate fundamental human rights, such as freedom of expression and association, and laws that criminalize political opposition. This is both practically imperative and symbolically valuable, as it signals a distinctive break with the previous regime and builds confidence in the transitional government.
First few months
- The legal committee should consider broader challenges by analyzing the full body of the law, comparing it with international human rights standards (e.g., the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child, the Convention on the Elimination of Discrimination against Women, etc.) and international criminal law standards (e.g., the UN Convention against Organized Crime, the UN Convention against Corruption). It should also consult with stakeholders in Syria, from justice officials to civil society groups and the public at large. This will provide the groundwork for future substantial legal reform.
f) Arrest, prosecute, and try persons accused of conflict-related crimes or human rights abuses.
Whatever the overall approach of transitional justice, it will likely include some role for the regular justice system in prosecuting persons accused of conflict-related crimes (see Chapter 2). It is important that the treatment of accused persons is humane and meets basic human rights standards.
Prior to transition
- Identify the names of those suspected of having committed human rights violations during or prior to the revolution. This could be done through existing networks (e.g., Local Coordinating Committees).
- Gather and preserve evidence of crimes such as war crimes or torture for future prosecutions.
- Ensure that the scenes of crimes or human rights abuses (e.g., torture centers, mass graves) are safeguarded and protected so that evidence is not disturbed or destroyed.
First few months
- Cooperate with the initiatives taken toward transitional justice so that the regular justice system can play its part in this process (see Chapter 2).
Strategy 2: Address detention and prison issues.
a) Unify authority over and management of prisons; ascertain the number, locations, and conditions of prisons.
Prior to transition
- Create an inventory of all prisons now operating, including secret prisons. Gather information on location and conditions, through networks on the ground in Syria.
- Close the most notorious prisons where egregious human rights violations have occurred.
- Place all prisons under civilian rather than military control, and under the authority of the Ministry of Justice.
First few months
- Conduct a prison infrastructure assessment to determine requirements for immediate and long-term repair of facilities.
- Dedicate an emergency budget to rehabilitate prisons so as to meet basic international human rights standards (see below).
b) Avert the release or escape of serious criminals.
Prior to transition
- Work with current prison officials who oppose the regime on how to avert the release of serious criminals.
- Obtain a list of prisoners convicted of serious crimes and identify the most dangerous.
- Determine where the most serious criminals are being held (e.g., two wings of the prison in Central Damascus).
- Develop a plan to prevent the escape of serious criminals in the initial chaos of regime collapse.
- Enact the plan to prevent the escape of serious criminals, including the guarding of prisons when regime forces flee.
- Safeguard prison records. If serious criminals do escape or are released, records will facilitate their recapture.
First few months
- If serious criminals are released by the Assad regime, consider offering incentives (such as reduced prison sentences) for them to hand themselves in.
c) Release political prisoners.
Prior to transition
- Create a comprehensive list of political prisoners. Gather information from existing networks (e.g., Local Coordinating Committees), reports by local and international non-governmental organizations, and the families of political prisoners. Compile contact information of families, so release of political prisoners can be communicated to them directly and immediately.
- Prepare to assemble Detention Review Teams. They should include a reputable judge, prosecutor, lawyer, and civil society representatives.
- Send Detention Review Teams to each of the prisons and places of detention identified to release political prisoners, using the lists of political prisoners compiled. If an individual is not on the list but may be a political prisoner, the Detention Review Team will review the criminal record or file and interview the individual to determine release.
- Establish mechanisms for families of political prisoners to communicate with Detention Review Teams and learn the results of reviews.
d) Release imprisoned children.
The Day After project recommends that all children (meaning individuals under the age of eighteen) be released from prison, whether they are political prisoners or children in conflict with the law. This is because prison conditions in Syria are so bad that it is inhumane to keep children imprisoned. Further, children housed with adult prisoners (as is the case in Syria) risk both “criminal contamination” and abuse at the hands of adult prisoners. Under international human rights law, detention of a child is considered a measure of last resort.
Prior to transition
- Create a comprehensive list of children in prisons. Gather information from existing networks (e.g., Local Coordinating Committees), reports by local and international non-governmental organizations, and the families of children. Compile contact information of families, so children can be released to their care.
- Devise a strategy for the release of children from prison. This merits careful consideration, including transportation to reunite families and provision for children whose families cannot be identified or found. Special care should be taken so that children are not further harmed, traumatized, or ostracized upon release.
e) Review pre-trial detainees and improve prison conditions.
In one scenario outlined above, the regime may release large numbers of criminals or they will escape, leaving prisons relatively empty. In another potential scenario, the transitional government will inherit prisons crowded with convicted persons and also pre-trial detainees who have already been held for extended periods.
- Send Detention Review Teams (see above) to prisons to determine whom to release, including pre-trial detainees who have already served longer than the maximum sentences they would have received if convicted.
First few months
- To reduce the prison population, consider providing amnesty or pardon for lesser crimes.
- Assess prison conditions with the involvement of both local and international prison experts. Identify quick impact interventions that can redress current human right deficits. Key issues include ensuring adequate food, water, accommodation, sanitation and medical care. Provide an emergency budget to implement these interventions.
- Arrange for oversight of prisons to ensure that prison facilities meet human standards and that the rights of detainees are protected during the transition (see Strategy 4, below).
f) Detain persons accused of conflict-related crimes or human rights abuses.
Prior to transition
- Decide where individuals who are accused of conflict-related crimes or human rights abuses will be held in detention around the country. As these locations could be subject to attack, they must be duly guarded. Oversight should also ensure that guards do not violate the human rights of the prisoners (see Strategy 4, below).
Strategy 3: Prevent serious crime in the transition.
All countries struggle to address serious crime. In transitional states, serious crime can be particularly destabilizing, sparking renewed violence and interrupting the consolidation of peace. Further, in post-conflict states, crime often increases, as experienced criminals and transnational organized crime take advantage of any chaos and disruption, and as individuals traumatized by the experience of violence are themselves more prone to violence. Combating serious crimes should be high on the policy agenda of the transitional government.
a) Identify capacity to address transnational organized crime.
Prior to transition
- Identify existing capacity and legal mechanisms to investigate and prosecute serious crimes, such as trafficking in drugs and people, committed by transnational organized crime syndicates. Given the multiplicity and secrecy of the current justice and security apparatus, it is not clear which branches are handling serious crimes and whether they will be operational in the transition. Consider establishing a Serious Crimes Unit in the Ministry of Justice to coordinate with the Serious Crimes Unit in the Ministry of the Interior (see Chapter 3).
First few months
- Conduct a strategic threat assessment to ascertain the scope and level of criminality in Syria and its regional implications. Shortcomings in handling serious crime, particularly transnational organized crime such as trafficking in drugs, people, and weapons, should be identified, so they can be addressed in medium- and long-term reforms.
- Ensure security of judges, lawyers, and prosecutors involved in trying cases of serious crimes, as they may be in danger of intimidation, injury, or even death.
b) Avert revenge attacks and other forms of criminality.
Prior to transition
- Prepare public message campaigns to avert revenge attacks and other forms of criminality. Assure victims and their families that martyrs will be honored and justice will be served (see Chapter 2). Direct substantial attention to preventing domestic violence.
- Broadcast messages to avoid revenge attacks, domestic violence, and other forms of criminality. This should involve government actors, individuals of moral authority, popular and local figures, religious leaders, non-governmental organizations, local civil society groups, and media outlets.
c) Develop local strategies to prevent crime.
First few months
- National and Local Rule of Law Committees (see Strategy 4, below) should address the problem of serious crimes. We concluded that it is unwise to create a universal counter-crime strategy for all of Syria and suggest that local strategies be developed.
- Involve local civil society organizations and non-governmental organizations in implementing strategies to deter crime and domestic violence which may increase as a result of trauma (see Chapter 2). Take steps to protect victims (e.g., create women’s shelters).
Strategy 4: Establish interim mechanisms for monitoring and oversight.
Interim mechanisms of oversight should be established immediately in the transition to oversee the administration of justice and allow for prompt impartial investigation of critical local incidents involving justice actors. This will be a strong symbol of a new culture of accountability. The interim mechanisms would be in place during the transition. These mechanisms should include civil society so as to demonstrate the key role civil society plays in promoting the rule of law, and to enable all political parties and civil society to learn about the operation of the justice system and appreciate the priorities for long-term reform. Thus, The Day After project advocates utilizing already existing strong networks and local groups in civil society to form National, Regional, and Local Rule of Law Committees, as well as Rule of Law Monitors.
a) Form a National Rule of Law Committee.
Form a National Rule of Law Committee made up of representatives of political parties, the justice and security systems, civil society, and human rights groups. The National Committee should be as inclusive and representative as possible. The committee should be chaired by a high-profile individual who is regarded as credible by all sides. If this is not possible, the chair should rotate.
The committee should devise and propose strategies for building the rule of law during the transition, receive updates from local committees on problems with the justice system or performance of agents in the justice system (including issues regarding the administration of justice by opposition groups), receive reports of disputes between political parties or opposition groups and the justice sector, and help formulate plans to ensure the peaceful and proper conduct of Syria’s first democratic elections for the formation of a Constitutional Assembly. The committee can make explicit recommendations and encourage the transitional government to take action to resolve the issues.
The terms of reference for the National Rule of Law Committee should be agreed to by all parties. We propose the following:
- Consult widely with all stakeholders on rule of law issues;
- Formulate an overall strategy for the rule of law sector in the transition;
- Review all major operational plans of justice actors during the transitional period;
- Agree on a code of conduct for rule of law actors during the election;
- Facilitate the formulation of a plan to secure the country’s first democratic election, including reviewing plans prepared and presented to the committee by security forces;
- Receive complaints from citizens across the country regarding cases of abuse by justice personnel and agree on actions to respond to such cases;
- Receive reports from independent monitors (see below) as well as other international or regional monitors;
- Resolve disputes between political parties and the security forces, and between elements of the security forces;
- At the request of the transitional government, investigate incidents of political violence during the transition and provide recommendations on how to prevent these in the future;
- Coordinate the establishment and functioning of Rule of Law Committees at the regional level, including receiving regular reports; and
- Resolve disputes referred to the Committee from Regional Rule of Law Committees.
b) Form Regional Rule of Law Committees.
Form Regional Rule of Law Committees made up of representatives of political parties, the justice and security systems, civil society, and human rights groups in Syria’s different regions, to be chaired by independent persons of integrity. These committees should oversee and coordinate the work of Local Rule of Law Committees, receive reports from independent monitors (see below), and decide on appropriate courses of action. Further, the Regional Committees should report regularly to the National Rule of Law Committee regarding progress and challenges, and particularly provide forewarning of anything that could seriously disrupt peace, security, and the rule of law during the transition.
The terms of reference for the Regional Rule of Law Committees should be agreed to by all parties. We propose the following:
- Consult widely at the regional level with all stakeholders on rule of law issues;
- Coordinate the establishment and functioning of Local Rule of Law Committees;
- Agree on regional strategies to ensure justice and the rule of law, including negotiating between different actors to ensure full participation in these strategies;
- Resolve disputes between different political groups and actors and agents of the justice and security systems, and between elements of the justice and security system, when they have an impact on the region in question;
- Facilitate regional security arrangements for elections, including reviewing plans prepared and presented to the committees by the security forces and other actors;
- Address disputes or complaints that cannot be resolved at local level and provide recommendations on how to prevent these in the future;
- Receive briefings from independent monitors (see below) and decide on appropriate courses of action;
- Report regularly to the National Rule of Law Committee regarding progress and challenges, and particularly provide forewarning of anything that could seriously disrupt peace, security, and the rule of law.
c. Form Local Rule of Law Committees.
Form Local Rule of Law Committees made up of representatives of political parties, the justice and security systems, civil society, and human rights groups at the local level. Local committees should include representatives from armed revolutionary groups as much as possible, to ensure their inclusion and participation, and thus acceptance of and commitment to any agreements made by the committees. Local committees should be chaired by prominent and trusted local individuals of high integrity.
Local Rule of Law Committees should have day-to-day contact with the justice sector at the local level. They should oversee justice-sector actors, including those from armed revolutionary groups, operating at the local level. The committees should also lead the development of local security pacts and mediate conflicts between groups (e.g., rival opposition groups).
The terms of reference for the Local Rule of Law Committees should be agreed to by all parties. We propose the following:
- Agree on a local strategy or pacts to ensure security and the rule of law, including negotiating with different actors to ensure full participation in the strategy;
- Resolve disputes between different political groups and actors and agents of the justice and security forces, and between elements of the justice and security systems;
- Facilitate local security arrangements for the election, including reviewing plans presented to the committee by the security forces and other actors;
- Receive complaints of abusive actions by justice and security actors, and if possible provide some redress or response to these claims;
- Refer complaints that cannot be resolved locally or are of a particularly serious nature to Regional Rule of Law Committees;
- Report regularly to the Regional Rule of Law Committee as to progress and challenges in rule of law, and particularly provide forewarning the Regional Committee of issues that may seriously disrupt security and the rule of law.
d) Establish independent Rule of Law Monitors.
We envisage Rule of Law Monitors as neutral actors drawn from civil society. Monitors should be established very quickly based on existing networks, such as the Local Coordinating Committees. They should be vetted through a system established by the National and Regional Rule of Law Committees.
Monitors will operate at the local level, directly observing the activities of justice system actors. For example, monitors should attend public gatherings, visit police stations and detention centers, and be present at trials. They should receive basic training as to their responsibilities in maintaining and reporting on the rule of law. They should carry clear identification as Rule of Law Monitors, be readily identifiable as such (e.g., wearing distinctive dress), and should pride themselves on their neutrality and commitment to the rule of law.
Any disputes or abuses that monitors report should be examined and investigated—otherwise monitoring carries little weight. Serious incidents should be referred to specific sub-committees of the National and Regional Rule of Law Committees, established to investigate abuses.
The terms of reference for the Rule of Law Monitors should be agreed to by all parties. We propose the following:
- Maintain a presence in sensitive areas and at events where rule of law and security may be threatened;
- Be a neutral source of information as to conditions and activities of rule of law institutions, including at public gatherings;
- Report this information to Local Rule of Law Committees and in serious cases to Regional Rule of Law Committees;
- Initiate negotiations to resolve disputes between justice, security, and political actors before those disputes escalate;
- Monitor elections, building public confidence that rule of law and security will be maintained.
Strategy 5: Manage public gatherings.
a) Establish shared rules for engaging in public gatherings and ensuring safety.
- Train the police responsible for public order in crowd control and tactical approaches consistent with international human rights law.
- Create ground rules for any group organizing or engaging in a public protest or gathering. The National and Local Rule of Law Committees should be involved in this.
- Ensure that independent monitors are present at public gatherings. The monitors should be drawn from the independent monitoring mechanism discussed above.
Strategy 6: Build trust and legitimacy in the justice system.
The transitional government will need to take concerted steps to build confidence and trust in itself, in the justice system, and in its ability to deliver rule of law results. Transparency is key, as is providing clear signals of a distinctive break with the past. Inclusion of civil society and local leaders and adoption of local-level initiatives are also essential during the transition, so as to begin to create a new relationship between state and society.
a) Raise awareness of a culture of respect for human rights and rule of law.
- The transitional government should raise awareness among both the Syrian public and among state actors about a culture of human rights and the rule of law. It should make clear that the state has a monopoly on the use of force, that individuals should not resort to violence, and that everyone is equal before the law. Specific messages should be directed to police, military, and security forces to underscore that they do not have impunity and that they serve and protect the public. Messages should also highlight the rich cultural diversity and heritage of Syria, focusing on equality of all groups, co-existence, and tolerance.
- Media, civil society groups, non-governmental organizations, religious leaders, and local leaders should all be enlisted in awareness-raising efforts.
b) Communicate about progress in establishing the rule of law.
- The transitional government should publicize rule of law initiatives and update the public daily about what it is doing to promote the rule of law. National and Local Rule of Law Committees should also provide public reports on their activities. Positive developments, at both national and local levels, should also be publicized through government announcements, media, and existing networks such as the Local Coordinating Committees.
- The transitional government should also communicate to the international community and regional neighbors about its commitment to the rule of law, and indicate that the transitional government welcomes international cooperation to assist in national efforts.
c) Seek input and feedback from the public.
- The transitional government should gather input and comment from Syrian citizens. Feedback mechanisms are crucial. Feedback and input can be received from the population through nationwide, regional, and local dialogues; consultative forums such as national and local committees; and polling through social media. Consultation efforts should draw upon networks that existed prior to the transition and that are already well-established (e.g., community councils).
- Any new laws should allow time for civil society groups and members of the public to comment. Develop a system for receiving public input on inputting on draft laws.
1.5. Timeline to Implement
Figures 1-1 through 1-2 depict notional timelines to implement Rule of Law recommendations.
Figure 1-1: Notional Timeline for Justice System, Laws and Prisons
Figure 1-2: Notional Timeline for Crime, Oversight, Public Gatherings, and Trust and Legitimacy
1.6. Selected Resources
Alden, Chris, Monika Thakur, and Matthew Arnold. Militias and the Challenges of Post-Conflict Peace. London and New York: Zed Books, 2011.
O’Connor, Vivienne, and Colette Rausch, eds. Model Codes for Post-Conflict Justice. Washington, DC: United States Institute of Peace Press, 2007. Available at: http://www.usip.org/programs/initiatives/model-codes-post-conflict-justice [July 2012].
Rausch, Colette, ed. Combating Serious Crimes in Post-Conflict Societies. Washington, DC: United States Institute of Peace Press, 2006. Available at: http://www.usip.org/node/2952 [July 2012].
Shaw, Mark and Walter Kemp. “Spotting the Spoilers: A Guide to Analyzing Organized Crime.” New York: International Peace Institute, 2012. Available at: http://www.ipacademy.org/publication/policy-papers/detail/352-spotting-the-spoilers-a-guide-to-analyzing-organized-crime.html [July 2012].
United Kingdom Department for International Development Briefing. “Justice and Accountability” (May, 2008). Available at: http://webarchive.nationalarchives.gov.uk/+/http:/www.dfid.gov.uk/Documents/publications/briefing-justice-accountability.pdf [July 2012].
United Nations Development Programme. “Capacity Assessment Practice Note.” 2008. Available at: http://www.undp.org/content/undp/en/home/librarypage/capacity-building/capacity-assessment-practice-note.html [July 2012].
United Nations Secretary-General. “The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies, Report of the Secretary-General,” UN Doc S/2004/616 (August, 2004). Available at: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N04/395/29/PDF/N0439529.pdf?OpenElement [July 2012].
World Bank, “World Development Report 2011: Conflict, Security and Fragility.” Washington, DC: World Bank, 2011. Available at: http://wdr2011.worldbank.org/fulltext [July 2012].