Chapter 2. Transitional Justice.
Syria has been burdened with many decades of repressive rule and now confronts the turmoil and violence of the revolution. This has resulted not only in a broken state system and illegitimate institutions, but also widespread trauma and social fragmentation. Without attention to justice for the victims of abuse, to truth for those who have suffered during Ba’thist rule and the revolution, and to reconciliation among communities divided by conflict, Syria’s transition will be less likely to succeed, and the necessary processes of healing will be incomplete. The strategies proposed here integrate formal and informal methods to bring perpetrators to justice and enable Syria’s national reconciliation. They ensure Syria’s control of the transitional justice process while providing opportunities for international input and support.
2.1. Summary of Recommendations
- Immediately establish a Preparatory Committee on Transitional Justice to develop and begin to implement a strategy of transitional justice; prepare to safeguard records and documentation; begin public messaging and outreach to avoid revenge attacks and raise awareness of transitional justice mechanisms; anticipate international interest; consider appropriate frameworks to coordinate and integrate the variety of transitional justice mechanisms; and prepare personnel who will be engaged in transitional justice institutions.
- Once the transition occurs, transform the Preparatory Committee into an independent National Committee for Transitional Justice with a mandate to coordinate and oversee the transitional justice agenda at the national level; ensure the integration, coherence, and consistency of its different elements; harmonize initiatives; and address any disparities in policy formulation and implementation.
- Establish a Special Criminal Court as an ad-hoc independent judicial body within the Syrian judicial system, in accordance with international standards and under the sovereign control of Syria, to prosecute high-level figures such as senior officials of the Assad regime, members of the Assad family, and their senior associates.
- Prosecute lower-level figures through normal judicial procedures and accepted para-judicial processes.
- Provide conditional amnesty and careful vetting rather than a general amnesty or broad lustration (mass disqualification of those associated with the regime).
- Create a Commission of Inquiry to engage in a broad and inclusive process of truth-seeking, establishing a shared account of recent Syrian history. Under this commission, one sub-commission will be historical, addressing the period prior to the revolution; a second sub-commission will address the period of the revolution itself.
- Provide a system of reparation in a variety of forms, including material and symbolic compensation, restitution, rehabilitation, guarantees of non-recurrence, and official apologies.
- Enable long-term national reconciliation through history education, memorialization, psycho-social support, and national dialogue and outreach.
Goals, Principles, and Guidelines
The broad goal of transitional justice is to address the legacies of past large-scale abuses. Transitional justice aims to reestablish accountability and achieve reconciliation. It includes all victims, holds all perpetrators accountable regardless of identity, and provides for equal treatment of all in its procedures and processes. Its processes are both retributive and restorative, rebuilding citizens’ confidence in state institutions and trust in each other.
In post-Assad Syria, the goals of transitional justice are to:
- Achieve justice for the victims of systematic human rights violations and past abuses, establishing an alternative to extra-legal forms of redress that could exacerbate conflict and social fragmentation;
- Provide some shared truth about the behavior of perpetrators and the experiences of victims;
- Establish varied mechanisms of accountability, transparency, and inclusion, preventing further abuses and restoring citizens’ confidence in state institutions, contributing to the consolidation and legitimacy of the rule of law and of democratic institutions;
- Restore civic trust and construct a new positive narrative for Syria as a whole;
- Enable the healing and recovery of individual victims and of society at large, in view of the collective impact of violence, repression, and authoritarianism.
In developing the overarching goals for transitional justice and defining specific recommendations, The Day After project held to three overarching principles:
Principle 1. Multiplicity of Mechanisms. There is no single one-size-fits-all approach to transitional justice. Multiple mechanisms and varied approaches are appropriate, and the process should be adapted to the Syrian context. Rather than all-inclusive prosecutions or sweeping amnesties, transitional justice rightly employs a full range of mechanisms. These include prosecution of those responsible for crimes; fact-finding and truth seeking; non-prosecutorial mechanisms of accountability; reparations; national consultations; memorialization and history education; and restorative measures that include psycho-social support.
Principle 2. Sovereignty and Legitimacy. Transitional justice in Syria must be consistent with internationally accepted norms and standards, especially with respect to prosecution of those responsible for crimes, and how to address gender-based violence. At the same time, it must address and incorporate national and local conditions and contexts and integrate culturally-appropriate norms of justice and reconciliation. Further, we understand that at each point in the design of a transitional justice framework, choices will be required that will affect the legitimacy and credibility of the process. These choices must emerge through a process of dialogue and consultation with the Syrian public and be made explicit. The political consequences of those choices must also be appreciated at each stage of the process.
Principle 3. Prompt and Long-term Justice. A key feature of justice is its promptness. In the context of regime change, transitional justice should meet urgent demands for immediate accountability, assist in restoring the rule of law, and signify a distinctive break with the past regime. Another key feature of transitional justice is that that it is a long-term process. The healing of victims, the restoration of confidence and civic trust, and the reparation of society occur over an extended period. The goals of transitional justice thus entail both a set of explicit finite tasks to be accomplished with urgency, and the cultivation of ongoing political, cultural, and psycho-social processes.
The Day After project thus offers the following more precise guidelines for pursuing transitional justice in Syria:
Guideline 1. National ownership of a transitional justice process, placing national sovereignty and Syrian interests at the center of the process. Foreign expertise will be called upon, when needed, with full respect of Syrian sovereignty.
Guideline 2. Active and inclusive participation of all Syrians, through local-level bottom-up processes; this means that, while a national framework and overall mechanisms will be provided, they will find diverse expressions at the community level, with the full inclusion of local-level initiatives and resources.
Guideline 3. Awareness and respect for the religious, sectarian, and cultural diversity of Syrian society.
Guideline 4. Acknowledgement and full respect for the diversity of individual circumstances and experiences and of the nature of violations, within a national process. Recognition that sectarian and other identities are not an indicator of the status of individual Syrians as victims or perpetrators.
Guideline 5. Flexibility and creativity in selecting approaches and tools to accommodate the Syrian context and the different needs of Syrians in the post-Assad period.
Guideline 6. Engagement of various components and levels of government and civil society in an effective partnership, to fully contribute to the strengthening of institutional legitimacy.
Guideline 7. Transparency and credibility of the process.
Guideline 8. Emphasis on constructive and healing approaches in achieving justice and mending any tears in the Syrian cultural and religious tapestry as a means to restore values of personal dignity, citizenship, and the restoration of faith among Syrians in justice and rule of law.
Whenever and however regime transition occurs, Syria will confront twin legacies. One is the long history of abuse that dates back to the seizure of power by the Ba’th Party in March 1963. The other is the abuses committed during the period of the revolution, which began in March 2011. In both periods, human rights abuses have been committed by subsequent Assad governments and by their opponents, with the state bearing a greatly disproportionate share of responsibility for violations. As noted in the Report of the Independent International Commission of Inquiry on the Syrian Arab Republic established by the UN Human Rights Council, “the [Syrian] government has manifestly failed in its responsibility to protect its people. Since November 2011, its forces have committed more widespread, systematic and gross human rights violations. Anti-government groups have also committed abuses, although not comparable in scale and organization to those carried out by the State” (p. 1, see full citation in Selected Resources below). Both periods must be addressed in a process of transitional justice.
Virtually every Syrian has been subject to the systematic repression practiced by the Syrian government since 1963, including routine and wide-ranging violations of basic human rights. This extends from the violation of basic civil and political rights, such as freedom of expression and assembly, to the violation of social and economic rights, including the expropriation of private property. Some of these violations have been formalized in official decrees, for example establishing the death penalty for membership in the Muslim Brotherhood (see Chapter 1). Other abuses have been committed by non-state actors operating in collusion with state officials, such as the loyalist militias known as the Shabiha. Although active beforehand, the Shabiha have been particularly involved in the violent suppression of protests and in sectarian killings since March 2011.
Abuses by the government and its agents have targeted certain groups and individuals because of their political orientation, ethnicity, or religion. These groups and individuals include the members of political parties and movements banned by the Syrian government, such as the Syrian Muslim Brotherhood and communist parties, as well as individuals suspected of anti-regime activities or sympathies; tribal groups; ethnic minorities such as the Kurdish population of Syria; and religious minorities such as the Assyrian and Yezidi communities.
The prominence of Alawites in positions of power in the Syrian government since the mid-1960s has given an enduring sectarian aspect to the abuses committed by the regime, including during the extended conflict with the Syrian Muslim Brotherhood. This culminated in February 1982 with a massacre in Hama in which tens of thousands of civilians were killed by government forces. Sectarian identity is also a significant factor in abuses committed by the regime’s opponents against Syrian Alawites. The Day After project wishes to stress, however, that sectarian and other identities are not an indicator of the status of individual Syrians as victims or perpetrators. Many Alawites have been victims of human rights abuses. Individual Sunnis, Kurds, and members of other communities often viewed as victims may have been complicit in the government’s abusive practices.
Specific challenges to the implementation of transitional justice in Syria will be profoundly influenced by the process and nature of regime transition. Key variables include how long the current government remains in power, how a transition occurs, and whether international intervention contributes to the fall of the Assad regime. A negotiated transition that is concluded within a limited period of time may leave a more benign set of conditions in its wake than a transition that follows a prolonged period of armed conflict and regime collapse. Alternately, a negotiated transition that includes some form of amnesty for Bashar al-Assad and other senior regime figures will undoubtedly diminish prospects for accountability and justice. For this reason, The Day After project opposes amnesty as an element of a negotiated transition.
Under any plausible scenario of regime change, efforts to achieve transitional justice will face the following general challenges:
Challenge 1. Divided society. The revolution that began in March 2011 has exacerbated sectarian and regional tensions in Syria, deepening social divisions and creating significant potential for prolonged social violence following a transition. Such an environment will require a sustained commitment from a new government to the principles of fairness and equality in treating all victims and all perpetrators according to internationally accepted norms and standards. It will also require a commitment to the prevention of violence and a process of transitional justice that addresses the divisive effects of the revolution on Syrian society, as well as long-term national reconciliation.
Challenge 2. Insufficient resource base. International sanctions have severely disrupted the functioning of the Syrian economy and eroded the resource base on which a post-Assad authority will depend to implement a process of transitional justice. Securing the resources needed to implement a comprehensive, integrated transitional justice process will raise other issues for a post-Assad government to contend with. For example, access to international funds may require that a transitional authority agree to forego the death penalty as a condition for the release of funds needed to sustain a locally-managed process of transitional justice.
Challenge 3. Limited capacity and compromised legitimacy. Public institutions, including judicial and prosecutorial institutions, have been captured by the regime and used in its campaigns of repression. Many public officials and employees have either been involved or complicit in the regime’s abuses. They have also had little relevant professional training—for example, in gathering evidence rather than forcing confessions. As a result, the capacity and legitimacy of existing institutions and personnel to implement a process of transitional justice that meets international norms and standards is uncertain. The view of The Day After project is that sufficient national capacity does exist in Syria to undertake many elements of a transitional justice process, while recognizing that an effective and transparent vetting process of public officials will be needed. The Day After project also suggests that a post-Assad government remain open to an international role in the implementation of a transitional justice framework. The boundaries and conditions for such a role are included in the plan that follows.
Challenge 4. Urgent demand for accountability. Following a transition, the demand for justice and accountability from victims will be very high, placing a new government under significant pressure to respond quickly, despite a lack of resources and limited state capacity. Moreover, victims are likely to seek immediate redress for both recent and historic abuses, and for all categories of abuses, ranging from extra-judicial killings, torture, and imprisonment to rape, denial of citizenship, and economic and cultural crimes. Managing expectations and taking victims’ views into account in the design of a transitional justice framework will be essential for its credibility and legitimacy.
2.4. Detailed Strategies and Recommendations
A timeline for the strategies elaborated below is provided in Figure 2-1.
Figure 2-1: Transitional Justice Timeline
I. Strategies Prior to Transition
The Day After recommends that the strategies listed here be undertaken immediately, prior to regime change, as preparatory to the transitional justice process.
Strategy 1. Create a Preparatory Committee for Transitional Justice.
- As soon as possible, a Preparatory Committee should be formed to undertake the practical steps suggested below. This committee should include respected figures from different components of society and experts from different fields relevant to the transitional agenda (law, community mobilization, communication, information technology, etc.). For this preparatory phase, individual competencies should be a key criterion in forming the committee. A certain level of representation will also be important to ensure support for the transitional justice program from diverse communities and to undertake an effective outreach effort during the preparatory phase.
- This Preparatory Committee will be replaced immediately following a transition by a National Committee for Transitional Justice (NCTJ), see below, with a transfer of all relevant resources and documentation.
Strategy 2. Prepare to safeguard and assess information.
- Prepare a contingency plan to safeguard and secure the files and documentation accumulated by the current security apparatus, as well as official documents, such as property registers, judicial registers, and civil records. Contact individuals within the current apparatus to support implementation of the contingency plan, including by making copies of files. The contingency plan should include the protection of buildings that contain relevant documents. Although the first few days of any transition will be crucial for that protection, incidents already registered in some regions show that this imperative should be considered as an urgent priority.
- Immediately start gathering and organizing the information relevant for the transitional justice process accumulated during the revolution. Assess the quality of the documentation (including information that could later serve as legal evidence). Regarding human rights violations, this should be done in collaboration with other projects such as the nongovernmental Syrian Justice and Accountability Center.
- Work with counterparts in the rule of law and security sector reform to gather information and develop documentation for a vetting process of regime figures (see Chapters 1 and 3).
- Work with counterparts in the rule of law and security sector reform to create standards and criteria for different categories of perpetrators and direct them to different judicial and non-judicial processes (see Chapters 1 and 3).
Strategy 3. Start public messaging and outreach.
- Prepare a public message campaign to raise awareness of the existence of alternatives to revenge and contribute to the development of strategies to prevent violence, connecting with and supporting groups that are already working on these issues. Begin outreach efforts and the diffusion of the concepts, goals, and principles of transitional justice and their discussion in local contexts. Start a national dialogue so that the diversity of circumstances and perspectives can be fully taken into account in the development of the transitional justice agenda, including in the wording and labeling of the different initiatives.
- Nominate “regional ambassadors” in different Syrian regions to convey the concept of transitional justice and mobilize local activist networks even prior to the fall of the regime.. Also identify key figures of cultural authority and key civil society organizations sympathetic to this initiative to help raise awareness.
- Outreach efforts should target groups that might be expected to endorse the principles of transitional justice as well as those who are likely to reject them. It will be particularly important to engage local religious and women’s groups to assist in outreach and dissemination efforts and to support the restorative and healing aspects of a transitional justice process. All the different parties involved in the Syrian opposition should also be addressed. Such inclusivity will help ensure the legitimacy and authority of the future NCTJ (see below).
- Draft a National Ethical Declaration (Code of Conduct) to help establish standards and principles for a transitional justice project. Seek the endorsement of this declaration from all components of Syrian society.
Strategy 4. Consider how to integrate judicial, para-judicial, and non-judicial institutions and processes.
- Work with appropriate counterparts in the field of rule of law and the security sector to assess existing bodies and national institutions that may have a role in transitional justice. This may include the existing formal system, as well as informal and traditional mechanisms.
- Work with appropriate counterparts in the field of rule of law and the security sector to assess the legal framework that can be applied in judicial processes as well as individual laws that would require revision.
- Work with appropriate counterparts in the fields of rule of law and security sector reform to create the standards and criteria to establish different categories of perpetrators and direct them to different judicial and non-judicial processes.
- Interact with those involved in traditional or popular justice mechanisms, including the revolutionary courts, regarding what role they might play in the transitional justice process.
- Start the design of activities, projects, and initiatives that present alternative and complementary approaches to justice and that emphasize healing, restoration, and constructive alternatives to vengeful and punitive measures. This may include theatre, art, and different memorialization endeavors.
- Assess and discuss the political consequences of the different possible combinations of judicial and non-judicial processes that will be proposed for implementation.
Strategy 5. Anticipate international interest.
- Discuss the degree of international engagement that might be needed and assess the possible consequences of such engagement, including the potential loss of national control in the event that international judicial bodies become involved in prosecution. Advise the Syrian opposition on how to handle international demands regarding transitional justice and make recommendations regarding strategies for responding to such demands.
Strategy 6. Prepare personnel and local partners.
- As soon as possible, create a secure database of local, regional, national, and international non-governmental organizations and experts, including their respective capacities and resources in the field of transitional justice. This should include individuals who are part of the current regime but who could be of help in facilitating and implementing the transitional justice process.
- Start to develop a training program for the staff of Syria’s formal judicial system and the members of the informal para-judicial system active across the country. All training should be in coordination with the rule of law program so that it contributes to the long-term objective of strengthening rule of law.
- In coordination with other related efforts such as the Syria Justice and Accountability Centre (see Selected Resources), support the training and preparation of grassroots groups and actors who will be involved in transitional justice to ensure their capacity to effectively manage information, documentation, and evidence. Training should provide familiarity with internationally accepted guidelines and standards for the collection, organization, and storage of data relevant for future transitional justice efforts.
Strategy 7. Prepare for the National Committee for Transitional Justice.
- The National Committee for Transitional Justice will replace the Preparatory Committee immediately following regime change. Prepare the constitution of the National Committee for Transitional Justice as well as the organization of its secretariat.
- Prepare a budget for an initial two-year phase of the full transitional justice process, in coordination with appropriate counterparts in the economic field. Secure the commitment of any future authority that the transitional justice process will be included in the annual national Syrian budget and therefore funded on a stable, long term basis appropriate to the importance of this process for national reconstruction and the consolidation of rule of law.
II. Immediate Priorities
Strategy 1. Establish the National Committee for Transitional Justice.
The Day After project recommends the creation of a National Committee for Transitional Justice (NCTJ) by decree of a transitional authority, as its creation will precede the election of a new parliament. This committee will be in charge of the transitional justice agenda and will have full authority and independence in its decisions and operations.
The members of the NCTJ will be nominated by different components of Syrian society. The following sectors and components should be represented: figures of cultural authority (religious leaders, respected cultural figures, artists, and writers); representatives of civil society groups (including youth and women organizations); and human rights organizations. One member of the NCTJ should be from the security sector (with appropriate standing and a strong public reputation for integrity) and a second member should be from the judicial sector to ensure smooth coordination with the authorities of those two sectors as well as the coherence of the transitional justice process. The method of nomination to the NCTJ should be discussed and finalized during the preliminary phase.
The mandate of the NCTJ will be to coordinate and oversee the transitional justice agenda at the national level; ensure its integration, coherence, and consistency; harmonize initiatives, and address any disparities in policy formulation and implementation. The committee should coordinate with relevant ministries and authorities and be a trans-disciplinary team supporting everyone involved in the transitional justice agenda.
The NCTJ will be assisted by a Secretariat (see Figure 2-2) including experts and support teams in the following fields:
- Legal/judicial, criminal, and human rights investigation
- Psychology, trauma, and social work
- History and memory
- Outreach and education
- Media and arts
- Coordination with civil society
- Management and finance
Figure 2-2: Transitional Justice Organizational Chart
We also recommend that the NCTJ open local offices to be singular and accessible interfaces with the public, so that individuals need not visit several offices to find information or offer input on reparations, commissions of inquiry, etc. To support their work, these local offices can rely on volunteers and civil society networks. The NCTJ will act locally in partnership with existing networks identified during the preparatory phase as well as the Local Rule of Law Committees (see Chapter 1).
III. First Few Months of the Transition
A. Bring perpetrators to justice: special, regular, and para-judicial processes.
Prosecution of those responsible for committing serious violations of human rights is a central component of transitional justice processes and a necessary step in responding to demands for accountability and justice. Indeed, international law now holds that the investigation and prosecution of systematic, gross violations of human rights is a binding obligation of states. The integrity and legitimacy of prosecutions require that they comply with international legal standards.
Prosecutorial initiatives are often the most visible and symbolically significant element of a transitional justice process. How a post-Assad government handles the prosecution of those responsible for gross, systematic violations of international humanitarian and human rights law will have an important influence on the broader success of Syria’s transition. However, there are limits to the number of individuals whose cases can be handled efficiently and effectively through special courts or criminal prosecutions. Therefore, the Day After project recommends a range of prosecutorial initiatives, including a Special Criminal Court for leading officials of the Assad regime, normal criminal proceedings, as well as mediation and informal/traditional mechanisms.
The timing and sequencing of judicial proceedings deserve specific attention. A post-Assad government will confront an outpouring of popular demand for accountability and justice. It will also face international pressure to respond quickly to its obligation to investigate and prosecute serious violations of international human rights and humanitarian law. Yet it may not possess the means to respond these expectations. There are also risks to the stability, functioning, and consolidation of a democratic political order from judicial proceedings that would extend to large segments of Syrian society. It will be critical for a post-Assad government to maintain a balance among these competing pressures.
The Day After project therefore recommends that the establishment of a Special Criminal Court be the top priority of a transitional justice framework. It recommends that the investigation and prosecution of violations committed by individuals whose cases do not fall within the mandate of this ad hoc tribunal, but which are of a severity that warrants prosecution, be addressed as quickly as possible. It also recommends that the full range of non-judicial mechanisms and processes suggested in the present plan be established alongside of judicial proceedings, and on a timetable that respects the rights of all. Those mechanisms should be considered as simultaneous processes that complement each other and will help in managing the multiple pressures that will emerge during the transition period.
Strategy 1. Establish a Special Criminal Court.
The Day After project recommends the establishment of a Special Criminal Court by a new Syrian government or transitional authority. The court will function as an ad-hoc independent judicial body under the Syrian judicial system. Its mandate would extend only to senior officials of the Assad regime, members of the Assad family, and their senior associates.
The exact number of individuals to be tried by the Special Criminal Court remains to be determined. The criteria and standards for additional categories of perpetrators will be developed by the Preparatory Committee described above. Prior to a transition, the Preparatory Committee will gather information and develop documentation for the identification of judges of integrity who could be in charge of special prosecutions as well as the establishment of a vetting process to ensure the integrity and competence of judicial personnel. The Preparatory Committee will further review existing criminal law and assess its applicability for judicial proceedings that meet international norms and standards (see Chapter 1).
The Day After project considered several elements when making the recommendation for a Special Criminal Court:
- Satisfy international norms: A Special Criminal Court is consistent with international norms and standards, according to which states have the primary responsibility to prosecute serious violations of international humanitarian law and gross violations of international human rights. The importance of the location of the tribunal in the country where the crimes have been committed has also been highlighted by other countries’ experiences.
- Maintain sovereignty: The Day After project considers the Syrian judicial system to possess sufficient capacity to guarantee fair proceedings, in conformity with international norms and standards, provided the Preparatory Committee can design an adequate vetting and selection process. The Day After project further stresses the importance of preserving full Syrian sovereignty over all judicial processes and therefore does not recommend an international tribunal or hybrid court. This is of both functional and symbolic importance. It will demonstrate to Syrians and the international community the ability of the new Syrian state to function legitimately and fairly. This will also ensure that whatever happens at the level of Special Criminal Court remains connected with the national legal system. International support for judicial proceedings will be welcome as long as that support can maximize the legitimacy and efficiency of the national processes and benefit the entire system.
However, we recognize that the scope of international involvement will be influenced by the conditions of the transition, including the state of Syria’s justice sector at the moment of transition. Even if international actors do not intervene directly, they may impose conditions on the proceedings of a Special Criminal Court, especially if international funds are required to support its work. Conditions may include elimination of the death penalty, and the appointment of international experts to the Special Criminal Court.
- Avoid overburdening the justice system: The need for an ad-hoc tribunal to focus only on those who bear the greatest responsibility has been shown in other countries. A Special Criminal Court will require judicial processes that can be completed within a relatively short period of time and at a limited cost, conducted by judges who can work under severe pressure. The Special Criminal Court will also avoid the overburdening of Syria’s existing judicial system.
- Strengthen the rule of law: While the Special Criminal Court will be ad-hoc, to undertake the sole task of prosecuting top-level perpetrators, it will in no way be a tribunal of exception. The Special Criminal Court will operate entirely under Syrian law, appropriately revised in keeping with principles established in Chapter 1
Strategy 2. Conduct regular judicial and para-judicial processes.
Perpetrators whose crimes will not fall under the jurisdiction of the Special Criminal Court will fall under the jurisdiction of the existing Syrian judicial system (see
The Day After project also recommends integrating existing para-judicial processes into the transitional justice system, including traditional and informal local mechanisms. These may provide frameworks to address local legacies of violence and deal with low-level perpetrators. Combining elements of retributive and restorative justice, these mechanisms would help hold low-level perpetrators accountable for past abuses while potentially imposing non-criminal, community-oriented penalties, such as monetary compensation or community service. Local practices generally have a strong focus on rebuilding social relations in a community, but also include elements of retribution, acknowledgement of wrongdoing, compensation, forgiveness, and reconciliation. Last but not least, their integration into the transitional justice process would help to avoid overwhelming the formal judicial system. Specific attention should be paid to the revolutionary courts put in place under the leadership of local elders. Although they have generally handled civil matters, some have also dealt with criminal and human rights violations.
The NCTJ will assess the potential use of all those processes region by region, area by area. The diversity of existing para-judicial and reconciliation processes should be fully respected, under the common umbrella of the rule of law. Part of the assessment will aim at guaranteeing the full respect of international human rights norms.
To maximize the contribution of these diverse mechanisms, The Day After project recommends that they be monitored by the Local Rule of Law Committees (see Chapter 1), in close collaboration with the NCTJ. Seminars and training programs common to staff of the formal judicial system and these informal para-judicial mechanisms should also be organized by the NCTJ, in collaboration with the Ministry of Justice. This will facilitate the cooperation and complementary nature of the different mechanisms.
Consistent with existing Syrian law, ordinary citizens as well as the state will be able to refer cases to mediation and other customary para-judicial mechanisms. Conversely, any party will be able to access the formal justice system if a decision made through a para-judicial process is considered unacceptable.
Strategy 3. Provide conditional amnesty and selective lustration.
The Day After project recommends the application of a conditional amnesty. Those responsible for crimes and serious violations of international human rights and humanitarian law should be excluded from any amnesty. This should include in particular all cases of rape, torture, and killing. Explicit criteria will be developed by the Preparatory Committee, as it establishes criteria for the different categories of perpetrators.
The Day After project also recommends the careful exercise of selective lustration, rather than broad-brush processes of lustration such as those applied in Iraq following the invasion that overthrew the regime of Saddam Hussein.
B. Truth-Seeking, Reparation, Reconciliation: Non-Judicial Processes
Strategy 1. Establish a Commission of Inquiry.
The Day After project recommends the establishment of a Commission of Inquiry to seek shared truth about past abuses and patterns of violence. The commission should be empowered to collect statements from victims and witnesses, undertake research, establish and maintain an effective national documentation system, hold public hearings, engage Syrians in dialogue processes and consultations, and employ other appropriate mechanisms and procedures to establish and make available to the public facts concerning past violations of international and Syrian human rights and humanitarian law. The exact functionality, forms, and mandates of the Commission will be decided by the Preparatory Committee. The Commission of Inquiry should be under the direct supervision of the NCTJ.
The Day After project recommends that two sub-commissions be formed under the authority of the Commission of Inquiry, working in parallel and starting their work at the same time, with their own personnel and resources. One will be historical, addressing the period prior to the revolution; the other will address the period of the revolution itself. This will permit flexibility in exploring the different periods of violence, and help ensure that all Syrians feel they are heard.
The Day After project recommends that both sub-commissions focus on the following:
- Capturing the diversity of local histories in a dynamic and participatory fashion, supported by the presence of local transitional justice offices which will work in collaboration with local civil society networks and Rule of Law committees.
- Identifying the historical, structural, and institutional factors that allowed the development of a violent and repressive regime, as well as the socio-economic dimensions of that repression (including the violation of property rights).
- Contributing to a new forward-looking sense of citizenship among all Syrians, emerging from a shared history and a process of national reconciliation, so that all the different components of Syrian society can embrace a shared future.
- Capturing the history of the revolution and of previous episodes of resistance against the regime in addition to the history of repression and abuse, so that it may become part of a new common narrative, strengthening solidarity and the social capital developed in the course of the revolution.
- Publicly disseminating the results of this work, expressing the principles of transparency, participation, and accountability.
As part of the inquiry process, preparatory work should be undertaken for the future establishment of a special independent agency to manage and make public the files of the internal security services, on the basis of appropriate legislation such as the law passed by unified Germany following the collapse of East Germany.
Strategy 2. Provide reparation.
The Day After project endorses the principle that reparation is a right of Syrian victims of serious abuses of international human rights and humanitarian law.It also acknowledges the potential value of reparation as a means of reconciliation in a cultural context that has long accepted compensation for death or injury as a way to satisfy the claims of victims and/or their families.
Reparation may take many forms. Financial compensation is only one. A wide array of other mechanisms is available to acknowledge, apologize, and compensate for particular wrongdoings. Reparation programs should provide a combination of material and symbolic benefits to victims. These may include financial compensation (such as funds for widows and orphans), pensions, educational scholarships, and the provision of psycho-social support. Symbolic measures include official acknowledgement of and apology by the Head of State in the name of Syrian society for the wrongs committed against victims, as well as memorialization initiatives.
More specifically, reparation should include a combination of:
- Restitution. The goal of restitution is to reestablish the victim’s status quo ante. Measures of restitution can include the reestablishment of rights, such as liberty and citizenship, as well as the return of property (lands, businesses, etc.).
- Compensation. Compensation is usually thought to involve providing an amount of money deemed to be equivalent to every quantifiable harm, including economic, mental, and moral injury.
- Rehabilitation. This includes measures such as necessary medical and psychological care, along with legal and social support services.
- Satisfaction and guarantees of non-recurrence. These particularly broad categories include such dissimilar measures as the cessation of violations; verification of facts, official apologies, and judicial rulings seeking to reestablish the dignity and reputation of victims; full public disclosure of the truth; search for, identification, and presentation of the remains of dead and disappeared persons; the application of judicial and administrative sanctions for perpetrators; as well as measures of institutional reform, all with the aim of providing some promise that such atrocities will not recur.
From this perspective, the entire transitional justice agenda should be directed toward providing reparation. However, designing and implementing reparation programs in the context of a post-Assad Syria will face substantial challenges. The Day After project notes a number of concerns regarding reparation:
- Individual versus collective reparation. The reparation process could become divisive if it focuses solely on the harm suffered by individual victims, in a context in which Syrian society as a whole can be said to have experienced harm as a result of the repressive and arbitrary practices of the Assad regime. The Day After project therefore stresses the importance of collective and symbolic reparation such as public apologies, memorialization and commemoration of victims, and the creation of museums, among others. The Day After project recommends that community-oriented economic, service, and reconstruction programs be made available as potential modes of reparation in appropriate cases. Close collaboration with a future Ministry of Economy (as well as the Ministry of Education for educational scholarships) will be essential. Symbolic measures at the community level should also be available as options, including the use of public apologies, commemorations, and local museums, among others.
- Hierarchy of victims. Certain categories of victims may seek privileged standing in a reparation process, based on the perceived severity of the harm they have suffered. In any context, the technical and political process of defining victimhood is highly contentious and potentially destabilizing; this is certainly true for Syria. In other transitional justice settings, challenging questions have included deciding whom to compensate, how much compensation to award, what kinds of harms to cover, how to quantify or compare harm done, and how to distribute compensation. In many cases, reparation policies have caused feelings of frustration among victims and their relatives. The Day After project recommends that the criteria used to distinguish between different categories of crimes also be applied in making these determinations: all those whose cases will have been subject to prosecution will have the right to individual compensation, based on a court decision. Cases subject to mediation or para-judicial processes will follow the decisions made by those mechanisms.
- Insufficient resources. It will be difficult to secure the financial resources needed to provide monetary compensation to the large number of victims of Syrian governments extending back, potentially, over a period of several decades. The Day After project recommends the creation of a special state trust fund to finance the reparation program. Efforts should be undertaken early on to secure funds from international donors (including for the financing of community programs). A special national tax could be imposed to finance this long-term effort essential to the reconciliation of Syrian society.
Strategy 3. Develop history education.
The Day After project recommends that the NCTJ establish an office to develop history education and awareness, in coordination with the Ministry of Education. History education, including the development of new curricula and textbooks, is an important dimension of any transitional justice process. History education can transmit ideas of citizenship; promote tolerance and inclusivity; teach nonviolent means of conflict resolution; and help students articulate, accommodate, and accept differences between and within groups (see Selected Resources). History education occupies a singular place in the reconciliation process because it is so extensive, reaching all citizens, extending into local institutions such as schools, and addressing the youngest generation.
Specifically, the history education team should:
- Work in close collaboration with the teams in charge of supervising judicial and para-judicial processes and the commissions of inquiry to ensure that their findings are integrated into history textbooks and teaching materials.
- Support an initial revision of textbooks and curricula (pending the production of additional historical material) to see that they promote a greater mutual understanding of cultural and identity difference within a broader framework of tolerance, and support the development of skills, values, norms, attitudes, and behaviors that encourage respect for human dignity and diversity.
- Organize, in collaboration with the Ministry of Education, seminars with teachers to ensure, beyond the curricular reform, pedagogical reforms that reflect the values of a new Syrian society.
- Facilitate and support the organization of debates on transitional justice issues in the national education system.
- Facilitate the participation of civil society in discussions about history and history education.
- Facilitate contact with international networks and as well as international exchanges on issues of educational reform.
Strategy 4. Develop memorialization.
The Day After project recommends that the NCTJ establish an office to develop and support memorialization efforts to preserve and honor the memory of events and people. These might include memorials, sites of memory, museums, commemorative days, and celebrations, as well as the renaming of public facilities, streets, and places in the names of victims. Memorialization plays a role in reconciliation by officially acknowledging the experiences of victims while accounting for a variety of perspectives. Memorialization can also help prevent a recurrence of abuses by serving as a permanent reminder of the past. Further, as noted above, memorialization is also a form of symbolic reparation. Thus, memorialization is an important part of a transitional justice process.
Some key principles should guide the organization of this work:
- Attention should be paid to the full range of initiatives, whether national or local, formal or grass-roots. Memorials that contribute to national reconciliation may range from national memorials and formal museums and monuments that evolve over years, to community memorials and ephemeral collections of condolence notes, flowers, and pictures of victims at sites where they died or vanished.
- In all cases, close attention should be paid to the processes by which memorialization is undertaken, so that different interests, points of view, and perspectives are fully respected and considered. Public awareness and education programs will be crucial in helping to create meaning, ownership, and recognition.
- Different types of artistic endeavors, such as theatre and oral histories, dance and music, painting, photographic and artistic exhibitions, and radio and television productions should be encouraged and supported to contribute to the remembrance of the past, the truthful rewriting of Syrian history, and critical engagement with the past among Syrian citizens.
Strategy 5. Provide psycho-social support.
The individual and collective consequences of trauma need to be addressed. Experiences in other settings have shown a connection between the experience of trauma and the capacity to fully participate in a transition. It has also highlighted the collective impact of trauma. Therefore, psycho-social support should be considered an integral part of the social repair of Syrian society.
The Day After project recommends that a transitional government provide both adequate personnel and means to support psycho-social support across the country, with a diversity of services accessible to the Syrian people. We also recommend that the NCTJ establish an office responsible for psycho-social support services, in coordination with the Ministry of Health.
Particular attention should be given to avoiding the re-traumatization that can occur with the use of some of the mechanisms of transitional justice, including in the course of public recounting of abusive acts by perpetrators or victims. It is also essential to prevent a cycle of trauma for people who have been at the forefront of the opposition’s struggle. These individuals may experience acute forms of post-traumatic stress disorder, with the risk that they are no longer available just as society needs their participation and leadership.
Strategy 6. Engage in national dialogue and outreach.
In keeping with international norms and experience, The Day After project supports the development of mechanisms and procedures to ensure broad public participation in the identification of needs and priorities, and in shaping the design of a transitional justice process, region by region, locality by locality. Different channels and mechanisms—including the media, the educational system, and various modes of artistic and cultural expression such as theatre, music, and visual arts—will enable the active involvement of all components of Syrian society. The Day After project recommends that a program to support such activities be established promptly, with a dedicated team and budget for its implementation.
2.5. Selected Resources
Bush, Kenneth D., and Diane Saltarelli. The Two Faces of Ethnic Conflict: Towards a Peacebuilding Education for Children. Florence, Italy: UNICEF Innocenti Research Center, 2000.
Cole, Elizabeth A., ed.. Teaching the Violent Past: History Education and Reconciliation. Lanham, MD: 2007.
Hein, Laura, and Mark Selden. Censoring History. Armonk, NY: Sharpe, 2000.
Syria Justice and Accountability Centre http://syriaaccountability.org/ [July 2012].
United Nations General Assembly. “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law” (December 2005). Available at: http://www2.ohchr.org/english/law/remedy.htm [July 2012].
United Nations, Guidance Note of the Secretary-General. United Nations Approach to Transitional Justice. March 2010. Available at: http://www.unrol.org/files/TJ_Guidance_Note_March_2010FINAL.pdf [July 2012].
United Nations Human Rights Council. Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, UN General Assembly, Human Rights Council, Nineteenth Session (February 22, 2012). Available at: http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session19/A-HRC-19-69.pdf [July 2012].
United Nations Security Council. The Rule of Law and Transitional in Conflict and Post-Conflict Societies (August 2004). Available at: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N04/395/29/PDF/N0439529.pdf?OpenElement [July 2012].