Beyond Containment: Working for Accountability in Syria

The evidence of systematic human rights violations in Syria's brutal civil war is mounting daily. Although the newly adopted UN Security Council resolution on Syria can be seen as a significant step forward in addressing one aspect of unacceptable suffering inflicted upon Syrians -- the use of chemical weapons against civilians -- we can by no means be satisfied that it provides for a framework to ensure accountability for massive crimes committed to date. Containment is not enough: The international community cannot justify accepting the status quo in which scores of civilians are dying daily, nor will Syrians settle for impunity for these horrendous crimes.

Due to the political gridlock at the UN Security Council, the referral of the Syria situation to the International Criminal Court is highly unlikely. However, this does not mean that those who support accountability should not be actively thinking about ways to address the massive crimes being committed in Syria. With this in mind, in our latest briefing on Syria, the International Center for Transitional Justice (ICTJ) put forward some ideas on making accountability more likely to take root once the conflict ends.

The task at hand is daunting -- the crimes that are currently being committed follow decades of repression and state-sponsored violence that further dim the prospects of an easy or stable transition. At some point, the authorities of a new Syria -- whatever configuration that might take -- and members of Syrian civil society will have to deal with this history. Syrian and international commentators have begun proposing visions for a new Syria, including ways in which transitional justice, in particular, may support a different path for the country, one committed to human rights and the rule of law.

The political minimum requirement for a credible approach to accountability and human rights has to be that the government of the day is committed to respecting human rights and is not actively violating them. From a social perspective there is little value in talking about accountability for past crimes if repression and political violence persist and existence from day to day is in the balance.

Once the basic conditions on the ground can support an accountability process, the first important challenge to recognize is the scale of destruction of both infrastructure and the social and moral fabric of the country. In this context, creating unrealistic expectations about the pace of accountability measures will only exacerbate disappointment.

Many will likely argue that there is no need to wait to act on the already significant body of evidence of systematic human rights violations, and calls for immediate prosecutions, even if there is insufficient information to justify some convictions. But proceeding rashly would be a serious mistake, in part because current efforts to document violations are all associated with different factions and support networks, and cannot be divorced easily from their origin. While this information may be of immense value, it will have to go through a process of analysis by objective and credible parties with national legitimacy.

Rather than rushing into a particular set of procedures or mechanisms, what is likely to be of more value in Syria is a comprehensive process of planned assessment and consultation to provide recommendations for specific measures.

It is highly likely that at some point a UN-integrated mission will be placed in Syria, either to manage the conflict or after the war ends. That mission's human rights section will be responsible for the support of transitional justice. That section should first support the creation of a national human rights body, as happened, for example, in Afghanistan with the creation of the Afghan Independent Human Right Commission. The commission was one of the success stories in the early years of the post-Taliban era. At the same time, Afghanistan shows that if the international community is serious about accountability, it must give political support to the technical work. In Afghanistan the issue was left too late and was continually deprioritized as warlords continued to gain power.

The initial work of a Syrian independent human rights commission on accountability should be to devise a program of extensive mapping of violations as part of a broader process of consultation and assessment, rather than immediately establishing a truth commission or a commission of inquiry. Recent experience shows poorly planned commissions of inquiry can increase public fatigue, skepticism, and confusion.

The commission should have adequate staff and resources from the beginning to allow it to carry out its mission, including a headquarters in Damascus and regional offices. Individuals, academics, civil society organizations, victims' groups, and political and religious actors should all be consulted.

A meaningful process would rely significantly on well-planned outreach. An authoritative and credible report would have to be written -- a process that will almost certainly take several months. If the initial process does not allow the time necessary to encourage trust and confidence, the rest will be built on sand.

Accountability processes should engender national ownership and incremental credibility. They should be appropriate to the political and social context, avoid preconceived models, and be based on a well-founded understanding of people's sense of justice and demands for accountability.

Perhaps the greatest risk is that political actors will feel that opportunities and time are being wasted. Nonetheless, experience in other transitions suggests that building a credible process should take precedence over pushing for quick results.

Examples abound where the rush for results has been rootless and unsustainable. What matters is not speed itself but which priorities are chosen for rapid completion. In Syria, the most important thing will be conveying a message of credible national ownership of a legitimate process and moving to make that happen in a concrete way.

Some may frame the debate around a "choice" between criminal justice and the other measures of transitional justice. It is hard to think of a more damaging misconception. Criminal justice is a central part of transitional justice, not a separate concept.

Truth commissions, reparations, and reform measures should not, however, be understood as alternatives to or replacements for criminal justice measures. Transitional justice measures are most effective at restoring civic trust and preventing future violence when implemented together. Experience from transitions around the world shows that the process by which those measures are developed and implemented is likely to be as important for restoring trust as the results of the processes themselves.

Expectations for quick results should be tempered from the outset, but a credible and consistent demonstration of political will should be publicly illustrated early on.

When this guidance is ignored, opportunities can be squandered or, worse, misused to perpetuate impunity. In Iraq, for example, poorly planned interventions on reform and accountability, particularly around de-Baathification, proved disastrous. Tunisia, perhaps the most stable of the region's recent transitions, nonetheless shows clearly how difficult it is to make swift progress. Even a relatively successful model of criminal accountability, the national Court of Bosnia and Herzegovina, was delayed by the need to conduct assessments and build broad political will. Credible, nationally owned processes that are perceived as fair require planning, discussion, legislation, and integrated efforts for effective implementation.

Various national and international interests have a stake in the outcome of the current conflict in Syria, and some may have considerable interest in shaping transitional justice agendas. There will be demands for immediate progress and complaints that things are going too slowly, or that the opportunity for change is being missed and that vested interests are being entrenched. The challenge is how to meet these often legitimate concerns effectively.

ICTJ's global experience shows that if the process of adopting measures is anchored in the society itself, the chances of effectively addressing abuses of the past are much greater and, thus, accountability and restored trust much more likely to be the result.

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