Syria is a society in the midst of ongoing conflict with no clear political prospect of an end in sight. Heinous crimes have been committed and continue to be committed by the different warring parties throughout the country. Many attempts have been made to find a political solution to the vicious war, but all have failed. Nevertheless, the discourse on transitional justice has been widespread throughout the war. Calls for criminal accountability have been heard loudly from civil societies, states, NGOs, and international organizations, while initiatives to document and narrate have been established and developed.
Notably, these calls arose prior to the termination of war, the end of hostilities, or any kind of reconciliation or political settlement.[1] Accordingly, the Syrian war has in fact opened the door to important discussions surrounding transitional justice and the ways in which this concept is defined and applied, pushing traditional paradigms of transitional justice to evolve and to become more applicable to present day challenges. The new paradigm suggests that transitional justice is applicable to situations where societies are still in the midst of conflict and that criminal accountability (or criminal justice), as one of the mechanisms of transitional justice, is possible even before the termination of war, and through the application of creative tools like universal jurisdiction. Policymakers that are invested in bringing about peace, accountability, justice, and the rule of law must recognize the need for justice in the midst of conflict; this can be achieved by taking many steps, including but not limited to providing support civil society organizations that collect evidence, creating capacity building programs that train lawyers to pursue justice, and passing legislation to guarantee greater access to justice.
What is transitional justice?
Transitional justice has been defined as “the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation.” Transitional justice deals with the repercussions of large-scale abuses of human rights violations through a number of mechanisms, both judicial and non-judicial. These include but are not limited to: criminal prosecution (through national, international, or hybrid tribunals); truth commissions; and reparations and institutional reform.[2] While all transitional justice mechanisms are important, as they represent the pillars upon which justice after conflict stands, one of the most iconic and contested mechanisms is criminal accountability.[3] Simply put, criminal accountability crystalizes justice; it sends a message of acknowledgment to the victim and a threat of punishment to perpetrators. It can also be used as a political tool to put pressure on the leaders of state and non-state leaders.
The significance of the Syria case
While the concept is undertheorized,[4] the traditional paradigm of transitional justice is described by some as a means through which non-democratic states can shift their political systems to democratic ones.[5] Over the years, transitional justice has shifted;[6] the Syria context played an instrumental role in pushing these traditional paradigms of transitional justice a step ahead.
In August 2011, the United Nations Human Rights Council established the Independent International Commission of Inquiry on the Syrian Arab Republic to investigate human rights violations. This was followed by the establishment of the International, Impartial and Independent Mechanism (IIIM) in 2016, which aims to “[a]ssist in the investigation and prosecution of those responsible for the most serious crimes.” Syrian lawyers and civil society organizations have also taken on initiatives to participate in the documentation and investigation efforts. Prominent scholars and international prosecutors, such as Michael Scharf, M. Cherif Bassiouni, William Schabas and others issued a draft titled: “The Chautauqua Blueprint for a Statute for a Syrian Extraordinary Tribunal to Prosecute Atrocity Crimes.” These efforts are a few examples of how the mechanisms of transitional justice have been used during the ongoing war in Syria, despite the fact that the war has not come to an end and that there is no vision for a political settlement.
Endeavors for accountability have not been limited to documentation and investigation efforts however. Initially, Syrians were thirsty for justice, but were at the same time hopeless that any legal or political mechanism would bring justice for violations of human rights. The International Criminal Court (ICC) has no jurisdiction over crimes committed in Syria, and it is unlikely that the United Nations Security Council would refer any perpetrators to the ICC or establish an international tribunal for Syria. At the same time, the Syrian domestic justice system lacks impartiality and independence. Due to these obstacles, Syrian lawyers, civil society, and victims gave renewed life to universal jurisdiction: an established international legal principle through which they would be able to hold perpetrators accountable in domestic courts outside of Syria.
As defined in the literature, universal jurisdiction is: “criminal jurisdiction based solely on the nature of the crime, without regard to where the crime was committed, the nationality of the alleged or convicted perpetrator, the nationality of the victim, or any other connection to the state exercising such jurisdiction.”[7] Crimes that can be subject to universal jurisdiction are: piracy, slavery, war crimes and crimes against peace, crimes against humanity, genocide, and torture. Created to address the reality that some crimes are of severe magnitude and yet cannot always be prosecuted in the countries in which they occurred due to certain political obstacles, universal jurisdiction enables courts in certain states to open, investigate, and prosecute these cases. In fact, today, there are currently a number of cases under investigation at different state courts across Europe, against almost every side in the Syrian conflict, from the government to rebel groups and ISIS. Collectively, these cases demonstrate that justice can be accessed even during ongoing conflict and via creative means. Using this tool and others like it—there are also a number of cases being brought across Europe via the concept of extraterritorial jurisdiction—there has been an evolution in the concept of transitional justice that has managed to accommodate demands of justice from Syrians, close the impunity gap, and bring at least some semblance justice to victims.
By implementing transitional justice before the termination of the war, the Syrian experience has helped to (1) evolve the traditional paradigms of transitional justice to include cases in which transitions haven’t yet necessarily begun, (2) make transitional justice as a concept more applicable to present day challenges in the absence of an international community that has not proactively taken steps to stop the ongoing bloodshed, and (3) recognize an additional tool that can contribute to transitional justice goals—universal jurisdiction—to prosecute political leaders and other high-level government officials and non-state actors.
The concept of transitional justice is neither limited to cases of societies that are on the cusp of democracy or stability, nor to cases in which peace is on the doorstep. The Syrian context has pushed the traditional paradigms of transitional justice further to cover situations in which transitions have not even begun to take place. The Syrian case has generated a new approach to how the concept of transitional justice can be applicable to face today’s political challenges.
[1] For example, the Russian ambassador, six years after beginning of the conflict declared, in front of the UNSC, that “bringing a peace is almost an impossible task.” See “U.S. slams Russian ‘barbarism’ in Syria, Moscow says peace almost impossible,” Reuters (25 September 2016), online: <http://www.reuters.com/article/us-mideast-crisis-syria-un-us-idUSKCN11V0NN>.
[2] Rachel Kerr & Eirin Mobekk, Peace and Justice: Seeking Accountability After War (Cambridge: Policy Press, 2007). Diane F. Orentlicher, “Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime” (1991) 100:8: Yale LJ 2539. M. Cherif Bassiouni, “Searching for Peace and Achieving Justice: The Need for Accountability” (1996) 59:4 Law & Contemp Probs 9. Kathryn Sikkink, The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics (NY and London: WW Norton & Company, 2011). Martha Minow, Between Vengeance and Forgiveness: Facing History After Genocide and Mass Violence (Boston: Beacon Press, 1998). International Center for Transitional Justice, “Transitional Justice and Development” (2009), online: International Center for Transitional Justice <https://www.ictj.org/sites/default/files/ICTJ-Development-TJandDevelopment-Briefing-2009-English.pdf>.
[3] See, Dustin N. Sharp, “Interrogating the Peripheries: The Preoccupations of Fourth Generation Transitional Justice” (2013) 26:1 Harv Hum Rts J 153.
[4] Pablo de Greiff, “Theorizing Transitional Justice” in Melissa S. Williams, Rosemary Nagy & Jon Elster, eds., NOMOS LI LI: TRANSITIONAL JUSTICE. 31 (New York: NYU Press, 2012) at 32.
[5] See Neil J. Kritz, ed., Transitional Justice: How Emerging Democracies Reckons with Former Regimes: Country Studies (Washington, DC: US Institute of Peace Press, 1995).
[6] The transitional justice paradigm has shifted further to include cases in which the state under question is witnessing a case of “stability” rather than “peace and democracy.” Later on, it advanced to also include situations in which the state is still in a conflict situation, but practices working toward societal stability are taking place and almost achieved.
[7] Macedo, Stephen, Mary Robinson, Princeton University. Program in Law and Public Affairs, and Princeton Project on Universal Jurisdiction. The Princeton Principles On Universal Jurisdiction. Program in Law and Public Affairs, Princeton University, 2001, at 28. Also see, Stephen Macedo, ed. Universal jurisdiction: national courts and the prosecution of serious crimes under international law. (University of Pennsylvania Press, 2006) at 21.