Towards Transitional Justice in Syria
Anwar al-Bunni – Yousif Faker al Deen
Field research team
Hawazen Khaddaj – Rawiya al-Shammar – Mona Dawa – Issam al-Yassin – Yusra Ahmad – Aram al-Bunni
The historical roots of what is now known as transitional justice lie in the gradual development of international law in the field of protecting human beings from gross violations committed by states, political authorities, and armed groups during wars, armed conflicts, and periods of authoritarian rule. This trajectory was shaped through a long process of legal and political accumulation associated with strengthening the status of the individual in international law and expanding the scope of legal responsibility for crimes that infringe fundamental human rights.
The Second World War constituted a pivotal milestone in this development. The scale of the crimes committed during it prompted the international community to seek legal foundations for holding those responsible to account. This was embodied in the “Nuremberg Trials” and the “Tokyo Trials.” These trials contributed to establishing principles that later became pillars of contemporary international law, foremost among them individual criminal responsibility for international crimes and the inadmissibility of invoking official capacity or orders issued by superior authorities as a shield against accountability.
This coincided with the establishment of the United Nations and the adoption of an integrated international system for the protection of human rights, including the Universal Declaration of Human Rights, the two International Covenants, specialized international conventions, and international humanitarian law, represented by the four Geneva Conventions and the three Protocols annexed to them, which were established to protect civilians during international or non-international armed conflicts. These developments strengthened the legal recognition of the rights of individuals and groups, and entrenched states’ obligations to protect those rights, investigate gross violations, and provide victims with effective remedies.
In subsequent decades, many countries confronted a heavy legacy of gross violations associated with authoritarian regimes or armed conflicts. These included the political transformations experienced in Southern Europe, Latin America, and Eastern Europe. A need therefore emerged to address the legacy of the past within a framework that safeguards rights and lays the foundations for the rule of law, moving toward a state governed by law and rights. These experiences demonstrated that gross violations are often not merely isolated individual acts committed by certain persons, but rather the product of political, legal, security, and institutional systems that enable them, protect their perpetrators, or fail to prevent them and hold those responsible accountable. It was therefore insufficient merely to hold a number of perpetrators accountable; instead, a need emerged for a more comprehensive approach that also addresses the institutions and structures that contributed to producing and perpetuating the violations. Hence arose the need for the development of international criminal law, the identification and criminalization of war crimes, and the definition and criminalization of crimes against humanity and the crime of genocide.
Through these practical experiences, a multidisciplinary field of knowledge gradually took shape that later became known as “transitional justice.” From the outset, it emerged as a framework bringing together mechanisms and practices grounded in international human rights law, international humanitarian law, and international criminal law, alongside political and social experience relating to the management of periods of transition, with the aim of addressing the effects of gross violations occurring during periods of political transformation or emergence from conflict.
By the end of the twentieth century, the development of international criminal justice, the establishment of ad hoc international criminal tribunals, and, subsequently, the International Criminal Court contributed to the strengthening of the trend toward entrenching accountability as an international legal principle. At the same time, international standards concerning victims’ rights to truth, justice, reparation, and guarantees of non-recurrence developed, and these rights became the fundamental reference point for the various policies and measures associated with transitional justice.
Accordingly, transitional justice has historically been understood as the product of a long evolution in international law and of the comparative experiences of societies emerging from civil conflicts or authoritarian regimes, and as the embodiment of a set of obligations and rights developed within the international human rights system. These trajectories have led to the development of a range of mechanisms intended to address the legacy of gross violations and rebuild civil peace, including truth, accountability, reparation, and legal and institutional reform to guarantee non-recurrence. These are implemented through approaches adapted to the historical and political context of each experience, while adhering to these fundamental pillars.
Comparative experience shows that the success of transitional justice is measured by its capacity to address the underlying causes that made violations possible in the first place. Societies that limit themselves to addressing the consequences without addressing the structures that produced them remain vulnerable to the risk of reproducing the same violations in new forms and under different names. This is reflected in recent literature, which has emphasized the necessity and importance of transitional justice as a societal, legal, and political process aimed at dismantling the structures that produced authoritarianism and violations, and at rebuilding public institutions on foundations that respect human rights and the rule of law.[1]
This understanding is particularly significant in the Syrian context. The Syrian conflict followed decades of authoritarian rule and systematic violations affecting various spheres of public life. During the conflict, human rights violations became intertwined with war crimes and crimes against humanity, including arbitrary detention, enforced disappearance, and large-scale forced displacement, in a context marked by the lack of independence of public institutions and their subordination to the executive authority and the security agencies. It was also marked by the absence of a national identity or sense of national belonging due to the lack of security and protection, which led to deep fractures within Syrian society and caused a broad segment of Syrians to retreat into sectarian, tribal, religious, and/or ethnic enclaves in search of security or protection. Accordingly, a significant aspect of the violations witnessed in Syria resulted from institutional structures, practices, and policies that had accumulated over decades. Transitional justice in Syria therefore also addresses how victims and their rights are to be recognized; how the truth of what occurred is to be uncovered; how the fate of missing persons and victims of enforced disappearance is to be ascertained; how individual and collective harm is to be repaired; and how public institutions and the legal, political, and administrative structures that contributed to producing and perpetuating violations are to be reformed. This must be done in a manner that guarantees that those violations will not be reproduced in the future and that enables the rebuilding of civil peace, national identity, and national belonging.
In response to the Syrian context, this paper offers a participatory, rights-based reading that employs a methodology combining legal analysis with a participatory approach. It begins with international legal texts, human rights literature, and comparative experiences as a normative reference for identifying the rights, duties, and mechanisms associated with transitional justice. These concepts and mechanisms are then tested against reality through the experiences recounted by relevant participants and stakeholders in field interviews conducted by the Center’s team in various regions of Syria.
This analysis is based on one hundred and fifty in-depth interviews. Participants included women and men in an approximately equal gender distribution, and ranged in age from their twenties to their seventies, with notable representation of young people. This provided relatively diverse representation across age and social groups and helped identify the diversity of concerns, priorities, and perceptions associated with transitional justice.
To ensure that people’s voices are present in their own words, and to allow readers to assess the extent to which we have adhered to the methodology described above, this paper includes direct quotations from testimonies as stated by those who gave them. We sought, as far as possible, to select quotations from interviews whose participants agreed to the disclosure of their names. Unfortunately, they constitute a minority in a country where many people continue to live under the weight of fear—a fear whose elimination is an essential element of a transitional justice process that has not yet effectively begun in Syria. For this reason, the paper also includes a number of quotations attributed to their speakers without disclosing their names.
The paper also draws on the accumulated experience of legal and research work with victims, human rights and legal work to pursue the perpetrators of war crimes, and the personal experiences of its authors as both victims of this conflict and individuals working on it in legal, human rights, and/or research capacities. The use of these experiences is not intended to substitute personal experience for legal analysis, but rather to contribute to testing legal and human rights hypotheses in light of field realities and lived experience.
By combining legal reference points, comparative experience, a participatory methodology, and legal and practical expertise, the paper proceeds from a fundamental premise: protecting victims’ rights, achieving accountability, and uncovering the truth remain core objectives of transitional justice, but they cannot be fully realized unless accompanied by the reform of public institutions on the foundations of adherence to law and democracy; the treatment of the factors that contributed to producing violations; the mitigation of their effects; and the removal of the conditions that permitted them to occur. The ultimate purpose of this process is therefore not merely to address the legacy of the past, but to contribute to building a legal and institutional order that prevents the reproduction of authoritarianism and violations in the future.