New Syria and Transitional Judiciary Issue
Perhaps the transitional judiciary issue is the most important issue, and one of the first issues which has been worked on, after the radical changes, in the societies, that accompanied with fighting, victims and destruction.
Closing the previous stage and bringing back the domestic peace and unifying the society and the internal reconciliation, request first to pacification the people by re grievances and restoration the rights to their owners and compensation the affected and disclosure the missing’ fate and demonstrating the facts of what happens and determination the responsibilities and punishing the violators and crimes by the legal and judicial institution, and this is a necessary condition and a necessary duty, because the revolutionist soul and his desire to get revenge and trapping the possible chaos, unless the affected ones feel that their rights will not lost and the wrongdoer will not escape from the punishment, and the man can not feed his affiliation with the society and contribute in its building unless he is assured that he is going to get justice.
And the transitional judiciary concept is an exceptional concept of justice, differs than the normal justice concept in goals, grammars, norms, bodies and mechanisms, because the exceptional conditions impose an exceptional treatment, and the rules and mechanisms of normal justice do not become straight or true with it.
so the aim of the transitional judiciary is not just to condemn the criminals and to apply the law, but essentially it is to restore the domestic peace and to achieve the reconciliation and to erase the effects of a previous stage, that encourage on continuing the destruction if it has not passed.
For example, dropping the personal right or not prosecution before the affected people for a lot of crimes that have been perpetrated, may lead to drop the all prosecution, which differentiates from the normal law, with reserving their rights by compensation, from the state that will pay through the transitional judiciary institution itself. Hence there is no rule for the public prosecution institution as a defender of the society but the issues that are related to whole society. The goal of the transitional judiciary is not limited to judging the crimes committers, and assuring the victims that their rights will not be thrown away. But it aims to reassure who haven’t perpetrated any crimes that they will not be judged or revenged for crimes they hadn’t committed. It will guarantee that the committers themselves will never come under revenge or retaliation reaction, and that just the judiciary and judging institutions will judge them by proved clues.
The most distinguish in the rules and norms of the transitional judiciary is that it relies on the international laws and rules, bearing in mind that many of the crimes perpetrated in the conditions of the exceptional civil conflict are not included or covered by the local laws, because they are branded by this exclusivity and it need an international reference produced by similar event and conditions.
The other distinguish/different thing that the normal judiciary relies on the normal judging institutions and limited of judges who manage it. But the transitional judiciary branches to many bodies with different composition than the judicial, contain some society and associations representatives, whereby they contribute to achieving justice with the courts and judges. The idea of the transitional judiciary started after the Second War World by judging the war criminals in Nuremberg then developed in Sierra Leone and Rwanda. Even in Lebanon there was a partial application of it through the Ministry of Migrants and the Fund of South, but judging the committers was the task of the military and normal judgment.
The work of the transitional judiciary can be divided into five classes:
First: A fund of compensation for the physical and material damages of the affected civilians by losing one or more from their relatives or lovers. It will also compensate for the disabled and injured ones, and for whose houses and properties have destroyed totally or partially. This process is run by specialized committees, which will make a field survey in all terrains and list of the names of the victims and missing, and estimate the value of the material damages, determine the number of the injured ones, secure them the continuous treatment, start working fast to secure shelters for the refugees and migrants who have lost their houses, give urgent aids for whose houses and livelihoods has damaged partially to repair them.
Second: Establishing special courts independent from the normal jurisdiction. A central court in Damascus and sub-courts in all provinces, to deal with the crimes perpetrated during the events, to prosecute the criminals and arrest them and confiscate the money and the looted things. The judges of these courts must be from the well- known ones by honesty, independence and neutrality.
Third: Founding committees for the domestic peace and reconciliation including cultural, scientific, legal, regional and social persons, who are respectful in order to do to the areas that have experimented regional, confessional or national disputes. They should calm the souls, empower the reconciliation, revive the trust and remove the doubts. They should also find out the missing, detainees and kidnapped ones to return them to their families. They should try to make up committees and associations for psychological support for the violation victims.
Forth: Forming a media office aims to make a comprehensive campaign to explain the concept of the transitional judiciary, its means, bodies and role. Using all the audio, visual and text media, therefore, it should be managed by specialized social experts. With the help of committees from volunteering youth, which is being formed with cooperation with civil associations, they should be trained to deliver the concept of the transitional judiciary to whole civilians and to help them to interact with its bodies, to trust in it, to submit their request to them and following them..
Fifth: Founding a immortalization office. Its task is to document the events that happened, explain and historicize them, including immortalization the names of the victims, by making memorial sculptures, or naming schools, squares and places by their names. And to include these information in the history books of the schools, so present events become a lesson, which everyone can benefit from, and the sacrifices that have been offered will not get lost.
We can talk here about the amnesty issue, and amnesty rule in reinforcing the reconciliation, not to ignore the justice. Going this way is necessary, but it must not be general, that the wounds will not be bandaged before they cured. Otherwise the anger will be ready to explode when the conditions are ready. This manner can be used precisely in special cases, when the reconciliations have happened, to close files that have been solved domestically, not as a way of forgetting what happened.
The transitional judiciary and preparing its institutions and bodies are the first step in the coming stage. We must be ready and prepared. We should start to make initiatives to prepare suitable basis for it, especially through urgent campaign to spread its concept among people. Thus it will be the first step to rebuild the new Syria.
Lawyer Anwar AlBunni
Head of the Syrian Center for Legal Studies and Researches.