Full spectrum transitional justice
Uniting truth-seeking, reconciliation and accountability

The goal of transitional justice is to enable war-torn countries to transition from violent conflict to peace. At the Track I level, the concept failed to gain traction because Bashar Assad rejected what would be efforts that undermine the claim to omnipotence that lies at the heart of his regime. For years, the Syrian opposition insisted on the inclusion of transitional justice in the UN-mediated political process, but international players, including the UN, hesitated, fearing that it might scare the regime away from the negotiation table. The exhausting debate over Assad’s future that contributed to the impasses in Geneva in 2014-17 showcased this struggle, with the opposition insisting on accountability as a major element of a transition clearly outlined in the Geneva Communiqué and confirmed by UNSCR 2254. Given Assad’s responsibility for heinous atrocities, avoiding the “Assad question” was absurd. The opposition was right then to insist on an end of impunity for systematic war crimes and crimes against humanity, a call that echoes louder now that President Putin is being sought by the International Criminal Court on the same charges. Nevertheless, those who favoured putting transitional justice on the back burner prevailed. Assad, aware that any political transition would be the beginning of his downfall, remained defiant. Removing the transitional justice card from the negotiating table did not help advance the political process after all. 

‘Creative’ accountability and its risks 
Having sidelined transitional justice at the Track I level, the West then outsourced it to Syrian civil society organisations and specialised INGOs. In many ways, their twelve-year documentation, investigation, and advocacy campaigns implemented under the transitional justice label represent a Syrian (and Western) success story. Innovative approaches like leveraging universal jurisdiction to pursue Syrian perpetrators made headlines – the latest example being the French arrest warrant for Assad that was issued in November and that arose from France's Court of Cassation ruling six months before upholding the country’s right to try foreign suspects under the universal jurisdiction principle. The message is clear: A return to normality is off the table. Assad may not be facing trial in a Paris court anytime soon, but the warrant enshrines in law the ostracisation of Assad at the European – and therefore international – levels. The forensic establishment of “the truth” in courts of law is a pillar of transitional justice, and the process of establishing facts and advocating for accountability is a goal in itself, irrespective of whether any war criminal ends up in the dock. 

The problem is that this ‘creative’ transitional justice approach offers the West a convenient and relatively low-risk way of publicly engaging with the Syrian conflict without having to invest in its resolution. The United States, for instance, emphasises accountability in its public positioning on Syria while shying away from making an investment to advance the political process that would make possible Syrian-owned accountability. That investment might have come in the shape of an aircraft carrier off the coast of Latakia; but what actually happened was years of gradual regional normalisation with Assad amid talk of accountability from Western capitals. Granted, the creative approach to accountability makes Assad’s rehabilitation more tricky, and the process has its own intrinsic value; but in the long run continued impunity will discredit the transitional justice concept as a whole. Time is the enemy, because the regime is implementing its own Orwellian version of transitional justice where accountability is entirely ignored, truth-seeking reinforces the loyalist victimhood narrative, and reconciliation is an act of pardon by the Dear Leader. The longer this model is allowed to persist and gain legitimacy – including at the international level where Russia and China are advocates – the smaller will be the room for real transitional justice .   

This is why those Syrian civil society organisations and specialised INGOs and their backers should take further steps to construct a transitional justice model that counters the regime’s efforts. A collaborative effort by governments and implementers should recognise the roles of the political opposition, civil society organisations, and victim groups in a legitimate process, and not dismiss them as irrelevant (“like Cuban exiles”) or too partisan, given their claims to be operating in a supposedly “neutral” space. A new approach to transitional justice should aim to identify, address, and transform cultural and institutional practices shaped under decades of totalitarian dictatorship that normalises violence and impunity in society at large. As the late Raed Fares once remarked, Syria’s transformation to peace entails dismantling the “little Assad“ that the regime has instilled in every Syrian. These words cannot be overstated for any far-reaching transitional justice effort.

Tearing down the wall
To conceptualise and implement a meaningful alternative to the regime’s efforts, it’s time to go beyond the narrow focus on accountability – however ‘innovative’ – and embrace the full spectrum of transitional justice. The South African model’s three pillars – truth-seeking, reconciliation, accountability – are a useful guide for Syria. Truth-seeking means acknowledging the truth of what happened and establishing inclusive narratives. Reconciliation is  the process of societies rebuilding relationships that allow peaceful co-existence. Accountability, often intertwined with truth-seeking, involves the prosecution of perpetrators through judicial mechanisms. The aim is a society where facts are recognised and can be critically reflected upon, thus allowing the rule of law to have meaning. For Syria, transitional justice based on these three pillars requires a common understanding of each pillar’s meaning in the specific local context. The Assad regime has been busy creating obstacles, such as  hijacking the term “reconciliation” and turning it into a euphemism for military surrender and social submission. Without genuine reconciliation, however, accountability risks becoming a tool for revenge, and truth-seeking merely a way to target enemies. The three pillars of transitional justice are interdependent: lack of movement on one leads to inertia or dysfunction in all. 

Assad’s reconciliation approach comes from thought structures inherent in what sociologists describe as the ’violent state.’ The “wall of fear” that many Syrians describe is a manifestation of the often invisible tyranny that permeates their everyday existence, and which idealistic revolutionaries attempted to tear down. The uprising was not just about toppling a dictator. It also involved the removal of the underlying thought patterns that make dictatorship possible. This is particularly evident in the influential revolutionary literature of Razan Zeitnoueh, who argued in the early days of the uprising that revolution should be rooted in the patterns of socialisation with which the Assad regime has been reproducing itself for 50 years. These patterns revolve around a particular relationship with truth, social identities with clearly determined friend/enemy distinctions, and a historical narrative steeped in existential struggle. Of course, these are completely incompatible with truth-seeking, reconciliation, and accountability. Understanding better the regime’s reconciliation rationale is important as a means of predicting its actions, and as a tool to refine truth-seeking, reconciliation, and accountability efforts to resonate with ordinary Syrians and thus engender widespread engagement and impact. Meaningful transitional justice requires new models based on a holistic approach that challenges both the dictator and the dictatorship. 

This is part I of a series of articles on advancing transitional justice in Syria. Part II will be published in the next issue.