There are many paths to justice – which will Syria choose?

Demands for justice have accompanied the jubilation at the fall of Syria’s Bashar Al Assad. That is understandable as the atrocities under his misrule touched so many.

The full horrors are coming into focus as prisons and torture cells are thrown open, and mass graves identified. The destruction, displacement and disappearances that accompanied the 13-year civil war indicate the systematic abuse of human rights and humanitarian law, as well as war crimes and crimes against humanity.

Even where laws are bent or broken by the powerful, it is inconceivable that such heinous acts go unpunished. The basic instinct for wrongs to be righted infuses the 1948 Universal Declaration of Human Rights, which calls for “equal protection” and “effective remedy” by law.

What justice are Syrians wanting, and how do they want it dispensed? Although this month’s national conference of political and social actors has been postponed, the new rulers should not decide without consulting the most affected, even if traumatised communities mourning their losses will not have settled mindsets.

Meanwhile, as some ponder brutal vengeance, the interim government asks people not to take justice into their own hands. Others argue for ignoring what happened and moving on.

Neither extreme benefits Syria. For example, victor’s justice as imposed by the Allies in the post-Second World War Nuremberg and Tokyo Trials is unacceptable if only Mr Al Assad’s operatives are tried, and no other criminals from ISIS, Hezbollah, foreign forces and predecessors of Hayat Tahrir Al Sham. Conversely, impunity through amnesia can seed future trouble, as in Lebanon after its 1975-1990 civil war.

With so much at stake, Syria cannot afford the luxury of justice that simply provides the gratification of punishing a few war criminals. Instead, a pragmatic judicial formula is required to advance a higher national purpose that is critical for Syria’s future.

Justice must, therefore, bring meaning for those who suffered, offer restitution where possible and signal pathways towards closure and healing. Associated accountability must de-toxify public and private institutions, restore trust in government, and enable revised political, economic, social, security and legal foundations so that Syria does not regress to brutal violence.

To realise this tall order requires following clear principles starting with the aphorism “justice must not only be done but also be seen to be done”. That needs Syrian-led processes close to the crimes occurred, rather than in foreign jurisdictions.

Syrians search for loved ones in Sednaya prison

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While prosecutions under “universal jurisdiction” by third countries have a role when alleged perpetrators are caught on their territory, as has happened in Germany, this provides limited comfort.

Involving the International Criminal Court is even less fruitful. Syria is not a signatory to the Rome Statute, and Russia and China have previously vetoed UN Security Council referral to the ICC. As Mr Al Assad is currently hosted by Russia, whose leader is himself under ICC indictment for alleged crimes in Ukraine, the Russian veto remains.

Could a refugee-hosting state such as ICC-member Jordan trigger a process, as happened with the Rohingya expulsions from Myanmar into Bangladesh? The utility of that is uncertain because the ICC moves at a glacial pace.

The International Court of Justice has proved even more toothless, not just in the ongoing Israel/Gaza case, but specifically in Syria where its 2023 “provisional measures” against torture and cruel degrading treatment were simply ignored.

Justice delayed is justice denied, thereby creating disgruntlement and risking recovery and stability. If international mechanisms are not up to the job, Syria must find its own approaches, even as the broken nation must also tackle other urgent needs.

Where to start poses a conundrum. Syria’s new rulers have frozen the constitution and formed a legal and human rights committee to propose amendments. How that affects its penal code and judicial practice – an inherited mix of Ottoman, French and Islamic laws along with Assad-era diktats – is unclear.

Who will be prosecuted? The interim government wants to focus on senior leaders and organisers who have “blood on their hands”. But Mr Al Assad’s terror apparatus relied on a vast network of functionaries who co-operated voluntarily or under coercion. Social justice requires their accountability through acknowledgment mechanisms akin to South Africa’s Truth and Reconciliation Commission and Rwanda’s grassroots or “gacaca” courts.

Where will prosecutions occur? Syria has a panoply of constitutional, civil, criminal, military and security courts. But with judges and prosecutors appointed by the previous discredited regime, a special court or tribunal with integrity and independence is needed.

If Syria is unable to create this, hybrid national and international tribunals offer a way. But experience is mixed. The Special Tribunal for Lebanon after the 2005 assassination of former prime minister Rafic Hariri folded in 2023, its job not done despite expending more than a billion dollars. The flawed methods of the Iraqi High Tribunal were blamed for an alleged “show trial” in 2005 that sentenced former president Saddam Hussein to death. Both hybrid courts sought global and domestic legitimacy through combining international and national laws but satisfied neither.

Moreover, authorising a Syrian hybrid court would require a UN Security Council resolution that Russia must be persuaded not to veto.

The Syrian context is further complicated because reforming its discredited Assad-era penal code will take time. And the extent to which revisions would comply with international norms remains to be seen, especially if Syria decides on adopting the sharia as its foundation. If so, which version of sharia would Syria select? Members of the Organisation of Islamic Co-operation do not have a uniform code with each country’s political and religious traditions guiding diverse practices.

There is a parallel debate on the compatibility of international and Islamic laws were they to be hybridised. While they converge over prohibiting war crimes and violations of international humanitarian law, there are significant differences when it comes to trial processes, protecting defendant rights and sentencing policies.

That makes international co-operation to build resource-constrained Syria’s judicial capacity more difficult.

For example, many European nations would be prohibited to extradite alleged Syrian criminals to a country that retains capital punishment on its statute books. It also raises a dilemma for the UN Independent, Impartial and Independent Mechanism charged with investigating and prosecuting serious crimes in Syria. Should they share evidence when the UN Human Rights Office advocates for the universal abolition of the death penalty?

Perhaps Syria would be well-advised to follow the example of Rwanda, which abolished the death penalty after the 1994 genocide. As General – later President – Kagame told me at the time: “Our country has had enough killing; we don’t need more.”

The same could be said for Syria. Its dilemma is that while the torments it endured demand tough-minded accountability, its dreams of a better future require tender-hearted justice. That includes investing in new humane detention centres for alleged and convicted war criminals to demonstrate the sharp contrast from the notorious Sednaya and similar prisons.

Traditionally, the moral force in justice is personified in the figure of Lady Justice. Her scales balance the relativity of opposing evidence with intent to restore harmony, the noblest of governance virtues. Her sword represents authority’s promise of swift and definitive justice. But notably, India and other democracies have replaced the mighty sword with a book, signifying the primacy of constitutionally derived law.

More contentious is Lady Justice’s blindfold. She is depicted that way in US and other supreme courts to signify blind impartiality. But not in the UK’s central court and most newer jurisdictions because justice cannot be blind to wrongs playing out in front of her.

The new Syria has already revised its flag. But to re-envision its symbols for justice, it must decide what type of nation it wants to construct before giving life and meaning to those symbols. In doing so, Syrians may reflect that it should not be lawyers – national or international – that dictate what they must do, but how humanity and reason guide their conscience.