The beginnings of transitional justice in Syria

When Mohamed* first got involved in human rights work in Syria, his idea of documenting crimes was to visit a crime scene with a cell phone and post a shaky video on YouTube.

But a few months ago, he found himself in an upscale hotel in Istanbul, learning the basic principles of international law from renowned experts in the field, such as how to take GPS coordinates and how to interview witnesses.

He is part of a push to systematically and forensically gather evidence about potential war crimes in Syria, with the aim of eventually taking alleged war criminals to court. Those behind the effort say it is the first significant attempt to do so in the midst of an ongoing conflict.

But as investigators try to lay the groundwork for accountability and transitional justice in Syria under extremely difficult circumstances, experts are already warning the process must avoid the pitfalls experienced in Iraq, Rwanda and other post-conflict scenarios.

Several initiatives - from the UN’s Independent International Commission of Inquiry into human rights violations in Syria to the Center for Documentation of Violations in Syria - are trying to document developments in Syria for potential use in future prosecutions. But they face unprecedented challenges.

“To do it in the middle of conflict is extremely difficult,” said Karen Koning AbuZayd, a commissioner with the Commission of Inquiry. “It’s a first for all of us,” she told IRIN.

One of the challenges is access. The Syrian government has not granted the Commission permission to enter Syria, for example. As such, its reports rely mostly on interviews with Syrian refugees in neighbouring countries, but also on information gleaned from a variety of sources on the ground, including a new outfit calling itself the Syrian Commission for Justice and Accountability (SCJA).

A non-profit organization registered in The Hague but based mostly in Istanbul, the SCJA recently started training Syrian activists to professionalize their amateur investigations. Its seed funding came from the British government, but it is seeking more diverse and sustained sources.

Led by a Canadian investigator who has worked with the International Criminal Court, and transitional justice mechanisms in Yugoslavia, Iraq, and Rwanda, the SCJA has helped smuggle Mohamed and other activists out of Syria for five- and 10-day courses on, among other things, what legally constitutes individual criminal responsibility and how to determine the distance from which a rocket was fired, based on the size of its crater. Then, it sends them back into Syria with investigation kits to gather evidence.

They also try to obtain documents showing military chains of command, interview regime soldiers taken prisoner by the rebel Free Syrian Army (FSA) and smuggle that information out of Syria.

“We are preparing the groundwork; gathering the evidence, so that we have files with which to prosecute people later,” said Hassan Alaswad, formerly an independent lawyer in Syria and now chairman of the Commission in Istanbul.

“Criminal trials are long, complex, and ultimately, the population loses interest,” added the group’s Canadian mentor, who requested anonymity for his safety when inside Syria. “We need to be ready to hit the ground running at the moment fair trials can be assured in Syria.”

It can be a risky business.

Mohamed once visited a military intelligence building in Syria to try to piece together the army’s hierarchy; he intended to be in and out quickly, using a fake ID and pretending to have been sent by another government security agency.

The FSA attacked the building while he was inside, leaving him trying to conceal his identity for three uncomfortable days.

“This work is hard and dangerous,” he told IRIN. “But it is in the Syrian people’s interest that it be done before the fall of the regime, not after.”

Others question the wisdom of the timing, suggesting that fear of prosecution could stop Syrian President Bashar al-Assad or others from ever signing a peace deal.

“We don’t want to cripple the political process,” said one human rights worker in Syria.

But the Commission’s ambitions are larger than a few trials. Rather, it aims to eventually create a Syrian capacity to investigate war crimes and crimes against humanity which a reconstituted government could then incorporate into a specialized war crimes investigation unit.

“Ultimately, the decisions are taken by Syrians, and in the future, they will be taken by the appropriate Syrian authorities,” the Canadian mentor told IRIN. “We will build up the dossier, but it is up to someone else whether it will ever be used.”

Commission chairman Alaswad said he does not want to leave the job to the UN or any other international body.

“We want local trials in the end,” he told IRIN. “We don’t want an amnesty. We don’t want our database to be politicized. We want to have our own database.”

Observers say there could well be a tug-of-war over who dictates this process moving forward. The International Centre for Transitional Justice (ICTJ) is in dialogue with various groups in Syria, urging them to hold as consultative and inclusive a dialogue as possible in the lead-up to any transitional justice process.

Flawed process?

Already, the initiative is showing some signs of falling into the same traps of other attempts at transitional justice.

The SCJA presents itself as apolitical, unaligned with any religious faith or community, and driven solely by the rule of both Syrian and international law.

But the group admits that it considers the FSA an important “partner” in investigating potential war crimes committed by government forces. Its investigators operate mostly out of FSA-controlled areas and rely on the rebel fighters for physical security, logistical support, and access to prisoners and captured documents. In contrast, most investigations of potential crimes committed by the FSA are done by analysing YouTube videos, the international mentor said.

For some, this is cause for concern.

“You can’t set the basis for a state based on rule of law when you basically absolve one side,” said Claudio Cordone, head of the Middle East and North Africa programme at ICTJ. He has been helping countries in the region transition out of conflict and says Syria can take stock of the experience of its neighbours.

"We need to be ready to hit the ground running at the moment fair trials can be assured in Syria"

In Libya, he cautioned, it is very difficult to criticize former rebels who toppled Muammar Gaddafi and who have since been accused of very serious crimes. In Iraq, a de-Baathification campaign after the ouster of President Saddam Hussein “resulted in a lot more damage than what it was meant to achieve,” Cordone said.

Mohamed, the investigator, says his goal is “to keep accountable those who have committed crimes and ensure everyone gets their rights ”; he believes the FSA’s goal is one and the same.

He acknowledges rebels have also committed crimes and says he stands ready to investigate them, but insists “the crimes by the FSA are minor compared to the crimes of the regime.” (International human rights watchdogs have accused both government and opposition forces of abuses, but say that with greater fire power and territorial control, the government bears greater responsibility).

The SCJA mentor is well aware of the risk of victor’s justice, having seen other transitional justice processes lose legitimacy for just this reason. The International Criminal Tribunal for Rwanda, he argues, not only lost its credibility by only prosecuting Hutus, but also failed to help Rwandan society move forward. (While members of the Hutu ethnic group were indeed responsible for the bulk of the Rwandan genocide, Tutsi extremists also engaged in the killing). He insists the SCJA is a “transitional justice vehicle”, not one for retribution and revenge.

“Our investigators grasp the theory readily enough. But sometimes in practice, they need to be reminded. They need to be reminded that they don’t belong to one side or another.”

But here, too, their physical security is at risk.

“It’s like walking into a minefield,” says Mohammad Al-Abdallah, a young Syrian exile and human rights activist who was twice imprisoned in Syria before the current conflict. “If you criticize the rebels… you could be assassinated. They start to attack you and accuse you of working with the government. But if you ignore [their crimes], you are under moral pressure. It’s a pretty hard mission.”

Masses of evidence

Al-Abdallah now heads a new US-funded initiative called the Syrian Justice and Accountability Centre (SJAC), intended to be a clearing house for all information on human rights violations and potential war crimes - an important step in trying to preserve and catalogue the plethora of information that is becoming accessible.

While many evidence-rich videos are appearing on YouTube, the International Centre for Transitional Justice’s Cordone said, many of them fail to make note of crucial basic information, like when the film was taken, where and by whom.

Similarly, the FSA often unknowingly destroys much potential evidence, the SCJA’s mentor said, by burning down captured police stations without first removing any relevant government documents. (The SCJA is trying to raise awareness about this within the FSA.)

The SJAC aims to create a database in which information gathered from different groups can be consolidated in one place.

“The information is all scattered everywhere online. There is no coordination,” Al-Abdallah told IRIN. “We will play this role.”

The centre is also collecting lists of the dead, to be used as a basis for collective or individual compensation.

One of its main goals is to “keep what’s happened in the memory of the nation to prevent a repeat,” he told IRIN, and to raise public awareness about the concept of transitional justice.

“When you say reconciliation, people in Syria act very defensive. They understand reconciliation as an amnesty. ‘Nothing happens, they get amnesty, and we move on’,” Al-Abdallah said. “To educate the public, at an early stage, before the collapse of a regime, is important.”

*not a real name

ha/cb