Ten Years on, Will There Ever Be Justice for Syria?

Foreign Policy, 17.03.2021
Janine di Giovanni, ex corresponsal en Siria y académica (Jackson Institute for Global Affairs-Yale)

As the war drags on, there are small glimmers of hope for those seeking reconciliation

Mass demonstration in support of the opposition on the 10th anniversary of the the Syrian civil war in Idlib.
(Anas Alkharboutli/Picture Alliance/ Getty Images)

Ten years ago this week, pro-democracy demonstrations erupted against Syrian leader Bashar al-Assad in the southern Syrian city of Daraa. In the weeks, months, and years that followed, those initially peaceful uprisings morphed into a brutal and senseless proxy war—one of the most heartbreaking conflicts I have ever witnessed.

A decade of war means that the lives of an entire generation of Syrians have been defined by bombs, deprivation, death, and displacement. A decade of war means a society that will take half a century to heal. In the case of Syria, where Assad—the country’s own head of state—has burned his country down, there is also the issue of monstrous war crimes: chemical weapons used against civilians; tens of thousands of arbitrary detentions and disappearances; rape and torture. According to a recent report by the United Nations Commission on Inquiry in Syria, the war has been marked by the most heinous violations of humanitarian standards and human rights, including violence by the regime on its own population on a genocidal scale. As always, civilians bear the brunt of the atrocities.

Although the war is not technically over—Geir Pedersen, the Norwegian diplomat who is the United Nations envoy for Syria, is still hard at work—it is clear to most Syrians and outside observers that Assad has won and will remain in power. But how do we end this war so that there is justice for those who suffered? With half a million Syrians dead, 6.6 million refugees in neighboring countries and Europe, and millions more internally displaced—not to mention an entire country deeply traumatized by the brutality—are there any grim lessons that can help prevent future wars?

As someone who works on documenting war crimes, the most important issue for me is transitional justice. None of the parties to the war will walk away with clean hands, but the Assad regime is responsible for significantly more carnage than any of the others, including the Islamic State whose ugly, dehumanizing caliphate spread over large parts of Syria as the war went on. How will we address the large-scale and systematic crimes perpetuated by Assad on his own people? And more importantly: If he remains in power, how can those who suffered under him ever feel safe again?

Another open question is whether the survivors of his appalling crimes will ever be compensated. The historical precedents and structures the world has put in place to ensure this—from the Nuremberg trials of Nazi perpetrators to the war crimes tribunals in The Hague—are often slow, laborious, and inefficient. And these courts rarely prosecute the men and women who actually committed the crimes.

If you go to parts of Bosnia today where the war was exceptionally cruel—the small towns in eastern Bosnia such as Foca where Serbs established rape camps and held women there for months, who were sometimes raped up to 16 times a day—you still meet many survivors. These women know the men who destroyed their lives because victims and perpetrators often live in the same town. They still see them in the cafes. They know these men won’t make it to The Hague and will never go to prison.

Another way to achieve justice for war crimes that may become increasingly important is being pursued by human-rights lawyers in various national courts. They’re using the principle of universal jurisdiction, which seeks to punish criminals regardless of where the crime was committed. In countries such as France, Finland, and Germany—which have ongoing trials now—laws allow for the punishment of any individual accused of a crime against humanity, a war crime including genocide, and torture. The principle of universal jurisdiction goes back at least to 1961, when Adolf Eichmann was prosecuted for Nazi crimes in Israel. More recently, former Chilean dictator Augusto Pinochet was extradited to Spain. Now, the principle is being applied to the Syrian war: In a landmark ruling on torture in Syria last month, a German court found a former member of Assad’s secret police guilty of being an accomplice to crimes against humanity in his own country. All these are victories for justice.

Perhaps Syria can look to the transitional justice model established in Rwanda, often regarded as a model of successful post-conflict reconciliation, following a genocide that killed 1 million people in 1994. There were many factors leading to Rwanda’s healing process: the resilience and determination of the people to put the horror behind them, but also the implementation of tools that allowed justice to work. While not perfect, Rwanda’s Gacaca court system (the word in means “sitting in the grass” in the official national language, Kinyarwanda) was a form of community justice initially set up by the government in 2001 to prosecute a backlog of more than 100,000 suspects who had been imprisoned for many years awaiting trial in the country’s courts and at the International Criminal Tribunal for Rwanda, which had been set up in neighboring Tanzania.

The attempts to achieve national reconciliation and restore order in Rwanda were impressive. The Gacaca courts were soon expanded, ultimately convicting many of the suspects who might never have had to face a regular trial. The Gacaca system had deep flaws—the offenders were condemned solely on testimony of witnesses, and human-rights groups say they fell well short of international legal standards, including the right to a fair trial and due process. But given the fact that the formal courts were overwhelmed, and it would have taken years to prosecute the perpetrators, the courts at least gave victims some emotional compensation. The guilty parties were not walking away from their crimes unpunished.

In 2011, at the start of the war, I began to document torture and sexual violence in Syria for my book The Morning They Came for Us: Dispatches from Syria. I took the title from the testimony of one of the many people I interviewed. She had been taken from her home at dawn, still in her pajamas, to a prison where she was raped and tortured. As the years passed and I interviewed dozens of survivors, I realized they all had one thing in common: The day they were taken away was their last day of any kind of normalcy. To the mind of someone who has been so brutalized, the world divides into the time frame of “before” their world was decimated, and the grim, bleak “after.”

The stories I heard from ordinary Syrians who had been arrested, incarcerated, raped, or tortured—or had family members who disappeared—reminded me in many ways of the work I had done in Bosnia. The atrocities were intended to inflict as much pain as possible on civilians and to destroy the fabric of the society they victimized. Going through my notes made me question the depths of darkness into which human beings can descend. One young man I interviewed, a philosophy student, had been tortured by doctors who used surgery—without anesthetic—to brutalize him.

When the Russians entered the war in 2015, their intentional aerial bombardment of hospitals and health care facilities was a method of instilling fear and breaking the will of the people—if you kill doctors, you kill the mainstay of communities. It makes it clear that the goal isn’t to defeat a fighting force, but to destroy a society. But it was also a way of destroying the evidence of Assad’s war crimes.

How? Because the Syrian war, more than any other, has been highly documented. By 2011, many people had smartphones with cameras (unlike in Bosnia, Rwanda, or even Iraq and Afghanistan in the early days of war), allowing ordinary people to come out and take photos of the helicopters dropping barrel bombs, or of the destroyed buildings.

In Aleppo and Idlib, there were the White Helmets, a group of first responders who came from the communities and dug people out of the rubble from the bombing. They wore Go-Pro cameras in their helmets to capture the atrocities firsthand. The Russian bombers often returned for a “double tap”—to kill the first responders even as they were trying to rescue the first attack’s victims. This was a highly effective way to ensure there would be no photos of Russian crimes.

The only way countries manage to heal after war is for them to have some kind of truth and reconciliation process. In Syria, given the scope and scale of the war crimes, this is absolutely crucial. Since it is unlikely that Assad will ever be brought to the International Criminal Court—Syria hasn’t accepted the Rome Statute, the treaty that created the court—the real likelihood of a war crimes tribunal rests with bodies like the International, Impartial and Independent Mechanism (IIIM) in Geneva.

The IIIM, adopted in 2016 and reporting to the United Nations General Assembly, does not prosecute; it is an independent body with a mandate to assist in bringing war criminals to justice for crimes committed in Syria since 2011. They control a central repository of evidence. They collect, consolidate, analyze, and prepare case files to support competent jurisdictions that comply with fair international standards. They do their work from a nondescript villa on the grounds of the Palais des Nations in Geneva, the former headquarters of the ill-fated League of Nations. At the head of the IIIM is an energetic French prosecutor, Catherine Marchi-Uhel, who personally sorts through documents, images, hard drives, and open-source material. Her goal is to support accountability processes that will help to bring about justice.

While the IIIM will never replace the ICC or domestic courts that can hand down verdicts, Marchi-Uhel, who has worked on human-rights cases involving the Islamic State, Kosovo, Iraq, and Cambodia, told me that past cases have made it clear that justice requires “multiple actors each playing their part to make justice possible for more victims of large-scale crimes.” That means leaving it to the ICC and other special tribunals might not be enough. The IIIM fills a vital gap—as an independent institution, it is not affected by the U.N. Security Council vetoes by Russia and China that have blocked Syria from being referred to the ICC. “Our approach is victim and survivor centered,” she said. “And we want the work we do be sufficiently representative of the experiences and perspectives of Syrian victims and survivors.”

Perhaps their important work will be reproduced by other new and creative means of justice that expand the arsenal of those fighting for truth and reconciliation after a horrific decade-old war. With the world failing to help end the endless killing and abuses, we owe it to Syria—and to other war-torn countries. One of the most chilling legacies of the Syrian war is that we don’t know how many people have actually died—the U.N. stopped counting in 2016 because it no longer had sufficient access on the ground to verify numbers. But we do have substantial evidence on the immense suffering inflicted on civilians. The least that we, as members of the international community, can do is use that evidence to bring some of the bad guys to justice.

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