By M. Buhari Çetinkaya
The Syrian regime, which had been in power for nearly 55 years under the leadership of the father and then the son Assad, has now collapsed.This period is likely to be remembered as a time of significant atrocities, human rights violations, and crimes against humanity committed during the civil war that emerged in the aftermath of the Arab Spring in 2011.Some of the perpetrators of these actions, notably Assad and his family, have found refuge in other countries to evade justice. However, the majority of these perpetrators continue to reside in Syria, and the primary concern of the new authorities will be to repair the damage caused by this period, particularly after 2011. One of the most pressing questions is how justice will be served while the past is being held to account.
Societies that have endured oppressive regimes and grave human rights violations may adopt distinct practices to establish justice and construct a safer, more peaceful, and more prosperous future.In ordinary times, individuals who perpetrate crimes are subjected to legal proceedings and punishment in accordance with established legal procedures. In such periods, the justice system predominantly functions in accordance with the punitive or distributive justice approach, thereby ensuring the stability and security of the state. However, in societies that have emerged from periods of profound adversity, the application of this mechanism can potentially revive memories of the past, rekindle long-standing resentments, and ultimately trigger renewed social turmoil. These societies have successfully moved beyond their past. These societies aspire to transition to a stable and peaceful future, a period referred to as the "transitional period." During this interval, the harmful practices that destroyed the past are renounced, yet the fundamental principles of a democratic state of law are compromised. The legitimacy of this deviation stems from the necessity of these extraordinary practices or non-practices for the transition to a legitimate normal order in the future.The concept of transitional periods has been observed in various countries, including our own, manifesting as intermittent, temporary, or perpetual processes.One domain where these periods deviate from the essential practices in ordinary periods is the methods of providing justice. This concept, which can be termed "transitional justice" or "transitional justice and restorative justice," has been identified as a potentially effective means of addressing past injustices, thereby facilitating the process of moving forward without further exacerbating existing wounds.
An Example is the Current Circumstance in Iraq
Until December 8, 2024, the Assad regime was recognized as the Syrian State. The transgressions perpetrated by the Assad regime were executed by officials of this state apparatus.Consequently, the trial of the Assad regime would also entail the trial of all state officials, from the most junior to the most senior, and their subsequent removal from their respective positions. Furthermore, the individuals sustaining the Assad regime comprise the capillaries, nerve cells, and organs of this body, extending from the military to the police, from the bureaucracy to the courthouse, and even the academy. These individuals, numbering in the hundreds of thousands or even millions, render it impracticable to adjudicate such a substantial number. Even if such an endeavor were feasible, the application of conventional justice standards to all officials would inevitably result in the dissolution of the state apparatus, leading to a state in disarray. The long-standing memory of the state would be irreparably lost, and the state would inevitably collapse before its establishment. A parallel can be drawn between the experiences of the newly established Iraqi state in the aftermath of the invasion, where the expulsion of members of the Baath Party from state institutions ultimately led to the state's disintegration, and the current context in Syria.It appears that the forces that have gained power in Syria have drawn lessons from these past experiences. One notable example is the peaceful transition of power witnessed by the Assad regime, as evidenced by the peaceful handover of the premiership by Prime Minister Jalali.Transitional justice can take various forms. The initial approach involves the concept of amnesty, which entails the eradication of past transgressions and the establishment of a pristine, unmarred slate. This process entails the issuance of either comprehensive or targeted amnesties, encompassing all transgressions committed in the past, inclusive or exclusive of those perpetrated by the guilty parties. While this practice offers various advantages in terms of serving the objectives of the transitional period, it is not without disadvantages. Among these are the inability to eliminate victimization, the risk of forgetting the past without learning from it, and thus reliving the same painful experiences.Amnesty is a practice that does not ensure justice or serve to learn the truth.
A Method of Transitional Justice: Commissions of Inquiry
Another frequently used method of transitional justice that helps to achieve justice, at least partially redress grievances, and serves to learn the truth, come to terms with the past, and learn lessons is the establishment of commissions of inquiry with names such as Reconciliation, Justice, or Truth Commissions. Such commissions can be national in nature or, as in various experiences, international in character. For instance, various nations have previously established national commissions, including Pakistan, India, Germany, Argentina, and notably South Africa. Likewise, international commissions have been set up in countries such as El Salvador, Indonesia, and Lebanon.A distinguishing feature of these commissions is their mandate to investigate gross violations of human rights, a realm distinct from the pursuit of retributive justice. These commissions are tasked with the investigation of the sociological, political, economic, historical, and other underlying factors that contributed to the commission of the crimes in question. They then prepare a report based on their findings, which includes recommendations and binding decisions.According to Priscilla Hayner's definition, these commissions are state-authorized and state-controlled structures that deal with past events, examine specific incidents over a certain period of time, and make direct contact with evidence and victims. They publish a report based on their research and investigations, and conclude their task by publishing a report (Tezcan, Dila Algan, Fenerbahçe University Journal of Social Sciences C:3, S:1, p. 152).However, judicial authorities are also empowered to investigate, prosecute, and ultimately punish, and they can carry out all these activities. However, the pursuit of truth through commissions and the facilitation of transitional justice by addressing grievances offer distinct advantages over criminal proceedings.Firstly, the justice mechanism may have been compromised during the process, rendering judicial authorities unable to conduct an effective and fair trial. Alternatively, the judicial organization may still be influenced by the ruling past, potentially undermining the credibility of the impartiality of the proceedings.A participatory and impartial commission can overcome these challenges. Secondly, the pursuit of justice against perpetrators from the past can potentially lead to resentment and societal discord, as these individuals maintain credibility with certain segments of society.For instance, the trial of hundreds of thousands of Assad-era officials could have far-reaching consequences, affecting millions of people, including their families and communities. This could further exacerbate social tensions.As these commissions are not designed to convict anyone, they are not subject to the aforementioned limitations. Thirdly, individuals facing accusations or serving as witnesses before the judicial authority may be reluctant to disclose the full truth, either out of concern for incriminating themselves or others, or out of fear of the potential consequences of such disclosures. In contrast, the investigations conducted by these commissions do not pose the same risks, thereby fostering a more candid environment. Individuals feel less hesitant to disclose the truth, knowing that they do not face the same risks of self-incrimination or the repercussions on their loved ones or others. A notable benefit of these commissions is that they provide a platform for individuals to come forward without the fear of self-incrimination, which is crucial for ensuring a fair trial. However, if no prosecution is pursued, the country may be vulnerable to external influences, potentially leading to demands for accountability.The credibility and transparency of these commissions are crucial for preventing any potential weaknesses that may arise from sovereignty.It is important to note that the primary challenge these commissions face is their lack of judicial authority, which limits their ability to deliver fair and effective justice. The pursuit of justice, in its truest sense, hinges on the conviction and punishment of perpetrators of gross human rights violations. The efficacy of punishment in serving its deterrent, exemplary, retributive, protective, and rehabilitative objectives is contingent on the integrity of a criminal trial. It is noteworthy that the activities of these commissions frequently fall short in this regard, as they often lack the transparency and public scrutiny that characterizes criminal proceedings. Conversely, extradition of individuals who have escaped accountability by fleeing to other countries, such as Bashar al-Assad, is only possible if a criminal trial is conducted.While these commissions may utilize various methods to obtain statements and testimonies from fugitives, they will not be able to hold them accountable before the law.
Accounting for the Regime is a Historical Obligation
Consequently, despite Assad's departure, the regime's core remains influential within Syria. It is anticipated that a gradual transition will occur, resulting in the regime's gradual dissolution. This transition period is crucial to prevent the complete collapse of the state apparatus and the sudden erasure of state memory. The Syrian people have endured significant hardship over the past 55 years, with the last 13 years being particularly arduous.It is imperative to comprehensively document and address this period, which has been marked by substantial atrocities, crimes against humanity, and egregious violations of human rights, including the use of chemical weapons. The establishment of justice is imperative to prevent such atrocities from recurring, to provide solace to those who have endured, and to document the events that have transpired.However, to ensure the efficacy of justice, it is crucial to circumvent the resurgence of lingering wounds and to eschew practices that foment new tensions and conflicts, particularly during the transitional phase. In this regard, the most effective approach to ensure transitional justice appears to be the establishment of a reconciliation or truth commission, ideally with both national and international dimensions.Similarly, the new government, widely regarded as a terrorist organization in numerous countries, including Turkey, must assert its presence within the international community and attain a foundation of legitimacy. Since 2011, Syria has been isolated from the international order, and consequently, its leaders. However, the re-establishment of strong ties with neighboring countries and the international community is contingent upon Syrian openness to international scrutiny. The establishment of a transitional justice commission, comprising representatives from countries to be designated by Syria, in conjunction with the United Nations Secretary-General's Office during the appointment process, will not only enhance the transparency and effectiveness of the commission but also expedite the integration of the new Syria into the global community.
Of particular significance is the utilization of transitional justice methodologies to guide the transition to the ordinary period, thereby leveraging the experiences gained and significantly easing the burden of justice upon the commencement of the ordinary period.For instance, the establishment of a reconciliation commission should entail the meticulous collection of evidence and the precise identification of grievances and violations, ensuring the expeditious adjudication of those responsible during the ordinary period and averting the escalation of social tensions. Alternatively, as in Germany, if a compensation commission is to be established, it should be able to identify the grounds for compensating the victims expeditiously and without delay in the work of the transitional commission. Conversely, as in Argentina and Chile, the commission should reach out to all existing grievances and also publicize the events in Syria in the past in the form of a comprehensive report. Furthermore, the commission should reveal the truth and settle accounts in front of the eyes of the world public opinion and in a pluralistic manner for the Syrian people.
*The Turkish version of this article was published on perspektif.online on December 13, 2024.
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