A Handbook for Journalists, Citizens and Activists
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TRANSITIONAL JUSTICE A HANDBOOK FOR JOURNALISTS, CITIZENS AND ACTIVISTS INSTITUTE FOR WAR & PEACE REPORTING
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he Institute for War & Peace Reporting IWPR’S GLOBAL PROGRAMMING • Building inclusive Societies Tgives voice to people at the frontlines FOCUSES ON: of conflict and transition to help them drive WPR has supported peace and change. IWPR empowers citizens and their • Promoting Free Expression Ireconciliation in conflict zones around the communities to make a difference – building world for 20 years. These efforts, along with WPR builds the skills of professional their skills, networks and institutions, campaigns and activities that encourage and citizen journalists working in supporting development and accountability, I free and fair elections, counter extremism, traditional media (newspapers and forging peace and justice. and enhance the ability of civil society magazines, radio, TV) and in social and organizations to be effective, are all critical Working in three dozen countries, IWPR’s new media (Facebook, Twitter, Internet to building societies that value and build innovative programs are crafted to news magazines and portals, blogs and on the strengths of all of their peoples, respond to the needs of the people they other online vehicles). Programs train and including their women, youth, minorities, serve. 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Reporters, editors, producers, when economies are strong, people are peace activists, policymakers, educators, bloggers, and managers learn the value healthy, and the populace is educated; researchers, businesses, and women’s, of producing substantive content that hence, IWPR’s focus on these areas of youth and other civil society organisations informs while helping to define the roles concern. and partners. of citizens, civil society, government, the media, business and others in building WPR employs a skilled staff and expert Headquartered in London with coordinating fair, pluralistic, democratic systems that Iconsultants in a variety of fields to offices in Washington, DC and The Hague, value and respect the opinions of all support its capacity-building activities IWPR is overseen by an international board constituencies. Whether in repressive or and to assist in providing journalists, civil of trustees made up of internationally closed societies, transitional environments, society and civic activists with the basic and recognized journalists and media or democratically developing states, IWPR advanced skills and knowledge that support professionals, business and financial encourages the development and exercise sustainable and positive change. It employs sector executives, philanthropists and civil of freedom of expression, assembly, and tools and technologies in programming society leaders. Its 125-person global staff belief and uses journalism as a tool to that encourages citizen understanding, is led by an executive management team of advance peace and social justice. participation, and involvement and builds experts in media and governance, program local expertise. All programs and projects development and management, policy and • Strengthening Accountability are measured and evaluated to ensure that advocacy, financial development, finance future initiatives and those who participate orking with international and local and human resources. in them benefit from valuable “lessons partners, IWPR supports the capacity W learned.” About IWPR’s Programmes of civil society and human rights groups to more effectively advocate for government For more information please he strength of IWPR’s programming is and institutional accountability and contact: Trooted in its ability to help individuals transparency, with programming designed and groups develop the knowledge, skills, to reduce corruption, strengthen rule of Susanne Fischer relationships and platforms they need law, and promote basic rights. It promotes Regional Programme Manager, to communicate clearly, objectively, and publicizes the work of international Middle East effectively, persuasively and safely and courts and tribunals that support justice [email protected] to use that knowledge and those tools and hold individuals and groups responsible Duncan Furey to affect positive change. Projects and for crimes against humanity. IWPR helps International Partnerships Director initiatives are developed in partnership communities to more effectively fight [email protected] with local organizations and are designed against immediate and longer-term threats to meet the unique needs of the individuals by building knowledge, empowering, and Thomas Baker and groups they will serve and the supporting citizen activism, and helps Programmes Coordinator communities in which they operate. countries and regions to heal from conflict [email protected] and war through support for transitional justice.
TRANSITIONAL JUSTICE A HANDBOOK FOR JOURNALISTS, CITIZENS AND ACTIVISTS INSTITUTE FOR WAR & PEACE REPORTING
Transitional Justice A Handbook for Journalists, Citizens and Activists
Written by Mustafa Haid, Jeremy Sarkin, Marwan Maalouf, Mariam Abdullah, Youssef Kanaan, Alia Ahmad, Radwan Ziadeh and Wael Sawah.
Editorial support by Peter Eichstaedt and Ben Gilbert.
June 2013
TRANSITIONAL JUSTICE A HANDBOOK FOR JOURNALISTS, CITIZENS AND ACTIVISTS INSTITUTE FOR WAR & PEACE REPORTING
Table of Contents
About IWPR 03
Introduction A Quest for Justice 06 By Mustafa Haid
Chapter I Transitional Justice is Key to Long-term Peace and Stability 08 By Jeremy Sarkin
Chapter II Lessons Learned from MENA Transitional Justice 10 By Marwan Maalouf
Chapter III Transitional Justice in Syria: Scenarios of Implementation 13 By Mustafa Haid
Chapter IV Options for Syria: Amnesty, Reparations and Compensation 15 By Jeremy Sarkin
Chapter V Vulnerable Groups: Women at Risk 17 By Mariam Abdullah
Chapter VI Engaging the Public: Civil Society in Transitional Justice 19 By Youssef Kanaan
Chapter VII Transitional Justice - The Role of Social Media 21 By Alia Ahmad
Chapter VIII Addressing Syria’s Enforced Disappearances 23 By Radwan Ziadeh
Chapter IX Impartial Justice Requires Documenting and Collecting Evidence 25 By Wael Sawah
Chapter X Reforming the Syrian Justice System 27 By Radwan Ziadeh
Chapter XI Security Sector Reform in Post-Assad Syria 29 By Wael Sawah
TRANSITIONAL JUSTICE A HANDBOOK FOR JOURNALISTS, CITIZENS AND ACTIVISTS INSTITUTE FOR WAR & PEACE REPORTING
INTRODUCTION
A Quest for Justice BY MUSTAFA HAID
n February 18, 2011, more than a Syrian government officials attempted to standards. hundred Syrians gathered in the Al- quiet the public outrage by declaring their O More demonstrations followed in April 2011 Hariqa quarter of downtown Damascus to intention to release the detained children, when a video appeared showing dozens of protest the assault of a young man who had but the promises did little to calm the civilians in the village square of Baida, a quarrelled with traffic police and had been protests. community near the coastal city of Banias, severely beaten by three policemen. Despite the continued call for the release on the ground with their hands tied as The hundreds who gathered in Al-Hariqa as of political prisoners and trials for those heavily armed security officers trampled, the shops were closing chanted, “The Syrian accused of killing protesters, Syrian insulted and beat them while shouting people shall not be humiliated.” authorities did nothing except confront slogans that supported President Bashar peaceful demonstrators with more violence, al-Assad. Less than a month later, in early March, arrest and killing. Syrian authorities arrested more than The Syrian army and security forces a dozen teenagers and children in the Consequently, on March 29, 2011, subsequently attacked the city of Deraa southern Syrian city of Deraa for spray- demonstrators in Deraa moved from with tanks, leaving hundreds dead or painting several city walls with the words, demanding reforms to calling for the fall of injured. “The people want to topple the regime.” the regime. By the end of May 2011, banners in towns The next day, some 13 human rights activists On April 2, 2011, six Syrian human rights across the country were unfurled that called who had been detained at the Adra prison organizations issued a statement that for President Assad to be put on trial. As outside Damascus began a hunger strike. condemned the government’s excessive use more cities began to rebel, the chant could They issued a statement demanding an of violence as well as the “indiscriminate be heard throughout the country, “Good-bye end to the Syrian government’s practice of arrest of dozens of Syrian citizens” by Bashar, see you in The Hague,” a reference to arresting political opponents and refused Syrian security forces. the International Criminal Court. to recognize the government-imposed These organizations called on the Syrian Government security forces then began state of emergency that had been in effect government to meet seven demands. attacking cities such as Hama and Deir in the country for 48 years. The statement Demonstrators around Syria eventually El-Zor with heavy weapons, even as the holy also denounced the false accusations and adopted many of these requests: month of Ramadan began in August 2011. unfair trials the government used to punish
political adversaries. 1. Form a neutral committee to Syrians became frustrated as the killing and investigate the recent crackdown. destruction escalated in Homs, Deraa and This was the beginning of the Syrian Banias; the United Nations Security Council uprising two years ago, and protests only 2. Lift the state of emergency. remained deadlocked, with China and Russia grew larger as more demonstrations were vetoing efforts to condemn the Syrian held in Damascus and Deraa in mid-March 3. End political arrests and release government’s crackdown. 2011. Then came death. The first casualty political prisoners. of Syria’s uprising was killed in Deraa, on 4. Close the exceptional emergency When the late Libyan dictator Moammar March 18, 2011, when parents demanded the courts and annul their rulings. Gadhafi was killed in Libya following months release of their detained children and were of revolution there, Syrians fighting against confronted by security forces. 5. Legalise peaceful protest. the government began to shout, “We’re coming to get you,” indicating their desire to Following the killings in Deraa, protesters 6. Abolish discrimination against Kurdish see Assad meet a similar fate. demanded the end of the state of citizens. emergency, the demolition of secret As the Syrian uprising gained momentum, 7. Amend the constitution to conform to prisons and trials for those responsible for the opposition became increasingly visible internationally accepted human rights demonstrators’ deaths. in the new media. Youtube videos, Twitter
06 TRANSITIONAL JUSTICE A HANDBOOK FOR JOURNALISTS, CITIZENS AND ACTIVISTS INSTITUTE FOR WAR & PEACE REPORTING and Facebook updates transitioned from the Assad regime, but under their own featuring peaceful protests early in the leadership. uprisings to capturing a new phase of armed Meanwhile, a number of pro-regime militias struggle against the Assad regime by mid- have joined the fight against the Syrian 2012. opposition alongside the Syrian military. A number of factors pushed the Syrian Of late, sectarian discourse and practises opposition to take up arms against their have emerged. In most areas, the only form government and to seek revenge instead of of justice found is that which the victor accountability and justice. They include: imposes.
• Ever-escalating levels of violence As of this writing, the Syrian rebellion against the opposition by the Assad against the government led by President regime, including the use of heavy Bashar al-Assad continues in its struggle to weapons such as tanks, artillery, find victory, peace, and most importantly, helicopters, fighter jets and ballistic justice. missiles. ustafa Haid is a Syrian activist and • Massacres against civilians, especially Mdirector of Dawlaty, a non-profit women and children, which have been foundation focused on documenting confirmed by the United Nations’ human rights issues in Syria and proposing Human Rights Council, and the constructive, peaceful solutions for a post- increasing number of deaths due to conflict transition in Syria. The foundation’s torture and field executions. website can be found at www.dawlaty.org.
• Failure of the Arab League of Nations and the United Nations observers to address the demands for accountability and justice, despite the extraordinary effort made by demonstrators and opposition fighters to document violations and arrange for field visits for the observers to enable them to witness the crimes of the Assad regime.
• Failure of the United Nations’ Security Council to refer the Syrian case to the International Criminal Court, and the absence of any regional or international initiative to hold members of the regime accountable.
• Absence of state institutions and the rule of law, or any substitute for them, in the areas controlled by the opposition.
While many Syrians have grievances against their government, it seems that the civil war in Syria is likely to continue for the near-term.
Today in Syria, the opposition has no clear organizational structure. In addition, the conflict has seen the emergence of Salafist and jihadist militias, who also battle
TRANSITIONAL JUSTICE A HANDBOOK FOR JOURNALISTS, CITIZENS AND ACTIVISTS 07 CHAPTER I
Transitional Justice is Key to BY JEREMY SARKIN Long-term Peace and Stability
ransitional justice is a process used No two transitions are the same and no to prevent future violations. Reconciliation Tby societies in transition to deal with two transitional justice processes are the can be undermined, however, if it is believed past human rights and humanitarian law same. Countries do, however, look to the that only one side has been prosecuted violations. These actions may be judicial or experience of others to learn lessons and when all sides committed violations. non-judicial. see the positives and negatives of what Justice can occur in the ordinary courts processes were used elsewhere. While transitional justice is usually a of a country, but only if the courts can be domestic process, the internationalising Transitional justice mechanisms usually trusted, if prosecutors are sufficiently of accountability for violations has added focus on five areas: truth, justice, skilled, if requisite laws exist, and if another layer to the dispensing of justice reparations, reconciliation and guarantees sufficient evidence to prosecute and with the creation of international criminal of non-repetition. These processes may convict is available. Because of these tribunals, hybrid courts (mixed international include criminal prosecutions, truth and conditions, new courts may need to be and domestic), and the International reconciliation commissions, reparations established or the old ones transformed. Criminal Court (ICC). Regional and sub- programs, and ways to guarantee that such Internationalised courts may need to be regional systems also have a role to play, violations do not reoccur. This can mean the developed, and if crimes against humanity, especially with truth commissions and drafting of a new constitution or reforming genocide, or war crimes have occurred, such courts. an old one, as well as adopting new laws and cases can be referred to the International creating new institutions. Transitional justice mechanisms examine Criminal Court in The Hague, Netherlands. events in the past to determine what Requiring those responsible for committing States regularly use amnesties as occurred, to learn how to prevent their crimes to face justice is critical to ensuring conditions of transition and often are part reoccurrence, and to move society forward. respect for human rights and the rule of law of negotiations leading to the transition. in transitioning societies, and is necessary
08 TRANSITIONAL JUSTICE A HANDBOOK FOR JOURNALISTS, CITIZENS AND ACTIVISTS INSTITUTE FOR WAR & PEACE REPORTING
International law does not permit amnesty Truth commissions are intended to expose and it will need components that ensure for certain international crimes, however, and acknowledge past human rights abuses. truth, justice, reparations, reconciliation such as genocide, crimes against humanity, Official recognition can open a dialogue and processes to prevent human rights and war crimes. between individuals and the various groups violations from resuming. in the society. Amnesties have been used when there are There will need to be prosecutions, many perpetrators, all of whom cannot be Facilitating open and honest dialogue can certainly, and a truth commission will be prosecuted. Amnesties have been used create a catharsis and prevents, as I wrote helpful. Reparations that affect as many for certain types of crimes or for certain previously in the South African Journal people as possible ought to be considered. perpetrators, although where such blanket on Human Rights, a “collective amnesia, Reconciliation strategies are essential, amnesties have been used, they have which is not only unhealthy for the body including those that deal with issues of generated criticism. politic, but also, essentially an illusion – an citizenship for those excluded in the past unresolved past...[which will] inevitably and others that focus on the rebuilding of Lustration or vetting laws, sometimes called return to haunt [a society in transition].” society. The process needs to be inclusive political isolation laws, have been used in and include broad public discussion. It In the Middle East and North Africa region, conjunction with other processes to ensure needs to contribute to the rebuilding of there has been a focus in the last few years that perpetrators who are not prosecuted Syrian society as a whole. A revision of on regime change and a strong call to deal do not continue to hold public office. the constitution is probably necessary, as with the past through transitional justice. are new laws and new or reformed public Ensuring that state institutions are Countries in the region have debated it institutions. effective, credible, open and transparent and some aspects have been implemented. is necessary so that citizens trust them. Morocco had a comprehensive process Achieving long term peace and stability in Untransformed institutions can undermine including a truth commission. In Libya and Syria is dependent on getting a complete democratisation of societies and be a Tunisia similar processes are being planned. and widely accepted transitional justice barrier to reform. In Egypt there have been trials, and in Syria process.
Wholesale removal of all public officials transitional justice processes are being eremy Sarkin is Extraordinary belonging to one political party or one contemplated and discussed. Professor of Law at the University of political group can alienate people and can J Dealing with the past in Syria will be South Africa and a member and former hurt institutions because people with the necessary after the conflict ends. Many key Chairperson-Rapporteur (2009-2012) of skills needed to conduct business are gone. questions must be answered. Which period the United Nations Working Group on Such wholesale removals can cause a great ought to be dealt with? Should it be for the Enforced or Involuntary Disappearances. deal of resentment and can result in leading period from 2011 or from 2000 when Bashar He was an acting judge in 2002 and 2003 those excluded to resort to criminality and Al-Assad became president? Or should it be and National Chairperson of the Human opposition to the new state. Due process from 1971 when his father, Hafez Al-Assad, Rights Committee of South Africa from and carefully planned and executed vetting assumed the presidency? 1994-1998. His most recent book is of institutions is important to successful Germany’s Genocide of the Herero (2011). transitions. Other questions need to be answered as well. Should Syria prosecute low and mid- Learning the truth about the past is level officials, or should only senior officials essential so that the public can know be put on trial? Should a special tribunal be who did what, to whom, and the reasons created or should ordinary courts be used? that the violations were committed. Truth Should the ICC be called on? Should a truth also is essential for victims. They want to commission be established? What issues know what happened. This is why judicial should it focus on? How far back should it processes, including truth commissions, are look? Who should be on a commission and established. how should its members be appointed?
Approximately 40 official truth What reparations should be paid and are commissions have occurred around the there resources to pay individuals? Should world, as well as many unofficial ones. reparations be given in symbolic ways – for Places that have had such commissions example by changing names of streets and include Argentina, Guatemala, Morocco, building monuments and memorials? Peru, South Africa, Sierra Leone, Timor- Syria will need a comprehensive transitional Leste, Nigeria and South Korea, among justice program to address past wrongs others.
TRANSITIONAL JUSTICE A HANDBOOK FOR JOURNALISTS, CITIZENS AND ACTIVISTS 09 CHAPTER II
Lessons Learned from MENA BY MARWAN MAALOUF Transitional Justice
he Arab world has captured global The Egyptian revolution was similar. The Yemeni revolution, meanwhile, spanned Tattention since 2010 as popular Former President Hosni Mubarak stepped 13 months. About 2,000 Yemenis died and revolutions have ousted decades of down from the presidency after 17 days more than 22,000 were injured. The crisis authoritarian regimes throughout the of protests, but the death toll in Egypt ended with an agreement between the Middle East and northern Africa. exceeded that of Tunisia, with 850 deaths opposition and President Ali Abdullah Saleh, among protesters and security forces. which was backed by the Gulf Cooperation The consequence of each political uprising Mubarak, unlike Ben Ali, did not flee the Council and ended Saleh’s 30 years in power. has varied from country to country since country and remains in custody. the conflicts differed in how they were The revolutions in all four countries took conducted, how long they continued, and The Libyan revolution was different in that divergent courses, consequently leading to how difficult each was. it quickly developed into a violent conflict different tracks for transitional justice. after the initial spasm of protests and The Tunisian revolution, for instance, was The Yemeni experience is significant uprisings in February 2011. Lasting for more swift and relatively nonviolent. Just 27 because the agreement that ended the than eight months, the Libyan uprising came days after protestor Mohamed Bouazizi crisis granted amnesty for Saleh while at a much higher cost, and the protracted set himself on fire, dictator Zine El Abidine officials in his government gained immunity conflict between rebels and the forces of Ben Ali fled the country, ending more than from prosecution. This agreement defined Moammar Gadhafi ultimately drew foreign two decades of control. About 330 people transitional justice in Yemen. intervention and killed an estimated 30,000 lost their lives in the Tunisian revolution Libyans and injured more than 50,000. Yemen is an example of what Syria and slightly more than 2000 were injured, The conflict ended with the extra judicial could face as the crisis continues and as far less than the human toll of the Syrian execution of Gadhafi by the rebels shortly stakeholders consider negotiations with the revolution. after his capture. Syrian President Bashar al-Assad’s regime.
10 TRANSITIONAL JUSTICE A HANDBOOK FOR JOURNALISTS, CITIZENS AND ACTIVISTS INSTITUTE FOR WAR & PEACE REPORTING
Libya also is comparable to Syria since focusing on the martyrs and missing victims Some draft laws included a host of well- its armed rebellion was waged against an of the political uprising. known justice mechanisms, but were autocratic government notorious for using unrealistic given the various countries’ While these steps were welcomed, they also violence to silence political opponents, capacities, resources and political contexts. have suffered from politicization and a lack including the employment of killing and Some of the proposals required additional of resources, two factors that have delayed disappearing people as tools of oppression. laws to be adopted and this slowed the results and compromised the process. process. The Tunisian experience with transitional In Tunisia, various transitional justice laws justice is also valuable. At first it seemed In Libya, the transitional justice laws contain have been proposed, one by the Ministry to evolve smoothly, but it has encountered biases. Islamist parliamentarians have of Human Rights and Transitional Justice, stumbling blocks and critics have accused proposed “political isolation laws” that another by the National Constituent some people of using the process as a would exclude Gadhafi-era officials from Assembly, and yet another proposed by political tool. holding public office, even though such laws the Ministry of Justice, that would exclude ignore the reality that many Islamists were allegedly corrupt judges from the process. While Yemen is unique in the Middle East, allies of the Gadhafi regime. since amnesty allowed for a peaceful Debate over these proposals slowed the resolution to the conflict, it has faced progress of transitional justice. The Tunisian and Libyan experiences show criticism because amnesty precluded the that laws that marginalize the former Egypt, Libya and Yemen also have drafted prosecution of violations of international regime have not been introduced to laws that define transitional justice in the human rights laws, undermined the rule of strengthen the administration or establish post-revolutionary period as civil society law, and did not offer accountability. Human a transparent democracy, but were political and governments agree that a framework rights activists contend that Yemen’s tools designed to hurt opposition figures in must exist for the justice mechanisms to amnesty was unfair and helped create a the name of accomplishing the goals of the address past abuses. general sense of impunity for government revolution. officials. Activists also say the amnesty Transitional justice laws have given human A recent report by the International Center was useful only because it allowed the rights activists and civil society groups an for Transitional Justice noted that Iraq’s opposition to gain control. opportunity to discuss opportunities for political isolation laws, which purged the families of the victims and the general Syrians may also consider negotiations the country’s post-2003 governments of public to identify priorities. In Tunisia, as an option to end the war. However, the Saddam Hussein-era officials, also created this dialogue raised awareness about Syrian opposition and civil society groups problems. the importance of participating in the should cautiously discuss amnesty because transitional justice courts. Post-revolution lawmakers have been it could preclude the prosecution of human encouraged to establish laws that rights crimes and therefore hurt the fair The process of drafting new transitional investigate the political backgrounds of dispensation of justice. justice laws in all three countries has taken those in question, while setting clear criteria a lot of time and has created frustration due If granting amnesty is the only way to for those individuals who would be excluded to the public’s demands for swift action in end the bloodshed, however, it should from the political scene, for what reasons the post-conflict era. be considered since amnesty does not and for how long. prevent society from taking alternative The proposed laws also appear A common factor across all the Arab world’s courses of action in the future. For example, compromised. Two years into the transition, experiences in dealing with past political Argentina’s supreme court overturned the Libyan and Yemeni transitional justice figures is that transitional leaders have amnesty for the former Junta’s top officers laws had to be redrafted after civil society responded to the popular demands of the 20 years after the amnesty laws were and legal professionals criticized them revolution. Some of those demands have adopted. because they introduced mechanisms that called for complete disconnection from all lacked national consensus. A strong desire to deal with issues of the forms of pre-revolutionary politics. past is the cornerstone of comprehensive For example, Tunisia’s law proposed This has led to the introduction of some transitional justice. In Tunisia and Libya, an arbitrations to deal with financial abuses extreme measures such as political isolation active civil society and a population with a and punishment under the penal code for and exclusion, rather than less vindictive strong political will launched early efforts at human rights abuses. Though this might and more constructive concepts of vetting. transitional justice. seem a logical approach to financial crimes, it took place without national consensus or Just as Yemen, Libya, Egypt and Tunisia have In Tunisia, a ministry of human rights and dialogue. followed their own paths to transitional transitional justice was created. In Libya, a more specialized ministry was established,
TRANSITIONAL JUSTICE A HANDBOOK FOR JOURNALISTS, CITIZENS AND ACTIVISTS 11 INSTITUTE FOR WAR & PEACE REPORTING
justice, Syria must as well. As Syria moves into the future, it would be wise to learn from what has happened to other countries in the region that have experienced similar conflicts, and not repeat the mistakes of the past.
arwan Maalouf is a Lebanese Mhuman rights lawyer focusing on the rule of law and political reforms in the Middle East and North Africa. He is co-founder of Menapolis, a consulting company specialized in the production, dissemination and implementation of development and democratic ideas in the MENA region.
12 TRANSITIONAL JUSTICE A HANDBOOK FOR JOURNALISTS, CITIZENS AND ACTIVISTS CHAPTER III INSTITUTE FOR WAR & PEACE REPORTING
Transitional Justice in Syria: BY MUSTAFA HAID Scenarios of Implementation
yria has endured a repressive regime and have played a prominent role in justice in Syria will depend on the situation Swith a long record of human rights the crackdown on demonstrations and in Syria once the conflict ends. Justice may violations since the Baath party assumed extrajudicial killings in the on-going conflict. ultimately come from a political agreement power in March 1963. between the warring factions, or it could Within months of the March 2011 uprising, be the result of a military victory by one of Syrians suffered from widespread, the Syrian conflict became violent due to the warring parties. It could also grow out systematic violations of their basic human the disproportionate use of force by the of an intervention by a foreign force to end rights under the late President Hafez al- government and its affiliated militias. the war. Assad and his son and current president, Not only did this cause the collapse of the Bashar al-Assad. Murder and forced Transitional justice will also depend on Syrian state and diminish the legitimacy disappearances have compounded the the political transition in Syria. The quality of its institutions; it also produced serious violations of Syria’s basic civil, political, of the process will be affected by the social, geographical, sectarian and ethnic social and economic rights. justifications for the chosen process, and divisions that are becoming more deeply the demands of the Syrian people. Some of these violations have taken an rooted as the conflict continues. official status since they were enacted Transitional justice could be imposed by There are signs that the state has according to governmental and presidential international players and conditioned by disintegrated, as evidenced by the absence decrees, and legislation. financial aid for reconstruction. It could of the rule of law and discontinued services also be the result of a combination of Informal, loosely organized paramilitary such as education. This poses a real both national and international demands groups known as shabiha have also challenge to any future government in Syria. and include national, international or joint committed violations. These militias were Because the administration of justice is the tribunals. active before the March 2011 uprising job of the state, the nature of transitional
TRANSITIONAL JUSTICE A HANDBOOK FOR JOURNALISTS, CITIZENS AND ACTIVISTS 13 INSTITUTE FOR WAR & PEACE REPORTING
Regardless of the time or form of the of the ruling family on trial? Or, should a ustafa Haid is a Syrian activist and political transition in Syria, the country will new government refer key members of Mdirector of Dawlaty, a non-profit face many critical challenges. The most the Assad regime to the International foundation focused on raising awareness important will be how a young and fragile Criminal Court in order to avoid unwanted of human rights issues in Syria and government can control strong oppositional clashes between Assad’s supporters and proposing constructive, peaceful solutions militias that have various allegiances and opponents? for a transition to democracy in Syria. agendas. The foundation’s website can be found at A referral to the ICC could help to prevent dawlaty.org. A new government must deal with deep what happened to former Libyan dictator social, geographical and sectarian Moammar Gadhafi from also happening to divisions, the size and effects of which are Assad or members of his regime. Trials of unpredictable. It must rebuild a devastated low-ranking officials, meanwhile, could be infrastructure and cope with a high number held using customary legal procedures well of internally displaced people and refugees. known in Syria. It must face a scarcity of financial resources One of the most important characteristics and a deteriorating economy. It must work of justice is timeliness. There must be a with a multitude of local, regional and guarantee that transitional justice will international actors, individuals, groups and respond to demands of accountability and governments. help restore the rule of law. All of these issues will impact the ability Any judicial procedure should also of Syria to implement transitional justice recognize that transitional justice is a and will determine whether transitional long term process. Victim recovery, the justice will be imposed by the victor or will restoration of citizen faith in the state, be reached by general and international and the reform of society require time. consensus. Transitional justice should include clearly A political transition brought about defined tasks to be quickly completed as by either international intervention or well as long-term goals. negotiations will have a positive effect on Transitional justice can only be legitimate transitional justice, rather than a transition when it has the support of a broad spectrum accomplished by armed conflict. of stakeholders, and must include various However, a transition based on negotiation members of government institutions and that might include amnesty for President non-governmental organizations and civil Assad and key figures in his regime – all society. Achieving this may be difficult due officials who have been implicated in war to the absence of a strong civil society crimes and crimes against humanity – will in Syria and the lack of political and undoubtedly diminish the chances of institutional life in past decades. achieving accountability and justice. This Finally, the complex situation in Syria, with could pave the way for personal vendettas many actors involved and the scale of and the loss of public faith in law and the crimes committed, as well as the absence concepts of justice and accountability. of a realistic and acceptable vision While a new government might establish a domestically and internationally, make it special criminal court as an independent difficult to predict when and how a political interim judicial body that functions within transition and transitional justice will take the Syrian legal system, one must ask place. whether it will be established according to What is obvious, however, is that time is not internationally or nationally agreed-upon on the side of victims or justice. The longer standards, or other standards that are the conflict in Syria continues, the smaller determined by the triumphant party. the chances of achieving democratic Should such a tribunal function under the change, transitional justice, or any other authority of the Syrian state and put high- acceptable form of accountability. ranking government officials and members
14 TRANSITIONAL JUSTICE A HANDBOOK FOR JOURNALISTS, CITIZENS AND ACTIVISTS CHAPTER IV
Options for Syria: Amnesty, BY JEREMY SARKIN Reparations and Compensation
comprehensive accounting of the law, international human rights law and Even-handedness is critical. Prosecutions A past is considered a vital element for international criminal law. cannot be aimed or perceived to be directed a successful transition to democracy. Yet solely at one community, such as the This means that the state has a duty to achieving national reconciliation, building Alawites. punish offenses against peace, war crimes, unity and reconstructing the institutions crimes against humanity and genocide. In States can and have been held accountable necessary for a stable political and the Syrian context, the crimes that have for not exercising their responsibilities to economic system often seem to conflict to be prosecuted include crimes against prosecute or extradite in various courts at with efforts to deal effectively with the humanity and war crimes. the international and regional level. Thus, past. the possibilities for amnesties have been Those who committed offences need to be Facing the possible tensions between narrowed in recent years. prosecuted regardless of which side of the justice and peace, the transitional process conflict they were on when they committed Amnesties can have a reconciliatory entails tremendous challenges. The needs the offences. This does not mean that effect if done in a careful, comprehensive, of victims and society as a whole must be everyone who committed crimes ought to inclusive and transparent way. If it is balanced against the political reality of a be prosecuted, however. affected for all, and not one sided, then it new government, which may have inherited may promote understanding and tolerance. a fragile state and may have limited political At least some senior political and security If there is an amnesty, it should apply power. force officials ought to be held to account. in narrow circumstances, be given on Senior rebel commanders also ought Some of the major questions faced by new application and in exchange for information to be prosecuted, if they committed governments are whom to prosecute and on what was done, to whom, and the serious offences, particularly if they were how many to prosecute. States have duties circumstances in which the violations were widespread or systematic. to prosecute certain offenders and this duty committed. derives from international humanitarian
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A Syria in transition ought to contemplate as focal points in the grieving process, and or mental damage, guarantees of non- a truth and reconciliation commission to can aid recovery by allowing individuals repetition, restoration of personal liberty, create a comprehensive record of human to deal with their grief. There is also a family life, citizenship, employment or rights abuses. Such a process ought to dimension of dignity in the sense that property, or a return to one’s place of record the nature and extent of the crimes, those abused in the past believe that residence. and archive a full record of the names and some degree of assistance to reclaim their Symbolic reparations should also be fates of the victims. dignity ought to occur. provided. These can include measures that Only by publicly and collectively Reparations should be given in stages, with facilitate communal remembering and acknowledging the horror of past human interim or emergency relief being given commemoration of the pain and victories rights violations will it be possible for quickly to those in dire need. A phased of the past. National holidays ought to Syria to establish the rule of law and a approach is important as reparation be established in memory of events and culture of, and respect for, human rights. programs can take time to establish victims. and securing adequate funding is often The truth commission must have a wide Schools, buildings, streets and airports challenging. mandate, sufficient resources and staff, can be renamed after events or victims. full access to the information it needs, A reparations process requires care and Monuments and plaques should be and sufficient time to carry out its work. It planning. It is very common to have a erected. Prisons and military bases closely also needs political support, sufficient and truth commission, or other mechanism, associated with the conflict should also wide investigation powers, and the ability responsible for mapping the issues and be either renamed or closed. It is also to make recommendations. It must compile documenting the number of victims important to issue death certificates, a report of detailed findings. It must make and violations; the commission then expunge criminal records and expedite any comprehensive recommendations on a recommends reparations that the outstanding legal matters. whole range of issues. government can implement. This process Reparations should also contain should be followed in Syria as well. Regarding reparations, the transitional processes that entrench democracy Syrian state will also have responsibilities. A Syrian reparations process should to and good governance. The new Syrian The United Nations established the nature be designed to maximize the resources state should adopt legislative and other of state responsibility for providing available. Reparation can encompass a measures to guarantee non-repetition. reparation to victims in the “Basic variety of concepts including damages, The government should expend resources Principles and Guidelines on the Right to redress, restitution, compensation, on demilitarization and reintegration a Remedy and Reparation for Victims of rehabilitation and satisfaction. programs. Gross Violations of International Human Each of these concepts has a unique The process should also ensure that there Rights Law and Serious Violations of meaning although they are often used is effective control of military and security International Humanitarian Law.” as general terms to encompass all the forces, restrict the jurisdiction of military “Principles and Guidelines” provides that different types of remedies available to a tribunals, strengthen the independence of the state is responsible for violations even victim. the judiciary, protect the legal profession when the violations were perpetrated by and human rights workers; and provide Reparations can be individual or non-state actors. A variety of human rights human rights training to all sectors of collective, symbolic or material or a institutions have held that states can be society, in particular, to military and combination thereof. It may be useful for held responsible for the actions of non- security forces and to law enforcement the process to focus on collective and state actors in specific cases. This means officials. symbolic forms of reparations. that all violations committed in Syria will eremy Sarkin is Extraordinary be the responsibility, from a reparations Reparations should have a component that Professor of Law at the University of point of view, of the transitional state. returns what has been lost, for example, J South Africa and a member and former documents and land. Rehabilitation also Reparations will be important as they fulfil Chairperson-Rapporteur (2009-2012) of ought to be provided and this may include a variety of functions. Firstly, victims are the United Nations Working Group on medical and psychological care, legal able to cope with the financial deprivation Enforced or Involuntary Disappearances. and social, and other types of care and that they have suffered; and secondly, He was an acting judge in 2002 and 2003 services. It should also include measures they allow official recognition of the and National Chairperson of the Human to restore the dignity and reputation of past; and thirdly, reparations deter future Rights Committee of South Africa from victims. perpetrators from committing similar 1994-1998. His most recent book is violations. A reparations process must have Germany’s Genocide of the Herero (2011). rehabilitation processes for any physical Reparations, symbolic or otherwise, serve
16 TRANSITIONAL JUSTICE A HANDBOOK FOR JOURNALISTS, CITIZENS AND ACTIVISTS CHAPTER V
Vulnerable Groups: Women BY MARIAM ABDULLAH at Risk
m Hassan stops talking, then extends we were banned from even passing in front “My sons’ blood should not be spilled in Uher trembling hand to wipe the of the funeral tent, we had our own seats in vain,” she says. “After the fighting stops, portrait of her son, the third to be killed in the men’s tent,” Um Hassan said. everybody should admit that my sons were the Syrian conflict. She murmurs, “May God killed for the sake of the homeland. Their When weapons appeared and the Free forgive whoever has done it.” murderers should be fairly punished by Syrian Army (FSA) was formed, women courts and not at the hands of ordinary Um Hassan – a pseudonym – was among were forced from the front lines under the people,” Um Hassan says. the first women in the town of Douma, pretense that they, as representative of outside Damascus, to take to the streets their families’ honor, were in danger. “Also, my husband should not be my boss following Syria’s March 2011 uprising. She anymore. I, too, have suffered and there is The Assad regime used the presence is typical of the Syrian women who see the a lot that I can do. I will no longer accept of women in the uprising to arrest and revolution as a path to change and who injustice after I have known what it is like reportedly torture women. As rumors want to influence the uprising as much as to resist and say ‘no.’ I, too, have changed.” spread that women were raped in prison, men. and as some cases were documented, it Syrian women pushing for social change Explaining that she wanted to fight against led to honor killings. include writers, artists, lawyers and the injustice she had suffered in a male- doctors who have participated in the Um Hassan eventually fled to a refugee dominated society, Um Hassan started revolution and who have also suffered center in the Bab Mousalla quarter in writing, drawing, singing and chanting in repression. Some have been arrested and Damascus. Despite her pleadings, her sons demonstrations. tortured. joined the FSA. Yet, she continues working When she took to the streets, she exposed for the revolution, and holds dear her A journalist in her twenties, who goes by herself to the same dangers as men. “After remaining son and three daughters. the pseudonym of Rand for fear of being
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targeted by the government or an armed Syria’s Women, believes that women will rights include the Women’s Initiative, the group, lost the man she loved when he was suffer if the Syrian public does not accept Center for Equality, the Committee to killed while filming fighting in Syria. Rand transitional justice. Advance Women’s Causes, and the League has participated in demonstrations, has of Syrian Women. The proposed quota for Women have suffered, al-Sabe says. They been persecuted, and was forced to leave women’s participation in future reform have been victims of rumors, threatened Syria. Today, she remains bitter and cannot committees is set at only 20 percent. with kidnapping and rape, told to wear forgive the crimes and killing that have conservative clothing or face sexual assault, Two of these committees, the military occurred. and have been ordered to restrict their and clergy committees, do not include Rand rejects financial compensation for movement outside the home. any females, even though the National the past wrongs, considering it an insult Preparatory Committee for Transitional Women need transitional justice based on to the dead. Nonetheless, she hopes the Justice, which was formed in Istanbul on the rights of citizenship, activist Khawla blood that has been shed will contribute to January 1, 2013, asked that 40 percent of its Dunia says. building a new Syria. members be women. Women have suffered from poverty, a lack Women have been excluded from the Hallaq says the trend continued with the of education, physiological illnesses, and political arena, Rand says, due to the lack of women’s representation on local the loss of loved ones. These issues must spread of militarism and Islamic extremism. councils in opposition-controlled Syria. be addressed with new health, legal and Syrian women will not have a fresh start political activism, Dunia says. “During the elections of the Aleppo’s local unless they assume an active role in a new council, there were women candidates, but government. Dunia notes that financial compensation they were not capable of defending their must be given to the whole family, not just “We have to turn a new page in Syria,” says presence or enforcing a quota for women’s men, otherwise women will be left in poverty Rand, who started her own cultural project representation,” Hallaq says. “Women’s if they are divorced. to support Syrian children. organizations must prove their presence, Lawyer Wissam Jalahej, member of a group now and during the upcoming phases.” A new Syrian government must adopt laws called “A Project of Citizenship,” or Mashru’ that respect human rights, she says, and Women in transitional countries have been Muwatana in Arabic, believes that women existing laws need to be changed, especially subjected to abuses by the regime and their suffer the most in armed conflict because ones that govern inheritance and personal male-dominated societies. The authorities they are subject to violence and sexual status. must prevent these abuses during the assaults. implementation of transitional justice in Khawla Dunia, an activist who was arrested Yet, women’s needs are rarely taken into Syria. and tortured along with her husband, and account during the conflict or post-conflict who is currently being sought by Syrian ariam Abdullah is a Syrian journalist period. Transitional justice, says Jalahej, security, agrees. trained by IWPR who writes under an must consider gender in all post-conflict M assumed name. “Women pay the highest price in all phases, such as trials for war crimes; situations,” says Dunia. Transitional justice, national dialogue; compensation for injury, already a concern of those affected by the damage, imprisonment or torture; and conflict, is even more important because activities to memorialize victims. the Syrian state of repression continues. Gender analysis must be performed during Women pay a double price, Dunia says, to the reform and rebuilding of institutions, he their families and to society, which is why says. Women must be fairly represented and it will take longer for women to become should be given equal right to access courts fully active members of the society. Women and legal committees. The implementation are victims in men’s wars, Dunia says, and of these of processes should be without urges the adoption of laws that address the discrimination, he says. condition of women. Women’s organizations in Syria are wary of Dunia rejects indiscriminate revenge, and the Syrian National Council and the National supports fair trials, believing that there is Coalition because they are male-dominated, no alternative for judicial institutions, which as is the regime’s Ministry of National can rehabilitate society. Reconciliation, says Sabah Hallaq, a member of the League of Syrian Women. Sanaa al-Sabe, a displaced person and former member of The Observatory of The organizations advocating for women’s
18 TRANSITIONAL JUSTICE A HANDBOOK FOR JOURNALISTS, CITIZENS AND ACTIVISTS CHAPTER VI
Engaging the Public: Civil BY YOUSSEF KANAAN Society in Transitional Justice
he two-year conflict in Syria has left rebels.” Since different parties share the tens of thousands killed, wounded responsibility for the violence, a new T Taleb thinks that the Syrian situation “has or displaced. Both sides have committed government dominated by any one group evolved into a dirty war that crossed the red severe human rights violations. Syria must will lack credibility in the post-conflict line and violated the rules of war as well as prepare for a transitional justice process, period, some suggest. As a result, civil international and local laws.” just as other countries in the region that society organizations must play a crucial have undergone violent regime change. Salma Huneidi, an activist from the Relief role in pushing forward the process of Committee of Jaramana, a neighborhood in transitional justice. “In Syria there was a popular revolution Damascus, said that chaos began to spread that started out peacefully, demanding Unlike Taleb, who thinks that civil society as opposition fighters gained control on freedom, dignity and social justice,” said members and organizations should have a the ground and the regime lost military Ihssan Taleb, a member of the Workshop central role in achieving transitional justice, positions. to Protect National Unity and Criminalize Huneidi does not see a role for civil society Sectarianism. “Chaos has been spreading in the ranks in ending the violence. This is a political of the armed opposition,” she said. “It has issue that is related to the negotiations “[The revolution] was met with violent affected the structure, loyalties and goals between the regime and the opposition. security solutions, and the confrontation of the battalions.” then turned into a purely military one,” “I don’t believe there is a big role for civic Taleb said. “The authorities went too far Huneidi said she fears for the revolution and and community organizations that were in committing mass liquidation. They have its goals as violence and counter-violence born during the revolution in ending carried out very harsh reprisals by resorting continues, especially with the emergence of violence during this phase,” she said. “This is to concentrated shelling, targeting Salafist and extremist movements that are a political process related to negotiations populated areas that offer refuge to the far from the nature of the Syrian people. between the regime and the opposition.”
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The role of civic organizations is to support democratic state based on the rule of law As the conflict continues in Syria, fighters peace after the end of violence, Huneidi and respect for human rights. This new pact on both sides may resort to violence to said. “We have no doubt that, in the future, could help heal the effects of the painful evade punishment, said Mohammad Dibo, we have the ability to influence the process past. an independent Syrian writer. In such of civil peace and national reconciliation,” situations, offering concessions to stop the In order to reach a national consensus she added. war and the bloodletting is necessary. on such difficult issues, Taleb believes all Huneidi points to civil society’s role in relief Syrians must be involved in the discussions, A distinction must be made between former work. even extremist parties. fighters and their leaders. This would provide trials for the worst offenders, such “At our organization, we see that realizing “Civic organizations have gained legitimacy as officials and warlords, and reduced this goal includes documenting crimes and on the street through all sorts of relief sentences for regular fighters. This would violations, irrespective of the party that has activities – providing food aid, medical aid, encourage an end to the fighting. accommodation and clothing – and have committed them,” he says. “It also includes gained people’s trust,” Huneidi said. dialogue with extremist groups and seeks However, such a policy would be prohibited to reach a national accord with them. They for those found to have committed serious “This is what we do in Jaramana through should not be looked at condescendingly, crimes, such as genocide, crimes against the Jaramana Relief Committee. It offers nor should the problem be ended with humanity or torture—crimes for which services on the basis of humanitarian dogmatic, totalitarian rulings. Transitional international law prohibits granting criteria, away from politics, which means justice is a real, social, legal and intellectual amnesty. that the beneficiaries are displaced issue.” people from different backgrounds – both oussef Kanaan is an IWPR-trained supporters and opponents of the regime.” Noureddine Nasser, a member of Together YSyrian journalist. for a Free Democratic Syria and the head An activist who works in refugee camps and of the group’s office in the coastal city of who spoke on condition of anonymity said Tartus, supports the idea of including all that negotiations around transitional justice opposition groups in talks regarding Syria’s should include internally displaced Syrians future. as well as refugees abroad. “There should be representatives of all “In addition to returning these people Syrian groups in the constituent assembly, to their homes and the areas they had including representatives of the full to leave during the conflict, refugees spectrum of the opposition,” Nasser said. need to be reached where they are and “At the forefront of these, there should be actively included in the talks related to people involved in the popular protests in the transitional process, considering the Syrian towns and cities. There should also multifold suffering they have been through,” be members of the regime whose hands the activist said. have not been tainted with the blood of
Including displaced Syrians in and out of the the people or the [looted] riches of the country in a transitional justice discussion homeland.” could be difficult, however. The United According to Jad al-Karim al-Jibaaei, a Nations High Commission for Refugees Syrian intellectual who helped found the said in early March 2013 that the number of Movement of Secular Democrats, reaching Syrians considered as refugees had reached agreement on a democratic constitution the one million mark. requires that all ethnic and sectarian groups
“With a million people in flight, millions are treated equally, regardless of size. more displaced internally, and thousands of “It has little bearing on the value of these people continuing to cross the border every groups if their members are numerous or day, Syria is spiraling towards full-scale not,” he says. disaster,” said António Guterres, the UN High People from different political and ethnic Commissioner for Refugees. groups in Syria should not be hypocritical,
Under such circumstances, talks on al-Jibaaei said, and must be honest with a national level should lead to a new each other in the process of drafting a new constitution that paves the way for a constitution.
20 TRANSITIONAL JUSTICE A HANDBOOK FOR JOURNALISTS, CITIZENS AND ACTIVISTS CHAPTER VII
Transitional Justice - The Role BY ALIA AHMAD of Social Media
uman rights’ violations in Syria Arab Spring, blogs and social media for Human Rights, believes that social media Hhave increased and continue to be such as Facebook, Twitter, and YouTube can help broaden and clarify the concept of committed by various parties after peaceful are no longer limited to recreation and transitional justice. protests receded in the face of militarism entertainment. “The concept has been restricted to those by the al-Assad regime. Social media have become important interested in human rights,” Rjeibi said. The need for and information about sources of news and information, and as “In social media networks, however – for transitional justice must be spread as the phenomenon of social media activism example Facebook – [transitional justice] widely as possible since it allows for has spread, average citizens have become has received wide criticism from the public those responsible for criminal violations independent journalists. because people have not adequately to be held accountable; encourages the understood the meaning of [it].” The Tunisian revolution, the first in the Arab repairing of social and political damage; world, was called the “Facebook Revolution” Rjeibi points to a Facebook campaign that spurs national reconciliation; and attempts as Tunisian youth used it to mobilize action promoted transitional justice in Libya but to insure that mistakes of the past are not on the street. found very few followers. “Transitional repeated. justice will not materialize unless the Yet, social media are lagging when it comes The participation of all parties, not only government follows a policy of dialogue to transitional justice, said Tunisian activist civil society and community organizations, among Libyans,” Rjeibi said. Maha Jouini. “Legal organizations…worked but also news and social media, are needed on the issue of transitional justice,” she said. In Syria the role of social media in to promote transitional justice and the “But the issue was not actually addressed in promoting transitional justice has been mechanisms to achieve it. social media.” weak, said activist Muhammad al-Abdullah, Given the role they have played in the who goes by a pseudonym. Libyan activist Leila Rjeibi, of Birds of Peace
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“People involved in social media need to be people who have suffered like them will has been abused?” Iman asked. “Is it not more…rational,” Abdullah said. “Their effort encourage them to speak out about what enough that I was deprived of my freedom should be concentrated on shaping public happened to them and will contribute and arbitrarily arrested and subjected to opinion in a way that serves the country and to revealing the truth and holding the psychological torture?” its people, because the current phase [of perpetrators accountable,” he said. Iman said that she wanted to “say what the war] is one in which the fate [of Syria] is But those collecting stories must be careful, happened to me in order to serve the truth being decided. They should make sure not Kanaan said, because interviewing victims and prove that I’m not wrong when I defend to alienate those who are hesitant [to stand of human rights abuse is different from my free thoughts.” against the regime]. They should also stay conducting other types of interviews. away from sectarianism.” Several media activists and administrators “The victim should be told that the interview of pro-revolution Facebook pages Relief activist Milia Amdouni thinks social will be published and will serve to document have been arrested and persecuted for media can help spread the concept of the case for the use of legal bodies,” Kanaan documenting violations. Some were transitional justice to many sectors of said, adding that the journalist should arrested by the rebel security services society. also “make sure the victim feels safe from when they exposed wrongdoings of the “Our generation has been sheltered from any harm by not revealing his or her name opposition fighters. these concepts for a long time, and now without prior consent.” Such is the case of Muss’ab Hammadi, who we’re experiencing their meaning anew,” Ola, who also asked that her real name not was arrested by rebels for reporting on Amdouni said. “The way these concepts be published, is a relief activist who was acts of theft and forcing people to pay are discussed in social media is extremely arrested by security forces four months protection money. Hammadi later escaped. important. This is one step in the thousand- ago. mile journey of establishing respect for Exposing rights violations committed by different opinions.” “They came to [our] house around midnight only one party or another does not serve and took me with my brother without telling the truth. Finding the truth and reporting it Eyyas Qa’douni, head of the Saraqeb office us what our charges are,” Ola said. “What I requires taking risks. This presents dangers of the Civil Society and Democracy Center, clearly remember is their ability to stall and to the journalist and/or media activist, so believes that “social media are a successful give me false promises in order to make me rules of safety must be observed. means, not to spread certain beliefs, but to [give information]. Once they couldn’t, they prepare people for accepting them.” A journalist/media activist should not be worked on destroying me psychologically.” on the frontlines without protection. He According to Qa’douni, transitional justice “I (was released) a month later because or she should not work in areas where they needs to be put in practice, but in Syria, there was no evidence against me,” Ola said. do not know anyone, since this can lead to “there is a shortcoming on the part of social “I experienced as much cruelty during this accusations of spying. They must also not media outlets in promoting transitional month as I did in my entire life. I don’t think I break the law by carrying weapons or illegal justice; there’s no activity that clearly can easily forget…it.” items. supports it.” Ola said she does not like journalists and News and social media play critical roles Social media is among the “most important activists who ask “close-ended questions in spreading information throughout tools” to engage youth and activists in that could only be answered with a ‘yes’ Syrian society. Social media also faces the awareness campaigns that “make them an or a ‘no.’” I prefer questions to be open- challenge of filling the void of credible essential part of [a certain] project,” said ended so that I could freely express what news content since mainstream news media media activist Wassim Hassan. is on my mind and what I think is important has become highly politicized. While the Social media training also teaches people and affects me personally, without any conflict continues, it is important that social how to document human rights abuses and interference from the interviewer.” media promote the concepts of transitional exert pressure on officials. It provides a link justice, enabling Syria to find a future of Iman is a Syrian woman who was arrested between people and trusted parties that peace and reconciliation. three months without being clearly accused monitor human rights abuses. of anything. She asked her last name not be lia Ahmad is an IWPR-trained Interviewing victims and publishing their published. When she was released, activists Ajournalist who writes under a stories through social media is important wanted to use her story [for political ends] pseudonym. to achieving transitional justice, said media and asked her to claim that she was raped in activist Youssef Kanaan, who goes by a order criminalize the regime. She refused. pseudonym. “Does a woman have to be sexually “Making silent victims feel that there are assaulted so that we acknowledge that she
22 TRANSITIONAL JUSTICE A HANDBOOK FOR JOURNALISTS, CITIZENS AND ACTIVISTS CHAPTER VIII
Addressing Syria’s Enforced BY RADWAN ZIADEH Disappearances
nforced disappearances have been a have increased exponentially, but reliable homes, workplaces, or upon arrival at the Epillar of Syrian authoritarianism since numbers are difficult to verify. airport after returning from abroad. They the early 1980s, when armed confrontations are not given the opportunity to object, According to the Syrian Network for Human between the Muslim Brotherhood and to seek legal counsel, or to contact their Rights, 194,000 individuals have been Hafez al-Assad’s government led to the families. arrested in Syria since March 2011. Of disappearance of many citizens. those, the Network estimates that some The security agencies conducting the The fate of many missing persons remains 60,000 have been forcefully disappeared. arrests often do not identify themselves unknown. The term “missing” usually refers Again, these numbers are difficult to verify, and do not give the reason for the arrest to a person who has disappeared and whose in part because families of victims often either to the arrested person or his/her disappearance cannot be linked to official refuse to speak to human rights violation family. Sometimes a wanted person is authorities, but the term is synonymous investigators out of fear for the lives of summoned to a security branch office and with enforced disappearances and is used in their imprisoned relatives. never returns. Syrian legal documents. Both political arrests and forced When a family inquires at the security Between 1979 and 1990, an estimated disappearances are at the forefront of the agency that took their relative, they receive 17,000 people went missing in Syrian Syrian regime’s violations of human rights. either inconclusive answers as to the prisons and interrogation centers. Some Indeed, political arrests by the security whereabouts of their loved one or denial of sources claim the number is as high as branches were, in most cases, a prelude his detention. 25,000. to the forced disappearances that many Such arrests constitute inhuman treatment Syrians suffered. Since the Syrian Revolution began in that lead to significant deleterious effects March of 2011, enforced disappearances Syrian citizens are usually arrested at their on the detainee and his family. The effects
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of what happens after the initial detention prisoner’s presence, making his location and at the Institute for Social Policy and are more severe. fate completely unknown to his family. Understanding (ISPU) in Washington D.C.; and managing editor of the Transitional Addressing and resolving the vast number Lack of control over the security agencies’ Justice in the Arab World Project. activities, the absence of the rule of law of missing and enforced disappearances by and an independent, transparent judiciary both Bashar al-Assad and Hafez al-Assad’s process in such cases allows the agencies to regimes will be an important and major task practice brutality. Torture is a common tool during the coming period of transitional to extract confessions, as explained by Abd justice for Syria’s eventual new government al-Hay al-Sayyid, in his 2005 article titled, and leaders. “Accountability of Security Services in Syria The issue of the missing persons should be within Syrian Law.” a top priority for any future government The situation has only gotten worse since after the fall of the Assad regime. This is the beginning of the uprising in Syria. important for two reasons: First, because of Amnesty International pointed out in its the high number of people who are missing, report about enforced disappearances in and second, because the families of the Syria after the uprising that: missing have the right to know the fates of their loved ones. This issue will be a source “Since the beginning of the uprising in Syria, of instability if there is no strategy to deal we’ve seen a dramatic rise in the authorities’ with it from the early days of any interim use of enforced disappearances to silence government. opposition and sow fear among the friends and relatives of the disappeared.” To avoid such a crisis in the future, the interim government must deal with the The goal is to “terrorize the society and dry issue of the missing comprehensively, up the revolution,” said Anwar al-Bounni, a including opening up all government files veteran defense lawyer and human rights and agencies for investigation. Civil society campaigner in Damascus. should play a significant role by collecting
Two international groups, Amnesty all the information from the families. International and Human Rights Watch, said Concurrently, an overall transitional justice they believe a majority of detainees in Syria law should be passed which includes the are held under conditions amounting to issue of enforced disappearances and which enforced disappearance. Amnesty said it seeks to hold the previous government estimates that tens of thousands of Syrians responsible. This law should also insure the are in detention but does not have exact right of the families to reparation. figures. For decades, the subject of enforced Reports say that detainees are often held disappearances has been met with official in one of the security service branches indifference and silence. Speaking in throughout an initial investigation before public about the details of this tragedy being transferred to one of the prisons is not permitted. Syrian authorities have assigned for political prisoners, like adopted a policy of hiding the truth instead Palmyra, Adra, or Sydnaia and al-Mezza of offering reparations and justice to the Military Prisons. victims. Now is the time to beginning
However, the testimonies of scores, if not planning to address these wrongs done to hundreds of former detainees prove that the Syrian people, the disappeared, and thousands of lives were taken without legal their families. documentation, leaving their fate unknown adwan Ziadeh is Executive director to their families and communities. Rof the Syrian Center for Political Detainees have been subjected to enforced and Strategic Studies in Washington, disappearance for months or even years. D.C.; Director of Damascus Center for They have been transferred to more than Human Rights Studies in Syria; a Visiting one security branch, which all denied the Scholar at Lehigh University; a Fellow
24 TRANSITIONAL JUSTICE A HANDBOOK FOR JOURNALISTS, CITIZENS AND ACTIVISTS CHAPTER IX
Impartial Justice Requires BY WAEL SAWAH Documenting and Collecting Evidence
ith the first bullet that was shot at has been forced out. Inspired by radical professionally. Syria’s peaceful demonstrators, the Islamists, these groups use methods W Transitional justice experts have Syrian government lost its legitimacy and similar to the government’s. Evidence established standards and procedures to became a burden on the country, the people, exists that pro-government loyalists, document violations during conflicts. The the region and the world. including civilians, have been cruelly killed documentation process in Syria must abide or tortured. Now, with more than 70,000 Syrian dead, by these standards if it is to be effective three million people displaced inside and When regime change comes to Syria, the and respected by international and local outside the country, and thousands more process of justice and accountability must actors. arrested, tortured, and raped, there is no begin. A transitional justice process is the Impartiality and objectivity are also doubt that President Bashar al-Assad’s safest way for the new Syria to move toward essential for proper transitional justice government has no legitimate claim to democracy with the least possible social in Syria. Although the Syrian government power, and there is no longer any question loss. It will ensure justice for the people might be responsible for the vast majority of “if” Assad and his regime will collapse, but and the country, and not mire the country in of the violations that have occurred in Syria, “when” and “how.” revenge and settling of scores. armed groups that violate international In the meantime, many armed opposition The first step in transitional justice is human rights law must also be held groups are responding to the government’s to document violations of international accountable, regardless of how unpopular violence with similar violence. Some radical humanitarian law and international this topic might be. groups now control certain regions in the human rights law. This step needs to country where governmental authority be accomplished independently and
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Information must be collected from various Observatory for Human Rights, and rights violations related to the conflict in sources and be compiled, verified, analyzed, the Syrian Commission for Justice and Syria. and stored securely until such time as it can Accountability. Finally, what is to be done with the volume be used. 2. Syrian organizations working on of data collected on the violations In the Syrian conflict, thousands of persons a regional level, such as Aleppo’s committed in Syria? If efforts succeed are collecting and compiling transitional Ahfad al Kawakibi (meaning the “the to centralize the data collected in one justice evidence. Unfortunately, these Grandchildren of Kawakibi,” a reference safe repository, the next duty will be to individuals and groups had not been to a famous 19th century intellectual safeguard the data and ensure that it is properly trained and equipped when the and religious scholar from Aleppo). provided to the proper judicial commission uprising broke out. tasked with administering the Syria file. 3. Syrian organizations that focus on Providing the proper training for these a certain type of violations, such as There are two future scenarios for Syria. The actors is vital if Syrians wants to have a Rasd, which documents violations first is the fall of the current government evidence that is admissible in international to property, and Domino, which and its replacement by a democracy. The or local courts. Training needs to cover focuses on wounded people who are second is much less clear and could involve legal standards applicable to potential permanently disabled. the regime’s regaining full control of the crimes and trainees must learn how to country, a protracted stalemate that 4. Independent and opposition affiliated record, measure and preserve evidence in results in chaos and an extended civil war, Syrian news agencies reporting on compliance with international standards. or the rise of another authoritarian state events in Syria, often with access to Such training can increase the sources, established by, for example, the military or a firsthand documentation, such as amount and geographical scope of evidence conservative religious group. Orient News, Sham News and Ugarit collected. News, which rely on citizen and In the first scenario, the transitional justice Hopefully transitional justice in Syria will activist journalists, videographers evidence should be handed to the local not simply be victor’s justice. History has and photographers on the ground in judicial system, which must be supported by shown, however, that post-war tribunals Syria, and thus have a unique ability international legal expertise. In the second, are often a charade in which winners punish to collect firsthand documentation, data collection needs to continue and losers for the damage and suffering of the especially videos, photographs and efforts made to convince the international war. firsthand accounts. community to help end the bloodshed and to impose a transitional justice procedure Justice must include not only civilians who 5. Intergovernmental organizations for the benefit of all Syrians. were killed, arrested and wounded in the and bodies, governmental and non- revolution, but also soldiers and security governmental organizations are also Transitional justice is not just a process for officers who were forced to oppress people. gathering evidence. punishment. It is a process for reconciliation They must be treated fairly. and forgiveness. The challenges to documentation include Even if they must pay some price, such as the deteriorating security situation in Syria; ael Sawah is a Syrian researcher admitting what they have been ordered the lack of coordinating efforts; the lack of Won issues of civil society in Syria. to do and apologizing to their victims in a professional, international legal approach; Sawah is a member of the Annual Middle public, those who helped to perpetrate the the absence of proper verification East Legal Studies Seminar (MELSS, violence will be among the winners, as they standards; and incomplete coverage of Yale University;) Board member of the will not only relieve their own consciences, affected areas and populations. Syrian Center for Media and Freedom of but will also participate in the rebuilding of Expression, Damascus; founding member In order to have an appropriate the new Syria. of the Syrian League for Citizenship; a documentation effort, these challenges founding member of the Arab Rationalists Numerous groups in Syria are dedicating must be addressed. A new entity, with which League, Paris; and Editor of Al Awan their time and energy to documenting I am involved, is trying to fill the gap. The Website for Laic Studies. violations and collecting transitional justice Syrian Center for Justice and Accountability evidence. We can divide these groups into is a non-profit organization that works several categories: to collate, vet, and analyze human rights violations data using a comprehensive 1. Syrian organizations working on a data repository. The Center also provides national level such as the Violation training, resources and support for local Documenting Center, Shuhada groups in Syria and conducts research and (Martyrs), the Syrian Network analysis to create a narrative about human for Human Rights, the Syrian
26 TRANSITIONAL JUSTICE A HANDBOOK FOR JOURNALISTS, CITIZENS AND ACTIVISTS CHAPTER X
Reforming the Syrian Justice BY RADWAN ZIADEH System
or the more than 40 years the ruling The State of Emergency the disposal of a “Military Governor,” to al-Assad family has built a vast and be appointed by the Prime Minister. This F On March 8, 1963, the Baath Party’s National impregnable structure of control over opened the door to chaos and arbitrary acts Council of Revolutionary Command the Syrian people. This is seen in the based on personal whims of those in power. declared that a state of emergency existed government’s four intelligence directorates, These powers were used to prosecute, “in all parts of the Syrian Arab Republic… the monopoly of the Baath patronage detain, torture and disappear citizens. until further notice.” system, and most notably, the Syrian No other authority was able to check or law code and the structure of the Syrian The declaration paved the way for laws that object to what they were doing. Crimes judiciary. allow widespread human rights violations were committed due to extremist sectarian, in Syria. These laws were intended to For decades, Syrian courts have been used partisan and ideological attitudes, without prevent opponents of Baathist officers as a tool of the al-Assad family to suppress regard to legal or constitutional controls, or from launching a coup and permitted the dissent and punish those who question human rights and personal privacy. Baathists to crackdown on adversaries, real the system. As a result, the Syrian justice or potential. The emergency law permitted the Military system has lost all credibility in the eyes of Governor to send suspected violators to the Syrian people. The emergency law erased Syrians’ military courts; to restrict people’s ability to guarantees of freedom from torture, In order to begin a new era of accountability assemble, live and move where they chose; inhuman treatment, and isolation from the and create a judicial system that has the to arrest those suspected of threatening outside world that were enshrined in the trust of the people, a number of Syrian laws security and public order; and to order constitution. must be repealed and much of the justice investigations of anyone at any time. system dismantled or restructured. Enacting the state of emergency put all The state of emergency remained in effect internal and external security forces at
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until 2011, when it was nominally ended freedom is Decree No. 14, issued on January hear cases about “all persons, civilians as a means of assuaging the masses of 15, 1969, which granted members of Syria’s and military, whatever their capacity or protesters, inspired by the Arab Spring, General Intelligence Directorate protection immunity.” who gathered across the country to from prosecution “for crimes that were Most importantly, the article permitted peacefully demand governmental reform. committed during the execution of the tasks the State Security Supreme Court to try Unfortunately, the lifting of the state of entrusted to them.” Officials could only be all those who opposed the regime in any emergency did little to change the reality prosecuted by an order of the head of the form, even if only verbal. The Revolution on the ground. Those viewed as a threat to Directorate. Protection Law and subsequent degrees the regime continued to have their rights This decree allowed security services to and articles made “regime security” violated by security officials with impunity. intervene in people’s private affairs without equivalent to “state security.” Crimes Syrians rights continue to be violated as being held accountable for the crimes they punishable by the Security Supreme Court in the past. Members of the intelligence committed in the course of their duties. were applied to anyone who the authorities branches detain, arrest, torture and The decree led to the domination and saw as politically active, notably Islamists imprison Syrian civilians daily. The Syrians interference of the security services in the and other dissidents. themselves have no legal recourse to daily lives of the Syrian people. Ultimately, the court, along with a variety of defend their rights. In fact, Syrian law Additional laws, such as Article 74 of other field and military courts, sentenced makes it nearly impossible to prosecute the internal rules and regulations of the hundreds of leftist dissidents and human government employees who commit and State Security Department, issued on rights activists to long terms in prisons. have committed human rights violations. May 25, 1969, prevented Syrians from Some of them have not been heard from The Revolution Protection Law and pursuing legal action against any State since; traces of other prisoners were Systemic Immunity Security Department employees for crimes discovered only 30 years later. committed while conducting their duties. A law that undermined Syrian freedoms is Reforming the System the Revolution Protection Law, adopted That immunity was reaffirmed in To create a system in which the Syrian on Jan. 7, 1965. It states that anyone who more recent decrees that prevent the people have faith and trust will take an is critical of the state “by actions, verbally, prosecution of the police, the Political enormous effort and commitment. All of or through writing, or by any means Security Agency, and Syrian customs, the laws devoted to inhibiting freedom of expression or publishing” would be without approval from the commander of expression and granting immunity to punished. of the Syrian armed forces. The decree individuals in the Syrian government’s extended this immunity to anyone who was The law also allowed the punishment of employ must be repealed. All special, field temporarily assigned to, on loan to, or was “demonstrations, rallies, riots, or instigating and military courts must be re-organized working on a contract basis at any of these riots as well as spreading chaos and and the vast majority of cases transferred departments. undermining public confidence in the goals to civilian courts that are transparent, of the revolution.” The punishment was “hard Exceptional Courts independent and accountable to the Syrian labor or life in prison, and may include a people. To this day the Syrian government uses more stringent sentence.” a variety of special, field and military Clearly, a military justice system must The provisions of this law consist of courts to prosecute and jail Syrian civilians remain, but military courts should have vague phrases that made possible broad engaging in activities considered a threat the right to try military personnel only, and interpretations of any form of expression to the state. This enables the Syrian justice parallel structures should be established to contrary to the whims of the ruling Baath system to send thousands of peaceful guarantee oversight and accountability. Party. It allowed the repression of political protesters to distant, secret prisons. adwan Ziadeh is Executive director dissidents at every level without mercy, Legislative Decree No. 47, which established of the Syrian Center for Political and protected the Baath party from any R the State Security Supreme Court, was and Strategic Studies in Washington, criticism. issued on March 28, 1968. The court was D.C.; Director of Damascus Center for Syrian authorities used the law to close all composed of a president and two judges, Human Rights Studies in Syria; a Visiting the doors to the opposition and intimidate one civilian and one military, nominated by Scholar at Lehigh University; a Fellow anyone who might disagree with the the Military Governor. at the Institute for Social Policy and regime. Every statement, act, brochure or Understanding (ISPU) in Washington D.C.; The special court replaced a military court statement that was contrary to the regime and managing editor of the Transitional and expanded the scope of the special was considered a crime. Justice in the Arab World Project. military field trials to include civilians. Another law that undermined Syrian The decree stated that the court could
28 TRANSITIONAL JUSTICE A HANDBOOK FOR JOURNALISTS, CITIZENS AND ACTIVISTS CHAPTER XI
Security Sector Reform in BY WAEL SAWAH Post-Assad Syria
yria is a police state. This was the were shocked to learn, for example, that (GDI), known also as Amn al-Dawla (State Scase under the late President Hafez permission from the mukhabarat had Security). This agency answers directly to al-Assad and it continues under his son and formerly been needed to open even a small the president. successor, Bashar al-Assad. The police, and bakery. Since July 2012 the GDI has been headed particularly the domestic intelligence and Unlike many other police states, such as by General Mohamad Deeb Zaitoun, who security services (mukhabarat in Arabic), Tunisia under ousted President Zine al- succeeded the Directorate’s long-time have always been involved in upper-level Abidine Ben Ali, Syria under Hafez al-Assad strong man Ali Mamlouk when he was politics as well as the everyday lives of assigned national security and intelligence promoted by Assad to head the National citizens. duties to different competing security Security Bureau. The former National In 1984 Hafez al-Assad sidelined the agencies, each of which had its own agents, Security Director, Hisham Ikhtiyar, was killed military and strengthened the intelligence information gathering services and prisons. in a bomb explosion that also killed Defense services when he came under direct threat Each agency operated independently, Minister Daoud Rajha; the Deputy Chief-of- from certain divisions in the military led working with no clear jurisdictional limits Staff, Assef Shawkat, who was also Assad’s by his own brother, Rifaat. Ever since, the and a deliberate policy of non-coordination brother-in-law; and Hassan Turkmani, the mukhabarat has had a say in all government with the other agencies. head of a crisis cell set up to tackle the nominations, from ministers to the lowest uprising against the regime. There is little public knowledge about the civil servant. size or importance of the various security The second largest mukhabarat agency is In 2005, Bashar al-Assad issued a and intelligence agencies in Syria. However, Military Intelligence (MI), headed now by decree stipulating that the mukhabarat’s there is general agreement among Syrians General Rafik Shehadeh. Contrary to what permission would no longer be needed that the biggest mukhabarat apparatus is its name might suggest, the responsibilities to start 73 kinds of businesses. Syrians the General Directorate for Intelligence of the Military Intelligence are not limited to
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matters affecting the armed forces, but also with due to their high level of corruption, clear, legislatively established regulations include internal security. which enabled citizens to influence them for information gathering and organization. with bribes. Greater transparency and accountability The third agency is the Political Security Security sector reform is and will be a major Agency, headed by General Ali Younes. should be at the core of both the police challenge if and when Assad’s government Officially, this agency should be responsible force and the intelligence agency. A collapses. There is serious danger, however, for internal security; however, other new culture must be created to prevent that if Assad does depart, Syria will witness agencies compete with it and often override repression, abuse and impunity regarding widespread revenge-inspired violence and its mandate. the rule of law and citizens’ rights. Both sectarian strife. organizations must be completely apolitical, The fourth agency, Air Force Security (AFS), professional, neutral and impartial, and is the most feared. Since the 1980s, AFS In order to avoid this scenario, an interim should be provided with proper training. has been known to torture and mistreat government must adopt a transitional justice process that will undoubtedly be prisoners and detainees. To be arrested by Finally, in order to create a proper national needed to lead the nation and control the AFS is the worst case for a dissident. Its police force that serves people and chaos. To assist such a government, reform director, Jamil Hasan, is the only security does not master them, the term of the in the security sector is imperative. Reform chief who retained his position in Assad’s police commander has to be limited. The should be a multi-layered process. senior leadership reshuffle in July 2012. police budget must be approved by the Syrian Parliament and the Minister of It is difficult to describe the various security First, the Syrian military should be the Interior should be in charge of the police agencies in Syria due to their opacity. Many major security force for Syria and should bureaucracy. The size of the police force of the laws and decrees regulating the be preserved as an institution. High- should be strictly controlled to prevent organization and activities of the security ranking officers who participated in the unnecessary growth. services are secret, if they ever existed. fighting against the Syrian people and who ordered killings must be removed and held There is no information available regarding If a new Syrian government can adopt and responsible for their actions. A transitional the size of these agencies, so any detailed follow these recommendations, it will be justice process must be implemented and accounts are mere estimates. more likely to have a successful transition. impartial, fair and reputable individuals If a new government simply replaces the The late President Hafez al-Assad shifted should be chosen to run the process. security agencies with others having the responsibilities among these agencies. In same values and culture of the past, it may the 1970s, for example, Military Intelligence Second, the four major intelligence and very well lead to a catastrophe. did not play a significant role in citizens’ security agencies must be disbanded. These lives. At that time GDI was the agency most agencies’ senior officers and officials must ael Sawah is a Syrian researcher feared by political dissidents. However, be held responsible for their roles during on issues of civil society in Syria, Military Intelligence became the most the past four decades in maintaining a W author of a number of research papers, important apparatus after the deadly brutal police state, and particularly for their and coauthor of a number of books in conflict in the early 1980s between Assad actions during the Syrian uprising. However, Arabic and English. Sawah is a member and the Muslim Brotherhood. Air Force low-ranking officers and ordinary members of the Annual Middle East Legal Studies Intelligence also took on an essential role at can be rehabilitated and absorbed in the Seminar (MELSS, Yale University); Board that time. military or other government agencies. member of the Syrian Center for Media
When Bashar al-Assad ascended to power in A new united and transparent security and Freedom of Expression, Damascus; 2000 and wanted to be seen as modernizing agency should be established under founding member of the Syrian League for the country, he reduced the authority of the authority of a new national “Police Citizenship; a founding member of the Arab the GDI, Military Intelligence and Air Force Commander.” The Police commander would Rationalists League, Paris; and Editor of Al Intelligence, and gave a greater mandate head a national police force that is very Awan Website for Laic Studies. to Political Security Agency, which is limited compared to the current security considered by many Syrians to be less agencies. The mission of the police force brutal. will be to maintain security and order within society and to protect the security and the During the past four decades, the Syrian safety of citizens. At the same time, as in civil police force’s mandate has been limited all other countries, an intelligence agency to non-political crimes, like robbery and needs to be established with the mandate murder. While the mere mention of one of to work solely outside Syria. the four clandestine intelligence services created horror in the hearts of Syrians, the Both the new internal police force and the civil police were considered easy to deal external intelligence agency should have
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