In international criminal justice, which prioritizes the prosecution of fewer but more extreme crimes in countries often devastated by internal armed conflict and political breakdown, procedure’s demonstrative role in reestablishing the rule of law is particularly significant. Yet, regardless of the context, the sine qua non of criminal procedure is to make possible a fair adjudication of facts and principled determination of the guilt or innocence of accused persons. If procedure fails in that elemental task, it undermines not only ICL’s core aim of assigning individual criminal responsibility, but also its broader goals, such as promoting peace and stability in affected countries and regions.
Johnathan Hafetz, Punishing Atrocities Through a Fair Trial
I see more clearly than ever before that even our troubles spring from something that is admirable and sound as it is dangerous—from our impatience to better the lot of our fellows.
Karl Popper, The Open Society and Its Enemies
In national criminal justice, which seeks to address the crimes of all offenders rather than the few most responsible, criminal procedure is equally the sine qua non for ensuring a fair adjudication of facts and determination of individual criminal responsibility. Procedural fairness enhances the acceptance of the results, which in turn enhances confidence in the rule of law, thus promoting peace and stability. Getting the procedure right is essential. But there are a host of challenges that must also be resolved before trials can be held. Hence why Karl Popper’s refrain on impatience despite good intentions should be heeded. Designing a comprehensive and holistic rule of law blueprint tailored to Syria should be at the top of the transitional justice list.
Syria may be free of the Bashar al-Assad regime, but it risks becoming another failed state like Libya – fragmented, chaotic, conflict-ridden, unstable, and unsafe. Toppling al-Assad (given the serendipity of circumstances) may prove to be easier than establishing and maintaining peace and freedom, pursuing justice and accountability, and forming a free, democratic, inclusive, tolerant, and independent Syria. The dramatic psychological lift brought about by the ousting of the al-Assad regime must be quickly built upon, so the perception of progress is not lost.
Beneath the veneer of calmness and unity and tolerance and openness and freedom, Syria is a tinderbox. The “rebel” forces are a collage of incongruous groups of disparate strength and aspirations that managed to set aside their differences to focus on a single aim. Not all rebel forces have clean hands; some are even labeled terrorists. Others are associated with, if not under the control, of neighboring states. Query, whether “rebel” fighters – of whatever strip or connection – will be investigated and prosecuted for alleged crimes committed before and during the liberation of Syria.
The honeymoon period where all the rebel factions are in harmony is likely to be short. Time to get Syria functioning to a reasonable degree is in short supply. Sooner or later, impatience and unrealistic expectations will fuel frustration, disappointment, anger, fear, desperation – even under the best of circumstances. The circumstances, however, are hardly ideal. Russia and Iran will continue to play a role; too much at stake to go quietly into the midnight. Turkey will likely paly an ever greater and more aggressive role in Syria’s internal affairs; the Kurdish issue at its borders promises to be a hornet’s nest. The US also has forces in Syria, and by many accounts, was the primary mover and shaker in assisting the rebel forces along with Turkey and Israel. President Biden wasted no time in pummeling areas claimed to harbor terrorist. Hard to predict what President-elect Trump will do once inaugurated. Israel has also been active, striking military installations, ports, and weapon-making facilities, and occupying Syrian land (temporarily it claims) to ensure Israel’s safety and security.
So far, the “rebel” leaders and factions are singing kumbaya. But for how long? Revolutionary and freedom movements have a poor history of meeting expectations, of transforming autocracies into liberal democracies once victory is achieved. This hold true especially when the “liberating” forces are expedient collaborators (the enemy of my enemy is conveniently my ephemeral friend) and where the population is ethnically, religiously, culturally, regionally diverse with disparate wants and needs.
Herculean efforts are needed to stabilize Syria. For the time being, it is in the intensive care unit; the prognosis for as full recovery (assuming the aim is transforming it into a liberal democracy founded on the rule of law) is guardedly promising. It will take a constellation of star-alignments. And aside from luck, that will require vision, creativity, patience, and humility. Qualities I have found to be lacking in many of the so-called experts who arrive with fixed notions and ready one-size-fits-all plans, and a stubborn aversion to consulting and collaboratively working with their national counterpart.
The international community (here I am referring to civil society, NGOs, academics, collectors of evidence, etc.) immediately called for justice and accountability and trials for al-Assad and his henchmen, collaborators, and enablers. Potential models of special / hybrid tribunals sitting on shelves were dusted off and re-circulated. Some advocate for a regional court outside Syria, others for a hybrid court in Syria. The ICC Prosecutor no doubt would like to have a high-profile member of the al-Assad regime in the dock, assuming there is some a jurisdictional hook. Trials under universal jurisdiction will continue in national courts, irrespective of how things turn out in Syria.
Realistically, considering the situation in Syria – which I suspect will get worse before possibly becoming better – calling for swift trials in Syria before it is stabilized, and certainly before a new Syrian government is firmly in place, is as unrealistic, as it is unwise.
Understandably, the victims want truth and justice and retribution in quick order. So does the international community. Expeditious trials should be beheld in Syria by Syrians. But not before there is a framework that provides not just the right result, but also promotes the perception of justice being done. This will require major re-tooling of the entire criminal justice system (judges, prosecutors, police, defence and victims’ lawyers, court personnel, jailers, prison wardens, guards, etc). This is an inescapable prerequisite.
What sort of re-tooling and how and by whom is likely to be decided by the interim Syrian government or the one eventually emerges. The international community is ready and willing to assist. Experiences, however, have shown that the internationals are just as likely to make a mess of things as they are to get something right.
I saw this firsthand in Cambodia and in Bosnia and Herzegovina (BIH). Iraq immediately after the fall of Bagdad is another example.
Before setting off on any reforms, the Syrian government authorities will need to identify their destination. Process matters, but without an identifiable destination, discovering which of the available routes is most practical and feasible is obscured and invariably results in arriving at an undesired destination after a lengthy, expensive, and meandering journey.
Here is my general take based on experiences that have shaped my thinking. Though merely a sketch it may be useful as a point of departure. I have offered similar advice on an opinion piece co-authored with my former boss, retired US Ambassador William Robert W. Farrand, titled Lesson for Afghanistan: Establish rule of law first, published in The Baltimore Sun in April 2002, shortly after the US forces had toppled the Taliban in Afghanistan.
With the challenges, chaos, and improbable nation-building promises and expectation of “democratizing” Afghanistan under the George W. Bush administration, and having learned that the Defense Department – with little to no input (at least initially) from the State Department – would be dictating the architectural design of this transition, Ambassador Farrand and I thought to offer some advice from our encounters in helping to establish the Brčko District in BiH. Transitional justice in its full meaning (i.e., encompassing every aspect of a society from individual civil, political, economic rights to the collective) is virtually unachievable during ongoing conflict, yet, with the exodus of the Taliban and significant segments of Afghanistan being relatively safe and conducive for transitional reform, we thought the Brčko experience had something to offer.
The area of the Brčko municipality, like the rest of BiH was under the control of the Office of the High Representative (OHR) pursuant to the Dayton Peace Agreement. Postwar tensions between Bosnia’s two “entities” – Republika Srpska and the Muslim (Bosniak)/Croat Federation – concerning political control of Brčko could not be reconciled at U.S.-brokered peace negotiations at Dayton, Ohio in 1995. Rather than hold up the peace process, the parties agreed to submit the Brčko dispute to binding arbitration. In early 1997, the Arbitral Tribunal imposed an international supervisory regime on Brčko. Ambassador Ferrand was the first Supervisor of Brcko from 1997 to 2000.
In 1999, the Arbitral Tribunal issued the Final Award. In a stroke of judicial foresight, the presiding arbitrator, an American lawyer, decreed Brčko – owned in “condominium” by both sides – as a neutral, demilitarized district under the exclusive control of neither entity. This newly created district was to have its own legal and regulatory framework. To assist in the process, the Final Award decreed the Supervisor to establish a a law commission to harmonize and modify the laws of the two entities so the district would function under a uniform and progressive body of law. On March 8, 2000, Supervisor Farrand inaugurated the Brčko District.
Some of the heaviest casualties and atrocities and ethnic cleansing had occurred in and around Brčko from of 20 April 1992 until the end of the war. Understandably, mistrust ran high on all sides, with no shortage of resentment, fear, and connivance. OHR could also be capricious and heavy-handed and imperialistic, also with no shortage of parachuting experts insisting on ignorantly peddling unworkable and incongruent solutions.
For two years (1999-2001), I was the Chairman and Executive Director of the Brčko Law Revision Commission (BLRC). Assisted for the most part by a small team of local experts and some international experts, the BLRC drafted over 40 laws during my tenure. With close cooperation and consultation with representatives of the political parties throughout the drafting process, all proposed laws were adopted by the Brčko District Assembly, save for the law on education which was impatiently (and wrongly) imposed by a newly arrived Supervisor, having scant appreciation of the prevailing post-conflict political environment.
The post-conflict transitional justice process is generally complicated and messy. There are so many things that need fixing and just about everything seems like a priority – especially when government institutions are dysfunctional, private industry decimated, collapsed economy, high unemployment, lack of functioning health care facilities, etc. The conflict may be over but the anger, hatred, and mistrust among the warring factions is as raw and as unabated as it was during the conflict. Though less overtly expressed, it plays out through passive aggressiveness, obfuscation, and manipulation. And it is not just limited to the nationals. The internationals who are there to help and who may have the best of intentions (not always the case) can be equally obstreperous.
When I arrived in BiH in 1999, four years after the signing of the Dayton Peace Agreement, the transitional justice process seemed fragmented and dysfunctional. There was also constant turf-fighting and bickering among the various organizations operating under the Dayton Peace Agreement umbrella. Foreign governmental development agencies, private contractors, and NGOs were also promoting their own agendas. Not to mention the infighting within OHR. Brčko was special in that the Supervisor, though a Deputy High Representative in charge of OHR-North, was independent and in no small measure, above the High Representative when it came to implementing the Final Award. So yes, there was friction and jealousy and back-stabbing (finessed with diplomatic passive-aggressiveness and deft obliquity), which, I presume, will inescapably be the case with Syria should the international community be invited to help democratize Syria.
Having learned lessons from previous experiences and having the full support of Ambassador Farrand as Supervisor with the will and authority and the vision to support major legal reform as opposed to resorting to cosmetic fixes, I put a process in place that heavily relied on input and collegiality with my national counterparts. I also had the good fortune to have Suzan Tomanović as my deputy, and the good sense to listen to her advice, and the advice of others. I would end up working with Ms. Tomanović for the better part of the next two decades, representing accused before various international criminal tribunals.
While I was Chairman, the BLRC introduced reform based on transparency and accountability for all three governmental branches. Imbued with the belief that chaos can only be tamed by the rule of law, the BLRC placed a premium on overhauling the criminal justice system and judiciary. Five basic principles were judged essential to meaningful and sustainable reform:
-
-
- clear separation of powers among the three branches of government;
- free public access to government institutions;
- mechanisms to promote transparency in government;
- accountability, uniformity and multi-ethnicity in delivering public services; and
- independence and professionalism of the judiciary. By focusing on a strategy to revise and draft laws fundamental to a modern, democratic polity – yet sensitive to local tradition – the BLRC was able within two years to lay a uniform legal foundation for the new district.
-
Today, the Brčko District is a microcosm of what BiH is intended to be under the Dayton accords: a multi-ethnic community governed by democratic institutions under the rule of law adapted to local traditions. Now that the legal infrastructure is in place and a democratic process appears to be taking hold, the district is attracting outside investors.
Establishing the rule of law, rather than rushing to hold trial before the entire criminal justice system is reformed, must be the first priority in Syria. Enduring stability and security can only be achieved under a widely accepted and viable legal and regulatory framework. Law brings order and order brings stability, which is required for investors and sustainable development. Thus, the only exit strategy that can be counted upon to work overtime is to leave behind a prosperous, self-sustaining community under the rule of law.
While circumstances vary and analogies rarely serve as clear guides to action, the process of reconstructing (or constructing) a nation, whose populace has for more than five decades been subjected to a ruthless autocratic regime and who have suffered during the past 13 years violence and war, can benefit from successful efforts in other crisis zones. Architects crafting the framework for sustainable peace in war-weary Syria should be alert to models that have worked reasonably well elsewhere, such as the Brcko experience. This post-conflict transitional justice model has been relatively successful in fostering stability, interethnic harmony, and justice under the rule of law.
Further Reading
Ambassador Farrand recapped his indefatigable and profoundly forward-thinking efforts in implementing the Dayton Peace Agreement in the ethically divided Balkan territory of Brčko, BiH in his excellent book: RECONSTRUCTION AND PEACE BUILDING IN THE BALKANS: The Brcko Experience.
I recapped my experiences and the work of the BLRC, in my AJIL article CREATING THE LEGAL FRAMEWORK OF THE BRCKO DISTRICT OF BOSNIA AND HERZEGOVINA: A Model For The Region And Other Postconflict Countries
About Author
