Even as more evidence emerges about his crimes, Bashar al-Assad received a predictably implausible majority in the presidential elections in Syria last week. At the same time, negotiations to resolve the conflict began in Geneva with a sense of futility hanging thick in the air and expectedly ran into a dead end very quickly with the opposition representatives suspending their participation.
Assad says that he might consider cherry-picking some opponents for government positions but a government of national unity is out of the question. Having radically improved Assad’s position, Russia has, for the moment, one leg in and one leg out of the conflict, while the United States continues to gamble that its insubstantial engagement does not entirely negate its leverage.
All the while the refugee crisis fuelled by the Syrian conflict continues in all its harrowing inhumanity, with scores of people drowning in the Mediterranean this week and the conditions in refugee camps in Greece deteriorating. The exodus has seriously damaged Europe’s vision of itself and continues to present the biggest political crisis it has faced in decades.
The plight of the displaced
More than half of Syria’s population of 24 million has been uprooted, with four million no longer even in the country. Any lasting peace will need to address the plight of the displaced, both those who fled across international borders and those fleeing inside Syria.
It is in the immediate interest of Europe not only to stop the exodus at its source but also to begin to create the circumstances for the displaced’s eventual return. Beginning now to think about displacement and its resolution is precisely in the interests of those who seek to remove Assad from power and to see him face justice.
Only the most deluded propagandist would doubt that Assad has committed large-scale war crimes and crimes against humanity.
A few weeks ago saw the fifth anniversary of the beginning of the conflict. We heard many calls for justice. The US and the UK have chopped and changed their public views on whether Assad should stay and if so for how long.
The US Congress passed a resolution calling for the creation of a tribunal to try those accused of serious crimes. Other governments and human rights organisations are looking into similar options. They are looking through the wrong end of the telescope.
Only the most deluded propagandist would doubt that Assad has committed large-scale war crimes and crimes against humanity. That he and his colleagues in the Syrian High Command, among others, should face justice ought to be unquestionable.
But instead of considering practical steps that make peace and justice likely, there is a tendency to descend into disingenuous posturing that fills the void of inaction.
Root and branch reform
When we talk of justice we need to remember that it consists of more than making sure Assad is held to account. It also means making Syria a place safe to live and where all its citizens enjoy the respect and protection of the state. That is – it requires root and branch reform.
Other than death, there are only two ways for Assad to go: he can decide to step down or he can be forced by negotiation or democratic process to go.
The latter route requires massive numbers of opposition elements to return to Syria with a vision of a democratic future and the chance to exercise their civic voice meaningfully. That is why beginning to deal with displacement now is not only an urgent humanitarian necessity but also a strategic imperative.
The current prospects of holding Assad to account for his crimes are limited. In theory, a resolution from the UN Security Council (even today) could refer Assad to the International Criminal Court, a course that most assuredly would be vetoed by Russia, and perhaps by China. Similarly, an international ad hoc tribunal, as set up by the UN Security Council for the former Yugoslavia and Rwanda, would also be vetoed by Russia.
The remaining options would be for a new Syrian regime to either prosecute Assad or make a retroactive declaration, if he were to leave Syria, recognising the jurisdiction of the ICC.
The most plausible route to holding Assad accountable for war crimes and crimes against humanity will require playing the longer game of pursuing a negotiated regime change between Syrians rather than a regime change, under whatever guise, from outside.
As far as the prospects of fundamental reform and demands for justice are concerned, the focus should be on taking steps to facilitate return now, rather than on implausible calls for prosecutions that in fact may hinder the prospects of peace and return in the shorter term.
There are three important steps that should be taken now to ensure that a post-conflict Syria has a chance of a better future than many other post-conflict zones. The first is to exercise meaningful consultation with exiled and displaced populations.
Efforts can begin now to discuss and document the plight of people considering return. Where did they come from? Who controls the territory now? What options do they have and which of the viable options do they prefer?
Of course this will be a painful and fraught process, but if this process begins now, the displaced will be able to begin to rebuild their lives sooner rather than later.
That process of registration of information about land and property should also facilitate the prospects of people being able to organise and to vote sooner rather than later after their return.
An even more difficult task will to be to help those displaced to try to locate their family members, many of whom will have been disappeared or killed. No one should underestimate how unbearably painful the process of locating lost loved ones can be.
An even more difficult task will to be to help those displaced to try to locate their family members...
An important step will be to assist these efforts by establishing a DNA databank to help facilitate identifications in due course, as human remains are discovered and family members are able to lay to rest their loved ones with some dignity and closure.
Third, more can be made of the massive amounts of documentation that have been gathered in recent years from Syrian conflict zones rather than simply waiting for a tribunal or other mechanism to be established.
That documentation should be synthesised and analysed. It may even be possible to hold public hearings – in safe locations obviously – where victims are able to tell their stories directly, unmediated by journalists or other forms of reporting.
This is not justice, but it has some real benefits. It would allow victims to have a sense of agency in influencing the broader context in which negotiations take place, trying to ensure that compromises for peace are informed by an element of principle.
Assad depends on a number of things for his continued survival: some form of Russian support, a continued conflict with ISIL (also known as ISIS) and a lack of massive well-organised opposition focused on democracy. Facilitating the return of half the population to their homes is the shortest route to undermining his stability and of ultimately provoking a shift in Russian support.
As unpalatable as it may sound, political posturing which reduces the discussion on justice to Assad being removed or tried today is not helpful. A stable ceasefire is the only possible means for helping displaced Syrians to return to home. That process will be an enormous undertaking. Yet it is much more likely to determine the fate of Syria – and perhaps Europe – in the next five to 20 years than any other.
Paul Seils is Vice President of the International Centre for Transitional Justice.
The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial policy.