As enticing as it is to imagine Bashar al-Assad and his cronies on trial for heinous crimes against the Syrian people, a reality check is in order.
The Syrian conflict has all the attributes that make the prospects for fair criminal prosecutions unlikely, even at the international level. The ongoing documentation of violations, however, provides a critical foundation for a delicate healing process that will take decades to unfold.
Desperate calls by both international and Syrian actors for “justice” understandably abound in discussions on the Syrian conflict.
Scholar Radwan Ziadeh, for instance, states: “The responsibility falls on the post-Assad government and Syrian civil society to prosecute those responsible for human rights violations.”
Many such calls have mostly centred on justice in the courtroom, especially one that is administered by international actors.
Such prosecutions will always fall short. They cannot take into account a large number of individuals who form part of an entrenched and elaborate system of state oppression. An international court’s limited resources would not allow for each and every torturer in Syria to be prosecuted.
This is one of the reasons international courts, such as the International Criminal Court, solely target perpetrators at the highest level – ones who orchestrated and authorised policies resulting in massive human rights violations. The domestic prosecution of crimes committed abroad, on the other hand, allows for the prosecution of both high and low-level perpetrators.
Germany, for instance, has investigated and prosecuted German nationals who committed crimes in Syria. These prosecutions, however, tend to target lower-level individuals, leaving the prosecution of high-ranking state officials an unresolved issue.
Without an independent judiciary, accountable government institutions, and a strong civil society, prosecutions will always fail and derail any transitional justice process that was started with victims in mind.
Truth commissions, reparations, and other reconciliation initiatives could help to address such shortcomings of prosecutorial justice. However, in a protracted conflict with a continuous and devastating toll on human lives, such efforts remain a distant possibility.
At best, both national and international criminal prosecutions are likely to result in a severed justice that satisfies a select group of victims and the international human rights institutions that advocated for them.
At worst, they will result in a murky kind of justice used to settle scores without regard for the more complex justice expectations and desires of Syrian victims and their families. Worse still, hasty prosecutions could result in a transitional justice process viewed with suspicion.
An international push for ‘justice’
Three so-called international justice initiatives have emerged since the start of the Syrian conflict in March 2011: the International Independent Commission of Inquiry on Syria, established by the United Nations Human Rights Council on August 22, 2011; the Organisation for the Prevention of Chemical Weapons and United Nations Joint Investigative Mechanism in 2015; and the International, Impartial and Independent Mechanism (IIIM) to assist in the investigation and prosecution of those responsible for the most serious crimes under international law committed in Syria.
All of the said mechanisms, however, have a limited scope. They investigate crimes committed since March 2011, leaving decades of atrocities committed by Syria’s authoritarian regime before the 2011 uprising unaddressed.
Prosecutions in both Egypt and Tunisia also mostly focused on human rights violations committed during the uprisings of 2010 and 2011. Calls for justice throughout the Arab Spring (with the exception, perhaps, of Tunisia’s Truth and Dignity Commission) have not addressed the grievances that triggered the uprisings to begin with.
Although the euphoric UN General Assembly resolution that established the IIIM in December 2016 refers to the eventual possibility of criminal proceedings in national courts, this is highly unlikely in raging conflicts such as in Syria.
Even in certain so-called post-conflict Arab Spring contexts, such as Egypt and Tunisia, national prosecutions failed to deliver a justice accepted by the victims, lawyers, and civil society actors who pushed for them.
They were hijacked by judiciaries and government elites loyal to the ancien regime and left a large segment of society downtrodden by a politicised justice that rendered them twice a victim.
Moreover, in a memorandum to the UN secretary-general earlier this month, 21 Syrian human rights organisations condemned the UN’s failure to consult Syrian civil society actors on the formation of the mechanism.
Importantly, they also note that the UN has approached Syrian civil society organisations “merely as sources and not as partners in achieving justice.”
Without an independent judiciary, accountable government institutions, and a strong civil society, such prosecutions will always fail and derail any transitional justice process that was started with victims in mind.
The takeaway from this is not, however, all doom and gloom. Syrian civil society actors and Syrian victims have been extremely active in documenting first-hand accounts of all kinds of violations. Even in a volatile and highly insecure environment, Syrians have built databases detailing violations and accounts of unlawful attacks.
Still others, such as the Commission for International Justice and Accountability, have been preparing legal files that trace the planned perpetration of atrocities to high-level officials in Syria through on-the-ground documentation of evidence.
Managed both inside and outside Syria, these documentation efforts are not merely depositories, collecting dust in the hope that they will be used as evidence in a courtroom one day.
They hold great value in that they provide a crucial foundation for healing, reconciliation, and the pursuit of justice both now and in the future.
The dissemination of such documentation and the ability of Syrian victims to share their grievances and to detail the horrors they have faced is, in and of itself, a healing process.
Documentation simultaneously preserves the multiple and contested narratives of the conflict, the memory of violations and the various claims to truth. As a result, the co-existence of these narratives, accounts and truths will, it is hoped, translate into tolerance in a deeply polarised Syria.
Victims of all sides of the conflict can directly participate in the preservation of stories of their victimisation without having to wait for the conflict to end first.
Whether documentation efforts also translate into prosecutorial justice is something that should be left to the Syrian people to decide.
But first, recognition of the diverse accounts of Syrian victims and victimisers alike will be necessary to help to bring Syria closer to a justice shaped from within rather than one helicoptered in by international mechanisms that have been severely myopic in their scope.
Noha Aboueldahab is a Visiting Fellow at the Brookings Doha Center. She specialises in transitional justice in the Arab region and holds a PhD from Durham Law School (UK).
The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial policy.