Fall of Assad: Syria accountability efforts need a 'factory reset', say experts
The fall of Syrian president Bashar al-Assad presents an opportunity for a domestic transitional justice process, but accountability may take a while, say experts.
Now that an interim government is under way, it is important for accountability efforts to be based inside Syria, said Hady al-Khatib, the director of Mnemonic, an umbrella organisation hosting the Syrian Archive.
Khatib’s team has been archiving visual evidence of human rights violations in Syria since 2014. The Syrian Archive now has more than seven million records documenting atrocities committed since 2011.
The ultimate goal, he said, is to use these records to support Syrian war crimes litigation.
The Syrian Archive has already contributed to the case against Assad in France where he is charged with the use of chemical weapons against civilians in Eastern Ghouta in the countryside of Damascus. But these efforts can now be carried out in Syria as well, said Khatib.
“Finally, we have access and we are able to go there without being arrested and without being afraid,” he told Middle East Eye.
Ibrahim Olabi, a UK-based Syrian human rights lawyer, is hopeful that post-Assad Syria will never witness such atrocities again.
“The most important thing is that hopefully we will not be documenting the same crimes again. We will no longer be documenting the use of chemical weapons, the mass detention and torture, the enforced disappearance and so on,” he told MEE.
Khatib, like Olabi, is cautiously optimistic.
“We are absolutely worried,” he said, referring to the uncertainty about the political leadership of Syria in the foreseeable future.
“We are watching closely. I don't have 100 percent trust in anyone at the moment, but I think this will be unveiled in the coming future,” he said.
Assad and his family fled to Russia last week as rebels advanced to the capital Damascus. They have been granted asylum.
The chances of Assad’s prosecution in Russia or his extradition for trial abroad are now slim, said Toby Cadman, an international human rights lawyer who has worked extensively on Syria.
'Any system of accountability will have to be done by Syrians in Syria in a future democratic state'
- Toby Cadman, human rights lawyer
“I suppose we could put that down as naive optimism, but I think we have to think that at some point there will be a venue for where Assad and his senior leadership can stand trial. But I believe that is best served in an international tribunal rather than in a domestic setting.”
According to Cadman, “any system of accountability will have to be done by Syrians in Syria in a future democratic state”.
But the process will take a very long time given the complexity of the Syrian conflict.
“It's going to take years and decades,” he said.
Cadman, the founder of the London-based Guernica 37 Chambers, has been at the forefront of international litigation on Syrian atrocities.
He worked on the first case filed against Assad’s government in the United States, the first case under universal jurisdiction in Spain, and the first case to the International Criminal Court (ICC).
Along with Olabi, he is part of the team assisting the Netherlands in the case brought against the state of Syria before the International Court of Justice over alleged breaches of the Torture Convention.
Efforts to bring a Syria case before the ICC have been based on allegations of the crimes against humanity of forced deportation and persecution committed against more than a million Syrians who were forced to flee to Jordan, an ICC member, during the conflict.
Establishing jurisdiction on cross-border crimes committed by Syrians on the territory of an ICC member state was the only feasible way to initiate a case before the court, said Cadman, who has been part of the legal team that filed a request with the former ICC prosecutor to apply the Myanmar principle to the situation of Syria. Like Myanmar, Syria is not a party to the Rome Statute, the ICC’s founding treaty.
The jurisdiction of the court in the Myanmar case is based on Bangladesh’s membership of the ICC, which can exercise jurisdiction over crimes if an element of the offence takes place on the territory of a member state, regardless of the nationality of the perpetrators.
But now a more straightforward referral can take place, said Cadman.
A new democratic government should ratify the Rome Statute of the ICC, and refer the situation since early 2011 to present to the court, he said.
But international accountability must take place in tandem with domestic justice efforts, he emphasised, and the ICC can assist these efforts.
Olabi said that Syrian justice advocates need to think differently than they used to before the toppling of Assad.
“We will need a factory reset of our approach to advocacy because we've been always looking at the small opportunities, the small windows, like the Myanmar thing, which we have been pushing for some time to trigger jurisdiction there, focusing on the stuff like chemical weapons where there is consensus.
“But we're now at a crossroads where we might actually have something that is pretty comprehensive happening in Syria with the support of the international community.
“And so there's a lot of reflection that needs to be done, a lot of strategising to be done.”