Justice in Syria should be “a new social contract”

Two months after Syrian President Bashar al-Assad’s ouster, director of the Arab Reform Initiative Nadim Houry explores the possibilities for transitional justice. In his view, “civil peace without justice is inconceivable today” in Syria.

JUSTICE INFO: Two months after the fall of Bashar al-Assad on December 8, there is still nothing very concrete on the justice front in Syria - with the exception of proceedings already underway in Europe. Is it really too early to talk about this?

NADIM HOURY: Impunity was one of the pillars of the Assad regime, so the new Syria should start by confronting this and putting mechanisms in place so that, even before we talk about transitional justice, there is justice - full stop.

We know that when any conflict comes to an end it takes time to restart, but it is even more complicated in the Syrian context, for several reasons, I think. Firstly, those now ruling in Damascus have so far decided to prioritize security and economic stability. They still do not control the whole of Syria. We shouldn’t forget that just as the regime fell, Israel decided to attack and destroy what remained of the Syrian army and extend its occupation of the Golan Heights. There are regions controlled by Kurdish forces in the north-east, and the various armed groups have not yet unified. So there is a security priority.

Secondly, economic stability. The current leaders have decided to make this a priority so as to get sanctions lifted and bring a breath of fresh air. What’s more, Syria’s new leaders have themselves committed crimes in the past and are not fundamentally committed to human rights either. Finally in Syria today, we are still at the beginning of transition, not yet fully in that transition period.

So the idea in Syria is to put politics first?

Yes, security, the economy and politics - how this transition is going to take place - and then the question of justice. As you mentioned, before the fall of the regime, the rationale on justice among Syrian civil society in exile and international bodies was to carry out long-term work on issues of universal jurisdiction and documentation, including through the UN mechanism. The centre of gravity of justice efforts for Syria was outside Syria. Suddenly, there is a kind of pendulum swing where the unlikely scenario has taken place, while the organizations dealing with these issues and the judicial files themselves have been assembled outside Syria.

In Syria, the institutional architecture of a justice system has not yet been put in place, and it’s already clear that it will face essential questions. Detainees held abroad, particularly in European countries, are unlikely to be returned to Syria, as it is not yet known whether Syria will apply the death penalty or offer guarantees of non-torture. And we hear that the former Interior Minister was arrested a few days ago...

It’s a slow start, but the subject is not off the table because particularly the families of the disappeared and the families of former detainees are determined to keep the flame alive in Syria. A few days ago, they managed to meet Ahmed al-Charaa [leader of the rebel coalition and interim president of Syria].

We cannot imagine civil peace without justice in Syria today. That’s clear to everyone. Ahmed al-Charaa knows very well that without justice there can be no stability.

After all the crimes documented under the al-Assad regime, can Syria be governed without dealing with the past? Two days after taking power, al-Charaa himself declared that he would prosecute the criminals. Is there really such an awareness, or is it just because you can’t do politics without making this kind of statement?

No, I think there is a deep-rooted awareness that justice is needed if Syria is to turn the page. It also comes from pragmatism: there are already revenge attacks in some parts of Syria. We cannot imagine civil peace without justice in Syria today. That’s clear to everyone. Ahmed al-Charaa knows very well that without justice there can be no stability. Syrian society has suffered enormously not only over the last 14 years but also during the 50 years of the Ba'ath party, particularly since the 1980s. If there is no justice, we open the door to revenge. So there is an urgent need.

The so far unanswered question is where will the lines be drawn? Al-Charaa has said that Syria is not going to do as in Iraq, where everyone who was in the Ba'ath party was declared guilty, that not all combatants are guilty of war crimes, and that a balance will have to be found. A debate is starting today about who should be judged first, and by whom. This is a question for Syrian civil society and also for the international community: is it going to be purely national justice, or national justice with international justice for people like Bashar al-Assad if Russia agrees to hand him over one day? Will there be hybrid mechanisms of the kind we have seen in Cambodia, Sierra Leone and other countries?

These conversations are getting off to a slow start because there are still sanctions in place and the backers of this type of initiative are still not transferring money to Syria. But there are discussions on, for example, a mechanism to identify the missing, on the role of the United Nations mechanism for Syria, on the information collected by organisations like CIJA [Commission for International Justice and Accountability, an NGO], and others. They all have their own databases. How can all this be brought together? Will it be a Damascus-led process? Will it remain a hybrid process? Everyone is taking small steps, there are lots of conversations, but the big decisions have not yet been taken.

Up to now, there has not been enough clarity about who is going to decide and who is going to provide funding.

To your knowledge, have there been any concrete meetings between people from CIJA, the UN Mechanism and the authorities?

I don’t know about CIJA, but the United Nations has visited Syria. There have also been discussions between Syrian civil society organizations, which have established a unified position on the issue of the missing. But I would say that up to now, there has not been enough clarity about who is going to decide and who is going to provide funding.

On the one hand, there is the ecosystem of Syrian organizations that have developed enormously outside the country over the last 14 years. They have become very sophisticated in terms of archiving and documentation, and have worked very closely together. Then there are the people who have stayed in Syria. So there is also this inside/outside dimension, these questions of legitimacy and inclusion, with internal voices that may not have had access to the same international networks. Links are being re-established and conversations are being forged.

Has the new government expressed a desire to “nationalize” justice efforts? Do we have any clues as to its current intention?

Honestly, we don’t have any yet. The government in place has so far been in reactive mode. The fall of the regime happened much more quickly than anyone could have imagined. Ahmed Al-Charaa finds himself at the helm of a shattered country, with enormous security challenges. To calm things, he has always made clear that there would be justice, especially for those who perpetrated the most serious crimes. And there is a desire to reduce the violence and prevent panic among the pro-Assad people, to ensure a transition. If you hand in your weapons, you won’t be executed.

In recent weeks, a few high-ranking people have been arrested, but most of them vanished into thin air with the fall of the regime. Many have left the country.

What has happened to the agents of the regime who surrendered?

These people were mostly at lower levels. They register, they say “I was in such and such a unit, here’s my gun”, and up to now they have been left in peace. They’re not in prison. In recent weeks, a few high-ranking people have been arrested, but most of them vanished into thin air with the fall of the regime. Many have left the country, perhaps for Lebanon, and from Lebanon they have travelled on. Some have taken refuge in small villages. We are starting to see some arrests of, let’s say, more important people, but I couldn’t tell you who is giving the information that leads to these arrests. The current Minister of Justice and his team have neither the stature nor the expertise to lead this process in Syria.

Syrians have earned the right to write a page of justice. This justice belongs to them, even if it will require support, expertise and international involvement.

Do you have a view on the best possible form of justice, given what has happened in Iraq and elsewhere in the Arab world?

In my view, we are not at a stage where we can be very prescriptive. We don’t know what Syria will look like in three or six months’ time. The political transition is being shaped, discussed and debated before our very eyes.

I think it has to be a Syrian-led process, but perhaps not exclusively, because the Syrian judicial system is so shattered that it won't be able to manage or to convince the international community to collaborate with it. And without this collaboration, it will not have access to all the data. But Syrians have earned the right to write a page of justice. This justice belongs to them, even if it will require support, expertise and international involvement.

Syrian civil society has developed an enormous capacity to think about these issues. But it is too early to predict the architecture of the judicial and transitional justice response.

If we can talk about a few major principles, it is clear to me that we can’t turn the page without an ambitious and far-reaching process. And ideally, this process must include all the pillars of what is generally known as transitional justice. There is an enormous amount of work to be done, and it will be very similar to what has been done in Colombia, in my opinion. There are more than 100,000 people who have disappeared in Syria over the last 14 years, but there are also the people who disappeared in Hama in the 1980s and in other conflicts. There will need to be a truth mechanism, to write the story and ensure that Syrians can turn the page by knowing what happened. It was a regime that denied the chemical attacks and the disappearances.

How many people will be tried, and how? We can talk about possible models, but for me one of the essential pillars is to ensure that there will be no more torture in Syria, no more forced disappearances, no more arbitrary detention. A huge amount of institutional work needs to be done in terms of the Constitution, the laws and the rebuilding of the security forces. And finally, we need to remember all this, so we need to set up commemorations, a museum -- perhaps a museum of the disappeared, a museum of torture. It will take as long as it takes, we need ideas, but who can decide today?

Syria was described as the kingdom of silence. Today, it is a society that is rediscovering itself, and there needs to be a space for debate and discussion that will also enable us to see how people understand justice.

What do you think Syrian society wants?

The importance of debate in Syrian society should not be underestimated. At one time, Syria was described as the kingdom of silence. Today, it is a society that is rediscovering itself after so many years, and there needs to be a space for debate and discussion that will also enable us to see how people understand justice, how people who have stayed in Syria and those who went abroad have slightly different priorities. We’re going to have to work all this out with the best will, with all the international support we can muster, and listen to what the Syrians want. The greatest danger is to see international expertise coming in and saying “you have to do one, two, three, four and that’s how you’re going to solve everything”. That would be a disaster.

Is there a historical precedent for this in Syria?

No. It has been a country where any demand for justice was criminalized and where people disappeared for less than that. A few days ago, we commemorated the Hama massacre, which took place in 1982. But until now, no one has been able to document how many people were killed. Estimates vary between 10,000 and 40,000.

Because the Syrian conflict was so long, many Syrians have thought about transitional justice issues and have been able to work on this in exile. I think that is an asset and a strength. They have been working for years, coexisting, rubbing shoulders with international organizations, the European judicial system and so on. Many of them have had the time to join international organizations, to do a doctorate, and so on. I think that Syrian civil society now has expertise and knowledge of the issue.

Are these people and organizations returning to Syria today?

There are returns, but not necessarily permanent returns. It’s as of people are going to test the ground. Because things are not yet clear in Syria. If an organization wants to set itself up, under which law does it do so? If an organization closes its offices in Berlin or Paris and moves to Syria, it faces a banking system that is still under sanctions. These people have visited Syria and organized events and debates. Exchanges are beginning to take place.

The region is ablaze with conflict. Do you think it’s possible to rebuild the state in Syria in this geopolitical environment?

I think the answer is yes. The context is very complicated but, for once, in December 2024, the stars aligned for the Syrians against Bashar al-Assad. A number of regional events have created the space for the Syrians to finally begin a transition. There was the weakening of Hezbollah, of Iran, of Russia too, which was very busy with Ukraine. And there is a kind of new regional maturity, where we see Saudi Arabia and Turkey working together on Syria, whereas in 2013 they supported different parties in the other countries that went through Arab springs and revolutions, and this often led to conflict. Saudi Arabia and Turkey are a little tired and recognize that there is a need for stability. So there is a regional context that gives Syrians a chance to start building a state again.

There is a desire on the part of Saudi Arabia and Turkey to act as godfathers of this new regime in Syria. Having these dual sponsors may increase Syria’s chances of success. I say chances, because there is the Kurdish question that needs to be resolved.

Including Israel?

No, the only troublemaker today is Israel. Is Israel going to stop at its incursion [into Syria in December]? I think that’s possible. What we feared was that Israel would decide to arm and support certain Syrian factions in order to destabilize the regime. But there is a desire on the part of Saudi Arabia and Turkey to act as godfathers of this new regime in Syria. Having these dual sponsors may increase Syria’s chances of success. I say chances, because there is the Kurdish question that needs to be resolved.

These two sponsors are not the biggest democracies either...

I agree. Except that I don’t think either of them will be opposed to transitional justice. There is a deep feeling among Syrians, but also in the region, in the Arab world and globally, that this bureaucracy of death and torture that Bashar al-Assad's regime represented must be brought to justice. And apart from in Russia, no one is really going to fight to defend what remains of the regime today. So there is an opportunity. We can now imagine another Syria, but in order to realize this there is a huge amount of obstacle clearance to be done on security, economic, political and justice issues. Each of these issues carries with it the danger of becoming explosive and destabilizing the situation.

In fact, the greatest danger today is to expect miracle solutions. The important thing is for society to move in the right direction.

On Syria’s doorstep, there is the Israeli-Palestinian conflict and Trump’s recent statements about Gaza. This is hardly conducive to respect for rights and international law. How can al-Chaara feel under pressure to deliver transitional justice?

I completely agree, but I think that the demand for justice will come from Syrian society. This demand is clear. For example, we have seen activists demanding answers on the so-called Douma Four, in front of the offices where they were kidnapped. They put up a plaque on the building. Syrian society is thirsty for justice. It is an existential choice. The essential compass on these issues will come from Syrian society. It will come from below. We know that these processes take a long time, are never linear and depend on political moments. The important thing is that the desire for non-recurrence becomes intimately linked to the Syrian identity. The international community completely botched that in Iraq, and we have seen the results. It missed the mark in Libya too. Will the Syrians, who have suffered so much, succeed? That’s the real issue. Judging people from the regime may well happen. But judging the people in the regime AND making sure that people are no longer tortured or made to disappear?

All Syrians have stories of relatives and friends who have disappeared or been tortured. How can we transform this into a new social pact?

Would you say that the war and repression since the revolution in 2011 has structured Syrian society against its will?

There is something of that in the Syrian experience. What will be left in the end? For me, it’s the Caesar photos, the detention centres, Saidnaya prison where people are still digging because they think there’s another underground floor. I think this is perhaps the image that the Syria of tomorrow should be built around. It’s something that runs deep, that all Syrians have experienced. All Syrians have stories of relatives and friends who have disappeared or been tortured. How can we transform this into a new social pact? For me, it would be the greatest victory of the Syrian revolution if they succeed. Everything else is technical. What kind of penal system? What transitional justice mechanism? What commemoration, in what public space? All this is very important, but with the ultimate aim of building a society that will never accept this again. It would be a revolution in Syria and in the region, and it would be the greatest revenge against Bashar al-Assad

And what a path it would be for al-Charaa to move from al-Qaeda to transitional justice...

Yes, it would be quite a journey. Will he find his own road to Damascus? I don’t know, but I would bet more on a societal process than on one or two individuals. Today, al-Charaa may support a transitional justice process because this will help him to gain legitimacy internally and internationally, to eliminate and perhaps judge certain representatives of the former regime. Perhaps in a few months’ time, he will form a new alliance with certain armed groups, or else that will no longer suit him.

If we look at history, we often see that the real demand in society takes a few years to manifest itself. There is a generation that has come out of the war and is tired, so sometimes it’s their children’s generation that takes up the torch. We experienced this with Nazi Germany; we experienced it in Spain, where we see the grandchildren reopening Franco’s files; and in Chile, where it was the children of the tortured and disappeared who pushed the message of Nunca Mas (Never Again). I hope that Syria will not wait, but having lived through experiences in other Arab countries, I would bet on a process that will take time. Time for transitional justice to become the basis of a real social contract, where society feels intimately responsible for protecting it. Everything else remains fragile.

Recommended reading

Syria: getting it right in the search for the disappeared