International power dynamics have created significant challenges in identifying a viable model for transitional justice in Syria. Regardless of the model chosen by the Syrian people, it will face the problem of how to balance the competing interests of justice and reconciliation. Individuals most responsible for widespread human rights abuses must be prosecuted and punished. But reasonable minds may disagree as to the exact number of individuals who should stand before a tribunal. Does comprehensive justice require prosecution of all offenders no matter their level or should prosecutions be limited to those in leadership positions? This piece will specifically address one question that will inevitably arise at the ICC or at a post-conflict hybrid tribunal: who should be prosecuted?
Representative v. Widespread Accountability
When deciding who should be held accountable for crimes committed in Syria, it is first important to define the scope of prosecution, which in turn determines the actual number of individuals who will be indicted. Tribunals and hybrid mechanisms have historically taken one of two approaches to this.
The first approach has been to indict a narrow group of people who played a particularly significant role in decision-making that led to the crimes being committed. This is not meant to be an all-inclusive proposal for justice through which anybody involved at any stage of the commission of a crime is held accountability. Rather, indictments are served only to individuals who are the most representative of the collective perpetrators. The Extraordinary Chambers in the Courts of Cambodia (ECCC) adopted the representative justice approach when it indicted eight people for crimes committed during the Cambodian genocide from April 1975 to January 1979. These eight people included: the head of a special branch of the Khmer Rouge in charge of internal security and running prison camps, the head of state, the chief ideologist of the Khmer Rouge, the Deputy Prime Minister for Foreign Affairs, and four other high-ranking party members. Similarly, the International Criminal Court (ICC) has only indicted a few individuals from situations before it.
In contrast, the second approach has been to indict an expansive list of perpetrators—from high-level decision makers to low-level foot soldiers. In effect, accountability efforts implicate individuals involved throughout the commission of the crimes. Following the 1994 Rwandan genocide, the International Criminal Tribunal for Rwanda (ICTR) indicted 93 people comprised of high-ranking government and army officials accused of genocide, war crimes, and crimes against humanity. But another two million people were indicted for the same crimes by community courts called Gacaca (traditionally used to settle local disputes) that met once a week in villages across the country, often at marketplaces. Likewise, the International Criminal Tribunal for Yugoslavia (ICTY) indicted 161 people. Yet hundreds more were indicted before national courts, such as the Court of Bosnia and Herzegovina (BiH).
Both approaches led to convictions and, in their own ways, contributed to transitional justice initiatives crucial for individual and collective healing post conflict. But neither serve as an ideal model for establishing the scope of perpetration in the Syrian context. In Cambodia, many members of the Khmer Rouge who were responsible for large-scale atrocities went unpunished, some of whom continue to live in the same communities in which they carried out unthinkable crimes. In Rwanda, the Gacaca courts were below international standards. Nearly 160,000 locally elected judges—most of whom had no legal qualifications—assigned long prison sentences and hard labor to defendants who were often denied representation by qualified lawyers. Some people were falsely accused of crimes, and many victims feared for their safety as they lived near perpetrators throughout the Gacaca process. The process continued until nearly 20 years after the 1994 genocide.
Striking the right balance
The number of people involved in an endless list of serious crimes committed during the Syrian conflict is extensive. This is evidenced by the thousands of documents collected by SJAC over the course of the decade.
Yet widespread prosecution would ignore the flaws of the Rwandan approach, specifically by threatening victim safety, opening the door to false accusations, and constraining due process rights. In Syria, applying the Rwandan approach might also undermine an essential element for prosecuting serious crimes: the requisite mental state. Some people working for the State were compelled to follow orders because their own lives were at risk. The drafters of the Rome Statute, the treaty that established the International Criminal Court, agreed that being a subordinate need not relieve someone of criminal responsibility. But it might absolve or mitigate punishment if conditions like duress or coercion are present. For this reason, they included it as a potential legal defense—not in Article 33 on superior orders and prescription of law, but in Article 78 which instructs the Court to “take into account such factors as the gravity of the crime and the individual circumstances of the convicted person” and Rule 145 of the Rules of Procedure and Evidence which stipulates that the Court should consider mitigating circumstances, such as duress.
On the other hand, indicting a narrow group of individuals leaves many perpetrators unpunished, at least some of whom will live among victims. This in turn might impact a community’s ability to move past conflict. In Syria, how much the State security arm is intertwined with the daily lives of civilians exemplifies the large number of people who are somehow involved in the commission of crimes; between 2011 and 2013, the Syrian security services arrested hundreds of thousands of people and generated a “wanted” list of more than a million people. This alone reveals how much the security sector penetrates Syrian society, the number of people involved in State-sanctioned crimes, and the need to craft a scope of perpetration that adequately encompasses decision-makers and willing participants – beyond Bashar Al-Assad and his immediate circle.
No matter the vehicle chosen to drive transitional justice, Syrians would be quickly forced to confront critical questions, starting with the number of perpetrators to indict. The answers to this problem will shape the course of individual and collective healing. While high-level officials would presumably be indicted, Syrians might also need to consider alternates to indictment. Given the pervasiveness of state security, perhaps a reasonable step would be to disallow those who served in the security sector from serving again in government or military positions. In doing so, senior leadership responsible for ordering crimes to be committed would face prosecution, while others lower down in the chain of command would also face repercussions. No matter what, a comprehensive and holistic approach to transitional justice in Syria will require the melding of approaches used by the international community but tailored to the unique needs of Syrians.