Syria: The Role of National Law in a Post-Conflict State

Elizabeth Grden, Associate Editor, Michigan Journal of International Law

The Syrian civil war has left at least 190,000 dead, multitudes more in foreign lands without homes, and a sovereign state with no clear path forward.[i] With the recent intervention of the United States and its allies, the conflict is accelerating and escalating, raising a persistently lingering question: when the conflict ends, what type of transitional justice will await, and how will it shape the future of Syria with whatever government emerges? There are four possibilities for post-conflict mechanisms, each with varying degrees of domestic and international influence. First, a domestic court in Syria could try accused criminals for violations of civil law. Second, an “internationalized domestic court” could apply Syrian criminal law, allowing international actors to assist with the prosecutions. [ii] Another option that has been discussed is creating a regional court with multilateral representation from neighboring countries. Finally, the situation could be referred to the International Criminal Court by the United Nations Security Council. [iii] Experts believe that within the year, one of these options could be exercised. The Syrian Penal Code is a deeply flawed collection of laws that punishes some “crimes” too strictly, and others not at all. It lacks basic human rights protections for the LGBTQ community and other minorities, and judicial independence is questionable at best.[iv] Over the past several years as the country has descended further into chaos, Assad has failed to reform Syrian law to protect human rights and judicial independence.[v] The code has often been used to restrict public freedoms, interpreting the word “security” to include such activities as public protesting and weakening national sentiment.[vi] Despite these shortcomings, it is important to include it in conversations about the form and substance of transitional justice for the people of Syria. Both the Assad government and the rebel groups have been accused of war crimes against civilians, and a just resolution to the conflict will eventually be sought. The likelihood of the situation being referred to the International Criminal Court (“ICC”) is low, as the court can only gain jurisdiction over the conflict if the situation is referred by the Security Council – a near impossibility if Russia and China continue to back President Bashar al-Assad almost unconditionally. The Security Council may choose to create a temporary international tribunal as they did in the former Yugoslavia and in Rwanda;[vii] but there are no guarantees. The “political context” necessary for an official ICC investigation to commence may never come to be: religious extremism, the regional conflicts involving Saudi Arabia, Iran and other local players, and a growing tension between the United States and Russia stand in the way.[viii] Because of these obstacles to official international involvement, the local civil laws of Syria must carry some of the weight in holding both the government and rebel groups accountable for their actions against the civilian population and each other. The Syrian Penal Code codifies many laws similar to those found in international law, including for murder, torture, and injury of civilians.[ix] It also criminalizes terrorism, an important provision because international criminal law has no corresponding concrete standard for prosecution.[x] Other sections of the Penal Code are similar to portions of the Geneva Conventions, which would likely be used in the event of an International Tribunal. For example, Article 391 of the Penal Code alludes to torture by mentioning “illegal acts of violence,” commonly construed to mean physical violence excluding psychological violence.[xi] These civil codes are not a perfect match with the international laws that were expressly created to handle large-scale conflict resolution, but the Penal Code would provide sovereign control for the people of Syria in any transitional justice mechanism, which could be nationally beneficial in the other aspects of conflict resolution outside of war crime tribunals: truth-telling, reconciliation, and future peace-building. In Rwanda, the post-genocide government strongly desired an international tribunal with its seat in the country itself, a wish that was not granted by the Security Council when it formed the Tribunal.[xii] This desire stemmed from an interest in securing both an explanatory and preventative role in the country. It would have created an opportunity for the government “there to be taken at its word and to match its call for equitable justice based on respect for the fundamental rights of the individual” with the international tribunal.[xiii] The Rwandan government saw an opportunity to use their national powers, within an international tribunal, to steer the country forward after a time of massive conflict. The same can be true in Syria. While the two situations are particular to the region, the religious and ethnic tones, and the specific facts that led to each, the import in creating a space where the Syrian people can rely on their own laws to prosecute atrocities should not be discounted. There are many possible paths to justice for the Syrian people post-conflict, and only some contain an international tribunal to hold war criminals accountable for the atrocities currently be committed there daily. Whatever the mechanism(s) may be, it will likely involve several areas of international law.[xiv] There is also the opportunity to include a domestic component, finding and using the applicable provisions of the Syrian Penal Code discussed above as a means of prosecuting, reconciling, and otherwise resolving the conflict within an existing structure. Additionally, even if the ICC becomes a forum for trying war criminals, it will only investigate and prosecute those at the highest levels of planning and executing the violations of international law.[xv] For any extended peace-building that includes accountability for crimes committed, national courts will be necessary and critical, and law reform will be required to make sure the domestic actions are credible.[xvi] Meshing Syrian domestic law with international law makes the long-term goals easier to meet. There is no clear answer when it comes to melding competencies between national courts and international tribunals in a post-conflict sovereign state.[xvii] In several scenarios[xviii], Syria’s weak existing legal framework would play a key role in bringing war criminals from both sides to justice. Relying on the Code, even with its flaws, and perhaps bringing reform to the Code as the conflict continues to evolve and affect non-combatants, is crucial for the international community. By embracing this distinct possibility and lending legitimacy to the Syrian Penal Code, the international community has the opportunity to encourage the people of Syria to seek justice under the laws that governed them prior to the conflict, and work within the existing structure to bring the explanatory and preventative roles to the post-conflict narration that former conflict resolution devices have sorely lacked.