For those Syrians waking up to a shattered country devoid of its dictator or those exiled by war, no superlative can quite capture the enormity of events that have transpired in the last few days. Assad’s fall not only marks the end of the Ba’ath regime (as occurred across the border in Iraq in 2003), but it also signals a seismic shift in the fortunes of the country’s 14-year civil war and 54 years of brutal rule by father and by son. I myself lived in Damascus in 2008-2009 studying Arabic. The personal security and safety I had experienced during my time there before the civil war was only possible through palpable fear and extreme repression. An unspoken rule – or a ‘social contract’ of sorts – seemed to prevail: I could only continue to presume that the chances of being mugged or assaulted were miniscule while I continued to observe the requirement of political silence. In exchange for everyday safety as provided by an authoritarian regime, Syrians had to sacrifice any scope for criticising or challenging the nature of Ba’ath rule. Memories of the Sunni rebellion in 1982, which resulted in the regime’s annihilation of Hama’s old town and its population, prompted most Syrians to repress all political inclinations. Infamous interrogation centres and prisons were located in suburban streets or on the edge of towns, serving as ready reminders of the repercussions that would result in the wake of any form of dissent. Yet while this edifice of securitised repression appeared impregnable to me and to many Syrians, this illusion was shattered in 2011 once the regime responded to peaceful protests in the wake of Tunisia’s and Egypt’s uprisings with overwhelming force and depravity. Perhaps the level of brutality came as a shock, but once the regime responded so harshly, it was impossible to rewind the clock: violence spawned more violence such that once again the space for any form of political expression radically narrowed. The country soon slid into a stereotypically-wrenching civil war that was made far worse by an assortment of intervening states.
Atrocities of the most heinous kinds soon followed at the hands of the regime itself, as well as a number of other actors, including Russia from 2015 onwards and Islamic State during its rule over eastern Syria and western Iraq. Of the regime’s crimes, perhaps the most well-known were evidenced in the Caesar photos that came to light in early 2014. 53,275 images smuggled out by a regime defector catalogued 1000s of emaciated, dead corpses killed through harrowing, prolonged torture at five security branches across Damascus. Such crimes were not exceptional. Yet, while these methods had been used before the war, the sheer number of detainees and the scope for unrestrained horror was made possible through the cover of war as well as internationally-sanctioned impunity. The International, Impartial and Independent Mechanism (IIIM) itself publicly released a lengthy report, entitled ‘The Syrian Government Detention System as a Tool of Violent Repression’ only two days before Damascus fell. This report underscores how the regime continued to employ these methods until its final moments. After a decade and a half of conflict, Syria has seen nearly 7 million leave the country, over half a million killed (the second most deadly conflict of this century) and over 130 000 disappeared.
Such a scale of criminality of course demanded and continues to demand justice, but how and by which institutions? My earlier work on accountability actors in Syria sought to explore alternative processes of criminal accountability in the face of paralysed domestic and international mechanisms. At the international level, the International Criminal Court (ICC) would have served as the presumptive forum to pursue a range of individual perpetrators, but this would only have been possible through the UN Security Council (UNSC), as Syria is not a state party to the Rome Statute. A double veto by Russia and China in 2014 closed this door. Such a move also signalled that there would be almost no appetite for the UNSC to create an ad hoc tribunal (such as Lebanon experienced in the form of the Special Tribunal for Lebanon shortly before and which in some ways served as a way to investigate Syrian involvement in the assassination of former Lebanese Prime Minister, Rafiq Hariri in 2005). So, a number of new windows were built instead: 1) international fact-finding and evidence collation bodies through the UN (namely, the Commission of Inquiry in August 2011 by the UN Human Rights Council and the IIIM for Syria in December 2016 by the UN General Assembly; 2) a revival of universal jurisdiction activity, especially in locations housing sizeable Syrian refugee populations, such as Germany and Sweden; 3) an increasingly criminal law centred focus by established international human rights organisations; and, 4) a number of newly formed local and international organisations dedicated to training Syrians to gather evidence that could then inform both international and domestic investigations.
It is the work of these new, alternative accountability actors that has been most fascinating to observe both in relation to Syria and now in relation to other accountability spaces, such as Ukraine and Palestine. We must remember the timing of Syria’s collapse. 2011 was a paradoxical moment for international criminal justice: in some ways this marked its high-water mark with the UNSC Libya ICC referral in the context of widespread consensus around the need to respond to atrocity crimes (such as the preceding decade’s focus on R2P). Yet already cracks in the anti-impunity institutional edifice were all too easy to observe. Russia’s and China’s rejection of the ICC in the face of live-streamed Syrian criminality (remember, the Syrian war saw an explosion of citizen reporting and documentation) questioned not only the ICC as an institution, but the idea of anti-impunity per se. Thus, in this setting of existential crisis for the field and for Syria, local and international initiatives have blossomed. I explored the work in particular of the Commission of International Justice and Accountability (CIJA), a non-profit entity that worked with locally placed investigators and lawyers to gather and secure a vast amount of criminal trial standard material. Such documentation has since been passed onto the IIIM, which serves as a central repository for all independent evidence gathering organisations, as well as domestic authorities in their pursuit of universal jurisdictional trials.
I understand such work as ‘entrepreneurial justice’. This idea speaks to institutional innovation: while a range of actors remain committed to the notion of international criminal accountability, some concede that extant avenues are inadequate and require quite radical rethinking. Such innovation in an environment of limited funds and limited expertise has spawned increased competition. All actors who have worked within the Syrian criminal documentation field have had to distinguish their specific contribution in fulfilling the collective goal of accountability. While some actors, such as CIJA, have marketed themselves as far more ‘risk tolerant’ and agile than their established and newly-created public counterparts, the idea behind entrepreneurial justice is that its effects extend across the entire field (as a metaphorical space, or assemblage) of Syrian anti-impunity activity, which is populated by a range of local, regional and international public, private hybrid actors. Syria, then has not only been a symbol of impunity, but it has simultaneously served as an incubator and a training ground for emerging hybrid public-private idioms of accountability work that are and will be pursued at both the domestic and international levels.
This is the work that is exploding right now. Government soldiers have melted away and a new interim Prime Minister, Mohammed al-Bashir – a former governor of rebel-held territories to the north – has been installed to lead a transition until March 2025. In this dynamic context, there is already a scramble for accountability work. Relatives have desperately searched for loved ones in detention facilities, sometimes with the help of highly-skilled civil society actors, such as the White Helmets, that had emerged in the Syrian ‘incubator’ of criminality and impunity. For example, at Saydnaya close to Damascus, prisoners released hours after the regime’s collapse provided harrowing accounts of torture which will be vital material to inform possible future trials. With the world’s attention now turned once again on Syria after years of neglect, there will be a flurry of entrepreneurial activity to claim attention, resources and buy-in for trials, mechanisms, courts and transitional justice processes.
Given that Russia remains protective of its former client despot (Assad and his family are now ensconced in Moscow) and that its soldiers and high-ranking officials remain liable to allegations of war crimes and crimes against humanity in Syria, we cannot expect standard international institutions to revive the ‘dream’ of anti-impunity in this instance. Instead, this is a moment where a variety of accountability actors will be embracing entrepreneurial efforts as we are already witnessing in the political realm in relation to domestic, regional and international players all vying to influence Syria’s future. While we must not dismiss the possibility of domestic redress at some stage, in particular it will be domestic universal jurisdiction cases furnished by the production of new evidence and new fugitives fleeing Syria that will bring together these efforts in particular in the near future. The opposition movement’s leader, Abu Mohammed Al-Julani, stated, ‘We will pursue them in Syria, and we ask countries to hand over those who fled so we can achieve justice,” Here, he was pointing in particular to regime officials responsible for torture and murder. Shortly before this, however, a general amnesty for conscripted regime soldiers had been announced. Thus, it will be interesting to observe how domestic accountability efforts unfold in the coming months as well as how Syria’s new regime develops relations with its prosecutorial counterparts, whether in in Europe or beyond.
It is imperative then that as far as possible, key international interlocutors and institutions prioritise the preservation and security of evidence and witnesses. This is of utmost importance not only to the people of Syria, but more broadly, to the possibility of anti-impunity tout court. In the face of Gaza’s destruction and the resulting collapse of the legitimacy of international law, the moment is now to reverse a further slide into a generalised rejection of international legal standards. Demonstrating that Assad should be held accountable will strengthen moves against his counterparts across the (occupied) Golan Heights, namely, former Defence Minister Yoav Gallant and Israeli Prime Minister Binyamin Netanyahu (who has overseen the destruction of 80% of Syria’s military arsenal and has significantly expanded Israel’s control of Syrian territories south of Damascus). It would also return our gaze back to the two Russian officials, Vladimir Putin and Maria Lvova-Belova, who remain under arrest for crimes committed in Ukraine, but not in Syria. Thus, entrepreneurial justice in Syria as it unfolds in the coming weeks and months speaks to the paradox of impunity and accountability that has been the Syrian civil war and marks the field of international criminal justice more broadly. We must not turn our eyes away from these efforts.
