Syria the Land of Impunity

The Geneva Communiqué of the Action Group for Syria of 30 June 2012, which was endorsed by the UNSC Resolution 2118 (2013), identified key steps for a Syrian led political transition. The Communiqué problematized the “Syrian conflict” as one involving a challenge of security, safety and restoration of stability and calm. During the first half of 2015, Mr. Staffan De Mistura, the UN Special Envoy for Syria, carried out a series of consultations in Geneva with various local and international actors in the Syrian conflict, to explore views on how to “operationalize” the Geneva Communiqué. The consultations produced a proposal to set up four thematic intra-Syrian working groups, which would bring together Syrians from the government and the oppositions to discuss a range of transition topics, including a group on “safety and protection for all”. On 30 October 2015, all regional and international actors involved in the “Syrian conflict” met in Vienna and produced the Vienna Declaration, which promised to launch a “renewed political process” based on eight points of agreement. On 14 November 2015, the same group met again in Vienna and formed the International Syria Support Group (ISSG).  The ISSG pledged to bring the Syrian government and the opposition together to embark on a “political process pursuant to the 2012 Geneva Communiqué.”

Nowhere in the diplomatic literature produced so far can one find the word “impunity.” Indeed the political solution contemplated in the Geneva Communiqué, which is still at the core of the renewed political process, rests on the absence of this potentially explosive word. Instead, the Communiqué sets forth at point No. 10(d) that in order to achieve “safety, stability and calm” there needs to be a commitment to accountability for future crimes. As for accountability for acts committed during the present conflict, this must be addressed pursuant to a comprehensive package for transitional justice. The Communiqué stresses, in particular, “national reconciliation” and “forgiveness.”

The problematization of the “political process” as one involving a technocratic challenge to ensure “safety” is hugely shortsighted. The current diplomatic efforts are entirely geared towards bringing the local actors to the negotiation table. The language of “justice” and “rights” is seen as inadequate and unhelpful, as it is likely to subvert the political process. However, in the Syrian context this premise is both historically unwarranted and politically untenable. Indeed, the Syrian political process will have little chance of success if it does not address head-on the question of impunity, which is at the core of the Syrian conflict.

On 8 March 1963, the Ba’ath party took power in Syria through a military coup, and immediately declared a state of emergency by military order. Since then, Syrian legal life has been marked by the co-existence of, firstly, an apparently ineffective constitutional and legislative façade which enshrined basic human rights and ratified the relevant international instruments, and, secondly, a core effective apparatus of exception, which was premised on the constitutional omnipotence of the president and the legal immunity/impunity of the security services. Syrians continuously resisted this duality. Periodically, this resistance erupted in a broad social and political movement, only for such movement to be crushed with brutal force by the government.

In the terrifying period of the 1980s, there was a large civil society movement for the end of the state of emergency, including through professional associations, led by the Syrian bar association. Syrians have since gradually discovered what Amnesty International called the “brutalizing and dehumanizing” atrocities of the Palmyra prison. They have also discovered the massacres in the city of Hama in February 1982, during which Amnesty International estimated the death toll to be between 10,000 to 25,000 civilians.

Palmyra and Hama represented, at the time, a pinnacle in the authorities’ escalation of monstrosity. Syrians have started to discover that the horrors of the Palmyra prison and Hama have become paradigmatic each in its own way. The Palmyra prison paradigm is now replicated in detention centers across Syria, and the Hama paradigm is now repeated in a multitude of Syrian towns.

In the 1980s, impunity permeated all aspects of Syrian everyday life. Despite the visible façade of formal law, the security services arbitrarily expropriated property, evicted communities, and arrested, detained, tortured and killed citizens, even for mundane offences. Impunity became constitutive of governance in the two decades that followed.

From the year 2000, a peaceful movement was initiated by intellectuals and civil society known as the Damascus Spring. The Damascus Spring’s principal demand was the end of the then forty-year old state of emergency. The movement was very quickly crushed by the authorities, through the arrest, detention and torture of many of its leaders, particularly at the grassroots level, with total impunity.

What the Syrians in effect discovered was that, whilst impunity established itself in the 1980s as constitutive of governance, it began, from the year 2000, to become almost a constitutional value for the government: something that must be defended! Any challenge to the impunity of the government, however minimal, was to be quashed by the use of disproportionate force.

The protests in the southern city of Daraa that started on 18 March 2011 were initially ignited as a result of popular outrage at the impunity of the local chief of the military intelligence service. He had arbitrarily incarcerated and tortured 15 school boys for many weeks, following their alleged involvement in drawing graffiti calling for the fall of the regime on the walls of their school. The expansion of protests across the country was possible, because, as peaceful demonstrations happened and  “shoot-to-kill” orders were given to crush demonstrations, no army officer, security service chief or political leader was in any way bothered. They collectively participated in escalating killings, siege, destruction and torture. Instead of enforcing accountability, the authorities chose to defend impunity. After several months of peaceful demonstrations, the conflict became increasingly violent and militarized.

In retrospect, the record in the conflict is particularly striking. Almost all public squares in which peaceful demonstrations had been held were destroyed, mostly as a result of aerial bombardment which the government was able to carry out with total impunity. Entire neighborhoods and towns which provided the social base for the gathering of peaceful demonstrators in public-squares were equally obliterated. The government succeeded in simply annihilating the social possibility that enabled people to meet in a public place and to hold peaceful demonstration.

As part of this process, many of the so-called ‘restive towns’ had been stigmatized as sites of “popular incubation” of terrorism. This was used to justify government attacks directed against such towns, disproportionately and indiscriminately. The government used the resources of the State to create and deepen strife among the various components of Syrian society. As a result, the perpetration of crimes against those “popular incubators of terrorism” became socially accepted, along with the impunity of the perpetrators of those crimes. Such acceptance has become entrenched inside the hard core social base that is most supportive of the government’s action.

As the conflict continues, impunity is increasingly spreading among the non-state armed groups that are fighting the government forces. An acceptance of crimes against the government and its perceived popular base is also proliferating, sometimes on equally sectarian grounds.

From a constitutive element of governance, to almost a constitutional value, impunity is gradually becoming constitutive of identities in the Syrian conflict. The more the conflict becomes protracted, the more the social acceptance of crime and impunity becomes constitutive of political legitimacies.

The escalation of the government’s monstrosity, and the clear international indifference to the centrality of impunity, has led many Syrians to lose all points of reference that would have enabled them to give meaning to what is happening to them. The “conflagration” of the Syrian conflict is bringing with it dissipation of any shared system of naming, a pulverization of meaning, and normative fragmentation. Syrians from all sides are now unable to refer to any common language, or a shared structure of meaning, to be able to collectively name or characterise as “crimes” the atrocities that they are victims of or are inflicting. There is now a challenge to the very legitimacy and effectiveness of international human rights law (IHRL), international humanitarian law (IHL), and international criminal law (ICL) in the Syrian context. No actor is interested in justifying its actions or violations from the perspective of IHL. All actors have their own normative systems that they mobilise to justify the commission of atrocities.

The Syrian conflict could not have erupted had there been proper accountability. Impunity is therefore at the very core of the Syrian conflict. All Syrians are now affected by the infernal spiral of impunity.

The current conventional thinking suggests that by setting aside the question of impunity, one could encourage the parties to the conflict to engage in political settlement. However, the evidence suggests that the contrary is true. In August 2012, two months after the Geneva Communiqué, the UN Independent Commission of Inquiry on Syria reported estimates of deaths of between 17,000 and 22,000. According to various UN agencies, the human cost in Syria at the end of 2014 stood at 210,000 deaths: ten times more than the 2012 estimate in only three years. By side stepping the question of impunity one encourages its dissemination inside Syria, as well as its spreading outside of Syria. The longer the question of impunity is ignored, the greater will be the number and groups of Syrians who will have incentive to retain the fragmentation of the Syrian legal space, which then feeds into impunity. The more impunity remains sidestepped, the more it becomes entrenched locally, and the more likely it is to have spillover effects internationally, for example by the commission of acts of terror outside Syria. Because the massacre in the city of Hama remained unchecked in the 1980s, there are now tens of Syrian cities and towns which are afflicted by the Hama horror. Because accountability is not regarded as a core political objective, Syria is becoming a sanctuary for yet bloodier war crimes and crimes against humanity inflicted on Syrian civilians, and more atrocious terrorism to be committed abroad. Indeed, impunity in Syria is becoming the direct incubator of terrorism abroad.

It is therefore high time to change the core assumptions, and recognise, politically, the importance of ending impunity in the Syrian conflict. There is no possibility of a politically functioning Syria if Syrians are not able to come together to recognise that the torturing and killing of civilians are “crimes” and the central role that ending impunity plays.

Indeed, ending impunity in Syria must be taken seriously. It must become a declared goal of any political settlement. In doing so, one must remain mindful of the fact that ending impunity may not entirely define who is entitled to be part of political negotiations. However, ending impunity must be set as a goal of political settlement. It must be posited as a constitutional principle in any transition. Of course, to place ending impunity as an objective of political settlement does not mean that an emphasis should be made solely on judicial accountability measures. These details must be left to the Syrians to figure out. Ultimately, a combination of prosecutorial and non-prosecutorial accountability mechanisms must be agreed. In any event, such mechanisms must be credible: they must be capable of addressing the past grievances of all Syrians in such a way so as to vindicate their unrelenting demand for justice, and thereby avoid the resurgence of the conflict.

With the dispersion of meaning, Syrians are left alone. There are those who are defenders of crazy value systems, who will hold fast to them and carry on with the commission of greater atrocities. And there are also many who are able to engage with what Hanna Arendt once called “the silent dialogue between me and myself.” Hanna Arendt had asked what was in the thinking of the many Germans who refused to collaborate within Nazi Germany? To put it crudely, so Hanna Arendt answered, “they refused to murder… because they were unwilling to live together with a murderer – themselves.” Those Syrians can be found in what is commonly referred to as the “silent majority” inside the country, and increasingly in the diaspora. They squarely position themselves in opposition to the culture of impunity that is becoming a constituent part of polity. They personally refuse to be an accomplice of any crime, and they resolutely reject courting impunity for the sake of political expediency.

Note:
Sculpture: Mélancolie, Albert György, 2012.
Location: Quai du Mont Blanc, Geneva.