I – POST CONFLICT RECONCILIATION THROUGH RECONSTRUCTION:
The role of the international community in post conflict reconstruction is major and mostly, financial.
• Building a democratic project:
a. State of law: at the same time of the reconstruction of Syria’s infrastructures, current Syrian laws should be cancelled or modified according to human rights basis. As far as possible, new laws should provide a separation of powers (executive, legislative, judicial). Efforts to consolidate the rule of law are expected to be consistent with international human rights norms and standards, drafted with procedural transparency.
b. Parliamentary process: To provide ordinary citizens a role in the process of law-making, publicly promulgated…
c. Justice system: During the transition, there is still a danger of serious crime escalating, out of frustration or for revenge. Trustworthy current justice sector personnel who could lead the system from the outset of a transition have to be publicly identified.
d. Constitution making: to abolish the 2012 Constitution; opportunities to develop and strengthen it, in order to promote a culture of democracy, including fundamental rights and freedoms
e. High level and public officials: legal accountability
• Rebuilding infrastructures:
a. Conflict leads to the collapse of State institutions or hinders their development: international community has a duty to help to set up free and efficient institutions. In the case of Syria, on the 15 December, the main opposition figures formed a body to prevent the full collapse of state institutions if Bachar Al-Assad is overthrown. One can question if this would be enough to save all vital institutions? Such an initiative is ambitious, maybe too ambitious, and evicts completely the need for a profound reform of all institutions that have conducted very poor governance and are tainted with corruption and bribery.
b. Emergency “short term” action -> Humanitarian assistance: the swift provision of humanitarian assistance and full access to humanitarian organisations and the International media Syria, facilitate the implementation of humanitarian pauses in order to allow the safe delivery of humanitarian aid.
c. Long term action->Rebuilding state institutions also means preventing further conflicts by addressing the issues that were part of the rise to conflict: extreme poverty; corruption, poor governance, censorship, etc. Priority given to:
Justice: a committee should be settled in order to establish a strategy, than to safeguard records and documentation
Security sector: civil-military relations should be established in line with democratic principles; to provide an effective security environment for the Syrian people; security department detached from politics; controls on foreign security industries.
d. Pragmatically and more generally, it means financing the creation and equipment of hospitals, schools and habitat for instance. It also means providing for tools and training to the workforce. This requires identifying people who might lead to reforms in each sector with the help of the International community; a temporarily follow-up by the International community of all reforms/works by committees established, on a sufficiently long-term basis.
e. Such actions are financed for example by international institutions’ programs: the UNDP (United Nations Development Program) acts vigorously in post-conflict situations and provides for assessments of needs and recovery results, often in close association with the World Bank. The European Commission funds numerous projects led by NGOS, notably in post-conflict areas, to rebuild and provide for training to the local population (through European Commission Directorate General ECHO for humanitarian aid or EUROPEAID for development). The vast majority of such projects offers the advantage to associate local inhabitants and therefore, give a real impulse to long-term reconciliation. Wide international support has proven to be an accelerator of progress in the management of post-conflict situations.
f. It is illusory to think such contribution will compensate an possible previous failure of the international community but it comes at a time of “moving forward” and not “looking backwards”.
• International community involved
a. The League of Arab States: suspended Syria’s membership and imposed economic sanctions; after different failed attempts, the League of Arab States agreed to open contact with Syrian opposition and ask the UN to form a joint peacekeeping force to halt the violence in Syria.
b. The Gulf Cooperation Council (GCC): Syria isn’t a member but they made calls.
c. The European Union: ban on oil imports, economic sanctions.
d. UN: problem of Russian/China veto
e. Problem of economic sanctions which have a very negative impact on Syrian citizens.
II – POST CONFLICT RESOLUTION THROUGH ACCOUNTABILITY:
The main goals of post conflict justice are neither to satisfy monetary claims, nor to assert a victor’s position. The main goals are to promote reconciliation and promote peace through deterrence and accountability.
• Post conflict justice is unfortunately too often mistaken with revenge. On the contrary, it is a sane way to promote peace and reconciliation through several of its aspects:
a. It will name the people responsible for taking action or not taking action during the conflict and in the escalation of such conflict. Individuals holding public offices will be accountable for not having preserved the people’s well-being and safety.
b. Most importantly, it will identify victims and give them recognition of such status. Recognition is the 1st step to reconstruction and healing entire communities. An injured population will not be willing to enter into a peace process if it has to carry the burden of a claim still considered as illegitimate.
c. It gives a chance to speak: accused and victims have the opportunity to state publicly and in a judicial context, the reasons for the actions, the arguments supporting their claims and the events they have gone through. It restitutes a human dimension to the facts. During the conflict, human considerations and the will of the people will tend to be manipulated and wiped away by political eagerness and games of power.
d. It will establish a certain version of truth. Truth is never absolute; it is an opinion held by such a majority of people that it is considered as such. A judgment rendered after a public trial will state facts that were debated, challenged and tested through exhibits, witnesses and legal reasoning. It might help to restore what propaganda and war communication has transformed.
• Should such post-conflict justice be implemented at the national or the international level?
Reminder: Syria is a party to a number of human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. These crimes have a special status under international law; their prohibition is jus cogens, or fundamental to the international order.
a. It depends of the nature of conflict. In the case of Syria, national institutions, including judicial institutions have been controlled by Bachar Al-Assad and formerly by his father, Hafez el-Assad. Unless a major change at the constitutional and moral level operates, chances that public, impartial and thorough trials by independent and willing jurisdictions are close to null. ->therefore, to fight against impunity, an international solution can – and must – be considered.
b. International justice: as asked for by Human Rights Watch in the 14 December letter to UNSC urging to refer the situation in Syria to the ICC. According to its Statute, the ICC has jurisdiction for crimes committed after 1 July 2002 on the territory of a State party. Syria not being a state party to the Rome Statute, the ICC should either have its jurisdiction recognized in a special declaration from Syrian authorities submitting the situation to the international court, as was the case of Côte d’Ivoire or have the case recommended by the UN Security Council and jurisdiction specially authorized as was the case for the conflict in Darfur.
c. Prosecution by other countries: Certain categories of grave crimes in violation of international law, such as war crimes and torture, are subject to “universal jurisdiction”. Certain treaties, such as the 1949 Geneva Conventions and the Convention against Torture, oblige states parties to extradite or prosecute suspected offenders who are within that country’s territory or otherwise under its jurisdiction. Under customary international law, it is also generally agreed that states are allowed to try those responsible for other crimes, such as genocide or crimes against humanity, wherever these crimes took place.
• Corporate social responsibility
a. Special care to companies involved in Syria’s war crimes regarding human rights abuses. They could also be held liable for having provided help to BACHAR government and could be accomplices of war crimes. If French companies were involved, they might be prosecuted in France according to our Criminal Code.
b. Companies concerned: especially security companies, international companies recently arrived in Syria (private banks, mobile phone companies, etc…), as well as oil companies.
• States responsibility and their non-intervention
a. The emergence of state responsibility: In the wake of Kosovo and Rwanda, the international community began to rethink the nature of sovereignty. In 2001, the International Commission on Intervention and State Sovereignty (ICISS) determined that sovereignty requires states to protect their populations from atrocity crimes. The concept, known as the Responsibility to Protect (R2P), was endorsed by the UN General Assembly in 2005 and in a January 2009 report. The Security Council itself has invoked R2P in its resolutions regarding the Darfur and Libya crises. The ICISS report anticipates the problem of Security Council paralysis, leaving scope for R2P action without its authorization.
b. States duties:
Have an obligation to protect their populations from atrocity crimes;
There is convincing evidence of ongoing atrocity crimes in a state which is unable or unwilling to stop them. War crimes and crimes against humanity have definite criteria independently verifiable by the UN and other neutral observers, as they have been in Syria. The requirement that the atrocity crimes are “ongoing” also distinguishes Syria from other recent interventions, like Iraq. (Saddam Hussein’s atrocity crimes against the Kurds were committed well before the US invasion of Iraq in 2003, and were only one among many justifications for that intervention.)
The international community should exhaust peaceful options, such as diplomacy and targeted sanctions;
If these measures fail, R2P’s third component allows the international community to use military force as a last resort.
c. What of the Russian and Chinese objection that intervention in Syria violates international law and is a pretext for regime change? Under R2P, the use of force without Security Council approval is to be triggered only when there are ongoing atrocity crimes.