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The Hague – The Syrian Network for Human Rights (SNHR) has issued a new report outlining the legal frameworks and basic principles upon which the process of establishing a transitional justice body should be based. The report, titled “The Syrian Network for Human Rights Recommends the Establishment of a Transitional Justice Body in Syria through a Law Issued by the Legislative Council.”
The report emphasized the necessity of establishing a transitional justice commission in Syria pursuant to a law issued by the legislative authority, warning of the risks that could result from resorting to an executive decree as an alternative to the legislative process. It explained that adopting this approach would threaten the commission’s independence and undermine its effectiveness, citing international experiences in countries such as Uganda, Peru, and Morocco. These experiences have shown that commissions established by executive decrees often lack effective authority and societal legitimacy, suffer from weak investigative capabilities, limited victim engagement, and are subject to political interference that weakens their performance and impacts their independence.
The role of the Legislative Council
The report emphasizes that the Legislative Council, expected to be formed following the issuance of the Constitutional Declaration, is the body responsible for drafting the founding law of the Transitional Justice Commission, ensuring the legitimacy of the transitional process and enhancing its effectiveness. The importance of this role lies in three pivotal functions:
- Establishing moral legitimacy through representative discussions that address the “delegation dilemma” and embody the principle of “legislative dignity,” which executive decrees neglect.
- 2. Achieving stakeholder inclusiveness through legislative mechanisms that ensure the participation of various societal groups in designing the Authority, thus enhancing its legitimacy.
- Ensuring the rule of law by placing the Authority’s powers and operating mechanisms within a transparent legal framework, free from any exceptional powers.
Independence and the Judicial Framework: Basic Guarantees
- Financial and Administrative Independence from the Executive Authority:
The report indicates that financial and administrative independence from the executive authority is a prerequisite for ensuring the effectiveness and impartiality of the transitional justice commission. Accordingly, the commission must be established on foundations that guarantee this independence through the following measures:
- Allocating an independent budget approved by the legislative authority to avoid financial dependence on the executive branch.
- Protecting financial allocations from arbitrary cuts, particularly when conducting investigations related to sensitive files.
- Enabling the Commission to control its operational resources without the need for executive approval.
- Ensuring the independence of employment decisions, including appointment, promotion, and compensation.
- Adopting self-governance, enabling the Commission to determine its internal structure, procedures, and priorities.
- The Commission enjoys procedural independence, allowing it to freely choose its investigation methodologies and identify target cases.
- Mechanisms to protect against political interference:
The report emphasizes the importance of providing clear legal guarantees to protect the commission from political interference, ensuring its integrity and impartiality. The report proposes that the founding law include provisions stipulating:
- Protecting the appointment process: Through a transparent nomination mechanism overseen by an independent committee comprising experts, judges, and representatives of victims and civil society, provided that the members are impartial and free from involvement in violations or affiliation with political parties.
- Protecting tenure: Preventing the dismissal of commission members or the threat of retaliation for their decisions, particularly in politically sensitive cases.
- Protecting operational independence: By granting the commission full investigative powers, preventing any interference in its work, and imposing strict penalties on those who obstruct its work.
- Proper integration with the judicial system:
Although the Commission operates within the general judicial framework, the report recommends that the founding law clearly stipulate the Commission’s complete independence from the Ministry of Justice, given its affiliation with the executive branch.
At the same time, the report emphasizes the need for the commission to cooperate with the independent national judicial system while maintaining its operational independence. This integration is a key factor for the success of the transitional justice project, provided that institutional overlap or competition overpowers is avoided.
This integration requires, according to the report, the following:
- Clear institutional linkage through formal channels between the Commission and the judiciary, including the establishment of a special court linked to the national judiciary to try serious crimes.
- A clear functional distinction between the Commission and the judiciary, so that the Commission refers the results of its investigations to the court without duplication or conflict of powers.
- A coherent legal framework linking the Commission’s findings to appropriate judicial procedures and penalties, while rejecting any exceptional measures that might undermine confidence in the Commission’s work.
The report warns that the absence of judicial independence poses a serious threat to the transitional justice process, due to its negative effects, such as undermining accountability, losing legitimacy, and diverting the process of justice to political ends rather than achieving justice for victims.
Membership and Selection: The Need to Reflect Syria’s Ethnic, Religious, and Political Diversity
The report emphasizes the importance of the transitional justice commission being inclusive and representative of all ethnic, religious, and political components in Syria, ensuring its compatibility with the local cultural and social context. This diversity plays pivotal roles in the commission’s work, most notably:
- Strengthening the search for truth by integrating multiple perspectives and diverse experiences, enabling a deeper understanding of human rights violations in their various dimensions and the disparate impact they have across communities.
- Building community trust by ensuring genuine representation of the voices of all groups within the Commission, providing victims and affected communities with a sense of fairness.
- Providing local implementation knowledge to help design transitional justice mechanisms that are consistent with Syria’s cultural and social specificities.
The report warns that weak representation could lead to what is known as a “participation deficit” and “distorted narratives,” threatening to erode community trust and undermine the commission’s legitimacy and effectiveness.
- Transparent Selection Processes: The Recommendation Committee Model and Its Importance
The report proposes a transparent and structured mechanism for selecting the commission’s members, through the formation of a recommendation committee comprising independent experts and representatives from the judiciary, civil society, and victims. This model aims to ensure the independence and competence of members and avoid partisan or politicized appointments that could undermine the commission’s integrity. The report highlights three key advantages of this model:
- Achieving “appointment distance”: separating the political decision from the member selection process, which enhances the body’s independence and reduces the pressures of political loyalties.
- Focusing on competence: By adopting strict legal standards that prioritize qualifications and experience over political or personal considerations.
- Enhancing legitimacy through procedural pluralism: By involving multiple parties in the selection process, this process gains broad societal acceptance and strong institutional legitimacy.
- Stakeholder consultation requirements:
The report highlights the need for broad consultations involving six key stakeholders: civil society organizations, victims, political actors, local communities, youth and women, and international supporters. These consultations aim to overcome the “ownership challenge” and ensure that the commission reflects the aspirations of all components of society. This process contributes to enriching knowledge sources, enhancing sensitivity to different contexts, and leading to a realistic and shared understanding of the commission’s mandate and limitations.
- Government cooperation requirements and authority mandate:
The report emphasizes that the Authority’s success depends on mandatory, rather than voluntary, government cooperation to address the “horizontal accountability challenge” within state institutions. This cooperation includes:
- Positive assistance: A real commitment by government institutions to support the commission, not merely to refrain from obstructing it.
- Official testimony: Obligating former and current officials to provide information necessary for the achievement of justice.
- Access to archives: Establishing protocols to ensure the commission’s access to relevant official documents and records.
The report emphasizes the need for such cooperation to be comprehensive and non-selective, with strict penalties imposed on non-cooperative parties, whether through direct administrative measures or binding judicial orders.
Authority mandate: three to five years
The report believes that the commission’s mandate should range between three and five years, to achieve a delicate balance between allowing sufficient time for investigations and avoiding institutional inertia. This period offers several advantages, including:
- Executive stability: This allows for systematic planning and thorough investigations.
- Expectation management: By aligning available time with the scale of major tasks, such as gathering evidence and investigating multiple violations.
- Procedural comprehensiveness: This ensures comprehensive and non-selective documentation of violations committed from 2011 to the end of 2024.
- Effective victim engagement: By allowing sufficient time to document, verify, and integrate accounts into the Commission’s outputs.
Recommendations
In conclusion, the report presents a set of recommendations aimed at ensuring that the transitional justice body is formed on solid legal foundations, most notably:
- Develop and implement a comprehensive public outreach strategy on the proper sequence for establishing transitional justice bodies, emphasizing the need to complete the constitutional framework and obtain legislative approval before forming the relevant committees and bodies.
- Establish the Legislative Council through transparent and comprehensive legal processes, following the issuance of the Constitutional Declaration, with clear authority to draft the basic law regulating transitional justice.
- Drafting a comprehensive bylaw through extensive consultations with victims’ groups, civil society organizations, legal experts, and other stakeholders. This bylaw should detail the Commission’s structure, mandate, working mechanisms, criteria for selecting its members, reporting requirements, and its relationship with other state institutions.
- Designing and implementing a multi-stakeholder selection mechanism for the Commission’s members, based on transparent and clear criteria that emphasize competence, integrity, and independence, while taking into account the ethnic, religious, and political diversity present in Syrian society.
- Allocating sufficient financial resources for the Commission’s operations through transparent and publicly announced legislative procedures, rather than relying on executive allocations, will enhance the Commission’s institutional independence.
- Establishing formal coordination mechanisms between the Transitional Justice Commission and judicial institutions to ensure appropriate sharing of evidence and information while preserving the independence of each entity.
- Establishing a formal coordination mechanism between transitional governance bodies and organizations with expertise in transitional justice to provide the necessary technical assistance while ensuring national ownership of the process.
- Design and implement educational and public awareness programs on transitional justice procedures, their timelines, and the scope of their responsibilities, with the aim of managing community expectations and fostering a realistic understanding of the Commission’s role.
- Integrate transitional justice processes into broader institutional reform initiatives, particularly in the security and judicial sectors, to ensure an integrated approach that contributes to addressing the legacy of past violations and preventing their recurrence in the future.
