1 Introduction

Recent events in Syria, especially the recent press conference with the High Committee for Civil Peace, have sparked waves of popular reactions questioning the seriousness of the transitional justice process, its approach, and how it will be implemented, especially given the lack of transparency as evidenced in the conference, where no clear answers were given to the Syrian street, especially about one of the most famous participants in the mass killings in Syria, Fadi Saqr, who not only received an amnesty for still unknown reasons, but also maintained his wealth, status, and personal protection.

The difficulty of the Syrian situation is an undeniable fact, but there are also facts that cannot be ignored, the most important of which is that the political transition in Syria is not a choice, but a necessity, but it needs courage and determination; this transition requires the realization of transitional justice, which in turn will be the indispensable basis for launching the process of popular reconciliation. Syria needs a transitional model that balances justice, reconciliation, and the supreme national interest, taking lessons from historical experiences, not copying them. A stable state cannot be built without healing the wounds of the past, and justice cannot be achieved without taking into account political and social realities.

The biggest lesson of recent history is that political deals can stop war, but they do not build true peace. True peace can only be built through transparency, justice, and genuine participation by the Syrian people themselves.

After more than a decade of conflict that has claimed hundreds of thousands of lives, displaced millions, and destroyed the country’s infrastructure, Syria today faces enormous challenges in building a post-war future. But the pressing question remains:

How can real stability be achieved in a fractured state without transitional justice, which is the prerequisite for reconciliation?

In this context, there are significant issues left behind by the defunct regime of Bashar al-Assad, such as the responsibility of those involved in mass killings and businessmen accused of corruption and profiting from the regime’s excesses and bloody violence against Syrians. However, without international accountability mechanisms as key elements in understanding the complexities of any political transition, looking at similar historical cases may help in understanding possible options, lessons learned, and associated challenges.

2 What is transitional justice?

Transitional justice is neither a traditional judicial system nor a penal sanction, but rather a set of procedures and policies aimed at addressing the effects of past gross human rights violations, healing their victims, promoting national reconciliation, and preventing the recurrence of such violations. Transitional justice differs from traditional criminal justice in that it focuses not only on punishing perpetrators, but also on restoring victims’ rights and rebuilding trust between citizens and the state.

2.1 Goals of Transitional Justice

The goals of transitional justice focus on several key areas, including:

1. Revealing the truth: Provide accurate and comprehensive information about what happened during the conflict.
2. Justice for victims: Through trials or state reparations.
3. National reconciliation: Rebuilding relationships between parties to a conflict.
4. Preventing the recurrence of violations: Establish oversight and legislative mechanisms to ensure that the past is not repeated.

2.2 Tools for Implementing Transitional Justice

Transitional justice tools vary according to the nature of the conflict and society, the most important of which are:

• War crimes trials: Prosecuting those responsible for grave violations.
• Truth and Reconciliation Commissions: To collect testimonies and document shared history.
• Conditional amnesty: In cases where those involved cooperate in uncovering the truth.
• Official apology and recognition of responsibility: By the state or leaders.
• Compensation of victims: Material and moral.
• Community reintegration: For ex-combatants and others who were not involved in the crimes of the former regime and those affected by the conflict.

3 Relevant Historical Cases

In this paper, we will deal with some historical experiences in the modern era that went through bitter experiences in the transition from one regime to a very different regime; we will sort them into two groups, the first worked to eliminate the remnants of the previous regime almost radically, and the second tried to reconcile or bargain with the previous regime.

3.1 Nearly eliminating the remnants of the former regime

3.1.1 Germany after World War II – The Fall of Nazism (1945)

After Germany’s defeat in World War II, the country was occupied by the Allies (Britain, America, the Soviet Union, France). The Nazi regime was completely dismantled, top Nazi officials were tried at the Nuremberg Trials, and the Nazi Party and all its institutions were abolished. Many former employees and officials of the Nazi era were barred from public service through the policy of “Denazification”. In West Germany, the German state was rebuilt from scratch, with new leaders unconnected to the old regime, but in East Germany some former officials were allowed to continue within the new communist ruling class.

What happened in Germany was possible because the Nazi regime had no real popular support, the Allies were united in their goal, and the crimes were clear and heinous.

3.1.2 Japan after World War II – Termination of the Japanese Empire (1945)

After the bombing of Hiroshima and Nagasaki, Japan surrendered to the Allies, and a long American occupation of Japan began. The New Japan removed Emperor Hirohito from effective executive power, disbanded the Japanese military and intelligence services, and tried Japanese war criminals in the Tokyo Trials. The new Japanese state was consolidated through a new constitution that ended the old imperial system. In the end, the old regime disappeared, but some former figures later returned to political life in the 1950s.

Japan has not been able to erase all traces of the old system. But it was able to transform key institutions and reshape the state.

3.1.3 Yugoslavia after the fall of Milosevic (2000)

In 2000, President Slobodan Milosevic, who was accused of war crimes during the Balkan wars, was overthrown after widespread popular protests, and Milosevic was extradited to the United Nations and tried in The Hague. Many of the security and intelligence organizations associated with him were disbanded, and the army and government were restructured.

Although Milosevic was overthrown by a popular revolution, erasing all traces of the old regime was difficult. Some of the security services and economic interests associated with the old regime remained, as did a number of former politicians and officers who later returned.

3.2 Bargaining with remnants of the former regime

3.2.1 Chile (1990):

Pinochet ruled Chile as a dictator after a military coup in 1973 until 1990, and his rule was an unjust military dictatorship, during which he suppressed his opponents by various methods, including arrest and torture on a large scale, and during his rule, the suffering of the poor majority in the country increased.

After years of protests against the Pinochet regime, the dictatorship fell in 1990. A general amnesty was granted to military officials in exchange for handing over power, and the peaceful transfer of power succeeded, but left unhealed wounds that led to continued protests. Through a long process of prosecution through international courts, Pinochet died in 2006; many of the DINA military intelligence officers implicated in the crimes of the Pinochet regime have not been held accountable.

3.2.2 Rwanda (1994):

In Rwanda, a mass massacre, carried out by Hutu fighters, was one of the worst in the 20th century, killing about 600,000 people, mostly Tutsis, in 100 days, during which about 350,000 women were raped.

Transitional justice in Rwanda was a great challenge because of the heinousness of the crime, which exceeded the murder rate of the Holocaust in World War II and the massacres in Syria, and because of the huge number of people involved in the genocide, with an estimated number of hundreds of thousands and overcrowded prisons. In the end, these ordinary courts and gacaca courts failed to deliver the justice that Rwandans had hoped for.

Many of the leaders responsible for the massacre fled Rwanda, and without international cooperation, Théoneste Bagosora, the Rwandan leader directly responsible for the massacre, would not have been captured. At the outcome of the International Tribunal in 2011, he was sentenced to 35 years in prison.

In the end, Rwanda was relatively stabilized, but the bitterness of the experience and the injustice of the transitional justice experience persist in Rwandan society, and governance remains democratically authoritarian on the outside. Somehow the crisis spilled over into Zaire and overlapped with the Republic of Congo and Burundi.

3.2.3 South Africa (1994):

By relative comparison, South Africa has been able to pursue the best “post-crisis” policies, through the independent and credible TRC. A conditional amnesty was granted to criminals who admitted what they had done during the apartheid era. This approach has been reasonably successful in reconciling the people and avoiding civil war, although there are still criticisms of the lack of criminal justice.

3.2.4 Iraq (2003):

Saddam Hussein exercised extensive power since 1968, although he was not the head of the Iraqi Baath regime at the time, and focused his attention on consolidating Iraqi rule through the security and military apparatus; he then seized power as president of Iraq in 1979. Saddam Hussein was responsible for the killing of hundreds of thousands of Iraqis, both Kurds and Arabs. After Saddam Hussein’s regime was toppled and the country fell into chaos, Saddam Hussein, mainly due to international pressure, was tried and executed; but there were also several deals with former officers and officials in exchange for amnesty and protection in the ensuing clashes with several extremist organizations.

There has been a temporary improvement in security, but with the return of corruption and the old regime under a new name, Iraq is still in a tunnel of state failure and the continued suffering of the Iraqi people despite Iraq’s rich natural and human resources.

4 Comparing the Syrian situation with the experiences of others

History does not repeat itself, and reading the experiences of other countries that may resemble the Syrian situation is helpful in reading the Syrian reality and in reaching a better solution to the challenges facing Syria, the biggest and most difficult of which is achieving Syrian popular reconciliation, rebuilding the Syrian social contract, and freeing the Syrian future, as much as possible, from the severe bitter effects of what happened during the rule of the Assad regime and during the past 14 years.

• We can observe that the Syrian case is similar to Rwanda in terms of the depth and magnitude of the human wound inflicted on the people; it is also similar to the Chilean case in that the new government has a desire to punish senior officials from the former Assad regime, but it differs from the Chilean case in that Chile went directly to democratic rule while the fate of democracy is still hazy in Syria.
• The style of the Iraqi government after the fall of Saddam Hussein is similar to that of the new Syrian government, in terms of using some elements of the former regime in terms of security and military. However, in the Syrian case, a foreign military force is also being inserted deep into the Syrian military structure.
• As in the case of South Africa, there is a Syrian need to establish an independent and transparent mechanism and committees to uncover the facts, rebuild trust among the popular components, and build trust between the people and the new authority in Syria.
• The case of Syria is similar to that of Yugoslavia in terms of the proven criminality of the former ruler and the depth of the pain and wounds he inflicted on the population. In Syria, however, it seems that most of the top officials of the former regime have managed to escape punishment, and some of them, like Bashar al-Assad, may have secured a safe haven.

5 Analyzing the Syrian situation, the reality of what is happening and options for the future

It is difficult to prioritize between the economic, political, and security challenges, as well as the challenges of popular reconciliation and achieving justice in a reasonable and acceptable manner. These challenges result from the absence of an international consensus on the future Syria, during and after the bitter war over the past fourteen years, and the lack of a credible centralized entity leading the transition process that is committed to transparency, neutrality, and protecting the independence of accountability and transitional justice mechanisms.

5.1 The reality of what the Syrian Transitional Government has done

The transitional government led by Ahmad al-Shara’a has been late in launching the transitional justice process after the fall of Bashar al-Assad’s regime, and there is still no real effort to form a legislative body that is as representative of the Syrian street as possible to serve as a watchdog and reference point for major decisions such as transitional justice. In addition, the judiciary is still decrepit and does not enjoy independence from the executive branch, represented by the president of the republic.

Although it has been announced that the Public Security Forces are pursuing the remnants of Bashar al-Assad’s regime and have managed to kill many of them, official statements did not specify the number or names, nor did they reveal how they were sentenced and by what legal mechanism. Most of the powerful figures who were responsible for the mass killings committed by the Assad regime after 2011 have not been arrested.

Even more surprising was the announcement of amnesty for some of these figures who were directly involved in committing mass killings, such as Fadi Saqr, and freedom of movement for some of the Assad regime’s wealthiest supporters, such as Muhammad Hamsho. What is even more frustrating for the Syrian street is that a number of these figures are still enjoying the wealth and social, political and security power they have accumulated. In other countries, deals have often been made to ease the pain of a harsh political transition, and they have taken two forms: First, guaranteeing the security and safety of the figure being dealt with and ensuring that he will not be prosecuted on the condition that he disappears from the public sphere; second, not requiring the figure to disappear from the public sphere, but guaranteeing him important positions within the state with the new regime. The first approach, requiring cooperating figures to disappear from the public sphere in exchange for avoiding prosecution and punishment, has proven to be the best and most successful in the long run; however, in cases similar to Syria, there is no justification whatsoever for dealing with the senior figures responsible for the tragedy. The reality of Rwanda and Yugoslavia confirms that the fact that the top leaders of the massacres survived, or were punished in proportion to the magnitude of the crime, left social effects that later contributed to the fragility of the political reality.

So what is happening now seems to be going beyond the cases of the countries previously mentioned in this paper, limiting the application of transitional justice to an unspecified number of small individuals involved in the crimes of the Bashar al-Assad regime, and applying this justice arbitrarily outside any normal legal framework or exceptional legal framework.

The most important point in the Syrian case is the complete lack of transparency about what happened in Syria, what is happening, and what is being planned for the future. Not only in the area of transitional justice, but in all the policies of the new government. In the absence of a healthy democratic process, this opacity and secrecy is turning the results of the tragedy that Syrians have lived through, once again, into volcanoes raging beneath the surface.

5.2 What’s wrong with imitating what happened in other countries?

What happened in the countries we mentioned is not necessarily the best and optimal behavior, nor does it provide an argument or proof that what happens in Syria after the fall of the Assad regime is the best and most secure path for the future.

Indeed, the persistence of grievances in Rwanda, Iraq, Lebanon without transitional justice, Chile, and even South Africa remains a factor of instability. Rwanda, Iraq, Lebanon, and the former Yugoslavia are still struggling to reach the stage of a stable state that guarantees the continued improvement of the conditions of the popular majority in these countries, with the absence of democracy and social justice evident in these countries, in parallel to the failure to build wise policies to rebuild the state and the social contract.

5.3 What can be done, and options for the future in Syria?

The transitional justice process must be parallel to other reconstruction measures on the economic, political, and social levels, and within the Syrian popular reconciliation process. The comprehensive reconstruction process must parallel the transitional justice process:

1. Ensuring the independence of the executive, judicial, and legislative branches
2. Working to restore the status of the judicial and legal system
3. Protecting the State Structure through Democratization
4. Building a truth-telling mechanism
5. An independent national body (perhaps under UN auspices) could be established to document crimes and collect victims’ testimonies.
6. Avoid focusing on revenge, but rather on rebuilding a shared national memory.
7. Strengthening the role of civil society
8. Civil society can be a key pillar in initiating local reconciliation processes, especially in relatively recovered areas.
9. Support local human rights organizations and humanitarian initiatives.
10. The process must be neutral, inclusive, and multi-confessional.

6 Conclusion:

The reconstruction process in Syria on the economic, security and political levels requires that the transitional justice process be launched in parallel with the reconstruction measures. Transitional justice is the necessary and insurmountable condition for launching the popular reconciliation process, which represents an indispensable basis for achieving security and political stability, which in turn constitutes the most important factor in attracting and succeeding in investments in the country.

According to the models we have briefly discussed, one of the important findings is that transparency in the transitional justice process and ensuring its impartiality and independence is a sine qua non for achieving the goals of transitional justice. It has been historically proven that all the arguments presented as justification for bypassing transitional justice, such as “national security” or “supreme national interest” or others, were not an honest and fair justification, but rather increased the difficulties of the new phase.

• Suggested references
• United Nations, Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies , UN Document S/2004/616.
• Hayner, P. B. (2011). Fifteen Truth Commissions – 1974 to 1994 . Human Rights Quarterly, Vol. 16, No. 4.
• Teitel, R. G. (2000). Transitional Justice . Oxford University Press.
• Rotberg, R. I., & Thompson, D. F. (Eds.). (2000). Truth v. Justice: The Morality of Truth Commissions . Princeton University Press.

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Alaa Al-Din Al-Khatib
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