Putting an end to atrocities in Syria

Syria’s warring parties are set to resume talks in Geneva on January 25, spurred by diplomatic efforts to reach an accord as the slaughter in Syria continues and millions flee their homes.

Guiding principles for the talks reached in October in Vienna by the main foreign actors in Syria’s war speak broadly of secular governance, the eventual defeat of the self-proclaimed Islamic State (ISIS) “and other terrorist groups,” maintenance of Syria’s prewar borders, and the protection of minority groups and state institutions. Yet they fail to address how to build trust among the warring parties to make the difficult compromises needed to achieve these goals. US Secretary of State John Kerry has been treating the Syria negotiations as if they depend solely on of diplomacy. But they are unlikely to succeed if the parties ignore the need to end the attacks on civilians and other atrocities that are driving Syrians apart—and the need to sideline the people responsible for them.

The war has continued for so long in part because both the Syrian government and the armed groups aligned against it have believed that they could prevail militarily. Russia’s entry into the war may have helped to dispel those illusions. Its airpower has been enough to bolster the Syrian government against collapse but not to make significant progress against the opposition.

Meanwhile, the rise of ISIS and its demonstrated ability to attack in Europe, as well as the mass exodus of Syrian refugees, have led many external actors to renew their push for a political compromise. They hope to encourage their Syrian allies to fight ISIS and other extremist groups like Jabhat al-Nusra rather than each other.

A fraught transition

One of the big open questions concerns the fate of President Bashar al-Assad and his henchmen. They are the architects of a brutal strategy of indiscriminate attacks in populated areas held by the armed opposition. They have also imposed sieges on civilian populations, blocked the delivery of humanitarian aid, and tortured and executed prisoners.

The opposition demands that Assad leave power. However, many foreign actors assume that Assad will not leave immediately. As a practical matter, he represents a powerful faction in the fighting so will be represented at the negotiating table. Moreover, with the possible exception of extremist groups, no one has an interest in the Syrian state collapsing, since the loss of its security forces and judicial system could yield chaos even worse than today’s conflict, especially for Syria’s minorities. Because Assad’s abrupt departure might deal a psychological blow that would jeopardize the Syrian state, a managed transition should be in most parties’ interest.

A logical compromise would be for Assad to retain power but for only a short period. Even Russia and Iran have hinted that they are not wedded to Assad so long as he departs through negotiation rather than popular revolt, and is replaced by a friendly regime.

If Assad and his murderous cronies relinquish power, they will undoubtedly push for amnesty for their crimes. That should be firmly rejected. As a general rule since the early 1990s, the international community has rightly refused to give its imprimatur to amnesties for mass atrocities. Rejection is required by international law, respects the victims, and avoids encouraging further atrocities. Moreover, an amnesty in Syria would not guarantee against prosecution. If a future Syrian government joined the International Criminal Court and consented to retroactive jurisdiction, the court would not accept an amnesty for mass atrocities.

No amnesty for war crimes

Foreign courts exercising universal jurisdiction over alleged Syrian war criminals found on their territory would also be free to ignore an amnesty. Precedents from Argentina, Chile, and Peru show that even in countries where the atrocities occurred, amnesties granted under pressure of violence can be ruled invalid.

That said, Assad and his henchmen can hardly be expected to deliver themselves to The Hague. As a practical matter, they could either use their power in Syria to shield themselves or, if weakened, flee to Moscow or Tehran, leaving for another day efforts to apprehend them for trial.

Who would replace Assad? According to the Vienna declaration, that question would ultimately be answered by UN-supervised elections. But credible elections in war-torn Syria, where millions have been displaced, will take time and preparation. Initially, it will be necessary to establish a coalition government by agreement. The Vienna declaration calls for “credible, inclusive, non-sectarian governance.” Such a government would need to be led by figures with credibility among both Syria's Sunni majority and the Alawite and other minorities that have largely entrusted their fate to Assad.

Syrians participating in the negotiations would determine the components of this coalition. But the possibility for compromise would increase greatly if the international community demanded that the new government exclude people from any side who, through a fair, open, and contested process, are found responsible for serious abuses.

Achieving an accord along such lines depends on developing a level of trust among Syria's warring factions that is currently lacking. It is difficult to shake hands with opponents who are killing one’s families and neighbors. That is why Secretary Kerry is wrong to prioritize striking a deal over ending atrocities. Stopping the deliberate slaughter of civilians—a crime by all sides but, measured by the number of victims, predominately a crime by Syrian government forces—is not a byproduct of a deal but a prerequisite. Lifting the sieges and releasing people arbitrarily detained are also important for building confidence. As the Geneva talks recommence, negotiators should not treat the atrocities as a sideshow, as the Vienna declaration did. Instead, they should use their substantial collective influence to insist on an end to them now.

Author: Kenneth Roth is Executive Director of Human Rights Watch. Follow him on Twitter @KenRoth. He is participating in the World Economic Forum’s Annual Meeting in Davos.